R (Commonwealth) v Nafarette

[2022] NSWDC 225

District Court

New South Wales

Medium Neutral Citation:

R (Commonwealth) v Nafarette [2022] NSWDC 225

Hearing dates:

21 March 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed one of an aggregate sentence of two and a half years’ imprisonment. The sentence commences on 21 March 2022 and expires on 20 September 2024.

Make an order under s 20 of the Commonwealth Crimes Act that the offender be immediately released upon a recognisance in the amount of $500 without surety.

Catchwords:

CRIME – Child sex offences – Child abuse material – Using carriage service for child pornography material or child abuse material

SENTENCING – Meaning of ‘exceptional circumstances’ pursuant to s 20(1)(b)(ii) Crimes Act1914 (Cth) – Finding of ‘exceptional circumstances’

SENTENCING – Penalties - Recognisance

Legislation Cited:

Crimes Act 1900 (NSW), ss 16A(2AAA), s 16A(2)(h), s 16A(2)(f), s 16A(2)(j), s 17A, ss 19(1)-(5)

Crimes Act1914 (Cth), s 20, s 20(1)(b)(ii)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 67

Cases Cited:

Bullock v The Queen [2016] NSWCCA 131

BP v The Queen [2010] NSWCCA 159

Dark v The Queen [2022] NSWCCA 52

DPP v Beatie [2017] NSWCA 301

DPP v Joner-Collins [2021] VCC 2046

DPP v De La Rosa [2010] NSWCCA 194

R v Dregmans [2022] NSWDC 55

R v Pederson [2021] NSWDC 535

R v Tootel [2012] QCA 273

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Jon Christopher Nafarette (Offender)

Representation:

Solicitors:
Mr Fenel (Crown)
Ms Perera (Offender)

File Number(s):

2020/00284000

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender stands to be sentenced having pleaded guilty to the following four offences:

2. That on 1 October 2020 at Blacktown, he possessed and controlled child abuse material in the form of data held in a computer or contained in a data storage device, and used a carriage service to obtain access to the material. That is an offence under s 474.22A of the Commonwealth’s Criminal Code.

3. The second offence is that on or about 26 September 2020, at Blacktown and elsewhere, he solicited material using a carriage service. The material being child abuse material. That is an offence under 474.22(1) of the Criminal Code.

4. The third offence is that on about 25 September 2020, at Blacktown and elsewhere, the offender made available child abuse material using a carriage service. That, too, is an offence under s 474.22(1) of the Criminal Code. The fourth offence is that on or about 25 September 2020, at Blacktown, the offender accessed child abuse material using a carriage service. That, too, is an offence under s 474.22(1) of the Criminal Code. Each offence has a maximum penalty of 15 years’ imprisonment.The offender is to be sentenced pursuant to pt 1B of the Commonwealth Crimes Act in particular pursuant to s 16A of that legislation. When sentencing the offender the court is to consider the nature and circumstances of the offences. The nature and circumstances of the offences are essentially set out in the agreed facts document. The following is taken from that document although I have had regard to all of the agreed facts in imposing sentence.

The facts

5. On Thursday 1 October 2020 at about 6.25 am members of the Australian Federal Police attended premises at Blacktown for the purposes of executing a Commonwealth search warrant. The offender, his mother and sister were present at the premises. The offender was cautioned, shown the warrant and advised of his rights and indicated to the police that there was child abuse material on his phone and pointed out its location to the AFP officers. The police seized a blue TDK branded USB device. They also seized an Apple iPhone XS and an Acer laptop computer.

6. The offender participated in a record of interview with the AFP at the premises and provided police with the password to his iPhone. He was then conveyed to the local police station and charged. In the months following the execution of the search warrant, the police examined the electronic devices seized for the presence of child abuse material. Any material that was found was classified in accordance with what is described as the Interpol Baseline Categorisation System.

7. There are two categories. Category 1 is material which involves a real child prepubescent under 13 years of age involved in a sex act, witnessing a sex act or the material that is focused or concentrated on the anal or genital region. The second category is other illegal content with a child being under 18 years of age.

8. In terms of what is relied upon for the first offence, sequence 1, which is a possess or control child abuse material obtained using a carriage service, on 10 November 2020 the police examined the contents of the USB device and located 123 images and three videos which fell within the definition of child abuse material under the Criminal Code.

9. The files depicted erotically posed male and female children ranging in age and clearly displaying their genitals and/or breasts, vaginal, oral and anal rape of children by mostly male adult offenders, sexual conduct between children and solo masturbation by children.

10. The agreed facts in relation to this offence set out two examples of the files. One is an image depicting a prepubescent female approximately 7 years of age performing fellatio on an adult male whilst holding a sign which is disgusting in terms. I do not propose to read it out. There are then other examples set out. I am not going to read the content all out in open court. I have had regard to the content in assessing the material. What is set out by way of sample is, in fact, four relevant images and two videos.

11. The laptop that was seized was examined on 15 and 16 December 2019, and 119 images were located which fell within the definition of child abuse material, some of which included animated images. The files depicted erotically posed male and female children ranging in age and clearly displaying their genitals and/or breasts, vaginal, oral and anal rape of children by mostly male adult offenders, sexual conduct between children and solo masturbation by children.

