R v Wood (a pseudonym)

[2024] NSWDC 677

District Court

New South Wales

Medium Neutral Citation:

R v Wood (a pseudonym) [2024] NSWDC 677

Hearing dates:

19 February, 4 March, 7 June, 27 September and 1 October 2024

Date of orders:

1 October 2024

Decision date:

01 October 2024

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

State offence: 18 months imprisonment with non-parole period of 12 months, at [110].

Commonwealth offence: 4 years imprisonment with a non-parole period of 2 years, at [111] – [112].

Catchwords:

SENTENCING — Sentence after Guilty pleas – Child sex offences — Procuring or grooming child for unlawful sexual activity – Fail to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 – Child Exploitation Internet Unit – Prior similar offending –– Strong subjective circumstances

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW) ss 16C, 17(1)Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8, 11, 12

Crimes Act 1914 (Cth) ss 16, 16A, 16AAB, 17A, 20, 23ZD

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 67

Criminal Code Act 1995 (Cth) ss 474.27AA

Sex Offender Registration Act 2004 (Vic)

Cases Cited:

Bahar v R (2011) 45 WAR 100; [2011] WASCA 249

Darke v R [2022] NSWCCA 52

Elwdah v R (2024) 388 FLR 452; [2024] NSWCCA 150

Hurt v The King; Delzotto v The King (2024) 98 ALJR 485; [2024] HCA 8

Rampley v R [2010] NSWCCA 293

R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316

R v Davis [2023] NSWDC 651

R v Delzotto (2022) 298 A Crim R 483; [2022] NSWCCA 117

R v Pham (2015) 256 CLR 550; [2015] HCA 39

R v Smith [2024] NSWDC 242

Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250

Category:

Sentence

Parties:

Rex (Crown)
Ronald Wood (a pseudonym) (Offender)

Representation:

Counsel:
M Clifford-O’Sullivan (Crown)
B Green (Offender)

Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Drinkwater Criminal and Family Lawyers

File Number(s):

2022/00311763

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, and on the grounds set out in s 8(1)(a), (c) and (e) of that Act, the identity of the offender, or any document or evidence that identifies, or might facilitate the identification of the offender, is suppressed in accordance with orders made on 27 September 2024.

JUDGMENT

1. These are the remarks on sentence of Ronald Wood (a pseudonym). At the outset, it should be noted that pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, and on the grounds set out in s 8(1)(a), (c) and (e) of that Act, the identity of the offender, or any document or evidence that identifies, or might facilitate the identification of the offender, is suppressed in accordance with orders made on 27 September 2024.

2. Material which identifies or which might facilitate the identification of the offender includes, but is not limited to, the transcript and recording of the proceedings, and the material tendered on behalf of the offender and the Crown in the proceedings.

3. Pursuant to ss 11 and 12 of the Act, the suppression order is to apply throughout the Commonwealth of Australia and to remain in force for the lifetime of the offender.

4. Any publication of these remarks will include redactions and the use of pseudonyms in order to comply with that order.

5. Ronald Wood appears for sentence following his entering pleas of guilty with respect to two offences relating to the sexual exploitation of children. The first substantive offence is a contravention of s 474.27AA(1) of the Commonwealth Criminal Code. Such an offence relating to the use of a carriage service with the intention of making it easier to procure a child to engage in sexual activity, carries a maximum penalty of 15 years imprisonment. Parliament has prescribed a mandatory minimum of 4 years imprisonment pursuant to s 16AAB of the Crimes Act 1914 (Cth) with respect to a person who has, at an earlier sitting, been convicted previously of a child sexual abuse offence. That mandatory minimum applies to the present offender. The offence also carries a fine equal to 900 penalty units, or $199,800.

6. The second substantive offence is of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000. This constitutes an offence contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) and carries a maximum penalty of 5 years imprisonment. It also carries a fine of 500 penalty units or $55,000.

FACTUAL BACKGROUND

7. On 21 August 2015, the offender, Ronald Wood, was found guilty of two offences of knowingly possess child pornography at the Melbourne Magistrates Court. He was accordingly a registrable person under the provisions of the New South Wales Child Protection (Offenders Registration) Act 2000. His classification as a registrable person was in place until 20 August 2030.

