Lane v The King

Case •

[2025] NSWCCA 113

•

04 August 2025

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Lane v R [2025] NSWCCA 113
Hearing dates: 24 February 2025
Decision date: 04 August 2025
Before: Garling J at [1];
Lonergan J at [2];
Ierace J at [3]
Decision:

(1)   Grant leave to appeal;

(2)   Appeal allowed in respect of ground 1;

(3)   Quash the sentence imposed in the District Court on 12 April 2024 and in lieu thereof impose an aggregate sentence of 6 years, to commence on 24 May 2023 and to expire on 23 May 2029, with a non-parole period of 3 years and 6 months, to expire on 23 November 2026.

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of Commonwealth offences relating to child abuse material — Whether sentencing judge has acted on a wrong principle with respect to the applicant’s mental health and its connection to the offending behaviour — De La Rosa principles

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, since repealed

Crimes Act 1914 (Cth), ss 16A, 16A(2AAA), 16BA

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Code Act 1995 (Cth), ss 272.14(1), 474.22(1), 474.22A(1)

Customs Act 1901 (Cth), s 233BAB(5)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 28

Cases Cited:

Baden v R [2020] NSWCCA 23

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Elchaar v R [2025] NSWCCA 50

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

McBeth v R [2009] NSWCCA 235

Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243

R v Hutchinson [2018] NSWCCA 152

Category:Principal judgment
Parties: Timothy John Lane (Applicant)
Rex (Respondent)
Representation:

Counsel:
D Dalton SC (Applicant)
C J Tran / O J Ronan (Respondent)

Solicitors:
Nicola Velcic & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2023/112143
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
12 April 2024
Before:
N Williams DCJ
File Number(s):
2023/112143

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 12 April 2024, following his pleas of guilty to four Commonwealth offences relating to accessing, possessing, importing and transmitting child abuse material and two counts of procuring a child to engage in sexual activity outside Australia, Timothy Lane (the applicant) was sentenced by N Williams DCJ to an aggregate term of imprisonment of 7 years, to commence on 24 May 2023 and expire on 23 May 2030, with a non-parole period of 4 years and 3 months, expiring on 23 August 2027. A further count of using a carriage service to transmit child abuse material was taken into account in the sentence of one of those offences.

The applicant sought leave to appeal the sentence imposed pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), relying upon two inter-related grounds of appeal:

Ground 1

Her Honour erred in finding that there was no direct causal connection between the applicant’s mental health and the offending conduct, and that upon this basis her Honour was not prepared to find any reduction in moral culpability and specific deterrence, and no basis for a significant reduction of the sentence with respect to the principle of general deterrence.

Ground 2

The sentence imposed was manifestly excessive.

Held (Ierace J, Garling and Lonergan JJ agreeing), granting leave and upholding ground 1:

  1. As to ground 1, the sentencing judge referred to the principle stated by McLellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178], namely, that “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”, but did not apply the principle correctly, by instead requiring there to be a “direct causal link” before the offender’s mental illness could mitigate his moral culpability: [112] (Ierace J) (Garling J at [1] and Lonergan J at [2] agreeing).

  2. Given ground 1 was made out, it was not necessary for the Court to consider ground 2 of the appeal: [112] (Ierace J) (Garling J at [1] and Lonergan J at [2] agreeing).

Resentence

  1. The applicant was resentenced to an aggregate term of imprisonment of 6 years, backdated to commence on 24 May 2023 and expire on 23 May 2029, with a non-parole period of 3 years and 6 months, expiring on 23 November 2026: [126] (Ierace J) (Garling J at [1] and Lonergan J at [2] agreeing).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

JUDGMENT

  1. GARLING J: I agree with Ierace J.

  2. LONERGAN J: I agree with Ierace J.

  3. IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence imposed on him on 12 April 2024 by N Williams DCJ for seven Commonwealth offences relating to child abuse.

  4. The offences were as follows:

  1. Sequence 1, that on 6 April 2023 he intentionally imported prohibited tier 2 goods (child abuse material), contrary to s 233BAB(5) of the Customs Act 1901 (Cth), which has a maximum penalty of 10 years imprisonment and/or 2,500 penalty units;

  2. Sequence 2, that between about 22 April 2023 and 11 May 2023 he procured a child to engage in sexual activity outside of Australia, contrary to s 272.14(1) of the Criminal Code Act 1995 (Cth), which has a maximum penalty of 15 years imprisonment;

  3. Sequence 3, that between about 2 and 3 November 2022 he procured a child to engage in sexual activity outside of Australia, contrary to s 272.14(1) of the Criminal Code Act;

  4. Sequence 4, that between about 2 and 3 November 2022 he used a carriage service to cause child abuse material to be transmitted to himself, contrary to s 474.22(1) of the Criminal Code Act, which has a maximum penalty of 15 years imprisonment;

  5. Sequence 5, that between about 5 November and 4 December 2022 he used a carriage service to solicit child abuse material, contrary to s 474.22(1) of the Criminal Code Act;

  6. Sequence 6, that between about 11 November and 30 November 2022 he used a carriage service to transmit child abuse material, also contrary to s 474.22(1) of the Criminal Code Act;

  7. Sequence 7, that between about 11 November and 30 November 2022 he used a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code Act; and

  8. Sequence 8, that on about 24 May 2023 he possessed or controlled child abuse material obtained using a carriage service, contrary to s 474.22A(1) of the Criminal Code Act.

  1. The applicant pleaded guilty to the charges while they were in the Local Court. Sequence 6 was scheduled to Sequence 7 pursuant to s 16BA of the Crimes Act 1914 (Cth) so that it was taken into account in the sentence for Sequence 7. The applicant received an aggregate term of imprisonment of 7 years, commencing on 24 May 2023 and expiring on 23 May 2030, with a non-parole period of 4 years and 3 months, expiring on 23 August 2027. The indicative sentences were as follows: Sequence 1: 2 years 7 months; Sequence 2: 3 years 10 months; Sequence 3: 3 years 9 months; Sequence 4: 3 years; Sequence 5: 2 years; Sequence 7: 2 years 10 months; and Sequence 8: 22 months.

  2. The applicant relied upon two inter-related grounds of appeal. The first was amended at the hearing, so that they were as follows:

“Ground 1

Her Honour erred in finding that there was no direct causal connection between the applicant’s mental health and the offending conduct, and that upon this basis her Honour was not prepared to find any reduction in moral culpability and specific deterrence, and no basis for a significant reduction of the sentence with respect to the principle of general deterrence.

Ground 2

The sentence imposed was manifestly excessive.”

The sentence proceedings

  1. The sentence hearing took place over three days, on 4, 9 and 10 April 2024. The sentence was handed down on 12 April 2024, by which time the applicant had been on remand for 10 months and 19 days.

