Director of Public Prosecutions (Cth) v Ellis

[2021] NSWDC 517

District Court

New South Wales

Medium Neutral Citation:

DPP (Cth) v ELLIS [2021] NSWDC 517

Hearing dates:

25 August 2021

Date of orders:

29 September 2021

Decision date:

29 September 2021

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – 3 years imprisonment, suspended upon entering $2,000 recognizance to be of good behaviour for four years – see paragraphs [132] and [133]

Catchwords:

CRIME – appeals – use carriage service to solicit and transmit child pornography – plea of guilty – multiple online “personalities” – threats made to publish images – cyberbullying – general deterrence significant but not paramount – diagnosis of Autism Spectrum Disorder – aggregate sentence

Legislation Cited:

Crimes Act 1914

Crimes (Sentencing Procedure) Act, 1999 (NSW)

Criminal Code 1995 (Cth)

Cases Cited:

Betts v R [2015] NSWCCA 39

Blackett v R [2021] NSWCCA 210

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Brown v R [2014] NSWCCA 215

Bugmy v The Queen [2013] HCA 37

Clarke–Jeffries v R [2019] NSWCCA 56

Crimes Act, 1900 (NSW).

De Leeuw [2015] NSWCCA 183

Dinsdale v The Queen (2000) 202 CLR 321

DPP (Cth) v Beattie [2017] NSWCCA 301

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

DPP (Cth) v Halbisch [2021] NSWDC 306

DPP (Cth) v Pratten(No. 2) (2017) 94 NSWLR 194

EG v R [2015] NSWCCA 21

Greenwood v R [2014] NSWCCA 64

Hili & Jones v The Queen [2010] HCA 45

Imbornone v R [2017] NSWCCA 144

Karout v R [2019] NSWCCA 253

Karout v R [2020] HCASL 56

Locke v R (2010) 207 A Crim R 34

Mbele v R [2021] NSWCCA 182

Minehan v R [2010] NSWCCA 140

Muldrock v The Queen [2011] HCA 39

R v Asplund [2010] NSWCCA 316

R v Carroll [2008] NSWCCA 218

R v De Leeuw [2015] NSWCCA 183

R v Dodd 57 A Crim R 349

R v Donald [2013] NSWCCA 238

R v Lamella [2014] NSWCCA 122

R vPorte [2015] NSWCCA 174

R v Tuala [2015] NSWCCA 8

R v Williams [2017] QCA 307

R v Zamagias [2002] NSWCCA 17

Scook [2008] WASCA 114

SS v R [2016] NSWCCA 197

Thammavongsa v R (2015) 251 A Crim R 342

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146.

Toller v R [2021] NSWCCA 204

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Regina
Jacob ELLIS (Offender)

Representation:

Counsel:
Ms C Mendes for the Offender

Solicitors:
Ms H Von Forrell for the Commonwealth DPP

File Number(s):

2020/7482

Publication restriction:

No

Judgment

1. On 5 May 2021 the offender appeared before a Magistrate at the Local Court at Wagga Wagga and pleaded guilty to a total of four charges contrary to various sections of the Criminal Code 1995 (Cth). He was committed for sentence to this court. At the sentence hearing at this Court on 25 August 2021 the offender adhered to his plea of guilty to:

Sequence 5: Use Carriage Service to Solicit Child Pornography contrary to s 474.19(1) of the Criminal Code 1995 (Cth); and further

Sequence 6: Use Carriage Service to Transmit Child Pornography to Self, contrary to s 474.19(1) of the Criminal Code 1995 (Cth); and further

Sequence 7: Use Carriage Service to Transmit Child Pornography contrary to s 474.19(1) of the Criminal Code (Cth).

2. The offender also asks that when passing sentence in respect of sequence 5 that I take into account a charge (Sequence 8) of Use Carriage Service to Menace/Harass/Offend contrary to s 474.17(1) of the Criminal Code 1995 (Cth) which is on a Form pursuant to s 16BA of the Crimes Act 1914. It is uncontroversial that in dealing with the matter on the s 16BA Form I apply the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146. Given the nature of the offending that matter (i.e. sequence 8) must have some real and meaningful impact on the ultimate sentence that is imposed.

3. Noting the pleas of guilty were entered in the Local Court and therefore at an early stage and noting the matters contained within s 16A(2)(g) of the Crimes Act 1914, I allow the offender consideration for his facilitating the course of justice including the utilitarian value of the plea by way of numerical discount of 25%.

4. The maximum penalty for each of the three substantive matters for which the offender appears for sentence is 15 years imprisonment. I note that the maximum penalty for the offence on the s 16BA form is 3 years imprisonment.

Facts

5. The offender was born on 14 March 1998. On 18 January 2019 police executed a search warrant at the home of the offender in Mitchelmore Street, Turvey Park, a suburb of Wagga Wagga where the offender lived with his mother. The AFP located and seized 14 electronic devices. Under caution and pursuant to an order made under 3LA of the Crimes Act 1914 the offender provided police with passwords and pin codes to access the seized devices. He also consented to police examining any data held in his Facebook and Instagram accounts. Under caution the offender identified his bedroom and electronic devices.

6. The offender was not charged with the offences for which he appears for sentence until 9 January 2020. As was the offender’s right he declined to be interviewed by police.

7. The offender operated social media accounts on Xbox, Instagram and Facebook using the names Jacob Ellis, Kaitlyn (Kaitlyng2650_)(Kaitlyn), jake140398, aisons, aisonsofficial, aisionsmusic, assistedmurder and Jessica Williams (will_jessk)(Jessica). The offender also operated a number of email accounts, namely:

a.   [email protected]

b.   [email protected]

c.   [email protected]; and

d.   [email protected]

8. The facts recite that child pornography is classified into four categories as per the Interpol Baseline 4 Tier Categorisation System. There is an annexure to the facts setting out the four tiers or categories. Category one relates to depictions of real prepubescent children and the child is involved in a sexual act, is witnessing a sexual act or the material is focused or concentrated on the child’s anal or genital region. Category 2 is very broad and includes anyone from birth to the age of 18 years. The Commonwealth’s representative acknowledged at the sentence hearing that 18 years is the upper limit because of Australia being signatory to various international treaties and covenants. Category 3 is titled “related non-illegal files” and category 4 is titled “ignorable” and includes the description of all other (legal) material.

