Elwdah v R

Court of Criminal Appeal (NSW)|2024-04-15|Before: Wright J, Chen J, McNaughton J

Before: Colefax SC DCJ File Number(s): 2022/303965

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mahdy Hasn Elwdah, pleaded guilty to a single offence of use a carriage service to groom another person with the intention of making it easier to procure a child (under 16 years) to engage in sexual activity contrary to s 474.27AA(1) of the Criminal Code 1995 (Cth). Between 19 September 2022 and 1 October 2022, the applicant engaged in five online conversations with an assumed online identity ("AOI") operated by the Child Exploitation Internet Unit of the New South Wales Police Force. In the first three conversations, the applicant detailed his fantasies about participating in sexual activity with a mother and daughter as well as indicating that he possessed disturbing types of pornography. He also engaged in explicit conversations about sexual intercourse with the AOI and her nine year old daughter. In the third conversation, the applicant said he wished to cease further contact with the AOI and expressed concern for her daughter. In the fourth and fifth conversations, the applicant continued to discuss engaging in sexual acts with the AOI and/or her daughter. In the proceedings on sentence, the Crown tendered a Corrective Services Case Note Psychology Report. The report stated that one of the available sex-offender programs could be completed in approximately three years in custody and approximately two years in the community. There was some discussion between the applicant's counsel and the sentencing judge as to the availability of rehabilitative programs in relation to the imposition of an Intensive Corrections Order. On 6 October 2023, the applicant was sentenced to a term of 2 years and 3 months' imprisonment. In accordance with ss 19AC(1) and 20(1)(b) of the Crimes Act 1914 (Cth), the sentence was suspended at the expiration of 12 months and, thereafter, the applicant was to be released on a recognizance release order. On 16 February 2024, the sentencing proceedings were re-opened pursuant to s 19AHA of the Crimes Act. The sentencing judge made orders purportedly correcting the original sentence orders by adding mandatory release conditions as required by s 20(1B) of the Crimes Act. The applicant appealed against his sentence on three grounds: Ground 1: The sentencing judge erred in failing to take into account the provisions of s 16A(2AAA) of the Crimes Act 1914 (Cth) and the sentencing discretion miscarried. Ground 2: The sentencing judge erred in his assessment of the objective seriousness of the offending. Ground 3: The sentence imposed was manifestly excessive in the circumstances of the case. The Court (per McNaughton J, Wright J and Chen J agreeing) granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicant, held: As to Ground 1 1. The objective of rehabilitation under s 16A(2AAA) of the Crimes Act must be taken into account on sentence in addition to the matters set out in s 16A(2) of the Crimes Act. The objective of rehabilitation is materially different to the s 16A(2)(n) consideration of the "prospect of rehabilitation": [43], [52]. Chan v R [2023] NSWCCA 206, referred to. 1. While a judge may comply with s 16A(2AAA) without directly referring to it, there must be other indicia demonstrating engagement with the section: [44]-[46]. Darke v R [2022] NSWCCA 52; Curle v R [2024] NSWCCA 117, distinguished; SR v R [2024] NSWCCA 43, applied. 1. The sentencing judge failed to have regard to the objective of rehabilitation as mandated by s 16A(2AAA) of the Crimes Act as: 1. the remarks on sentence made no specific reference to the section; 2. the discussion during the proceedings on sentence was confined to the availability of treatment but the ultimate duration of the recognizance release order was not long enough to accommodate the rehabilitative programs discussed; and 3. the original sentence orders failed to include the mandatory conditions for a person convicted of a Commonwealth child sex offence in accordance with s 20(1B) of the Crimes Act, which is indicative of a failure to consider the objective of rehabilitating the applicant at the time the recognizance release order was made: [45], [47]-[48]. R v A [2004] NSWCCA 292; RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 178 referred to. 1. As the mandatory consideration set out in 16A(2AAA) is engaged "when making the order", the sentencing judge failed to comply with the section and the sentencing discretion miscarried: [50]. As to resentence 1. Taking into account the time of 10 months and 3 days served as "exceptional circumstances" pursuant to s 20(1)(b)(iii), which displaces the statutory presumption of (further) immediate imprisonment, the applicant was released forthwith on recognisance subject to conditions: [78]-[80].

