R v Blick

R v Blick - [2024] NSWDC 569 - NSWDC 2024 case summary — Zoe

[5]

Sentencing considerations in a case involving a mandatory minimum head sentence

When imposing sentence for a Commonwealth offence, the Court must sentence the offender to a sentence that "is of a severity appropriate in all the circumstances of the offence": s 16A(1) of the Crimes Act 1914 (Cth) ("Crimes Act"). To arrive at such a sentence, the Court must have regard to the factors in s 16A(2).
As is well known, s 17A(1) provides that the Court can only sentence an offender to imprisonment if it is satisfied that no other sentence is appropriate in all the circumstances of the case. Ordinarily, that is a sentencing touch stone, although for offences of this type it has long been considered that usually an immediate term of imprisonment will be appropriate.
The s 17A(1) principle gives way in the case here, because s 16AAB provides that there is a mandatory minimum sentence.
The High Court of Australia has recently considered the operation of s 16AAB generally and in particular how it interrelates with s 17A(1) in Hurt v The King; and Delzotto v The King [2024] HCA 8 ("Hurt and Delzotto"). Even more recently, the Court of Criminal Appeal in NSW has considered and explained the High Court's decision, in particular dealing with its practical application in McGregor v R [2024] NSWCCA 200 ("McGregor").
The High Court determined that a statutory mandatory minimum should be approached in the same way as the statutory maximum penalty, in that they both fix "ends" of the sentencing yardstick referred to in Markarian v The Queen (2005) 228 CLR 357. This has two consequences. First, it confines the power of a sentencing Court, so as to prohibit it from imposing a sentence less than the statutory minimum - subject only to the statutory exception of s 16AAC, and second, it sets the beginning of the yardstick (or bottom of the range), against which offending can be assessed, and within which a Court is to exercise its sentencing discretion: Hurt and Delzotto at [90].
What this must mean logically is that, as a yardstick, the mandatory minimum imposes an increased starting point for the appropriate term of imprisonment for an offence in the least serious circumstances and operates to increase the appropriate term of imprisonment generally for that offence: Hurt and Delzotto at [54].
Obviously enough, the introduction of s 16AAB, as construed by the High Court, will have the effect of rendering obsolete to a large degree any "comparative" sentencing that occurred prior to the amendments, imposing a mandatory minimum sentence.
Section 16AAC(2) and (3) provide a statutory exception or mechanism that allows a sentencing Court in confined circumstances to impose a sentence less than the mandatory minimum. The outer limits of those circumstances and how they work in practice are identified and explained in McGregor. Those circumstances are where a Court considers that adequate recognition cannot be given to an offender's plea of guilty or cooperation with authorities without going below the mandatory minimum head sentence.
Section 16AAC(2) and (3) permit a reduction to the minimum term of 25% to accommodate any reduction as a consequence of a guilty plea, pursuant to s 16A(2)(g) of the Crimes Act, and up to a further 25% to accommodate any recognition of the offender's cooperation of the kind specified in s 16AAC(2)(b) of the Crimes Act, where the level of offending prevents these discounts being applied.
In Hurt and Delzotto at [104], the High Court explained that, for s 16AAC(2) and (3) to be given proper effect, it will be "legitimate" for a Court to first, determine a prima facie sentence, by reference to the prescribed minimum and maximum yardstick, prior to considering any discounts. What I consider this means is that the appropriate process or mechanism will be for the sentencing Court to first engage in an "instinctive synthesis" of all relevant factors, apart from the plea of guilty per se and any cooperation, and then proceed to give separate consideration to the s 16A(2)(g)-(h) factors, and then determine whether the s 16AAC exception is engaged, so as to impose a sentence below the prescribed mandatory minimum term.
McGregor construes s 16AAC so as to limit any reduction below the statutory minimum to 50%: McGregor at [23]. This has the practical effect that the ultimate floor on any sentence will be 50% of the mandatory minimum.

