R v Dregmans - [2022] NSWDC 55 - NSWDC 2022 case summary — Zoe

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R v Dregmans

[2022] NSWDC 55

District Court of NSW|2022-03-04|Before: Mr J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-03-04

Before

Mr J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

sentencing remarks

Mr Shaun Daniel Dregmans, the offender, is to be sentenced following a plea of guilty to the offence that between 12 January 2021 and 17 March 2021, at Willoughby, he possessed or controlled child abuse material and that he used a carriage service to obtain or access that material, contrary to s 474.22A(1) of the Criminal Code.
This offence carries a maximum penalty of 15 years' imprisonment.
The appropriate sentencing regime is Part 1B of the Crimes Act 1914 (Cth).
The parties are agreed as to the following facts.

[2]

The nature and circumstances of the offence (s 16A(2)(a))

On 17 March 2021, Australian Federal Police attended the offender's residence in Willoughby to execute a search warrant. The offender was present during the execution of that warrant and was warned of his rights. During the search, police located a Samsung Galaxy S8 mobile phone device. The offender provided the password.
During the execution of the warrant, he told police that he had met a person named 'Ohrin' on 'Grindr' and Ohrin had sent him a video depicting what appeared to be an underage boy giving a blowjob.
In their preliminary review of the phone, police discovered a WhatsApp conversation between the offender and the user Ohrin containing child abuse material. According to its internal Interpol Baseline Categorisation System, police designated the child abuse material as falling within two discrete categories consistent with the definition of child abuse material under the Crimes Act 1900 (NSW): category 1, a real pre-pubescent under 13 years of age, involved in or witnessing a sex act or material focussing/concentrating on the anal or genital region; and category 2, other illegal content concerning a child (under the age of 18).

[3]

The offender's explanation for offending to his psychologist

The offender affirmed an affidavit in the sentencing proceeding, which was generally directed to his personal background. Part of this included reference to his being in a 4-year relationship with his partner. They had plans to get married and start a business together. Relevantly, in his affidavit, he offered no explanation for his offending.
However, he provided an explanation to a forensic psychologist, Ms Delphine Bostock, who prepared a report dated 17 February 2022. Ms Bostock has been a research, and eventually practising, psychologist since 2007. She completed a Master of Psychology in 2009. There is nothing specifically in her curriculum vitae that deals with expertise in treating sexual dysfunction or deviancy; although she stated in the body of her report that she had worked with sexual offenders. The offender saw Ms Bostock in December 2021. In all, he saw her on 3 occasions.
In his affidavit, the offender deposed that what he told Ms Bostock was correct. (He also affirmed the truth of what he told Ms Bostock when he later gave evidence). This was to the effect that he was a member of the social networking and online dating app 'Grindr', a platform commonly used for networking between gay men. The offender informed Ms Bostock that he had used the platform to form some platonic friendships, but also to engage in casual sexual relationships. In this context, he met Ohrin in a park and they had had sex. He later said in his evidence at the hearing that he thought Ohrin was a 'nice guy', and he was attracted to him. He wanted to see him again. On 12 January 2021, he engaged with Ohrin again in the WhatsApp conversation, which prompted Ohrin to send him the 11 second video to his Samsung phone.
Although he acknowledged that the conversation made it appear that he was interested in deviant or illicit sexual activity (with boys), when he spoke to Ms Bostock, he denied that he had such sexual interest. He was attracted to Ohrin and felt that sex talk of this kind might facilitate further sexual activity with him. He was really interested in sex with men of his own age. He had no interest in child pornography per se; nor did he seek or use child pornography.
The offender accepted that he received, viewed and had not (at the point of seizure) deleted the 11 second video. He had a poor recollection of the snap-shot image being on his phone, which was dated back to 2017.

