R v AG

[2024] NSWDC 536

District Court

New South Wales

Medium Neutral Citation:

R v AG [2024] NSWDC 536

Hearing dates:

3 November 2023

Date of orders:

12 April 2024

Decision date:

12 April 2024

Jurisdiction:

Criminal

Before:

Allen DCJ

Decision:

Sentenced – see [141]-[147]

Catchwords:

CRIMES – Sentence – possess/control child abuse material use carriage service.

CRIMES – Sentence – use carriage service transmit/publish/promote child abuse.

CRIMES – Sentence – bestiality.

CRIMES – Sentence – person possesses bestiality material – use carriage service to menace/harass/offend – Form 1 matters

Legislation Cited:

Crimes Act, 1914 (Cth)

Crimes (Sentencing Procedure) Act, 1999

Criminal Code Act, 1995 (Cth)

Cases Cited:

R v Dawson [2022] NSWSC 1632

R v Pham (2015) 256 CLR 550

Elias v The Queen (2013) 248 CLR 483

Chesworth v R [2023] NSWCCA 115

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rex
AG

Representation:

Counsel:
Mr Brown for the Commonwealth Crown
Ms Kluss for the Offender
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
RHALAW (Offender)

File Number(s):

2022/242412

Publication restriction:

Yes (interim order s 8(1)) Court Suppression and Non-publication Orders Act 2010

REMARKS ON SENTENCE

1. AG (the offender) was born on 13 October 1981. He is now 42 years old. At the time of the offences (between 19 May and 16 August 2022), he was 40.

2. On 21 April 2023 the offender pleaded guilty before the Local Court at Penrith to the following offences:

1. Sequence 1 - "on 16 August 2022 at a Hebersham in NSW, did possess or control material, being 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 or access the material."

2. Sequence 3 - "Between 21 and 22 July 2022 at Hebersham in NSW, transmitted material to "Chris", using a carriage service, the material being child abuse material."

3. Sequence 4 - "On 3 July 2022 at Hebersham in NSW, transmitted material to "M", using a carriage service, the material being child abuse material."

4. Sequence 5 - "Between 19 May and 3 July 2022 at Hebersham in NSW, transmitted material to "Hey", using a carriage service, the material being child abuse material."

5. Sequence 6 - "On 3 July 2022 at Hebersham in NSW, did commit an act of bestiality with an animal, to wit, a dog, as principal in the second degree."

6. Sequence 8 - "On 14 July 2022 at Hebersham in NSW, transmitted material to "Kim Hawes", using a carriage service, the material being child abuse material."

3. Sequence 1 is an offence contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty upon conviction of 15 years imprisonment. Sequences 3, 4, 5, and 8 are contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) and also attract a maximum penalty upon conviction of 15 years imprisonment (the federal offences).

4. Sequence 6 (the State offence) is an offence contrary to ss 79 and 345 of the Crimes Act NSW 1900 as the offender was charged and pleaded guilty as a principal in the second degree. This offence attracts a maximum penalty upon conviction of 14 years imprisonment.

5. In addition to the offences being sequences 1, 3, 4, 5, 6, and 8, the offender has also acknowledged his guilt in respect to the following offences and asks that the sentencing Court take those offences into account when imposing a sentence for the principal offence to which they attach.

1. Sequence 7 (attaches to sequence 6 - the State Offence) - "On 16 August 2022 at Hebersham in NSW, did possess bestiality material."

2. Sequence 9 (attaches to sequence 4) - "On 3 July 2022 at Hebersham in NSW, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive", and

3. Sequence 10 (attaching to sequence 8) - "On 14 July 2022 at Hebersham in NSW, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive."

6. Sequence 7 attaches to sequence 6 being the state offence by virtue of s 32 Crimes (Sentencing Procedure) Act 1999 NSW. It has been placed on a Form 1 document executed by the parties. Sequences 9 and 10 attach to sequences 4 and 8 respectively, being the federal offences to which the offender entered pleas of guilty before the Local Court at Penrith on 21 April 2023. They are before the Court by virtue of a schedule pursuant to s 16BA Crimes Act 1914 (Cth).

7. All the offences took place between May 2022 and August 2022 at Hebersham where the offender was living at the time.

8. The offending for which the offender is to be sentenced involves crimes against both Commonwealth and State law. He is to be sentenced for the Commonwealth offences (the 4 charges of using a carriage service to transmit child-abuse material (sequences 3, 4, 5 and 8), and sequence 1 (possession of child abuse material) having regard to Part 1B of the Crimes Act 1914 (Cth). In respect of the New South Wales offence (sequence 6), I must have regard to the Crimes (Sentencing Procedure) Act 1999 NSW. In all matters it is necessary for me to assess the objective seriousness of the offences for which the offender is to be sentenced. I am required to do this by reference to the maximum penalties prescribed by the Parliament, the facts and circumstances of the offending, relevant common law principles, the Crimes Act (Cth) and the Crimes (Sentencing Procedure) Act 1999 NSW. As observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10],

"Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial experience. Reasonable minds may differ as to the conclusion".

9. I am required to impose sentences that are proportionate to the gravity of the offending and in doing so have regard to their factual circumstances and the subjective features of the offender. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation.

10. In dealing with the state offences, I must also pay attention to the purposes of sentencing set out in s 3A of the CPSA. Those purposes are, adequate punishment, general and specific deterrence, the protection of the community, the rehabilitation of the offender, the need to make the offender accountable for his conduct, and to denounce it, and the need to recognise the harm done to the victims and the community. I must also have regard to s 5 of that Act which provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no other penalty is appropriate.

11. The Commonwealth offences are "child sex offences" within the meaning of s 3 of the Crimes Act 1914 (Cth). In sentencing for them, I am required to comply with s 16A(1) of the Crimes Act 1914 (Cth) and impose sentences that are of a severity appropriate in all the circumstances. In doing so I must take into account the factors set out in s 16A(2) as are relevant and known to me, bearing in mind that these are not an exhaustive list of all to which I can have regard. I must also consider s 17A(1) which provides that a court shall not pass a sentence of imprisonment in respect of a federal offender unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate. In addition, I must have regard to s 20(1)(b)(ii) which requires a Commonwealth child sex offender to serve an actual period of imprisonment unless there are exceptional circumstances.

12. It is also necessary in sentencing for the Commonwealth offences to seek to achieve consistency, and to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency sought is in the application of relevant legal principles, rather than in the numerical equivalence of sentences, and I have sought to give effect to this.

13. Further, in dealing with the Commonwealth offences, it will be necessary for me to have regard to s 16A(2AAA) of the Act which is in the following terms:

14. 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:

1. when making an order-to impose any conditions about rehabilitation or treatment options;

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

15. Once all the relevant factors have been considered I am to undertake an instinctive synthesis. That is, I must make a value judgment as to what is an appropriate sentence having regard to all the factors of the case including the offender's subjective circumstances. As a result, there is no such thing as a single correct sentence. As emphasised by the High Court in Elias v The Queen (2013) 248 CLR 483 at [27]:

"…. the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion."

The sentence hearing

16. Mr Brown of counsel appeared on behalf of the CDPP. At the sentence hearing conducted before me on 3 November 2023 he tendered the Cth Crown Sentence Bundle (Exhibit A), which contained the following:

1. Sentence Summary Sheet.

2. Notice of Committal.

3. Court attendance Notices - Seqs 1, 3, 4, 5, 6, 7, 8, and 9.

4. Section 16BA Schedule for sequence 9.

5. Section 16BA Schedule for sequence 10.

6. Form 1 document for sequence 7.

7. AG's NSW Court history convictions.

8. AG's NSW custodial history.

9. Section 23ZD Forfeiture Order.

17. Ms Kluss of counsel appeared for the offender, who appeared in person before the court from custody. On behalf of the offender Ms Kluss formally tendered the following material:

1. Report of Dr Paul Pusey, Clinical and Forensic Psychologist, dated 10 October 2023.

2. Report of Dr Olav Nielssen, Psychiatrist, dated 15 August 2023.

3. A 3-page handwritten letter addressed to the court from the offender.

4. Certificate of completion Connect - a dialectical behaviour and resilience-based program offered by Corrective Services, dated 16/10/2023.

5. Letter from Dinah Bashan, Services and Programs officer Corrective Services NSW, dated 13/10/2023, confirming the offender's participation in Remand Addictions Program and Narcotics Anonymous and the Connect program.

6. Letter from Michelle Dingwall a friend of the offender for more than 25 years, dated 2/11/2023, and

7. A letter from Beston McManis solicitors confirming arrangements for a medical examination of the offender with Dr Shaikh on 24/10/2023.

18. In addition, an affidavit of Alexander Miller, solicitor who acted for the offender in recent Family Law proceedings, dated 31/10/2023 was also tendered in the sentence proceedings.

19. Dr Nielssen was required by the crown for cross examination. He gave evidence by way of AVL in the sentence proceedings and was cross examined extensively by the Crown concerning his opinion as to the likely cause, focus of, and nature of the offender's abnormal sexual interest.

20. As well as the evidentiary material tendered by the Crown and Ms Kluss, both counsel provided detailed written submissions, which were marked MFI-1 (Crown) and MFI-2 (Offender) respectively. After Dr Nielssen's evidence concluded counsel made further extensive oral submissions after which the sentence was adjourned to this date for judgment. I wish to take this opportunity to thank both Mr Brown and Ms Kluss for their submissions in this most difficult case.

Agreed Facts

21. A statement of agreed facts was provided to the court, and it is upon the basis of that document that the offender will be sentenced. It will not be recited verbatim in these reasons. Rather I will seek to summarise it.