12. Again, there is a table in the agreed facts providing examples of the files. The examples provided consisted of three images, one of which is an animation image. They are in the agreed facts by way of an example, the first of which records that it was an image depicting a prepubescent female sitting on top of an adult male with the adult male’s penis inserted in her vagina. I do not propose to read out the particulars of the other examples or samples that are set out in the agreed facts, but I have had regard to the content in my assessment of the seriousness of that offence.

13. In terms of the offence in sequence 2 of the court attendance notices, an offence of solicit child abuse material using a carriage service, on 20 December 2020 police examined the material captured from the iPhone. The application Wickr Me was located on the phone. That is an instant messaging application that allows users to exchange end to end encrypted and content expiring messages including photos, videos and file attachments. The software is available for the use on what is referred to iOS Android, Mac, Windows and Linux operating systems.

14. The offender used the Wickr Me handle WMSLT1. During a review of the Wickr Me application, AFP members located a number of chats within it. There is a chat which took place on 25 September 2020 with a user called ZEROSGNX. That user sent a message to the offender which said, “Can I get a link and then I’ll give you one?” The offender responded, “Send to receive”. The other user then sent a Dropbox link which contained video files which were not classified as child abuse material and then said, “Your turn”. The other user then said, “I have a young 8C extreme. Do you have similar? Send first to get”. This offender said, “Most of the stuff I’ve got is 17 and under. What about you?” The other user said, “This one is 17 and under”.

15. The other user then sent a Mega.nz link which contained video files which were classified as child abuse material. The other user then communicated with the offender and said, “Send another please then I’ll send 10 and under 8C”. This offender said, “No, dude. I’m looking for 11 to 17 lol”. The other user said, “I can send hot vids on. You can request Asian content”. The offender said, “11 to 16” and the other user said, “Send to get”.

16. An example of the child abuse material located inside the Mega.nz link sent by that other user is set out in the facts. It is a short three minute and seven second video showing a naked prepubescent female approximately 12 years of age urinating into a bucket.

17. The following day on 26 September 2020, there were further communications between this offender using the handle I referred to earlier in relation to the Wickr Me application to a user described as Buddy8984. This offender sent a message to that user saying, “Trade” and the other user said, “What you into?” This user said, “Mostly young, HBU”, mostly “yng”. I presume that means young. “HBU”, I presume that means how about you. The other user said, “Fuck yeah, same” and the other user as I understand the facts, sent an image depicting a naked prepubescent female approximately 6 years of age standing in front of a mirror taking a photo. Her vagina and breasts were exposed.

18. The Mega.nz link is a secure cloud storage website enabled with end to end encryption. Users can share links to content by providing a file path to material.

19. In terms of the third offence which is contained in sequence 3 of the court attendance notices, make available child abuse material using a carriage service. The facts indicate that the police also found that upon examination of the Wickr application there were communications between the offender and a user referred to as Look Around You from 26 September 2020, in which the offender sent that user a Mega.nz link. The link opened a folder titled “Nice”. Within the folder there were 72 files. Some of the files were adult pornography and some of the files were child abuse material.

20. An example of the child abuse material located inside the Mega.nz link is set out in the agreed facts. That is described as a video of three minutes and 26 seconds in length depicting a prepubescent naked female approximately 10 years of age vaginally penetrating herself with a toothbrush.

21. In terms of the fourth offence, which is in sequence 5 of the court attendance notices, of being an offence of accessing child abuse material using a carriage service, the police also located on the Wickr application communications between the offender and a user described as ALIXBMW. From 20 September 2020 that user sent the offender a Mega.nz link, the link opened a folder titled “B” which was 1.42 gigabytes in size and contained 125 files. Some of the files were adult pornography and some of the files were child abuse material.

22. The facts contained the following. While the Crown cannot prove the offender’s access of any individual files, the Crown does allege that the offender accessed some or all of the files from the Mega.nz link which are identified as child abuse material. The facts then set out an example of that material, referred to two videos, one of one minute and five seconds in length and one of 41 seconds. One of the videos depicted a naked prepubescent female approximately 6 years of age being vaginally penetrated by an adult male penis.

23. The other video depicted a naked prepubescent female approximately 11 years of age lying on her back on a bed with an adult male performing cunnilingus on her. Also located on the phone was an application which was linked to the offender’s Mega.nz account. The account contained links to a number of folders which contained child abuse material. Examples of the material located within the folders are set out in the facts. Just by way of example, one is a video of eight minutes and 24 seconds in length of a young prepubescent, approximately 13 year old female, naked, masturbating herself.

24. The record of interview as I said earlier was conducted with the offender by the police. He told the police that he used his phone to access child abuse material on the internet which he located by searching the word “young”; that he first came across child abuse material not long ago while looking at adult pornography websites, that he used the Mega.nz and Wickr apps to access child abuse material and he was directed where to go on Mega.nz from forums on the internet, that he had previously used Dropbox and Tumblr in connection with child abuse material and his Dropbox was deactivated, that he has never paid or asked for payment for child abuse material, that he does not really masturbate to the child abuse material but just looked at the files, that he communicated with people online specifically in relation to child abuse material using the Wickr application.

