R v Smith

[2025] NSWDC 374

District Court

New South Wales

Medium Neutral Citation:

R v Smith [2025] NSWDC 374

Hearing dates:

22 May 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Aggregate sentence of 8 years with a non-parole period of 6 years, at [139].

Catchwords:

SENTENCING – Child sex offences – Possess child abuse material – Sexual intercourse with child >14 <16 – Procure child for unlawful sexual activity – Form 1 offences and uncharged acts

SENTENCING – Offender on conditional liberty at time of offending – On parole for similar offences – Present offending an escalation in behaviour – Breach of Child Protection (Offenders Registration) obligations – Lack of insight into offending

CRIME – Met child via encrypted social media and communications application – Sent child abuse material and pornography to child – Offered to purchase items for child – Arranged to meet child in person before school – Provided child with methylamphetamine immediately prior to assault – Sexual intercourse in public park toilet block – Filmed assault – Child in school uniform at time of assault

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 ss 9, 11, 17,

Crimes (Sentencing Procedure) Act 1999 ss 5, 21A, 53A

Crimes Act 1900 ss 66C, 66EB, 91H

Criminal Procedure Act 1986 s 166

Drug Misuse and Trafficking Act 1985 s 10

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Brown v R [2023] NSWCCA 330

Callaghan v R [2006] NSWCCA 58

EG v R [2015] NSWCCA 21

Milliner v R [2019] NSWCCA 127

Minehan v R [2010] NSWCCA 140

R v Baker [2020] NSWDC 615

R v Cassell [2022] NSWDC 471

R v Danielle Pana (a pseudonym) [2021] NSWDC 798

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v Dee Leeuw [2015] NSWCCA 183

R v DW [2012] NSWCCA 66

R v Lovas [2024] NSWDC 44

R v Smith [2016] NSWCCA 75

R v Till [2024] NSWDC 298

R v Wilkinson [2020] NSWDC 914

Tector v R [2008] NSWCCA 151

ZA v R [2018] NSWCCA 116

Category:

Sentence

Parties:

Rex (Crown)
William Henry Smith (Offender)

Representation:

Counsel:
J Sfinas (Crown)
A Radojev (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Paul Reynolds General and Criminal Law Practice (Offender)

File Number(s):

2023/00274190

Publication restriction:

Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987 and section 578A of the Crimes Act 1900, publication of the name of, or any matter which could identify, the victim is prohibited.

This judgment has been redacted to exclude any reference to locations at which the child was met or any geographical information which might identify where she went to school.

JUDGMENT

1. William Henry Smith appears for sentence in respect of 5 substantive offences relating to the sexual abuse of children. The offending took place between 24 and 28 August 2023. The offender was arrested and charged on 28 August 2023 and has been in custody since that date. The offender pleaded Guilty to the offences in the Local Court on 29 August 2024 and will, accordingly, be entitled to a 25% discount on the otherwise appropriate sentences.

2. Sequence 9 is an offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period.

3. Sequence 12 is an offence of failing to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000. This is a related offence pursuant to s 166 of the Criminal Procedure Act 1986. As such, it must be dealt with according to the Local Court’s jurisdictional limit, being a maximum penalty of 2 years imprisonment.

4. Sequences 14 and 15 are each offences of having sexual intercourse with a child between the ages of 14 and 16 contrary to s 66C(3) of the Crimes Act 1900. They each carry a maximum penalty of 10 years imprisonment. There is no standard non-parole period.

5. Sequence 19 is an offence of procuring a child for unlawful sexual activity contrary to s 66EB(2) of the Crimes Act 1900. It carries a maximum penalty of 12 years imprisonment. There is a standard non-parole period of 5 years.

6. There are three further offences attached to Sequence 15 which have been placed on a Form 1 and are to be taken into account in accordance with the principles in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

7. Sequence 8 is an offence of possessing a prohibited drug, namely 0.13 grams of methylamphetamine, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985. If prosecuted separately it carries a maximum penalty of 2 years or 20 penalty units.

8. Sequence 11 is an offence of disseminating child abuse material contrary to s 91H(2) of the Crimes Act 1900. If prosecuted separately it carries a maximum penalty of 10 years imprisonment.

9. Sequence 16 is an offence of producing child abuse material contrary to s 91H(2) of the Crimes Act 1900. If prosecuted separately it similarly carries a maximum penalty of 10 years imprisonment.

FACTUAL BACKGROUND

10. At the outset I note that prior to this offending the offender had previously been convicted in 2022 in respect of 3 offences of possessing child abuse material. He had been sentenced at Sutherland Local Court on 2 August 2022 to an aggregate term of imprisonment of 18 months with a non-parole period of 9 months. As a result of those convictions he was a registerable person for the purposes of the Child Protection (Offenders Registration) Act 2000. This required him to report personal information, including “details of any email addresses, internet user names, instant messaging user names, [or] chat room user names” pursuant to s 9(1)(p) of the Child Protection (Offenders Registration) Act 2000.

11. He was released to parole on 1 May 2023.

12. Between 3 May 2023 and 28 August 2023 the offender utilised the encrypted social media and messaging application “Telegram” under the username “Bit Inya”. The detail of this username was not reported to police within 7 days as required by s 11 of the Child Protection (Offenders Registration) Act 2000. This conduct forms the basis of Sequence 12, the offence of failing to comply with reporting obligations.

13. On 24 August 2023 the offender used this “Telegram” profile to message the victim. During the course of their online conversation, the offender asked the victim whether her age was 16. In response she told him that she was 14 years of age.

14. Between 25 August 2023 and 28 August 2023 the offender and the victim continued to exchange messages via “Telegram” and via text messages. During these conversations the offender detailed sexual acts he fantasised about the victim taking part in, instructed her on sexual acts to perform on herself, and detailed sexual acts he planned to engage in with her. He questioned her about her sexual fantasies and preferences. He incited her to take sexually explicit photographs of herself to send to him. The offender also offered to give the victim money to purchase a tennis racquet she wanted. This conduct forms the basis of Sequence 19, the offence of procuring a child for unlawful sexual activity.