22. Shortly before 6 AM on Tuesday, 16 August 2022, members of the Australian Federal police child protection operations team tendered 158 Jersey Road Hebersham NSW for the purpose of executing a search warrant. The offender was provided with a copy of the search warrant together with a document titled "rights of the occupier". The offender was cautioned by police the offender then provided police with the password/pin to his mobile phone. The offender was then asked by Federal police officer Barcham if it was likely that child abuse material would be found during the search. The offender responded that police would probably find it on his phone. At 9:55 AM police facilitated a telephone call between the offender and his legal representative. At 10:30 AM, officers from the RSPCA attended the premises. At 11:30 AM, police observed a video located on the mobile phone belonging to the offender. The video depicted an act of bestiality. Police observed an adult male's arm in the footage. The male were link bracelets on his arm and had a number of tattoos that resembled those observed on the offender's arm. At 1:38 PM police inform the offender that he was under arrest for bestiality and child abuse material offences. At 1:53 PM the offender gave consent to undergo a forensic procedure, namely photography.

23. Police seized the following items at the offender's premises:

1. Two large link gold bracelets located on the left wrist of the offender.

2. One large link gold bracelet located on the right wrist of the offender.

3. One white Apple iPhone 8Plus located on a bed in the Annex/granny flat attached to the premises.

24. At 3:31 PM Federal police officer Barcham commenced a record of interview with the offender. The offender declined to answer questions about the allegations.

25. Between 29 August 2022 and 16 September 2022, police conducted an examination of the image and video files contained on the Cellebrite extraction of the iPhone 8Plus at the premises. All charges arose from material located on the offenders iPhone. The following device details were observed:

1. Apple ID: [email protected].

2. IMEI: 356714088645243.

26. During the examination police observed a number of files that constituted child abuse material and bestiality material. The conversations the subject of all charges were extracted from this iPhone device.

27. Sequence 1 (Possess or control child abuse material), is a rolled-up charge relating to files found in Google photos application and MEGA application located on the iPhone. Google photos is a photo sharing and storage service developed by Google. Three files were found on the Google photos application that constituted child abuse material. The first was a video of two minutes and six seconds duration, depicting a prepubescent male, aged between 8 and 10 years, being anally penetrated by an adult male penis. The adult male ejaculates within the child's anus and then penetrates the child's anus with his finger, the child defecates on the adult's finger. The second was a video of 20 seconds duration, depicting a male toddler, aged between 1 and 2 years, being anally penetrated by an adult male's penis. The third file was a video of 1 minute 14 seconds duration, depicting a prepubescent female, aged between 4 and 6 years engaging in sexual intercourse with an adult male.

28. As well as the three video files police located the MEGA application on the offenders iPhone. MEGA is a cloud storage and file hosting service that is offered primarily through web-based applications. Police located one video depicting child abuse material within the MEGA application. The MEGA application was logged in with the following details:

1. Screen name: cock sucker.

2. Email address: [email protected]

3. Storage: 12.54GB used of 20GB.

29. The video containing child abuse material can be described as a video of 6 minutes and 40 seconds duration. The video is a compilation depicting infant children aged between 0 and 6 months, being anally penetrated by adult male penises and forced to perform fellatio.

30. Sequence 3 (use carriage service to transmit child abuse material to "Chris"). On 21 July 2022 the offender engaged in a WhatsApp conversation with an Australian phone number with username, "Chris". WhatsApp is a cross-platform centralised instant messaging application that allows users to send text messages and voice messages, make voice and video calls and share images, documents, user locations and other content. An excerpt of the conversation between the offender and Chris is as follows:

1. Offender: you into yng

2. Chris: Yes, I don't do a lot. But it can be really hot. Especially showing a guy new to sex the ropes. Training boys is fun.

31. On 22 July 2022, the offender and "Chris" engaged in the following conversation, which included discussion about the offender's son and the offender sending two videos of child abuse material:

1. Chris: you sound like a filthy fuck. That's how I love it.

2. Offender: now I've got my son and father asleep inside the house and I need to feel you smash both my holes balls deep.

3. Chris: I promise to behave.

4. Offender: my sons 12 just imagine it's his hole you're smashing show me how much of a dirty cunt you are.

5. Chris: I'll show you how I am gonna break his hole in.

6. Offender: mmmm really.

7. Chris: okay I'll organise a ride. Role-play.

8. Offender: you have me rock hard.

9. Chris: or maybe I'm serious. I do love virgin arse.

10. Offender: I hope you are a dirty cunt and serious. Tell me how you want to rape (sun emoji) as well as me then fucking oath. Eat my hole taste the seed and imagine it what the boys will one day be like if we get along good v. And if we build trust and you really like fucking me then one time, I'll sedate the boy and let you share him with me ok.

32. Chris then sends an image of an erect penis, and a message "getting bigger".

33. The offender then sends a video of 20 seconds duration depicting a male toddler, aged between 1 and 2 years, being anally penetrated by an adult male's penis. The offender then messages, "that's what gets me off".

1. Chris: me too. That's vid is disturbingly hot.

2. Offender: make you hard.

3. Chris: think it's fake? Kids not crying.

4. Offender: oh, it's real, that's only part of it.

34. The offender then sends a video of 2 minutes and 11 seconds duration, depicting an adult male anally penetrating a naked male toddler aged between 1 and 2 years old. The toddler can be heard crying in distress.

35. The offender then messages: that's real, and the cry is hot.

36. There are then messages about "Chris" getting an uber and the offender messaging: I am rock hard thinking about how you told me you are going to smash me thinking about my son.

37. Sequence 4: use carriage service to transmit child abuse material to "M".

38. Also on WhatsApp, the offender had conversations with a user named "M", who appears knew the offender several years previously. They had the following conversation on 3 July 2022 in which the offender transmitted text-based child abuse material.

1. M: I so just expected you to end up having regular play with your son.

2. Offender: what makes you say that. Only if you were my son.

3. M: just thought would be a normal thing for you.

4. Offender: are you also into yng.

5. M: I'm sure if he walked in and started sucking you, you wouldn't say no, or asked you to fuck him.

6. Offender: I never said that I wouldn't. So is it one of your kinks.

7. M: yeah.

8. Offender: so, if myself and my son were to come visit you.

9. M: I follow your lead dad.

10. Offender: after he is sleeping, and daddy starts playing with you and gets you ready with your nappy and dummy helping me sedate him more assisting me your keen to get into it with me.

1. M: did you like me diapered when we played?

2. Offender: I am also more than happy to say we are long-time schoolfriends and just sedated him, so he falls into deep sleep, and we do our thing and nothing else with him involved. One thing with you we have trust and no judgement.

3. M: I did think that night we may of snuck in and sucked a client in or something.

4. Offender: LOL. I know you hadn't forgotten. If you come visit me in Sydney, I've moved houses now but perfect "phillo" client depending on what you are into, I guess.

39. Sequence 5: Use carriage service to transmit child abuse material to "Hey".

40. Scruff is an international social application for men seeking men. Scruff allows users to upload profiles and photos, and search for other members by location and shared interests. The offender was logged into the application with user details:

1. Username: Adina

2. Birthdate: 13 October 1991

3. Email: [email protected]

41. On 19 May 2022 the following conversation took place between the offender and a user with the screen name "Hey":

1. Hey: I'll be pretty busy this weekend but if I get the time, I'll let you know.

2. Offender: non-verbal virgin hole if you come.

3. Hey: sounds hot.

42. On 21 May 2022 the following conversation took place between the offender and "hey":

1. Offender: first time I swallow your cock show me how you want to feed it to my son and what he will be feeling when we all play together.

2. Hey: Fuck yeah man, can't wait.

43. On 3 July 2022 the following further conversation took place between the offender and "hey", in which the offender transmitted text-based child abuse material:

1. Hey: not much, just waiting for my green to get here LOL. Yeah, it's great haha. What are you up to?

2. Offender: playing with my cock imagining you were raping me and my (sun emoji) walks in and making out you, were forcing me and I tell him to go to his room and you tell him not to leave the room and locked the door and threatened him not to ever tell anyone, and I tell you do anything you want but leave him alone, he talks back to you trying to protect me and you grabbed him cover his eyes and I hand you a pillowcase and gaffa tape.

3. Hey: that would be hot.

4. Offender: ask you to police stop and kiss you without he ever knowing, ask you for your arm, slam you with a point then myself making out you're going to drug me then swallow your cock as you rip his clothes off and I pull your head down to his boy hole, you telling him suck on your dad's cock as I am sedated in a forceful tone and giving you the bundy bottle whispering telling you rape that hole and how much I love you. Then pulling out and I suck the head of your cock and as he opens his mouth squirt in a few mills of sedative and telling you balls deep. I slide into his destroyed hole tell you to hold his arm and sedate him fully pull out and hold his ass open for you.

5. Hey: can't wait to do all that.

6. Offender: we both blast again and both us rape fuck and destroy his holes. Show me your cock now. Are you hard. I am dripping.

44. Sequence 6: Engage in act of bestiality as principal in the second degree.

45. On 3 July 2022, the offender recorded a video of a dog performing an act of bestiality upon an unknown male. The video was located within the iPhone gallery and is of 57 seconds in duration, depicting the offender manipulating a male dog's penis, holding it at the base and then inserting it into the anus of an unknown adult male.

46. 28. Sequence 8: use carriage service to transmit child-abuse material to username "Kim Hawes".