The Crown case

A statement of agreed facts

  1. The Crown bundle included a statement of agreed facts on sentence, which is to the following effect.

  2. On 23 March 2023, the applicant travelled from Sydney to Bangkok, Thailand and returned on 6 April 2023. On his arrival at Sydney airport, a preliminary review by Australian Border Force officers of his mobile phone, which was a Samsung Galaxy S22 model (the S22), revealed images and videos that were classified as child abuse material. These were 10 still-image snapshots and 22 videos of children aged three to nine years displaying their breast areas, vaginas and anuses, and videos depicting the anal, vaginal and oral penetration of prepubescent females (Sequence 1). A summary of the contents of three of the videos was included in the agreed facts. The summary of each video was of various acts of anal, vaginal and oral penile and/or digital penetration of a female child. Their ages were between 7 and 9, 5 and 7 and 3 and 5 years old. The S22 was seized, the applicant was arrested, charged with the Sequence 1 offence and released on conditional bail the same day.

  3. A bail condition was that the applicant possess only one phone and notify police of its details within 24 hours of obtaining it. On 10 April 2023, the applicant obtained an Optus service and notified police of the details. That phone number was utilised by the applicant with a Samsung Galaxy S23 mobile phone (the S23). On the same date he obtained another service, which he used with an Apple iPhone 11 (the iPhone 11). Another bail condition was that he not download or utilise any applications or chat platforms which allow the sharing of videos and photos in any format. Between 2 November 2022 and 6 April 2023, the applicant was the owner and user of a Facebook Messenger Account, which allowed users to send messages and exchange photos, videos and audio files.

  4. The Australian Border Force referred the matter to the Australian Federal Police (the AFP) for further investigation. On 24 May 2023, following a further examination of the S22, the applicant was re-arrested and a search warrant was executed on his vehicle, in which police located and seized the S23. A search warrant was also executed at the applicant’s residence, where police seized the iPhone 11. The applicant was refused bail.

  5. The further analysis of the contents of the S22 revealed the following additional material, which based the charges in Sequences 3 to 7.

  6. Between 2 and 3 November 2022, the applicant engaged in an online conversation via Facebook Messenger with a person named “Vilma De Jesus” (Vilma), who purported to be a 24-year-old female from the Philippines. Vilma introduced the applicant to her 12-year-old “cousin”, Andrea. The applicant expressed a sexual preference for young girls aged between 5 and 13 and offered to pay Vilma for the three of them to engage in online sexual activity, and for the production of videos and images to be sent to him depicting Andrea in sexual acts (Sequences 3 and 4).

  7. Between 5 November 2022 and 4 December 2022, the applicant engaged in a Facebook Messenger conversation with “Sarmiento Abegail”, who introduced herself as an 18-year-old female from the Philippines who had young girl friends. The applicant expressed a sexual preference for young girls aged 9 to 16 and offered to pay money in exchange for a video of one of the young girls engaging in sexual activities (Sequence 5).

  8. Between 11 November 2022 and 30 November 2022, the applicant engaged in online conversations via Facebook Messenger with “Athena Mercy”, who introduced herself as a 16-year-old female from the Philippines who had a 9-year-old sister. The applicant expressed a sexual preference for “young virgin girls” aged between 5 and 9 years old and inquired whether he could pay Athena for the production of videos and images depicting her sister in sexual acts and said that he wanted to have sex with her sister. The applicant described child abuse material that Athena had sent him (Sequences 6 and 7).

  9. The S23 and iPhone 11 contained evidence of further offending by the applicant while he was on bail. The S23 had text message codes from WhatsApp and Telegram as two-factor authentication on 8 and 13 April 2023 respectively, although those apps were not installed on the device. On 8 April 2023, the applicant used WhatsApp to send 4 images of himself. The S23 also had child abuse material stored on it, being 10 still images and a video of infant children displaying their vaginas and anuses, and a naked infant child (Sequence 8).

  10. The iPhone 11 had been used to access a number of social media platforms, including Telegram. An examination of its contents revealed that between 22 April 2023 and 11 May 2023, the applicant engaged in a sexualised conversation on Telegram with a female person using the name “Yana<3”, purporting to be between 12 and 14 years of age (Sequence 2).

  11. The agreed facts included summaries of the applicant’s text conversations in respect of Sequences 2–8.

The applicant’s criminal antecedents

  1. The applicant has a prior criminal history in New South Wales and in Queensland. The offences in New South Wales were motor vehicle matters, two offences of contravening an Apprehended Violence Order (committed in July 2008 and December 2009), three offences of stalk-intimidate, destroying or damaging property and lighting a fire for land clearance or to make a fire break without a permit. The light fire offence and two of the motor vehicle offences were committed between January and June 2015. All the other offences were committed between December 2007 and December 2009.

  2. The most serious punishments were for the offence of destroying or damaging property, committed in December 2007, when the applicant was aged 35, and two of the counts of stalk or intimidate, committed in May 2008. For the three offences, which were dealt with together at Lismore Local Court in January 2009, he received a s 9 bond [1] (a bond without a conviction being recorded) and 18 months supervision.

    1. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), since repealed.

  3. The Queensland offences, with one exception, were committed between January 1991 and August 1995. The applicant was dealt with on five separate occasions for possessing a dangerous drug and drug-related offences, for which he received a fine or a community service-type order. In the same period, he was sentenced for two offences of obstructing police, behaving in a disorderly manner and two counts of breaching his bail. For the latter two offences he received prison sentences of one month and three months, which are the only sentences of imprisonment on his record before the instant offending. In August 2015, he committed the offence of possessing a knife in a public place, for which he was fined $150.

The defence case

A forensic psychiatric report

  1. The defence tendered a report by a consultant forensic psychiatrist, Dr Sathish Dayalan, dated 25 March 2024, which canvassed the applicant’s background, circumstances and the state of his mental health. The background sources of information included five sets of the applicant’s medical records.

  2. The applicant was then aged 52. He was a single man with no dependants, living alone on a rural property in New South Wales at the time he was re-arrested. He was unemployed and receiving a disability pension, consequent to a diagnosis of schizophrenia. At the time of Dr Dayalan’s examination, the applicant was being held on protection, which limited his access to work opportunities in prison and rehabilitation courses.

  3. The personal history obtained by Dr Dayalan of the applicant and gleaned from the documentary material was to the following effect. The applicant was raised in a dysfunctional family. He has a sister who is four years older than him, and a stepsister. When the applicant was a child, his father was largely absent from the home during the week and “aggressively” consumed alcohol on the weekends, which manifested in violent behaviour directed towards the applicant’s mother. There had been occasions when the applicant had intervened. Once he witnessed his father trying to strangle his mother. He described an incident, when he was five years old, of his father having a shower with him, which left him feeling uncomfortable.

  4. The applicant attended mainstream schooling and completed Year 12, although his academic performance declined after he was moved to a school in Cairns when he was in Year 5. He repeated Year 12 to get better grades. After school, he enrolled in a Bachelor of Economics degree but dropped out after a year. His last paid employment was more than 20 years ago.

