R v Davis [2023] NSWDC 651

District Court New South Wales

Medium Neutral Citation: R v Davis [2023] NSWDC 651 Hearing dates: 25 September; 6 October 2023 Date of orders: 12, 13 December 2023 Decision date: 12 December 2023 Jurisdiction: Criminal Before: Tupman DCJ Decision: 1. Offender is convicted. 2. Offender sentenced to an aggregate term of imprisonment of 20 months. 3. Offender released immediately on a recognizance release order for a period of 2 years in the sum of $500 without surety and with conditions. Catchwords: CRIME – sentence – sequence 3 – use carriage service to procure person under 16 years – s474.27AA(1) Criminal Code Act 1995 – sequence 4 – use carriage service to transmit indecent communication to person under 16 years – s474.27A(1) Criminal Code Act 1995 OFFENCE – Police Child Exploitation Internet Unit – conducting covert online duties – social network website chatiw.com – used assumed online identity – 40 year old woman who purported to have nine year old daughter – offender initiated conversation with CEIU16 – sequence 3 – six separate conversations between 22 June and 27 July 2022 – sequence 4 – offender sending picture holding his penis to fictitious child OBJECTIVE SERIOUSNESS – no real child involved – not a mitigating factor – decreases overall objective criminality but does not reduce the offender's moral culpability – immediate term of imprisonment ordinarily warranted in absence of exceptional circumstances – Court must take into account age and maturity of person – construction of s474.29AA(1)(b) – not accepted to operate as mandatory aggravating factor on sentence where a fictitious child – sequence 3 – middle range – sequence 4 – less serious SUBJECTIVE CASE – aged 47 – stable de facto relationship with partner for 26 years – two daughters aged 20 and 13 – prior good character – post-arrest diagnosis of autism spectrum disorder – pre-existing mental illness – NDIS plan with disability support – offending was directed to his own sexual gratification – autism spectrum disorder played some part – accept some involvement was a function of social isolation and loneliness – ongoing interest in similar matters for five years – undertaken treatment following arrest – risk of reoffending relatively low – genuine remorse and contrition DELAY – 9 months between charging and committal for sentence – committal inevitable – unnecessary mentions in Local Court adding to extraordinary workload – no substantive difference between original charges and charges for sentence – system fault – delay in District Court exacerbated by wildly inaccurate estimates of sentence – flow on effect to administration of Court and adverse effect on others awaiting sentence SENTENCE – general and specific deterrence – 25% discount – utilitarian value of guilty plea – partial accumulation – totality – aggregate sentence of imprisonment – rejected accused submission that s474.27AA offence open to be served by way of ICO because not specifically referred to in s 67(2)(e) Crimes (Sentencing Procedure) Act 1999 – exceptional case – aggregate term of imprisonment with immediate recognizance release order Legislation Cited: Crimes Act 1900 (NSW): s 66EB Crimes Act 1914 (Cth): ss 16A, 20AB, 19AC, 21B Crimes (Sentencing Procedure) Act 1999 (NSW): s 67 Criminal Code Act 1995 (Cth): ss 474.27AA(1), 474.27A(1), 474.28, 494.29AA Criminal Procedure Act 1986 (NSW): s 75 Cases Cited: Burton v R [2020] NSWCCA 127 Chenhall v R [2021] VSCA 175 R v De Leeuw [2015] NSWCCA 183 R v Ebejer [2020] NSWDC 475 R v Gifford [2016] NSWCCA 302 R v Hare [2020] NSWDC 127 R v Kristensen [2018] NSWCCA 189 Category: Sentence Parties: Rex (Crown) Cameron Davis (Offender) Representation: Counsel: K Fitzgerald (Crown) S Buchen SC (Offender)