JUDGMENT

WRIGHT J: I agree with the orders proposed by McNaughton J for the reasons her Honour has given.
CHEN J: I agree with McNaughton J.
McNAUGHTON J: On 6 October 2023, Mahdy Hasn Elwdah ("the applicant") was sentenced by Colefax SC DCJ ("the sentencing judge") in the District Court of New South Wales for a single offence contrary to s 474.27AA(1) of the Criminal Code 1995 (Cth), that is, using a carriage service to groom another person with the intention of making it easier to procure a child under 16 years of age to engage in sexual activity.
The applicant had entered a plea of guilty in the Parramatta Local Court on 2 June 2023. After applying a discount of 25 percent for the plea of guilty, the sentencing judge imposed a sentence of imprisonment for a term of 2 years and 3 months. Pursuant to ss 19AC(1) and 20(1)(b) of the Crimes Act 1914 (Cth), the sentencing judge ordered that the sentence be suspended at the expiration of 12 months, and the applicant be admitted to a recognizance release order ("RRO"), without surety, in the sum of $500 on the condition that he be of good behaviour for 15 months.
On 16 February 2024, following an application by the respondent pursuant to s 19AHA of the Crimes Act to correct an error, the sentencing proceedings were re-opened. The sentencing judge made orders purportedly correcting the original sentence orders by adding mandatory conditions to the recognizance in accordance with s 20(1B) of that Act. The amended orders attached the mandatory conditions to the RRO and stated they were in force "for a period not exceeding two years". The orders made on 16 February 2024 were in the following terms: "1. In accordance with section 20(1)(b) and (1)(a)(i), the recognizance release order imposed by his Honour Colefax SC DCJ on 6 October 2023 be amended to read 'Convicted and sentenced to imprisonment for 2 years and 3 months but directed pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) that he be released on 5 October 2024 after serving 12 months upon entering into a recognizance release order self, in the amount of $500 without surety on the condition that he be of good behaviour for 15 months.' 2. In accordance with section 20(1B) of the Crimes Act 1914 (Cth), the recognizance release order imposed by his Honour Colefax SC DCJ on 6 October 2023 to be further amended to include the following mandatory conditions: a. The [applicant] be subject to the supervision of a probation officer appointed in accordance with the order; b. The [applicant] obey all reasonable directions of the probation officer; c. The [applicant] not travel interstate or overseas without the written permission of the probation officer; and d. The [applicant] undertake such treatment or rehabilitation programs that the probation officer reasonably directs. 3. That the Honourable Court specify that the conditions stated herein at paragraph [2] are in force for a specified period of time, not exceeding two years." (Emphasis in original.)
The applicant seeks leave pursuant to ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence.

The grounds of appeal

The applicant seeks leave to appeal against his sentence on three grounds: 1. The sentencing judge erred in failing to take into account the provisions of s 16A(2AAA) of the Crimes Act 1914 (Cth) and the sentencing discretion miscarried. 2. The sentencing judge erred in his assessment of the objective seriousness of the offending. 3. The sentence imposed was manifestly excessive in the circumstances of the case.

The offending

An Agreed Statement of Facts was tendered at the sentence hearing. The sentencing judge summarised those facts in the remarks on sentence at [3]-[13] essentially as follows.
The applicant was 22 years old when the offending began. Between 19 September 2022 and 1 October 2022, he engaged in five conversations via online services with someone whom he believed to be a 40 year-old woman with a nine year-old daughter with a username which implied a mother/daughter relationship. In reality, however, this was an Assumed Online Identity ("AOI") operated by investigators from the Child Exploitation Internet Unit ("CEIU") attached to the New South Wales Police Force.
The first online communication occurred on 19 September 2022. The applicant messaged the AOI on an online chat service and engaged in explicit conversations about having various forms of sexual intercourse with the AOI and her nine year-old daughter. He stated that he had fantasies about having sexual activity with a mother and daughter, and that he had a significant quantity of disturbing pornography, including child exploitation material.
The second conversation also occurred on 19 September 2022, but via Skype. The applicant again engaged in explicit conversations about sexual intercourse with the AOI and her nine year-old daughter. He also sent two pictures of himself to the AOI.
The third conversation occurred on 21 September 2022 via Skype. The applicant mentioned watching pornography involving underage girls and adult men. He also made sexual reference to the AOI and her daughter. He then stated: "I'm going to stop myself now for my own sake, plus you and your innocent daughters sake, we should stop being so dirty minded, this is just wrong, I hope you can see it as I do before you expose her to the dirty world so early. I will not share any of this to anyone you have my word, just I'm changing my mind about all this […] It is very sexy and hot topic this taboo thing. But the costs […] To the child development as it grows […] Is unfathomable".
The fourth conversation occurred on 25 September 2022 via Skype. During the short conversation the applicant said, "although I said I didn't want to do this anymore" then made further reference to engaging in sexual acts with the AOI and/or her daughter.
The fifth conversation occurred on 1 October 2022 via Skype. The applicant asked to meet with the AOI to engage in sexual activity with her before engaging in sexual activity with her daughter.
Between 6 October 2022 and 8 October 2022, the AOI sent the applicant messages on Skype. He did not respond.
On 12 October 2022, investigators from the CEIU arrested the applicant and executed a search warrant at his residence. A number of electronic devices were seized and later forensically examined. Nothing of interest was found by the investigators. Later that same day, under caution, the applicant participated in a recorded interview.