9. The offender met the complainants MA and JS (whose full names and dates of birth appear in the facts but I will not publish them in these remarks to maintain their anonymity) in early 2018 through an online group chat via Xbox. They initially communicated via messages and via headset while playing Xbox games but also messaged on other social media platforms including Instagram and Facebook Messenger. The account names are also included in the facts but to recite them within these reasons could be tending to identify them. The offender and the complainants knew each other and were friends in real life.

10. Both complainants talked to the offender about school and JS told the offender that he was in Year 9 at the time. They also discussed JS’s birthday.

11. The offender introduced the complainants to Kaitlyn and Jessica online. They were online identities created by the offender and not real persons. The offender told the complainants that he was friends with Kaitlyn and Jessica and that the girls were both mute. Jessica added MA as a Facebook friend. They predominantly communicated via Facebook Messenger and Instagram. Kaitlyn and MA became friends on Facebook. They communicated via Facebook Messenger and Instagram. Kaitlyn and JS became Facebook friends and they predominantly communicated via Facebook Messenger.

12. Going to sequence 5, while communicating on various social media platforms including Xbox and Facebook Messenger the offender using accounts in his own name asked MA for nude photographs. On one occasion the offender offered to pay him $2,500 if he sent nude photographs. The offender also asked MA for a photo of him in the mirror fully naked. MA sent a photograph of him in the bathroom mirror with a towel wrapped around his waist and a photo of him naked face down in the bath. Neither file constitutes child abuse material. The offender also used social media accounts in the name of Jessica to request nude photos from MA.

13. On 12 October 2018 the following exchange occurred between the offender using the online identity of Jessica and MA:

Offender (Jessica):      Hey

MA:  What’s up

O:    I just wanted to say that I think you’re cute

MA: Thx

I think you’re hot too

O:    Do you want to trade?

MA: you first

O:    Ehh, can’t you? Be a gentleman

MA: Nah

O:    Alright, another time then J

MA: OK

14. On separate occasions the offender sent MA two or three photos depicting a nude female. He also sent MA a message stating, “let me see and I’ll let you see”. In response MA sent a photo of his genitals.

15. The facts then go into some considerable detail of the facts for sequence 8 which is the matter on the s 16BA Form. At various times during the period January 2018 to January 2019 the offender sent a number of communications to MA namely:

a.   Demanding that MA be on Xbox at particular times and if MA did not comply the offender would make further demands for more and longer online meetings;

b.   The offender told MA that he (offender) was a computer hacker and would hack him and all of his information and to prove that sent MA information that MA had not given him including MA’s address, middle name, emails, phone numbers and grandmother’s telephone number;

c.   Using the online identity of Jessica, the offender demanded that MA communicate with her and when MA did not respond the offender told him that “she would fuck him up because she was also a computer hacker”.

d.   The offender told MA that Jessica had killed herself and the offender blamed MA for her death because MA had told her to go away and stop talking to him

e.   Using the online identity Kaitlyn the offender sent MA a message on Instagram saying, “quit being a lazy cunt and appreciate shit [the offender] does for you. You’re so fucked if he doesn’t kill me soon”. Again, using the online identity Kaitlyn the offender sent the following messages on Instagram:

•   “Do you understand me?”

•   [full name of complainant MA]

•   “Obey or suffer”

•   “Ignore me and I’ll have to show the shit you send girls on Snapchat. With enough photos people will see it’s clearly you even when your face isn’t shown. This is what happens when you don’t obey”

f.   On 14 September 2018 the offender sent MA three messages via Facebook Messenger, namely, “Kaitlyn suicided last night”, “There’s no reason so why she did but I’m assuming it’s from last night but yeah” and “So in a way you got what you wanted, to never hear from her again”.

g.   On one occasion the offender made MA think that that there were people out the front of his house who were there to kill him. MA was scared for his life.

h.   On one occasion the offender sent MA a text message containing the address of MA’s girlfriend and stating that they were going to kidnap her

1. The offender told MA that he would create an online dating account for MA and send it to MA’s girlfriend to make her think that MA was cheating on her;

j.   The offender told MA that he would put MA’s face on porn images and distribute the images;

k.   MA told the offender that he knew the offender was getting photos of him to use against him and to threaten him. The offender replied, “you’re not the only one” and sent him a screenshot images of blue folders with names under them including MA’s and a screenshot image of names with addresses next to them;

l.   On one occasion the offender told MA that he had to be on Xbox within five minutes or the offender would post photos of him on social media. MA could not find his Xbox controller and could not do what the offender asked. The offender posted a photo of him on line.

m.   On 15 and 16 January 2019 the offender called MA 13 times. MA did not answer the calls

n.   On 17 January 2019 the offender send MA a text message, “I’ll leave you & your gf alone if A. You join my party and quit being a bitch or B. You get [name of a male person initials CC]. He’s fucked anyway so would you rather your suffering end now and transfer it over to him or do you want me to continue when I see it filling to leave then go back to [CC] Your choice”.

16. The facts recite that MA felt uncomfortable with the offender’s demands, thought that if he did not comply the offender would “hack” him and that he was “shit scared” of the offender. MA is described as being very under the offender’s control.

17. The facts indicate a very serious example of using a carriage service to harass menace or offend. Given the seriousness of the offending it is perhaps a little surprising that the matter is on a s 16BA Form rather than a substantive offence. That is merely an observation and not any criticism of either party.

18. I now go to Sequence 6 which is a charge of Cause Child Abuse Material to be Transmitted to Self. While communicating on various social media platforms including Xbox and Facebook Messenger the offender using social media accounts in the name of Kaitlyn asked JS for photos of him performing sexual acts on MA. JS refused.

19. The offender using the identity of Kaitlyn offered JS a “high spec computer”, a new phone and couple of thousand dollars if he sent her videos or images of him performing sexual acts. JS sent “Kaitlyn” a video of him performing oral sex on a male friend. JS was aged about 15 or 16 and his friend was aged between 15 and 17 years at the time. JS sent the video to “Kaitlyn” as “Kaitlyn” had offered rewards.

20. Given the uncertainty about the age I could not be satisfied beyond reasonable doubt that either young male was under the age of 16 years at the relevant time.

21. The facts recite that “police classified the video as Category 1 child pornography material”. Annexure A to the facts sets out in the first column the words, “Category 1: INTERPOL Baseline”. In the second column the definition is, “Depictions of a real prepubescent child (under the age of 13 years approximately), and the child is involved in a sexual act, is witnessing a sexual act or the material is focused/concentrated on the child’s anal or genital region”.