15. Over the same period the offender sent sexually explicit material, including child abuse material, to the victim. This material included 54 separate media files: 10 videos containing Category 1 child abuse material pursuant to the Australian Child Abuse Categorisation System (“ACACS”); 10 videos containing Category 2 child abuse material; and 2 images containing Category 1 and Category 2 child abuse material. The remaining media files contained videos and photographs depicting adult pornography and bestiality. The transmission of these media files formed the basis of Sequence 11 on the Form 1 which is attached to Sequence 15, being the dissemination of child abuse material.

16. Descriptive examples of the material sent to the victim are annexed to the Agreed Facts which have been tendered. However despite the interests of open justice, I decline to set out the detail of the images in narrative form. I have a firm view that the salacious appetite and sexual gratification of others who may share a similar view of child abuse material should not be fuelled or provided for to any extent by publishing such descriptive circumstances.

17. On Friday 25 August 2023 the offender first suggested that he and the victim meet in person. The child gave non-committal responses. On Saturday 26 August 2023 the offender suggested meeting before the victim went to school. She did not respond.

18. On Sunday 27 August 2023 the offender sent a message to the victim, saying “Ok sweet as. Il delete ur number k . Sorry man ..bye”. The victim then responded and agreed to meet the offender before she went to school the following day.

19. On the morning of Monday 28 August 2023 the offender and the victim exchanged further messages. The offender asked if she would allow him to perform cunnilingus on her. She responded in a noncommittal way. The offender said “Got to be careful ppl [people] dnt [don’t] see . Il go to jail”

20. Around 8am the victim sat near [a] Library, [near her school]. The offender met the victim there and they walked together to [a nearby] park. There they entered a free-standing single toilet block. Inside the toilet block, the offender offered the victim something to smoke, saying “it’s not going to hurt you, it will just make you like, more aware or relaxed.” The offender gave the child some methylamphetamine to smoke. Results from blood and urine tests taken later that day established that the victim had methylamphetamine in her system.

21. The offender then asked the victim to sit on the toilet lid. He proceeded to perform cunnilingus on her. She described this as uncomfortable but not painful. This conduct forms the basis of Sequence 14, having sexual intercourse with a child between the ages of 14 and 16 years.

22. The offender then directed the victim to perform fellatio on him, firstly while still sitting on the toilet seat, then on her knees. At times the offender placed his hands on the back of her head and pushed her head harder on his penis. The victim gagged and threw up. The offender did not ejaculate. This conduct forms the basis of Sequence 15, a further offence of having sexual intercourse with a child aged between 14 and 16.

23. The offender filmed the fellatio assault constituting Sequence 15, producing a video of 2 minutes and 4 seconds. The victim agreed to the video recording because she was “out of it”. This forms the basis of Sequence 16 on the Form 1 attached to Sequence 15, namely the production of child abuse material.

24. The victim and the offender parted ways outside the toilet. They exchanged further “Telegram” messages and the offender sent the victim a copy of the video of the fellatio assault at her request.

25. The victim later told her mother, friends, and teacher that she had “let a guy touch [her]”. She and her mother later attended [a] Police Station.

26. That afternoon at 5pm police attended the offender’s residence. The offender’s phone fell to the floor where he quickly stomped on it in a clear attempt to destroy it.

27. A search warrant was executed. Among the items seized was a small resealable bag containing 0.13 grams of methylamphetamine. This forms the basis for Sequence 8 on the Form 1 which is attached to Sequence 15, namely the possession of a prohibited drug.

28. Other items seized included a blue Nokia phone, being the device the offender had stomped on and which was the phone which had been used to message with the victim. Other devices seized included an Aspera mobile phone; a Samsung mobile phone; a Thorn mobile phone; a PlayStation 3; an Unblock Tech u Box (media computer); an Acer Laptop; and an HP laptop computer.

29. The Nokia phone contained 42 videos of Category 1 child abuse material, 7 videos of Category 2 child abuse material, and 3 images of Category 2 child abuse material. The Aspera phone contained 40 videos of Category 1 child abuse material and 8 videos of Category 2 child abuse material. The Agreed Facts also indicate that a review of all of the exhibits identified a large amount of Category 1 and 2 child abuse material which had been deleted but which was able to be forensically recovered. This conduct forms the basis of Sequence 9, being the possession of child abuse material.

OBJECTIVE SERIOUSNESS

30. I note at this stage that the victim was 14 years old at the time of the offending, and suffered with Autism, ADHD, and depression.

31. I also note that the drugging of the victim is not a standalone charge or an element of the procurement offence. In submissions for the Crown, Mr Sfinas advised that this conduct was contextual and served simply to increase the objective seriousness of the offending generally. I remind myself of the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 that I must not “take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”

32. In written submissions, Mr Sfinas for the Crown proposed that the objective seriousness of each offence was as follows:

1. Sequence 19 (Procurement): The upper end of the midrange;

2. Sequence 14 (Intercourse – Cunnilingus): The lower end of the midrange;

3. Sequence 15 (Intercourse – Fellatio): the upper end of the midrange; and

4. Sequence 9 (Possess child abuse material): at the uppermost end.

33. The upper end of the midrange assessment for the procurement offence was said to be supported by the fact of the offender’s knowing the victim’s age through direct question and answer, his offering the victim a reward (the money for the tennis racquet) for cooperation, his sexualised conversations with the victim, his further sexualising of her through the transmission of child abuse material and pornography, his asking the victim to use a ruse if police spoke to them, and his use of methylamphetamine to disinhibit the victim.

34. While I do not deem it necessary to detail or reproduce the offender’s sexualised conversations with the victim, I note that his comments to her included descriptions of sexual acts he intended to perform on her and questions which appear designed to encourage her to perform indecent acts on herself.

35. The lower midrange assessment for the cunnilingus intercourse offence was said to be supported by the fact of his physically manoeuvring the victim into various positions and his simultaneous rubbing of her vagina.

36. The upper midrange assessment for the fellatio assault was supported by the fact that the offender again manoeuvred and directed the victim into various positions and the fact of its continuing despite her gagging. The offender then effectively “paused” this act in order to manoeuvre the victim further, from then on using more force in pushing her head towards him which caused the victim to vomit. The offending continued despite this.

