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Lazarus v The King [2023] NSWCCA 214

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 4 counts of using a carriage service to transmit indecent communication to a person under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code, 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code, 4 counts of using a carriage service to cause child pornography material to be transmitted to a person contrary to s 474.19(1) of the Commonwealth Criminal Code, 3 counts of using a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code, and 1 count of using a carriage service to procure a person under 16 years of age contrary to s 474.26(1) of the Commonwealth Criminal Code. Additional carriage service offences were also taken into account under s 16BA. Original sentence imposed 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months. The offender appealed on the grounds that the sentencing judge did not determine the weight to be given to specific deterrence, and that the sentencing judge did not determine the weight to be given to general deterrence having regard to the offender’s mental condition.

General Deterrence: At first instance, offender submitted that they were ‘not a suitable vehicle for general deterrence based on [their] long-term low-grade dysthymia with anxiety and schizotypal autistic-like odd and excentric features’. The sentencing judge’s reasons did not address the parties’ submissions on this issue at all. The error has been made out.

Specific Deterrence: Not addressed because error made out on the general deterrence ground.

Re-sentence: Offender is remorseful and has a low-to-medium risk of reoffending. Offender has good prospects of rehabilitation and psychological treatment needs are unlikely to be met in custody. Those factors suggest that the weight to be given to specific deterrence is somewhat limited. However, considering the fact that offending took place over a period of 8 years and the likely absence of family support, specific deterrence still has a role to play. General deterrence remains a significant factor on sentence. There is some uncertainty about the true nature and extent of offender’s mental ill-health in this case. Offender’s mental health problems can only loosely be described as contributing to the offending conduct and, as such, their moral culpability may only be reduced to a certain extent. The weight given to general deterrence is tempered by offender’s mental health problems, but only to a limited extent. General deterrence remains an important factor in the sentencing of offender. The sentencing judge’s findings as to objective seriousness are adopted. Although offender has established error, no lesser sentence is warranted or should have been imposed by the sentencing judge.

Leave to appeal granted, appeal dismissed.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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