22. I cannot perceive how what is depicted in the video comes within this definition. I have already said that I could not be satisfied beyond reasonable doubt that either of the young males was under 16 years of age. However, even taking the lower end of the range as set out in the facts it does not come within the definition.

23. After JS sent the video to “Kaitlyn” the offender sent JS the following communications:

a.   The offender using the identity “Kaitlyn” told JS that she had sent the video to the offender;

b.   The offender told JS that he would break into his house at night because JS refused to send more videos and photographs;

c.   The offender using the identity “Kaitlyn” told JS that she had sent the video to other people and she would send it to more people.

24. Sequence 7 is a charge of Transmit Child Abuse Material. On one occasion the offender told MA that he had a video of JS. MA told the offender that he did not believe him. In response the offender sent the video to MA via Facebook Messenger. MA told JS that the offender sent him the video.

Assessment

25. Both counsel have provided quite extensive written submissions. Ms Mendes has also provided supplementary submissions, as has the Commonwealth. The Commonwealth submitted that sequences 5, 6 and 7 are the objectively more serious as they carry a maximum penalty of 15 years imprisonment. As I understood the Commonwealth’s submission it was put that there is an interaction between all of the offences and that the offending has to be seen as the one lot or episode of ongoing offending.

26. The matter involved two actual victims. There are victim impact statements with which I will deal later in these remarks. The Commonwealth submitted that the victims were vulnerable because of their age. The Commonwealth’s written submissions address a broad range of issues but the submission that the victims are vulnerable is not one of them. I am not referred to any authority nor have I been able to find any authority on this issue in the context of Commonwealth offending. Therefore I have recourse to the line of authority that has developed in the New South Wales Court of Criminal Appeal concerning s 21A(2)(l) of the Crimes (Sentencing Procedure) Act, 1999 (NSW). I note that that section includes categories of persons that are vulnerable. I note in particular the decisions of Greenwood v R [2014] NSWCCA 64 and Betts v R [2015] NSWCCA 39.

27. The age of the victims and the circumstances of the offending are taken into account in determining the seriousness of the offending. I am not prepared to find that the victims were vulnerable in a manner that aggravates the matter beyond their age being one of the factors that informs the objective seriousness of the matter.

28. The Commonwealth submits that the offences are objectively very serious. I will go initially to the child pornography offences. The Commonwealth refers the court to the decision of Minehan v R [2010] NSWCCA 140 at [94].

29. So far as sequence 5 is concerned the facts are silent as to the number of different communications between the offender and the victim. The facts recite that the offender asked for nude photographs. It is plain enough that there was more than one such request. The offender also offered money and there was the exchange of 18 October 2018. I am satisfied beyond reasonable doubt that there was a small number of requests but the facts do not enable me to precisely indicate the number of exchanges. There are five particularised in the facts. Real children were used. The facts recite that the photographs initially sent by the victim do not constitute child abuse material but there is the one photograph of the victim’s genitals. There was no cruelty or physical harm. There was however what has become known as cyberbullying. There is the one child. The offender was soliciting the material for his own use. Payment was offered but not made. The offender was personally known to the victim. There was some degree of planning and deception employed. Again, there is the cyberbullying that has to be taken into account on the issue of planning and deception. The victim was 15 or 16 but I could not be satisfied beyond reasonable doubt therefore that he was under 16. The offender was operating alone. There is some limited risk that the material might be seen by children. I could not be satisfied that there was a risk that the material being seen or acquired by persons susceptible to act in the manner described.

30. Also relevant to the assessment of the offending is the false online identities that the offender created and used. The victims were teenage boys. There was some persistence in respect of sequence 5 but a very significant degree of persistence so far as sequence 8 (the matter on the s 16BA Form) is concerned. Many of the matters the Commonwealth addresses as to the objective seriousness really go to the issue of why there is a need for general deterrence in matters involving child pornography.

31. Ms Mendes for the offender submits (MFI 1) that the seriousness of the conduct derives more from the deceptive and manipulative nature of his behaviour rather than from the nature and character of the child abuse material. There is real substance to that submission. So far as sequence 5 is concerned the offender used his real identity for a number of the exchanges.

32. Given the various matters to which I have referred, the conduct to which sequence 5 relates is moderately below mid-range. Sequence 8, i.e. the matter on the s 16BA Form, is a very serious example of that offence.

25. Going to sequence 6 there is the issue of the deception by the offender using the online identity of Kaitlyn that he had created. There was some degree of persistence and the offender offered but did not pay the money promised or give the devices as promised to the victim. Again, there is the aspect of the cyberbullying which is detailed in the facts.

26. As Ms Mendes emphasised at the sentence hearing the actual conduct depicted on the video of the two young men engaged in a sexual act was lawful at least within New South Wales. The illegality is the transmission and receipt of that video. The victim is real. The content is graphic and shows a young male performing fellatio on another. No cruelty or physical harm was occasioned. There is one video. There are two young males depicted, albeit of the age of consent. I am prepared to find that initially the video was obtained for the offender’s personal use but as part of the cyberbullying the offender transmitted that offence, but there is a separate offence relating to that transmission. The offender knew one of the people involved in the video. There was a degree of planning and deception particularly with the use of the Kaitlyn identity. The offender was acting alone. Clearly there was a risk of someone seeing it as it was transmitted. Beyond that there was some small risk of others seeing that material.

27. The offending to which sequence 6 relates is also moderately below mid-range.

28. Sequence 7 relates to the transmission of the video that the offender had received from JS. The same observations can be made about that matter so far as the planning and deceit is concerned. The act of sending of the video in itself is part of the significant cyberbullying in which the offender engaged. The transmission related to the one video. The content was graphic. The offender was acting alone. The offender knew one of the persons portrayed on the video and also the person to whom the video was transmitted. That matter is too moderately below mid-range.

29. The Commonwealth submitted that the offending should be considered globally. The Commonwealth submits (p 6 point e written submissions) that the offender communicated with both victims over the course of a year and repeatedly requested material from them and used multiple identities to do so. Apart from his own identity the offender used two others. I agree with the submission of Ms Mendes that each offence will have to be considered separately. There was obviously an agreement or at least acquiescence by the Commonwealth to have sequence 8 on a section 16BA form rather than have it as a substantive matter.

30. I have now set out in detail the facts and have gone into some detail on the issue of the objective seriousness of the matters. That deals with the requirements of s 16A(2)(a) of the Crimes Act 1914.