[7]

Guilty plea: s 16A(2)(g)

The Court must take into account the fact and timing of the guilty plea, and the degree to which the fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence. In doing so, the following considerations apply: 1. The NSW mandatory discount scheme does not apply to federal offences. 2. The fact of the plea may be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility, and/or a willingness to facilitate the course of justice. 3. The strength of the Crown case may be taken into account in assessing the subjective value of a guilty plea, including whether an offender's plea was simply "recognition of the inevitable". It follows that a guilty plea entered in the face of a strong Crown case should not be afforded as much weight as a plea entered in circumstances where the Crown case is weak. 4. The Court must also have regard to the utilitarian or objective value of a guilty plea, even in the absence of any subjective value. 5. In the interests of transparency, it is desirable for the sentencing judge to specify any discount given for a guilty plea, although it is not necessary.
As I have said, applying Hurt and Delzotto, the proper approach to a sentence involving a mandatory minimum is to leave any arithmetical discount for a guilty plea until after all other factors have been considered, so as to arrive at a starting point. However, to the extent that a plea is evidence of actual remorse or has relevance to any of the other relevant factors, such as prospects of rehabilitation and the like, it is to be taken into account at that first stage of the process as part of the "instinctive synthesis". It seems to me that care must be taken in the application of the law here as there is a real danger of double counting.
The Offender entered a plea of guilty in the Local Court on 7 December 2022. The Crown accepts that this plea was made at an early opportunity and resulted in a utilitarian value to the community by avoiding the need for a trial.
The Crown submits however, that the fact of a guilty plea cannot, without more, be taken as evidence of contrition in circumstances where that plea was entered in the face of a relatively strong Crown case. I agree.
I consider the Offender is entitled to the full discount of 25% for the utilitarian value of the plea as would be available under the NSW regime. I come to this conclusion notwithstanding that I do consider the plea was in the face of a strong Crown case. However, I am not satisfied, on the balance of probabilities, that the plea, of itself, represents any evidence of contrition, remorse, or insight.

[8]

General and specific deterrence and the need to ensure the Offender is adequately punished: s 16A(2)(j)-(k)

General deterrence is the paramount factor in sentencing for offences of this nature. These crimes are abhorrent and a clear and consistent message needs to be sent by the Courts, so as to make clear to other like-minded people within the community that offenders will be met with condign punishment to reflect the community's attitude towards sexually exploitative online activities.
Specific deterrence has a particularly important role to play in sentencing the Offender. As I have said, the Offender has a significant history of this type of offending, and for related failure to comply with conditions imposed on him as a person registered on the Child Protection Offenders Register. The Offender's criminal history includes: 1. In 2010, the Offender was convicted for an offence of importing prohibited tier two goods, in relation to a number of DVDs identified in his luggage as he re-entered Australia from Thailand. He received a sentence of 18 months imprisonment, to be released on recognizance release order after serving 12 months. Both conviction and sentence were affirmed on appeal. 2. In 2014 he was convicted for possession of child abuse material, for which he received a sentence of one year imprisonment, with a non-parole period of nine months. 3. In 2020 he was again convicted for possession of child abuse material, and an offence of failing to comply with reporting obligations. He received an aggregate sentence of 18 months imprisonment, with a non-parole period of 10 months.
In addition, the Offender has been convicted of several breaches of his obligations under CPOR: 1. In 2018 he was convicted of failing to comply with his Child Protection Register reporting obligations and received a s 9 bond. The bond was called up in 2019, due to further offences, and he was resentenced to a period of four months imprisonment. 2. In 2019 he was convicted of a further two offences of failing to comply with reporting obligations. For each offence he received a sentence of eight months imprisonment, with a non-parole period of four months, to be served concurrently. 3. In 2021 he was convicted of a further failure to comply with reporting obligations offence, and was sentenced to 9 months imprisonment, with a non-parole period of 6 months.
For over a decade the Offender has been subject to repeated periods of imprisonment and supervision in the community subject to either parole, bonds or recognizance release orders. He has also been subject to reporting obligations as a registered child sex offender since 2010. Despite this, he has continued to re-offend.
The sentence must reflect the clear need for specific deterrence, as well as serving the very important objective of protecting the community from a person who has repeatedly demonstrated a propensity for re-offending with offences of the same or similar nature.

[9]

Character, antecedents, age, means and physical and mental condition: s 16A(2)(m)