8. On 19 July 2021, NSW Police attended the address of the offender in Port Macquarie in order to conduct an inspection pursuant to s 16C of the Child Protection (Offenders Registration) Act. Police verified that the most recent Form 4, which had been required to be lodged by the offender, contained relevant information with respect to disclosure of electronic items and electronic access by him. He indicated that there was no new information to add to the contents of the Form 4.

9. The offender gave consent to Police to examine his electronic devices. His mobile phone indicated that he was using WhatsApp message and voice service for communication. Such information had not been provided to Police previously.

10. A desktop computer was also examined by Police. This identified the offender as a member of an online sex chat site called “Babblesex”. Police were advised the offender had the username “Allinsideu’s”. This internet access and username had not previously been provided to Police in accordance with his obligations as a registered person under the legislation.

11. Various other searches were located on the computer, as well as items in the documents folder. One such document contained a graphic sex story entitled with the name of a child, the narrative of which detailed the interaction of a 12-year-old female child with an adult male perpetrator called “Eric”. The document constituted child abuse material and was identified on the INTERPOL Baseline Scale as Category 2.

12. The offender was arrested and conveyed to Port Macquarie Police Station where he was charged.

13. A full forensic review of the offender’s computer was subsequently conducted. It was ascertained to contain a number of items of child abuse material. These included a close-up photograph and numerous documents containing stories relating to a variety of different sexual interactions involving young children. The full detail of the factual circumstances leading up to the relevant charges are set out in annexure 4 in the Crown Sentence Summary Bundle.

14. In January 2022, the offender appeared for sentence in the Local Court at Port Macquarie with respect to a total of some nine separate offences. Three of these related to failing to comply with his reporting obligations, each relating to a separate failure to disclose. Six additional offences related to five separate offences of possession of child abuse material and one count of production of child abuse material.

15. The offender had been in custody from the date of his arrest on 19 July 2021. With respect to each of the offences relating to the child abuse material, he was sentenced in January 2022 to 12 months imprisonment, with a non-parole period of 6 months. The sentence and non-parole period were backdated to commence from the date of his arrest and he was accordingly released forthwith. With respect to his failure to comply with the reporting obligations, he was placed on Community Correction Orders to be of good behaviour for 18 months.

16. On 25 September 2022, investigators from the Child Exploitation Internet Unit (CEIU) from the NSW Police Force commenced covert online duties utilising the social networking website “chatavenue.com”.

17. Chatavenue is a social networking website which contains a number of separate chat rooms. Users of the website can select which chat room they wish to enter and can then either log in if they are a registered user with the website, or enter under a “guest” username.

18. An investigator (CEIU16) from the Child Exploitation Internet Unit entered the Chatavenue website utilising an assumed online identity as a 36-year-old female who purported to have a 9-year-old daughter.

19. On 25 September 2022, the offender, utilising the username “eric1234”, initiated a conversation with CEIU16. His profile indicated that he was a 55-year-old male from Australia and had been a registered user on the website since 11 September 2022.

20. I will refer to the detail of the communications in a summary and overview fashion. I will make reference to the specific parts of the Agreed Facts where the communications are set out in considerable detail. I indicate that I do not propose to recite the words of the interactions or the details of them in this sentence judgment.

21. I agree in terms with the published Remarks of her Honour Judge Tupman in R v Davis [2023] NSWDC 651 (Davis) where her Honour said as follows at [20]:

“Sentence judgments of this Court are generally available publicly, which is as it should be. There is no point having general deterrence as an aim of sentencing unless the public becomes aware of the outcome for criminal offences. The Court, however, should also be alive to ensure that the publication of their judgments does not involve publishing sexually explicit material involving children, whether those children are real or not, which then becomes available at large and just perpetuates the very harm which offences like this are designed to prevent. Individuals in the community should not be able to achieve any form of secondary gain by having access to judgments of this Court, particularly when dealing with issues involving sexual abuse of children.”

22. I note in passing that the matter of Davis similarly included communications with the investigator CEIU16, on that occasion purporting to be a 40-year-old woman with a 9-year-old daughter.

23. In the present matter, the full detail of the explicit conversation which then ensued between the Police Officer, CEIU16, role-playing as the 36-year-old mother of a 9-year-old daughter and the offender, is set out in the Agreed Facts at tab 3 in the Crown Tender Bundle.