37. In relation to each of those matters, it is noted that the victim is on the lower end of the legislative age range for this offence of 14 to 16, being 14 years of age.

38. The uppermost objective seriousness assessment for the child abuse material offence was said to be supported by the quantity of material, its categorisation, and the actual content of the material which included acts performed on toddlers and pre-school aged children and acts of bestiality performed by or upon similarly-aged children. I again note that descriptions of this material are annexed to the Agreed Facts and therefore do not need to be repeated here.

39. The Crown did not provide any proposed assessment of the offence of failing to comply with reporting obligations. Mr Sfinas identified, however, that the attempt to destroy the phone which had been used to message the victim reflected an inept attempt at concealing his breach of those obligations, and therefore an awareness that he was in breach.

40. In written submissions, Mr Radojev on behalf of the offender submitted that all of the offending came within the midrange of objective seriousness but not at the upper midrange given that the offender did not physically restrain or use violence on the victim. In response to that submission Mr Sfinas reminded the Court that the fellatio assault, while not necessarily violent, did involve a level of force such that the victim gagged and vomited and that her capacity to resist may have been reduced by her drug intoxication.

41. The Defence conceded that the fact that the offender was on conditional liberty at the time of the offending was an aggravating factor, as was the provision of the drug.

42. I am of the view that objective seriousness should be assessed as follows:

1. Sequence 9 (Possess child abuse material): towards the upper end of the mid-range;

2. Sequence 12 (Failure to Comply with Reporting Obligations): well within the mid-range;

3. Sequence 14 (Intercourse – Cunnilingus): within the mid-range;

4. Sequence 15 (Intercourse – Fellatio): towards the upper end of the mid-range; and

5. Sequence 19 (Procurement): upper end of the mid-range.

SUBJECTIVE CIRCUMSTANCES

43. The offender did not give evidence at sentence. The subjective material before the Court includes a report by Dr Mark Milic, forensic psychologist, dated 21 May 2025; the offender’s criminal history; a Sentencing Assessment Report by Clare MacRae, Senior Community Corrections Officer at Nowra, dated 16 April 2025; a Structured Case Note for the Sentencing Assessment Report by Amy Sowerby, Senior Psychologist at South Coast Correctional Centre, dated 16 April 2025; and Parole Documentation including a Breach of Parole report by Jacinta Gatti, Community Corrections Officer at Sutherland, dated 30 August 2023.

44. The offender was born in 1977 and was 46 years old at the time of the offending. He is now 48.

45. In consultations with Dr Milic the offender recounted his family background. He has one younger sibling he is not close with, and a mother who was supportive but has heart problems. The offender had a difficult relationship with his father who passed away 15 years ago. He described marks on his body which remind him of his father’s abusive treatment. The relationship had improved 2 years before his father’s death.

46. The offender described both of his parents as heavy drinkers. He described one traumatic childhood memory of nearly drowning. He otherwise recalled happy childhood memories.

47. The offender was expelled from school in year 11. He undertook a butchery apprenticeship after school and worked as a butcher for 25 years. He described this as involving long hours and mediocre pay, prompting him to switch to labouring and bricklaying. The Crown conceded and I acknowledge that this reflects a history of gainful employment and contribution to society.

48. The report does not state when, however, at some point the offender shattered his ankle after falling off a balcony. This required surgery and the insertion of 12 bolts and a plate which still cause him pain and difficulty walking at times. The offender also lost a finger 7 years ago while moving a glass aquarium that broke.

49. In the aftermath of his father’s death, the offender began drinking alcohol heavily to cope with his grief. He said he had not drunk excessively for the last few years and no longer drinks at home, his alcohol use having decreased dramatically after he began smoking methylamphetamine, which he said assisted him in his bricklaying work. He reported using a half to 1 gram of crystalline methylamphetamine or ‘ice’ per day. The offender described abstaining from methylamphetamine during his previous incarceration, but said that he had relapsed at the time of the offences while on parole.

50. The offender described looking for sexual gratification via the internet because it was convenient. He said he was attracted to women in their 20s and older. He said that he had contacted the victim because she lived nearby and looked older than her stated age.

43. In reflecting on the offences he said “she is underage, so it is my fault … I’m sorry to everyone involved.” He expressed that he would never go near underage people or search for sex online again, saying “if I’m desperate, I’ll go to a brothel.”

44. Since returning to custody the offender has undertaken work in the prison kitchen. He has maintained contact with his mother and a former employer. At the time of the psychological report he said that he had requested a prescription for anti-depressant medication in prison but was yet to receive it. I note at this stage that Dr Milic does not offer a diagnosis of any mental health illnesses, nor is there any evidence of any mental health diagnoses before this Court.

45. The offender expressed concern that his mother might pass away while he is incarcerated and a desire to focus on work and look after his mother after his release as she needs him and he had promised his father to look after her. While previously on parole the offender resided with and acted as his mother’s carer. In written submissions the Defence argued that this mutual positive support between the offender and his mother would be a positive influence.

46. Dr Milic opined that the offender’s anxiety over his mother’s health, his self-consciousness in public and anxiety over reintegration into the community, and his relapse “depleted the energy he had available for self-control and self-monitoring and thereby weakened his ability to suppress deviant sexual impulses.”

47. Dr Milic went on to say that the offender’s “prospects for rehabilitation are enhanced by his demonstrated history of age-appropriate sexual attraction and relationships, good work history, and commitment to the care of his mother.”

48. I have some degree of reservation in accepting Dr Milic’s latter comments concerning a history of age-appropriate sexual attraction given the offender’s possession of a not insignificant amount of Category 1 child abuse material, being material depicting prepubescent children, and Category 2 child abuse material, being material depicting children under 16. I further note that the victim in the present matter had indicated early in the communications with the victim, following his enquiry, that she was only 14 years of age. Further, she met him in school uniform.

49. It is difficult to reconcile those objective factors with his having a “demonstrated history of age-appropriate sexual attraction and relationships”, which I presume is a reference to his having had at least 2 prior adult relationships that resulted in the birth of 2 children; one relationship identified as having lasted 7 years and the other as having lasted 2 years.