Section 16A(1) Crimes Act 1914 (Cth)

39. I note that section 16A(1) of the Crimes Act 1914 (Cth) provides:

(1)   In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

40. I also note that s 16A(2)(k) provides that the offender must be adequately punished for the offending.

Other considerations

41. Section 16A(2)(b) of the Crimes Act 1914 relates to other matters that are required or permitted to take into account. I have already referred to the manner in which I should approach the matter on the s 16BA Form. In this regard I also note the decision of R v Lamella [2014] NSWCCA 122 where at [48] Price J (Garling & Bellew JJ agreeing) said:

“Section 16BA Crimes Act (Cth) permits the court, with the consent of the prosecutor, to take into account other Federal offences to which an offender has pleaded guilty. There is, in my view, no reason to think that Spigelman CJ's approach in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act1999 No 1 of 2002 (2002) 56 NSWLR 146 to New South Wales offences included on a Form 1 does not apply to Federal offences included on a schedule. Spigelman CJ considered at [42] that offences included on a Form 1 are to be taken into account to increase the penalty otherwise appropriate by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences.”

42. The offending can be said to be a course of conduct, particularly so when the cyberbullying is considered. It is the cyberbullying that lends the similar character to the offending.

43. Section 16A(2)(d) deals with the circumstances of the victims. Both victims have given victim impact statements that form part of the Crown tender bundle. JS indicates that he was reluctant to go to school or to talk to anyone he knew. His physical and mental health deteriorated. He now does not trust people. MA says that he is scared to use his real name on line, he is worried that the offender will come back to do it again, he suffers from anxiety, he has lost friends and feels humiliated and tricked.

44. The Commonwealth is correct with the submission that the offender exploited the victim’s vulnerabilities and added a layer of distress to the victims. The victims must live with the knowledge that the files depicting them are liable to surface at any time. Clearly there has been some harm to the victims.

45. However, in the absence of any other authority I rely on what I said in DPP (Cth) v Halbisch [2021] NSWDC 306 on the use to which victim impact statements can be put. In particular, I note the decision of R v Tuala [2015] NSWCCA 8 and in particular that part of the judgment of Simpson J (as her Honour then was) at [77]-[84]. Her Honour said at [84]:

"…The victim impact statement could not be used to extend the assessment of the degree of emotional harm, or other loss and damage (including financial loss) beyond that that could ordinarily be expected in the circumstances of the offences, or that which was proved by other evidence. The Crown has not established error in a failure to take into account loss and damage, including financial loss and damage, extending beyond what is encompassed in offences of the kind of which the respondent was convicted."

46. The fact that the material is liable to surface at any time is also a matter that goes to the need for general deterrence in matters of this sort.

47. The offender did not give evidence at the sentence hearing. There was tendered without objection a hand written letter from the offender. The letter is the usual letter of regret from an offender. He says that he is very sorry for his conduct, it makes him sick to know that he humiliated and tricked them, he has had the victim impact statements read to him and he wishes he had never done the things that he did.

48. However, that letter is entirely untested. Given the decision of Imbornone v R [2017] NSWCCA 144 I am not prepared to give that letter any weight.

49. A significant aspect of the offender’s subject case is that he has a diagnosis of Autism Spectrum Disorder. The offender’s mother gave evidence. I will also return to that when dealing with the offender’s subjective material. However, it was clear from the evidence of the offender’s mother, Sheree Smith, that the offender did not fully appreciate at the time of the offending the seriousness of what he was doing. I accept without hesitation the diagnosis of Autism Spectrum Disorder, however I am not prepared to find on balance that the offender has shown contrition in respect of the offending.

50. Section 16A(2)(fa) of the Crimes Act 1914 has no application in the matter presently under consideration. I have dealt with the issue of the pleas of guilty at an early stage of these reasons.

51. Ms Mendes submits that the offender is entitled to some consideration for co‑operation with authorities pursuant to s 16A(2)(h). At paragraph 20 of her written submissions Ms Mendes puts that the offender should receive a further numerical discount of 5% for assistance given in that he identified the location of 14 electronic devices, provided passwords and pin codes for the devices and provided consent for police to examine all data held within his Facebook and Instagram accounts. The Commonwealth submits that the offender was subject to an order but as I understand the submissions from the Commonwealth do not oppose some small consideration for assistance being given to the offender. I do not have to nominate a numerical value for any consideration for assistance.

52. The order to which the offender was subject related to the provision of passwords and pin codes. The offender identified the devices and provided consent to examine all of his data. That indicates some degree of assistance. That assistance was timely. It relates to this offending. The assistance provided was as much as practically the offender could provide at the time. The only benefit the offender will gain is the consideration for the assistance. In these circumstances I will allow some small consideration for the assistance. If necessary I would indicate a numerical figure of 5% but I accept that that is probably erring on the side of generosity.

53. One common feature to the submissions from the Commonwealth relating to Commonwealth offending is that general deterrence is paramount. I also had cause to deal with this issue in the decision of Halbisch to which I earlier referred.

54. Johnson J observed in De Leeuw [2015] NSWCCA 183 at [72(c)]:

“General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].”

55. Similar observations were made by Johnson J (Leeming JA, Beech-Jones J agreeing) in R vPorte [2015] NSWCCA 174 at [70]. In EG v R [2015] NSWCCA 21 Hoeben CJ at CL (Harrison and Hulme JJ agreeing) said at [42]:

"General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment…"

56. McClellan CJ at CL (Latham & Price JJ agreeing) in R v Asplund [2010] NSWCCA 316 at [50] said:

"The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity."

57. Price J in DPP (Cth) v Beattie [2017] NSWCCA 301 said at [120]:

“The importance of general deterrence and denunciation has also been emphasised in child pornography offences: Minehan at [94]; Porte at [70]; R v Booth [2009] NSWCCA 89 (‘Booth’) at [41].”

58. As I also observed in Halbisch clearly enough the public policy behind the significance of general deterrence in matters involving child pornography is the protection of children.

59. However, in this matter while general deterrence remains a very significant factor in the sentencing exercise the impact of general deterrence is reduced to an extent because of the offender suffering Autism. Between the sentence hearing and giving this decision the Court of Criminal Appeal of New South Wales handed down the decision of Blackett v R [2021] NSWCCA 210, which involved an offender with Autism Spectrum Disorder. Basten JA (Adamson J agreeing with brief additional comments, Campbell J agreeing) said at [47]-[48]:

“First, the reference to “mental health issues” requires attention. The judge appears to have treated those issues as including not only his autism spectrum disorder (ASD), but also clinical depression and anxiety. The focus should be on the ASD, which, as fully explained in the psychiatric material, which included the relevant extract from the Diagnostic and Statistical Manual of Mental Disorders (5th ed) (DSM-5), is a developmental disorder. It includes earlier diagnoses of Asperger’s and Pervasive Developmental Disorder not otherwise specified, to which reference had been made in earlier psychological reports. As Mr Manning’s evidence explained, his ASD involved a level of emotional development which did not correlate with chronological age. It resulted in gravitation towards younger people, and their interests. It also involved a lack of insight into and understanding of social behaviours and limitations in developing a theory of mind, which would allow a greater insight into the feelings and responses of others.