24. It suffices to state a narrative overview. The offender suggested sexual activity between the mother and child and described what he would do with the child while the mother watched. He described the detail of sexual activity that he allegedly had shared with an ex-girlfriend’s daughter. He provided an email address “[email protected]” and said that his name was “Tony”. CEIU16 and the offender subsequently communicated via the email address. The offender subsequently sent an email containing a story of an explicit sexual encounter between himself and the daughter with CEIU16 in the next room. The detail of that narrative is set out in Annexure A to the Agreed Facts in Exhibit 1 on sentence.

25. A further story was sent by the offender to CEIU16 setting out four pages of closely typed narrative regarding sexual interactions between himself, CEIU16, and the daughter.

26. Subsequent communications included messages via the Skype platform, details of which had been provided by CEIU16 to the offender. A number of conversations and chats followed, all of which contained sexual inuendo and provocative suggestions.

27. On 5 October 2022, the offender sent CEIU16 an image of his upper body and face via Skype. On 17 October 2022, the offender had a further conversation with CEIU16 and forwarded an additional fictional story of an imagined sexual interaction between the offender and the 9-year-old daughter. Additional conversations included the Police Officer purporting to make arrangements to travel to the vicinity of Taree with her daughter with a view to meeting the offender and the three of them having sex.

28. These various uses of a carriage service with the requisite intention of making it easier to procure a child to engage in sexual activity with the sender, constitute the offence charged under s 474.27AA(1).

29. On 19 October 2022, Police attended the residence of the offender where he was cautioned and placed under arrest. He made admissions in relation to using Chatavenue and using the registered name “eric1234”. He was formally interviewed at Taree Police Station where he made admissions with respect to the email address [email protected] and to a variety of other forms of communication which had not been disclosed as part of his obligations as a registrable person.

30. He was asked various questions with respect to his communications with CEIU16 and gave a number of explanations which, in broad terms, denied any actual interest in the 9-year-old daughter. He told Police that the stories were fictional and said that he was not attracted to children sexually but wrote the stories so that people would keep talking to him. He told Police that he suffered from depression and memory losses.

31. His failure to have reported the various usernames that he used on the internet and the details of his email address and Skype address formed the basis of his non-disclosure pursuant to his reporting obligations, resulting in the second substantive offence before this Court.

OBJECTIVE SERIOUSNESS

32. An assessment of the objective seriousness is informed by a number of factors. The offender did not participate in a one-off conversation. Communications between him and the role-playing Police Officer occurred over approximately a 4-week period.

33. The communications included the transmission of lengthy narratives purporting to continue the story of explicit sexual encounters both past and prospective. They included purported arrangements being made by the undercover operative to travel to the vicinity of where the offender was residing with a view to an actual meeting and sexual contact including with the child taking place. The detail and specificity of some of the communications involving a child under the age of 10 was clearly very serious offending.

34. Actions which carry the implicit intention of compromising the significant bond and trust that ought to repose between a child and the child’s mother is a relevant factor which also informs objective seriousness.

35. These various factors operate to increase the objective seriousness of the offending.

36. Whilst the statutory provisions remove from any consideration about criminal liability the fact that the person is a fictitious person, the fact that the communication is with a fictitious person and about a fictitious child purportedly under 10, is, in my view, a factor which reduces the objective seriousness when contrasted with offending pursuant to the same section which involves a real person and a real child. I agree with the analysis in this respect set out in the judgment of Tupman DCJ in Davis.

37. In my view, the offending constituted by the “grooming” offence falls slightly below a perceived middle range of objective seriousness.

38. The breach of the reporting obligations in the present matter primarily constituted the failure to advise of the different modes of communication which had not been provided to police pursuant to his obligations as a registrable person. Other than the allegedly fictional narratives which were communicated with CEIU16 and presumably also located on his computer, it was the failure to report the various usernames and the details of the email and Skype addresses which formed the basis of non-disclosure. Such offending falls towards the lower end of objective seriousness for this particular offence.

SUBJECTIVE CIRCUMSTANCES

39. The offender did not give evidence on the sentence proceedings.

40. Information with respect to his subjective circumstances has been provided to the Court via the medium of a psychologist’s report from Ms Emma Hubner, Forensic Psychologist from Duffy Robilliard Psychologists dated 19 December 2023 (Exhibit #2).

