R v NF [2020] NSWDC 352

District Court New South Wales

Medium Neutral Citation: R v NF [2020] NSWDC 352 Decision date: 30 January 2020 Jurisdiction: Criminal Before: Payne DCJ Decision: Pursuant to section 20(1)(b) Crimes Act 1914, sentenced to a term of imprisonment for 16 months, to be released forthwith upon entering into a recognizance, self in the amount of $500, on the following conditions: 1. To be of good behaviour for a period of 2 years; 2. Continue to receive psychological counselling; 3. Take any medication prescribed by your General Practitioner, as directed by your General Practitioner. Catchwords: SENTENCING – child sex offences – using a carriage service to transmit indecent material to a person under the age of 16 years, Criminal Code 1995 (Cth), s 474.27A(1) Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Category: Sentence Parties: Regina (Crown) NF (Offender) Representation: Counsel: G Bashir SC (Offender)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp Pty Limited (Offender) File Number(s): 2019/42244

Judgment 1. NF comes before the Court in respect of one offence. That offence is contrary to s 474.27A(1) of the Criminal Code 1995 (Cth). The offence in a shortened way can be described as use carriage service to transmit indecent material to a person under 16 years of age. The maximum penalty is imprisonment for seven years. The matter proceeded by way of a Court Attendance Notice. I convict him of this offence. 2. He pleaded guilty at the earliest opportunity and in addition, the original Court Attendance Notice contained a significant number of errors and had to be amended. He did though consent to those amendments and then pleaded guilty. The relevant period of time is between about 15 October 2018 and 4 February 2019. The amended Court Attendance Notice is that he, between 15 October 2018 and about 4 February 2019 at Caringbah South in the State of New South Wales, being over the age of 18 years, did use a carriage service to transmit communication to another person, which included material that was indecent, and the recipient was someone who he believed was under 16 years of age. This matter is of some relevance in relation to him facilitating the course of justice. I accept this is the position. 3. There was also a circumstance where at first the matter was going to be dealt with, it was thought, summarily. A report has been obtained from Dr Allnutt, psychiatrist, indicating that the prisoner was eligible for consideration under s 32 of the New South Wales Mental Health (Forensic Provisions) Act 1990. There is indeed a different provision for the Commonwealth, that being s 20B(2) of the Crimes Act 1914. That was never put to the Local Court because there was a change in representation by the Crown and it was determined by the Crown that the matter be dealt with, it being an indictable matter, in the District Court. The defence say, and it is noted in an affidavit, that the progress of the matter was one that added to their client's anxiety. 4. There was a reference to an undertaking in the affidavit of Mr Houda dated 29 January 2020, in para 8, that there was an agreement with the CDPP that the CDPP would not oppose or argue against the defence submission that a non-custodial sentence would be appropriate in the circumstances of this case. That took place on 15 August 2019 and on 20 August 2019 there was an email from the CDPP advising there had been a change of prosecutor in the case and the new prosecutor was not bound by that representation. 5. I give some, although limited, weight to the effect on the prisoner in respect of the progress of the matter. I am not though suggesting in any way that the Commonwealth Crown have acted improperly. 6. I do accept he is genuinely remorseful and contrite for his offending behaviour and he has taken responsibility for his behaviour, and understands the damage that he would have inflicted on the 14 year old girl, had the person actually been a 14 year old girl. In the Sentencing Assessment Report dated 29 January 2020, it said NF took and understood the seriousness of the offence for which he is before the Court and the serious impact his actions would have had on the young person he believed he was communicating with. There are also references in the testimonial material that are part of the defence bundle, and in particular the psychological report of John Machlin dated 16 December 2019: "Attitude and Reflection [NF] accepts responsibility for his offence, making no attempt to minimise his actions. He related his understanding of wrong-doing in view of the age of the victim, or rather the presumed identity. He related that this behaviour was contrary to his ethics. He said although he had no desire to cause harm to anybody he understood his behaviour was harmful." Then there is a reference in the further forensic psychology report of Jenny Howell, page 5: "[NF] is ashamed of his behaviour and experiences an intense level of guilt and remorse for the harm his behaviour caused his partner and to their relationship. He accepts sexual behaviour with children is immoral and he has stated he is grateful the AOI was a police officer and not a real child." Then further: "He understands engaging in sexual behaviour with children is harmful and morally wrong and there is no evidence to conclude he holds attitudes to condone or support sexual violence or child sexual abuse."