Director of Public Prosecutions (Cth) v KNOX

Case •

[2025] NSWDC 60

•

21 March 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: DPP (Cth) v KNOX [2025] NSWDC 60
Hearing dates: 13 March 2025
Date of orders: 21 March 2025
Decision date: 21 March 2025
Jurisdiction:Criminal
Before: Lerve DCJ
Decision:

Sentenced – see [105] – [111]

Catchwords:

Sentence – access of child abuse material – access child abuse material – state and federal offending – “Bugmy factors” – causal connection between “Bugmy factors” and offending – whether exceptional circumstances are made out in respect of federal offending

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes Act, 1900 (NSW)

Crimes (Sentencing Procedure) Act, 1999 (NSW)

Criminal Code 1995 (Cth)

Drug Misuse and Trafficking Act, 1985 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37

De Leeuw [2015] NSWCCA 183

DPP (Cth) v Beattie [2017] NSWCCA 301

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

EG v R [2015] NSWCCA 21

Halbisch [2021] NSWDC 306

Hili & Jones v The Queen [2010] HCA 45

Hutchinson v R [2018] NSWCCA 152

McGregor vR [2024] NSWCCA 200

R v Asplund [2010] NSWCCA 316

R v Bredal [2024] NSWCCA 75

R v Gajjar (2008) 192 A Crim R 76

R vPorte [2015] NSWCCA 174

Category:Sentence
Parties: The King
Robert KNOX
Representation:

Counsel:
Mr Ng for the Crown
Mr S Howell

Solicitors:
Office of the Director of Public Prosecutions
Mitchell & Co Lawyers
File Number(s): 2023/199811
Publication restriction: No

REMARKS ON SENTENCE

  1. This matter was heard remotely by me at Wagga Wagga with the parties appearing by audio visual link from the Downing Centre in Sydney.

  2. The offender appeared before a Magistrate at the Downing Centre Local Court on 2 April 2024 and entered pleas of guilty to the following offences, that he:

H77488345

Sequence 8: Between about 1 October 2022 and 6 October 2022 at Redfern in the State of New South Wales did use a carriage service to transmit material and that material was child abuse material, contrary to s 474.22(1) of the Criminal Code 1995 (Cth); and further

Sequence 12: Between about 15 February 2023 and about 10 June 2023 at Redfern in the State of New South Wales did use a carriage service to access material and that material was child abuse material, contrary to s 474.22(1) of the Criminal Code; and further

Sequence 13: Between about 12 February 2023 and about 17 June 2023 at Redfern in the State of New South Wales did use a carriage service to transmit material and that material was child abuse material, contrary to s 474.22(1) of the Criminal Code; and further

Sequence 15: On or about 22 June 2023 at Redfern in the State of New South Wales did possess Child Abuse Material and a USB labelled “E-bet”, contrary to s 91H(2) of the Crimes Act, 1900 (NSW); and further

Sequence 16: On or about 22 June 2023 at Redfern in the State of New South Wales did possess material, being child abuse material, in the form of data held in computers or contained in data storage devices and (he) did use a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code.

  1. Those pleas of guilty were adhered to at the sentence hearing on 13 March 2025. In respect of sequence 15 (i.e. the State offence) the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. In respect of the Commonwealth offending, noting the timing of the plea the offender is entitled to consideration for facilitating the course of justice, including the utilitarian value of the plea. In respect of the Commonwealth offending I assess that consideration as a numerical figure of 25%.

  2. The maximum penalty for sequences 8, 12, 13 and 16 is 15 years imprisonment. In respect of sequence 15 (state offence) the maximum penalty is 10 years imprisonment. There is no standard no-parole period applicable.

  3. Further, attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 is one offence of Possess Prohibited Drug contrary to s 10(1) of the Drug Misuse and Trafficking Act, 1985. That matter involved the possession of 0.02 grams of methyl amphetamine found on the offender at the time of his arrest. Noting the quantity of the drug involved it is appropriate that I deal with that matter pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 and record a conviction and impose no further penalty.

Facts

  1. The facts are before the Court by way of a set of agreed facts that are within the Crown tender bundle, exhibit A on sentence. At the beginning of that document is a helpful “Executive Summary” that sets out that the offender is a 37 year old computer programmer who was observed by a representative of the Child Exploitation Internet Unit of the New South Wales police participating in an online “meeting” on Zoom the unknown host of which broadcast pre-recorded videos constituting child abuse material to its various participants.

  2. During the Zoom meeting the offender broadcast himself engaging in acts of masturbation. The police subsequently executed a search warrant at the offender’s residence during which they located a sex toy worn by the offender during the Zoom meeting as well as four computerised devices and a USB in his possession each of which contain child abuse material. Police also located .02 grams of methyl amphetamine.

  3. Upon the forensic examination of the offenders devices they were found to contain text based child abuse material as well as images, one animated drawing and videos constituting child abuse material two of which were “screen recordings” that had been created by the offender whilst he participated into other broadcasts of child abuse material.

  4. Going to sequence 12 (Use Carriage Service to Access Child Abuse Material) while involved in the ongoing investigation of Zoom “meetings” created exclusively for the purposes of broadcasting child abuse material online, the New South Wales police observed the offender to be present throughout a 54 minute meeting during which at least 50 different videos depicting child abuse material was shown to at least 55 different participants.

  5. Police identified the offender as a user named “hairypervcock” which was associated with the email address [email protected] being a reference to the practice of either “party and play” or “penis puffing”. Footnotes indicate that “pnp” is the abbreviation for “party and play” which is a phrase that refers to consuming illicit substances to enhance sexual activity. Puff refers to the act of putting an erect penis in one’s mouth and “puffing” their cheeks like a puffer fish.