41. The offender was 55 years of age at the time of the offending for which he now appears for sentence. He was born in 1966 in [redacted], New South Wales, and is presently 57 years of age. The offender was the oldest of two children and his parents separated when he was 2 years of age.

42. His younger sister passed away in 2010 due to complications related to a brain tumour.

43. The offender also has three maternal half-brothers who range in age between approximately 6 and 14 years younger than him. He told the psychologist that his mother was primarily focused on raising his younger siblings and did not have time for him.

44. Whilst somewhat lacking in detail, it appears that the family moved around quite substantially leading to the offender attending multiple different primary schools. The family is described as having lived in a variety of different locations including Mt Gambier, Perth, Darwin, Ballarat, and Mitcham in Victoria.

45. The offender described experiencing abuse from the father of his eldest half-sibling, which abuse included dressing him up in girls’ clothing, making him sleep outside, and hitting him over the head with a newspaper. He also told the psychologist that he had suffered sexual abuse.

46. The offender said that these incidents occurred when he was between the ages of 6 and 8 years and that when he complained to his mother about the abuse, she called him a “liar”.

47. He said that he was kicked out of home at the age of 14 after being falsely accused of stealing his half-brother’s wallet. Despite the wallet subsequently being found, he received no apology from his mother and was not invited back home.

48. After being kicked out of home he left school at the age of 14.

49. The psychologist’s report does not provide any detail as to where the offender subsequently lived or how he supported himself as a young teenager.

50. The report does set out a reported traumatic brain injury suffered by the offender when he was pushed off a rooftop, also at the age of 14.

51. The report describes him starting at the age of 15 as an industrial cleaner in factories. In extremely general terms he is described as having held various positions including having worked in the fitness industry for approximately 6-7 years.

52. He is described as having enrolled in the Adult Tertiary Preparation Program at TAFE in Victoria. However, he reportedly encountered bullying from his peers and he is said to have discontinued his studies as a result of being kicked out of home.

53. The offender told the psychologist that at the age of 16 he began engaging in self-harm and made multiple suicide attempts. He described various problems in his medical history including a spinal injury described as having resulted in third-degree disc degeneration. He is said to experience chronic pain, limited movement, and an interference with his daily life as a consequence. He also described having been involved in a car accident resulting in a cracked right patella which was said to have required surgical intervention.

54. The report includes reference to a period of time “in witness protection”. According to the psychological report, at that time a psychiatrist diagnosed the offender with Post Traumatic Stress Disorder (PTSD) and anxiety. He was also reportedly grappling with depression.

55. At the time of the interview with Ms Hubner he reported ongoing and persistent symptoms of PTSD including intrusive memories, avoidance, negative changes in thinking and mood, and changes in physical and emotional reactions. He advised her that he currently “escapes” his emotional distress by watching television and reading the Bible.

56. The psychological report then dealt with circumstances of the offender’s custody.

39. It is appropriate at this juncture to turn to his criminal history. The criminal history of the accused commenced in Victoria when he received a suspended sentence in 1994 on a charge of theft. Thereafter, he had a number of driving offences before being convicted of an attempt to possess anabolic steroids and possession of an explosive substance without excuse which was dealt with in the Magistrates’ Court in Victoria in 2013. He was fined and received a wholly suspended sentence. He subsequently received a good behaviour bond for obtaining a financial advantage from a Commonwealth entity.

40. His first relevant prior conviction was recorded in the Magistrate’s Court in Victoria in 2014 of knowingly possessing child pornography. He was convicted and fined and became a registrable person pursuant to the Sex Offender Registration Act 2004 (Vic). His obligations pursuant to that Victorian registration extended for a period of 8 years.

41. He was subsequently convicted of a similar offence in 2015 and sentenced to 4 months imprisonment. However, a subsequent appeal to the County Court set aside the Magistrate’s order of imprisonment and he was sentenced to 52 days which had already been served. This second registrable offence rendered him liable to reporting to Victoria Police pursuant to the Sex Offender Registration Act for a period of 15 years.

42. On relocating to New South Wales, the offender became a registrable person in this state pursuant to the cognate New South Wales legislative provisions.

43. He next came before a Court in January 2022 with respect to the offending at Port Macquarie which I have already detailed. He was sentenced on that occasion to 12 months imprisonment with a non-parole period of 6 months. Each of the sentences was to be served concurrently with respect to six of the charges then before the Court.

