The Queen v Dalwood - [2020] NSWDC 841

District Court

New South Wales

Amendment notes

Medium Neutral Citation: The Queen v Dalwood [2020] NSWDC 841
Hearing dates: 9 October 2020
Date of orders: 16 November 2020
Decision date: 16 November 2020
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
Full time custodial sentence imposed. Decision at [112]-[113].

Catchwords:
CRIME – sentence – 6 charges – child sexual offending – victims outside Australia – child pornography offences

Legislation Cited:
Crimes Act 1900 (NSW) s 91H(2)
Crimes Act 1914 (Cth) ss 16A, 17A
Criminal Code (Cth) ss 272.14, 474.19, 474.25C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5

Cases Cited:
Baden v R [2020] NSWCCA 23
Director of Public Prosecutions v Beattie [2017] NSWCCA 301
Minehan v R [2010] NSWCCA 140
Pearce v The Queen (1998) 194 CLR 610
Ryan v The Queen [2001] HCA 21
Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Regina (ODPP)
Daniel Dalwood (Offender)
Representation:
Counsel:
Mr Murray (Offender)
Solicitors:
Ms Hirst (ODPP)
Ms Moran (Offender)

File Number(s): 2019/115322
Publication restriction: Statutory prohibition on publication in relation to identities of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

Introduction

Daniel Dalwood, hereafter referred to as “the Offender” appears before the Court for sentence in relation to 6 charges on an indictment:

Count 1 – possess child abuse material, in breach of s91H(2) of the Crimes Act 1900 (NSW);

Count 2 – use a carriage service to solicit child pornography material, in breach of s474.19(1) of the Criminal Code (Cth);

Count 3 – use a carriage service to plan etc sexual act, where person under the age of 16 years, in breach of s474.25C of the Criminal Code;

Count 4 – procure child for sexual activity outside Australia, in breach of s272.14(1) of the Criminal Code;

Count 5 – procure child for sexual activity outside Australia, in breach of s272.14(1) of the Criminal Code; and

Count 6 – use a carriage service to transmit child pornography material, in breach of s474.19(1) of the Criminal Code.

Counts 1 and 3 carry maximum penalties of 10 years’ imprisonment, while Counts 2, 4, 5 and 6 all carry a maximum term of 15 years’ imprisonment. The maximum sentences demonstrate the seriousness with which the community, by Parliament, view this type of offending. They are a guidepost for a sentencing Judge.
There are no Form 1, related or back-up offences.

Procedural History

The offending occurred over a period of some 8 months between 2 August 2018 and 12 April 2019. On 12 April 2019 the Offender was arrested and released upon conditional bail, however on 28 May 2019 he was re-arrested for breach of bail, and has been bail refused in custody since that date. This will be the commencement date for the sentence.
On 11 March 2020 the Offender pleaded guilty to all 6 charges in Wyong Local Court and, after being committed for sentence to the District Court in Gosford,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading The Queen v Dalwood

Details

AGLC: The Queen v Dalwood [2020] NSWDC 841
Case: [2020] NSWDC 841
Decision Date: 16 November 2020

CaseChat Overview and Summary

In the matter of The Queen versus Dalwood, the appellant faced six charges related to child sexual offending and child pornography offences, with victims located outside Australia. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court were the appropriate sentence for the appellant and the impact of the crimes on the victims, particularly the transnational aspect of the offending.

The court was required to consider the gravity of the offences, the appellant’s culpability, and the need for general and specific deterrence. The sentencing judge acknowledged the significant trauma inflicted upon the victims, the appellant's breach of trust, and the transnational nature of the offending, which complicated victim support and recovery. The court also considered the appellant's background, including his previous criminal history and the possibility of rehabilitation.

In determining the sentence, the judge emphasised the need to reflect the seriousness of the crimes and to provide a message of denunciation. The court concluded that a full-time custodial sentence was warranted. The final orders, articulated at [112]-[113], involved the imposition of a custodial sentence, the specifics of which were detailed in the judgment.

Orders

Orders of the court

Full time custodial sentence imposed. Decision at [112]-[113].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	The Queen v Dalwood [2020] NSWDC 841
Hearing dates:	9 October 2020
Date of orders:	16 November 2020
Decision date:	16 November 2020
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Full time custodial sentence imposed. Decision at [112]-[113].
Catchwords:	CRIME – sentence – 6 charges – child sexual offending – victims outside Australia – child pornography offences
Legislation Cited:	Crimes Act 1900 (NSW) s 91H(2) Crimes Act 1914 (Cth) ss 16A, 17A Criminal Code (Cth) ss 272.14, 474.19, 474.25C Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5
Cases Cited:	Baden v R [2020] NSWCCA 23 Director of Public Prosecutions v Beattie [2017] NSWCCA 301 Minehan v R [2010] NSWCCA 140 Pearce v The Queen (1998) 194 CLR 610 Ryan v The Queen [2001] HCA 21 Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (ODPP) Daniel Dalwood (Offender)
Representation:	Counsel: Mr Murray (Offender) Solicitors: Ms Hirst (ODPP) Ms Moran (Offender)
File Number(s):	2019/115322
Publication restriction:	Statutory prohibition on publication in relation to identities of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)