TD v Director of Public Prosecutions

[2025] NSWDC 305

District Court

New South Wales

Medium Neutral Citation:

TD v Director of Public Prosecutions [2025] NSWDC 305

Hearing dates:

14 February 2025

Date of orders:

18 February 2025

Decision date:

18 February 2025

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

See [72]

Catchwords:

CRIME – Breach of reporting conditions

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Irwin v R [2021] NSWCCA 172

R v McCarthy [2011] NSWCCA

State of NSW v TD [2020] NSWSC 1587

Small v R [2020] NSWCCA 216

Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41

Category:

Principal judgment

Parties:

The Director of Public Prosecutions
The appellant (TD)

Representation:

For the DPP:
Mr Zekanovic, Solicitor

For the appellant:
Ms Haddad, Solicitor

File Number(s):

2024/00441194

Publication restriction:

Non-publication order in respect of the appellant’s name pursuant to s15A Children (Criminal Proceedings) Act 1987

JUDGMENT

1. The appellant appeals the severity of an aggregate term of imprisonment of two years with a non-parole period of 14 months imposed at the Picton Local Court on 30 January 2025. The sentence commenced on 27 November 2024. TD is eligible to be released on parole on 26 January 2026.

2. I have anonymised the appellant's name because reference is made in this judgment to the fact that as a child he was sentenced for a child sex offence; see s15A Children (Criminal Proceedings) Act 1987.

Principles regarding severity appeals

3. This appeal is to be conducted as a de novo rehearing of the evidence in the original Local Court proceedings. There was no further evidence on the appeal.

4. The court may determine the appeal by setting aside or varying the sentence or dismissing the appeal.

The offences and indicative sentences

5. The appellant pleaded guilty to 15 offences contrary to section 17(1) of the Child Protection (Offenders Registration) Act 2000 ('the Act') and a further offence contrary to s18 of the Act. The offences were committed between 1 October and 27 November 2024.

6. On indictment, the maximum penalty for these offences is five years imprisonment and/or a substantial fine. Dealt with summarily, the maximum penalty for an offence contrary to this provision is two years imprisonment and a substantial fine.

7. The breaches and indicative sentence imposed in the Local Court were as follows:

1. Sequence 1 (s17): contact with a child - 12 months

2. Sequence 2 (s17): contact with a child - 12 months

3. Sequence 3 (s17): contact with a child - 12 months

4. Sequence 4 (s17): contact with a child - 12 months

5. Sequence 5 (s17): contact with a child - 12 months

6. Sequence 6 (s17): not disclose hire vehicle - 6 months Sequence 7 (s17): not disclose hire vehicle - 6 months

7. Sequence 8 (s17): not disclose hire vehicle - 6 months

8. Sequence 9 (s17): not disclose hire vehicle - 6 months

9. Sequence 10 (s17): not disclose hire vehicle-6 months

10. Sequence 11 (s17): not disclose hire vehicle - 6 months

11. Sequence 12 (s17): failure to disclose username - 6 months

12. Sequence 13 (s17): failure to disclose username - 6 months Sequence 14 (s18): provide false/misleading information - 15 months

13. Sequence 15: (Crimes Act, s192E(1)(a)): dishonestly obtain property by deception - s1OA

14. Sequence 16 (s17): not disclose hire vehicle - 6 months

15. Sequence 17 (s17): fail to disclose Tik Tok account - 6 months

Early guilty pleas

8. The appellant entered pleas of guilty to the various offences on 12 December 2024. I accept that the pleas of guilty were entered at an early point and that the appropriate utilitarian discount is 25%.

Prior conviction for sexual offending against a child

9. The appellant was convicted on 5 July 2018 at the District Court in Sydney and sentenced to a term of imprisonment of three years imprisonment from 25 August 2017 with a non-parole period of two years concluding on 24 August 2019 for charges of grooming a child for unlawful sexual activity and the possession of child abuse material. As a related consequence, he was placed on the NSW Child Protection Register ('CPR') as a registrable person for 15 years, concluding on 23 August 2034.