So understood, an important element of moral culpability in the relationship between an adult and a young person, where there is an age differential of nine years, is significantly reduced. That analysis also provides a reason to limit the weight given to general deterrence, as is usually the case where mental illness affects insight into wrongdoing. (The last point was recognised by the sentencing judge, in the passage set out above).”

60. As with any case, the decision of Blackett must be viewed in the context of its own facts and circumstances. However, it seems to me that the observations made by Basten JA as to the nature of Autism Spectrum Disorder has a more general application.

61. The Commonwealth also submits that there is a need for specific deterrence to be factored into the sentence in this matter. The offender has no criminal history. The offender is autistic. While there must be some attention given to the issue of specific deterrence noting in particular the aspect of cyberbullying the issue of specific deterrence will not achieve much significance in this matter.

Subjective material

62. A significant aspect to the offender’s subjective case is the diagnosis of Autism Spectrum Disorder. There are three reports from John Shephard, Clinical Psychologist, of Wagga Wagga dated 26 July 2019, 20 April 2021 and 2 August 2021. However, I will first of all go to the evidence of the offender’s mother. Miss Mendes also read an affidavit affirmed by Ms Smith.

63. Ms Smith says that she is indigenous and the offender also identifies as indigenous. The offender is the middle child of three children. She separated from the offender’s father when the offender was six. The boys initially went to live with their father and his new partner in Canberra and she went to Sydney. The offender told his mother that he was harshly physically disciplined by his step mother. She was not allowed to visit the boys at the home.

64. The offender was asked to leave the family home when he was nine. FACS (Family and Community Services) contacted her one afternoon. The offender’s father drove him to Sydney and she took over his care from that night. Thereafter communication between the offender and his father was minimal. Ms Smith had been sharing a small flat and she had to get other accommodation. She worked two jobs to make ends meet.

65. Ms Smith goes on to say in her affidavit that the offender had a lot of behavioural and emotional problems at school. There were significant issues with schooling and the offender was placed in special schools. Eventually they moved to Wagga Wagga.

66. The offender was enrolled in the Bidgee School in Wagga Wagga, which is a school for special needs students. The offender obtained his Year 10 Certificate. The offender has never had a job. When the offender was 14 the offender told his mother that he was gay. His grandparents have not spoken to him since then. The offender is very socially isolated.

67. Ms Smith goes into some detail as to the assistance and counselling she has obtained for the offender. The offender now does not leave the house unless he is with a support worker. On Mondays a privately retained social worker assists; on Wednesday a worker from a local Disability Service assists and on Friday an NDIS support worker assists. According to Ms Smith the offender easily gets anxious. She has never seen any evidence of the offender using illicit substances.

68. The affidavit goes on to set out that the offender spends most of his time playing computer games. Ms Smith has repeatedly told the offender that he must be very careful not to communicate with anyone under the age of 16 years. Apart from playing games the offender also busies himself with music. A sample of the music the offender creates was played at the sentence hearing and is contained on a thumb drive that will remain with the papers. According to Ms Smith the offender has made about $6,000 from his music over the last couple of years.

69. Ms Smith sets out that the offender has had a significant weight gain since he was charged by police. He constantly eats as a means of relief. He weighs 158 kg. The issue of over eating was amplified in oral evidence from Ms Smith at the sentence hearing.

70. Ms Smith was diagnosed with kidney cancer at the end of 2020 and she has undergone surgery a number of times. The cancer has spread to her breast and she has recently had breast tissue and lymph nodes removed. She is on her second round of chemotherapy. The offender’s younger brother also has autism. Unsurprisingly the offender was upset when he learnt of his mother’s diagnosis.

71. Understandably Ms Smith is concerned what might occur if the offender is sentenced to custody. Ms Smith indicates in her affidavit that she will continue to support the offender. She is of the opinion that he has “learnt a huge lesson” and that he will never be in trouble again.

72. In oral evidence Ms Smith indicated that the offender has verbalised suicidal ideation. He has become more withdrawn and stays in his room. She is concerned about the quantity of fast food that her son is consuming and she is aware that he has it delivered. The offender gained 30 kg since the day the search warrant was executed.

73. The evidence continued that the offender is now aware of the consequences of engaging in the type of conduct in which he engaged. Details were given of some of the activities in which the offender engages with the various helpers. There have been difficulties during the lockdowns the community has experienced due to the COVID-19 pandemic.

74. Further, the offender became aware of the enormity of his conduct when the police arrived at his door. The evidence continued that the offender now realises on line conduct can affect people in the real world.

75. Ms Smith gave evidence of the offender seeing John Shephard, Psychologist and also another practitioner in Albury. The consultation in Albury did not go well with the offender running on to the road immediately after. The offender has actively sought out psychologists since. He is now seeing Mr Shephard on a regular basis.

76. The Commonwealth’s representative cross-examined Ms Smith quite extensively. There was nothing in the cross-examination that causes me to have the slightest doubt about the veracity of the evidence of Ms Smith. She impressed as a very concerned mother, a very down to earth human being and an honest and straight forward witness.

77. The 2019 report by Mr Shephard goes to the assessment. It was not prepared for the purpose of these proceedings. The history of the offender is set out, including the difficulties with his formal education. At p 3 of the report Dr Shephard says that offender’s performance on the diagnostic tools placed him above the cut-off score for a diagnosis of autism spectrum disorder. The offender scored in the average range of a vocabulary test. At p 5 of the report Mr Shephard notes that the offender is a client of the NDIS and the outcomes of the assessment he conducted were to inform the NDIS. The offender has a diagnosis of Post-Traumatic Stress Disorder.

62. Mr Shephard concluded (p 6) that the offender’s presentation was consistent with criteria for a diagnosis of Autism Spectrum Disorder. He made a number of recommendations including medical monitoring, involvement in a social skills programme, occupational therapy and ongoing involvement with a clinical psychologist. He also recommended ongoing involvement with the NDIS. The report includes a description of the diagnostic tests.