25. He agreed that he used to be in a group on Wickr where people would share child pornography but that he left the group. He estimated that at least 100 people were members of the group. He told investigators that he accessed the child abuse material from the internet by downloading it onto his laptop and then copying it onto the USB.

Objective seriousness

26. I turn then to my assessment of the objective seriousness of the offences here. It is well established that the objective seriousness of child pornography offences is assessed by having regard to the following factors;

1. The nature and content of the material - in particular, the age of the children and the gravity of the sexual activity depicted

2. The extent of any cruelty or physical harm that may be discernible from the material

3. The number of items or images possessed

4. Whether the material is for the purpose of sale or further distribution

5. Whether the offender will profit from the offence

6. In the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised

7. The length of time for which the pornographic material was possessed

8. In the case of transmission of such material, the number of persons to whom the material was transmitted

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

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

11. 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

12. Any risk of the material being viewed by vulnerable persons, such as children.

27. In terms of the objective seriousness of the offence of possess or control child abuse material - or here, being the offence in sequence 1 - I note the following;

1. In total, there were 123 images and three videos found on the offender’s USB device

2. On the ACER laptop, 109 images were found, including some animated images.

28. So, in total, 232 images, some of which were animated images, along with three videos, are the subject of the charge. The files on the USB device and on the laptop depicted erotically posed male and female children, across a range of ages, some of whom were below 13 years and, in some instances, below ten years of age.

29. The children were variously depicted as clearly displaying their genitals, breasts, along with depictions of vaginal, oral and anal rape of children, in the main by adult males. The images also included images of sexual conduct between children, and solo masturbation by children. While a number of the images and videos involved depictions of penetrative sexual intercourse upon a child by an adult male, it was not suggested in the facts that any of the material involved torture, bestiality or additional cruelty to the child, above the cruelty involved in having a child engage in such conduct.

30. The number of images and videos the subject of the first offence is not insignificant, but it is much less than in many of the cases this Court sees, many of which involve thousands of images and videos. The possession/control was said to have occurred on the one day, given the way the charge has been particularised, and I note that in terms of admissions upon arrest made by the offender in the agreed facts, he had come across child abuse material on the internet not long ago.

31. Some real children were involved, although I am not able to find, beyond reasonable doubt, as to how many. In terms of the solicit child abuse material, using a carriage service - being a mobile phone offence, the sequence 2 offence - on 20 September 2020, the offender engaged in a conversation using the Wickr Me instant messaging application seeking such material through what is referred to as mega.nz, a secure cloud storage website with end to end encryption. Users can share links to content by providing a file path to the material. It is unclear, from the facts, how much child abuse material could be accessed as a consequence of the offender’s conversation, although there was at least one video of a naked prepubescent girl urinating into a bucket.

32. On 26 September 2020, the offender sought out a different person, again using the Wickr Me instant messaging application, who wanted to trade child abuse material. That person sent the offender a single image depicting a naked prepubescent female, approximately six years of age, standing in front of a mirror taking a photograph in which her vagina and breasts were exposed.

33. In terms of the amount of child abuse material the subject of the second charge, it is difficult to have any degree of certainty, however in terms of being satisfied beyond reasonable doubt, I cannot be satisfied that it was more than the two items outlined in the agreed facts. An encrypted messaging application was used, so some planning was clearly involved in an attempt to prevent detection. Those two items involved a real child, not engaged in penetrative sexual intercourse.

34. In terms of the make available child abuse material using a carriage service offence, sequence 3, on 26 September 2020 - again, by using the Wickr application - the offender sent to another user a Mega.nz link. The link opened a folder titled, “Nice”. Within that folder, there were 72 folders, some of which were adult pornography and some were of child abuse material. The agreed facts do not set out how many such files were of child abuse material, although there was at least one video depicting a prepubescent, naked female approximately ten years of age, vaginally penetrating herself with a toothbrush. The video depicted a real child engaged in a penetrative sexual act, but which did not involve another person.

35. There is no suggestion in the agreed facts that the person to whom the offender made this video available was a vulnerable person, such as a juvenile. There was only one other person with whom the offender communicated in relation to this offence. There is no suggestion this offender was paid in some way for making the child abuse material available.

36. In relation to the access child abuse material using a carriage service offence, being the offence in sequence 5 - again, using the Wickr messaging application - on 25 September 2020, the offender was sent a Mega.nz link. The link opened a file which contained 125 files, “some of the files were adult pornography and some of the files were child abuse material”. The agreed facts do not tell me how many of the files consisted of child abuse material. The Crown accepted, in the agreed facts, that it could not prove that the offender had accessed any of the individual files which constituted child abuse material. By his plea of guilty, the offender accepts that he did, although I am not able to say how many.

28. The agreed facts in relation to this offence also state that, located on the mobile phone, was an application which was linked to the offender’s Mega.nz account, which contained links to a number of folders which contained child abuse material. The number of files containing such material is not set out in the agreed facts, although five videos are described as being located within the folders and they, in the main, involve videos of young females engaged in penetrative sexual activity.

29. I consider that, in relation to the offences in sequences 2, 3, and 5, that when regard is had to the offender’s admissions to the police, his conduct was engaged in to connect with other so called “like-minded” persons interested in viewing images and videos of the sexual exploitation of children. In that sense, his conduct can be seen as “transactional”.