Material on sentence

10. Both in the Crown bundle and in the written submissions of the appellant in the Local Court (that were relied on substantially in this appeal), there is a large amount of hearsay evidence and, on occasions in the appellant's written submissions, assertions unsupported by any evidence. I raised this with the parties and was informed that no issue was taken with this material being before the Court and the various matters of fact and expert opinion raised were available for the Court to consider as a matter of weight. I have proceeded on this basis.

11. In the prosecution bundle is the judgment of her Honour Justice Natalie Adams dated 11 November 2020 State of NSW v TD [2020] NSWSC 1587. Her Honour declined to make an Extended Supervision Order in the appellant's case. It is apparent from reading the judgment that after his release to parole on 24 August 2019, the appellant remained subject to high level supervision until the State's application for the extended supervision order was dismissed on 11 November 2020. Thereafter, he was subject to the reporting obligations that are detailed in the Act. Until October 2024 he complied with those obligations.

12. Amongst the material before the Local Court was a Sentencing Assessment Report ('SAR') dated 21 January 2025. At the time the report was written, the appellant was in custody awaiting sentence for these matters.

13. The report author noted the appellant considered his offending to have been stupid. He accepted he should not have been dishonest about his living arrangements. He was disappointed in himself because he had been vigilant with his reporting obligations over 4 or 5 years. The report also noted "the appellant appears to have prioritised his relationship over his CPR obligations."

14. The SAR also noted that the appellant was diagnosed with ADHD and a high functioning form of autism spectrum disorder ('ASD') and that records indicated these conditions may have impacted his impulse control and caused him to have a poor grasp of the consequences of his behaviour, see SAR page 3. There was no further expert evidence on this subject in the material on sentence. In my view there is insufficient evidence to conclude that any mental health condition suffered by the appellant contributed materially to the commission of these offences or reduced his moral culpability for his conduct.

15. The SAR also noted that since 2019:

".... he was compliant with reporting and scheduling. He was well engaged and completed all requirements of his supervision, including sex offender treatment... He was subject to an ICO for driving offences which he also satisfactorily completed on 30 September 2021."

16. The SAR author noted the appellant required a medium level of supervision and if a supervised order was made, there would be a requirement that the appellant have contact with a Community Corrections officer every two weeks. A supervision plan would be implemented involving:

1. referral to CS NSW forensic psychology services for a more comprehensive assessment risk management and treatment recommendations,

2. referral to a psychologist for ongoing psychological support for sex offending risk factors,

3. referral to a Community Health Centre for a mental health care plan,

4. referral to appropriate diagnostic specialists,

5. third-party verification checks to ascertain stability, progress and engagement,

6. practice guide intervention exercises to assist the appellant to develop an awareness towards his decision-making and how this impacts his behaviour to create goal orientated supervision,

7. practice guide intervention exercises focusing on managing his environment so as to assist the appellant in recognising situations and individuals that may be high risk and create plans to manage those,

8. together with prosocial lifestyle counselling to assist with identifying prosocial relationships and to develop the social skills required to achieve them.

17. It was noted the appellant was considered suitable for community service work up to 21 hours per month.

18. Other material in the sentence bundle included a letter from the appellant apologising for his conduct. He expressed shame and expressed embarrassment and disappointment in himself. He also wrote:

"I made a serious effort over the past five years to become a positive impactful member of society. I join sports clubs and have been selected as XX University rugby club captain last year, I opened up my own dog walking business and become a loving father to two beautiful little girls that I was the sole financial provider for. I have made positive choices in my life to avoid reoffending so I am truly sorry and disappointed with myself about this lapse of good judgment..."

19. Also tendered in the Local Court were two personal references. Jessica Smith, a long-term friend, wrote very positively of her relationship with the appellant. She considered him remorseful and had visited him in custody. She was aware of his dog walking business and considered he had the capacity to rehabilitate and make a positive contribution to the community.

20. Three of the appellant's dog walking clients wrote references also, praising his ability to manage dogs in a caring and professional way and generally spoke positively about him.

Seriousness of the offences

21. When the appellant was 17 and again when he was 21, he engaged in unlawful sexual activity with two 14-year-old girls. The first of those proceedings was finalised in the Children's Court without conviction. The second matter was dealt with by way of the imposition of a three-year term of imprisonment. It was this second matter that led to the appellant becoming a registrable offender.