47. Kik is a free instant messaging and social networking application which allows users to send image and video files to individual users or groups, as well as having an inbuilt Internet browser. The Kik application was logged in with user details, screen name-Adina Duffy and username samalby69. On 14 July 2022 the offender engaged in the following conversation with the screen name "Kim Hawes":

1. Offender: Twisted kinky boy here for you daddy. It's Adina.

2. Kim: hey there its worked. So, you still rock hard.

48. The offender then sends an image of a male person performing fellatio on a dog's penis. The offender's hand can be seen assisting the penis into his mouth. The offender then messages - I am sir. Tell me your taboos.

1. Kim: Is that you sucking on that gorgeous dog cock??

2. Offender: It is. Have you got any dogs? I have a bulldog that is enjoying play time.

3. Kim: Not many people on earth are into bestiality.

4. Offender: I want you to blast me and rape me with K9 cock. You will be very surprised.

5. Kim: I love how you think. And are you also into young girls and boys??

6. Offender: Now I am dripping.

7. Kim: I only fantasize never done anything.

49. The offender then sends a 20 second video depicting a male toddler, aged between 1 and 2 years, being anally penetrated by an adult male's penis, to which "Kim" responded - That is the BEST.

1. Offender: If I was to give you access would it get you hard.

2. Kim: Maybe?? Access to what??

3. Offender: My 12-year-old son lives with me. Sedated play only.

4. Kim: Is that you both in the video??

5. Offender: If you promise me, you will fuck us both. No that is only a small amount of the vid.

6. Kim: What is sedated play?

7. Offender: I am not feeling comfortable you not sending or showing me anything. If you share I have so much that interests, you.

8. Kim: I think with you I'll get hard eventually.

9. Offender: Just for example I've got a god daughter that doesn't talk yet, and if we build a trust and friendship, I will baby sit one time and share with you xx It is going to be the last thing I do I promise you I will. I really hope you are keen because I am.

10. Kim: Yes, I am let's do this in a couple of weeks.

11. Offender: Give me a few weeks I will book motel send me anything you want me to get I will cover all your expenses and let me spoil you. I am 100% genuine.

12. Kim: I'm looking forward to licking out your cunt and then fisting you.

50. The offender then sent a 33 second video of an adult male performing cunnilingus on a pre-pubescent female child, approximately 4 to 6 years of age.

The s 16BA and Form 1 offences

51. As previously noted, in addition to the principal offences for which the offender has pleaded guilty and for which he is to be sentenced, he has also acknowledged his guilt in respect to two additional federal offences, and one additional state offence, and asks that they be considered in the sentences ultimately to be imposed. The two federal offences are sequences 9 and 10 (each being an offence of using a carriage service to offend contrary to s 474.1791) Cth Criminal Code Act) and attach by virtue of s 16BA Cth Crimes Act to the principal offences being sequences 4 and 8 respectively, being federal offences. The Form 1 offence is sequence 7 (an offence of possessing bestiality material contrary to s 547E(2) Crimes Act NSW) and attaches to sequence 6, the State the offence of 'Engaging in an act of bestiality as a principal in the second degree'. The facts of those additional offences are as follows:

Section 16BA - Sequence 9 (Use carriage service to cause offence) - attaching to seq 4.

52. The offender had multiple conversations about having sex with dogs with the identity "M", including flying to Melbourne to see "M" with his dog, Rusty. The conversation included the following:

1. Offender: I have one he's almost 12 months old his a beagleir and he's coming out of his shell and even showing when alone and excited to see me he even swells up.

2. M: Ah really. You play with him?

3. Offender: I have but only alone so bit difficult alone.

4. M: Ah really what u done?

5. Offender: Sucked him off knotted him and fucked using his cock. Fucked him a few times.

6. M: Show me hehehe. Now I want to see.

7. Offender: That you will need to wait until either you come here, or I come to you. His name is Rusty and as long as you're not wanting a dog with massive cock, you're going to like him.

Section 16BA - Sequence 10 (Use carriage service to offend) - attaching to seq 8.

53. This offence arises from the content of the material discussed and sent by the offender as contained in sequence 8.

The Form 1 offence (Sequence 7 - Possess bestiality material) - attaching to seq 6.

54. During the review of images and videos located on the offender's iPhone, Federal Police Officer Lister located two files. The first was a 1 minute and 59 second video of an adult male dog anally penetrating a human adult male. The dog removes its erect penis from the human adult male, who then masturbates the dog's penis and reinserts it into his anus.

55. The second file was a 4 minute and 44 second video of a naked adult female standing in a stable. The woman holds the erect penis of a grey and black horse and rubs the horse's penis over her genitals before inserting it into her anus.

General Sentencing Principles - Child Abuse material Offences (Sequences 1, 3, 4, 5, and 8 and s 16BA offences).

56. General deterrence is a paramount consideration for offences involving child abuse/child pornography material. In R v Booth [2009] NSWCCA 89 at [40] Simpson J said:

"…possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime."

57. 31. In R v Hutchinson [2018] NSWCCA 152, a list of factors relevant to the assessment of objective seriousness in respect to offences of possess and produce child abuse material were set out. They are:

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

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

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

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

5. In a case of possession, the offender's purpose, whether it was for his own use or for sale or dissemination.

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

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

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

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

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

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

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

13. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act 1999, bearing upon the objective seriousness of the offence.

58. In R v Porte [2015] NSWCCA 174 at [66]-[72], the CCA added to these principles the following considerations:

1. The absence of an intention to sell or distribute child abuse material does not mitigate penalty for a possession offence.

2. The possession of child abuse material is not a victimless crime. Those who possess such material help to create a market for the continued exploitation and abuse of children. It is for that reason that general deterrence is of particular significance.

3. Evidence of rehabilitation, while an important sentencing consideration, may have reduced significance given the predominance of general deterrence and denunciation in the sentencing process for these offences.

59. Other factors of universal application which must be considered when sentencing for offences of this nature include: the offender's motivation; the way in which the material is organised; whether the charges are representative; evidence concerning the surrounding circumstances and the proper application of the De Simoni principle; and issues related to totality.

60. In this case, some of the 'child abuse material' offences (the federal offences), involved the possession of or sending or exchange of images and videos (sequences 1, 3, and 8), while sequences 4 and 5 were 'text-based offences', which albeit included depraved and offensive content, did not include any images, and did not involve any actual children.

61. Those offences that did involve images or videos of children and infants, did not involve large numbers of images or videos, often common in offences of this type. In total police located 8 videos containing child abuse material across sequences 1, 3 and 8, the footage varying in duration from 20 seconds to 6 minutes and 40 seconds. The Agreed facts upon which the offender is to be sentenced, however, disclose that children as young as between 0 and 6 months being anally penetrated by adult male penises, and being forced to perform fellatio (MEGA application compilation video 6m 40 secs, sequence 1). A boy aged between 8 and 10 being anally penetrated by an adult male who ejaculates into the boy's anus, and then inserts his finger into the boy's anus, the boy then defecates on the finger (Google Photos application video of 2m 6 sec duration - sequence 1). A male toddler between 1 and 2 being anally penetrated by an adult male's penis (Google Photos application 20 second video sequence 1). A girl aged between 4 and 6 engaged in sexual intercourse with an adult male (Google photos application 1 m 14 second video, sequence 1). A male toddler between the age of 1 and 2 being anally penetrated by an adult male penis (a 20 second video sent by the offender to "Chris" sequence 3). A male toddler aged between 1 and 2 years being anally penetrated by an adult male penis, with the child heard crying in distress (a 2 m 11 second video sent by the offender to "Chris" sequence 3). And in sequence 8 a 20 second video sent by the offender to "Kim Hawes" of a male toddler aged between 1 and 2 being anally penetrated by an adult male penis, and a 33 second video sent by the offender to "Kim Hawes" of an adult male performing cunnilingus on a pre-pubescent female child aged between 4 and 6 years.

Sentencing Principles - Bestiality offence

62. In Chesworth v R [2023] NSWCCA 115 Rothman J (with whom Wilson and Yehia JJ agreed) said of bestiality offences:

"The offence of bestiality is not concerned wholly or principally with the infliction of violence or cruelty [21] … Offences against animals as distinct from humans, involve slightly different criteria. First, they take into account the vulnerability of a domestic animal and their incapacity, usually, to consent or refuse to engage in particular conduct. As a consequence, bestiality is difficult to compare, in terms of seriousness, and the factors associated with its objective seriousness, with offences against human beings [22].

[24] In the offence of bestiality, general deterrence looms large as does condemnation of the conduct…"

63. While the vulnerability of the animal and its incapacity to consent are inherent features of most, if not all bestiality offences, they are nonetheless features to which particular regard should be had when sentencing for such offences. By setting the maximum penalty for such offences as 14 years imprisonment, the Parliament on behalf of the community considers such offences as serious. Deterrence both general and specific as well as denunciation of the conduct are fundamental sentencing factors in bestiality offences.

Consideration of objective seriousness - the child abuse offences (seqs 1, 3, 4, 5, and 8).

The Crown's submissions

64. In submissions, the Crown noted that the offender came to the attention of law enforcement officers who executed a search warrant on his home on 16 August 2022. During the course of the search, it was determined that the offender was in possession or control of child abuse material via online accounts (sequence1) and had been communicating with other individuals regarding sexual activity with children (sequences 3, 4, 5, and 8). Those communications included the transmission of text-based child abuse material and, in some cases, video files constituting child abuse material. The nature of the child abuse material, the content of the text messaging and of the videos, the Crown submitted disclosed a high degree of sexual depravity on the part of the offender.

