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Doig v R [2023] NSWCCA 76

The offender was sentenced following pleas of guilty to 1 count of procuring a child to engage in sexual activity outside Australia contrary to s 272.14(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, 1 count of persistent sexual abuse of a child outside Australia contrary to s 272.11(1) of the Commonwealth Criminal Code, and 1 count of causing child abuse material to be transmitted using a carriage service contrary to s 474.22(1) of the Commonwealth Criminal Code. Original sentence imposed 9 years imprisonment with a non-parole period of 5 years and 6 months. Offender appealed on the ground that the sentence was manifestly excessive.

Manifest Excess: Offender submitted that error arose because of the high starting point, 10 years imprisonment, adopted for the indicative sentence for the third offence. What must be remembered is that Division 272 of the Criminal Code encompasses a range of offending conduct which includes sexual intercourse outside of Australia. All other things being equal, an offence that involves engaging in sexual intercourse with a child outside of Australia will be more objectively serious than engaging in sexual activity, which does not include sexual intercourse. The sentencing judge’s characterisation of the objective seriousness of the third offence as ‘towards the mid-range’ was entirely appropriate. It is difficult, however, to ascertain how the sentencing judge settled on a starting point of 10 years imprisonment. Insofar as any comparison with the facts in Baden and Harrison assist, the objective factors in those cases were more grave than the objective factors in the present case.

Leave to appeal granted. Appeal allowed. Offender resentenced to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.
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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