The proceedings on sentence

The Crown tendered material including: a signed Statement of Agreed Facts, a Sentencing Assessment Report prepared by the Parramatta Community Corrections Office, and a Corrective Services Case Note Psychology Report. This psychology report was stated to provide "an actuarial risk assessment and a comment regarding [the applicant's] eligibility for sex offender treatment programs within [Corrective Services NSW]". The report indicated it was limited by having no direct interview with the applicant. It included the following: "During his initial Police interview, [the applicant] conceded that his behaviour was 'shameful' and 'morally wrong'. During his [Sentencing Assessment Report interview] […], [the applicant] struggled to articulate the motivation or function of his behaviour. However, he indicated that he was seeking connections with others and intimated that he felt lonely and isolated in the lead up to the offending. He denied any sexual interests in children or possessing any child abuse material and described his behaviour as 'an act' that he put on to impress the woman, who he had assumed was sexually interested in children".
The applicant had no prior criminal history. He was unemployed, having taken a "break" from employment in October 2022. He lived with his parents, was single and had a limited history of social interactions. He had a prior significant history of gaming and reliance on gaming to connect with peers online.
The Corrective Services Case Note Psychology Report included the following under the heading "Recommendations and Intervention": "Should [the applicant] receive a custodial sentence, CSNSW [Corrective Services NSW] Custodial Case Management Unit will assess his eligibility and suitability for MISOP [Moderate Intensity Sex Offender Program]. It should be noted that the general time frame required for assessment, participation and to complete a custody-based program pathway is approximately three years. If [the applicant] is found unsuitable for MISOP, he will be supported by a Case Management Officer to identify alternative treatment pathways or activities relevant to the management of his risk of re-offending. MISOP is also available in the community and maintains the same program content and dosage as the custody based MISOP. Should [the applicant] receive a non-custodial sentence, he is recommended to be referred to CSNSW Psychology to assess his suitability for MISOP in the community. It should be noted that approximately two years is required to complete any community-based treatment programs and activities."
The applicant tendered the following documents in the proceedings on sentence: 1. a psychological report prepared by Jason Borkowski, dated 21 August 2023; 2. a letter signed by the applicant, dated 1 September 2023; and 3. three character references.
Mr Borkowski's report made recommendations for treatment options in a non-custodial and custodial setting.
The Crown's written submissions before the sentencing judge included the following passage: "Rehabilitation - s 16A(2)(n) & s 16(2AAA) [sic] Crimes Act [40] […] [W]here general deterrence is the primary sentencing consideration, mitigating factors such as prospects of rehabilitation, must be given less weight than they would ordinarily be given. This is not to say that steps taken by an offender towards rehabilitation should not be taken into account in determining the appropriate sentence, but deterrence and denunciation are primary considerations in sentencing for these types of offences. Even a finding of good prospects of rehabilitation cannot preclude the imposition of a stern sentence. As stated by Simpson J in R v Booth: While I do not dissent from the importance of achieving prevention of further offences by such means, it is not the only matter to be considered. As I have made clear, the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. - So also is denunciation of those who engage in this callous and predatory crime. [41] Whether an offender remains sexually attracted to child abuse material at the time of sentence is relevant to prospects of rehabilitation and risk of reoffending. [42] Although the Court may find that the [applicant] has some prospects of rehabilitation, given his familial ties, two factors would weigh in favour of a finding that the [applicant] has guarded prospects of rehabilitation: (a) The [applicant's] psychologist assessed his prospects of rehabilitation as being conditional upon his receiving focussed clinical attention on certain risk factors, and there is no evidence at the time of preparation of these submission indicating that the [applicant] has taken steps towards undertaking, or agreed to undertake, such treatment; (b) The SAR has assessed him as high risk of reoffending as he has scored at an 'above average' STATIC-99R score. [43] If the Court accepts the Crown's submission in relation to the [applicant's] limited insight into offending and lack of genuine remorse and contrition, then it follows that the Court ought to find that the [applicant] has guarded prospects of rehabilitation. [44] Any additional material regarding the [applicant's] mental and physical condition can be addressed in oral submissions." (Footnotes excluded. Emphasis in original.)
The applicant urged the Court to impose an Intensive Correction Order ("ICO") noting that this particular offence provision was not specifically prescribed within s 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as an offence where such a disposition was unavailable. At the hearing, the applicant's submissions centred around an attempt to show "exceptional circumstances".
It appears that the applicant's representative was making such an attempt because the Crown had submitted it was necessary to find exceptional circumstances before an ICO could be ordered. The Crown's submission was incorrect. "Exceptional circumstances" is a phrase to be found within s 20(1)(b)(iii) of the Crimes Act relating to the need for the Court to be satisfied of exceptional circumstances for an offender to be released on a recognizance immediately rather than be subject to a specified term of imprisonment prior to release on recognizance. As set out by Dhanji J (with whom Harrison CJ at CL and Button J agreed) in R v Bredal [2024] NSWCCA 75 at [55], s 20(1)(b)(iii) does not apply to a sentence to be served by an ICO.
In any event, the applicant was attempting to show "exceptional circumstances" on the basis of a combination of factors. It was submitted first that the applicant's young age came with "an opportunity for rehabilitation". The following exchange occurred: "[APPLICANT]: I appreciate he's 22 years of age. The insight into the effects on children, the willingness to engage in treatment, his absence of prior convictions and the isolated nature of the conduct, and the fact that, as I understand it, the treatment that will be offered to [the applicant] in custody will be the same program that will be offered to him in the community. And that's set out in the case note. It will take three years to complete in custody and two years to complete in the community. And self-evidently, there will be more support available in the community in addition to that program. And, in my submission, those matters tend, in an exceptional way, to a sentence that should be - can be tailored towards rehabilitation. […] HIS HONOUR: […] One thing I'll accept from the circumstances I want to hear both of you on and crystalised in my mind, Mr McAuliffe, when you were pointing out to me something that I had overlooked or hadn't fully appreciated in the community corrections report. That is that the same program can be offered to the offender. There is the program if the offender can access it if he has three years plus in custody. He can access it for two years if he's in the community. I haven't turned my mind at the moment to what, if I imposed a term of imprisonment what it would be, but if considering his age and other things I came in at a figure under three years that would mean that in custody he would not have access to the program. Now, would that be an exceptional circumstance so far as the community is concerned? At his age of early 20s nipping the problem in the bud, to use the vernacular, I don't normally like to do that madam Crown but I'm going to slip into it just for the moment to try to make the point. Would you say that that was an exceptional circumstance, Mr McAuliffe, or is that such a far fetched notion that it shouldn't entertain me as being a potentially appealable area? […] [APPLICANT]: But I don't think that I can put it as high as if he receives a sentence of less than three years he'll be ineligible, your Honour. […] [CROWN]: Only briefly, that the opinion provided by the psychologist indicates that there is no certainty as to whether or not he will be eligible for the MISOP program, and that the timeframe provided is an estimation at best. No doubt there will be other factors relevant to the time required to complete that. The Crown would submit that those estimations should be regarded with some degree of caution and not to be taken as [a] prescriptive timeframe that all potentially eligible candidates would take to complete such a program. As pointed out in both those paragraphs, the second last paragraph and the third paragraph, at the second last paragraph it says that, 'If he is found unsuitable for that program there will be support for him to find alternative treatment pathways and the same is said if he were to be released into the community'. So, the Crown's submission [is] that potential pathway or the potential eligibility to be accepted as part of this program should not weight [sic.] that heavily in terms of assessment of exceptional circumstances."