  6. The 50 videos broadcast during the meeting included 18 videos depicting the penetration of the anus of pre-pubescent male children by an adult male penis, 17 videos variously depicting adult males involved in acts of fellatio on and with prepubescent male children, several other videos variously depicted adult males performing analingus, child masturbating adult penis, and other acts of masturbation in the presence of a child including fondling the genitals of male prepubescent children. In addition, some videos depict a prepubescent female child exposing her genitals and an adult male receiving fellatio from a prepubescent female child.

  7. Following the forensic analysis of a laptop seized from the offender’s premises on 22 June 2023 police located two videos that the offender had created by screen recording his participation in the two separate broadcasts of pre-recorded videos constituting child abuse material on 15 February 2023.

  8. The first recording has a duration of 16 minutes and 42 seconds and depicted a “Zoom” that included the cast of child abuse material.

  9. The child abuse material predominantly depicted prepubescent male children involved in sexual intercourse and the digital penetration of the vaginas of prepubescent female children by adult males. The material also depicted prepubescent children performing fellatio on an adult male, a prepubescent male child being subjected to violent sexual acts including forced cunnilingus and digital penetration by an adult female who had also lashed the child with a leather whip and stepped and sat on the child while the child cried and a distressed infant crying in response to the sexual act performed on the infant.

  10. The second video recording which had a duration of 15 minutes and four seconds depicted a live online video room that included the broadcast of prepubescent male children being digitally penetrated by an adult and male prepubescent children engaged in sexual intercourse with each other. In this recording the offender also broadcast himself contemporaneously engaging in acts of masturbation.

  11. Sequences 8 and 13 relate to charges of transmission of child abuse material. The offender used an Oppo branded Smart phone and an Apple iPad to operate two different Telegram accounts, which were used to transmit text based child abuse material and 10 videos constituting child abuse material during five conversations with five different unknown users. Sequence 8 relates to the Apple iPad; sequence 13 relate to the Oppo smart phone.

  12. As sequence 8 relates to the transmission of text based child abuse material it will be necessary to set out the entirety of the text exchange.

  13. On 1 October 2022, the Offender had the following conversation with a person known as “Aussie Slamprv”, during which the Offender transmitted the following text-based child abuse material.

AUSSIESLAMPRV:

Wanna slam and rape a teen

OFFENDER:

Fuck love to join u doing that

AUSSIESLAMPRV:

What age should we target? I’m thinking 12/13

OFFENDER:

Yeah just hitting puberty, not yet a man still kinda boy

AUSSIESLAMPRV:

Fuck yes, cute blonde surfer boy

OFFENDER:

Fuck yeah! Straight little bro with a cute surfers arse. Love blonde young guys

AUSSIESLAMPRV:

Pick him up a the beach shower. He’s just in a tiny red speedo

OFFENDER:

Yeah after he’s been for a surf. Mmm yah red speedos and see the outline of his preteen cock.

AUSSIESLAMPRV:

Both of us showering either side of him.

OFFENDER:

Hell yeah. Swap holes a few times.

AUSSIESLAMPRV:

We see his pre teen cock growing hard. That’s when we know it’s time to slam him.

OFFENDER:

Hot to have him blow me as you rape him and then getting his hole after. So hot to slam hom. Then he will be begging us for our man cocks. Would be when we do another slam as well.

AUSSIESLAMPRV:

What do you get into

OFFENDER:

Bb, oral, rimming, outdoor, group piss, arse to mouth, bondage, anonymous loads, being a cum dump, perv.

  1. On 6 October 2022, the Offender had the following conversation with a person known as “Max Power”, during which the Offender transmitted the following text-based child abuse material.

MAXPOWER:

What’s your fav pedo stuff

OFFENDER:

Boys around 5 being fucked by dad u

MAXPOWER:

Yeah man. That and also brothers.

OFFENDER:

Incest is all hot.

MAXPOWER:

A man sneaking out his room with his wife to go rape his sons pussy is the hottest.

…

MAXPOWER:

I would love to have a naked boys dick rubbing mine

OFFENDER:

Same here, sucking his dick.

…

OFFENDER:

Turned on by the abuse of the son … blast and perbv

…

OFFENDER:

Love to fuck our son as he fuck u

MAX POWER:

Begging our son ‘fuck daddy boy!! Fuck daddy’s Slutty hole’

OFFENDER:

See him become a slutty pig like his daddys

MAX POWER:

…

  1. The facts recite that during the conversation that followed the offender admitted he had a sexual interest in children aged five years and older.

  2. In respect of sequence 13, that is the charge relating to the Oppo smartphone, during three separate conversations with different users between February and June 2023 the offender variously transmitted to them 10 videos constituting child abuse material. These videos variously depicted prepubescent male children performing fellatio on male adults and other prepubescent male children as well as adult males ejaculating on to the anus of prepubescent male children. One of these videos include several short videos joined together which depict an adult male engaged in anal sexual intercourse with a pre-pubescent child of indeterminate gender. The videos had a total length of 35 minutes and 15 seconds.

  3. Turning to sequence 15, that is the state offence of Possess Child Abuse Material, the facts recite that following the forensic analysis of a USB seized from the offender’s premises police located 9 videos, 16 images and an animated drawing constituting child abuse material. The videos depicted prepubescent male children involved in anal sexual intercourse with adult males but also included prepubescent male children receiving and performing fellatio with adult males. One video depicted an adult male and a prepubescent female child smoking methamphetamine. Another video depicted a male rubbing his penis on a prepubescent infant. Images variously depicted prepubescent male children exposing the genitals; the animated drawing depicted a prepubescent female toddler being penetrated by an adult male.

