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R (Commonwealth) v Robinson [2022] NSWDC 537

The offender was sentenced following a plea of guilty to 1 count of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Even if it be right that offender was ‘targeted’ by law enforcement, this circumstance does not reduce the seriousness of offending. This was not a case of entrapment; what occurred was law enforcement authorities giving offender the opportunity to commit the offence. Offending was aggravated in the sense that it occurred when offender was subject to an extant community corrections order. Nevertheless, offending falls at the lower end of the scale, having regard to its brevity and lack of planning. Offending was essentially opportunistic. The volume of sexualised material sought was not significant although there was an escalation. Offender knew that it was wrong to engage in this activity with an underage girl, and there was a degree of emotive manipulation of her for the purposes of gratification.

Antecedents: Offender had previously been convicted of a similar offence. Offender was convicted of the offence but conditionally released on a good behaviour bond for a period of 2 years and 6 months. Although offender’s criminal history is not extensive, the similarity between the earlier offence and the index offence disentitles offender to the leniency that would be extended to an offender committing an offence similar in nature for the first time.

Mental Condition: Offender is diagnosed as being affected by a mild intellectual disability at the time of offending. Psychiatrist opined that there was a nexus between offender’s disability and offending. Psychiatrist referring to it as being a ‘social’ disability in which offender was weak in comprehending abstract concepts and had a limited awareness of social rules. Psychologist determined that offender functioned at a level similar to a non-disabled 12-year-old in certain subdomains. For the De La Rosa principles to be engaged, it is sufficient that a mental abnormality contributes to the offending. Because of offender’s disability, they may have been led along by what was an undercover police operative. Offender was by reason of their disability less than wary. Offender’s disability contributed to the circumstance that they were inhibited in appreciating the likely consequences of their actions. Offender likely felt a natural affinity communicating with what they thought was a 14-year-old girl. That matter is not very substantial in mitigating the offending. Offender knew of the illegality, immorality, and violation of social norms. This mild intellectual disability does not substantially reduce offender’s culpability so as to displace deterrence.

Contrition: Although offender may regret being ‘stung’ by the assumed online identity, there is nothing to suggest that they had any insight as to the harm they may have perpetrated upon the recipient of the communications had she been a real teenage girl. Offender’s Senior Counsel invited the Court to infer that offender feels ashamed of their conduct on the basis of their acceptance of responsibility for the previous offence. Remorse expressed for offending 3 years ago cannot automatically be transposed to the situation offender is in now.

Offender sentenced to 2 years and 3 months imprisonment to be released after 1 year and 4 months on recognizance of $1,000 to be of good behaviour with supervision.
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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