44. The offender had been in custody from the day of his arrest in July 2021. The sentences were backdated to the date of his arrest and the non-parole period had, accordingly, expired and he was released on the day of sentence.

45. He was subsequently arrested on 19 October 2022 with respect to the current matters and has remained in custody since that time.

CROWN SUBMISSIONS

64. The Crown concedes that it will be appropriate to backdate any sentence of imprisonment to commence on 19 October 2022.

65. The Crown submits that the threshold with respect to imprisonment under both s 17A of the Crimes Act 1914 (Cth) and s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been crossed in both cases and that no sentence other than full-time imprisonment is appropriate in all of the circumstances.

66. In the Crown’s submission with respect to the Commonwealth offence, a sentence of imprisonment exceeding the mandatory minimum term of 4 years imprisonment would be the only appropriate sentence, and accordingly, a non-parole period will be required to be fixed in accordance with s 16A(1) of the Commonwealth Crimes Act.

67. In that respect, I note the observations of Beech-Jones CJ at CL (as his Honour then was) in R v Delzotto (2022) 298 A Crim R 483; [2022] NSWCCA 117 at [4] where his Honour said:

“The contention that it is only the lowest category of offending that could ever result in the imposition of the” [mandatory] “minimum sentence is inconsistent with Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and otherwise denies the fundamental precept that the determination of the appropriate sentence requires a consideration of all the relevant factors as part of the “instinctive synthesis” (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25).”

68. His Honour’s approach to the mandatory minimum term was approved by the High Court in their dismissal of the appeal by Delzotto.

69. The Crown sets out in its written submissions the full regime of offences relating to the use of carriage services for the purpose of arranging or engaging in sexual activity with persons under 16 years of age. It is not necessary for present purposes to repeat the detail of the legislative regime and its purpose. It is undoubted that the underlying rationale for “grooming” offences, either direct or by means of a third party, are intended to permit law enforcement to intervene before children are actually abused or suffer harm.

70. The approach of the Commonwealth Parliament and the severity with which such offending is viewed is reflected in the circumstance that the maximum penalty of 12 years imprisonment was increased to 15 years in June 2020.

71. The Crown reminded the Court of the principles set out with respect to offences of “grooming” in Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250. Those principles and the paramount public interest in protecting children from sexual abuse have been consistently recognised and applied in intermediate appellate courts (see for example R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316).

72. Cases such as Rampley v R [2010] NSWCCA 293 at [37] recognise that the nature of such offences is such that the creation of fictitious identities and the involvement of police role-playing in communicating with offenders is a necessary means of law enforcement.

73. The Crown’s original submissions, in March 2024, with respect to the mandatory minimum penalty, applicable as a consequence of the offender’s prior convictions, relied upon Bahar v R (2011) 45 WAR 100; [2011] WASCA 249.

74. During the course of the adjournment of these proceedings from the sittings in Taree, the High Court has confirmed the correctness of that approach in Hurt v The King; Delzotto v The King (2024) 98 ALJR 485; [2024] HCA 8.

COMPARATIVE CASES

75. In R v Davis [2023] NSWDC 651, to which I have already referred, Judge Tupman sentenced a 47-year-old offender with respect to two offences under the Commonwealth Criminal Code. The first offence was pursuant to s 474.27AA(1) of using a carriage service to transmit a communication with the intention of making it easier to procure a child who he believed to be under 16 to engage in sexual activities with him. The second offence was the use of the carriage service to transmit a communication including indecent material to a recipient who he believed to be under 16. The first offence, as with the present offence before me, carried a maximum penalty of 15 years imprisonment, whilst the second offence carried a maximum penalty of 10 years.

76. The communications over the carriage service involved communications with a police operative, CEIU16, who on that occasion played the role of a 40-year-old woman with a 9-year-old daughter. In general terms, the communications were not dissimilar to the types of suggestions made by the present offender. Davis also sent an actual photograph of his penis and provided his real name. He also sent a photo of himself in a car showing his face from the shoulders up. Some of the contacts were initiated by the police operative. Discussions included attempted arrangements with the intention of actually visiting and engaging in sexual activity with the purported child. Judge Tupman found that the grooming offence in that matter was around the middle of the range of objective seriousness.