30. Overall, I consider - especially in light of the subjective material which I will discuss - that his primary motive for engaging in the offending was sexual gratification of some type. The number of images, the subjects of the second, third and fourth offence, are limited and I noted the limitations of the agreed facts, in that I cannot determine with any precision how many images or videos are the subject of each offence. It is clear that it is much less than in many cases of this type this Court sees. The lack of precision in the agreed facts for those offences - in terms of the number of images and videos of child abuse material that were the subject of the offences, how many involved real children, the ages of those children, and the nature of the acts depicted - have made assessing the objective seriousness of the individual offences difficult.

31. Having regard to the factors I have just discussed, I assess the objective seriousness of each offence as follows:

1. In relation to the possess or control of child abuse material, sequence 1, I assess the objective seriousness as towards the lower end of objective seriousness, but not at the bottom of the range.

2. My assessment of the objective seriousness of the offences in sequences 2 and 3 is that they are a little less serious than the offence in sequence 1.

3. My assessment of the objective seriousness of the offence in sequence 5 is that it is a little below that of the offences in sequences 2 and 3.

The offender’s subjective case

41. I turn then to the offender’s subjective case. The offender was 21 years of age as at the date of the offences and is now 23 years of age. He is what the law calls a young adult offender. The principles concerning the relevance of youth to sentencing are well known. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrents, denunciation and retribution, when sentencing a young adult offender. See the relevant principles discussed in Bullock v The Queen 2016] NSWCCA 131, referring to BP v The Queen [2010] NSWCCA 159.

42. Those principles also recognise that often males do not fully mature until they are at least in their mid-twenties. While it is the case that the concept of general deterrence is a highly relevant factor when sentencing for offences concerning child abuse material, I consider that here I should give some weight to the youth of this offender when imposing a sentence.

43. The offender has no prior criminal record. I accept that when sentencing for this offence, it has been said in the Court of Criminal Appeals that less or limited weight is to be given to an offender's prior good character, because these offences are often committed by persons who have no prior convictions and are of good character, however the lack of a criminal record remains, in my opinion, a relevant matter to have regard to when sentencing an offender for such offending, although the weight to be given to it on sentence is reduced for the reason I have just stated.

44. The following documentary material is before me in relation to the offender's subjective case; a sentencing assessment report dated 16 December 2021, which has attached to it a report by an Annalise Mifsud, a psychologist with Corrective Services, a report dated 16 February 2022 by Bradley Jones, forensic psychologist, two documents under the hand of Tony Vorster, a psychologist with Headspace Parramatta dated respectively 10 January 2022 and 7 March 2022, a letter dated 14 December 2021 from Dr Michael Fasher, the offender's general practitioner, annexing a number of documents concerning the offender's mental health and mental health plans, a letter from the offender and a letter from his sister. An affidavit of his solicitor was read without objection.

45. The offender did not give evidence on sentence, and I have had regard to that fact when assessing what weight to give to the subjective material, although I note the Crown did not object to any of the material on behalf of the offender or put in contest its content to any significant degree. Some of the material predates the offences, and overall, the subjective material is generally consistent.

46. Turning then to his family background. The material before me establishes that the offender was born in the Philippines and immigrated to Australia with his sister and uncle when he was approximately nine years of age. The offender has a twin sister, and it is clear from all the material that is before me that they have a good relationship. I note his sister was present in Court on Monday when I conducted the sentencing hearing, and she is here again today. The offender told Mr Jones that he could not remember his father's name. The offender said that he had a poor relationship with his father. His father, he recalled, exposed him to pornography and sexualised behaviours from when he was approximately five years of age, and he has not seen his father since coming to Australia. He recalled that when his parents were together, they frequently argued, and divorced when he was a young child.

47. His mother came to Australia in 2005 and married his stepfather. The offender told Mr Jones that he met his stepfather shortly after coming to Australia, and that he had a relatively good relationship with him, until his mother separated from his stepfather, which occurred when he was 18 years of age. The offender told the psychologist that his childhood in Australia was difficult because of the cultural differences, and his inability to develop many friendships. The offender told the psychologist that when he was approximately 12 years of age, he was the victim of sexual abuse by his cousin. The cousin was said to be older, 15 years of age, and the offender told the psychologist he was sexually abused for a period of about 12 months, and that penetrative intercourse was involved in the abuse. His disclosure to the psychologist was the first time he has disclosed the abuse.

48. While the offender did not give evidence, I am inclined to accept that the abuse occurred, given he has not been exposed to the criminal justice process previously, and it is well known that there can be significant delay in a victim of child sexual abuse disclosing it. Mr Jones records the offender telling him that the abuse ceased when he was in year seven at school.

49. The offender told Mr Jones that he had one intimate relationship in his life, which was of a relatively short duration in 2020. The sentencing assessment report records that the offender currently lives with his mother and aunt. He told the author of that report that his relationship with his mother was, "Distant and resentful". The sentencing assessment report records that the offender is currently unemployed, and in the past, has frequently changed employment.

50. Dealing then with his education and employment history. Mr Jones records the offender as having completed year 12. The offender described himself as an academically average student. He detailed to Mr Jones that he experienced bullying at school, and to some degree, felt alone during that time. In terms of employment, Mr Jones records the offender as reporting he has in the past had short term employment as an apprentice floor sander, a pick packer, a floor installer and sander, and worked as a forklift driver for 2-3 years.