  5. The applicant reported using cannabis for the first time at the age of 14 years, stopping in 2004 at age 32 and recommencing in 2019. He commenced drinking alcohol when aged 14. His consumption of alcohol increased when he stopped using cannabis. The applicant’s use of illicit substances varied, depending on whether he was in Australia or Thailand (he had apparently travelled to Thailand more than once); while he used cocaine and crystal methamphetamine occasionally in Australia, his use of cocaine increased when he was in Thailand. His alcohol consumption similarly increased, reporting that he would have 10 cans of bourbon daily in Australia and 15–16 drinks of vodka per day when he was in Thailand.

  6. The applicant first experienced psychotic symptoms in 1994, when he was 22 years old, while in a correctional centre in Queensland. He experienced auditory hallucinations and paranoia and was hospitalised for two months. He was diagnosed with mild schizophrenia. The applicant said that at the time, he was a “heavy user of cannabis”. Dr Dayalan referred to the hospital records concerning this admission on 25 November 1994:

“He had presented as vague, withdrawn, irrationally hostile, dishevelled and perplexed. Thought disorder and auditory hallucination were suspected. Excess use of cannabis was reported by his mother and he had presented as paranoid prior to his arrest. He had been sleeping in his car. Deterioration in social functioning was noted in the preceding 12-18 months.

During the admission, [the applicant] had disclosed a number of paranoid beliefs and presented as thought disordered. He received treatment with antipsychotic medication. He had been isolative on the unit and neglectful of his personal hygiene. Diagnosis of paranoid schizophrenia was made and he was discharged back to the correctional centre on 6 January 1995 following improvement in his mental state.”

  1. The applicant said he has had multiple psychiatric admissions to various inpatient units since 1994, at locations that included Maitland Hospital, Lismore Base Hospital and Kempsey District Hospital, triggered by non-compliance with his medication regime or his use of illicit drugs.

  2. Over the years his psychotic beliefs have included that scientists had placed an implant in his head and that he was being controlled through the implant by the government, prompting him on one occasion to make a complaint to an international human rights organisation.

  3. The medical records of the Richmond Network Community Mental Health Team include a history of treatment in 2003 with an antipsychotic medication (Clozapine), and entries in 2007 and 2008 concerning an incident with a neighbour that apparently led to the “damage or destroy property” offence on the applicant’s criminal record.

  4. On 28 February 2015, the applicant attended a police station and said that “he was having bad thoughts if he was a sex addict and was concerned if he would hurt someone”. A mental health assessment completed on the same day noted that he presented as extremely thought-blocked and guarded, and that he denied making comments to police about being a sex addict. He was offered voluntary admission to Maitland Hospital, which apparently he refused.

  1. On 25 March 2015, the applicant was admitted to Maitland Hospital (I presume from the report as an involuntary patient), following a period of poor self-care, delusional thoughts and auditory hallucinations. He was diagnosed as having relapsed into schizophrenia and was commenced on depot antipsychotic medication. His mental state improved after three weeks and he was discharged on 30 April 2015. During his admission, the applicant had reported being a victim of childhood sexual assault when aged 15. The Maitland Hospital notes, as summarised by Dr Dayalan, refer to the applicant’s psychotic belief that he had a brain implant: “Results of CT brain assisted with challenging his belief regarding the implant”.

  2. According to records from the Hunter New England Local Heath Network, in June 2015, the applicant stopped his depot medication. Later that month, it was noted that he lost his driver’s licence and had to attend court.

  3. Lismore Base Hospital notes record that he was admitted on 1 September 2015, presenting with a diagnosis of chronic paranoid schizophrenia. Dr Dayalan noted from the clinical records of that admission:

“… He had been muttering and yelling to himself. He had been non-compliant with his medication. He had presented with thought disorder, aggression, poor insight and judgement.

Diagnosis of chronic paranoid schizophrenia was noted. During the admission, [the applicant] was described as guarded during psychiatric interviews and had been reluctant to discuss a belief about ‘wire’ in his brain. Paranoid beliefs incorporating mother and abusive behaviour towards her were noted. He had been observed responding to internal stimuli.

On 3rd September 2015, [the applicant] had indicated that he would like to discuss his experience of childhood sexual abuse.”

  1. The applicant was discharged on a Community Treatment Order (CTO) 11 weeks later, on 19 November 2015, following treatment with depot antipsychotic medication.

  2. The CTO was apparently administered by the Hunter New England Local Heath Network. According to their records, it lapsed in May 2016, and the applicant was discharged from the service, in view of his stated intention to move out of their area of responsibility to Macksville. The applicant declined a referral to the local community health team in Macksville.

  3. In November/December 2017, the applicant was admitted to the Coffs Harbour Inpatient Mental Health Unit and again in July 2019, on the latter occasion due to “acute psychosis in the context of non-compliance”.

  4. In January and May 2021, the applicant attended Kempsey District Hospital and, according to their records, requested depot antipsychotic medication.

  5. In July 2021, the applicant’s father died, bequeathing all his property to the applicant’s sister. A mediation resulted in him receiving the sum of $500,000. Access to these funds increased the applicant’s use of prohibited drugs, particularly cocaine, and his experience of paranoia.

  6. The applicant told Dr Dayalan that at the time of the offences, he was subject to a CTO and was receiving depot medication. He had become socially withdrawn:

“In describing his mental state, [the applicant] said that there were periods when he experienced heightened anxiety. He had days when he did not leave his property due to paranoia that people would break into his property. As a result he became socially withdrawn.

[The applicant] believed that he had continued to experience auditory hallucinations around that time but had been aware that they were a symptom of his mental illness. He denied having believed that he had an implant in his brain around the time of the offences. There were no suicidal thoughts but he had felt quite depressed. His sleep pattern had been affected by use of substances.”

  1. The applicant commenced watching pornography excessively in late 2021, due to boredom and social isolation, the content of which gradually incorporated child abuse material. Although the applicant acknowledged that watching child pornography was “wrong” and stopped viewing it temporarily, he relapsed and reported that stimulants such as cocaine and methamphetamine increased his sex drive.

  2. The applicant’s most recent psychiatric admission was on 21 September 2022, when he was taken to the Mental Health Unit of Maitland Hospital by police following him sending text messages to his mother threatening suicide. Dr Dayalan’s summary of the hospital notes is as follows:

“He had been agitated, pacing, muttering to himself, largely incoherent and living in squalor. Excess use of alcohol and non-compliance with all medications were noted prior to admission.

At the hospital, he had presented as perplexed, hostile, dishevelled and malodorous. He was very disorganised and unable to engage in conversation. He had reported delusions of a wire in the neck implanted by the NSW government. He was regarded to have had a psychotic relapse of schizophrenic illness. He had required admission to the high dependency unit.