63. The next report of April 2020 was an update report for the NDIS and again was not prepared for these proceedings. The report sets out the ongoing concerns so far as the offender is concerned. It also notes that while there have been some positive gains further support is required to encourage the offender to undertake alternative positive approaches to his routines. Further, that the offender will require therapeutic and behavioural supports to assist him and was strongly recommended that the offender continue fortnightly counselling sessions.

64. The latest report is dated 2 August 2021 and is addressed, “To Whom it May concern”. That report confirms the diagnosis of autism spectrum disorder – Asperger’s Syndrome. The report notes the offender’s interest in music. Mr Shephard opines (p 3) that considerable success has been attained in encouraging the offender to consider and undertake alternative approaches in his daily activities. Mr Shephard also recommends ongoing cognitive behavioural therapy and strongly recommends regular psychological interventions over the next twelve months. He also recommends continued involvement with the NDIS.

65. At page 1 of the report of 2 August 2021 Mr Shephard observes that the offender “has previously been diagnosed with having an autism spectrum disorder – Asperger’s syndrome”. The footnote to that sets out:

“Asperger’s syndrome: This a developmental disorder that acquired from birth and that negatively affects an individual’s ability to effectively socialise and communicate in an appropriate manner with peers or others…It is acknowledged that individuals with Asperger’s Syndrome typically experience social awkwardness, associated with one or more all-absorbing interests involving a specific topic or topics”

82. It seems that the written submissions from the Commonwealth were prepared without them being fully aware of the subjective case for the offender. Ms Mendes submitted that the diagnosis of autism spectrum disorder reduces the impact of general deterrence in this matter. I understood the Commonwealth to submit in oral submissions that as there was no evidence of any causal connection between the autism and the offending that the effect of the autism would be limited or at least not as significant if there was that causal connection. Ms Mendes on behalf of the offender submitted that even though there was no causal connection there was still that impact on the issue of general deterrence.

83. However, these submissions must be now considered in the light of the decision of Blackett v R to which I have earlier referred and from which I have extracted a portion of the judgment of Basten JA. As I understand her further supplementary submissions, Ms Mendes now puts that to use the words of Basten JA in Blackett at [46] there was a “form of linkage, although it was neither mechanical nor absolute in terms”. There is also the diagnosis of post-traumatic stress disorder.

84. To my mind, the material from Mr Shephard does not quite reach the level of the material that was available to the court in Blackett. However, nevertheless the material is such that I am persuaded that there should be reduction in the weight to be given to general deterrence.

85. The Commonwealth in supplementary submissions puts that “without further evidence, the Crown submits that the court ought be cautious in finding that the offender’s ASD completely explains his dependence on his mother, his unemployment, his confinement to his bedroom, his over use of online gaming as a social outlet and his problematic communication with teenage boys. He remains morally culpable for the antisocial conduct he engaged in”.

86. Further, the Commonwealth makes the observation that Mr Shephard first assessed the offender in mid-2019 which post-dates the offending. The Commonwealth repeats the submission that the reports are not offence specific. It seems that at least the initial report was not prepared for the purpose of these proceedings.

87. It is my understanding of the somewhat robust nature of the Commonwealth’s Supplementary submissions that the Commonwealth submits that the offender’s autism should have no or very little impact on the sentence generally and the impact of general deterrence in particular.

88. It is perhaps instructive to consider what was said by the plurality in Muldrock v The Queen [2011] HCA 39 at [54] and McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. The plurality in Muldrock at [54] said:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

89. Going to what was said in De La Rosa:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

90. It occurs to me that what was said by the Chief Judge at Common Law at [178] achieves some significance in the matter presently under consideration.

91. Considering the reports of Mr Shephard, the evidence from the offender’s mother and the principles set out above I am of the opinion that the autism does reduce the moral culpability of the offender and it does reduce but not eliminate the impact of general deterrence. I agree with the Commonwealth that the ASD does not fully explain a number of matters. However, it is still relevant as to the impact of general deterrence in this sentencing exercise. There is no reason to doubt that the offender has always suffered from ASD.

92. I have already noted that the offender does not have anything recorded against him on his criminal record. However, as the Commonwealth correctly submits, this factor attains less weight in matters involving child pornography. If authority is required see for e.g. R v De Leeuw [2015] NSWCCA 183 at [72(d)]. Section 16A(2)(ma) is not a relevant consideration in this matter.

93. The offender has no criminal history. I accept given the evidence of his mother that he now realises the enormity of his conduct. I accept that given the autism the offender did not fully appreciate how serious his conduct was before the search warrant was executed. The offender has been having regular sessions with Mr Shephard. I note the submissions by the Commonwealth at paragraph 52 on p 12 of their written submissions. In oral submissions the Commonwealth emphasised that the material from Mr Shephard was not offence specific. In these circumstances I am prepared to find on balance that he has good prospects of rehabilitation and that he is unlikely to reoffend. Be that as it may, I am firmly of the opinion whatever sentence is ultimately imposed the offender should be supervised by Community Corrections. In this regard I note s 16A(2AAA) of the Crimes Act 1914.

94. Given the evidence of the offender’s mother I am prepared to find that the offender has suffered social deprivation that enlivens the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 reducing the offender’s moral culpability. However, the weight afforded to those factors is not as great as with other matters dealt with by me in more remote places within New South Wales.

95. Again, as I understood the Commonwealth’s oral submissions it was put that undue weight should not be put on the subjective matters given the serious nature of the offending in this matter. This is consistent with authority The Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J (as he then was)) in R v Dodd 57 A Crim R 349 said at p. 354:

“Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594.”

96. Dodd was affirmed by the Court of Criminal Appeal in the decision of R v Carroll [2008] NSWCCA 218 – see especially at [20]-[21]. Carroll successfully appealed to the High Court but there is nothing in the decision of the High Court that impacts on the principle extracted immediately above.

97. Further as Bellew J observed in Clarke-Jeffries v R [2019] NSWCCA 56 at [45]:

“…Secondly, a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to the objective seriousness of the offending”.

98. Ms Mendes also relies on the issue of delay, noting that the offender was arrested almost 12 months after the execution of the search warrant. Ms Mendes argues that the offender has progressed well with rehabilitation and that the offender has been in a state of uncertain suspense. At the sentence hearing I raised the decision of R v Donald [2013] NSWCCA 238 in which Latham J observed at [49] that in New South Wales, “Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it”. I note that the Commonwealth refer to the Western Australian decision of Scook [2008] WASCA 114. That decision was extensively reviewed by Latham J in Donald.