[4]

The offender's evidence at the sentencing hearing

The offender gave evidence on affirmation in the sentencing hearing and was cross-examined. In his evidence in chief, he was carefully led through the content of the conversation with Ohrin, and particularly what he had said to Ohrin. When directed to the part of the conversation (Agreed Fact 10(e)) that he liked "underage", the offender explained that this had followed on from Ohrin's earlier reference to (the latter's) apparent sexual interest in children (Agreed Fact 10(d)). He said he wanted to similarly sound interested. He thought that this was something Ohrin was "in to". The Crown put to him, and the offender denied, that he intended to convey to Ohrin that he was sexually interested in those things.
When directed to the conversation in Agreed Fact 10(g), after Ohrin had told the offender of Ohrin's predilection for sexual activity to boys and the offender responded, "That's so hot", the offender stated that he said this to continue the conversation.
When directed to the part of the conversation (Agreed Fact 10(i)) where Ohrin was suggesting that they watch some 'dark stuff', and the offender asked him what sort of dark stuff, Ohrin replied "Cp…Young...Incest...". In reply to 'Cp', the offender admitted to saying, "I was hoping you'd say that (sic)". The offender gave evidence that he did not understand what Cp signified, although, with hindsight, he accepted that this may have been a reference to child pornography. The Crown put to him that he understood that Cp was a reference to child pornography. The offender said he did not understand it in this way at the time.
His Counsel then directed the offender to his comment (agreed fact 10(i)), that he "always wanted to" (watch material), the offender said that he was 'going along with what' Ohrin was saying. The offender was 'not sure' what Ohrin was talking about, but in hindsight, accepted that it may have been child pornography. The Crown asked the offender what it was that he wanted to watch when he said to Ohrin that he had "always wanted to watch" and suggested that he could only have been referring to 'Cp'. The offender did not accept this: no one had ever sent child pornography to him before. It was also put to him that when he told Ohrin that he was "too scared to search it..." that was also a reference to child pornography. The offender did not accept that either.
The offender was then directed to his statement about wanting to go to a pool and seeing younger guys in their speedos and getting naked in front of them (Agreed Fact 10(j)), the offender said that this was a false statement made to Ohrin. He made it to facilitate a sexual encounter. The offender said that, on reflection, he felt repulsed and really disappointed in what he had said. He had nephews and nieces and was ashamed that he may have been privy to the exploitation of children. The facts that he agreed to were described by the offender as "not who I am."
The offender said that he only saw the (2021) video once. When asked why he had not deleted it at the point when his phone was seized, he said that he forgot about it; that it had been 'buried' in other apps. He acknowledged that he should have reported the video to police. Further, he acknowledged that once the conversation veered to the topic of sexual interest in children, he should have ceased talking to Ohrin. Earlier, he said that he did not know how he got the (2017) screenshot on his phone. He said that he saw Ohrin again, after watching the video in January 2021. I infer that this was for the purpose of having another sexual encounter with Ohrin. But although he met Ohrin again, they did not have sex. He never spoke with Ohrin again.
The offender said that other than the 2017 screenshot and 2021 video, he had never been in possession of child abuse material.
It was generally put to the offender that the fact that he did not cease the conversation was a sign that he and Ohrin shared a mutual interest in child abuse material. The offender disputed this: he was sexually interested in Ohrin. It was also put to him that the reason he did not cease the conversation and delete the 2021 video was because he was interested in it. The offender repeated that he did not delete the video because he had forgotten about it. This was despite his acknowledgement that the video was 'unusual'. He was more focussed on Ohrin and had 'dropped the ball'.

[5]