77. The offender had been in a stable de facto relationship with his partner for some 26 years and they had two daughters who were aged 20 and 13. Although not diagnosed until after the commission of the offences, the offender was found to be suffering from Autism Spectrum Disorder. Her Honour found that he fell into the category of someone who was suffering from a mental health condition at the time he committed the offences. She accepted his partner’s evidence that it was not just a convenient diagnosis after arrest but that the sort of behaviour consistent with the disorder and previously demonstrated had been apparent for all of the years that his partner had known him.

78. Subsequent to the offender’s arrest he had undertaken psychological treatment and he had demonstrated growing insight and self-understanding. He was found to be at below average risk of reoffending. He had been approved for an NDIS plan.

79. Judge Tupman used a starting point of 2 years for the grooming charge which was reduced by 25% to a term of imprisonment of 18 months. The second charge gave rise to a term of imprisonment of 3 months. An overall aggregate sentence of 20 months with some partial accumulation was imposed. Contrary to the later decision of Judge Hanley SC in Smith, to which I will shortly refer, Judge Tupman was not satisfied that an Intensive Correction Order (ICO) was available for an offence under s 474.27AA. Her Honour, in part, based that decision on the cognate NSW provisions.

80. Her Honour ultimately determined that the case fell into the category of an exceptional case and made an order that the offender be released immediately on a Recognizance Release Order for a period of 2 years.

81. In R v Smith [2024] NSWDC 242 (Smith), Judge Hanley SC dealt with an offender who had pleaded Guilty to three offences under the child sexual abuse provisions of the Commonwealth Criminal Code. They included the use of a carriage service to transmit child pornography to himself; the use of a carriage service to “groom” another person to make it easier to procure a person under 16 years of age for sexual activity; and a third offence of using a carriage service to procure a person under 16 years of age for sexual activity. Each of the three offences carried a maximum penalty of 15 years.

82. The first and third counts were prescribed sexual offences for the purposes of s 67 of the Crimes (Sentencing Procedure) Act 1999 and accordingly an Intensive Correction Order was not an available option for those offences.

83. However, the Crown accepted that the second offence pursuant to s 474.27AA was not a prescribed sexual offence and, accordingly, there was no statutory preclusion from the imposition of an Intensive Correction Order. The Crown also accepted that the Court was not required to find “exceptional circumstances” pursuant to s 20(1)(b) in order to impose an Intensive Correction Order because the Court’s power was founded under s 20AB.

84. The offender in that matter purported to be 43 years of age over the internet. He was in fact 77. The police operative who was role-playing as the mother of a 9-year-old daughter was, yet again, CEIU16.

85. It is unnecessary to set out the detail of the communications which constituted the offending. Child pornography which was actually transmitted was graphic. As noted, the offender was 77 years of age and was suffering from an Adjustment Disorder and Depression. At the time of sentence he had turned 80. The Court found exceptional circumstances and directed that the offender enter a Recognizance Release Order to be of good behaviour for a period of 6 months.

86. With respect to Count 2, he was sentenced to a term of imprisonment for 2 years which was directed to be served by way of an ICO. With respect to Count 3, he was sentenced to 2 years imprisonment but directed to be immediately released pursuant to entering a Recognizance Release Order.

87. In Elwdah v R (2024) 388 FLR 452; [2024] NSWCCA 150 (Elwdah), the Court of Criminal Appeal dealt with an appeal against the severity of sentence with respect to a single offence of grooming contrary to s 474.27AA(1) of the Criminal Code (Cth). Judge Colefax SC, after a discount of 25% for the plea of Guilty, had imposed a sentence of imprisonment of 2 years and 3 months. His Honour ordered that the sentence be suspended at the expiration of 12 months and the applicant then be admitted to a Recognizance Release Order to be of good behaviour for 15 months.

88. The sentence proceedings in the District Court had been reopened to correct an error. The sentencing judge purportedly corrected the original sentence by orders adding the mandatory conditions to the recognizance in accordance with s 20(1B) of the Act which were stated to be in force “for a period not exceeding 2 years”. That period exceeded the length of the recognizance.

89. The offender had engaged in conversations online with an undercover police operative purporting to be a 40-year-old woman with a 9-year-old daughter. The judgment indicates the investigators were from the Child Exploitation Internet Unit (CEIU) but does not identify whether it was again CEIU16. The general tenor of the communications was not dissimilar to the present proceedings.