The Offender is currently aged 59 years and is in poor health due to physical complications arising from a stroke he suffered in 2017, as well as some cognitive deficits. He is a person who has laboured for some time under a drug addiction as well as suffering from various undiagnosed and untreated mental health conditions.
The Offender is not a person of prior good character. The child sex offence convictions detailed above form part of a substantial criminal history, that includes driving offences, drug offences, theft, cruelty to animals, and charges of stalk/intimidate and using an offensive weapon with intent to commit an indictable offence. The Offender's criminal history dates from 1988, however there appears to have been an escalation in the seriousness of offences from about 2010, and in frequency from about 2014.
During the period of this offending he had relapsed and was again using crystal methamphetamine, a drug he has been addicted to since his early 20s.
The Offender has had no specific or targeted treatment directed towards his sexual offending and appears to have had limited assistance or treatment in relation to his drug addiction in the past. He has had no formal rehabilitation to address his drug use.
I have before me two reports of consultant psychologist, Tim Watson-Munro.
Mr Watson-Munro records that the Offender has a complex clinical and developmental history characterised by long-standing symptoms of depression, anxiety, features of post-traumatic stress disorder, and an overarching substance use disorder, referable primarily to crystal-methamphetamines (ice).
Mr Watson-Munro believes there is a clear nexus between the Offender's unresolved psychological problems, his drug use, and his offending conduct. He considers the Offender's judgement was impaired at the time of his offending.
Mr Watson-Munro records a history of early childhood trauma, in that the Offender was emotionally neglected and physically abandoned by his mother at a very young age and was molested sexually by a relative between the ages of 3 and 15 years. This resulted in the development of symptoms of PTSD.
The Offender commenced using marijuana at around the age of 15 as a method of self-medication, and by the age of 24, he was using ice which has continued to the present day.
The Offender has received no treatment for any of his underlying issues, whether they be psychiatric or addictive. Mr Watson-Munro believes that the Offender needs treatment, although his treatment needs are complex.
The author of a Sentencing Assessment Report, prepared in relation to the Offender very recently, records a similar background with similar diagnosis.
In that report, a supervision plan is put forward which it says will be implemented by Community Corrections if and when the Offender is placed under the control of Community Corrections.
From all this, I find the Offender had a significantly difficult childhood which has caused him to have ongoing and untreated psychological issues and drug dependency, both of which, either alone or combined, can be causally connected to the offending. I do not consider his background falls into the category described in cases like Bugmy v The Queen (2013) 249 CLR 571, but I do accept it was very difficult and there is a direct nexus between it and his offending.
On top of this, the Offender's stroke in 2017 has caused him some cognitive impairment, as well as leaving him physically disabled.
All of which leads me to conclude that the Offender's moral culpability for the present offending is less significant than it would be for others without similar backgrounds or issues. It also makes him a non-attractive vehicle for general deterrence.

[11]

Prospects of rehabilitation: ss 16A(2)(n) and 16A(2AAA)

The Crown submits that it is open to the Court to find that the Offender has poor prospects of rehabilitation, on the basis of his persistent sexual interest in children, his poor history of compliance with obligations pursuant to the Register, and his inability to abstain from offending despite repeated interventions.
In sentencing an offender for a Commonwealth child sex offence, I must have regard to the objective of rehabilitating the person, including considering whether it is appropriate to impose conditions about rehabilitation or treatment options (when making an order) and in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation programme: s 16A(2AAA).
The Crown has reminded me that the objective of rehabilitation does not displace the requirement that the sentence must be of a "severity appropriate in all the circumstances of the offence" (s 16A(1)). That is, while the requirements of s 16A(2AAA) must be taken into account, the objective of rehabilitation should not swamp other very important sentencing considerations such as general and specific deterrence and adequate punishment. The principal purpose of rehabilitation in this context is to protect the community by ensuring that offenders are required to undertake treatment in custody or upon release from custody so as to prevent reoffending.
On behalf of the Offender, it is conceded that, by virtue of his record and his offending whilst subject to his obligations pursuant to being on the Register, that the Offender's prospects for rehabilitation can only be categorised as poor, however some prospects of his rehabilitation as a result of this period of imprisonment can be seen, such as: 1. The Offender has shown greater contrition and insight during this period than previously as seen in the tendered psychologists report; 2. The Offender has not received any reprimands or sanctions whilst in custody; 3. The Offender now appears motivated to seek out and to engage with rehabilitation in regard to his drug use, and psychological treatment and counselling directed to his own sexual abuse as a child and young man, as well engage with specific Sexual Offender's treatment and programs.
As I have said, I do not accept that the Offender has demonstrated any real insight or remorse. Despite the Offender's belated commitment to some treatment, I consider the Offender's prospects of rehabilitation to be, at best, somewhat slightly better than poor. The Sentencing Assessment Report assesses him as a medium-high risk of reoffending. I consider that to be the best that can be said for him. This means that I must give significant weight to the protection of the community, notwithstanding that the Offender's moral culpability is reduced in the way that I have determined.