65. In respect to sequence 1 the Crown in submitting that it constitutes a serious example of an offence of its type identified the following features:

1. All of the files depicted real prepubescent children.

2. The children depicted ranged in age from infancy (0 to 6 months) to 8 - 10 years old.

3. The files had been in the possession or control of the offender for several months.

4. There were four files. The files contained extremely depraved material, including a 1 - 2-year-old toddler being anally penetrated by an adult male penis, and a compilation video of 6 min 40 seconds duration depicting infants between 0 and 6 months being anally penetrated by adult male penises and forced to perform fellatio. The Crown submitted that as an aspect of the depravity the material included children being subjected to acts that must have caused them physical harm.

5. The Crown further submitted that it is apparent from the agreed facts and the contents of the offender's conversations with other online users that he derived sexual gratification from the material, indicating this to be at least one of the purposes for which he possessed the material, and

6. A further purpose of the offender's possession of the material which arises from the transmission charges appears to be his sharing the material with other, like-minded individuals.

66. In respect to the offences involving the transmission of child abuse material (sequences 3, 4, 5, and 8) the Crown submitted that each offence constitutes a serious example of an offence of its type, with sequences 3 and 8 objectively more serious because in addition to the graphic text-based discussions of depraved child abuse, these sequences also included the transmission of video files by the offender. The Crown identified particular features relevant to the seriousness of the individual sequences as follows:

1. Sequence 3 - this took place via the messaging platform "WhatsApp" and involved the offender introducing ideas of the recipient "Chris" anally raping the offenders 12-year-old son, the offender sedating his son for the purpose of sexually abusing him, and the offender jointly abusing his son with "Chris". The Crown submitted the conversations were in graphic terms and involve a high degree of depravity. It is apparent from the text that the offender derived sexual gratification from the discussion. In addition to the text-based conversation, the offender also transmitted two video files. The files depicted a male toddler aged between 1 and 2 years being anally penetrated by an adult male penis and crying in distress. The agreed facts also disclose that the offender found the child's distress sexually stimulating.

2. Sequence 4 also took place via "WhatsApp" and involved the offender discussing the prospect of travelling with his son to visit "M" (the user he was communicating with) in Melbourne, where they would both sedate and sexually abuse the offender's son. The Crown submitted the topic of discussion is highly depraved, although conceded that the terms in which it was discussed were less graphic than in the other sequences. However, in sentencing the offender in respect to sequence 4, the court is to take into account the offence to which the offender has admitted guilt contained in the schedule filed pursuant to s 16BA of the Cth Crimes Act (sequence 9). This offence relates to a WhatsApp conversation between the offender and "M" in which there is discussion of the offender having subjected a dog to various sexual acts including fellatio and intercourse. The Crown submitted the topic discussed is in graphic and highly depraved terms. In sentencing the offender for sequence 4 the Crown submitted that greater weight should be afforded to both personal deterrence and retribution by virtue of the facts associated with sequence 9, to reflect the extent of the offender's sexual depravity.

1. Sequence 5 took place via "Scruff" a social media application for men seeking other men and involved the offender discussing with the user "Hey" a rape scenario involving his own son. The scenario again involved sedation of his son and both the offender and "Hey" anally raping his son. The Crown submitted that the discussion was in extremely graphic terms and reflected a high degree of depravity. The Crown further noted that it is apparent from the offender's own comments that he found the discussion sexually gratifying.

2. Sequence 8 took place via the "Kik" messaging application. This offence involved the offender offering the user "Kim Hawes" access to "sedated play" with the offenders 12-year-old son, as well is offering to share his "goddaughter that doesn't talk yet" with "Kim Hawes" on an occasion when the offender would be babysitting her. The Crown submitted the contents of the text-based discussions were highly depraved and distressing. In addition to the text-based conversation, the offender also transmitted two video files. The files depicted a male toddler aged between about 1 and 2 years being anally penetrated by an adult male penis, as well as an adult male performing cunnilingus on a young female child aged between about 4 and 6 years. The Crown submitted that the videos constitute very serious forms of child abuse material.

67. The Crown also noted that sequence 10 is to be considered by the court when sentencing the offender in respect to sequence 8. The offender has admitted his guilt to sequence 10 which is contained in the schedule filed pursuant to s 16BA Cth Crimes Act. This offence relates to an aspect of the same conversation with "Kim Hawes" in which the offender transmitted an image of himself fellating a dog and discussing engaging in an act of bestiality with "Kim Hawes". The Crown submitted that in sentencing the offender for sequence 8, greater weight should be afforded to both personal deterrence and retribution by virtue of the facts associated with sequence 10.

The offender's submissions

68. In both her written and oral submissions, Ms Kluss did not take issue with the facts and broad statements of principle contained in the Crown's submissions.

69. In respect to the timing of the offender's guilty plea and the applicable discount it was noted that the were settled in the EAGP conference in the Local Court and it is therefore uncontroversial that the plea of guilty attracts a 25% discount for the State offence. Counsel submitted that the same or similar level of discount should be afforded for the federal offences, and any sentence should commence on the date the offender entered custody, being the date of his arrest.

70. It was submitted on behalf of the offender that the text-based offences (sequences 4 and 5) were appreciably less objectively serious than those involving the possession or control of the CAM in sequence 1 which was the 3 videos on 'Google Photos', and the compilation video located on the 'MEGA' application depicting infant children between the ages of 0 and 6 months; and sequences 3 and 8 which included both text-based communications as well as the transmission of videos containing the CAM to the users "Chris" and "Kim Hawes" respectively. Counsel submitted there is no doubt that offences involving the possession and dissemination of CAM are serious, and any sentence needs to be primarily focused on deterrence, denunciation and protection of children recognising the serious harm caused to the victims and the community more broadly.

71. Ms Kluss, however, emphasised that much of the material was text-based conversations involving fictional stories and therefore have different relevance, and are not matters that attract those circumstances that engage the parameters of depicting real children as considered in R v Hutchinson [2018] NSWCCA 152 & R v Booth [2009] NSWCCA 89. No actual children were used in the creation of the text-based communications. Counsel did concede the contents of these discussions were graphic, and at times sexually depraved, but they were fictional stories made up at the time the offender was under the influence of a cocktail of drugs including methamphetamine. Sequences 3 and 4 involved text-based conversations only with users identified as "M" and "Hey" respectively.

72. It was conceded by the offender that sequences 1, 3 and 8 involved real children, some as young as between 0 and 6 months old, being anally penetrated by adult male penis', a video of a male child between the age of about 8 and 10 years defecating on the finger of an adult male which had been inserted into his anus by the adult male after the child had been anally penetrated by the adult male; as well as children engaged in sexual acts with adults, and these offences are more serious than the solely text-based conversations. However, the number of images was relatively low when compared with other cases of this type, and at no time is it suggested that it was the offender who created the images or was involved in the child abuse depicted. Whilst the images depict graphic and highly depraved sexual content, there is no evidence of any widespread dissemination or the offender receiving payment of any kind for the images. Counsel submitted that the absence of these features, in particular, in sequences 4 and 5 notwithstanding the presence of the s 16BA schedule attached to sequence 4, reduces the objective seriousness of those offences appreciably.

My determination

73. Whilst the transmission offences, and the possession and control offence do not involve large numbers of images/videos or large numbers of children (often numbered in the thousands for offences of this kind), nonetheless the videos possessed by the offender in sequence 1, and transmitted by him in addition to the text-based conversations with the users identified as "Chris" in sequence 3, and as "Kim Hawes" in sequences 8 and 10; involve infants aged between 0 and 6 months being anally penetrated by adult male penis' and forced to perform fellatio, as well as a male toddler aged between 1 and 2 being anally penetrated by an adult male penis, with the child crying in distress, a young girl aged between about 4 and 6 years engaged in sexual intercourse with an adult male, an adult male performing cunnilingus upon a prepubescent girl aged between about 4 and 6 years, and a boy aged between about 8 and 10 years being anally penetrated by an adult male and then defecating on the adult male's finger as it was inserted into his anus. I am satisfied clearly that the images are graphic, distressing and sexually depraved.

74. In respect to sequence 1 (possession or control of 3 videos located on "Google photos", and a further compilation video located on "MEGA" application) I find this to be a reasonably serious example of this type of offence. The Google photo videos depict a young boy aged between about 8 and 10 years being anally penetrated and then defecating onto the finger of the adult male when it was inserted into the boy's anus after he had been anally penetrated. The second of the Google photos videos depicts a male toddler aged between about 1 and 2 years being anally penetrated by an adult male penis. The third video depicts a young girl aged between about 4 and 6 years engaged in sexual intercourse with an adult male. Whilst counsel for the Crown submitted the offending to be in the range of the "most serious for offences of this kind", I am of the opinion primarily due to the lesser number of videos/images, and the resultant lesser number of actual children abused, as well as the absence of any dissemination of the material by the offender, or the offender creating or being involved in the abuse, that this offence sits generally in the upper level of the broad mid-range of seriousness for offences of this type.

75. In respect to sequence 3, the agreed facts disclose this communication between the offender and the user "Chris" on WhatsApp was largely text based. However, in the course of the conversation the offender transmitted two separate videos to "Chris". The first video was of 20 seconds duration and depicted a male toddler aged between about 1 and 2 years being anally penetrated by an adult male's penis. Upon sending the video the offender text "Chris", "that's what gets me off". Later the offender sent a second video of 2 minutes 11 seconds duration. The video depicted an adult male anally penetrating a naked male toddler aged between about 1 and 2 years. The toddler can be heard crying in distress, to which the offender text, "that's real and the cry is hot". Notwithstanding the transmission of the CAM in this sequence is largely text based, and I accept generally the submissions of counsel that such text-based conversations are appreciably less serious, the sending of the two videos as identified and their contents elevates the objective seriousness of this offence, above the CAM being text-based only. I am of the opinion that this offence too falls generally in the upper level of the broad mid-range of seriousness.