Parties' submissions regarding the offender's state of mind

The offender's Counsel submitted that the Court should accept the offender's account of his state of mind: that he was only feigning interest in receiving and viewing child abuse material in order to pursue his real object, which was in having a further sexual encounter or encounters with Ohrin. His Counsel submitted that he had given this account consistently, not only to Ms Bostock, but also to his friends. The Court could have confidence in the credibility of the explanation: the offender made appropriate concessions. His Counsel submitted that weight should be given to Ms Bostock's apparent acceptance (and reliance upon) the offender's account. Although she did not descend to specifics about her experience with sex offenders with an interest in children, there was reason to think she had exposure to such offenders during the period of her service with Corrective Services NSW. At any rate, she was not required to attend for cross-examination and was not challenged upon the adequacy of her expertise. The Court should be slow to depart from her opinion without good reason. Counsel also acknowledged that although the content of the offender's conversation with Ohrin did not make his account inherently persuasive, he was caught up, (perhaps preoccupied) with meeting Ohrin again and this motive clouded his capacity to rationally determine what he should have done.
If, however, his evidence of his state of mind was not accepted, on the probabilities, the Court could not conclude that he had a sexually deviant interest in children at the time of his possession of the material beyond reasonable doubt. He had a spotless history prior to the offending and had numerous testimonials to suggest he was of good character. More than this, the AFP had the opportunity for a thorough examination of his electronic devices and found no more than the two items of material that are the subject of the charge. Consistently with what the offender said, there was nothing to objectively show any more (electronic) contact with Ohrin after January and before the execution of the warrant in March 2021 and, more pertinently, no more child abuse material located after January 2021.
The Crown submitted that the Court should find that the offender had an actual sexual interest in the material and was not just feigning interest in it to facilitate his attraction towards Ohrin. This was not a case where people say something that they do not literally mean in furtherance of some other object. When evaluating his conversation with Ohrin, he should be taken at his word. The content of the words he used was consistent with his actions. He not only received the file, but he watched it as well. There were clearly ways other than discussion on the subject of child abuse material to 'impress' Ohrin if that was his objective. Even if at first, he did not anticipate that the conversation may head in the direction of discussion of child abuse material, he went on with it. Despite his evidence, he well knew what 'Cp' meant and could anticipate the likely nature of the video that he was sent.
The Crown did not say that the offender had any on-going or highly developed interest in acquiring child abuse material. The Crown did not contest that he only watched the video once. The Crown indicated that nothing could be made of the significance of the 2017 screenshot as so little was known about it.

[6]