  4. In respect of sequence 16 the facts recite that in addition to the child abuse material found on the offender’s Oppo smart phone and laptop computer police also seized an Apple iPhone from the offender’s premises on which child abuse material was located. Together those three devices were found to contain 343 images and 145 videos constituting child abuse material.

  5. The Oppo smartphone was found to contain 41 images and 56 videos variously depicting children between infancy and approximately 10 years of age engaged in various sexual acts with adult males.

  6. The laptop was found to contain 42 images and 19 videos variously depicting prepubescent male children engaging predominantly in masturbation and fellatio with prepubescent male children performing fellatio on an adult male. One of those videos depicted several adult males engaged in penile – anal penetration on a prepubescent child of indeterminate gender.

  7. The Apple iPhone was found to contain 260 images and 70 videos variously depicting prepubescent children engaged in non-penetrative sexual activity as well as prepubescent children engaged in penetrative sexual activity with adults. The videos had a total length of 1 hour and 31 minutes.

  8. The offender was arrested following the execution of a search warrant at his premises on 22 June 2023. As was his right the offender declined to participate in a record of interview.

Assessment

  1. It will be necessary to make some assessment of the criminality involved. I note that in the written submissions there is in some cases some real difference between the parties as to the seriousness of the offending. This was also reflected in the oral submissions.

  2. In respect of sequence 8 the offender created the child abuse material that was transmitted. However the material was entirely text and did not involve the use of children. However the sexual activity described is in my view quite graphic and involved descriptions of sexual penetration of young children. In all of the circumstances this matter is towards the lower end of the scale of seriousness but not at the bottom of the range.

  3. Before going to the other sequences it is instructive to go to the decision of Hutchinson v R [2018] NSWCCA 152 at [45]-[46] where Hulme J (Meagher JA agreeing, Button J agreeing with brief additional comments) said:

“Accordingly, a revision of the list provided in Minehan v R of potentially relevant matters that may bear upon the assessment of the objective seriousness of offences concerning the possession, dissemination or transmission of child pornography and child abuse material is:

1.   Whether actual children were used in the creation of the material.

2.   The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3.   The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4.   The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5.   In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

6.   In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7.   Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8.   The proximity of the offender’s activities to those responsible for bringing the material into existence.

9.   The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.

10.   The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.

11.   Whether the offender acted alone or in a collaborative network of like-minded persons.

12.   Any risk of the material being seen or acquired by vulnerable persons, particularly children.

13.   Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

[46] Once again, it must be stressed that individual cases can always identify other matters relevant to an assessment of objective seriousness and so this list remains one that is not exhaustive.”

  1. At the beginning of the sentence hearing I indicated to the parties preliminary views that I had formed about the seriousness of each of the matters.

  2. Sequence 13 is more serious than sequence 8. Sequence 13 involves 10 videos depicting real prepubescent male children, penetration of prepubescent children and anal intercourse. The videos had a total length of 35 minutes and 15 seconds. The number of videos was not significant and method of transmission is as the Commonwealth submits not particularly sophisticated. The matter involved real children. I could not be satisfied there was any cruelty or physical harm occasioned to the children from the facts. It would seem from the facts that the material was distributed to one person. I am not able to find the offender was approximate to the people responsible for the production of the material. The offender acted alone. There was no risk of the material being acquired or seen by a susceptible person. The matter is below mid-range but not at the bottom of the range and as I have indicated earlier more serious than sequence 8. I gave this indication as a preliminary view at the beginning of the sentence hearing and neither party took issue with what I had indicated.

  3. The party’s submissions differed so far as the seriousness of Sequence 12, i.e. the charge of Access Child Abuse Material. The offence is constituted by the offender accessing 50 videos on the “Zoom” meeting that went for 54 minutes. The videos involve young children being penetrated and subject to other sexual acts and on one occasion there was some degree of cruelty. There was some limited planning. The offender is not approximate to the production of the material. The offender was a passive participant in that he was online watching the material, allowing the offender to record what he watched. Real children were involved. There is substance in the Commonwealth’s submission that the access to the material was designed to evade detection by accessing the child abuse material through an online service that had a legitimate use.

  4. In respect of Sequence 12, Mr Howell on behalf of the offender submitted that the offender was not the author or broadcaster of the material; the offender was a passive participant not an organiser. Further it was put the offender had no direct control over the material that was broadcast, nor did he have control over the content of the material. The offence involved two isolated occasions, and it is not suggestive of persistent access. I suggested at the beginning of the sentence hearing that the matter was marginally below mid-range. Mr Howell submitted in effect that it was less serious than that.

  1. The Crown submitted that the matter was within the mid-range. It was submitted that the gravamen of the offending is access to the material using a telecommunication service. Further, as I understood the submission the severity of the material is also relevant to the assessment. I agree with that submission. It was also submitted that the offender could have terminated his involvement in the meeting. The Crown also submitted that it is important to focus on what occurred rather than the label.

  2. The Crown is of course correct in the submission that the gravamen of the offence is accessing material. Taking into account the submissions of the parties and what I set out at [33] of these reasons, to my mind sequence 12 is marginally below mid-range.

  3. Sequence 15, that is the state offence of Possess Child Abuse Material, involved 9 videos, 16 images and an animated drawing. The videos depicted real children; they were prepubescent and involved various acts of intercourse including anal intercourse and fellatio. The images involved real prepubescent children; the animated drawing depicted a female toddler being penetrated by an adult male. The quantity of the child abuse material involved was relatively small however it involved young children and graphic content. The offender is not approximate to the producer of the material. There is no suggestion that the offender was going to further disseminate the material. I cannot be satisfied that any payment was made for the material. The offending is relatively unsophisticated. There was no risk of a susceptible person seeing the material. In all of the circumstances this matter is moderately below mid-range.

