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R v Whale [2020] NSWDC 383

sentence — used a carriage service to transmit communications to someone they believed was under the age of 16 years, with intention of procuring the recipient to engage in sexual activity with themselves offence contrary to s 474.26(1) of the Commonwealth Criminal Codecharacter — s 16A(2)(m) — whilst sentencing judge took into account that offender has no prior convictions, it is trite that previous good character is to be given less weight in relation to offences of the present type due to the strong need for general deterrence and to protect children — contrition — s 16A(2)(f)(ii) — clinical psychologist speaks of offender presenting as deeply ashamed of their behaviour — clear from family testimonials that offender very much regrets effect offending had on their family, particularly their children — such feelings of shame and regret must not be confused with contrition and are more akin to self-pity — offender’s shame and regret is relevant to their prospects of rehabilitation — rehabilitation — s 16A(2)(n) — in circumstances where offender continues to maintain their innocence, it is always difficult to come to a positive conclusion as to their prospects of rehabilitation — despite offender’s maintenance of their innocence, sentencing judge of the view that offender unlikely to reoffend and prospects of rehabilitation are good — offender still has some family support from their wife and children as borne out by their testimonials and fact that wife and son attended courthouse for sentence hearing — offender’s family and dependants — s 16A(2)(p) — while not exceptional, the probable effect of sentence upon offender’s family could be taken into account as part of the “general mix” of subjective features — entrapment — absence of actual victim in present matter does not mitigate offender’s culpability — nature and circumstances of the offence — s 16A(2)(a) — the following factors increase offence’s objective seriousness: age differential between offender and recipient of approximately 50 years, offender relatively persistent in pursuing recipient, offender initiated idea to meet and persisted in meeting’s planning, offending occurred over 3 weeks and demonstrated relatively strategic course of criminal conduct, many messages were sexually explicit and outlined offender’s deliberate and clear desire to engage in sexual acts and intercourse with recipient, offender understood offending was wrong, fact offender drove at agreed time to planned meeting place intending to have sexual intercourse with recipient — offender’s conduct quite serious but number of aggravating features were not present in offending — objective seriousness of offending just below mid-range — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — general deterrence of utmost importance in relation to these sorts of offences — especially bearing in mind offender still maintains innocence, specific deterrence remains an important factor — sentence — imposed 2 years’ and 6 months imprisonment with recognizance release order after 9 months served
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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