76. Sequences 4 and 5 are wholly text-based conversations. Sequence 4 takes place on WhatsApp, the offender having conversations with the user "M". Throughout the conversation the offender refers to his son and travelling to Melbourne where he and "M" would sedate his son and sexually abuse him, the content was significantly less graphic and depraved than much of the other CAM. No actual children are involved, and I cannot preclude the real possibility that the conversation was, as has been submitted on behalf of the offender, a fictitious one. I am of the opinion that this offence falls moderately below the broad mid-range of seriousness for offences of this kind. I am mindful, however, that sequence 9 attaches to this offence by virtue of it being placed on a s 16BA Schedule, and the offender asks that I take sequence 9 offence into account when I impose a sentence for this offence.

77. Sequence 5 involved the offender communicating with the user "Hey" on "Scruff", a social media application for men seeking other men. The material transmitted was wholly text based involving messages about the offender and "Hey" sedating the offender's son and anally raping him. The conversation was graphic and reflected a high degree of depravity. It is also apparent that at the time the offender gained some sexual gratification from the content of the conversation. However, as with sequence 4 I cannot preclude the real possibility that the conversation was fictitious as has been submitted on behalf of the offender. The level of depravity and the graphic nature of this conversation I am satisfied render this offence moderately more serious than sequence 4, and I find it falls generally toward the lower level of the broad mid-range of objective seriousness for offences of this type.

78. Sequence 8 took place via the "Kik" messaging application and involved the offender offering the user identified as "Kim Hawes" access to sedated play with his 12-year-old son, as well as an offer to share his goddaughter with the user "Kim Hawes". In addition to this text-based material and conversation, the offender also transmitted two video files, the first being of 20 seconds duration depicting a male toddler aged between about 1 and 2 years being anally penetrated by an adult male penis. The second video was of 33 seconds duration and depicted an adult male performing cunnilingus on a prepubescent girl aged between about 4 and 6 years. As this offence involves a combination of both text-based material and the two videos, I am of the view that it falls generally in the mid-range of seriousness. Whilst there are only two videos, and therefore only two children are subject to the sexual abuse depicted, nonetheless the contents of this text-based communications are graphic and highly depraved, as is the abuse depicted in the videos. I am also mindful, as is the case with sequence 4 that the offender asks that I take into account sequence 10 when sentencing the offender for this offence. Sequence 10 is attached to sequence 8 by virtue of a s 16BA schedule.

Assessment of objective seriousness - Bestiality offence.

79. As already noted, the offender has pleaded guilty to a single state offence being sequence 6, an offence contrary to ss 79 and 345 of the Crimes Act NSW, "the bestiality offence". In submissions the Crown urged that the court would find the offenders involvement in this offence as clear evidence of his preparedness to engage with others in depraved sexual practices. Investigating police located a 57 second video within the offenders iPhone gallery, depicting the offender manipulating a male dog's penis, holding it at the base and then inserting it into the anus of an unknown adult male. The Crown asserted that the offender was immediately involved in the offence by manipulating the dog's penis into the unknown male's anus and the activity was filmed, and the video kept by the offender for his ongoing sexual gratification. The Crown submitted that as a principal in the second degree, as an aggravating factor, the offence was committed in the company of the other unknown male. That said, I note that the offender pleaded guilty as a principal in the second degree to the substantive offence. It appears relatively uncontroversial that the unknown male depicted in the video was a consenting party to the offence as principal offender. In any event, the Crown submitted by reference to Chesworth v R [2023] NSWCCA 115 at [29] this offence would be assessed as "just below the mid-range" of objective seriousness. The Crown submitted the conduct of the offender here is no less serious than that considered by the court in Chesworth.

80. Ms Kluss on behalf of the offender did not take significant issue with the Crown's general submissions concerning sequence 6. It was submitted that the court would find the offence falls below the mid-range of objective seriousness.

81. Having regard to the facts of Chesworth and there being no submission to the contrary I am satisfied that the offence falls below the mid-range of objective seriousness. I am also mindful that the offender has acknowledged his guilt in respect to an offence of "possess bestiality material" contrary to s 547E(2) Crimes Act NSW being sequence 7 which has been placed on a Form 1 to be taken into account by me when I impose a sentence for sequence 6. Having availed himself of the Form 1 arrangement and the s 16BA schedule offences the offender has the benefit of not facing separate punishment for these additional offences. In respect to the Form 1 and the state offence to which it attaches the additional offence does, however, impinge upon the sentence to be imposed for the principal offence it attaches to, by requiring an appropriate increase in the sentence to that principal offence if it was standing alone, having regard to the objective seriousness of the additional Form 1 offence. This is to reflect the need for greater weight to be given to specific deterrence arising from the extent of the offender's criminal behaviour and the community's entitlement to retribution for this additional offence (see Atty Gen's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518 at [42]). In respect to the s 16BA Schedule arrangement, greater weight may be afforded to both personal deterrence and retribution by virtue of the facts associated with the offences on the s 16BA Schedules when sentencing the offender for the offence to which the schedule attaches. However, where the court takes into account any offence in respect of which the offender has admitted his guilt, the sentence passed on him for any of the offences of which he has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him for the offence if no offence had been so taken into account (s 16BA(4)). And, in any event, in determining the sentence to be passed for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

The Offender's subjective case

82. As noted, the offender was born on 13 October 1981. He is now 42 years old. At the time of the offending, he was aged 40 years and living in Hebersham.

83. As previously noted, the material tendered on behalf of the offender in the sentence proceedings included a handwritten letter from the offender, a report of Dr Paul Pusey, psychologist, dated 10 October 2023 and a report of Dr Olav Nielssen, psychiatrist, dated 15 August 2023. At the request of the Crown, Dr Nielssen was called to give evidence and was cross examined by the Crown prosecutor. The report of Dr Pusey was not the subject of any challenge by the Crown. The history obtained and ultimate diagnoses of each of the clinicians is generally set out below.

Family/Early life.

84. The offender is the youngest of three boys born to his biological parents. He is of Maltese origin. He grew up in Hebersham and attended Hebersham public school and Plumpton high school until the end of year 10. His father worked as a boilermaker at a company that manufactured hot water heaters. The offender disclosed that throughout his childhood he did not have a close relationship with his brothers. Neither his brothers nor his father have visited him whilst in custody, although his father is in care suffering from dementia which he has struggled with for several years.

85. The offender reports that he was bullied regularly when he was younger. He reported being slow to start walking and struggled with reading in primary school. He did not do well academically or in sports, unlike his two older brothers. He started school about the age of 5 years and did not repeat any classes or have any form of remedial education. The offender did not report any conduct problems during his school years. He said that he was that he was sexually abused by a teacher when he was aged about 10 or 11 years. The abuse took the form of fondling, fellatio, and anal penetration at a school camp, and again at a storeroom at school and after a sports carnival. He did not tell anyone at the time but told his mother about a year or so later. He said that at the time his mother told him not to make trouble, and he resented her for not supporting him, but said that as she was dying, she apologised to him for not doing anything about it at the time. He received no formal counselling, support, or treatment at the time of or following these events of sexual abuse. He is now pursuing legal proceedings arising from the sexual abuse.

Employment

86. Upon completing year 10 at Plumpton high school the offender commenced an apprenticeship as a chef working in hospitality at St Leonards and also at Rooty Hill. The offender then purchased a takeaway chicken shop and ran a catering business and bistro. It was at this time he took a second job as a disability carer for additional income to support his family. His last episode of study was in custody where he commenced a fitness instructor course but ceased due to his depressed mood. The offender was employed for 23 years in a full-time capacity as a "community support worker" assisting and caring for adults with disabilities. It is noted that the offender disclosed to Dr Pusey that the NDIS has now presently suspended him from engaging in disability support work. Before his marriage, his wife worked in superannuation. His wife did not work during their relationship as she was pregnant at the time of their marriage and the first two boys were born in quick succession. The offender continued to work in a full-time capacity up until the time that his mother became gravely ill whereupon he cared for her on a full-time basis until her death in or about March 2022. He had taken this time as leave from his full-time employment.

Psychosexual development.

87. 60. The offender acknowledged to both Dr Pusey and Dr Nielssen in the course of their respective assessments with him that he was raped by a teacher on a school camp with the abuse continuing over a period of about six months at school when he was about 10 or 11 years old. The offender identifies as being bisexual. He disclosed that he had girlfriends at school, his first being when he was about 14 or 15 years old. He first engaged in sexual intercourse with a girl who was 19 years old when he was 17. He disclosed that he had also had a sexual relationship during his teenage years with one of his older male cousins, which he described as "just fooling around". Prior to his marriage the offender disclosed that he had had heterosexual relationships of up to 3 years in duration. He knew his wife from school, they were in the same social group and had become single at about the same time. He disclosed that they married because she had fallen pregnant. As noted, the marriage produced three sons, the offender being the youngest.

87. Other than disclosing the incidents of sexual abuse to his mother when he was a child, the offender first disclosed his experience of being the victim of sexual abuse to a psychologist after he came into custody in respect to the present offences when he was at Silverwater prison. The offender disclosed to Dr Pusey and Dr Nielssen that it was not until he commenced using a cocktail of heavy drugs that he started to experiment more with same sex attraction and sexually promiscuous behaviour. Prior he had always kept his sexuality (attraction to other men) secret. The offender denied any sexual interest to children or animals. He denied that he has ever engaged in any form of sexual intercourse or activity with a partner who was below the age of consent.

Relationships.

