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R v McCall [2022] NSWDC 78

The offender was sentenced following pleas of guilty to 1 count of using a carriage service in preparation for procuring or planning to procure a person under 16 years of age to engage in sexual activity contrary to s 474.25C of the Commonwealth Criminal Code, 2 counts of using a carriage service to transmit a communication to another person under 16 with intent of making it easier to procure that person to engage in sexual activity and being a person with a prior conviction for a child sexual abuse offence contrary to s 474.27(1) Commonwealth Criminal Code and 1 count of transmitting, making available, publishing, distributing, advertising or promoting material using a carriage service where the material is child abuse material and the person has prior convictions regarding child sexual abuse offences contrary to s 474.22(1) of the Commonwealth Criminal Code. Offender was sentenced for additional state offences.

Nature and Circumstances: The harm done to child victims of carriage service or cybersex offences can be no less serious than in-person offences. Communications in s 475.25C offence took place over 2 and a half months. Offender targeted each child because of their age. Each communication was relatively brief, but offender did persist with some contacts in trying to re-establish communication. Many features which make such offences very serious were absent. Each of the s 474.27(1) offences were more seriousness. Not only was a pretence used to gain the child’s trust, but offender soon turned the chats to explicit sexual topics. Each chat was extensive, extending over two hours, with the sole purpose of the offender’s sexual gratification. Material in s 474.22(1) offence set out significant sexual activity involving a very young, if imagined, child and their family. Offender’s purpose seemed to be for their and their online friend’s own prurient benefit, but the communications transmitted displayed no planning, organisation or sophistication. Though others might not be likely to view it, there remained obvious potential for its recipient to disseminate it.

Antecedents: Offender’s record demonstrates that the offending is not an uncharacteristic aberration and continuing disobedience towards the law. Offender was sentenced for child sexual abuse offences in 2011 and breaches of child protection orders and possession of child pornography in 2019.

Mental Condition: Even as a child, offender had long-standing behavioural issues. Forensic psychologist diagnosed offender with Asperger’s Syndrome and noted offending occurred in the context of the offender’s long-term history of Autism Spectrum Disorder (ASD), Attention Deficit and Hyperactivity Disorder (ADHD), poor mental health and low self-esteem. It is accepted the offender’s mental condition has impacted them throughout their life. While it is not suggested the offender’s underlying conditions were directly causative, they have and continue to have an impact on them, including that prison will weigh more heavily and that their rehabilitation will be problematic. There is need for some understanding, as while the offender clearly knew what they were doing was wrong, they had little capacity to make rational and moral decisions. While offender’s moral culpability can be reduced, their repeated offending and lifelong diagnosis mean greater weight must be placed on community protection.

Guilty Plea: A reduction of 25% should be granted for the utilitarian value of the offender’s pleas of guilty. However, where minimum sentences must be fixed the reduction is subject to ss 16AAC(2) and (3) of the Crimes Act (Cth). In relation to use of carriage service to transmit communication offences, s 16AAC(2) and (3) puts a limit on the percentage reduction of 25% which would otherwise have been allowed. The permitted reduction is tied to the minimum sentence, which in this case is of four years, a reduction of 20%.

Offender sentenced to 5 years and 9 months imprisonment with a non-parole period of 3 years and 3 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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