The remarks on sentence

The sentencing judge found the offending to be slightly below the mid-range of objective seriousness, a significant aggravating factor being that the intended victim was under 10 years of age.
The sentencing judge was unable to make any finding, either in favour of, or adverse to, the applicant, as to why he did not respond to the last two communications, or why there were no further communications between him and the AOI before his arrest.
His Honour noted that the plea of guilty was an unambiguous admission that the communication was done with the intent of making it easier for the applicant to procure a person, whom he believed was under 16 years of age, to have sexual activity with him, that is "not to engage in 'role play'" as he had told the police. It was also noted that the Sentencing Assessment Report concluded that the applicant had minimised his role in the communications, that he had denied having a sexual interest in people under 18, and that he had asserted the communications had not been "a real thing" and that he had not been talking to "real people". The sentencing judge noted that those statements were not consistent with the plea of guilty. It was noted that the ultimate assessment was that the risk of the applicant re-offending was above average.
It was further found by the sentencing judge that the applicant had denied any ongoing sexual interest in children in his letter dated 1 September 2023, and in the history given to the psychologist, he denied "ever accessing or having an interest in child sexual abuse material, or any other deviant or inappropriate sexual interests". The sentencing judge concluded: "For the avoidance of doubt, by having regard to your plea; the totality of the contents of the communication; and the contents of those documents I have referred to I am satisfied, beyond reasonable doubt that you have a sexual interest in pre-pubescent female children."
In the course of noting the applicant had had limited intimate personal relationships, the sentencing judge quoted from the psychologist's report which stated: "…[your] prospects of rehabilitation are positive if [you] were to engage in any appropriate course of psychological treatment to address the identified criminogenic needs associated with [your] offending. Specifically [your] low self-worth, negative self-perception, and perceived inadequacies, [your] interpersonal relationship skills, and [your] anxious symptomatology should all be the focus of clinical attention in a course of psychological treatment."
The sentencing judge continued: "That expression of opinion, however, includes a statement that one of the protective issues against you re-offending was that you did not endorse attitudes consistent with, or supportive of, child sexual abuse. This, however, is not consistent with the content of the five conversations constituting the offending conduct and, in my opinion, significantly undermines the weight to be given to that expert's report, at least on the topic of rehabilitation."
His Honour noted the applicant's lack of criminal history and stated that this consideration "is of reduced (but still some) significance". The sentencing judge was not persuaded that there was genuine remorse. Prospects of rehabilitation were found to be guarded.
The applicant's early plea of guilty, entered in the face of what the sentencing judge noted was a strong Crown case, entitled him to a "meaningful reduction" of 25 percent on the sentence which would otherwise have been imposed.
Engaging with s 20(1)(b) of the Crimes Act (albeit the disposition of the matter under this section had not been the focus of the applicant's submissions), the sentencing judge stated: "In all the circumstances, I am satisfied that no sentence other than a sentence of imprisonment is appropriate. In this context, I am specifically not satisfied that there are exceptional circumstances - such as your age; lack of prior convictions; or COVID-19 issues - which individually, or taken together, displace the statutory presumption of immediate imprisonment. Furthermore, I am not satisfied that an intensive correction order is an appropriate means of serving the term of imprisonment: community safety, being the paramount consideration, would not be met if such an order were made." (Emphasis added.)

