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Kristenson v The Queen

appeal against sentence — using carriage service to send indecent material to person less than 16 years of age offence contrary to s 474.27A(1) of Commonwealth Criminal Code — offence related to a rolled up charge concerning several chats with persons less than 16 years — original sentence imposed 1 year and 9 months’ imprisonment with offender to be released on recognizance after 1 year 3 months and 23 days — guilty plea — sentencing judge in error in not having regard to utilitarian value of offender’s guilty plea — offender entitled to considerable credit for early admissions to police and entry of guilty plea at first available opportunity — Xiao establishes that offender entitled to discount for utilitarian value of plea — given error offender must be resentenced — general deterrence — s 16A(2)(ja) — these types of offence can have profound impact upon victims who are vulnerable due to young age — intrinsic harm is caused by indecent internet communications with children even if repercussions do not become apparent immediately — difficulty of detecting this behaviour and need to protect children from online predators means that general deterrence is of great importance — specific deterrence — s 16A(2)(j) — fact that no steps taken prior to sentencing by offender to undergo counselling of concern given offender’s failure to demonstrate insight into impact of offending upon children involved — there is a need for specific deterrence at least to some extent — rehabilitation — s 16A(2)(n) — positive conclusion about offender’s prospects of rehabilitation difficult to make — while psychologist’s evidence that offender unlikely to reoffend not directly contradicted, absence of evidence from offender means psychologist’s evidence given little weight — offender does have some prospect of rehabilitation based on affidavit evidence showing offender regrets offending — deportation — offender’s possible deportation not taken into account in accordance with position in New South Wales (R v Mirzaee [2004] NSWCCA 315, R v Van Hong Pham [2005] NSWCCA 96 and AC v R [2016] NSWCCA 107) — even if Victorian (Guden v R (2010) 28 VR 288) and Queensland (R v Schelvis; R v Hilderbrand [2016] QCA 294) approach adopted this is a case where evidence about offender’s likely deportation speculative — if there is to be a challenge to long standing New South Wales approach to relevance of possible deportation to sentencing, this case not an appropriate vehicle for such a challenge — leave to appeal granted — offender resentenced to 1 year and 6 months’ imprisonment with offender to be released on recognizance after 12 months
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