50. The offender had a moderate history of criminal offending for much of his life. In 1997 he was charged with possessing prohibited drugs for which he received a s 556A dismissal, the then statutory equivalent to a s 10 dismissal without conviction. In 2001 he was charged with destroying or damaging property and received a conviction and fine. In 2007 the offender was charged with driving with a high range PCA and received a fine with a 12-month disqualification from driving. In 2008 he was charged with assaulting an officer in the execution of their duty and using offensive language in public, for which he received a s 9 bond for 6 months and a fine.

51. In 2013 the offender was charged with offences of entering enclosed lands, destroying or damaging property, and assault occasioning actual bodily harm. He received fines and an 18-month section 9 bond with supervision. In 2015 that matter was called up and the offender received a further fine. In 2015 he was charged with driving a motor vehicle during a disqualification period and received another section 9 bond for 2 years with a disqualification period of 2 years.

52. I take into account, and the Crown has conceded, that up to this period in his criminal history, he would not ordinarily be disentitled to leniency. The Defence submitted in oral submissions that these were effectively only “hiccups and bumps” in his criminal history until 2021.

53. However, in 2021 the offender was charged with similar offences to those in the present matter. The offender was charged with 3 counts of possessing child abuse material, as well as possessing a prohibited drug and having goods suspected of being stolen. The Court has had the benefit of reviewing the Agreed Facts in that matter.

54. In respect of the possession of child abuse material he received an aggregate term of imprisonment of 18 months with a non-parole period of 9 months. Special circumstances were found and it was noted to be his first time in custody. It was these offences that resulted in the offender being a registerable person for the purposes of the Child Protection (Offenders Registration) Act 2000.

55. The offender was released to parole in respect of those offences on 1 May 2023 on the expiration of his non-parole period. The offender almost immediately commenced utilising the encrypted social media and messaging application “Telegram” under the username “Bit Inya”. He was, accordingly, subject to parole at the time of the offending presently before this Court.

56. In oral submissions Mr Radojev, counsel for the offender, submitted that the offender’s criminal history was exemplary until “something went wrong” in the offender’s life, resulting in him turning to alcohol and then methylamphetamine. The Defence characterised the offender’s history as reflecting only a 3-year period of serious offending across his entire adult life. This was said to support strong prospects of rehabilitation if the offender abstains from drug use.

57. In a Sentencing Assessment Report Senior Community Corrections Officer Clare MacRae outlined the offender’s background. Ms MacRae noted that the offender’s closest relationship is with his mother who he was residing with on his release to parole in 2023 and at the time of his present offending.

58. He is estranged from his sister and he had two children aged 22 and 11 from previous relationships. Ms MacRae noted that it is unclear whether he has any meaningful relationship with either child.

59. The offender ceased education after Year 10 and worked as a butcher for 20 years. In 2015 the offender was employed as a bricklayer. At the time of the report on 16 April 2025 the offender had not incurred any charges of institutional misconduct while in custody.

60. The offender had a history of anti-social behaviour relating to his alcohol consumption and illicit substance use. The offender described his use of methylamphetamine as recreational and said he was under the influence of methylamphetamine at the time of his offending. He confirmed to Ms MacRae that he supplied the child victim with methylamphetamine.

61. Ms MacRae noted an apparent escalation in the offender’s sexual offending behaviour towards children. Ms MacRae expressed the opinion that the offending involved significant planning and grooming.

62. In discussing his offending conduct, the offender claimed to have initially believed that the victim was an adult, and said that despite her saying that she was 14 years of age in their initial conversation, he “just didn’t believe her because she was messaging me at 2am”.

63. When challenged about his offending behaviour, the offender stated “but we agreed to do all of that in text messages. That’s exactly what she said we would do when we met up.” The offender claimed he did not want to hurt the victim but was unable to accept that he had committed offences against her due to a belief that she had “agreed” to engage in the sexual acts. He later conceded that if the victim complained to police, she probably would be “scared” and “upset”.

64. The offender stated that on his release to custody he chose to join a website called “daddy seeking daughter” with the intention of meeting people for sex. Despite the website name indicating a potential age cohort, the offender stated that he just “assumed” the participants were adults.

65. The offender went on to say that the child abuse material and pornographic material sent to the victim was “automatically sent to her” through his phone application.

66. The offender indicated a willingness to pay closer attention to Child Protection Register obligations and to comply with any conditions imposed by Community Corrections. I have some reservation in accepting that representation given that these offences were committed whilst on parole and whilst subject to the conditions under the Child Protection Register which are specifically set out and are required to be acknowledged.

67. The offender was ultimately assessed as at a Well-Above Average risk of sexual reoffending based on the Static-99R assessment. He was further assessed as at a Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). If a supervision order was to be made, Community Corrections would supervise the offender at the Tier 3 High Level and with conditions as to psychological treatment and regular drug and alcohol testing.

68. Attached to the Sentencing Assessment Report was a Structured Case Note authored by a Corrective Services Senior Psychologist, Amy Sowerby, dated 16 April 2025. In that case note Ms Sowerby indicated that in his interview with Community Corrections, the offender demonstrated limited insight into his offending, the impact on the victim, and consent. He stated that he did not place importance on the Child Protection Register obligations and claimed to be unaware that reactivating a “Telegram” account would be in breach of those obligations. He referred to the current offending as a “wake up call” in that regard.

69. The offender reported Aboriginal heritage on his mother’s side but does not identify as Aboriginal. He indicated that he does not have contact with either of his children or their respective mothers.

70. In discussing the administration of the Static-99R actuarial risk assessment, Ms Sowerby indicated that the offender’s total score was 6 in a range of -3 to 12, placing him in the Well Above Average risk category. The rate of recidivism for sexual offenders with this score is estimated to be about 3.77 times higher than that of a typical sex offender.

71. Ms Sowerby went on to state that due to his score, the offender is likely eligible for the High Intensity Sex Offender Program (‘HISOP’) if he receives a custodial sentence.