89. The offender reported that prior to the pandemic and after the breakdown of his marriage in about 2015 he went through an acrimonious breakdown of a relationship with a male partner of some three years or so. Following the breakdown, the offender disclosed that he isolated from others, he withdrew and became deeply depressed. He feels the impact of Covid isolation exacerbated the grief he was experiencing, and at the loss of his mother after caring for her in the final stages of her life. He feels this made his depression worse. He reported that for a period of 11 months when caring for his dying mother he did not leave the house, for fear of making his mother sick with the virus. At this time, he reported that he was being extorted by people, such that he would even refuse to answer phone calls. It got to a point where he did not trust anyone and would not talk with anyone leading up to his arrest in August 2022.

90. As noted, the offender was married for about 10 years and there are three boys to the marriage. Throughout the time of the marriage, he was working full-time. He describes the marriage as an unhappy one. At the time his former wife had an untreated and un-diagnosed mental illness. His relationship with his two eldest sons is poor, as his wife disclosed to them that he had an extra marital affair with a man, causing the marriage to fail. His wife has subsequently been diagnosed with bipolar disorder and is now receiving treatment. The offender has no ongoing relationship with his two older siblings, neither brother has visited him in custody. His father remains in palliative care as he has suffered dementia for the last five years or so. Upon his ultimate release from custody in the event that his father is still alive, the offender proposes to care for him. The offender disclosed that he was very close to his mother as a child and throughout his life. He was grief stricken upon her death after caring for her up to her death. Following her death, he disclosed that his drug use escalated substantially, as did his social withdrawal, personal isolation, and depression.

Substance use history.

91. 64. The offender denies any current use of illicit substances. Prior to his arrest and at the time of the offences he disclosed that he was abusing a concoction of methamphetamine, cocaine, cannabis, and Xanax. Following the death of his mother his use of illicit substances significantly increased. At the time of the offences, he disclosed that he was "shooting up an eight ball (3.5 g) of methamphetamine every week or so”. He was also using heroin, cannabis, and Xanax. The offender disclosed to Dr Nielssen during the assessment on 9 August 2023 that he had read the transcript of his communications giving rise to the offences, and said, "I take full responsibility… but there were times I was so drug affected that I don't remember because I hadn't slept for days… It was all a bit of a blur". He said, "I read those conversations now and I feel sick to my stomach". He told Dr Nielssen that after his marriage broke down, he went through a dark stage and when his mother fell ill and he was caring for her at home, he started abusing alcohol, methamphetamine, heroin, and Xanax. The offender also disclosed that between March 2022 following the death of his mother, and his arrest in August 2022 that he was drinking alcohol every day, unless he was working or caring for his son. He reported that he drank alcohol to get intoxicated and mixed it with the cocktail of illicit drugs he was also using.

92. At the time Dr Pusey undertook his first assessment of the offender on 24 March 2023, Dr Pusey noted that the offender had not engaged in any formal drug and or alcohol treatment. The offender told Dr Pusey that the offences occurred when he was highly intoxicated by drugs and alcohol. By the time of Dr Pusey's second assessment on 5 July 2023, the offender had engaged in drug and alcohol treatment including alcoholics anonymous and narcotics anonymous whilst in custody. He was attending these treatment programs three times each week. The offender disclosed that he felt his drug use took him away from everything around him. Prior to this period of his life, he denied any earlier history of problematic substance use or having to seek out treatment for same.

Medical/Psychiatric History

93. The offender suffers from asthma and sleep apnoea. At the time of the sentence hearing, he was still awaiting receipt of a CPAP machine to assist with his breathing whilst sleeping. His sleep apnoea has resulted in him being placed in a cell by himself so as not to disrupt fellow inmates. He has historically struggled with being overweight, which has been more pronounced since his incarceration. As noted, the offender's mother died from a rare brain cancer which required the offender nursing her over the last months of her life. His father has had two heart-attack's and now suffers from dementia. The offender himself is on cholesterol medications whilst in custody, due to his rapid weight gain. He has been prescribed Prozac in custody, initially at 20 mg daily which has been increased to 40 mg daily. The offender acknowledged previous episodes of interaction for his mental health. He reported that at the time of the offences he was using large quantities of illicit drugs and at times would not shower or attend to personal hygiene for up to 2 - 3 weeks at a time. He denied any family history of mental health pathology, diagnosis, or treatment. He did however, report experiencing hallucinations after taking drugs, but he did not present with any underlying psychotic illness, and no enduring delusional beliefs were elicited. The offender denies any current suicidal thoughts, although he conceded he had previously experienced such thoughts especially during his marriage to his former wife before she was diagnosed with a mental health disorder. He feels that his depression has eased since being in custody and taking Prozac.

94. Dr Pusey opined that there was no evidence of pathology congruent with a diagnosis of psychotic disorder. The offender articulated that he experiences feelings of guilt and shame when referring to the offences, stating he "was disgusted at who and what I was". Dr Nielssen did not detect the presence of any underlying psychotic illness or enduring delusional beliefs. He estimated the offender's intelligence to be in the normal range having regard to his reported occupational attainment. Both Dr Pusey and Dr Nielssen the diagnosed offender as suffering from a depressive illness, and a substance use disorder. Dr Pusey described the offender's depressive illness as a "major depressive disorder". Dr Nielssen noted that each of the disorders were "in remission" due to the pharmacological treatment the offender is receiving in custody for his depression, and his abstinence from illicit drugs by virtue of his being in custody.

Risk of reoffending and treatment.

95. The offender has no history of criminal offending prior to the offences for which he is to be sentenced. Dr Pusey assessed the offender's risk of reoffending by use of the BARR -20021 and Static-2002r assessments. The offender's score of zero on the BARR-20021 suggests he is a below average risk of general or violent criminal recidivism. He returned a score of 1 on the Static-2002r. The recidivism rates of sex offenders with a similar score as the offenders would be expected to be approximately one half of the recidivism rate of the typical sexual offender (defined as a median score of 3). Dr Pusey opined that the offender's score on the STATIC-2002r, places him in the low-risk category of sexually based recidivism.

96. Based upon the information provided, including the administration of a test for malingering, Dr Pusey after assessing the offender on two discrete occasions confirmed that at the time of the offences, he most likely met the diagnosis of substance use disorder and major depressive disorder. Dr Pusey stated that the offender's description of both the severity and functional impact of his substance use and associated behaviours, as well as his description of the acuity, functional impact and duration of mood pathology meet the threshold for both diagnoses. He expressed the further opinion that at the time of undertaking the assessments, the offender continues to meet both diagnoses, albeit his substance use disorder is in remission by virtue of his incarceration.

97. In his report at paragraph 104, Dr Pusey noted that the psychological background described by the offender does not suggest that he was historically exposed to the type of behaviour for which he is to be sentenced. According to Dr Pusey it appears that his offending behaviour:

"Reflects his use of maladaptive avoidant coping responses to psychological stressors and triggers for the onset of mental health/substance use pathology occurring at the time of his offending and the impact that these had on his broader behavioural decision-making processes".

98. The offender's risk of re-offending requires an assessment of the offender's risk factors, both static and dynamic. The offender has no prior criminal history. Relevant dynamic risk factors are those that may be changeable over time including circumstances such as substance use, anti-social attitudes, or negative peer associations. Both static and dynamic risk factors inform the assessment of the risk of recidivism. Dr Pusey stated in his report (paragraph 113):

"Based upon [the offender's] current presentation at his assessment in addition to a review of the background information provided, it is my view that his risk of recidivism is entirely dependent on his ability to adequately address the risk factors cited in this report in particular his ability to maintain abstinence from ongoing substance use as well as his ability to address the factors relating to his ongoing mood pathology. It will be of value for [the offender] to undertake further assessment to determine whether he meets the diagnostic criterion for post traumatic stress disorder or complex post-traumatic stress disorder in relation to his experience of sexual abuse in childhood."

99. Dr Pusey opined that the offender would benefit from treatment that addressed the following areas:

1. Support the continued development of insight into his identified psychological vulnerabilities.

2. Support his capacity to construct a psychosocial context which promotes and supports his fusion with pro social behaviours, roles and cognitions.

3. Support ongoing abstinence in relation to illicit substance use.

4. Support his ability to address historical experiences of trauma on his current functioning and behavioural decision-making.

100. Dr Pusey was of the view that prior to the offender's release from custody, "specific mental health and substance use treatment services be identified for him to engage with as part of his release process."

101. Having diagnosed the offender with a depressive illness, and a substance use disorder, Dr Nielssen identified that the offender disclosed he had been severely depressed in the weeks after his reception to prison, and he reported a history of treatment for depression by his general practitioner from 2015, as well as the symptoms elicited by Dr Pusey in his report upon his assessment of the offender. The offender reported that his mother had been depressed, that he was affected by his sexual abuse by a teacher, and his continuing guilt over his relationship with an older cousin and his continuing homosexual interest. The offender also reported an episode of severe depression in the aftermath of the breakdown of his marriage in 2015, when he was prescribed an antidepressant medication for the first time, and he was further affected by his mother's terminal illness. Dr Nielssen noted that regular use of methamphetamine and other euphoriant drugs as disclosed by the offender, are also inevitably followed by depressed mood.

102. Dr Nielssen also diagnosed the offender as suffering from a substance use disorder based upon his account of the regular use of stimulant drugs, mainly large quantities of methamphetamine, and the abuse of anxiety relieving sedatives, and the psychological complications of his use of those drugs. The offender reported transient psychosis, subsequent depression, a severe withdrawal syndrome, and highly promiscuous behaviour and deviant sexual interest associated with his use of drugs. Dr Nielssen described his substance use disorder as being in remission, on the basis of his detention and his account of planning to remain drug-free upon his release.