22. The objects of the Act are:

1. to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

2. to ensure the early detection of offences by recidivist child sex offenders, and

3. to monitor persons who are registrable persons, and

4. to ensure that registrable persons comply with this Act.

23. Given these legislative purposes, any breach of the Act by a registrable person must be viewed as serious.

24. Justice N Adams, in her judgment, summarised the evidence of two highly regarded experts, Patrick Sheehan, a forensic psychologist and Dr Richard Furst, a forensic psychiatrist. I do not have their reports, however the parties accepted I could rely upon the factual matters and expert evidence as detailed in Justice N Adams' judgment.

25. Mr Sheehan noted that both offences involved 14-year-old victims, outside the age range to meet the diagnostic criteria for a paedophilic disorder. There remained a concern, given there were two instances of sexual misconduct with 14-year-old girls, that the appellant may commit further offences against girls in that age bracket, although Mr Sheehan considered there was uncertainty about this, given the appellant was only 17 years old at the time of the first matter and still very young at the time of the second.

26. That the appellant did not meet the criteria for a paedophilic disorder is of some significance in considering the seriousness of the offences now for sentence.

27. The offender completed his initial registration on the New South Wales child protection register on 30 August 2019. From 9 July 2021 he moved to reside at an address in Guildford with his partner and was managed by the Cumberland CPR team. He became the parent of two children, born in 2021 and 2022.

28. By October 2024 his relationship with the mother of his two children had broken down. At apparently the same time, the appellant commenced a new intimate relationship with a woman who was the mother and primary carer of four children aged eleven, nine, seven and five years of age. His separation from the mother of his children appears to have been finalised from 17 November 2024.

29. Sequence 1 involved a failure on the part of the appellant to report to police that he had moved to the home of his new partner and taken up residence with her and her four children. Sequences 2-5 relate to failures on his part to report contact with each of the four children.

30. Although these failures must be regarded seriously, because of the importance of compliance with the Act, there is no evidence that the appellant's offending was motivated by a desire to offend against children. It is a feature of this case that he was the parent of two very young children and had lived with them all their lives until the separation. The expert evidence of Mr Sheehan and Dr Furst in 2020 was that he is not a paedophile.

31. Unlike a case such as Irwin v R [2021] NSWCCA 172 ('Irwin], the further offences do not involve any offending against a child. Instead, the failure to report his new address, his contact with children of his new partner and the use of hire cars can be seen as connected with the end of his long-term relationship and his entry into a new one. See also Small v R [2020] NSWCCA 216 ('Small'), especially at [34].

32. Although the offences in this appeal must be regarded as serious because of the important legislative purposes of the Act, they fall a long way short of offending in Irwin where the offender moved to a new address close to children without reporting this fact and had then detained and sexually assaulted a very young child.

33. Sequences 6 - 11 and 16 relate to a failure on his part between 1 November and 14 November 2024 on 7 discrete days to report that he had hired motor vehicles. On each occasion, the appellant hired a motor vehicle for one day. Although the material on sentence suggests the vehicles were hired in furtherance of his dog walking business, he was obliged to report the hiring of a motor vehicle to the police and failed to do so.

34. Although the material on sentence is silent, it is apparent that this period coincides with the end of his long-term relationship. There is nothing to suggest that he hired these vehicles for a purpose associated with sexual offending against children. Each of these offences falls well towards the bottom of any putative range.

35. Sequences 12 and 13 arose after police reviewed the appellant's mobile phone and detected two usernames attached to the social media application Tiktok. He was obliged to notify the police of these usernames and failed to do so. This failure remains serious, for the same reasons I have referred to already, however there is nothing in the material on sentence to suggest he was secretly accessing child pornography or using the application to engage with children online. For this reason, the seriousness of these offences also falls towards the bottom of any putative range.

36. Sequence 14, a charge of providing false and misleading information, related to actions on the part of the appellant on 26 November 2024, when he sent a series of emails to police stating that he was not residing with any of his new partner's four children and had never met the children. These statements were knowingly false.