51. In terms of his substance misuse, Mr Jones records the offender first consumed alcohol from 16, and that he has not consumed alcohol since February last year. The offender reported that he first smoked cannabis when 17, and that when he was 20 years of age, his cannabis consumption increased to use on a daily basis, as he saw it as helping him cope with his depression and feeling down about his sexual abuse. He also is recorded as reporting that he ceased his cannabis use in February 2021, when he commenced taking antidepressant medication. The offender also described to Mr Jones experimenting on a limited number of occasions with MDMA, cocaine, and "mushrooms".

52. Turning then to the psychological material that is before me. The documentation from his general practitioner shows that in May 2018, the offender consulted with a GP in relation to high levels of anxiety and depression. The general practitioner recorded at that time that the offender had experienced suicidal thoughts. The GP prepared a mental health plan as a consequence of being consulted by the offender. At that time, the offender was referred to a psychologist, however the GP had no evidence that the offender had acted on the referral. The offender told Mr Jones that he had around that time, attended three sessions at what is referred to as the Talbot Centre in Baulkham Hills, before ceasing that treatment. In May 2018, the offender also started taking antidepressant medication. Mr Jones was able to obtain records from the Talbot Centre which indicate that the offender was diagnosed by a clinician there in September 2018 with a major depressive disorder and a substance use disorder, and in October 2018, was considered to be at a moderate risk of self-harm.

53. The documentation before me shows that the offender returned to his GP in July last year when a further mental health plan was devised. The GP referred the offender to Headspace in Parramatta. The content of the general practitioner's documentation is essentially consistent with what the offender is recorded as reporting to Mr Jones insofar as his background is concerned.

54. Mr Forster, a psychologist with Parramatta Headspace, records that the offender attended three sessions of early intervention therapy with a youth access clinician at Headspace and was then referred to Mr Forster in November 2021 for focused psychotherapy. By the end of 2021, he had attended two sessions of therapy with Mr Forster. In Mr Forster's March 2022 letter, he records that the offender has attended a further three sessions of psychotherapy and has disclosed more detail about the trauma he experienced while growing up. It appears from the Headspace documentation that in recent times, Mr Forster has focused on helping the offender to prepare mentally for possible incarceration.

55. Mr Jones recorded the offender as presenting with a generally flat and restricted affect and with a depressed mood. Mr Jones noted the offender presented with "themes of anxiety and depression, worry about the future, and feeling depressed about his life, and his history of sexual abuse". Mr Jones noted that there was no evidence of sensory, perceptual, or significant cognitive impairment, and the offender was considered to be in the average range of intelligence with a good level of insight and judgment.

56. Mr Jones administered a number of psychometric tests to the offender. His results indicated that he was experiencing clinically severe levels of anxiety, and clinically severe levels of depression. Mr Jones recorded that the offender reported feeling sad much of the time, has thoughts of killing himself, but that he would not carry them out. Mr Jones indicates also that testing showed that the offender does experience symptoms consistent with post traumatic stress disorder, but that further testing is required before a diagnosis could be proffered.

57. Mr Jones in his report does record that the offender indicated in relation to the offending that, "the online discussion he had with others stimulated engagement in the offending behaviour, and that he did obtain sexual stimulation as a result". Mr Jones considered that the offender, " does not have a specific fixation on pre-pubescent children that would be indicative of paedophilia. His sexual attraction towards children is indicative of paraphilia", which I understand to be a more general abnormal sexual practice. Mr Jones formally diagnosed the offender as suffering from an unspecified paraphilic disorder.

58. I note that Mr Jones states in his report, "anxiety and depression does not explain or account for a sexual attraction, however individuals experiencing anxiety and depression will engage in behaviours that will self sothe(sic)" - (presumably soothe) - "and reduce their level of emotional support". Mr Jones in that regard does refer in his report to the offender's behaviour being, "consistent with research indicating that for some offenders, downloading child pornography may be a way of avoiding or coping with difficult emotional states".

59. The evidence supports a finding that at the relevant time of the offences, the offender was suffering from significant mental health problems and had done so since 2018. I do not consider however that the evidence goes so far as to engage the well-known principles in DPP v De La Rosa [2010] NSWCCA 194, as in my opinion, the evidence does not establish that his mental health condition contributed to the offending in a material way. I do consider though that I should have some regard to his mental health when determining the appropriate sentence to impose here, on the basis that he had what might be termed fragile mental health as at the time of the offending, and at the current time.

60. In terms of the offender's attitude to the offence, the sentencing assessment report records that the offender said that he knew that his offending was wrong, and spoke of, "morbid curiosity", driving him to seek child abuse material. The author of the sentencing assessment report was of the opinion the offender, "appeared to lack insight into his offending behaviour". He is recorded in the sentencing assessment report as telling the author, "he accessed and viewed the child abuse material in an attempt to feel something and received no sexual gratification from viewing the material".