72. In the Breach of Parole Report Ms Gatti discussed the offender’s response to supervision. She noted that his risk factors were identified as sex offending and drug use, and that a Sex Offender Supervision Assessment (‘SOSA’) on 18 May 2023, shortly after his release to parole, identified his dynamic risk factors as impulsivity, impaired problem solving, and possible sexual deviancy. The offender had been assessed as at the Medium-Low risk of reoffending and his supervision plan included 6-weekly reporting, random drug testing, third party contact with the offender’s mother and police, and referral to a psychologist.

73. The offender was compliant with reporting obligations and presented as stable up until 25 July 2023 when he presented with noticeable weight loss and scattered red spots on his face. He denied any instance of relapse and attributed the changes to becoming his mother’s carer. Plans were made to administer a drug test to the offender on his next attendance at Community Corrections. However, he was arrested for the present offences prior to that appointment.

74. In recommending the revocation of parole Community Corrections noted that the reoffending was similar and an escalation from his prior offending for which he had been paroled. Ms Gatti noted that retrospectively, the offender displayed ongoing dishonesty throughout supervision on parole and therefore presented an increased risk of reoffending and safety to the community.

75. In submissions Mr Radojev of counsel on behalf of the offender identified that the offending was closely related to a relapse in methylamphetamine use which is relevant to the likelihood of reoffending and prospects of rehabilitation. He submitted that if the offender were to abstain from drugs, his likelihood of reoffending would be substantially diminished.

76. I am cognisant that the offender’s comments to the author of the Sentencing Assessment Report indicate a lack of insight into his offending and a lack of remorse. I am also mindful that, as Ms MacRae identified, these offences reflect an escalation in child sexual offending and a poor response to supervision and conditions.

77. I note that the offender attributes his offending conduct to a relapse in methylamphetamine use whilst on parole, and his willingness to undertake intervention.

78. Ultimately and in light of these factors I am of the view that the offender has very guarded prospects of rehabilitation which should be assessed as moderate at best. There is clearly a concerning potential for reoffending.

COMPARATIVE CASES

87. I acknowledge that comparative cases have limited utility in determining a sentence given that individual cases turn on their own specific facts and vary greatly in their subjective and objective circumstances. However, it suffices to say that reference to comparative cases in an overall way can provide some measure of the types of sentences passed in similar matters and act as a touchstone for comparison of a contemplated sentence (see R v Smith [2016] NSWCCA 75 at [73]).

88. Milliner v R [2019] NSWCCA 127 was an appeal against the severity of an aggregate sentence which had been imposed by Scotting DCJ in the District Court.

89. The applicant had regularly exchanged messages on a fantasy website “motherless.com” with a person who he believed was the 34-year-old mother of an 11-year-old girl called “Sarah”. During the period between October 2015 and April 2016 the offender sent numerous messages in which he discussed in graphic detail the sexual acts he would like to engage in with the mother and the child. In 2016 he attempted to meet with the mother and child for the purpose of engaging in unlawful sexual activity.

90. “Sarah” was actually a fictitious child. The online profile purporting to be the mother of “Sarah” was an Assumed Online Identity utilised by police officers from the Child Exploitation Internet Unit (“CEIU”). In April 2016 the applicant travelled to the address which had been communicated to him at which he believed the mother and the child resided. He took a bottle of wine with him and was arrested by police on his arrival at the premises.

91. He pleaded Guilty in the District Court to an indictment containing two counts alleging contraventions of s 66EB of the Crimes Act 1900. The maximum penalty, given the age of the fictitious child as under 14 years, namely 11 years, was 15 years imprisonment. With respect to the first count of attempting to intentionally procure a child under 14 for unlawful sexual activity, he received a sentence of 5 years imprisonment with a non-parole period of 3 years. With respect to the second count, namely travelling with the intention of meeting a child under the age of 14 who had been groomed for unlawful sexual activity with the intention of procuring the child for unlawful sexual activity with himself and another, the sentence was 6 years with a non-parole period of 3 years. Allowing for 2 years of accumulation, the offender was sentenced to an effective term of imprisonment of 8 years with a non-parole period of 5 years. A 20% discount had been allowed for the plea of Guilty and there was a finding of special circumstances.

92. In the Court of Criminal Appeal N Adams J, with whom Leeming JA and Hamill J agreeed, rejected a challenge to the aggregate sentence on the basis that the sentences for both counts should have been served wholly concurrently. However, the Court found that the degree of accumulation was excessive. Her Honour was satisfied that significant sentences were required and restated the principle that offences involving sexually predatory conduct towards children have general deterrence as a primary sentencing consideration: R v Dee Leeuw [2015] NSWCCA 183 at [72]. Her Honour also repeated the principle that the nature of the sexual activity proposed or intended was a relevant consideration in the assessment of the objective seriousness of the offence: Tector v R [2008] NSWCCA 151.

93. In the result it is significant to observe that the court found that no lesser sentence was warranted in relation to each of the individual sentences imposed on Counts 1 and 2, but the degree of accumulation was reduced to a period of 12 months. The effective aggregate sentence at first instance of 8 years with a 5 year non-parole period was reduced to an effective sentence of 7 years with 4 years to serve.

94. ZA v R [2018] NSWCCA 116 was an application for leave to appeal against conviction and sentence. ZA was the father of the victim who was 12 years of age. He had been convicted by Sweeney DCJ, as her Honour then was, after a judge-alone trial in which he was found guilty of intentionally procuring a child under 14 for unlawful sexual activity with another person and also being an accessory before the fact to the offence of sexual intercourse with a child between the ages of 10 and 14 years. The charges arose out of the child having commenced a sexual relationship with a 26-year-old university student who she had met through the Wallsend Mosque. The 26-year-old co-offender made enquiries about marrying the then 12-year-old. Contact was facilitated by ZA between the victim and the 26-year-old which culminated in a purported religious marriage ceremony under Islamic law. The “marriage” was not a lawful marriage and the charges against the father derived from these circumstances.