37. On my assessment this is the most serious of the offences because it involved deliberate lies to the police about his access to children, something he could not have failed to understand was fundamentally wrong. The only caveat, and it is a significant one, is there is no evidence that the lies were intended to prevent police from uncovering sexual offending against those children. As noted above, given he was aware of the importance of adherence to the requirements of the Act, I conclude that this ill-considered communication arose because of panic on his part.

38. Sequence 15, a charge of dishonestly obtaining property by deception, involved his unlawful use of another person's drivers' licence to secure the rental vehicles referred to above. That matter was dealt with by way of a conviction pursuant to section 10A of the Crimes (Sentencing Proceedings) Act. There are no submissions in the appeal regarding this aspect of the Local Court proceedings.

39. The expert evidence before Justice N Adams indicated that if there was to be further offending by this appellant it would likely occur at a time of crisis. That assessment was an accurate one, as the appellant had, up until the deterioration and end of his relationship with the mother of his children, complied with the supervision and reporting obligations, both pursuant to the Interim Supervision Order and under the Act. There needs to be some acknowledgement of this fact, given he had been on parole and living in the community subject to the requirements of this Act from August 2019, a period of about 5 years.

40. There is no evidence to support the conclusion that the offending the subject of these proceedings was motivated by a desire on the part of the appellant to engage in further sexual misconduct against children. The children living with his new partner are much younger than either of the two children against whom the appellant had offended when he was much younger. He took up residence in their home because of his new relationship with their mother.

41. Individually and overall, the absence of any evidence that these numerous breaches of the Act were associated with unlawful activity with children, leads me to conclude that the offences are not gravely serious examples of offences against these provisions.

42. One can test this conclusion by contrasting this case with a hypothetical case of an offender who moved into a home with children of a comparable age to those that he had offended against, who created secret accounts on his mobile phone so as to access and store child pornography or take photographs of the children in the new residence and who rented motor vehicles so as to avoid detection in child-related sexual activities. A case with these attributes would fall into the most serious category of offending against the Act. This case does not.

The appellant's arrest

43. On 27 November 2024 the appellant was arrested. He participated in a record of interview and made admissions as to hiring motor vehicles, having the Tik­ tok usernames and residing with his new partner since 18 November 2024 in circumstances where her four children were generally residing at those premises. He also told the police he had stayed the night at the premises since the beginning of October 2024 and the children had been present on occasions when he had attended.

44. I regard his participation in the record of interview and the admissions that he made as relevant to his remorse and willingness to facilitate the administration of justice.

The appellant's criminal record

45. In 2014 the appellant was convicted of a number of offences including, behaving in an offensive manner near a school or public place, intimidation, taking and driving a conveyance without the consent of the owner and escape police pursuit. He was placed on a bond for a number of these offences.

46. In 2015 he was placed on a suspended sentence for providing false or misleading information.

47. In 2016 he was sentenced to a term of fulltime imprisonment for taking and driving a conveyance without the consent of the owner and custody of a knife in a public place. The earlier bonds and the suspended sentence were revoked.

48. In 2018 he was sentenced for the possess child abuse material and grooming a child for sexual activity and sentenced to an overall term of 3 years imprisonment with a non-parole period of two years.

49. In 2021 he was placed on an Intensive Correction Order for a driving offence and in 2022 he was placed on a Community Correction Order for driving whilst suspended.

50. In these circumstances, the appellant's criminal record disentitles him to leniency.

51. The offences subject to this appeal were also committed whilst he was on conditional liberty, as factor of aggravation.

Disposition

52. Individually and collectively, because of the legislative purposes of the Act and this offender's history, the offences are sufficiently serious to support the conclusion that the s5 threshold is crossed. This was not disputed by the appellant.

53. During the appeal, recourse was had to the Judicial Commission's sentencing statistics to identify a range of sentences imposed for offences against s17(1) and s18 of the Act. Caution must be exercised when considering these statistics, given the limited information regarding the details of each case. It has been recognised that where the statistical range involves many cases it can assist in identifying a range. See R v McCarthy [2011] NSWCCA at [42]

54. Between July 2020 and November 2024, 2,702 cases involving the breach of s17(1) were finalised in the Local Court. Disposition varied, with 43.5% of cases resulting in a Community Correction¢ Order, 8.9% in an Intensive Correction Order and 18.9% in a term of full-time imprisonment. This is a substantial number of cases in the range.