Consideration of the offender's state of mind

As noted, in the way the forensic contest evolved, the parties put before the Court something very similar to binary alternatives in explaining the offender's state of mind: for the offender, he did not know that the nature of the material that he was acquiring was child abuse material. Alternatively, he had no interest in acquiring child abuse material in his possession for its own sake, to gratify a sexual interest in children, but consented to acquire it to impress him; with the ulterior motive of promoting his prospects of a further sexual encounter (or encounters) with him. For the Crown, it was said that he understood the nature of the material that he was acquiring and acquired it because he had a sexual interest in watching it, which, by extension, meant that he had, at least at the time of the offending, a (deviant) sexual interest in children.
This forensic contest matters in several potential respects: it relates to the gravity of the offending, the need for specific deterrence; the sincerity of his expressions of contrition and his rehabilitation prospects.
Under the Crimes Act 1914 (Cth), a sentencing judge must sentence on the basis of facts that are "known to the Court" (s 16A(2)(a)). In my view, consistent with that provision, and basic principle in sentencing law (The Queen v Olbrich (1999) 199 CLR 270) if the offender's explanation of his state of mind was accepted, it could mitigate the seriousness of the offending (and act to his benefit in other relevant ways). In this way, in my view, he bears the onus of proving the existence of the asserted matter on the probabilities. It is conceptually possible that he may not do so, but, by the same token, the Crown is not able to prove that he has an underlying sexual deviancy beyond reasonable doubt. The offender's Counsel did not disagree with this view when it was raised with him. Mr Crown did not contend to the contrary in his address.
To reiterate, the offender raised two (negative) contentions: he did not understand the nature of the material that he was receiving; and he did not have any sexual interest in children but only agreed to receive the material from Ohrin to impress him.
The question of the offender's state of mind was viewed primarily through the prism of the content of the offender's conversation with Ohrin; although the Crown also emphasised what it contended was the consistency between the words he used in the conversation with Ohrin and his later conduct.
I found the offender's evidence denying his appreciation of the nature of the material he received, as he was led through the conversation, to be singularly unconvincing. The two propositions that the offender raised were, in my view, irreconcilable. His evidence, in effect, that he did not know what Ohrin was talking about and urging upon him - his receipt of child pornography - cut across his position that he had gone along with the conversation and agreed to receive the material, since he thought this would enhance his prospects of another sexual encounter with Ohrin. Maintaining these positions undermined his credibility.
I agree with the Crown that when one reads the conversation in context, the subject matter was all about underage sexual activities. Hence the initial discussion of their own ages (Agreed Facts 10(a) and (c)) and Ohrin initiating discussion of his interest in underage sexual activity (Agreed Facts 10(b) and (d)). From there, the offender expressed his own interest in underage sex (Agreed Fact 10(g)). It may be accepted, as the Crown submitted, that there are other ways of conveying sexual attraction and interest in another person, but that does not negate the veracity of the offender's point that at the time he was so infatuated in Ohrin that he would say what he thought could assist him to continue the conversation to promote his prospects of having another sexual encounter. It is fair to say that, to this point of the conversation, nothing had been said by the offender about any desire to receive and watch child abuse material and, further, there was nothing, objectively, in the offender's past which would indicate to the reasonable observer that he had an interest in acquiring child abuse material.
That changed when Ohrin started talking about 'dirt Dark web shit'. Ohrin was raising the prospect of sending through a certain kind of material and they discussed the nature of that material. I reject the offender's evidence that he did not know at the time that 'Cp' was child pornography, but even if it was accepted, it was obvious from the other references to "young", and in a context of their earlier discussion of underage sexual activity, that what Ohrin was foreshadowing sending to the offender was child abuse material. The offender's denial that he did not know the nature of the material Ohrin was proposing to send him jars with other comments the offender made, such as he had never watched, but "always wanted to", but had been "too scared" to watch it, and now "really wanna watch it with you". Those comments indicated a clear comprehension, on the offender's part, as to what Ohrin was referring to. His later comment, next in the sequence of the agreed facts (10(j)) about seeing "younger guys in their speedos" confirmed the offender's full awareness of the nature of the material that Ohrin was talking about.
I find, therefore, and beyond reasonable doubt, that the offender anticipated the nature or character of the material that he expected to receive from Ohrin as being child abuse material.
It is another thing, however, to move from the acceptance of the offender's anticipation of the nature of the material to finding an interest in receiving it, for its own sake or, put another way, that he agreed to receive the material for the purpose of gratifying a sexual interest in children.
Notwithstanding my rejection of his evidence disclaiming an awareness of the nature of the material he discussed with Ohrin, that is not fatal to my acceptance of the remaining part of his testimony (and affidavit evidence) that his words and actions were consistent with the desire to promote further sexual relations with Ohrin.
In my opinion, weight must be given to other matters, in the offender's favour: his absence of any prior criminal history generally and the undisputed evidence about his good character. The Crown conceded that no significance could be vested in the circumstance of the 2017 screenshot being on his phone. Accordingly, in my view, that circumstance can be put aside when considering his motivations in 2021. Thirdly, as the offender's Counsel indicated, there was nothing else on the phone to indicate any interest (in acquiring child abuse material generally or sexual interest in children generally) in the key period from 12 January 2021 until his phone was seized.
Against the offender, I take into account the circumstance that he did in fact watch the video. He did not tell Ohrin that it was unnecessary to pass on the material. He did not need to watch it and there was no suggestion that Ohrin would have known about it if he did not watch it. He could have pretended to Ohrin that he had watched it. The offender did not delete it immediately, despite his later declared revulsion at what he saw and he did not report the incident to the police (as he later declared he should have). These omissions could not be explained by any panicky reaction. The image remained stored on his phone for a substantial period.
I am unable to find, on the probabilities, that the offender agreed to receive the material only to impress Ohrin. By the same token, however, I am unable to accept, beyond reasonable doubt, the Crown's contention that at the time of the offending, he consented to receiving the child abuse material because he was interested in the subject matter of the material and had a deviant sexual interest in children. The difficulty with accepting the contention is partly indicated by the hedged formulation suggested by Mr Crown: he disclaimed that such interest was 'on-going' or even 'highly developed'. At its highest, although he consented to receive the material, the offender had a curiosity in inspecting the material. That does not prove that he had a deviant sexual interest in children. The Crown's contention that he had a sexual interest in children not only does not reckon with the absence of any other indication in this offender's life suggestive of such interest generally but more especially, any other indication on his phone or other gadgets. I am not satisfied beyond reasonable doubt that he acquired the child abuse material because he had a sexual interest in children.
To recapitulate, I find that the offender was aware of the nature of the material that Ohrin sent to him. I do not know what the fact of his possession said about his reason for obtaining it.

