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R v LL [2022] NSWDC 208

The offender was sentenced following a conviction to 1 count of using a carriage service to transmit a communication with someone under 16 years of age with the intention of procuring the recipient to engage in sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code and plea of guilty to 1 count of using a carriage service to transmit material, the material being child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code. Offender sentenced for additional state offence.

Nature and Circumstances: With respect to count 1, the victim was a real child but not a particularly young child at 15 years. Age difference of some 34 years is significant. Although offender was well aware of the illegality of their conduct, it is also clear from the messages that any sexual activity would not occur until the victim was of consenting age (16). The offender was persistent, and the number of messages was significant, as was the highly sexualised nature of the conduct. Although the messages were intense they went over a period of only slightly over a week. Offender and the victim were well known to each other and had met in innocent circumstances a number of times. Offending is within the mid-range of seriousness. With respect to count 2, while the description of sexual activity is detailed and graphic, the communications include the written description with no photograph or the like. There was no transmission of images of either photographs or drawings or cartoon type images. Offending is below mid-range but not towards the lower end of the range.

Guilty Plea: Offender pleaded guilty to count 2 on the day of the trial. The jury was required to return a verdict of guilty to that count and the Crown was required to put evidence before the jury in relation to that count. There was very little benefit to the community or the victim or any witnesses. The utilitarian value of the plea is 5%. There can be no consideration or discount for any plea of guilty in respect of count 1.

Contrition: Offender has shown remorse and no doubt was genuine in their expressions of contrition. Offender accepted they had caused the victim ‘so much stress’ and what they did was ‘horrible’. Offender accepted they breached the trust they had with the victim’s family. There is nothing particularly unusual or exceptional for offenders to express remorse in circumstances where the matter went to trial. Offender’s contrition is a matter in mitigation. Offender is afforded some, although not considerable, consideration for their cooperation with law enforcement activities.

Hardship: The house in which the offender lives with their two daughters is unencumbered. Offender has discussed with their daughters the prospect of them continuing to live in the house by themselves if they go into full time custody. Offender has deposited $20,000 in each daughter’s bank account. One of the girls is anorexic and the other twin has consulted a paediatrician who diagnosed probably autism spectrum disorder. When asked under cross-examination as to why the offender had not made arrangements for the care of their daughters earlier, offender maintained they thought they had a sufficient network in place. Evidence makes it clear that the impact of any sentence of full-time custody on the offender’s children will be significant indeed. It would be entirely unsatisfactory to have two 16-year-old girls, both of whom have their particular issues, living by themselves, essentially without supervision. If the offender is sentenced to full-time custody it may well be that the girls would have to live with their father. That also has its own issues noting the victim and their family live in the same small town as the girls’ father.

Offender sentenced to 3 years imprisonment to be released in 18 months upon entering recognizance in the amount of $1,000 to be of good behaviour for 3 years.
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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