90. The offender in that matter was 22 years of age. At first instance, submissions on his behalf had focused on the significance of rehabilitation and whether exceptional circumstances needed to be demonstrated. The Crown had incorrectly submitted that exceptional circumstances needed to be found before an ICO could be ordered.

91. The Court of Criminal Appeal distinguished between the necessity for that test to be satisfied in order for an offender to be released on a recognizance immediately, but pointed out that s 20(1)(b)(iii) of the Crimes Act 1914 did not apply to a sentence to be served by way of an ICO.

92. The first ground of appeal was that the sentencing judge had erred in failing to have regard to the objective of rehabilitation as required by s 16A(2AAA) of the Commonwealth Crimes Act and had failed to engage with the relevant factors which may inform that objective. The applicant submitted in the Court of Criminal Appeal that rehabilitation should have been a significant consideration on sentence, particularly where the applicant’s prospects of rehabilitation were said to be guarded and there was evidence of available treatment, albeit subject to eligibility, both in the community and in custody.

93. The Court, per McNaughton J, Wright and Chen JJ agreeing, observed at [43] that the “objective of rehabilitation” had as one purpose the encouragement of sentencing courts to fix a sufficient period or minimum period in custody that would enable the offender to complete a custodial sex offender treatment program, which typically takes between 18 months to 2 years.

94. Her Honour referred to Darke v R [2022] NSWCCA 52 at [31] to [36] when Lonergan J, Johnson and Dhanji JJ agreeing, had criticised a sentencing judge who had said nothing in the remarks suggesting he had applied focus to the mandatory consideration of the objective of rehabilitation and a consideration of whether it was appropriate to impose any conditions about rehabilitation or treatment options in determining the length of any sentence or non-parole period. Accordingly, “a mandatory requirement in imposing the sentence [had] been missed.”

95. In that matter, the sentencing judge, Judge Colefax SC, had made no reference to s 16(2AAA) in his remarks on sentence. The Court noted that the pre-existing necessity in s 16A(2)(n) required a sentencing court to take into account “the prospect of rehabilitation of the person”. However, the more recently inserted s 16(2AAA) required a sentencing court, in addition to any other matters, to:

“have regard to the objective of rehabilitating the person, including by considering whether it is appropriate… to impose any conditions about rehabilitation or treatment options [and]… in determining the length of any sentence of non-parole period – to include sufficient time for the person to undertake a rehabilitation program.”

96. In the event, in Elwdah, taking into account that by the time of resentencing in the Court of Criminal Appeal the offender had served 10 months and 3 days already in custody, and taking into account his expressed desire to undertake a rehabilitation program, the Court resentenced him to 2 years imprisonment. However, taking into account the time already served, the Court ordered his release on a Recognizance Release Order forthwith subject to a number of conditions, including undertaking such treatment or rehabilitation programs as directed by a Probation Officer.

97. Before leaving the topic of comparative cases, it is appropriate to observe that statistics in the area or regime covering Commonwealth child sex abuse matters involve a comparatively limited number of cases and with respect to some particular provisions, literally a bare handful. As observed by McNaughton J in Elwdah at [64], with regard to the use of Judicial Commission statistics, it had been noted by Bell and Gageler JJ in R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28] and [49] in particular, that: “[i]t is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set.”

98. In circumstances where the relevant provision under s 474.27AA(1) of the Commonwealth Criminal Code was only enacted in 2020, no useful statistical pattern has yet emerged.

CONSIDERATION

99. Section 16A(1) of the Crimes Act 1914 (Cth) provides that in determining a sentence in respect of a federal offence, the Court must impose a sentence that is of a severity appropriate in all of the circumstances of the case. As I have already indicated, the offending in the present matter was serious. Notwithstanding the fact that the offender was communicating with a fictitious person and discussing the procurement of a fictitious child, his moral culpability is not thereby reduced. However, a recognition that the intended victim was not real does operate to reduce the objective seriousness of the harm caused (see McNaughton J in Elwdah at [72]).

100. I have taken into account the matters which are set out in s 16A(2). I have had particular regard to the need for both general and specific deterrence (ss 16A(2)(j), (ja) and (2)(k)).