He had very poorly controlled diabetes, very high cholesterol levels and a heart murmur. Aggressive and agitated behaviour was noted during the admission. He had required a high level of nursing support to maintain his activities of daily living. Depressed mood and irritability were noted. He had received treatment with antidepressant medication, sertraline. Review on 6 October 2022 noted increasingly disorganised behaviour. He had urinated on the floor and was observed responding to internal stimuli. He responded to treatment with zuclopenthixol and significant improvement was evident at review on 17 October 2022.”

  1. The applicant suffered a transient ischaemic attack during this admission which impacted his concentration, memory and balance. He has been treated with multiple antipsychotic medications and on 3 November 2022, he was discharged on a CTO with a referral to the National Disability Insurance Scheme (the NDIS).

  2. Medical records from a Community Health Team (unnamed by Dr Dayalan) indicate that the applicant relocated from the Kempsey area in March 2023 to where he was residing when arrested. Dr Dayalan noted, from records:

“Correspondence from psychiatry advanced trainee Dr Asadi dated 26 April 2023 indicated that [the applicant] did not present with any psychotic or affective features. He had denied problems with appetite, concentration or socialising. He had admitted to experiencing anxiety in crowded places. He had denied drug use since 2004. He was keen to switch his medication to oral form and reluctant to continue on CTO.

On 15 May 2023, [the applicant] was informed that the team intended to renew his CTO though he was opposed to it. It was noted that the CTO was renewed for six months expiring on 16 November 2023.”

  1. The notes of the applicant’s general practitioner state that the applicant attended for depot medications in March and April 2023. Justice Health notes refer to a review by a psychiatrist on 9 June 2023, in which the applicant reported a sexual assault by a stranger “in the sand dunes” at the age of 15 years. The psychiatrist described the applicant as “highly institutionalised”.

  2. The applicant was again reviewed by a psychiatrist on 20 July 2023. He reported feeling depressed and presented as anxious. No psychosis was evident. Dr Dayalan noted from the records:

“[The applicant] was regarded to have cognitive deficits associated with schizophrenia such as rigidity in thinking and social cognition deficits.”

  1. The applicant denied that he was currently sexually attracted to children and told Dr Dayalan that he felt “ashamed and remorseful”. Dr Dayalan continued:

“When asked why he felt ashamed and remorseful, he responded ‘because I was a kid once and it happened to me and it took away my happiness ... it would have happened to other children’. It was noted that he referred to being made to share a shower with his father in his childhood.”

  1. Dr Dayalan was of the opinion that the applicant’s remorse was genuine: “He was able to reflect upon the impact of his behaviour upon his victims”.

  2. As to the applicant’s experience in prison, the applicant reported he had been assaulted by prisoners who intended to bring drugs into the prison, because he had told another prisoner of the plan and that prisoner informed the prison authorities, who thwarted the plan. He found lock-ins highly distressing, because he felt claustrophobic. As to the likely impact on the applicant of a sentence of imprisonment, Dr Dayalan said:

“Incarceration will be more onerous upon [the applicant] in view of his chronic psychotic illness. He has an underlying propensity to think in a persecutory manner. The nature of his charges increases his risk of being assaulted in custody and this is likely to exacerbate his underlying paranoia. He is also quite vulnerable given the cognitive deficits secondary to his illness. He has recently been assaulted due to exhibiting poor judgement. Given his chronic psychotic illness and impaired psychosocial functioning, he is at increased risk of being institutionalised.”

  1. The applicant continued to receive antipsychotic and antidepressant medication in prison and admitted using buprenorphine that was prescribed for other prisoners. He had requested Buvidal injections to reduce his “drug cravings”. He continued to experience auditory hallucinations. He complained that he did not have regular appointments with mental health professionals.

  2. The applicant said that his plans were to reside with his mother upon his release, continue taking his psychiatric medications and abstain from drugs and alcohol. He has not engaged in any drug or alcohol rehabilitation programs. Dr Dayalan described the applicant’s presentation thus:

“[The applicant] appeared to have some deficits in concentration as he had a tendency to veer from the topic of discussion. Impairment in memory and information processing was noted. He accepted that he suffered from schizophrenia and substance use disorder. He was willing to engage in treatment and rehabilitation.”

  1. Dr Dayalan noted the applicant had “a well-established diagnosis of schizophrenia”. As well, he had a substance use disorder for alcohol and cannabis, and possibly also for the stimulants he would abuse on his Thailand trips, namely, cocaine and methamphetamine.

  2. Dr Daylan noted that although the applicant had responded well to depot antipsychotic medications under CTOs, his “use of substances and erratic compliance in the community have complicated his long term clinical response”.

  3. As to any nexus between the offences and the applicant’s mental health issues (a nexus), Dr Dayalan said the following:

“The account provided by [the applicant] indicates increased social isolation led to excessive viewing of pornography. Social isolation is a common feature in individuals with schizophrenia and has been identified as one of [the applicant’s] negative symptoms. The impaired psychosocial functioning due to his illness also limits his capacity to initiate and sustain a healthy sexual relationship.

Viewing various pornographic websites was reported to have exposed him to child pornography and subsequently the offending behaviour. In exploring the nexus between his offending behaviour and psychiatric conditions, it is not apparent the offending behaviour was directly influenced by any delusions or hallucinations. As noted earlier, the negative symptom of social withdrawal has played an indirect role by limiting access to healthy leisure/recreational activities and limiting his prospects of being in a stable relationship.

It should be noted that schizophrenia is commonly associated with cognitive impairment that impacts on the judgement of the individual. Comments on poor judgement exhibited by [the applicant] have been documented in his health records. The illness probably played a role in the impaired judgement exhibited by [the applicant] at the time of the offending.

Use of stimulants can be often associated with increase in libido and disinhibition. The deviant sexual behaviour has only been evident in recent years. The increased use of stimulants after receiving the inheritance money was probably the most important contributory factor.”

  1. Dr Dayalan assessed the applicant’s risk of sexual recidivism by applying the assessment tool known as the Static 99-R, which yielded an assessment of him having an above average risk level. As to his prospects of rehabilitation, Dr Dayalan identified positive and negative factors:

“Chronicity of his psychiatric condition, limited insight into his mental health condition, comorbid substance abuse, impaired cognition and deficits in psychosocial functioning negatively impact on his prospects of rehabilitation. Support from his mother, positive response to treatment, improved compliance on community treatment order[s] and [the] likelihood of receiving additional support from NDIS are favourable factors when considering his prognosis.”

  1. Dr Dayalan recommended that the applicant participate in a drug and alcohol rehabilitation program and a sex offender program, facilitated by Corrective Services.

A letter from the applicant

  1. In a letter to the Court, the applicant expressed shame for his offending, acceptance of the need for him to be punished and a determination to never offend in such a manner again. He referred to his father’s alcoholism and violence, and the impact of that on his childhood; he reported that his father sometimes locked out the rest of the family all night, that he rarely spoke to the applicant and never acknowledged his achievements.