103. In his report and in evidence given in court Dr Nielssen stated that the diagnosis of a disorder of abnormal sexual interest, such as paedophilia or a form of voyeurism was considered by him because of the nature of the offences, and the content of the CAM. Dr Nielssen noted that the offender reported that his aberrant sexual behaviour, which included unsafe sexual practices with multiple male partners, group sexual activities, including his participation in the documented episode of bestiality, and his deviant communications on paedophilic themes were all associated with intoxication with methamphetamine. However, he found that the offences were committed at a time the offender was abusing drugs, notably methamphetamine. Dr Nielssen noted that the use of methamphetamine is commonly associated with greatly increased sexual interest and the loss of inhibition. He agreed with the conclusion of Dr Pusey, that the offender's prognosis, in particular the risk of further substance use, is closely associated with the success of ongoing counselling. The probability of recidivism is difficult to quantify for atypical sexual offences that take place in specific social circumstances, but a guide would be the absence of any previous criminal convictions, and his generally pro social behaviour in working as a carer and in other jobs, supporting his family, and caring for his dying mother despite his secret life of substance abuse and suburban sexual deviancy.

104. Neither Dr Pusey (a very experienced forensic and clinical psychologist) nor Dr Nielssen, (a very experienced forensic psychiatrist) diagnosed the offender as a paedophile, having been provided with the agreed facts, which explicitly disclosed the nature and content of the CAM, and the bestiality offence. Both Pusey and Nielssen were of the opinion that the offender's deviant and abnormal sexual interest, more likely had its genesis in his substance abuse at the time, particularly his abuse of methamphetamine, coupled with his mood pathology.

105. The Crown challenged the opinions of the expert witnesses in submissions and in his cross examination of Dr Nielssen. In cross examination the Crown suggested to Dr Nielssen that he did not consider a diagnosis that the offender had a sexual interest in children or animals, based upon the offender's reports to him that he had no such sexual interest in children or animals. In response to this Dr Nielssen agreed that he accepted what the offender had disclosed to him in the assessment, but that he also based his decision, and ultimately his opinion on other factors as well, including, that the offender had been married, and had 3 children, and had for many years kept his homosexual interest hidden. Dr Nielssen gave evidence that the offender denied having a specific interest in children, and when it was suggested to Dr Nielssen by the crown, that the offender's sexual interest included children, he responded by stating his opinion was the offender had "a poly interest when affected by methamphetamine". The offender reported to him the presence of ideas and interests when addicted to, and using methamphetamine, that dissipated when he ceased using the drug. His opinion was that the offender's deviant sexual interests are seated in his abuse of methamphetamine. Dr Nielssen also gave evidence that particular treatments are provided to patients diagnosed with deviant sexual interests, including paedophilia. Those treatments include, specific counselling, some pharmacological treatments, and libido lowering medications, with more intensive counselling.

106. The crown in submissions cautioned the Court in accepting the evidence of Dr Pusey and Dr Nielssen as their opinions are based upon self-reports by the offender to them. The offender did not give evidence in the sentence proceedings, and therefore the veracity or reliability of his accounts could not be tested by cross-examination. The Crown referred to Imbornone v R [2017] NSWCCA 144 and R v Qutami [2001] NSWCCA 353. The Crown submitted that the self-reports of the offender, where he seeks to mitigate culpability without being properly tested by cross-examination should be treated with caution by the court. The court is not bound to accept hearsay evidence of what the offender may have said to 3rd parties.

107. Whilst I accept that the court should exercise caution in those circumstances identified by the Crown, I am also mindful that both experts who prepared reports, and Dr Olav Nielssen who also gave evidence and was cross examined in the sentence proceedings are a very experienced clinical and forensic psychologist and psychiatrist respectively. They each had access to the agreed facts upon which the offender is to be sentenced. I am also mindful of what was stated by McCallum J (with whom Hamill and Cavanagh JJ agreed) in Lloyd v R [2022] NSWCCA 18 at [43] - [47]. Ultimately the evidence to be relied upon in sentencing an offender is a matter for the determination of the sentencing judge. Whilst as I earlier observed I have considered the evidence cautiously it is nonetheless admissible evidence. The Crown did not object to the tender of the clinical experts reports and had opportunity to cross examine Dr Nielssen. As was said by McCallum J in Lloyd at [47]:

"It is by no means beyond debate that the court is the only forum in which a reliable ethical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance."

108. Whilst having considered the evidence Dr Pusey and Dr Nielssen I could not be satisfied beyond reasonable doubt that the offender has a continuing sexual interest in children or animals, beyond the circumstances in which these offences were committed; I am satisfied that at the time of the offences the offender was obtaining sexual gratification. The Crown urged the court to find that the offender was not under the influence of drugs or intoxicated at the time he was engaged in the transmission of the CAM or the offending generally. The Crown submitted nothing in the language of the text-based messages suggests the offender was impaired by drugs or intoxicated. This therefore suggests that the sexual gratification he obtained through the offences, was not limited to those circumstances where he was impaired by his abuse of methamphetamine. I am satisfied, however, that the account given by the offender of his drug abuse and level of affectation at the time of the offences to both clinicians was generally consistent. Absent any history of like offending, together with his expressions of disgust and shame in respect to his offending, and considering the combination of circumstances leading up to the offences, initially the breakdown of his marriage, his guilt about his subsequent promiscuous homosexual lifestyle, his ongoing care for his mother during her illness and death, the restrictions imposed by the Covid pandemic, and his abuse of a cocktail of drugs including heroin, methamphetamine and Xanax, I am satisfied likely explains, or at the very least gives context to the offending.

Remorse

109. The offender told Dr Pusey and Dr Nielssen of his disgust in committing the offences. In his letter to the court, he expressed shame and disgust at his offending. Ms Kluss on behalf of the offender submitted that these expressions of remorse and shame have been consistent from the offender. He entered a plea of guilty at an early opportunity, having cooperated with police from the time of his arrest. She referred to Dr Nielssen's observations contained in his report of 15 August 2023 and repeated in his evidence given in the sentence proceedings. Dr Nielsen noted that the offender had disclosed to him during the course of his assessment that he was "to disgusted and ashamed to want to go home". In evidence Dr Nielsen stated that having read the material including the agreed facts upon which the offender is to be sentenced and having assessed the offender for the purpose of preparing his report, he felt that the offender was deeply embarrassed and a person wanting to change. In re-examination Dr Nielsen again noted that as far as one he was able to discern, he felt that the offender's expressions of remorse and shame were genuine. He repeated that during the course of their interview the offender had disclosed to him that he was too ashamed to apply for bail.

110. In submissions the Crown cautioned against any glib acceptance of the offenders untested assertions as to his contrition and remorse. The Crown referred to the nature of the offences, each disclosing a high level of sexual depravity from which the offender gained sexual gratification. His assertions of remorse and contrition have not been tested in cross examination as the offender did not give evidence in the proceedings.

111. I accept that the court must exercise caution in how it regards the offender's expressions of remorse, personal disgust, and contrition. I note, however, these expressions have been consistent and have been accompanied by the offender undertaking a series of programs whilst in custody. I accept also that the offender, as he disclosed to Dr Nielssen was to disgusted and ashamed by virtue of the nature of his offending to make an application for bail. I accept, albeit cautiously, that the offender's expressions of remorse are genuine.

Prospects of Rehabilitation/ Likelihood of future offending

112. Both Dr Pusey and Dr Nielssen have expressed an opinion that the offender's prospects of rehabilitation generally, that is, his reintegration into the community, and more specifically the likelihood or otherwise of his offending in the future is contingent upon his remaining abstinent from drug misuse, particularly methamphetamine and the cocktail of drugs he was using at the time of the offences, including methamphetamine, heroin, cannabis, and Xanax. In addition, he will need targeted and ongoing treatment of his mood pathology, that is, his depressive illness and potentially identification and treatment of PTSD or complex PTSD arising experiences of sexual abuse as a child at school. Both experts opined that it was more likely than not that the offending and the sexual gratification the offender obtained from the offending was seated in a combination of his substance abuse and mood pathology at the time.

113. Ms Kluss submitted that the offender has undertaken programs in custody including AA and NA, as well as the Connect program addressing behavioural change offered by NSW Corrective Services. He demonstrates motivation to undertake counselling and treatment and has ceased using illicit drugs since his arrest and remains motivated to accept treatment and counselling and the necessary rehabilitation to address his substance abuse issues and his poor mental health. It was submitted on behalf of the offender that the absence of any criminal history, his employment history of running his own business, and full-time employment for 23 years in disability support services suggests that given appropriate support, treatment and counselling the offender is capable of leading a productive and valuable life. Ms Kluss submitted that the court would find that the offender has reasonable prospects of positively reintegrating into the community in the future, but also that he is someone unlikely to reoffend.

114. The Crown in submissions asserted that the court would be guarded at best as to the offender's future prospects. The Crown referred to the decision of DPP (Cth) v Garside [2016] VSCA 74 at [63] where the Victorian CA said:

"The respondent could call in a a number of mitigating factors, including his lack of prior offending, [mature] age, familial support and remorse and prospects for rehabilitation. These factors were relied on by the respondent before the sentencing judge to justify "mercy". But the authorities to which we have referred demonstrate that such factors must be given less weight than they ordinarily would in sentencing for possessing and accessing child pornography as such offenders generally have similar backgrounds and are of prior good character."