  4. I understood Mr Howell to submit on behalf of the offender that sequence 15, i.e. the State charge of Possess Child Abuse Material, is well below mid-range. The submissions continued that the state charge is grounded on the contents of a USB drive rather than a device. It was put that there were 16 images and 9 videos and an animated drawing. Further, it was submitted that taken in isolation the offending within sequence 15 would not cross the threshold in section 5(1) of the Crimes (Sentencing Procedure) Act. It was also submitted that if Sequence 16 was to also include the material to which sequence 15 relates the sentence would not be any greater by reason of the inclusion of the material to which sequence 15 relates. Initially I found some real attraction to that submission, but after having considered the Commonwealth’s submissions if the material to which sequence 15 relates was included in sequence 16 the seriousness of sequence 16 would be elevated marginally.

  5. The Crown appeared to take particular issue with the submission by Mr Howell that the criminality in sequence 15 can be contemplated by the sentence for sequence 16. The Crown submitted that there was additional criminality in sequence 15. Further, in respect of sequence 15 the Crown appropriately submitted on the content of the material, including the rubbing of an adult penis on a pre-pubescent infant. As I understood the submission the Crown put that that was the most serious of all of the images within the whole of the matter.

  6. Further, in respect of sequence 15 the Crown submitted that sequence 15 cannot be taken in isolation as it is not isolated offending, given the other matters for which the offender appears for sentence. I agree with that submission. I also agree with the submission that given the nature of at least some of the material the criminality cannot be contemplated by that which is contained in sequence 16.

  7. In respect of sequence 15, noting in particular the number of images and videos but also the content of the material taken with the other factors set out at [35] of these reasons, I maintain my original preliminary position that the matter is moderately below mid-range.

  8. Sequence 16, i.e. the Commonwealth charge of Possess Child Abuse material relates to 343 image files and 145 video files that were obtained through a carriage service. The possession involved three different devices. The videos and images depict real children subject to penetrative acts with adults. The sexual activity is described in the facts. The offender created a record of the material that he accessed. I cannot be satisfied that he was going to further disseminate the material or that he is approximate to the producer of the material. The matter is relatively unsophisticated. There is no suggestion that the material was able to be seen by susceptible persons. I could not be satisfied that the offender paid money for the material.

  9. Mr Howell submitted on behalf of the offender that sequence 16 is not necessarily in the mid-range, and as I understood his submissions that objectively, noting the number of images but also taking into account the content and the other factors, that the matter was below mid-range. The submissions continued that the possession was over three different devices. I do not see that as a mitigating factor.

  10. The Crown submits that sequence 16 is within the mid-range, and again, as I understood the submission more serious than my preliminary view that the matter was at the lower end of the mid-range. The Crown again, and appropriately so, emphasised not only the quantity of the material but also the severity of the content of the material.

  11. Noting the number of files and videos, but also the content of the material and the other factors at [40] of these reasons I am of the opinion this is within the mid-range but towards the lower end of the mid-range.

  12. It has been necessary to devote more time than might be usual to deal with the issue of the seriousness of the matters given Mr Howell’s ultimate submission that so far as the Commonwealth offending is concerned there are exceptional circumstances justifying an immediate release pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The seriousness of the matter is a consideration as to whether there are exceptional circumstances.

  13. In setting out the facts in detail and making a determination of the seriousness of the offending I have dealt with the nature and circumstances of the offending.

Section 16A(1) and s 16(2)(k) Crimes Act 1914(Cth)

  1. I note that s 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.

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

Sections 16A(2)(f) and (g)

  1. I dealt with the timing of the pleas of guilty at the beginning of these reasons. Noting the contents of the report of Dr Furst, the letter from the offender and the contents of the references, including that of the offender’s mother I am satisfied that the offender is contrite in respect of the Commonwealth offending and remorseful in respect of the State offending. I did not understand the Crown to submit to the contrary.

Section 16A(2)(j) and (ja) – general and specific deterrence

  1. There is undoubtedly an issue of specific and general deterrence to be addressed in any sentence for any offending involving the possession or transmission of child abuse material. In this case the impact of general and specific deterrence is ameliorated to an extent by reason of the issues of the offender’s mental condition. However, as I observed at the sentence hearing the issues of general and specific deterrence are not eliminated entirely.

  2. 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].”

  1. 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…"

  1. 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."

  1. 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].”

  1. As I also observed in Halbisch [2021] NSWDC 306, clearly enough the public policy behind the significance of general deterrence in matters involving child pornography is the protection of children.

Character, antecedents, age, physical or mental condition of the offender – s 16A(2)(m)

  1. The offender was 37 years of age at the time of the offending and is 39 years of age at the time of sentence. The offender is of prior good character.

  2. However, given the nature of the offending the offender's prior good character carries limited weight. If authority for that proposition is needed I note R v De Leeuw [2015] NSWCCA 183 at [72(d)] per Johnson J and R v Gajjar (2008) 192 A Crim R 76 at [27]-[29]. The Court (Maxwell P, Nettle JA (as his Honour then was), Weinberg JA) said in Gajjar at [28]:

"That is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors".

  1. Clearly in this matter the offender suffers from a number of mental health conditions as set out in the report of Dr Furst, which is within exhibit 1 on sentence.

