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Darke v The Queen [2022] NSWCCA 52

The offender was sentenced following a plea of guilty to 1 count of engaging in conduct in relation to another person, being a child, with the intention of procuring the child to engage in sexual activity outside Australia whilst they were under 16, contrary to s 262.14(1) of the Commonwealth Criminal Code. Additional offences were taken into account pursuant to s 16BA. Original sentence imposed 3 years imprisonment with a non-parole period of 2 years. Offender appealed on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in failing to take into account delay, the provisions of s 16A(2AAA), the offender’s cooperation with authorities and that no other sentence was appropriate. The Crown accepted that error had been demonstrated with respect to s 16A(2AAA).

Delay: As nothing was said about delay in arrest and COVID caused delay in the remarks on sentence, it can be assumed that it was not considered but should have been. There was some discussion about delay, indicating that the sentencing judge was mindful of the chronology of events. Whilst there was a lapse of time between September 2016 and the arrest in January 2018, there was no evidence the offender was adversely affected. Being left in a state of uncertain suspense, while stressful, is a consequence of involvement in the criminal justice system and is common to most, if not all, offenders. While delay of almost 2 years was substantial, there was nothing tendered in the subjective evidence that spoke of any actual condition caused by or affected by the timing of the sentence occurring some 4 years after the offending and almost 2 years after arrest.

Cooperation: The offender’s limited cooperation was referred to at sentencing. The offender’s submissions conflates a number of unrelated issues such as proposals about how the trial would be conducted and the utilitarian value of the plea of guilty with this separate and distinct factor. In the face of an overwhelming Crown case evidenced by the many messages, the cooperation with the prosecution was unsurprising. There was no basis to conclude that the sentencing judge failed to take into account the limited cooperation provided by the offender.

Custodial Sentence: Section 17A does not state that the provision must be referred to before a sentence of imprisonment can be imposed. It was conceded by the offender’s legal representatives at the opening stages of the proceedings on sentence that a custodial sentence was inevitable. There is no particular incantation that must be followed so long as the reasons for the decision to impose a custodial sentence are stated. Objective gravity of offending was such that a sentence of full-time imprisonment was inevitable.

Section 16A(2AAA): The sentencing judge made no reference at all to s 16A(2AAA) and there was nothing in the remarks on sentence to suggest that the sentencing judge had applied focus to the mandatory considerations 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. The remarks on sentence would need to demonstrate how this consideration had been undertaken and applied and they do not do so.

Leave to appeal granted. Appeal allowed. Original sentence quashed. Offender sentenced to 3 years imprisonment, commencing on 15 January 2020 and expiring 14 January 2023, to be released on 14 January 2022 upon a recognizance release order with conditions.
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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