R v Fox [2025] NSWDC 484 | Case summary | Zoe

/

/

R v Fox [2025] NSWDC 484 | Case summary | Zoe

The facts are agreed and, in essence, are as follows: The victim of the offence was a 14 year old girl who was known to the offender, in that she was a child of a family friend who he had known for over five years. At the time of the offending, the offender was aged 31. The offender and the victim were mutual friend contacts on the social media application known as Snapchat. On 31 March 2024 the offender started a conversation with the victim on Snapchat and they began exchanging messages. During the conversation the offender made comments to the effect that he wanted to show the victim something, and that he would go to the bathroom and take a photograph. After this he sent to the victim an image. The image, which is the subject of the offence, depicted the offender naked showing himself from head to knees and included his exposed penis. The offender subsequently sent another photograph which contained just his face to the victim with the superimposed text which said, “What did you think.”
The victim showed her mother the images and the mother then took photographs of the images and contacted police.
Police on 1 April 2024 arrested the offender and the police facts note that he was cooperative and admitted to having sent the image to the victim.
As this is a Commonwealth offence it is necessary that I address the terms of s 16A(2) of the Crimes Act 1914 insofar as they are relevant. Paragraph (a) refers to the nature and circumstances of the offence. These are set out in the agreed facts which I have just summarised. The offence involved the offender sending via Snapchat to the 14 year old daughter of a family friend an image of himself naked from head to knees. Although the offender told the author of the Sentencing Assessment Report and the psychologist Dr Wearne that this was an accident and he meant to send the image to his girlfriend, I do not accept this, and it was agreed in the sentence hearing that I should disregard this suggestion. I have no doubt, therefore, that the offender’s actions were deliberate and not an accident, especially given that the offender told the victim that he intended to show her something and then would go into the bathroom and take the photograph. There is also the fact that he sent a second image with just his face and the text, “What did you think?”
Relevant to my assessment of the objective seriousness of the offending are the following matters: Firstly, the exchange with the victim occurred on a single day over a very short period of time, and involved only one offending image. Secondly, the nature of the image sent was of the offender naked with his genitals exposed and did not involve any additional aggravating features or suggestions. Thirdly, the person to whom the image was sent was a real child and known to the offender to be a child. Fourthly, the victim was aged 14 while the offender was aged 31 and so there was a considerable age gap. Fifthly, there was, as I have earlier said, a high degree of deliberateness in the offender’s actions with an obvious intention of targeting the 14 year old victim. Sixthly, the communications did not come to an end because of any decision by the offender to desist, but rather due to the victim informing her mother. Seventhly, and on the other hand, the offence involved little or no planning and was extremely unsophisticated with a very high chance of being detected and reported, which of course it was.
The Crown submitted that it is a moderately serious example of this type of offence. But, of course, the words “moderately serious” are very broad. In my view, the objective seriousness of the offence is well below the mid range and towards the lower range.
It is not suggested that the offence involved any course of conduct.
I have also considered the personal circumstances of any victim of the offence, and any injury, loss or damage arising from the offence as set out in paras (d) and (e) of s 16A(2). In this regard, as I have already noted, the victim was a 14 year old girl who knew the offender.
A Victim Impact Statement from the victim’s mother indicates that the offence has had a significant impact, on the victim which is what might reasonably be expected. Offences of this kind must ordinarily be expected to have significant consequences for a victim, especially a young victim and the Victim Impact Statement, while not aggravating the offence, confirms the Court’s usual expectation of such consequences.
Paragraph (f) of s 16A(2) refers to the degree to which the person has shown contrition by taking action to make reparation for any injury, loss or damage, or any other matter. In regard to contrition, the offender expressed regret and remorse for sending the image. There is also the fact that he cooperated with police. However, these matters have to be considered against the fact that the offender claimed that it was an accidental sending which it clearly was not. There is, therefore, limited genuine contrition in this case.
Paragraph (g) of s 16A(2) refers to the guilty plea, the timing of the plea and the degree to which they have resulted in any benefit to the community, any victim or witness. I have already accepted that the offender’s early plea of guilty was of significant utility and I have allowed a discount of 25%.
Paragraph (h) refers to the degree to which the person cooperated with law enforcement agencies. In this regard I note that the agreed facts say that he was cooperative with police and I take this into account in his favour.
Paragraphs (j) and (ja) of s 16A(2) refer to the deterrent effect on the person and the deterrent effect on others. Clearly, general deterrence is of significant importance in sentencing for offences of this kind. That is because these sorts of offences are relatively prevalent, relatively easy to commit, and often lead to significant harm. In my view, however, the offender’s intellectual impairment, which I will discuss in a few moments, has the effect that the importance of general deterrence is significantly reduced in this case. This is consistent with the observations of Dr Wearne at para 25 of his report where he said,