101. General deterrence is of fundamental importance in matters involving sexual exploitation and the abuse of children. Such offences are increasingly prevalent in the community. The easy access to child abuse material and the means of communicating with other persons of similar disposition with respect to offending against children has been facilitated by the internet and the widespread use of electronic devices and computers which provide such means. The offences can be difficult to detect notwithstanding the relative ease with which they may be committed. The anonymity provided by the internet further contributes to the need for appropriate general deterrence.

102. In circumstances where this is the fourth offending by the present offender of offences connected with the sexual abuse of children in a period of approximately 10 years, there clearly remains a need for emphasis on specific deterrence as well as an appropriate level of punishment. Whilst the entering of a plea of Guilty is some evidence of a level of contrition and remorse, the remarks by the offender to the Forensic Psychologist with respect to his now awareness of the dangers of the mode of communication do not, in my view, demonstrate the level of remorse which was more clearly demonstrated in a number of the comparative sentence proceedings to which I have made reference.

103. Whilst the offender has undertaken a number of courses whilst in custody, including Narcotics Anonymous and Alcoholics Anonymous including weekly meetings from October 2023 until August 2024, and the Crossroads course “Who is Jesus” in respect of which he successfully completed the course and obtained a Certificate of Achievement dated 13 June 2024 and an earlier Crossroads Course “Who are you?” (Certificate of Achievement dated 26 February 2024) and the Positive Lifestyle Program run by the Salvation Army (Certificate of Completion dated 12 June 2023), there is no evidence of him having undertaken any sex rehabilitation programs, nor of any intention to do so in the fashion demonstrated by evidence in the matter of Elwdah.

104. In light of his repetitive offending, I view his prospects of rehabilitation as guarded (s 16A(2)(n)).

105. However, notwithstanding the view that I hold in that regard, I will give particular consideration to the objective of rehabilitation as required by s 16A(2AAA) in determining the length of the sentence and the release on parole of the offender, taking into account the length of time that he has already been in custody.

99. With respect to the offence under the NSW statutory provision, namely s 17(1) of the Child Protection (Offenders Registration) Act 2000, I take into account the relevant matters referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. The fact that the offender has a record of previous convictions is an aggravating factor, although no further aggravating factors are apparent, although I do note that the present offending was in breach of the Community Correction Orders to which he was still subject. No actual injury, emotional harm, loss or damage was occasioned and the offender has demonstrated some level of remorse and has pleaded Guilty. Such mitigatory factors are clearly relevant.

100. It is appropriate to also note that I have taken into account the possibility of prospective more onerous conditions of imprisonment being required to be served by the offender as a consequence of material provided to the Court.

101. The need for appropriate consideration to be given to the principle of totality is clear in the present case. Consideration is required to the sentence appropriate for each of the individual sentences before turning to a consideration of the question of concurrency and accumulation and the overall issue of totality.

102. I propose to impose a sentence and non-parole period with respect to the State offence first.

103. After allowance for a 25% discount, in light of the Guilty plea, the sentence will be a period of 18 months. The non-parole period will be a period of 12 months.

104. With respect to the Commonwealth offence, in the interests of transparency, I indicate a starting point of 5 years and 4 months. Allowing for a 25% discount, there will be a head sentence of 4 years.

105. Particularly bearing in mind the need for an extended period of supervision and the need for consideration of the objective of rehabilitation during an extended period of supervision, the minimum time that should be served before consideration of eligibility for parole is a period of 2 years.

106. Bearing in mind the principle of totality, the commencement date for the Commonwealth sentence and non-parole period will be 9 months after the offender went into custody on 19 October 2022. Accordingly, the sentence of 18 months with respect to the state offence will commence on 19 October 2022 and expire on 18 April 2024. The non-parole period with respect to that sentence of 12 months will, accordingly, have expired on 18 October 2023.

107. The Commonwealth sentence and non-parole period will commence on 19 July 2023. The offender will accordingly be eligible for release to parole on 18 July 2025. The head sentence will expire on 18 July 2027.

108. On the application of the Crown, not opposed or consented to by the offender's representative, the court orders pursuant to s 23ZD of the Crimes Act 1914 and upon application of the Commonwealth Director of Public Prosecutions that the following item is forfeited to the Commonwealth; one Huawei mobile phone X0003063097.

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Decision last updated: 04 June 2025