95. In the judgment of Adamson J, with whom Macfarlan JA and Johnson J agreed, her Honour dealt at length with the meaning of the word “procure”. It is unnecessary to revisit that aspect of the judgment in the Court of Criminal Appeal with respect to the present matter. It suffices to observe that Judge Sweeney had proceeded on the basis of the dictionary definition of “procure”, being “to cause or bring about”.

96. In the District Court her Honour assessed the objective seriousness of the two offences committed by the father as “very serious” having regard to his breach of trust, the age of the victim, the circumstance of how she came to be in a sexual relationship, and the nature of the sexual activity. As had been envisaged and expected, the nature of the sexual activity was unprotected penile-vaginal intercourse. The 12-year-old had reached puberty and at the age of 13 she fell pregnant and had an ectopic pregnancy which self-resolved. The “marriage” had been to a man twice her age and her father had condoned and helped orchestrate the “marriage” despite the child’s mother’s opposition. The 26-year-old had previously been sentenced by Judge Sweeney with respect to one count of persistent sexual abuse of a child. He had been sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months.

97. With respect to ZA, her Honour passed an aggregate sentence of 8 years with a 6-year non-parole period. The indicative sentence for the procuring offence was 7 years imprisonment, and for the accessorial offence was 5 years imprisonment. The Court of Criminal Appeal refused to grant an extension of time to appeal against the conviction and refused leave to appeal against the sentence on the claimed ground of manifest excess.

98. R v Baker [2020] NSWDC 615 involved a difficult sentencing exercise before Judge Bennett SC in the District Court. The offender had been a registered psychologist practicing in Coffs Harbour from January 2015 to May 2017. A number of child complainants brought allegations regarding sexual acts committed upon them by the clinical psychologist during the course of attendances upon him. Circumstances attending the entering of pleas of Guilty and the subsequent withdrawal of some pleas before the matter ultimately proceeded to sentence led to varying different discounts being applicable. He was ultimately sentenced with respect to 13 charges relating to some 7 different victims. The offences included the commission of acts of indecency with male children of varying ages. Four of the offences related to exposing the victim to indecent material, being pornographic videos and photographs, with the intention of making it easier to procure the relevant child for unlawful sexual activity with himself.

87. The indicative sentences for the grooming or procuring charges were as follows:

1. With respect to Count 3, taking into account an act of indecency on a Form 1, and the circumstance that the victim was under the offender’s authority by virtue of being a patient receiving psychological care, the indicative sentence was 3 years, 3 months, and 27 days with an indicative non-parole period of 2 years and 3 months. The maximum penalty was 12 years imprisonment.

2. With respect to Count 5, which related to a 14-year-old victim who was shown pornography, similarly taking into account an act of indecency on a Form 1 which included the offender exposing his own penis to the child, the sentencing judge found that this offending was approaching the high range and was above mid-range. An indicative sentence of 4 years and 9 months with a non-parole period of 3 years was specified.

3. With respect to Count 1, which similarly involved an allegation of grooming a child by showing him pornography contrary to s 66EB(3) of the Crimes Act 1900, the child was 9 years of age and the discount for the plea was 5%. The child was vulnerable due to his fragile mental state and the indicative sentence was 5 years, 5 months, and 17 days with a non-parole period of 3 years, 5 months.

100. In R v Wilkinson [2020] NSWDC 914 Judge Wilson SC sentenced the offender with respect to a charge of procuring a child under 14 years for unlawful sexual activity, failing to comply with reporting obligations under the Child Protection Register, and for a breach of a call-up in relation to a charge of possessing child abuse material. Attached to the procurement offence on a Form 1 was a further offence of possessing child abuse material. At the time of the offending, the offender had been subject to a Community Corrections Order.

101. The offender met the then 13-year-old victim at a local ice skating rink they both regularly attended. Occasionally the offender would approach the victim and they would speak whilst skating laps. Around June 2019, when the victim was then 14, these conversations turned to sexualised topics wherein the offender described sexual acts he wanted to perform on the victim. At some stage they also began communicating via text messages. In those texts were discussions about the offender purchasing shoes for the victim, and eventually discussions about purchasing nude photos from the victim. In due course the victim sent nude photographs to the offender and the offender gave him $500 in cash.

102. The possession of child abuse material offence which was called up was assessed as sitting at the lower end of objective seriousness, noting that there were only 4 images and 4 videos of Category A material. With respect to the procurement offence, the offending was held to fall just below the midrange, noting that the offender proposed various sexual acts, invited the victim to participate in sexual acts with him, offered and paid the victim as an inducement for sexual activity, persisted in communications over an extended period despite the victim initially asking him to desist, the victim’s age was at the lower end of the statutory range for the offence, the age difference was 10 years, and the offender had been on conditional liberty. The failure to comply with reporting obligations fell within the midrange of objective seriousness, noting that the offender had failed to disclose various applications on his devices.

103. The offender had a history of sexual offending against children above the age of 14 and under the age of 16, failing to comply with reporting obligations, and possessing child abuse material. The only mitigating factor on sentence was the guilty plea reflected in a 25% discount. The offender was assessed by Community Corrections as having a low risk of reoffending, but by an independent psychologist as having a high risk of reoffending noting a diagnosed paedophilic disorder.

104. The offender was ultimately sentenced to an aggregate term of 4 years with a non-parole period of 2 years.

105. In R v Danielle Pana (a pseudonym) [2021] NSWDC 798 an offender was sentenced for offences of grooming a child for unlawful sexual activity, using a child under 14 to produce child abuse material, sexually touching a child under 10, disseminating child abuse material, and sexual intercourse with a child under 10. The offending by Ms Pana was committed against her own three young children.

106. Without going into detail, the production of material included naked images of the childrens’ genitals and audio recordings of grooming and conversation and an act of fellatio against her 5-year-old son, which also constituted the sexual intercourse charge; and the grooming included showing her children pornographic videos including videos and images constituting child abuse material. The offending conduct was discovered when a search warrant was executed on Pana’s partner’s home and communications between her and her partner were discovered in which she discussed sexual acts with her children and shared nude images of them. Her co-offender/partner also disseminated the material to other unknown persons. The offending was aggravated by the breach of trust by the mother towards her children in their own home.