  2. That report sets out that the offender’s father was an alcoholic who was physically and mentally abusive towards the offender and his mother. His father became a heavy smoker of cannabis. The offender was apparently singled out for punishment and aggression by his father. He was regularly beaten including being hit on the head, such beatings occurring approximately weekly. The offender gave a history of being sexually assaulted by one of his father’s male friends when the offender was five years of age that abuse was not disclosed at the time.

  3. The report goes on to set out that the offender was sexually assaulted as an adult (aged approximately 23) in 2008. The offender would resort to self-medication by using drugs to deal with his negative memories and emotions. He was using MDMA and cannabis at the time. The offender came close to committing suicide. Further, as a result of the sexual assault the offender avoided dating and avoided sex over the following years until he formed a relationship when he was 28-29 years old.

  4. The offender reported to Dr Furst history of nightmares including dreams in which he thought people were “coming to get him”. The offender experienced mood swings throughout his life. The offender’s general practitioner was the offender’s primary support. The offender also consulted a counsellor on referral from his general practitioner. There was a further suicide attempt in 2021.

  5. Further, the offender was treated by a counsellor/therapist at the Sexual Health Clinic in Sydney for about eight months between 2021 and 2022. At this time the offender was also using methyl amphetamine every one to two weeks to help him cope with anxiety and stress. He was using between 0.5 to 1 g of methyl amphetamine each week by his mid 30s, usually on weekends. There was a further suicide attempt after he was charged with the matters presently before the court.

  6. Dr Furst also sets out that the offender took an overdose of multiple medications together with alcohol in November 2023. He was admitted to hospital and then went to stay with his mother, returning to Sydney some four months later. He has since returned to live with his mother in the Illawarra area.

  7. The report notes that while the offender was living in Redfern he was under the care of a general practitioner at the Waterloo Medical Centre. The offender was prescribed the antidepressant medications Avanza and Efexor XR after being admitted to the Royal Prince Alfred Hospital in 2023. He was also prescribed the mood stabilising medication Lamotrigine. The offender has seen a psychologist on five occasions about 12 months ago. He has returned to the care of his general practitioner since moving back to the Illawarra area and has seen a psychologist on one occasion in November 2024.

  8. At page 5 of the report Dr Furst sets out “he stated he knew that looking at such material was wrong and he feels bad and guilty about this. He stated that he was ashamed of what he has done and was worse than embarrassed. He stated that he shut himself off from his friends and other people he knew being charged in 2023. He said, ‘what I did was one of the worst things I could do”. He was also acutely aware of the harmful effects of the production of child abuse material on children”. It is this part of the report which I have extracted taken with the letter from the offender that leads me to find on balance that the offender is contrite and remorseful. In this regard I also note at page 8 of the report Dr Furst opines that the offender accepts his guilt and feels ashamed and embarrassed about his offending actions.

  9. The offender told Dr Furst that he is generally attracted to adult males several years older than him and he identifies as being gay. He has had two serious relationships. The offender feels insecure in relationships and fears abandonment.

  10. Dr Furst opines (page 5) that the offender appears to have a pattern of sexual preoccupation and uses sex as a means of managing stress and anxiety. He has a large collection of adult gay pornography. He said that having sex makes him feel better and makes him feel like he is not weird or an outcast

  11. At page 6 of the report Dr Furst opines that the offender meets the criteria for the diagnosis of the mental disorders of complex post-traumatic stress disorder, anxiety disorder (features of low self-esteem, avoidance and social phobia) and substance abuse disorder. It is hardly surprising that Dr Furst opines that the complex post-traumatic stress disorder likely stems from him being sexually assaulted as a child, coupled with the recurrent physical and emotional abuse at the hands of his father in his formative years. Helpfully, Dr Furst goes on to describe the symptoms of complex post-traumatic stress disorder.

  12. At the top of page 7 of the report Dr Furst sets out the question “Was there a relevant causal nexus between a mental health condition or cognitive impairment (if any) and the commission of the offences?”

  13. With respect to Dr Furst I do not see what follows is an answer to that question. I note, however, under the heading Dr Furst says, “Additionally, the use of methyl amphetamine in increasing amounts of recent years has most likely increased his sexual interest and sexual arousal/pleasure when engaging in sex and when viewing pornography, including at the time of the offending in question before the court. The use of methyl amphetamine is also associated with disinhibition and impaired judgement/decision making.”

  14. To my mind, Dr Furst does not make a causal connection between the mental health condition and the offending. However, the offender’s use of substances has impacted on the offending.

  15. Clearly, given what occurred to the offender as a child, the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened, reducing the offender’s moral culpability. Included in this is the physical and mental abuse suffered by the offender at the hands of his father and the sexual abuse when he was young child.

  16. Moreover, I am firmly of the opinion - and the Crown did not take issue with the fact - that there is a clear causal connection between what have become known in shorthand form as the “Bugmy factors” and the offending.

  17. Mr Howell specifically took me to [43]-[44] of the judgment of the plurality in Bugmy. Paragraphs [42]-[44] of the judgment set out:

“It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.

[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

  1. I note that Dr Furst says (page 8) “the combination of adverse developmental experiences, chronic anxiety, low self-esteem, social avoidance and depressive tendencies led to a pattern of maladaptive coping that involved using drugs and sex as a means of emotional relief and as a means of escaping from negative thoughts and traumatic memories.” It is that part of the report that grounds the causal connection between what have become known in shorthand as “The Bugmy factors” and the offending. Although there is no need for an offender to establish a causal connection between those factors and the offending, clearly the factors attain more weight if there is that causal connection. Clearly the factors reduce the moral culpability of the offender to a very meaningful extent.