Ground 1

The applicant contends that the sentencing judge erred in failing to have regard to the objective of rehabilitation as required by s 16A(2AAA) of the Crimes Act and failed to engage with the relevant factors which may inform that objective.
The applicant submitted that the sentencing judge only referred to rehabilitation in the remarks on sentence by noting the following: 1. the opinion of the forensic psychologist, Mr Borkowski, was based partly on a statement made by the applicant that he "did not endorse attitudes consistent with or supportive of child sexual abuse", which was not consistent with the content of the five conversations, and therefore undermined the weight to be given to the expert's report, at least on the topic of rehabilitation; 2. the applicant's prospects of rehabilitation were guarded; and 3. "[s]pecific deterrence, denunciation, punishment and the protection of the community - as well as [the applicant's] rehabilitation - are also considerations which are fully engaged".
The sentencing judge was satisfied "that no sentence other than a sentence of imprisonment is appropriate" and was "specifically not satisfied that there [were] exceptional circumstances - such as [the applicant's] age; lack of prior convictions; or COVID-19 issues - which individually, or taken together, displace the statutory presumption of immediate imprisonment." (Emphasis added.)
The applicant submitted 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, in the community and in custody.
The respondent conceded that it may be open to the Court to find that Ground 1 is made out, but that on the other hand, there may be sufficient indications in the exchange between the parties at the sentence hearing that the sentencing judge did give sufficient regard to the objective set out in s 16A(2AAA).
In oral submissions, the respondent stated: "The exchange that's reproduced in both [parties'] written submissions demonstrate that his Honour engaged in a considered and considerable exchange as to the treatment that would be available to the applicant were he to serve a period in custody or be released immediately on his own recognisance. His Honour was mindful of the objective of rehabilitation and explored how that objective could actually be executed or manifested on the type of sentence imposed. Once again be it in custody or in the community and in that regard was also mindful of what may flow if the term of imprisonment was less than three years".
In any event, the respondent submitted that if error were found, no lesser sentence is warranted.

