R v Rzeminski - [2022] NSWDC 731

District Court

New South Wales

Medium Neutral Citation: R v Rzeminski [2022] NSWDC 731
Hearing dates: 11 November 2022
Date of orders: 11 November 2022
Decision date: 11 November 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 15 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [30]

Catchwords:
CRIME – Use carriage service-procure child under 16 years for sexual activity
SENTENCING - Relevant factors on sentence – guilty plea – seriousness of online child sex offences- additional matter on schedule- use of Assumed Online Identity - period in custody for breach of bail - time served sufficient deterrent - recognisance can meet purposes of sentencing relevant to rehabilitation

Legislation Cited:
Crimes Act1914(Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Adamson v R (2015) 47 VR 268
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
R v Dennison [2011] NSWCCA 114
R v Porte [2015] NSWCCA 174

Category: Sentence
Parties: Noah Alexander Rzeminski (the offender)
Director of Public Prosecutions (Commonwealth)
Representation: Solicitors:
Ms A Socorro, Legal Aid (for the offender)
Ms I Kallinosis (for Director of Public Prosecutions, Commonwealth)

File Number(s): 2021/00144225

sentence – ex tempore revised

Introduction

Noah Rzeminski today adhered to a plea of guilty entered in the Local Court to a charge that, he between April 2021 and 4 May 2021 did, as a sender, use a carriage service to transmit a communication to another person, the recipient, with the intention of procuring the recipient to engage in sexual activity with himself and the recipient was under 16 years of age. That offence pursuant to s 474.26(1) Criminal Code Act 1995 (Cth), carries a maximum penalty of 15 years imprisonment.
He also asks that when I sentence him for that offence, I take into account on a s 16BA Crimes Act1914 schedule an offence of soliciting procure/using a carriage service; the material being child abuse material: s 474.22(1) Criminal Code. If sentenced separately that matter also carries a maximum penalty of 15 years imprisonment, but I do not sentence him for that matter. It is taken into account when I formulate the appropriate sentence for the matter to which the plea was entered. I will do so in accordance with the guideline judgment which applies in State and Commonwealth matters giving greater weight to deterrence and community protection for the matter for sentence: R v Dennison [2011] NSWCCA 114.
The maximum penalties are one important guide to the exercise of the Court’s discretion. They indicate, as Parliament intended, that Courts take into account that matters involving children by use of the internet can have profound and deleterious effects upon victims for many years. There is an absolute prohibition on sexual activity with children and that prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.
The Courts recognise that the harm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rzeminski

Details

AGLC: R v Rzeminski [2022] NSWDC 731
Case: [2022] NSWDC 731
Decision Date: 11 November 2022

CaseChat Overview and Summary

In the case of R v Rzeminski, the respondent faced charges related to the use of a carriage service to procure a child under the age of 16 for sexual activity. The matter was heard in a relevant Australian court. The primary dispute involved the sentencing of the respondent, who had pleaded guilty to the charges. The prosecution sought a custodial sentence, while the defence argued for a non-custodial alternative, considering the respondent's time served and the likelihood of rehabilitation.

The court was tasked with determining the appropriate sentence for the respondent, taking into account several key factors. These factors included the nature and seriousness of the offences, the respondent's guilty plea, and the potential for rehabilitation. The court also considered the use of an assumed online identity, the period the respondent had spent in custody for breaching bail conditions, and whether the time served could act as a sufficient deterrent. Furthermore, the court examined if a recognizance could serve the purposes of sentencing relevant to the respondent's rehabilitation.

After evaluating these factors, the court determined that a custodial sentence was necessary but could be mitigated by the respondent's time already served and the likelihood of rehabilitation. The court imposed a term of imprisonment of 15 months, but ordered that the respondent be released forthwith upon entering a recognizance. This decision was made under the provisions of s 20(1)(b) of the Crimes Act 1914 (Cth), allowing the court to tailor the sentence to achieve the purposes of sentencing relevant to the respondent's rehabilitation.

Orders

Orders of the court

Sentenced to a term of imprisonment of 15 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [30]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Rzeminski [2022] NSWDC 731
Hearing dates:	11 November 2022
Date of orders:	11 November 2022
Decision date:	11 November 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 15 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [30]
Catchwords:	CRIME – Use carriage service-procure child under 16 years for sexual activity SENTENCING - Relevant factors on sentence – guilty plea – seriousness of online child sex offences- additional matter on schedule- use of Assumed Online Identity - period in custody for breach of bail - time served sufficient deterrent - recognisance can meet purposes of sentencing relevant to rehabilitation
Legislation Cited:	Crimes Act1914(Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Adamson v R (2015) 47 VR 268 Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 R v Dennison [2011] NSWCCA 114 R v Porte [2015] NSWCCA 174
Category:	Sentence
Parties:	Noah Alexander Rzeminski (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Solicitors: Ms A Socorro, Legal Aid (for the offender) Ms I Kallinosis (for Director of Public Prosecutions, Commonwealth)
File Number(s):	2021/00144225