  2. Further at page 8 Dr Furst sets out his recommendations for a treatment plan if the offender remained in the community. They include regular appointments with the offender’s treating doctor, accepting recommendations with respect to referrals to and treatment with a clinical psychologist, continued medication, recommendations with respect to drug and alcohol counselling, referral to a psychiatrist with respect to reviewing his treatment plan in response to treatment and should the need arise he should access an acute mental health crisis services at a local hospital.

  1. Dr Furst sets out that should the offender receive a custodial sentence the offender will require regular reviews with a psychiatrist and mental health care nurse working with Justice Health, the frequency of the clinical contact depending upon the severity of his depressive symptoms. Dr Furst also sets out that the offender requires ongoing treatment with psychotropic medication namely Avanza, Efexor and Lamotrigine.

  2. Although there is no causal connection between the mental condition suffered by the offender, the mental conditions as diagnosed by Dr Furst form a substantial part of the subjective case for the offender. I note what was said by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. In this case it is important to note that part of the judgment at [178]. In the matter presently under consideration I am satisfied that, because of the mental conditions diagnosed by Dr Furst, the impact of general and specific deterrence are ameliorated to an extent.

  3. During the sentence hearing I suggested to Mr Howell that he was submitting in effect that there was a complex interconnection between the “Bugmy factors”, the mental health conditions as diagnosed and the offending. I understood Mr Howell accepted that was a summary of his position. I accept there is that complex interconnection. I have already indicated that the moral culpability of the offender is reduced by reason of the “Bugmy factors”. To my mind, given that complex interconnection between the various issues, to further reduce the moral culpability by reason of the mental conditions alone would be to double count.

  4. Dr Furst opines (page 9) that in his professional opinion the offender’s complex post traumatic stress disorder, anxiety disorder and previous suicide attempts place him at an increased vulnerability compared with other inmates in a custodial setting. Further, the offender would be more vulnerable to the effects of stress in the custodial environment and/or the effects of being “stood over”, intimidated, threatened and/or assaulted by other more mentally robust inmates. The stress of being incarcerated would also increase the offender’s risk of relapsing into more acute phases of depression and increase his risk of suicide, which is currently moderate to high. The report was admitted without objection. I accept that because of these issues custody would be more onerous for this offender.

  5. So far as the risk of reoffending is concerned, Dr Furst opines (page 10) that having regard to the available literature and the offender’s personal static and dynamic factors, that the offender’s risk of reoffending is most likely in the upper range of 1 to 7% or higher for accessing further child abuse material in the next five years of free time in the community and 1 to 2% or higher for committing a hands-on sexual offence in the next five years of free time the community. I interpret this as being that the offender is at a relatively low risk of reoffending. I am prepared to find on balance that on the material available the offender is at a low risk of re-offending, or so far as the state offending is concerned I am prepared to find on balance that the offender is unlikely to re-offend.

  6. Before going to the competing submissions as to the ultimate outcome of this matter, the only other matter within s 16A(2) of the Crimes Act 1914 to be considered is the offender’s prospects of rehabilitation. Dr Furst makes extensive recommendations as to a treatment plan going forward for the offender. Mr Howell submitted, correctly in my view, that the offender has been “under treated” for his various conditions since childhood. Making the assessment with the material before me I assess the prospects of rehabilitation of the offender as reasonable. I did not understand either counsel at the sentence hearing to take issue with that assessment. On the issue of rehabilitation I note that regard must be had to s 16A(2AAA) of the Crimes Act 1914 (Cth).

  7. Before leaving the subjective case, I note and have regard to the character references within exhibit 1 on sentence. Mr Ortega speaks of the remorse of the offender and maintains the offender is “an honest loyal and accountable person”. Mr Jacobs is a close friend of the offender. He speaks of the abusive relationship in which the offender found himself and also speaks of the offender’s remorse.

  8. The offender’s mother maintains that the Covid-19 lockdowns had a “terrible” impact on the offender. I note that Mr Jacobs makes a similar point in his reference. His mother sets out that the offender will have family support. This goes to the aspect of rehabilitation. The offender assists his elderly grandfather. Not surprisingly she is concerned for her son’s welfare if he is incarcerated.

  9. I note that the reference from the offender’s mother sets out that the offender assists his elderly grandfather. However, no submission either written or oral is advanced on behalf of the offender so far as s 16A(2)(p) of the Crimes Act 1914 (Cth) is concerned.

General Remarks

  1. So far as sequence 15 is concerned I will need to give proper consideration and effect to sections 3A and 5(1) of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

  1. to ensure that the offender is adequately punished for the offence,

  2. to prevent crime by deterring the offender and other persons from committing similar offences,

  3. to protect the community from the offender,

  4. to promote the rehabilitation of the offender,

  5. to make the offender accountable for his or her actions,

  6. to denounce the conduct of the offender, and

  7. to recognise the harm done to the victim of the crime and the community.

  1. Mr Howell puts in respect of sequence 15 that the matter does not cross the threshold within s 5(1) of the Crimes (Sentencing Procedure) Act and that the matter ought be dealt with by imposition of a Community Correction Order for 3 years. It was further put that such an order would “not be without utility”. I understood the submission to mean that the period of supervision of the offender could be extended.

  2. It was also put on behalf of the offender that if the court concludes that there are exceptional circumstances justifying the suspension of any sentence, it would be an unusual outcome for there to be a custodial sentence imposed in respect of sequence 15.

  3. The Commonwealth submitted quite forcefully (that is an observation not a criticism) that although the volume of material with which sequence 15 is concerned is relatively low given the severity of the content of the material, the matter does cross the threshold of s 5(1) of the Crimes (Sentencing Procedure) Act. In respect of sequence 15 the Crown submitted that it was not isolated offending. That submission is made good.