61. Those statements do not sit well with what is contained in Mr Jones' report that some sexual gratification was involved in accessing the material, nor do they sit well with part of the content of his letter to the Court, which is exhibit 7. In that letter, the offender acknowledges that he obtained sexual gratification from the offending. He states, "Even though I received some sexual gratification by watching the material, I still felt bad for the children". The offender does in his letter go on to explain that he feels bad for the children, because he himself had been sexually abused as a child.

62. The sentencing assessment report does record that the offender showed some insight into the impact of his offending upon the children who were depicted in the material. His letter and an annexure to Ms Lee's affidavit, which was prepared by the offender, is also indicative of the offender having some insight into the destructive nature of his offending. While I am conscious of what the Court of Criminal Appeal has said about placing much weight on self-serving letters from offenders when they are not called to give evidence, I do think his letter to the Court shows some further insight into his offending and the impact child pornography has upon the children who are used to produce it. I note he made a statement that might be thought to be against his interest in relation to conceding he obtained some sexual gratification from the offending. It suggests the content of the letter is reliable.

63. In terms of the future and risk of reoffending, the psychologist, Mr Jones, considered that the offender has a low risk of committing further offences. To manage and decrease his risk of recidivism, Mr Jones considers that the offender should engage in cognitive behavioural therapy and enter into treatment that specifically addresses sexual offences and their associated risk factors. The author of the sentencing assessment report considered the offender has a medium to low risk of reoffending, and noted that he expressed a willingness to engage in intervention.

64. I am required under s 16A(2)(h) of the Crimes Act to consider any cooperation with the authorities that the offender has engaged in. The agreed facts demonstrate that the offender made substantial admissions when first spoken to by police, and provided the police with the password to his mobile phone. I have had some regard to that assistance he provided to the police in arriving at the appropriate sentence to impose here.

65. The offender entered his pleas of guilty at an early point in time in the Local Court, and under s 16A(2)(f), I am to have regard to the timing of the plea and the degree to which his pleas have benefitted the community. Given the early entries of the pleas of guilty, I propose to provide the offender with a 25 per cent discount of his sentence. Overall, I consider that the evidence shows that the offender over time has developed insight into the serious nature of his offending, and the impact child pornography has on the vulnerable children who are exploited in its production. I consider on balance that there is some genuine remorse by the offender.

66. I turn then to his prospects for rehabilitation, a factor to be considered under s 16A(2)(j) of the Crimes Act. In assessing his prospects of rehabilitation and its relevance to sentencing, I have had regard to the content of s 16A(2AAA) of the Crimes Act in considering my approach to that issue. I have noted the limited discussion of the provision by the Court of Criminal Appeal in the recent decision in Dark v The Queen [2022] NSWCCA 52. The offender has good prospects of rehabilitation in my opinion. He is young, has no prior record, has some family support, and has commenced treatment with mental health professionals, and his risk of reoffending, in my opinion, overall is relatively low. In that regard, I have considered the risk assessments of both Mr Jones and that of the author of the sentencing assessment report.

67. There is uncontested evidence before me about the lengthy delay and difficulties associated with the sex offender specific programs that are available to eligible inmates in custody. That evidence establishes that the COVID‑19 pandemic has caused a backlog of referrals to such programs, and they are still not being conducted on a face-to-face basis. It is well known that COVID‑19 has made the conditions of custody more difficult for inmates and has reduced the availability of rehabilitation programs within the custodial environment. I have had regard to those matters when considering the appropriate sentence to impose here. The offender has spent some two days in custody, being initially bail refused upon his arrest. I have had regard to that and will commence his sentence from 21 March 2022.

Consideration of sentencing factors

68. When considering the issues of accumulation and concurrency of the sentences to be imposed, I have had regard to s 19(1) to (4) of the Crimes Act. I have had specific regard to s 19(5) which provides as follows, "An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for another Commonwealth child sex offence”. Subsection 6 provides that subsection 5 does not apply if the Court is satisfied that imposing the sentence in a different manner would result in sentences that are of a severity appropriate in all the circumstances. There is no issue that the offences here are Commonwealth child sex offences. I consider here, when I have regard to all the matters relevant to the instinctive synthesis of sentencing, that some modest level of accumulation is appropriate. The offences were committed over a limited number of days, they were all concerned with child pornography, and given the nature of the offending, there was clearly some overlap between them.

68. When imposing sentence, I will utilise the aggregate sentencing provisions, noting that they are available to be used when sentencing for Commonwealth offences, see DPP v Beattie [2017] NSWCA 301 applying comments by the High Court in Putland v The Queen (2004) 218 CLR 174. As the higher Courts have consistently said, general deterrence is the primary factor when sentencing for child pornography offences. That is for a number of reasons.

69. Such offending is now conducted on an international basis through the misuse of the internet and is becoming increasingly prevalent. It is difficult offending to detect with the advent of encrypted messaging applications, and what is sometimes referred to as, "the dark web". The possession of such material creates a market for the continued abuse and exploitation of vulnerable children. The children who are sexually abused and exploited in the creation of such material are innocent victims and Courts must do what they can to protect them by imposing sentences that act as a meaningful deterrent for such offending.

70. The maximum penalties have been taken into account as legislative guideposts. I have considered the tables of cases I was referred to by the Crown and on behalf of the offender. Many of the cases referred to in those schedules involve much more serious offending than that involved here. It must always be remembered that sentencing involves instinctive synthesis of a number of factors which often pull in different ways. There can be no doubt that the only appropriate penalty to impose here is one of imprisonment. See in that regard s 17A of the Crimes Act.