  2. The applicant described his first experience of psychosis in 1994 and his drug history; that he used cannabis until the age of 32 and then took it up again at age 47, having been drug-free for 15 years, and then in 2021 developed an issue with cocaine and heavy drinking. He expressed insight into the impact of his drug use on his mental health and a determination to avoid drugs and alcohol on his release.

  3. He described the difficulties he encounters in prison with hostile inmates, depression, isolation in his cell and the unavailability of courses.

A letter from the applicant’s mother

  1. In a letter to the Court, the applicant’s mother confirmed that the applicant’s father would not speak to him as a child, saying, “This went on for years until we separated”. Otherwise, she said that the applicant had a positive childhood, academically and in sport. He withdrew from his Economics degree course at Townsville University after six months, preferring to study hospitality at TAFE Queensland and work at an international hotel, where apparently he fell in with workers who consumed cannabis. Not long after, he was living in his car and in 1989 or the early 1990s he was diagnosed with schizophrenia. Around that time, he stopped cleaning his teeth and lost them as a result.

  2. The applicant’s mother said that his father’s attitude to these issues was to “look the other way” and the applicant’s relationship with his sister broke down. His mother said that she stood by him and has been supervising him throughout his adult life, including through his “mental health episodes”. She wrote:

“Witnessing those episodes has often been troubling and difficult to get through. I have had to educate myself over the years to learn how to manage [the applicant’s] condition. It has not been easy, but I have learnt many tools to assist with the management.”

  1. The applicant’s mother said that in 2021, police took out a provisional Apprehended Domestic Violence Order (an ADVO) for her protection against the applicant:

“[The applicant] did not threaten me and I did not ask the police for ADVO-they took it out on their own accord.”

  1. She wrote that the applicant is vulnerable in prison, because he does not communicate with others and has had to fend for himself. The support that he needs and that he has received in the community is unavailable in prison. Upon his release, she proposed that the applicant would reside with her at a property that is owned jointly by her and the applicant, and which has mental health services nearby: the Kempsey Community Mental Health Services, which will resume providing services to the applicant and organise a case manager for him. The applicant has been registered with the NDIS.

  2. The defence material included a letter from a team leader of the Acute Care Service of the Kempsey Community Mental Health Service, confirming the mental health care arrangements proposed by the applicant’s mother will be provided.

Submissions on sentence

  1. The parties made lengthy written and oral submissions on sentence, which I relevantly summarise as follows.

Submissions by the defence

  1. The defence submitted that all of the Sequences were within the low range of objective seriousness. In relation to Sequence 1, the defence submitted that the material found on the applicant’s mobile device was a “relatively small amount”, that there was no evidence of any sophistication and/or a collaborative network in place and no risk of the material being seen or acquired by vulnerable persons.

  2. As to Sequence 2, while it was accepted that the offending was aggravated by the applicant being on bail at the time for Sequence 1, it was submitted that the facts did not support a conclusion that “Yana<3” was actually a child or had “actually sent images of herself … as opposed to images of a child which had already come into existence by some other unknown means”, nor did the applicant apply pressure or coerce “Yana<3” to send such material.

  3. The defence submitted in respect of Sequences 3 and 4 that the applicant did not apply pressure, threaten, coerce or manipulate “Vilma De Jesus”. The same submissions were made with respect to Sequence 5, noting as well that “the [applicant] never actually communicated with any children and, it would appear, never actually received child abuse material”.

  4. In relation to Sequences 6 and 7, the defence noted in its submissions that “Athena Mercy” was “persistent in her efforts” to secure payment from the applicant, which the applicant was unwilling to make.

  5. The defence acknowledged that the factors relevant to determining the objective seriousness of a procuring offence (Sequences 2 and 3) were identified by Bell P in Baden v R [2020] NSWCCA 23 (Baden) at [27], and in respect of offences concerning the possession, dissemination or transmission of child pornography and child abuse material (the remainder of the Sequences) in R v Hutchinson [2018] NSWCCA 152 (Hutchinson) by R A Hulme J (Meagher JA and Button J agreeing) at [45].

  6. The defence referred to the evidence of remorse and submitted that a 25 per cent discount on sentence was appropriate, by virtue of his guilty plea entered in the Local Court. His criminal history, both in Queensland and New South Wales, was submitted as “relatively minor” and did not feature any sexual offence.

  7. The defence submitted that the applicant’s moral culpability was reduced as his “well established diagnosis of schizophrenia” and his “limited access to healthy leisure/recreational activities, limited prospect of a healthy intimate relationship, increased libido and disinhibition, and poor judgment”, contributed to his offending in a material way. It was submitted that the applicant was not an appropriate vehicle for general deterrence and the need for specific deterrence was significantly reduced because of his mental illness and recognition of the “wrongfulness of his actions”.

Submissions by the Crown

  1. As to the offending behaviour, the Crown submitted that the applicant was “highly culpable” due to a combination of factors: all offences were engaged in knowingly and demonstrated a strong sexual interest in children; he used the internet as a means to locate and exploit young girls from developing nations; the offences were committed for his personal sexual gratification without care or regard for the harm he could have caused; and some were committed while the applicant was on bail and involved steps deliberately taken to circumvent bail conditions in order to continue his offending (Sequences 2 and 8).

  1. The Crown submitted that Sequences 2 and 3 were the most objectively serious followed by Sequences 1 and 8 as the next most serious, and then Sequences 4, 5 and 7. Reliance was placed upon Baden and Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 (Minehan) at [94]–[101] as to the relevant sentencing principles for child sex offences.

  2. While the Crown acknowledged that the applicant’s guilty plea had utilitarian value, it was submitted that it was not an indication of remorse that would attract significant subjective value. There was a need for general and specific deterrence to impress upon the applicant that his offending should not be repeated, especially since two Sequences were committed while on bail.

  3. In oral submissions, the Crown accepted that the applicant was suffering from schizophrenia at the time of the offending behaviour and Dr Dayalan’s opinion that the applicant’s social isolation was a consequence of his schizophrenia diagnosis that contributed to his offending. The Crown submitted that it was an indirect contribution and there was no nexus. Further, to the extent that the applicant’s schizophrenia contributed to the offending behaviour, it did not warrant a reduction in his moral culpability, in view of the text conversations demonstrating his control, manipulation and understanding of “the market”.

  4. The Crown accepted that it would be appropriate to temper “a little bit” of general deterrence in view of his mental health issues.

  5. As to the applicant’s prospects of rehabilitation, the Crown submitted that the applicant had not explained how he proposed to address his predilection to social isolation and questioned whether the proposal that the applicant and his mother would reside together, a considerable distance from her partner, was a sustainable arrangement, and whether she would be able to ensure that his substance use disorder was managed.