[7]

Assessing the objective gravity of the offending

In R v Hutchinson [2018] NSWCCA 152 RA Hulme J (Meagher JA and Button J agreeing) set out a non-exhaustive list of factors when assessing the objective gravity of the subject offending, which the Crown and the offender both addressed. Applying those factors, the offender submitted that:

actual children were depicted;
for the 2021 video (the category 1 image), one child was depicted, alone, but was not depicted as participating in any penetrative act and it was of relatively short length; and although well below 18, he was not the youngest of boys in like offences;
for the 2017 image (the category 2 image), the child was depicted alone, pubescent and naked, but not participating in any sexual act;
the number of images was limited to two, which was substantially lower than is usually the case in offending of this kind;
no harm, or cruelty, was inflicted upon the children;
the material had not been transmitted or disseminated, and there was no risk that it would get into the hands of vulnerable persons or persons susceptible to act out in the manner depicted;
the Court should accept the offender's evidence of feigning interest in child pornography. He did not obtain any (material) benefit in exchange for receiving it;
there was nothing to suggest that the offender acted as part of a collaborative network of like-minded offenders;
there was no planning, or sophistication, or attempts to conceal detection. There was very little to show the circumstance of his acquiring the 2017 screenshot. The acquisition of the 2021 video was unplanned.

Subject to the point of feigning interest in receiving the material, the Crown did not indicate any contrary position as to how these Hutchinson factors played out; other than to emphasise that the existence of the 2017 screenshot could not be disregarded. It was possible for the Crown to have brought a separate charge in relation to that material but, for convenience, the possession of that material was added to the possession of the 2021 material in a rolled-up charge. The Crown also emphasised the seriousness of what was depicted in the 2021 video.
In his written submissions, Counsel for the offender submitted that the offending fell towards the low end, it was not at the lowest end of the scale for objective seriousness for offences of this type. As I understood his submission, Counsel for the offender suggested that a positive acceptance of the offender's explanation for how or why he received the child abuse material might even point to the offending being at the lowest end of the scale.
I generally accept the matters identified by Counsel for the offender and agree with his submission that the offending fell in the low end of the range of seriousness. Not having accepted fully the offenders evidence as to his state of mind, I do not accept that it was at the lowest end.

[18]

Prospects of rehabilitation (ss 16A(2AA) and (2)(n))

As the Crown emphasised recent amendments to the Crime Act for a Commonwealth child sex offence treats rehabilitation as relevant to the length of any sentence or non-parole period; and also any conditions regarding treatment in any particular sentencing option. I accept the Crown's submission that s 16A(2AA) does not, by its terms, mean that rehabilitation should result in a disproportionately more severe, or more lenient, sentence set against all other relevant considerations (Boulton v R (2014) 46 VR 308 at [72]).
Ms Bostock wrote very positively about the offender's prospects. He had taken responsibility and expressed remorse for his offending, he adjusted his previous proclivity for casual sexual relationships and stopped using 'Grindr' to limit the opportunity where he might be placed in a similar position to that which had resulted in his offending; he was receptive to any necessary intervention; he had a positive network and prosocial and realistic goals for the future.
There was some argument in the sentencing hearing as to the extent to which the weight of Ms Bostock's opinion might be weakened depending upon the Court's assessment of the offender's motive for acquiring the child abuse material. As indicated, I have been unable to make a positive finding on that particular matter, so it is effectively neutral. But more careful consideration of Ms Bostock's opinion (at paragraphs 8-10 and 35) indicated that she did not, in terms, express any opinion herself about the veracity of the offender's statements to her about his motive. The thrust of her report (paragraphs 12 - 34 and 36-39) did not depend upon acceptance of the offender's explanation for his motive. It is true that her findings were underpinned by acceptance that the offender accepted responsibility for his offending and was remorseful for it and had a subjective view of the seriousness of what he did. But this was not inconsistent with the findings this Court makes and, to the extent that there were nuances based upon the Court's incomplete acceptance of the offender's account of his state of mind, it was open to the Crown to test Ms Bostock's opinions, but it chose not to do so.
I accept therefore that full weight can and should be given to Ms Bostock's views about the unlikelihood of his having any deviant sexual interest and the absence of any need for intervention to target sexual offending or general mental health.
As his Counsel also emphasised, the offender has a very good subjective case, including no prior criminal history, prior good character, attendance before Ms Bostock (and continued willingness for any recommended intervention) and a preparedness to engage with community supervision.
A sentencing assessment report prepared by the St Leonards Community Corrections Officer, dated 1 March 2022, featured an assessment of him as being at a T2/Low risk of reoffending according to the LSI-R scale. Based on CSNSW psychological assessment, he was assessed as being at a below average risk of sexual reoffending.
The Crown conceded that there was a low likelihood of the offender re-offending; or more specifically, acting on a sexual interest in children. However, there was a residual risk that the offender had in acting on such interest if the same situation occurred again, unless the offender received treatment for that interest.
I have rejected the premise underlying that stated concern. I do not find that the offender has a sexual interest in children. He could not therefore be at a risk of acting on it.
I agree with the submission of the offender's Counsel that the offender's rehabilitation prospects are good.