71. It is clear that in relation to the offences under s 474.22(1) of the Code, that an intensive correction order is not an available sentencing option should the overall aggregate sentence be less than three years. That is because those offences are specifically nominated in s 67 of the Crimes (Sentencing Procedure) Act as being offences to which an intensive correction order may not be imposed.

72. The Crown argued that an offence under s 474.22A, although not specifically nominated in s 67, the terms of the provision mean that it too cannot be the subject of an intensive correction order. No submission was advanced to the contrary on behalf of the offender, and I do not consider I need resolve the issue for the purposes of imposing sentence here.

73. The thrust of the argument that was advanced to me was directed to whether or not this was a case where I would find, “exceptional circumstances”, within the meaning of s 20(1)(b)(ii) of the Crimes Act, and immediately release the offender on a recognisance. Section 20(1)(b)(ii) of the Crimes Act relevantly provides,

“Where a person is convicted of a federal offence or federal offences, the Court before which he is convicted may, if it thinks fit, 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 para (a) of the provision.”

The provision, though, goes on in subparagraph (b)(ii) to state,

“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 subs 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.”

75. Here, only if the Court is satisfied that there are exceptional circumstances within the meaning of that provision can the Court release the offender on such a recognisance without requiring him to serve a specified period of imprisonment.

76. The parties referred me to two New South Wales District Court decisions of my brother judges on the question, and research done on my behalf by my Associate located a Victorian County Court decision last year dealing with the issue. I propose to now consider those decisions.

77. The first decision is of Judge Berman in R v Pederson [2021] NSWDC 535. That decision did not involve child pornography offences but did involve a Commonwealth child sex offence of using a carriage service to groom a child under 16 years of age for sexual activity. There was an offence on a schedule under the Crimes Act which his Honour was asked to take into account in sentencing the offender. That was an offence of using a carriage service to transmit an indecent communication to another person under the age of 16. I note his Honour found that the offence was engaged in for sexual gratification.

78. His Honour found exceptional circumstances when sentencing the offender in that case. His Honour considered that a combination of factors led to his finding of exceptional circumstances. Those factors appear to be that the offender was 61 years of age and was a man of good character, he pleaded guilty at the earliest opportunity, that he was remorseful and had good prospects of rehabilitation, the consequences that would befall the offender’s family if he was incarcerated, the impact of the COVID‑19 pandemic upon offenders sentenced to full-time custody, what his Honour considered were the unusual circumstances of the offence, and that the offender had not sought to misrepresent who he was to the child and there was no repeated contact between the offender and the persons to whom he was communicating.

79. In R v Dregmans [2022] NSWDC 55, Judge Abadee found exceptional circumstances when sentencing an offender for a single offence of possess or control child abuse material under s 474.22A of the Commonwealth’s Code. It appears, from a reading of the judgment, that the Crown, in effect, accepted that it was open to his Honour to find exceptional circumstances in that case.

80. His Honour considered that the Crown’s concession was appropriately made, noting the offending was at the low end of the scale of seriousness, the offender was a person of good character with good prospects of rehabilitation, was at a low risk of reoffending and had suffered extra‑curial punishment through media coverage of the proceedings. I acknowledge that the offending in that case appears to be less serious than the offending here.

81. In DPP v Joner‑Collins [2021] VCC 2046, her Honour Judge Sexton also found exceptional circumstances for the purposes of s 20(1)(b)(ii) of the Crimes Act. Her Honour was there sentencing an offender for possessing or controlling child abuse material obtained or accessed using a carriage service. The Crown opposed the course her Honour took in that case.

82. Her Honour found that while the offender was to be sentenced for possession on one day, the possession was not an isolated event. 11,493 files found on three of the offender’s devices were found to be child abuse material. Paragraph 15 of her Honour’s judgment contains a breakdown of the type of material and the files. A reading of that paragraph shows that the files the subject of that offender’s charge was not only much greater in number than here but also of much greater seriousness. By way of example, I note there were some 58 files involving sadism or bestiality of real children. I note two thirds of the files did involve animated images, which might be thought to lessen their seriousness. Her Honour noted that there had been some exchange of the material but that it had not been for money. Her Honour considered that the level of objective seriousness was, “significant”.

83. In terms of the offender’s subjective case in that case, the offender was about to turn 29 as at the date of the sentence and had no criminal record. The offender had pleaded guilty in that case at an earlier opportunity and her Honour considered the offender had genuine remorse. Her Honour considered the offender had assisted the authorities through making admissions, assistance in locating the material, including providing a password when required to access the device.

84. The offender in that case had a difficult childhood and had been badly beaten by his father when he was around seven or eight. Her Honour found that the offender had been sexually abused by a neighbour from a young age and introduced to pornography, including child pornography, by that person. The offender had attempted suicide when 16 or 17. The sexual activity with the neighbour continued until three years before sentencing.

85. The offender in that case, as a young person, was diagnosed with depression but did complete year 12 and certain certificates in accounting. Due to COVID‑19, the offender had lost his employment. The offender at the time of sentencing was in a supportive relationship with a female who was pregnant with his child.