55. Of the 512 cases that resulted in a sentence of fulltime imprisonment, only 10 cases had aggregate sentences exceeding 2 years and only 11 cases resulted in an aggregate sentence of 2 years imprisonment. It is apparent that these 21 cases are in the top 1% of all cases imposed in the relevant period.

56. The statistics demonstrate that the aggregate sentence imposed on the appellant was in that top 1% of all cases dealt with in the Local Court, yet the features of the case, as I have sought to explain, do not suggest such an outcome was warranted.

57. Recourse to s117(1) cases dealt with in the District Court did not reveal a range at all.

58. Regarding the single s118 offence, considered by the learned Judge in the Local Court (inferentially) and by myself, to be the most serious matter, only 14 cases were dealt with in the Local Court, with six cases resulting in full time imprisonment. Only one case was dealt with in the District Court, with an Intensive Correction Order imposed.

59. The offences are all closely interrelated. Having regard to the principles set out in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41, there should be some, but not completely nominal accumulation.

60. Purposes of sentence, as set out in s 3A of the Crimes (Sentencing Procedure) Act, include, relevantly: specific and general deterrence, rehabilitation, and protection of the community.

61. The statutory maximum penalties are guideposts or yardsticks nominated by Parliament to be taken into account when determining an appropriate sentence.

62. An aggregate sentence is appropriate.

63. After a 25% reduction for the utilitarian value of the plea of guilty, the indicative sentences are:

1. Sequences 1-5: 9 months imprisonment

2. Sequences 6-11, 16: 3 months imprisonment

3. Sequences 12, 13 and 17: 6 months imprisonment

4. Sequence 14: 12 months imprisonment

64. The appellant has been in custody since his arrest on 27 November 2024, a period of two months and 22 days. This period in custody must be taken into account.

Aggregate sentence

65. Before taking into account the custody served to this point, I consider that an aggregate sentence of 16 months imprisonment is appropriate.

Manner of serving the sentence

66. On my assessment, having regard to s66 of the Crimes (Sentencing Procedure) Act 1999 and the need to attribute paramount importance to community safety, the sentence should be served in the community by way of an Intensive Correction order.

67. The appellant complied with supervision and reporting requirements for about 5 years. The offending can be seen as occurring during the breakup of his relationship with the mother of his children and the beginning of a new relationship. There is no evidence that the numerous breaches of the Act in this case were committed in the context of further offending against children.

68. The appellant has achieved a lot in the years since his release. Importantly, he has established a viable business and engaged in pro-social activities. He has become a parent. Ongoing employment and social connectiveness is a crucial part of his ongoing rehabilitation.

69. Community Corrections have outlined what I consider to be a very constructive supervision plan. This will be important as the appellant resumes life in the community. It will also ensure that appropriate supervision and access to ongoing therapy exists for a significant period. The appellant must understand that for the time he is on the CPR he must comply with every aspect of his obligations.

70. I also intend to impose a condition that the appellant complete a period of community service, to further reinforce the importance of adherence in the future to his reporting conditions.

71. I have reduced the length of the aggregate sentence by three months to take into account the pre-sentence custody.

Orders

72. (1) The sentence in the Local Court is quashed.

73. The indicative sentences are:

1. Sequences 1-5: 9 months imprisonment

2. Sequences 6-11, 16: 3 months imprisonment

3. Sequences 12, 13 and 17: 6 months imprisonment

4. Sequence 14: 12 months imprisonment

74. The appellant is sentenced to serve an aggregate sentence of 13 months imprisonment from 18 February 2025.

75. The aggregate sentence is to be served by way of an Intensive Correction Order, subject to the following conditions:

1. The offender must not commit any offence.

2. The offender must submit to supervision by a community corrections officer and comply with all reasonable directions.

3. The offender must complete 100 hours of community service.

4. The offender must report to Community Corrections within 7 days.

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Decision last updated: 11 August 2025