[19]

Extra-curial punishment

The offender placed before the Court two articles published in the Daily Telegraph on 18 and 19 March 2021. The subject matter of the articles was the 'Operation Arkstone' police raid. The headlines were, respectively, 'Shaun Dregmans faces child abuse charges after Operation Arkstone raid' and 'Grant Harden hit with new charges as Shaun Dregmans is arrested.' These headlines, and the general content of the articles, closely connected the arrest and charging of the offender with Mr Grant Harden, who was reportedly linked to a series of child abuse offences of a more serious character than the offence to which the offender has pleaded to. I agree with Counsel for the offender's submission that an available imputation of the articles was that the offender was a member or participant in a child abuse network which had international dimensions.
In his affidavit, the offender referred to the consequences of the publication of newspaper articles after he was charged. He learnt that his younger brothers, friends and relatives had been contacted by people calling him a 'sicko'. He had difficult conversations with his neighbour and mother trying to explain what had happened.
Separately, a person by the name of 'Amanda Jones' contacted a friend of the offender's on Facebook and, in a post which highlighted a report of the offender's arrest, the person asked, "Did you know your friend is a sicko"?
The offender referred to the effect on him of the newspaper articles and Facebook post in his affidavit, which I touched on earlier in the remarks concerning his contrition, where he referred to his anxiety and paranoia, loss of sleep, shame and embarrassment.
The parties agree that adversely inaccurate media reporting which humiliates an offender can constitute extra-curial punishment that sentencing judges may take into account. This factor tends to either reduce the requirement for specific deterrence and/or fulfils the consideration of retribution or denunciation; although the offender also submits that it is relevant to the question of the adequacy of punishment. I am not convinced that its relevance extends quite as far as the offender submits. Nevertheless, a prominent example cited by the parties was R v Wran [2019] NSWSC 1015.
The Crown accepts that a deterioration in the offender's mental condition can be taken to relate to the media/social media reporting. I agree. There was a very clear connection in the news articles between the offender and a paedophile ring where there is nothing to suggest that the offender engaged in acts, for example, of the kind alleged against Mr Harden.
In the circumstances, given that the (limited) media reporting conflated the offence for which the offender has pleaded guilty with the other offending, I do not consider that this extra-curial punishment reduces such need for specific deterrence as exists. Rather, I consider that the extra-curial punishment weighs in favour of a reduced need for retribution.
I agree, however, that in view of the inherent nature of the offending, which was inherently likely to spark adverse media reporting and the limited number of newspaper reports, the weight to be given to this factor in mitigation is modest.