Consideration

Section 16A(2AAA) reads as follows: 16A Matters to which court to have regard when passing sentence etc. - federal offences […] (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order - to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non‑parole period - to include sufficient time for the person to undertake a rehabilitation program.
It can be observed that the "objective of rehabilitation", the subject of s 16A(2AAA), is a matter which must be taken into account in addition to those set out in s 16A(2), noting that the non-exhaustive list of matters in s 16A(2) includes subs (n): the prospect of rehabilitation of the person. As observed by the author of the publication produced by the Office of the Commonwealth Director of Public Prosecutions, Sentencing of federal offenders in Australia: a guide for practitioners (7th ed, 2024), a purpose of s 16A(2AAA) is to encourage sentencing courts to fix a sufficient period or minimum period in custody that enables the offender to complete a custodial sex offender treatment program, which typically takes between 18 months to 2 years. As also observed, s 16A(2AAA): "is not expressed as displacing or overriding the requirement that the sentence must be of a 'severity appropriate in all the circumstances' (s 16A(1)). While the requirements of s 16A(2AAA) must be taken into account (where applicable) in the instinctive synthesis of relevant considerations, the subsection does not permit or require a court to impose a sentence which is disproportionately severe in pursuit of the objective of rehabilitating the offender". (Emphasis in original.)
In Darke v R [2022] NSWCCA 52 at [31]-[36], error based on a failure to comply with the section was conceded. In that case, Lonergan J (with whom Johnson and Dhanji JJ agreed) observed that the sentencing judge made no reference at all to s 16A(2AAA), and nothing in the remarks suggested that he had applied focus to the mandatory consideration of the objective of rehabilitation and to considering whether it was appropriate to impose any conditions about rehabilitation or treatment options and in determining the length of any sentence or non-parole period. Justice Lonergan accepted the respondent's submission that "the remarks on sentence would need to demonstrate how this consideration has been undertaken and applied and they do not do so". The effect of this submission was that "a mandatory requirement in imposing the sentence [had] been missed".
In the present case, the sentencing judge did not refer to s 16A(2AAA) in the remarks on sentence. Whilst a judge may comply with s 16A(2AAA) without directly mentioning the section, if so, there must be other indications, discernible from the remarks on sentence, demonstrating that there has been engagement with the section: see SR v R [2024] NSWCCA 43 at [2] and [45].
I note that in Curle v R [2024] NSWCCA 117, the sentencing judge had specifically referred to s 16A(2AAA), in contrast with the present case. Justice Stern (with whom Bell CJ and Button J agreed) stated at [52]: "Subsection 16A(2AAA) does not require that the court identify how the period of imprisonment imposed takes into account the objective of rehabilitation. Nor is it inconsistent with s 16A(2AAA) to impose a custodial sentence in circumstances where this may have an adverse impact upon an offender's rehabilitation."
In the present case, whilst there was discussion in the course of the hearing about the treatment available both in custody and in the community, it was plainly not in the context of s 16A(2AAA). Thus, even if, as the respondent argued, it was permissible to examine the reasons of the sentencing judge in this way (as to which, there must be some considerable doubt: see R v A [2004] NSWCCA 292 at [12], citing R v Kain [2004] NSWCCA 143 at [56]; RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 178 at [19]), it does not aid the respondent's argument that the "discussion" demonstrated that there had been compliance with the terms of the section. Furthermore, when the sentence was first delivered, not only did the remarks on sentence not refer to s 16A(2AAA), the length of the period of 12 months in custody prior to release on recognizance was clearly not long enough to accommodate any rehabilitative program as had been discussed during the course of the sentencing proceedings. The discussion during the sentence hearing did not contemplate any rehabilitation program of less than two years (in the community) and three years (whilst in custody). That tends to confirm that the terms of s 16A(2AAA), and s 16A(2AAA)(b) in particular, were not considered.
Furthermore, in the remarks on sentence, while the sentencing judge addressed the issue of not being satisfied of "exceptional circumstances" which would displace the statutory presumption of immediate imprisonment, thereby apparently (correctly) referring to s 20(1)(b)(ii), his Honour failed to include the mandatory conditions for a person convicted of a Commonwealth child sex offence as set out in s 20(1B). As noted above, those mandatory conditions were only included after an application to the sentencing judge, post-sentence, by the respondent. This also indicates that the sentencing judge did not consider, at the time he originally made the RRO, the objective of rehabilitating the applicant.
As noted above, the sentencing judge was not satisfied that an ICO was an appropriate means of serving the term of imprisonment, noting that community safety - being the paramount consideration - would not be met if such an order were made. I further note, for completeness, that it is not possible for the custodial portion of an RRO be served by way of an ICO: see R v Medalian (2019) 133 SASR 50 at [16] in which it was observed that the "RRO regime prescribed in Part IB of the Crimes Act is exhaustive and leaves no scope for any State sentencing options to be imposed in addition to a RRO."
As set out above, at the time the RRO was made, the sentencing judge failed to have regard to the objective of rehabilitation. Given the temporal constraints set out within s 16A(2AAA) mandating that regard is to be had to that objective, relevantly, "when making the order", it is plain that the sentencing judge failed to comply with the section and the sentencing discretion miscarried.
It can be noted that the sentencing judge was not assisted on this point by either of the parties in the course of the oral submissions on sentence. Further, the Crown's written submissions before the sentencing judge were also of limited assistance in relation to s 16A(2AAA). Whilst s 16A(2AAA) was dealt with in two paragraphs in a section of the submissions headed "Sentencing Principles in Relation to Commonwealth Child Sex Offences", there was no subheading drawing attention to s 16A(2AAA). Further, the section on rehabilitation, which appeared later in the submissions, was headed "Rehabilitation - s 16A(2)(n) & s 16(2AAA) [sic] Crimes Act". The latter reference to the section was incorrect and would have been of no assistance to a busy District Court judge navigating the multiple similarly named sections within Pt 1B. Moreover, the content of that part of the submissions concentrated only on prospects of rehabilitation under s 16A(2)(n) and provided no assistance in relation to s 16A(2AAA). It did not cross-reference the earlier portion of the submissions which dealt with that latter section in some detail.
There is a material difference between "the prospect of rehabilitation of the person" in s 16A(2)(n) and the notion of having regard to "the objective of rehabilitating the person" in s 16A(2AAA): see Chan v R [2023] NSWCCA 206 (per Kirk JA at [9] and Adams J at [109]) (where a similar distinction was drawn albeit in a slightly different context).
In addition, whilst it is acknowledged that s 20(1B) was referred to, in terms, within the Crown's written submissions before the sentencing judge in the context of conditions that must attach to an RRO for a child sex offender, there was no reference in that section of the submissions to s 16A(2AAA) and the obligation to have regard to the objective of rehabilitating the person.
In submissions to this Court, the applicant and the respondent pointed to further problems with the purported correction of the RRO on 16 February 2024. First, the order failed to stipulate the duration of the conditions, instead simply repeating the wording of the orders sought, namely "for a specified period of time, not exceeding two years". For the order to have meaning, the sentencing judge should have specified the duration of the operation of the conditions when executing the Short Minutes of Order. Second, if "not exceeding two years" is to be interpreted as "two years", this means that the conditions are set to last for a period beyond the length of the RRO which is 15 months. Third, and more substantively, adding the compulsory conditions after the initial sentence was pronounced means that the sentence to which the applicant became subject following the s 19AHA orders was different to that originally pronounced, and arguably changed the "severity" of the order. Section 16A(1) provides that a sentence or order must be "of a severity appropriate in all the circumstances of the offence". The obligation to impose mandatory conditions pursuant to s 20(1B) was relevant to the determination of the appropriate severity of the sentence and any associated orders. As such, the sentencing judge failed to take into account material relevant considerations.
These criticisms have cogency.
Ground 1 is made out. As the sentencing discretion miscarried in the manner identified in Ground 1, and for the additional reasons identified immediately above, it is necessary to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. The remaining grounds of appeal will be considered in light of the resentencing exercise.