86. There was expert evidence that the offender’s sexual development in that case was, “contaminated”, because of his sexual abuse as a child. Her Honour found that the history of sexual abuse as a child provided an explanation for and had contributed to the criminality and impaired his ability to appreciate the wrongfulness of his conduct. Her Honour considered that the offender’s background of sexual abuse reduced his moral culpability for his offending.

87. In summary, her Honour found exceptional circumstances at para 99 of the judgment, being the combination of the offender’s,

“personal history of clinical difficulties and underlying vulnerabilities and challenging childhood and home life against a background of ongoing sexual abuse from the age of five or six to your early 20s, with the perpetrator of that abuse introducing you to child and adult pornography in your sexually formative years and normalising your abuse and that depicted in the child exploitation material.”

88. The offending in Collins was considerably more serious than here, in my opinion, and while the subjective case, when compared with that of the offender here had some similarities, it would appear to have, perhaps, more unusual features than this offender’s.

89. In my opinion, the word, “exceptional”, in the statutory context means out of the ordinary course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances.

90. In coming to that view of the term, “exceptional circumstances”, I have received assistance from the decision of the Queensland Court of Appeal in R v Tootel [2012] QCA 273, which concerns the construction of a somewhat similar provision to s 20(1)(b)(ii) of the Commonwealth Crimes Act found in the Queensland Penalties and Sentences Act. See in particular the discussion at paras 18 to 25 of that decision. In my opinion, this notion of exceptional circumstances is consistent with the explanatory memoranda concerning the introduction of the provision which contains the following,

"The term exceptional circumstances under paragraph 20(1)(b)(ii) is deliberately not defined given the variable circumstances which may militate against or support a sentence of imprisonment, it would impose practical constraints if exceptional circumstances was defined. Firstly, the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which of themselves may not be special or exceptional, but taken cumulatively, may meet this threshold. Second, the list of factors said to constitute exceptional circumstances, even if stated in broad terms, will have the tendency to restrict rather than expand the factors which might satisfy the requirements of exceptional circumstances".

91. Here, in my opinion, the combination of the following factors amounts to exceptional circumstances within the meaning of the provision, accepting that no one factor itself is exceptional. The relatively low level of objective seriousness of the offences, the offender's relative youth, in particular at the time of his offending, his difficult early life, in particular, the conduct of his father, which involved his exposure to sexualised conduct and pornography, the fact he was the subject of child abuse himself at the age of 12, his fragile mental health state as at the time of the offending, his assistance to the authorities upon his arrest, his early plea of guilty, his good prospects for rehabilitation, his relatively low risk of reoffending, the need for the offender to engage in rehabilitative programs, and the difficulty in engaging in such programs in a custodial environment during the COVID-19 pandemic, the arduous conditions of custody that now exist as a consequence of the COVID‑19 pandemic.

92. I have placed considerable weight in coming to this conclusion on his difficult early life, the fact that I accept that he was the victim of child abuse when 12, and the impact of COVID‑19 on the conduct of rehabilitative programs in the custodial environment, and the more arduous custodial conditions inmates are facing due to COVID-19 restrictions.

Imposition of sentence

93. Mr Nafarrette, you are convicted of the four offences to which you have pleaded guilty. I will firstly record what are called the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all the objective and subjective factors I referred to earlier. The sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell you the date it starts from, the date it ends. I will then tell you the terms of the recognisance that I will release you on today.

94. I record the following indicative sentences; on sequence one, the offence under s 474.22A of the Commonwealth's Code, an indicative sentence of 16 months’ imprisonment. On sequence two, an offence under s 474.22(1) of the Code, an indicative sentence of 9 months’ imprisonment. On sequence three, a further offence under s 474.22(1) of the Code, I record an indicative sentence of 12 months’ imprisonment. On sequence five, a further offence under s 474.22(1) of the Code, I record an indicative sentence of 8 months’ imprisonment. I impose an aggregate sentence of two and a half years’ imprisonment. That sentence commences on 21 March 2022 and expires on 20 September 2024.

95. I make an order under s 20 of the Commonwealth Crimes Act that the offender be immediately released upon a recognisance in the amount of $500 without surety on the following conditions, that the offender be of good behaviour for a period of three years, that the offender is to be supervised by a probation officer and obey all reasonable directions of a probation officer, the offender is not to travel interstate or overseas without the written permission of the probation officer, and the offender is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, in particular, programs specifically designed for sex offenders. The offender is to report to Blacktown community corrections within seven days of today.

Orders

1. Impose an aggregate sentence of 2 years 6 months imprisonment. The sentence commences on 21 March 2022 and expires on 20 September 2024.

2. Make an order under s.20 of the Crimes Act (Cth) that the offender be immediately released upon a recognisance in the amount of $500 without surety on the following conditions:

1. That the offender be of good behaviour for a period of 3 years;

2. That the offender is to be supervised by a Probation Officer and obey all reasonable directions of a probation officer;

3. The offender is not to travel interstate or overseas without the written permission of the probation officer; and

4. The offender is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, in particular, programs specifically designed for sex offenders.

5. The offender is to report to Blacktown Community Corrections within 7 days of today.

**********

Decision last updated: 23 June 2022