  6. The Crown did not dispute Dr Dayalan’s opinion that the applicant’s experience in custody would be particularly onerous.

The issue of the applicant’s sexual attraction to children

  1. At the sentence hearing, her Honour expressed concern that Dr Dayalan had not diagnosed the applicant as having a paedophilia disorder. In response, the parties referred her Honour to Dr Dayalan’s assessment that the applicant had an above average risk of sexual recidivism and his recommendation that the applicant participate in a sex offender program. Counsel for the applicant clarified that he was not suggesting that the applicant no longer had a sexual interest in children.

The remarks on sentence

  1. The sentencing judge noted the offences for which the applicant was to be sentenced, the maximum penalties and the circumstances of the offending as outlined in the agreed facts. In determining the objective seriousness of the offences, the sentencing judge applied the principles in Minehan, as revised in Hutchinson at [45]. Her Honour found that Sequence 1 was at the lower end of the mid-range, Sequence 4 was at the top end of the low range, Sequence 5 was in the low range, Sequence 6 was in the low range, Sequence 7 (taking into account Sequence 6) was towards the top of the low range and Sequence 8 was “at the low range but not at the lowest end of the range”. As to Sequences 2 and 3, applying the Baden factors, her Honour determined that both were at the lower end of the mid-range.

  2. Her Honour described the applicant’s criminal history as “modest” with no prior convictions for similar offences or sexual offending. Her Honour referred to the sentencing principles in s 16A of the Crimes Act.

  3. As to the applicant’s subjective case, the sentencing judge acknowledged having closely read Dr Dayalan’s report and summarised it in detail, over 16 pages of the remarks, which included the passages from the report extracted at [54] and [55] above, dealing with the question of a nexus and the applicant’s likely conditions of imprisonment when serving his sentence. In a similar fashion, the sentencing judge summarised the letters from the applicant, his mother and the Kempsey Community Mental Health Service.

  4. Her Honour reviewed the parties’ submissions on sentence and turned to consider the relevant principles. As to remorse, although the applicant’s expressions of remorse to Dr Dayalan and his mother were untested, the sentencing judge determined to give them “some limited weight” and, in combination with the early pleas of guilty, find that the applicant had “some insight and remorse”.

  5. Her Honour found that the evidence of the applicant’s mental health issues, in particular, his schizophrenia, was relevant in five of the ways that are identified in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [177]-[178]. The first of those ways is the basis of the complaint in ground 1 of this appeal:

“Firstly, 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 of the sentence. With respect to the first consideration, Dr Dayalan opines that it is not apparent that the offending behaviour was directly influenced by any delusions or hallucinations arising from his schizophrenia. I interpret that to mean that there is no direct causal link between the mental illness and the offending behaviour. However, Dr Dayalan goes on to say that people who suffer from schizophrenia may experience social isolation as a common feature arising from the condition and it appears that that was for [the applicant]. This social isolation impaired his psychosocial functioning and limited his capacity to initiate a healthy sexual relationship. Dr Dayalan said that the negative symptoms of social withdrawal have played an indirect role in the offending behaviour. Additionally, schizophrenia is commonly associated with cognitive impairment that impacts on the judgement of the individual and Dr Dayalan states that [the applicant’s] schizophrenia ‘probably played a role in the impaired judgement exhibited by [the applicant] at the time of the offending’.

Given there is no finding of a direct causal link, I am not prepared to find that [the applicant’s] moral culpability has been reduced. There is still, in my mind, a need to denounce the crime in the structure of the sentence that I am imposing.”

  1. Second, as to whether it was a reason to reduce the appropriateness of the sentence to reflect general deterrence, her Honour noted the difficulty in tracing an offender due to the anonymity provided by the internet and the need to deter others from the sexual exploitation of children overseas, often in impoverished circumstances. Her Honour noted the Crown’s submissions on general deterrence and found that the applicant was a “less appropriate vehicle for general deterrence”, due to his well-established mental health issues and the indirect role they played to the commission of the offences. However, a “significant component of general deterrence” would nonetheless be included in the sentence imposed on the applicant given the nature of the offences.

  2. Third, as to the applicant’s likely experience of a custodial sentence, the sentencing judge found that it would be more onerous due to his mental condition and therefore the length of the sentence would be reduced.

  3. Fourth, specific deterrence still had a “significant role” to play in the sentencing exercise in spite of the applicant’s mental illness, since the applicant had “brazenly reoffended within days of being granted bail on the very serious Sequence 1”. Her Honour said: “I have not necessarily reduced the need for specific deterrence in the context of De La Rosa”.

  4. Fifth, as to whether the applicant’s mental illness rendered him a danger to the community, her Honour noted Dr Dayalan’s assessment that he posed an above average risk of sexual recidivism and his history of non-compliance with medication and treatment regimes. Her Honour said that there would be an extended period on parole which “goes some way to mitigate the aspect of future dangerousness of the offender”.

  5. As to the applicant’s prospects of rehabilitation, her Honour noted the positive factors (no prior similar offending, his pro-social post-release plans and intention to adhere to his medication regime, abstain from alcohol and prohibited drugs and engage in vocational training) and negative factors (past denial to therapists of his socialisation and substance abuse issues suggesting limited insight into his criminogenic issues, the absence of an employment record, the past need perceived by police for his mother to be protected from him by an ADVO and, most crucially, his “haphazard” compliance with CTOs).

  6. Her Honour expressly acknowledged the relevance of s 16A(2AAA) of the Crimes Act, which provides as follows:

“Division 2—General sentencing principles

16A   Matters to which court to have regard when passing sentence etc.—federal offences

…

(2AAA)   In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a)   when making an order—to impose any conditions about rehabilitation or treatment options;

(b)   in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program.

…”

  1. Her Honour said she would recommend that the applicant have access to the Sex Offender’s Program in custody and, on his release on parole, in the community.

  2. The sentencing judge noted there was a significant overlap in the circumstances of the offences which warranted a degree of concurrency in the sentences and expressed cognisance of the need to avoid a crushing sentence. Her Honour said:

“I confirm that I have imposed a discount for the plea of guilty in the Local Court and I confirm that I have taken notice of the utilitarian value of the plea.”

  1. As noted, the aggregate sentence of 7 years imprisonment, to date from 24 May 2023 and expire on 23 May 2030, included a non-parole period of 4 years and 3 months to expire on 23 August 2027.

Ground 1

Her Honour erred in finding that there was no direct causal connection between the applicant's mental health and the offending conduct, and that upon this basis her Honour was not prepared to find any reduction in moral culpability and specific deterrence, and no basis for a significant reduction of the sentence with respect to the principle of general deterrence

  1. The applicant submitted that the sentencing judge’s finding in the passage from the remarks extracted at [85] above was “in error” in view of:

“… the surrounding evidence, in particular the applicant’s deteriorating mental health in 2021-22 and the lack of offences of this nature until he was 52 years of age there was a compelling circumstantial case that should have led to a finding that there was a significant causal connection and material impact between his mental health and the offending conduct such that there should have been a substantial reduction in the considerations of moral vulnerability, specific and general deterrence.”