Submissions on the other grounds to be treated as submissions on resentence

Applicant's submissions

It was clarified by the applicant at the appeal hearing that there was no issue with the sentencing judge's assessment of the offending, including that it was appropriately characterised as "slightly below the mid-range of objective seriousness", and that if the Court proceeded to resentence, no different finding was sought. It is also noted that it was conceded before the sentencing judge that the s 17A Crimes Act threshold had been crossed. Given the time served, it was contended in oral submissions that an RRO with a lesser term of imprisonment would be an appropriate disposition.
It is further noted that the applicant does not challenge the sentencing judge's findings regarding the applicant's likelihood of re-offending, his prospects of rehabilitation or his remorse. Rather, on resentence, the applicant submits that the Court would take a different view to the sentencing judge on two matters: first, the applicant's lack of antecedent history and second, the significance of the applicant's cessation of offending, when viewed in the context that this was an isolated offence committed by a young man.
The applicant also referred to statistics for similar offences, noting that there were no other examples of anyone being sentenced for an isolated offence under s 474.27AA(1) of the Criminal Code. It was contended that other similar offences with the same maximum penalty attracted lesser sentences where there was a single offence committed by an offender with no prior offending.
The applicant submitted that although it was serious offending, particularly because of the age of the intended victim, being nine years of age, there were other characteristics, including the following, which would lead to a finding that the offence was a less serious example:

there were five conversations in total over a period of two weeks which were limited in their length, but which involved varying degrees of sexual degradation as topics;
there was limited persistence on the part of the applicant but at one stage there was a desire on his part to desist from engaging in the offending behaviour and an actual cessation prior to the intervention of the authorities;
there was no development of the future activity;
the future activity was limited in nature, albeit serious;
there were limited inducements and no evidence the applicant was able to fulfill any expected inducement;
the victim was not a real person; and
there was limited planning or sophistication and no hiding of identity.

It was further submitted that the applicant had a relatively strong subjective case given his plea of guilty, his age, his lack of antecedents, and his work history. It was contended that even though less weight might be given to good character given the type of offending in question, it was still a significant factor which should attract some leniency.
Finally, it was suggested that the sentencing judge had essentially double counted the issue of the intended victim's age. This argument was developed by pointing to the reference in the remarks to the "significant aggravating factor" of the age being set out after the assessment of objective seriousness.
The applicant contends that, when regard is had to the applicant's age at the time of offending, the lack of any prior history, the factual matrix of the offending, together with taking into account the objective of the rehabilitation of the applicant, the Court would impose a lesser sentence.

Respondent's submissions

The respondent contends that the Court should disregard the statistics, given they do not provide sufficient detail to indicate if the cases are comparable, and there are none available for the precise provision for which the applicant has been sentenced. Accordingly, it was submitted, no meaningful guidance can be derived. Reference was made to R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28] and [49], in particular where it was noted by Bell and Gageler JJ 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." Given this offence provision was only enacted in 2020, no useful statistical pattern had yet emerged.
As noted above, the respondent contended that if the applicant were to be resentenced no lesser sentence was warranted.
The respondent pointed to the maximum penalty of 15 years' imprisonment, the seriousness of the offending involving communications attempting to engage with the AOI and her daughter, including sexual activity with the AOI in the company of her daughter. The number and nature of the communications were important, given they included the graphic description of sexual acts which the applicant wished to engage with the AOI's daughter over the course of two weeks and five conversations. The fact that the communications did not involve real people was not a mitigating factor.
The respondent contended that while the applicant was 22 years old at the time of the offending and 23 years old at sentence, the offending was not substantially influenced by his relative youth. Whilst rehabilitation is an important consideration, exemplified by the introduction of s 16A(2AAA), and the evidence of Mr Borkowski highlighting the need for the applicant to receive treatment, that consideration ought not give way to the need for general deterrence which is the primary sentencing consideration for offences relating to the sexual abuse of children.
The respondent argued that the applicant's subjective circumstances were unremarkable. His personal circumstances were loving and supportive, and he had a meaningful work history. He did not suffer from physical or intellectual disabilities, nor did he have issues with drugs, alcohol or gambling. He had limited intimate personal relationships. He had not expressed genuine remorse given his failure to fully accept the criminality of his conduct. That in part was shown by his failure to commence psychological counselling prior to being sentenced. His prospects of rehabilitation were guarded.