[23]

Recognisance Release orders

By s 20(1)(b) of the Crimes Act 1914 (Cth), the Court could make a recognisance release order permitting the offender's immediate release. However, by s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), it is presumed that offenders sentenced for child sex offences (of which this is one) serve an actual period of imprisonment prior to being released on a recognisance order, for sentences less than 3 years unless there are 'exceptional circumstances'. The expression 'exceptional circumstances' is not defined. Although the Crown referred to some authorities in general law, they are hardly controlling. The discretion in finding the presumption rebutted is fact dependent.
Counsel for the offender referred the Court to the sentencing remarks of Berman SC ADCJ in R v Pederson [2021] NSWDC 535 where, at [36]-[39], his Honour took what might be described as a global approach, weighing a combination of considerations such as the gravity of the offending, and the offender's rehabilitation and the effects of incarceration upon him, rather than placing a focus upon any predominant individual factor. The Crown did not dispute that this approach was apposite, and I respectfully adopt it here.
Towards the end of the sentencing hearing, Counsel for the offender and Mr Crown agreed that if the Court found that 'exceptional circumstances' arose, by reason of s 20(1)(b)(iii), it would inevitably follow that the offender should be released immediately on a recognisance order.
The Crown contended that, if the Court was minded making a recognisance release order, then that should be based on the conditions in s 20(1B) of the Crimes Act 1914 (Cth). Mr Crown also indicated that the Court might be inclined to impose a treatment condition to the effect that the offender continue to receive psychological therapy with Ms Bostock.
In this last respect, if the Court was minded making an order in these terms, I note that Ms Bostock considered that the offender may wish to seek ongoing counselling to deal with stress and anxiety; though saw no specific need for intervention targeted at preventing sexual offending.

[26]

"prescribed sexual offence" means-- (a) …… (b) an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 (NSW) (c) …… (d) …… (e) an offence against section 71.8, 71.12, 271.4, 271.7, 272.8 (1) or (2), 272.9 (1) or (2), 272.10 (1), 272.11 (1), 272.12 (1) or (2), 272.13 (1) or (2), 272.14 (1), 272.15 (1), 272.18 (1), 272.19 (1), 272.20 (1) or (2), 273.5, 273.6, 273.7, 471.16 (1) or (2), 471.17 (1), 471.19 (1) or (2), 471.20 (1), 471.22 (1), 471.24, 471.25, 471.26, 474.19 (1), 474.20 (1), 474.22 (1), 474.23 (1), 474.24A (1), 474.25A (1) or (2), 474.25B (1), 474.26, 474.27 (1), (2) or (3), 474.27A of the Commonwealth Criminal Code, being an offence the victim of which was a person under the age of 16 years, or (f) …. (g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition. (3) To avoid doubt, subsection (1) extends to a sentence of imprisonment for 2 or more offences any 1 of which includes an offence referred to in that subsection.

Both the Crown and the offender acknowledged that there was no binding authority as to whether an offence under s 474.22A(1) of the Criminal Code could fall within the exclusion in ss 67(1)(b) and 67(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to preclude the possibility of an order being made whereby a term of imprisonment being served by intensive correction.
The Crown argued that the offending conduct here, though not the subject of a discrete charge, would have satisfied the content of an offence under s 91H of the Crimes Act 1900 (NSW). That being so, for the purposes of ss 67(1)(b) and (g) and ss 67(2)(b) and s 67(2)(g), the offender had committed a prescribed sexual offence. This was so notwithstanding that although a range of offences under the Criminal Code were specifically earmarked as prescribed sexual offences under s 67(2)(e), that section did not include the subject offence, being s 474.22A(1) of the Criminal Code.
The offender's Counsel argued that the exclusion in s 67(1)(b) should be construed narrowly and I understood him to submit that the preferable construction would involve treating the reference to the offence (here, s 91H of the Crimes Act 1900 (NSW)) as being one for which the offender is charged and is to be sentenced. This would encourage prosecution authorities, if they wanted to obtain the benefit of an exclusion of an intensive correction order as a sentencing option, to bring a charge in respect to which the exclusion would clearly apply. As it was in this case, the offender was not charged with any of the offences in s 67(2)(b) or s 67(2)(e).

R v Dregmans

At a glance

Court

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Judgment (29 paragraphs)

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Legislation Cited (5)

Cases Cited (10)

Cited By (3)