107. The offender’s subjective circumstances indicated that she had suffered sexual and physical abuse by her stepfather and sexual abuse by her maternal grandfather as a child. She had a history of substance misuse relating to amphetamines, cannabis, and benzodiazepine. She had self-harmed whilst incarcerated. These factors lessened her moral culpability to some degree. The offender was entitled to a 25% discount on sentence for her early plea of guilty.

108. Ms Pana was ultimately sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 6 years. Despite a Notice of Intention to Appeal being lodged in 2021, no appeal has been pursued.

109. In R v Cassell [2022] NSWDC 471 Judge Haesler SC sentenced an offender for offences of having sexual intercourse with a child aged 14 to 16, inciting a child aged 14 to 16 to sexually touch, and stalk or intimidate.

110. A 15-year-old girl was waiting for a friend at a 7-Eleven shop when she was approached by the offender and asked to perform sexual acts on him. She said no and was shortly joined by her friend. They both told the offender their age of 15. The offender, at that time, was 43 years of age. The girls, followed by the offender, then went to a local McDonalds, the offender making sexual gestures to one of the girls along the way.

111. The girls asked the McDonalds’ staff to keep him away from them. After receiving their McDonalds order the girls were escorted out safely by McDonald staff but later were again approached by the offender at the train station. He then made a series of threatening comments to frighten them and joined them on the train towards Wollongong. He left them briefly but met them again soon after at around 5:30am at a beach. The girls agreed to watch him masturbate on the condition that he did not harm them. The details of the acts he then performed on each girl and had them perform on him are set out in the judgment. Of comparative relevance to the present case is the fact that in forcing one of the girls to perform fellatio on him, he held her head as she tried to push away. He was rough in these acts and at one stage the girl gagged.

112. The offender had a criminal history but not for any sexual offences or matters as serious as those presently before this Court. The offender had a strong subjective case as an Aboriginal man and the father of three children, two of whom were autistic and one of whom, a stepson, had committed suicide while the offender was in custody. He reported several suicide attempts himself and was diagnosed with alcohol use disorder, borderline personality disorder, and epilepsy. His risk of reoffending was estimated at 15-20% within 5 years of release.

113. His Honour Judge Haesler SC ultimately sentenced the offender to an aggregate term of 9 years imprisonment, with a finding of special circumstances and consequently a non-parole period of 5 years and 10 months. The indicative sentences for his individual offences reflected a range of 2 years and 3 months up to 3 years for the various sexual intercourse offences.

114. R v Lovas [2024] NSWDC 44 was a sentence imposed by Scotting DCJ with respect to four counts of sexual assault of a child between 10 and 16 years of age contrary to s 66C(3) of the Crimes Act 1900. The maximum penalty for each offence was 10 years imprisonment. The offender was 19 years of age. He commenced a relationship with the 14-year-old complainant who was the half-sister of an older woman who the offender had been in a relationship with. There were four identified occasions which were charged, all of which occurred during the month of January 2019. The first offence involved penile vaginal intercourse during which a condom was used. The second offence was similar and occurred in circumstances involving some degree of force. The third count related to digital penetration. The fourth count was again penile vaginal intercourse, however, without a condom.

115. The sentencing judge found that the offender had a major depressive disorder and that there was a causal connection between the offender’s mental condition and the offending conduct. His liaison with underage sexual partners was held to have arisen from his cognitive and emotional immaturity stemming from his poor childhood circumstances. The sentence imposed was intended to promote rehabilitation and to afford general deterrence, retribution, and denunciation, less weight in the circumstances.

116. Other sexual offences had occurred in Victoria where a term of imprisonment was apparently served. Scotting DCJ applied principles of totality with respect to the degree of accumulation that might have been relevant to the Victorian offences. The indicative sentences for the respective counts were 2 years; 2 years and 3 months; 18 months; and 2 years and 3 months. An aggregate sentence was imposed of 3 years with a non-parole period of 18 months.

117. R v Till [2024] NSWDC 298 was an aggregate sentence imposed by Judge Haesler SC with respect to sexual offending between a 26-year-old male and a 14–15-year-old child.

118. The offender was 26 and had been diagnosed with autism spectrum disorder. He had gained an apprenticeship and trade after leaving school and had formed a number of relationships with women, generally over the internet and for short periods. He utilised the internet to make female friends. In 2022 he started chatting online with the complainant who he became aware of being 14 years of age. Despite their respective ages he continued an online relationship with her. Messages exchanged between them included still images and videos which were sexually explicit. Some respectively showed them both engaging in sexual activity. It constituted child abuse material. The offender saved those communications including the videos and still images on his mobile phone. The material is described as sexual and graphic. The offending conduct came to light as a consequence of somebody else finding the images on his phone. A report was made to police who interviewed the offender who had made admissions and told them about his “romantic relationship” with the child. In due course the child was spoken to by police, and she disclosed that they had engaged in multiple acts of sexual intercourse between June and December 2022.

119. Eight substantive charges came before the Court for sentence. One count alleged possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900. Seven substantive offences were related to sexual intercourse with a child between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900. A number of additional offences were placed on Forms 1 attaching to four of the substantive offences. The majority of the substantive counts related to penile-vaginal intercourse involving ejaculation with no condom. Offences involving fellatio and cunnilingus were placed on Forms 1 attaching to one of the acts of sexual intercourse. One of the substantive counts related to an act of fellatio.

120. The sentencing judge found that the offender’s mental state reduced his moral culpability to some extent. He was assessed as having a low/moderate risk of reoffending and would likely, in such circumstances, not qualify for programs for serious sex offenders run within Corrective Services.

121. Haesler SC DCJ imposed an aggregate sentence of 4 years with a non-parole period of 2 years. The indicative sentences were 1 year and 6 months with respect to the possession of child abuse material; 1 year and 10 months with respect to the first act of sexual intercourse with the child; 1 year and 10 months for each of four of the substantive offences of sexual intercourse; and 1 year and 6 months with respect to the second sequential act of sexual intercourse. With respect to the separate substantive offence relating to an act of fellatio, the indicative sentence was 1 year and 3 months.