[12]

The competing submissions

The Crown has submitted, having regard to: 1. The objective seriousness of the offences; 2. The seriousness with which Parliament views Commonwealth child sex offences as reflected in the introduction of mandatory minimum head sentences; 3. The importance of general deterrence; 4. The need for personal deterrence in circumstances where the Offender has engaged in previous offending for which he served terms of full-time imprisonment; 5. The protection of children generally and the need to denounce this type of offending; a head sentence in excess of the mandatory minimum period of imprisonment of 4 years is warranted along with a non-parole period that is of a severity appropriate in all of the circumstances.
The Offender concedes, as I consider he must, that no sentence other than a significant period of full-time imprisonment is appropriate. It is not suggested that the time served to date would be sufficient.
It is submitted on behalf of the Offender that his sentence should be mitigated by the following factors: 1. the Offender has seemingly begun to accept responsibility his offending generally and has expressed regret, remorse, and contrition for the commission of the offence; 2. the Offender's prospects of rehabilitation are more positive given his abstinence from drugs and commitment to engage in rehabilitation; 3. the limited amount of material possessed by the Offender in comparison to other offences of type; 4. the Offender's now fragile health and the more onerous conditions he has been subject to in custody as a result; 5. the Offender's lack of institutional infractions during his lengthy period on remand; and 6. the delay in the matter coming to sentence, that lengthy period of delay being through no fault of his.
It is also submitted that, when having regard to the overall circumstances of the offending, the objective seriousness, the Offender's subjective position, the psychological material and the Offender's, and communities, clear need for detailed intervention and rehabilitation to maximise any positive rehabilitative prospects the Offender has, that this is not a matter that calls for any significant departure from a sentence in the order of the statutory minimum.
It is finally submitted that this matter calls for a variance in the usual range of non-parole and parole ratio to permit the maximum opportunity for community correctives and parole to intervene in the Offender's drug addiction, assist in his rehabilitation through both therapy and supervision so as to maximise the prospects of rehabilitation and maximise the protection of the community long term.

[13]

Resolution

Adopting the approach laid out by the High Court in Hurt and Delzotto, I commence by first determining a "prima facie head sentence" by engaging in an "instinctive synthesis" of all relevant factors, including the guideposts imposed by the maximum penalty and the mandatory minimum term, without reference to the separate considerations of specific discounts.
Whilst the objective seriousness of the offending is not high, it is serious and reprehensible conduct and it does fall somewhere slightly below what I would consider the mid-range. I give considerable weight to the need for general deterrence in these type of cases. In the instant case, having regard to the significant history of similar offending, specific deterrence, albeit it has not been successful to date, is an important and weighty factor. Perhaps weightier is the requirement for me to be very conscious of the need to protect the community from further offending of this type.
Unfortunately, I consider the Offender's prospects of being rehabilitated to be low and that his risk of reoffending is towards the higher end of the range. This is in part due to the Offender's unfortunate background and life history. Whilst those matters weigh in his favour in this exercise and I have taken them into account, they also weigh against him in that that they become a powerful reason why his prospects of rehabilitation are not favourable. This is not to be taken to be me saying that I think the Offender will not try to change his ways. I think he will and I wish him well in that regard. Nonetheless, it is a difficult task that he confronts.
I do take into account the Offender's fragile health and the fact that his time in custody will be more onerous than for others and that the Offender does seem to have now commenced on a program of self-improvement, which increases his prospects of being appropriately rehabilitated, however, I have already taken that into account when considering that question and the important question of reoffending.
I have reviewed some comparative cases provided by the Crown. Some of them predate the mandatory minimum regime and are therefore of limited, if any, weight. Two of them are the decisions of R v Hurt [2019] ACTSC 148 and R v Delzotto [2021] NSWDC 325, the subject of the High Court's consideration this year. Each case, of course, turns on its own facts but I have done my best to try and be consistent with the outcomes in those decisions.
In all the circumstances, I consider that an appropriate head sentence of eight years imprisonment is warranted.
From this I deduct the 25%, which I have allowed for the early guilty plea but no other discount for any extra cooperation with authorities.
This reduces the head sentence to 6 years (72 months).
As to the period before the Offender becomes eligible for parole, I am persuaded that approximately 66% ought be applied, being 4 years after rounding. This is because I accept the Offender's submissions that a longer period under supervised parole would be beneficial, not just to the Offender, but also to the community because it will reduce his prospects of reoffending. I am conscious that the Offender has a consistent history of non-compliance but wish to give him his best chance of dealing with his issues.
The sentence should be taken to commence on 2 February 2022.

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