  4. Ultimately, whether the criminality of sequence 15 crosses the threshold is a matter about which reasonable minds may differ. I note the agreed facts indicate that the nine videos depicted pre-pubescent male children involved in sexual intercourse with adult males but also included pre-pubescent male children receiving and performing fellatio with adult males. One video depicts a an adult male and a pre-pubescent female child smoking methyl amphetamine. Another video depicts a male rubbing his penis on a pre-pubescent infant.

  5. Although the number of images and videos is quite small, the content of some of the material is very serious. In all of the circumstances, but also noting the other factors that went to the objective seriousness as earlier set out in these reasons, I am of the opinion that the matter does cross the s 5 threshold.

  6. In respect of the Commonwealth offending, the Crown submits that only a sentence of immediate and full time imprisonment is appropriate given the offending, despite the subjective case. Mr Howell for the offender puts that it is accepted that a sentence of imprisonment must be imposed but there are exceptional circumstances and the court is able to invoke s 20(1)(b) of the Crimes Act 1914 and direct the immediate release of the offender on him entering a recognizance. Essentially, the ultimate disposition of this matter will come to whether I am satisfied on balance that there are exceptional circumstances.

  7. Whether exceptional circumstances are made out is inextricably connected with the manner in which any sentence is to be served. It is appropriate to then consider the appropriate sentence before going to exceptional circumstances and associated with that how the sentence is to be served.

  8. In respect of sequence 15 the appropriate sentence is 9 months imprisonment indicating a starting point of 12 months. In other circumstances I would specify a non-parole period of 5 months with a balance of term of 4 months in respect of this matter. In respect of the four remaining Commonwealth offences it is appropriate to impose an aggregate sentence, noting the decision of McGregor vR [2024] NSWCCA 200 at [92]. The sentences that would have been imposed had separate sentences been imposed are as follows:

  1. In respect of sequence 8 a total sentence of 9 months indicating a starting point of 12 months;

  2. In respect of sequence 12 a total sentence of 18 months indicating a starting point of 2 years;

  3. In respect of sequence 13 a total sentence of 18 months indicating a starting point of 2 years; and

  4. In respect of sequence 16 a total sentence of 2 years 3 months indicating a starting point of 3 years.

  1. If separate sentences were imposed there would need to be some degree, although to my mind modest degree, of partial accumulation to recognise the different offending. In all of the circumstances I am of the opinion that the appropriate sentence for the Commonwealth offending is 2 years and 10 months.

  2. I now turn to the issue of whether the offender has established that there are exceptional circumstances. The term “Exceptional Circumstances” is found within s 20(1)(b)(ii) of the Crimes Act 1914 (Cth). Section 20(1) relevantly provides:

(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

(a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A) on or before a date specified in the order; or

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;

(iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;

(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or

Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):

(i) if none of the offences is a Commonwealth child sex offence—either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.

(1A) Subject to subsection (1B), if the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period:

(a) be subject to the supervision of a probation officer appointed in accordance with the order; and

(b) obey all reasonable directions of the probation officer;

the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.

  1. The expression “exceptional circumstances” is not defined within the legislation. In R v Bredal [2024] NSWCCA 75 Dhanji J (Harrison CJ at CL agreeing with additional comments, Button J agreeing and agreeing with the additional comments) dealt with the history of the relevant legislation at [32]ff. At [60]-[64] Dhanji J went on to say:

“The use of the expression, “exceptional circumstances”, including in the context of sentencing, is not new. The above explication is consistent with what would, in any event, be understood from the words themselves. In R v Tootell; Ex parte Attorney-General of Queensland [2012] QCA 273, the Queensland Court of Appeal (Holmes and Fraser JJA, Henry J) considered the expression in the context of s 9(5) of the Penalties and Sentences Act 1992 (Qld) which required that an offender serve an actual term of imprisonment for an “offence of a sexual nature committed in relation to a child under 16 years”, “unless there are exceptional circumstances”. The Court (at [18]) described as helpful the observations of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [1999] 2 All ER 13 at 20 where his Lordship, also in the context of sentencing legislation, said:

‘We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

[61] A combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379; Tootell at [20]. Plainly, the requirement may result in a necessity to impose a sentence which would not have been imposed absent the requirement for exceptional circumstances. The factors that combine to make a particular case exceptional will all be factors relevant to the determination of sentence more generally. The purposes of sentencing will remain at the forefront. It is the impact of the particular factors on those purposes that will make the case either exceptional or unexceptional.

[62] The exercise of the sentencing discretion referred to above, is, of course, in the context of Part 1B of the Crimes Act and relevant common law. That context includes the various changes brought by the amending Act discussed above, such as the increase in maximum penalties and, more generally, legislative intentions with respect to Commonwealth child sex offenders. That regime informs the sentencing process as part of the “other matters” the Court must take into account pursuant to s 16A(2) of the Crimes Act: see Hurt v The King at [32].

[63] The changes brought about by the amending Act are both punitive and rehabilitative, both stemming from a concern to protect the community. The term “exceptional” used in its present context thus requires the circumstances to be sufficiently “exceptional” such that, despite a period of imprisonment being required, the offender should not be required to serve any part of that sentence in actual custody. While a finding in relation to exceptional circumstances is a step in the sentencing process (after determining the s 17A threshold has been crossed, and determining the length of the sentence), the instinctive synthesis remains engaged. As I have said, whether the threshold is reached is not considered in a vacuum, but rather having regard to all the circumstances of the case. It is “based on an assessment of all of the usual sentencing criteria”: R v Jones [2022] SASCA 105 at [45]. To take the obvious example, the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional.