122. In Brown v R [2023] NSWCCA 330 the offender appealed against an aggregate sentence of 4 years and 9 months with a non-parole period of 3 years in respect of two offences of sexual intercourse with a child between the ages of 14 and 16 contrary to s 66C(3) of the Crimes Act 1900. The offender was 54 and exchanged messages with the male victim on an internet chat site on which he had advertised himself as “interested in young boys”. In the course of exchanging messages the offender showed the victim his genitals whilst on a video call and asked the victim if he wanted to meet up. The victim replied “sure” and they arranged to meet up in the toilet block of a public park.

123. Mutual acts of fellatio then followed which included an act of anal digital penetration while the offender performed oral sex on the victim. This was separately charged and placed on a Form 1. In further messages between the two, the offender asked whether the victim was “15 or 14?”. The victim said he was 14 turning 15.

124. At first instance the sentencing judge, O’Rourke SC DCJ, found that whether or not the victim was a willing participant, he had quickly realised he was in too deep but did not know how to extract himself from the situation. The sentencing judge held that the offending was within the mid-range of objective seriousness, which the Court of Criminal Appeal did not cavil with. The sentencing judge held that the prospects of rehabilitation were moderate, and although disagreeing with that assessment, the Court of Criminal Appeal did not uphold that ground of appeal.

125. Ultimately the Court upheld a single ground of appeal in relation to manifest excess and resentenced the offender to an aggregate term of imprisonment of 3 years and 3 months with a non-parole period of 2 years. The indicatives for the two intercourse offences, each taking into account a single Form 1 offence, were 2 years and 6 months, and 2 years and 9 months respectively. The offender was entitled to and received a 25% discount on sentence for his plea of Guilty.

126. The basis of the intervention was the degree of accumulation with respect to the two offences which were part of the one incident and in respect of which the Court of Criminal Appeal held should have had a higher degree of concurrency. A series of comparative cases had been provided in respect of which the Crown submitted: “[i]t’s also accepted by the respondent that the sentence was relatively stern, the comparator [sic] sentences that are raised by the applicant may be somewhat compelling…”.

DETERMINATION

127. The Crown submitted and the Defence conceded that the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed. The Defence further conceded that the Court ought to impose a substantial fulltime custodial sentence on the offender.

128. As discussed above, the offender was on parole at the time of the offending which is an aggravating factor pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999. This offending resulted in the revocation of his parole.

129. The offender has been in custody since 28 August 2023. The revocation order states that the parole order was to be treated as having been revoked on 28 August 2023. The balance of term for the previous offence was completed on 1 February 2024. This amounts to a period of approximately 5 months in custody in relation to the previous offence.

130. The Crown submitted that any sentence for the present offending should be backdated to commence on 1 February 2024, being the date the previous head sentence was completed.

131. The Defence submitted that I ought to consider whether there should be a degree of concurrency to allow for the possibility that the offender could have been re-paroled during the course of the balance of term for the previous offence, in accordance with the principle in Callaghan v R [2006] NSWCCA 58 and R v DW [2012] NSWCCA 66. I propose to allow a period of approximately 2 and a half months of the period served as the balance of term in an exercise of that discretion.

132. I have indicated earlier my assessment of the objective seriousness of the various offences.

133. In overview, this was a particularly egregious form of grooming/procuring involving a real child who suffered from Autism, ADHD, and depression, as contrasted with cases involving fictitious creations by police. It included a promise or offer to provide money for the purchase of a tennis racquet which the child wanted.

134. Unlike some other procuring offences, the circumstances of the present matter resulted in actual sexual intercourse in circumstances where the intercourse occurred with the 14-year-old victim in her school uniform and in a public toilet whilst she was on her way to school. The surrounding circumstances include that she was supplied with methylamphetamine to smoke and the act of fellatio was accompanied by some level of force or aggression and was filmed by the offender and subsequently sent to the victim. These surrounding circumstances are taken into account in determining an appropriate sentence with respect to the sexual intercourse fellatio assault. They also include matters included on the Form 1.

135. With respect to the possession of child abuse material, I have had regard to the judgement of RA Hulme J in Minehan v R [2010] NSWCCA 140. With respect to the child sexual assault matters, I bear in mind the significance of general deterrence which has been repeatedly emphasised by the Court of Criminal Appeal. Whilst examples of that relevant expression of principle abound, it is sufficient to be reminded of the observations of Hoeben CJ at CL (Harrison and RA Hulme JJ agreeing) in EG v R [2015] NSWCCA 21 at [42] where his Honour said:

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.”

136. The present offending has been said to be linked to his use of methylamphetamine and a relapse following his release on parole. Such a factor does not operate to reduce his moral culpability. As I have earlier indicated, I assess his prospects for rehabilitation as moderate at best.

137. I propose to sentence the offender by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure Act) 1999. Before doing so, I am required to identify the indicative sentences which I would have imposed, as well as an indicative non-parole period in respect of those offences carrying a standard non-parole period, were I to have imposed separate sentences for those substantive offences. Such a process is intended to permit transparency in the determination of a sentence.

136. The offender is entitled pursuant to his early pleas of Guilty to a 25% discount on an otherwise appropriate sentence. That discount will be reflected in each of the indicatives. As will become clear, I do not make a finding of special circumstances. The indicative sentences are as follows:

1. Sequence 9 (possession of child abuse material): 2 years;

2. Sequence 12 (failing to comply with reporting obligations): 12 months;

3. Sequence 14 (sexual intercourse with a child between 14 and 16 – the act of cunnilingus): 2 years;

4. Sequence 15 (sexual intercourse with a child between 14 and 16 – the act of fellatio – taking into account the three matters on the Form 1): 3 years; and

5. Sequence 19 (procuring a child for unlawful sexual activity): 4 years with a non-parole period of 3 years.

139. There will be an aggregate sentence of 8 years with a non-parole period of 6 years. Articulating it in accordance with the legislation, the non-parole period will be 6 years with an additional term of 2 years .The sentence and non-parole period will be backdated to commence on 15 December 2023. The non-parole period will expire on 14 December 2029 and the additional term of 2 years will expire on 14 December 2031.

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Decision last updated: 19 September 2025