  1. The applicant noted Dr Dayalan’s opinion that social isolation and “cognitive impairment that impacts on the judgement of the individual” are features commonly associated with schizophrenia and that both were experienced by the applicant. It was submitted that Dr Dayalan’s opinion was that “the negative symptom of social withdrawal has played an indirect role” and “the illness probably played a role in the impaired judgement exhibited by [the applicant] at the time of the offending”.

  2. Counsel for the applicant referred to aspects of the applicant’s background that had been canvassed by Dr Dayalan, including his exposure to his father’s violence; the applicant’s drug-taking in his youth; his report of a sexual assault when he was aged 15; and his multiple suicide attempts.

  3. The respondent submitted, firstly, that the applicant’s submission was to be understood as a challenge to the sentencing judge’s finding of fact that there was not a direct causal link between the applicant’s mental health diagnosis and the offending behaviour. It was submitted that it is not open to an appellate court to intervene on a finding of fact by the court below unless the Court is satisfied that there is no evidence to support the finding, or that the evidence is “all one way”, or that the judge has misdirected him or herself: McBeth v R [2009] NSWCCA 235 at [30], applying House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.

  4. It was open to the sentencing judge to not be satisfied of a direct causal link; firstly, in view of Dr Dayalan’s opinion in the passage from his report that is extracted at [54] above, in particular, that the applicant’s offending behaviour was not “influenced by any delusions or hallucinations”; and that the applicant’s use of stimulants was “the most important contributory factor”. The respondent submitted that while it did not necessarily follow from these considerations that the applicant’s mental health did not have a direct causative link to his offending, it would be open to the sentencing judge to conclude as much.

  5. The respondent submitted, secondly, that it was open to the sentencing judge to find there was not a direct causal connection in circumstances where the applicant’s written and oral submissions on sentence had not submitted that there was, in fact, a direct causal link. The respondent extracted four passages from the defence’s oral submissions at the sentence hearing, in which counsel explained the manner in which, in his submission, the applicant’s mental illness impacted on the sentencing exercise to reduce his moral culpability and the appropriateness of specific and general deterrence. In one of those passages, counsel referred to “the nexus, which is an indirect one” and in another, to “its indirect role” in the applicant’s offending. In neither of the other two passages did the applicant’s counsel state there was a “direct” link.

  6. The respondent submitted, thirdly, that there was no evidence that the applicant’s mental health condition caused him to commit the offences; it was open to the sentencing judge to conclude that any causal connection was indirect, not direct (my emphasis).

  7. The respondent submitted that, fourthly, the fact that the applicant had no prior sexual offences at all in his minimal criminal history did not demonstrate that the finding of no nexus was not open.

  8. In written submissions in reply, the applicant submitted that, firstly, the issue was not whether there was a “direct causal connection”, but rather, in the words of De La Rosa at [174], “whether the state of a person’s mental health contributes to the commission of the offence in a material way”. Secondly, to state that Dr Dayalan’s opinion was that the impact of the applicant’s mental condition was only indirect, was an error.

Ground 2

The sentence imposed was manifestly excessive

  1. The applicant submitted that the two grounds are inter-related; the sentence is manifestly excessive because of the error that is contended in ground 1. It was submitted that if error was made out, a consequent “substantial reduction in sentence” would follow.

  2. The respondent submitted that ground 2 was otiose; since it rested upon ground 1, it would fail if ground 1 failed, and if ground 2 succeeded, it would not need to be determined.

Consideration

  1. The applicant’s case ultimately centred upon whether the approach to be adopted when sentencing an offender with a mental condition, as observed in in De La Rosa at [177], had been correctly applied by the sentencing judge.

  2. In De La Rosa at [177], McClellan CJ at CL said, “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”, with possible mitigatory consequences for the sentencing factors of denunciation, specific and general deterrence as well as the length of a sentence of imprisonment due to its inherent burden. Conversely, it may be exacerbatory of the need to protect the community.

  3. The trigger for the sentencing court of an offender with a mental health condition is, as noted, whether their mental condition “contributes to the commission of the offence in a material way”. In the passage extracted at [85] above, the sentencing judge acknowledged this phrase in De La Rosa and said, referring to it:

“With respect to the first consideration, Dr Dayalan opines that it is not apparent that the offending behaviour was directly influenced by any delusions or hallucinations arising from his schizophrenia. I interpret that to mean that there is no direct causal link between the mental illness and the offending behaviour.”

  1. I note that, had the applicant’s offending behaviour been directly influenced by psychotic delusions or hallucinations, it may have given rise to a defence of mental health impairment or cognitive impairment, pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). In the second sentence, the sentencing judge adopted the concept of a “direct causal link”, and after reviewing Dr Dayalan’s opinion as to the ways in which the applicant’s mental health may have contributed to the offending behaviour, concluded: “Given there is no finding of a direct causal link, I am not prepared to find that [the applicant’s] moral culpability has been reduced”. In so saying, her Honour equated a “direct causal link” with “contributing to the commission of the offence in a material way”, and on that basis dismissed the ways in which Dr Dayalan said the applicant’s mental condition was relevant.

  2. In DS v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [95], the Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) said:

“In relation to moral culpability, it has long been accepted that ‘[w]here 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’ (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as ‘a’ causal connection, but it need not be the direct or precipitating cause: see Moiler v R [2021] NSWCCA 73 at [59] (Button J with whom Basten JA and Davies J agreed).”

To similar effect, see also Elchaar v R [2025] NSWCCA 50 at [48].

  1. The question then arises, since her Honour expressed the correct principle in the beginning of this passage, was it an oversight to later refer to the absence of a “direct causal link” rather than the absence of a material contribution to the commission of the offences; in other words, is it open to conclude that the sentencing judge in fact applied the correct principle? An analysis of the passage extracted at [85] above suggests that her Honour accepted Dr Dayalan’s opinion; that is, that the applicant’s social isolation and cognitively impacted judgement contributed to the offences, but because Dr Dayalan characterised their contribution in ways that did not, as her Honour understood it, “directly” contribute to the offence, they did not satisfy the threshold test of direct causation.

  2. In my view, error is established by her Honour acting on a wrong principle, namely, that a direct causal connection must be established in order for the De La Rosa principles to apply. Accordingly, I would grant leave and uphold ground 1, with the consequence that the sentencing discretion must be exercised afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. It follows that it is unnecessary to consider ground 2.