Resentence

The applicant tendered material to be taken into account on resentence. An affidavit from the applicant included an outline of the stress he felt in custody, in part resulting from persistent weekend lockdowns for half of Saturday and all of Sunday, as well as his dietary requirements. He indicated that, as he has had time to reflect on his conduct, he finds what he did "disgusting and unacceptable", and that he feels he is a different person now. An affidavit from his solicitor indicated that he had successfully completed some courses in jail and had no custodial disciplinary charges. A further affidavit from the applicant indicated that he is willing to undertake a sex offender treatment program, but that he has been informed that no such program is available to him in custody. He further indicated that if he were to be given a sentence to be served in the community, he agrees to see an appropriately qualified medical professional who can assess him for a Mental Health Treatment Plan and refer him to a psychologist for appropriate treatment.
As to the question of the significance of the cessation of conduct, it can be noted that the facts of this case can be distinguished from the facts in Bredal, a decision handed down after this appeal was heard. In Bredal, the Court determined that it was open to find the offender (the respondent to that appeal) ended the contact by making an excuse as to why he could not meet the AOI. That was regarded as "significant", as was his non-committal final message. In contrast, in this case, it can be observed that there were pauses of several days in between some of the sessions of active engagement, and the final messages from the applicant indicated an ongoing sexual interest in the AOI and the child. Given the highly sexualised content of the last two messages sent by the applicant with the continued reference to the child, and the pattern of the offending, I cannot positively find that the applicant had voluntarily ceased his conduct. I adopt the finding of the sentencing judge that it is not possible to determine either way whether the applicant voluntarily ceased his conduct.
As to the applicant's age, this was not the type of offending which was affected by youthful exuberance or a lack of maturity. To the contrary, this was quintessentially adult offending of unambiguous seriousness which was recognised by the applicant at the time. It took place over a period of many days. As to the lack of criminal history, whilst it is of some significance in matters of this type, it must be weighed against other important considerations.
I otherwise adopt the sentencing judge's findings as to the objective and subjective factors relevant to the resentencing of the applicant, including those concerning the minimisation of the offending by the applicant, his lack of genuine remorse, and his limited insight. I am not persuaded that there was any double counting in relation to the age of the intended victim of the offending. That there was no real child involved does not reduce the moral culpability of the offending, nor the significance of general and specific deterrence. However, the harm caused by the offending is arguably reduced which may affect the appropriate level of punishment (Crimes Act, s 16A(2)(k); Bredal at [114]).
As to the statistics put before the Court, they are of very limited value for the reasons referred to by the respondent: see also The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [25].
The significant matter on resentence which is most influential is the need to comply with s 16A(2AAA) by having regard to the objective of rehabilitating the applicant. It is clearly in the interests of the applicant and the community that every effort be made to rehabilitate him. It can be noted that, to date, the applicant has not engaged in any treatment directed at addressing his sexual interest in children and it is clear from the evidence tendered on resentence on behalf of the applicant that he is prepared to engage in treatment.
The applicant put to the Court that an appropriate disposition was a recognizance with an imprisonment component of less than that imposed by the Court below, with the applicant then to be released on a two-year recognizance, subject to the mandatory and additional conditions set by the sentencing judge.
This submission was made noting that, by the time the matter was argued before the Court, the applicant had already served 6 months and 9 days in custody, and by the time this judgment is delivered a further 3 months and 25 days will have passed.
In oral argument, the respondent fairly acknowledged the length of time served "changes the dynamics", and although the principal position was that no lesser sentence was warranted, did not cavil with the disposition proposed by the applicant.
The starting date of an RRO cannot be backdated to take into account the 10 months and 3 days of custody already served in relation to the offence as would otherwise be permitted if it were a sentence with a non-parole period: s 16E of the Crimes Act. However, in all the circumstances, I am satisfied that the time served can properly be regarded as "exceptional circumstances" pursuant to s 20(1)(b)(iii) which displaces the statutory presumption of (further) immediate imprisonment. Given the 10 months and 3 days already served in full-time custody, I am of the view that in the particular circumstances of this case, involving a relatively young offender, who pleaded guilty to a single offence committed over a confined period of time, an RRO with no further full-time custody but which allows sufficient time for rehabilitative treatment is the appropriate disposition.
Finally, I note that although the end date of the proposed new RRO would extend beyond the original end date, given part of the proposed sentence is that the applicant would be released forthwith from full-time custody, I am of the view that this disposition is "less severe" in terms of s 6(3) of the Criminal Appeal Act.
Accordingly, I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Colefax SC DCJ on 6 October 2023, as amended on 16 February 2024, and in lieu thereof impose the following sentence: 1. The applicant is sentenced to imprisonment for 2 years but the Court orders the release of the applicant under s 20(1)(b) of the Crimes Act 1914 (Cth) forthwith upon the applicant giving security without surety, by recognizance in the amount of $500 on the condition that he will be of good behaviour for 2 years. In addition, he will over a period of 2 years comply with the following conditions: 1. The applicant will be subject to the supervision of a probation officer appointed in accordance with the order; 2. The applicant will obey all reasonable directions of the probation officer; 3. The applicant will not travel interstate or overseas without the written permission of the probation officer; 4. The applicant will undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2024

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