[64] Finally, the decision as to whether the circumstances are sufficiently exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act so as to warrant the complete suspension of the sentence is not to be thought of as a decision between a sentence of imprisonment and no punishment at all. The option of no (curial) punishment at all has been provided by the legislature in s 19B of the Crimes Act. Section 20(1)(b) has been maintained by the legislature as a sentencing option in an appropriate case. As Bray CJ said in Elliot v Harris (No 2) [1976] 13 SASR 516 at 527, in an observation endorsed in, at least, R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503 at [86]; R v Zamagias [2002] NSWCCA 17 at [31] and R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215 at [36], "[s]o far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such as a sentence involved on the defendant’s record and his future…". Of course, a suspended sentence is significantly more lenient than one that is not suspended. But it involves real punishment nonetheless.”

  1. It is put on behalf of the offender (paragraph 67 offender’s written submissons) that a number of factors in this case amount to exceptional circumstances. Those factors are as set out by Mr Howell in his submissions:

  1. The relative seriousness of the offence(s);

  2. The offender’s reduced moral culpability on account of his background of trauma and resultant mental health conditions and drug use;

  3. His early pleas of guilty;

  4. His genuine remorse;

  5. His absence of prior convictions;

  6. His prior good character;

  7. His good prospects of rehabilitation;

  8. His low risk of re-offending; and

  9. His patent vulnerability in a custodial setting.

  1. Absence of prior convictions and prior good character are essentially the same factor expressed differently. For reasons set out earlier in these reasons, prior good character, in respect of offending such as is presently under consideration, attains less weight. The early plea of guilty and remorse/ contrition is acknowledged as is the offender’s reduced moral culpability. I have considered all of the subjective case including the finding of the causal connection between the “Bugmy factors” and the offending and the vulnerability of the offender in a custodial setting. I have found that the offender has reasonable prospects of rehabilitation.

  2. However, for reasons set out in some detail earlier in these reasons I find the objective criminality is more serious than that submitted on behalf of the offender. Clearly, the seriousness of the matter is a factor to be considered in determining whether exceptional circumstances are made out.

  3. In all of the circumstances, having given the matter much consideration, I have concluded that, despite what is undoubtedly a strong subjective case, exceptional circumstances have not been established. It follows that a sentence of immediate imprisonment must be served.

  1. A further matter to be considered is the ratio between the period in which the offender will be in actual custody and the period in the community under supervision. I note that in this matter the Commonwealth has not submitted as it has in other such matters before me that the matter is appropriate for a non-parole period, meaning that the total sentence must be in excess of 3 years. I note and have regard to the decision of Hili & Jones v The Queen [2010] HCA 45. There is no “norm” so far as the ratio between the period in custody and the total sentence is concerned. In this matter the ratio should be lowered beyond what might ordinarily be the case because of the need for an extended period of supervision to ensure the proper reintegration of the offender into the community but moreover to ensure that the offender receives the treatment as recommended by Dr Furst.

Orders

  1. In respect of each of the matters the offender has pleaded guilty, he is convicted.

  2. The sentences imposed are as follows:

  1. In respect of sequence 15 (state offending) the offender is sentenced to a fixed term of 5 months (this would in other circumstances be the non-parole period) to commence on 21 March 2025 and will expire on 20 August 2025. I have imposed a fixed term as any period on parole would be subsumed by the sentence that I am about to impose in respect of the Commonwealth offending.

  2. In respect of sequences 8, 12, 13 and 16 the offender is sentenced to an aggregate sentence of 2 years and 10 months (34 months). The sentence is to date from 21 April 2025.

  3. After a period of 11 months the offender is to be released upon him entering a recognizance himself of $1,000 to be of good behaviour for a period of 2 years 6 months (30 months). That recognizance is to be conditioned that the offender will:

  1. Be of good behaviour;

  2. Appear for sentence in respect of any breach with the period of the recognizance;

  3. Notify the Registrar of this court of any change of address; and

  4. Be supervised by the Department of Community Corrections and obey all reasonable directions of officers of that Department, and in particular to obey all reasonable directions as to ongoing treatment and counselling relating to substance abuse and mental health issues.

  5. Not to travel interstate or overseas without the written permission of the officer of the Department of Community Corrections who may be supervising him at the relevant time.

  1. In respect of the charge of Possess Prohibited Drug, which attaches to the s 166 certificate, the offender is convicted and pursuant to s 10A of the Crimes (Sentencing Procedure)Act no further penalty is imposed. The drug is forfeited to the Crown for destruction.

  2. Pursuant to s 23ZD Crimes Act 1914 (Cth), all devices seized are forfeited to the Crown.

  3. I direct that a copy of the report of Dr Furst within exhibit 1 be forwarded to the Department of Corrective Services.

  4. I recommend to the Department of Corrective Services that the offender be placed on “suicide watch” upon being taken into custody.

  5. I am obliged to explain the sentence to the offender. The result of my orders is that you will be taken into custody today, and will serve a total period in actual custody of 12 months, which includes the State and Commonwealth offending. After that period of 12 months you will be released on you entering a recognizance to be of good behaviour for 2 years and 6 months. If you commit any further offence within that period you will be liable to be called up and sentenced to the remainder of the sentence for the Commonwealth offending.

  6. It is the courts intention that the offender be released upon entering the recognizance on 20 March 2026.

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Decision last updated: 08 May 2025

Most Recent Citation
Cases Cited

24

Statutory Material Cited

5

Bugmy v The Queen [2013] HCA 37
R v De Leeuw [2015] NSWCCA 183
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301