Resentence

Further material

  1. The applicant read fresh affidavits by him and by his mother. The applicant’s affidavit concerned his experience in prison. He is waiting entry to the CUBIT (Sex Offender) program and has a work history in prison. He has been assaulted twice and has two disciplinary matters on his prison record, one for damaging a sheet and the other for a fight with a fellow inmate. He maintains that on his release he intends to reside with his mother in the residence that they jointly own and receive the assistance of the NDIS. The applicant’s mother, in her affidavit, confirmed that post-release proposal and her continuing commitment to supervise and assist her son. She said that she is aged 84.

  2. The applicant relied upon two reports by consultant forensic psychiatrist Dr Richard Furst, dated 26 September 2024 and 11 October 2024. The earlier report canvasses the applicant’s background, mental health history and future treatment needs. Dr Furst found the applicant met the criteria for diagnosis of schizophrenia, alcohol use disorder and a substance use disorder, for cannabis, methylamphetamines, cocaine and opiates. Dr Furst applied the Static-99R to determine the applicant’s risk of re-offending, concluding that it was “somewhat higher than the risk of re-offending in a sexual manner within five years of release from custody”.

  3. In his later report, Dr Furst stated he was “at a loss to understand why Dr Dayalan did not refer to any diagnosis” in relation to the applicant’s obsession with child sexual abuse material. Dr Furst went on to find that the applicant met the diagnosis for a paedophilic disorder. Dr Furst did not explain why it was that in his earlier report he also had not diagnosed the applicant as having a paedophilic disorder.

Whether the applicant’s mental condition contributed to the offence in a material way

  1. As noted, the applicant was taken by police to Maitland Hospital’s Mental Health Unit on 21 September 2022, suffering a psychotic relapse of his schizophrenia. He was discharged 6 weeks later, on 3 November 2022. His offending behaviour for five of the eight Sequences commenced at about that time; on 2 and 3 November for Sequences 3 and 4, from 5 November for Sequence 5 and from 11 November for Sequences 6 and 7.

  2. Some of the applicant’s prior criminal offending appears to have some temporal correlation to his schizophrenia and drug-taking or, perhaps more accurately, to occasions when he was undiagnosed or not taking his antipsychotic medication. He offended in Queensland between January 1991 and August 1995, and his first diagnosis and hospital admission, which followed heavy cannabis use, was in 1994. His offending in New South Wales between January and June 2015 coincided with his bizarre presentation at a police station in February 2015 and his involuntary admission to hospital between 15 March and 30 April 2015, suffering a schizophrenic relapse.

  3. As explained above at [54], Dr Dayalan was of the opinion that the applicant’s mental condition (his schizophrenia) contributed to the offending in two ways. The first was his social isolation, which is a characteristic of schizophrenia sufferers, and which the applicant was enduring at the time. Dr Dayalan said that it closed off the avenue of healthy relationships and, being isolated, he accessed online pornography and, ultimately, child abuse material.

  4. I do not accept Dr Dayalan’s opinion that, in this way, the applicant’s schizophrenia contributed to the offence. At the time of the offending, social isolation was a widespread experience in Australia, due to the Covid-19 pandemic. As well, the association between that characteristic and the offending behaviour, over a period of seven months, is a tenuous connection and not persuasive of it being a material contribution.

  5. The other way that, according to Dr Dayalan, the applicant’s schizophrenia impacted the offending, was through the applicant’s impaired judgement. I accept that that is so. Dr Dayalan’s opinion was partly based on the comments in the applicant’s mental health records as to his poor judgement, which he exhibited at the time of the offending. Given the quite serious relapse of schizophrenia that had involuntarily hospitalised him for six weeks immediately preceding his offending, I find on the balance of probabilities that the applicant’s schizophrenia contributed to the commission of the offence in a material way. In so finding, I otherwise accept Dr Dayalan’s opinion extracted at [54] above, including his opinion that the most important contributory factor was the applicant’s use of stimulants.

The fresh sentence

  1. I agree with the sentencing judge’s findings as to the objective seriousness of the offences, including where they fell on the range.

  2. I would find that the applicant’s moral culpability for these offences is reduced from what that offending behaviour would otherwise suggest, by reason of his impaired judgement. I would reduce, but not eliminate, the weight to be given to denunciation, specific and general deterrence. I take into account that prison occasions greater hardship for the applicant than for prisoners who do not suffer from a psychotic mental illness, and will reflect that in the non-parole period.

  3. I agree with her Honour’s characterisation of the applicant’s prior criminal history as “modest”. I would allow a discount on a utilitarian basis of 25 per cent for his early pleas of guilty. I would accept the evidence of the applicant’s remorse and that he intends to not reoffend with offences of this kind.

  4. There is a degree of overlap in the material that is relevant to whether the applicant is likely to reoffend and his prospects of rehabilitation. Both of these factors depend upon whether the applicant, following his release, accepts the advice of mental health care professionals as to his treatment, particularly his medication, and whether he can navigate life without recourse to prohibited drugs and alcohol. I accept that he is determined to do so, although I am sceptical as to whether, because of his mental illness, he has the capacity to realistically understand the challenges he faces. He is very fortunate in having the continued support of his mother, but in view of her advanced years it is imperative that, following his release, he switches under her guidance to institutional support mechanisms such as the NDIS and community mental health teams in the near future.

  5. In summary, I would find that the applicant’s prospects of rehabilitation, and not reoffending, are guarded. This is a case where an unusually lengthy non-parole period is justified by the applicant’s need for supervised support in the community, particularly from his mother so long as she is able, as well as in the community’s interest in its protection from reoffending of a similar nature. That is consistent with the terms of s 16A of the Crimes Act.

  6. With a starting point of 8 years, I would impose an aggregate sentence of 6 years after the 25 per cent discount for the early pleas, backdated to commence on 24 May 2023 and expire on 23 May 2029, with a non-parole period of 3 years 6 months, to expire on 23 November 2026.

  7. The indicative sentences would be as follows: Sequence 1: 2 years 3 months; Sequence 2: 3 years 3 months; Sequence 3: 3 years 3 months; Sequence 4: 2 years 6 months; Sequence 5: 1 year 10 months; Sequence 7: 2 years 6 months; and Sequence 8: 18 months.

  8. I propose the following orders:

  1. Grant leave to appeal;

  2. Appeal allowed in respect of ground 1;

  3. Quash the sentence imposed in the District Court on 12 April 2024 and in lieu thereof impose an aggregate sentence of 6 years, to commence on 24 May 2023 and to expire on 23 May 2029, with a non-parole period of 3 years and 6 months, to expire on 23 November 2026.

**********

Endnote

Amendments

10 September 2025 - Typographical error corrected at [107]

Decision last updated: 10 September 2025

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Cases Citing This Decision

2

Evatt (a pseudonym) v The King [2025] NSWCCA 130
LAZ24 v Purcell (Examiner) (Stay Application) [2025] FCA 946
Cases Cited

2

Statutory Material Cited

6

DPP (Cth) v De La Rosa [2010] NSWCCA 194
R v Hoar [1981] HCA 67