I am of the view that the importance of not only general deterrence, but also personal deterrence, is reduced by reason of the offender’s intellectual difficulties. However, personal deterrence still remains relevant because of my conclusion that the offender’s actions were deliberate and targeted. In other words he knew in essence what he was doing, and in my view he knew it was wrong even though his ability to understand the consequences and avoid the impulse were significantly compromised.
Paragraph (k) of s 16A(2) refers to the need for adequate punishment, which hardly needs to be said. It is obviously a fundamental factor in every sentencing exercise.
Paragraph (m) refers to the character, antecedents, age, means and physical or mental condition of the offender. The offender’s subjective case has been placed before the Court by written material. The psychological report of Dr Wearne notes that the offender was raised by his parents with whom he still lives and that this was a fairly stable upbringing without exposure to abuse or neglect. The offender, however, struggled at school which is due to his compromised intellectual functioning. In this regard, his overall functioning has been found in various assessments to be in the extremely low range, such that 99% of the population function at a higher level. He has never lived independently, needs assistance with daily living, has never held a driver’s licence, and presented to the psychologist as somewhat childlike in his manner, consistent with his intellectual disability.
Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation. The offender has no previous criminal history. He has steady employment in which he has been engaged for about 13 years. He has the support of and accommodation provided by his family. While the Sentencing Assessment Report notes him to be a medium high risk of reoffending, the psychologist, Dr Wearne, suggests an average risk, and concludes that there is no evidence to suggest a persistent sexual interest in children or a pattern of sexually predatory behaviour. There is also no suggestion that the offender is plagued by drug or alcohol problems. Having regard to all of these matters, I consider that the offender’s risk is closer to average or moderate. I think he has reasonable prospects of rehabilitation.
Paragraph (p) of s 16A(2) refers to the probable effect that any sentence would have on family or dependents. While the defendant does not have any dependents, I have no doubt that a sentence of imprisonment, and to a lesser extent, any sentencing outcome, will have an effect on the offender’s family. This was not, however, a matter that featured really in the submissions made for the offender.
I accept also that there has been some delay in the matter proceeding from arrest to sentence, and that effectively the offender has had the matter hanging over his head for some time and that this has caused him anxiety and distress.
Section 16A(2AAA) of the Crimes Act requires that the Court have regard to the objective of rehabilitating the offender, including whether it is appropriate to impose conditions about rehabilitation or treatment.
The Crown has submitted that the threshold in s 17A of the Crimes Act is crossed, in that no sentence other than one of imprisonment is appropriate. However, the Crown has conceded that it would be open to the Court to make an order directing the offender’s immediate release, subject to conditions. The Crown’s argument that a term of imprisonment is required is based essentially on the gravity of the offending, the importance of general deterrence, the legislative presumption in s 20(1)(b) of the Crimes Act 1914, and the need to denounce the offender’s conduct and protect the community, especially children.
I acknowledge and have taken into account these various matter relied upon by the Crown. However, I make the following observations:
As to the gravity of the offending, I have found that it is towards the lower level.
As to the importance of general deterrence, I have found that it is of lesser significance in this case by reason of the offender’s intellectual disability.
The need to denounce his conduct, while still relevant, is also reduced for the same reason.
And, while the protection of children and the community generally is of very great importance, I have concluded that the offender’s risk of reoffending is average or moderate and not high.
Having regard to my conclusions about these matters, I am satisfied that the threshold at s 17A is not crossed in this case.
Mr Fox if you just stand up and I will announce the sentence.
The offender is convicted. Pursuant to s 20(1)(a) of the Crimes Act 1914, I order that the offender be released upon his giving security in the sum of $100 without sureties on a recognisance for a period of two years subject to the following conditions:
Firstly, that he be of good behaviour.
Secondly, that he complete 100 hours community service.
Thirdly, that he accept supervision and obey all reasonable directions of a Community Corrections officer.
Fourthly, that he engage in any counselling or treatment recommended by Community Corrections.
Fifthly, that he not travel interstate or overseas unless approved in writing by Community Corrections. I direct that the offender report by telephone to Community Corrections at Windsor within seven days.