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R v Cui [2023] NSWDC 422

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to groom a person under 16 years for sexual activity contrary to s 474.27(1) of the Commonwealth Criminal Code, and 1 count of using carriage service to transmit indecent material to person under 16 years contrary to s 474.27A(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender engaged in two separate online conversations with people who he believed to be under the age of 16. The fact that the “victim” in the matter was not a real child does not make the offence any less morally reprehensible nor does it amount to a mitigating factor. Offender’s motivation in engaging in the offending conversation, and their disregard for the age of the victim was that they were but manifestations of fantasies that were never intended to be acted upon. Offending falls towards the lower end of the range of objective seriousness and offender’s moral culpability is not high.

Contrition: There is evidence of both contrition and a level of cooperation with law enforcement authorities in the form of offender’s guilty plea, admission to police upon arrest, provision of passwords to devices and admissions made during the course of a recorded interview. Offender’s endeavours to get medical help to treat their underlying mental health conditions is objective proof of real remorse, contrition and insight. Offender’s prospects of full rehabilitation are high and the corresponding prospect of them reoffending is low.

Mental Condition: At the time of the offending, offender suffered from a major depressive illness. There is a connection between the offender’s mental health condition at the time of the offending. Offending was some form of attempt, (albeit subconsciously) to self-medicate for offender’s mental condition. To put it simply the offending would not have occurred but for the offender’s mental health. Sentencing judge therefore satisfied that there were ‘exceptional circumstances’ that rebut the presumption of imprisonment for a Commonwealth child sex offence.

Offender sentenced to 1 year imprisonment to be released immediately on recognizance of $1.00.

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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