99. The Commonwealth refers to the decision of DPP (Cth) v Pratten (No. 2) (2017) 94 NSWLR 194. Basten JA said at [100]:

“The suggestion that delay resulting from dilatory behaviour on the part of the prosecuting authorities may be a ground for mitigating the severity of a sentence for a federal offence, has not been located squarely within any of the factors listed in s 16A(2). Nor does it self-evidently have such a home. That is not to say that conduct occurring in the course of a prosecution will not be relevant – it clearly will be in specified circumstances. It may also be accepted that such circumstances may affect the physical or mental condition of the offender and, for example, the prospects of rehabilitation. However, it is quite another thing to say that the severity of the penalty should be reduced as an expression of disapproval of the conduct of the prosecutor or investigating authority. Even if such a course were available in relation to sentencing for a state offence, it does not follow that it supplies a basis for sentencing a federal offender. Absent statutory authority, that course should not be followed.”

100. The Commonwealth also submit that the delay is a consequence of the complexity of the offending. I accept that the devices had to be forensically examined. While I accept that there has been some delay I am not prepared to give that factor any weight in determining the sentence in this matter. I accept however as I have already noted that the delay has given the offender a chance to demonstrate rehabilitation.

101. Youth is also a factor to be considered as part of the subjective material so far as this offender is concerned. The offender was born in 1998 and accordingly was 20 at the time of the offending. I also note the effect of the decision of BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159. I have regard to the decision in Locke v R (2010) 207 A Crim R 34 at [41]-[49] per Hulme J. I also note and have regard to the decision of Thammavongsa v R (2015) 251 A Crim R 342 especially at [84]-[90] per Bellew J (Simpson J (as her Honour then was) and Hulme J agreeing, both with additional comments).

102. Hodgson JA in BP v R by way of additional comments said at [4]-[5]:

“First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36].

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

103. What was said by Hodgson JA at [5] as extracted above as to emotional maturity and impulse control developing progressively during adolescence and early adulthood is also relevant in the matter presently under consideration.

Comparable cases and other submissions

104. The Commonwealth submits that there should be a sentence of immediate imprisonment imposed in this matter. Ms Mendes on behalf of the offender submits that although a sentence of imprisonment is appropriate that sentence ought be immediately suspended pursuant to s 20(1)(b) of the Crimes Act 1914.

105. The concept of suspended sentences was considered by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. Kirby J (Gleeson CJ Hayne J agreeing with the outcome but making brief additional comments; Gaudron & Gummow JJ agreeing) said (footnotes omitted) at [74]:

“The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The "[c]onceptual [i]ncongruity" involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all.”

106. His Honour went on to say at [79]-[80]:

“The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do"

The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.”

107. Further his Honour said at [84]:

“In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application.”

108. A little later Howie J in giving the judgment of the court in R v Zamagias [2002] NSWCCA 17 said at [32]:

“Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”   

109. Although his Honour was dealing specifically with s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (as it then was) it seems to me that with unfeigned respect the principles enunciated have a broader application.

110. I also note the observations of Fullerton J in Karout v R [2019] NSWCCA 253 at [94]:

“…Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant’s offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play”.

111. Karout v R went to the High Court by way of application for Special Leave. Gordon and Edelman JJ dismissed the application “on the papers” and observed in [2020] HCASL 56 that “…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave”. The reason I raise this decision is the issue of the principle of general deterrence and the offending overwhelming other considerations in play. It occurs to me that this is relevant to the issue confronting the court in the matter presently under consideration. The state Sentencing Act does not apply but the overall general considerations are very similar. There will be cases where the offending and principles of general deterrence will “overwhelm other considerations in play” and require the court to impose a sentence of immediate imprisonment.

112. No submission is made on the issue of s 16A(2)(p) of the Crimes Act 1914 and accordingly, I will not address that any further.

Statistics and like cases

113. The decision of Hili & Jones v The Queen [2010] HCA 45 states that sentencing statistics have a limited use. On this issue there is also the decision of Brown v R [2014] NSWCCA 215 where Garling J observed at [81]:

“In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad.”

114. The possible factual circumstances so far as the offending presently under consideration are also broad. I have dealt with child pornography offences involving thousands of images.

115. Ms Mendes with her usual thoroughness has annexed the statistics kept by the Judicial Commission of NSW. In respect of the charge of Use Carriage Service to Solicit Child Pornography Material of a sample of 26 cases, 15 received sentences of full time custody, seven received suspended sentences pursuant to s 20(1)(b) of the Crimes Act 1914 and four received Community Corrections Orders. In respect of the charge of Use Carriage Service to Transmit Child Pornography Material to Self of a sample of eight cases five received full time custody, there were two released pursuant to s 20(1)(b) of the Crimes Act 1914 and one Intensive Correction Order. Of a sample of 61 cases of Use Carriage Service to Transmit/Publish/Promote Child Pornography Material 22 received a sentence of full time custody, 13 received Intensive Correction Orders, 24 received release pursuant to s 20(1)(b) and two were dealt with by recognizance under s 20(1)(a) of the Crimes Act 1914.

116. I have read and considered the statistics but I also inform myself of the limited use to which they can be put particularly in the context of the relatively small samples. I note in particular the decisions of Hili & Jones v The Queen [2010] HCA 45, Brown v R [2014] NSWCCA 215 at [81] per Garling J and the observations of Bathurst CJ in SS v R [2016] NSWCCA 197 at [61]ff.

117. The Commonwealth, with their usual thoroughness have provided two cases which are said to be comparable. One is R v Williams [2017] QCA 307 and the other is Clarke–Jeffries v R [2019] NSWCCA 56. The Commonwealth submitted at the sentence hearing that the latter decision is less serious than the matter presently under consideration but the offending in Williams was more serious.

118. Williams was sentenced in respect of one count of Use Carriage Service to Cause Child Pornography Material to be Transmitted to Self, One count of Use Carriage Service to Publish Child Pornography Material, four counts of Use Carriage Service to make a Threat to Kill, one count of Use Carriage Service to Transmit Child Pornography Material and nine counts of Use Carriage Service to Menace, Harass or Offend. He was sentenced to a total sentence of 3 years with release after 7 months on recognizance.

