R v Swinton

[2023] NSWDC 126

District Court

New South Wales

Medium Neutral Citation:

R v Swinton [2023] NSWDC 126

Hearing dates:

31/10/22, 3/11/22, 17/2/23, 24/2/23

Date of orders:

24/2/23

Decision date:

24 February 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 9 months. However, pursuant to s20(1)(b) of the Crimes Act (Cth), the offender is to be released forthwith, upon a Recognisance Release Order for a period of 18 months, after entering a self-recognisance in the amount of $500, subject to the following conditions:

1. To be of good behaviour for 18 months.

2. Accept the supervision of Community Corrections.

3. Obey all reasonable directions of Community Corrections.

4. Not to travel interstate or overseas without the written permission of Community Corrections.

5. Undertake treatment or other counselling as directed by Community Corrections.

The indicative sentences are:

Count 1 – 7 months

Count 2 – 4 months

I direct the offender to report to the Armidale office of Community Corrections within 7 days.

I direct that a copy of the report of Dr Ashleigh Scwesienberg be forwarded to Armidale Community Corrections.

I make the Forfeiture Order.

Catchwords:

Crime – Sentence – Commonwealth offences - Use carriage service to transmit indecent communication to person under 16 years.

Legislation Cited:

Commonwealth Criminal Code

Crimes Act 1914

Cases Cited:

R v Aniezue [2016] ACTSC 82

Totaan v R [2022] NSWCCA 75

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Colin Bernard Swinton - Offender

Representation:

Ms D New for Crown
Mr B Pierce for Offender

File Number(s):

21/335423

sentence

1. The offender Mr Swinton stood trial during the week commencing 31 October 2022 before a jury on two charges under s 474.27A(1) at the Commonwealth Criminal Code. The jury subsequently found the offender guilty of both counts, on which he must now be sentenced. Each of the offences carries a maximum penalty of ten years imprisonment, which of course is an important guidepost in the sentencing exercise.

FACTS

2. The facts upon which the offender is to be sentenced are derived from the evidence led at trial which are set out in a document provided by the Crown and about which there is essentially no dispute. Those facts in summary are as follows: At the relevant time, the offender was 30 years of age and lived in Katoomba. The facts in relation to the count 1 offence are as follows; on 10 April 2021, CEIU41 which was an identity used by an undercover police officer, to whom I will refer hereafter as an Assumed Online Identity or just by the letters AOI. That person and the offender communicated on an online chatroom website called Chatiw. To register on Chatiw, the user needed to put in an age that is 18 years or over. However, there is no documentation required in order to verify a person’s age. The offender had the username “Anyone4K9KOK”. The offender did not have a profile picture. The offender was a regular user of Chatiw at the…