119. With respect, I agree with the Commonwealth’s assessment of the criminality in Williams when compared to the present matter. The offending occurred over a period of 13 months when the offender was 17 and 18 years of age. Using a total of four identities the offender made numerous and persistent requests for indecent photographs. Threats including threats to kill one which in reality related to one of the identities were involved. One of the victims sent over 100 photographs of her breasts, genitals and bottom to another of the identities. Videos of her urinating and sexually touching herself were also provided. Blackmail was used by the offender. The offending is fully described at [2]–[10] of the judgment. At [30] Holmes CJ (Fraser & Gotterson JJA agreeing) observed that the sentencing judge at first instance, “correctly identified the seriousness of the behaviour, which was calculated and callous and caused serious harm to three victims, likely to be lasting in its effect”.

120. Clarke-Jeffries involved a total of three charges, namely Use Carriage Service to Procure Person under 16 to Engage in Sexual Activity, Use Carriage Service to Solicit Child Pornography Material and Make Unwarranted Demand with Menaces with the Intention of Making Gain. The last count was contrary to s 249K(1)(a) of the Crimes Act, 1900 (NSW). The offender was initially sentenced to a total of 4 years and 4 months with a non-parole period of 2 years. The sentence was reduced on appeal to a total sentence of 2 years and 2 months with release after 9 months on recognizance.

121. In that matter the victim was a 15 year old female who the offender did not physically meet at any stage. Between October 2016 and January 2017 over 3,500 messages were exchanged in some of which the offender requested the victim to meet for sex, although only a small number were detailed in the facts and the precise number that included a request for sex were not known. The victim eventually complied with a request for photographs of her breasts. In February 2017 the offender resumed messaging the victim requesting that they meet for sex. The offender persisted with requests for sex and photographs despite the victim telling him that she was having an anxiety attack as a result of his demands. At one point the offender said he wanted to take the victim’s virginity and explained in explicit terms the acts he wished to perform with her. The offender demanded money in return for which he would delete the photographs he had.

122. The subjective case included evidence from the offender and his mother. The offender gave evidence of a suicide attempt. The offender’s mother’s evidence included that the offender had been diagnosed with depression at the age of 15. The offender was diagnosed with Post-Traumatic Stress Disorder and a Major Depressive Disorder. There were findings favourable to the offender that he was remorseful, he was unlikely to re-offend, had not been taking his medication and there was extra-curial punishment as he had lost his job and had been randomly assaulted. Youth was a factor that achieved some significance in the matter.

123. To my mind, reasonable minds could differ as to whether the offending in Clarke-Jeffries was less serious than the matter presently under consideration. There are some similarities but there are also some differences. Nevertheless it is a useful decision in the matter presently under consideration.

COVID 19 pandemic

124. The COVOD-19 pandemic continues to wreak havoc with the broader community. It has particular significance for those in custody. I note and have regard to the authorities of Mbele v R [2021] NSWCCA 182 at [96]-[104] and Valentine v R [2020] NSWCCA 116 at [59]-[62]. More recently there is also the decision of Toller v R [2021] NSWCCA 204 at [25].

Conclusions and orders

125. Given the offending and the need for general deterrence (although reduced in this case because of the offenders Autism) there must be a sentence of imprisonment. I will approach this matter on the same basis as I would a sentencing exercise relating to state offending, i.e. a determination as to whether there should be a sentence of imprisonment, then a determination of the length of the sentence and finally a determination as to the means by which that sentence is to be served.

126. In DPP (Cth) v Beattie to which I earlier referred when dealing with the question of general deterrence, Price J said at [145]-[146]:

“The Commonwealth Director submitted that based on the decision in Putland, aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director’s submission.

The Commonwealth Director’s submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales.”

127. The matter presently under consideration is being dealt with on indictment and accordingly I propose to deal with the matter by way of aggregate sentence. It will be therefore necessary for me to set out what sentences would have been imposed had separate sentences been imposed.

In respect of sequence 5, taking into account the matter on the s 16BA form a total sentence of 21 months indicating a starting point of 2 year 6 months and deducting the 25% for the plea and the 5% for assistance as set out earlier in these reasons;

In respect of sequence 6 a total sentence of 14 months indicating a starting point of 1 year 8 months; and

In respect of sequence 7 a total sentence of 14 months indicating a starting point of 1 year 8 months.

128. If separate sentences were imposed there would need to be some partial accumulation of sentences to take into account the different offending and the period of time over which the offending occurred.

129. I have determined that an appropriate sentence is one of three years imprisonment.

130. The issue next to be determined is the means by which the sentence is to be served. Given the findings I have made as to the seriousness of the offending and noting the various subjective factors including the offender’s autism, that I have determined that on balance the offender did not realise the true seriousness of his conduct because of that disorder, the subjective matters to which I have referred and particularly the need for ongoing assistance and supervision taking into account the principles enunciated in the decisions of Dinsdale and Zamagias I have decided this is an appropriate matter for the sentence to be suspended pursuant to s 20(1)(b) of the Crimes Act 1914.

131. The conduct to which sequence 8 relates, that is the matter on the s 16BA form, as I have observed, is a very serious example of that offence. The matter was placed on that form by the consent or at least acquiescence of the Commonwealth. Although the matter impacts on the ultimate sentence to be imposed in respect of sequence 5 applying the principles as earlier set out in these reasons in dealing with a matter on a s 16BA form the impact on the sentence simply cannot be the same as if sequence 8 was a substantive matter on which sentence was passed. I observe that had sequence 8 been a substantive matter on which I was required to pass sentence the total sentence would exceed three years and I would not have suspended the sentence even if that course had been available.

Orders

132. In respect of the matters to which the offender has pleaded guilty he is convicted.

133. The offender is sentenced to a term of imprisonment of three years. The operation of that sentence is suspended upon the offender entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 himself in the sum of $2,000 to be of good behaviour for four years. The recognizance is conditioned that the offender:

1. Be of good behaviour, i.e. not commit any further offences; and

2. To appear for sentence at any time in respect of any breach committed with the said period;

3. For a period of two years be supervised by an officer of the Department of Community Corrections and obey all reasonable directions of that officer, such directions to include but not be limited to the completion and participation in any assessment, counselling, treatment or therapeutic programmes deemed appropriate by the Department of Community Corrections;

4. While subject to supervision by the Department of Community Corrections, not travel outside New South Wales or the Commonwealth of Australia without the written permission from the officer from the Department of Community Corrections who is supervising him;

5. Be abstinent of all illicit substances; and

6. Notify the Registrar of this court of any change of address.

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Decision last updated: 29 September 2021