115. The Crown again submitted that the evidence of Dr Pusey and Dr Nielssen and the assertions of the offender himself as to his prospects for the future and his rehabilitation generally in many ways are self-serving efforts on the part of the offender seeking to diminish his culpability. The Crown noted that the offender had chosen to not give evidence in the sentence proceedings, such that his expressions of remorse, his motivation for future rehabilitation and treatment, and his expressions as to his future prospects generally could not be tested by cross-examination.

116. Whilst I recognise in cases such as this, which involved the offender possessing and transmitting offensive and highly depraved CAM, as well as engaging in highly depraved text-based communications, that the weight of authority recognises the principle of general deterrence as a paramount consideration in sentencing. It necessarily follows, therefore, at least in a relative sense, that less weight will be afforded to what might otherwise be significant mitigating factors. That, however, is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows at least in a relative sense that less weight will be accorded to what might otherwise be significant mitigating factors: (R v Gajjar [2008] VSCA 268 at [27] - [28]). In the present case it is uncontroversial that the offender had historically lived a relatively pro social life. Upon leaving school he undertook an apprenticeship and worked as a chef. He ran his own catering business before commencing work in disability services where he worked for 23 years. He married and had three children and was financially responsible for the family. He cared for his mother in the final months of her life before she died from a rare brain cancer. I accept in a matter such as this less weight must be given to an offenders "prior good character". However, in a consideration of the offender's prospects for future rehabilitation, and the likelihood of reoffending, such a history is of some relevance. The offender has pleaded guilty at the earliest opportunity. He cooperated with investigating police. He has undertaken a number of programs in custody addressing, in particular, his substance abuse and addiction and his mood pathology. He has disclosed to the psychologist and psychiatrist who have assessed him, that he is motivated and desirous of pursuing further treatment and counselling in custody, and upon his ultimate return into the community. He is motivated and desirous of remaining abstinent from illicit drugs or drug abuse. I am, albeit cautiously, guardedly optimistic as to the offender's prospects for future rehabilitation, but this is clearly contingent upon his undertaking long-term, targeted counselling, treatment and supervision for his mood pathology and serious substance abuse disorder.

Section 16A Crimes Act (Cth) factors

117. The appropriate sentences for the federal offences, namely the offence of possessing or controlling child abuse material (sequence 1) and the offences of use carriage service to transmit child-abuse material (sequences 3, 4, 5, and 8), are to be determined, at least in part, by reference to s 16A of the Crimes Act (Cth). Relevantly in the circumstances of this case, I will have regard to the following sub sections:

1. The nature and circumstances of the offences; I have referred to this earlier in this judgment.

2. The offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct; I am satisfied that the offender's criminal behaviour in respect of the Commonwealth offences is part of a course of conduct in which he engaged, which continued over a number of months, and I will have regard to that fact.

3. The personal circumstances of any victim of the offence; I have referred earlier in this judgment to the impact upon child victims of offending of this type, and it cannot be understated. The harm done to those children is profound and repeated on every occasion that the child abuse material is viewed.

4. Any injury, loss or damage resulting from the offence; as I have just noted these are substantial.

5. The degree to which the person has shown contrition for the offence; I am satisfied that the offender has, by virtue of his plea of guilty and having regard to his developing insight, as well as his expressions of remorse and disgust at his offending in his letter to the Court, and his disclosures to Dr Pusey and Dr Olav Nielssen shown some level of remorse and contrition.

6. The fact of the offender's pleas of guilty, the timing of those pleas and the benefit to the community as a result; the Court must take into account the timing of the guilty pleas each entered before the Local Court at Penrith on 21 April 2023, and the degree to which the fact and the timing of the pleas resulted in any benefit to the community, or any victim of, or witness to the offence. In doing so the following considerations apply:

1. The NSW mandatory discount scheme does not apply to federal offences (s 25A(1)(a) CSPA).

2. The fact of the guilty plea may be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility and/or a willingness to facilitate the course of justice (Cameron v The Queen (2002) 209 CLR 339 at [343]).

3. the strength of the Crown case may be considered in assessing the subjective value of a guilty plea.

4. the court must also have regard to the utilitarian or objective value of a guilty plea, even in the absence of any subjective value (Xiao v The Queen [2018] NSWCA 4 at [269]-[278]).

5. In the interests of transparency, it is desirable for the sentencing judge to specify the discount given for a guilty plea, although it is not necessary.

118. As I indicated elsewhere in these reasons, I propose to allow the offender a 25% discount to reflect the utilitarian value of his pleas in respect to the federal offences.

1. The degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; I accept that the offender cooperated with police following his arrest.

2. (j)The deterrent effect that any sentence under consideration may have on the person; I am satisfied that the sentence to be imposed for the federal offences will serve, to the extent necessary in the circumstances of this case, the purpose of specific deterrence.

3. (ja) The deterrent effect that any sentence under consideration may have on other persons; I am satisfied that the sentence to be imposed for the federal offences will serve the purpose of general deterrence, it being a primary consideration in sentencing for matters of this type.

4. (k)the need to ensure that the person is adequately punished for the offence; I am satisfied that the sentence to be imposed will provide adequate punishment for the offender.

5. (m)The character, antecedents, age, means and physical or mental condition of the person; I have made detailed reference to these matters earlier in these reasons.

6. (n)The prospects of rehabilitation of the person; the following general propositions apply regarding the significance of an offender's prospects of rehabilitation:

1. Steps taken by the offender towards rehabilitation should be considered on sentence (R v Smith [2010] QCA 220 at [18]), as one amongst several important sentencing considerations and should not be given focus at the expense of other important sentencing considerations, such as general deterrence and denunciation (R v Booth [2009] NSWCCA 89 at [47]).

2. Rehabilitation is an important factor in cases where there has been therapy over a lengthy period and there is evidence of some significant changes in the offender's personal, emotional, and intellectual life. An offender's prospects of rehabilitation must therefore be considered in conjunction with any treatment undertaken by them since being charged, inclusive of treatment to address the offending behaviour.

3. In any consideration as to the protection of the community, a sentencing Court will also need to consider the risk of offending. I have referred to these matters earlier in these reasons.

Totality

119. Considering principles of totality, this is a matter which lends itself well to the imposition of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act, and I propose to proceed in that way. Even though sequences 1, 3, 4, 5, and 8 for which sentences are to be imposed are Federal offences, I am entitled to deal with them in this way: I refer to the autohirty of Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]. What I cannot do is aggregate both the federal offences and the State offence within a single sentence. Accordingly, because I intend to impose an aggregate sentence for the five Federal offences for which the offender is to be sentenced, it will be necessary for me to impose a separate sentence, in respect to the State offence being sequence 6 (the bestiality offence).

120. In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] ff, (with whom Johnson and Price JJ agreed), set out the relevant principles in respect of totality. In brief summary they are:

1. Whenever a Court sentences an offender for multiple offences, such as is the case here, it is necessary for the judge to ensure that the aggregation of all the sentences is a "just and appropriate measure of the total criminality involved".

2. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. The first is that the severity of a sentence is not simply the product of a linear relationship. Severity may increase at a greater rate than an increase in the length of a sentence. The second is the proposition that an extremely long total sentence may be "crushing" upon an offender in the sense that it will induce a feeling of hopelessness and impact adversely on such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, an offender may not be entitled to the element of mercy entailed in adopting such a constraint.

3. A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is a discount for multiple offending.

121. The Crown submitted that as the court is required to sentence for more than one offence, it is first required to consider the sentence appropriate for each offence separately and then turn to questions of concurrency/accumulation and issues of totality (Pearce v The Queen (1998) 194 CLR 610 at [47]). The Crown submitted the Court should have regard to the presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences in accord with s 19(5) Crimes Act (Cth). The Crown submitted that an appropriate degree of accumulation between each of the offences, that is, between the discreet federal offences, and the separate sentence to be imposed in respect to the state offence is warranted to reflect the total criminality of the offender's conduct. It was submitted that the federal offences, albeit of a similar nature, each reflect discreet, serious instances of offending, and in relation to the transmission offences they involve communication to different users and occur at different times. The Crown also noted that sequences 4, 6 and 8 have s 16BA/Form 1 matters attached to them, and the bestiality offence is of a distinctly different nature to the federal offending involving child abuse material.

122. 85. In her submissions on behalf of the offender, Ms Kluss conceded that some partial accumulation of the sentences may be appropriate both as between the State offence, and the federal offences, and between the federal offences internally. Ms Kluss submitted that it is open to the Court to impose an aggregate sentence for the federal offences, and the Court would consider the question of totality in accordance with Cahyadi v R [2007] NSWCCA 1 at [27].

Is any penalty other than imprisonment appropriate?

123. Dealing first with the state offence (seq 6) of "Commit an act of bestiality with an animal (a dog) as principal in the second degree". As previously noted, this offence is contrary to ss 79 and 345 Crimes Act NSW and carries a maximum penalty upon conviction of 14 years imprisonment I am required in the process in which I engage in arriving at an appropriate and proportionate sentence to consider the maximum penalty, as it represents how seriously the Parliament on behalf of the community view such offending. Having considered Chesworth v R [2023] NSWCCA 115 and, in particular, the remarks of Rothman J (with whom Wilson and Yehia JJ agreed), both parties did not submit against my finding that the objective seriousness of the offence fell below the broad mid-range for offences of this type. The offender's involvement was as a principal in the second degree. He manipulated the male dog's penis and then assisted its insertion into the anus of the principal offender, an unknown adult male who was consenting to the act. This offence involved penetration, albeit by the animal, and required the animal to give sexual gratification to a human. The act was recorded on 3 July 2022, the recording being for a duration of 57 seconds, and it was located by Police in the iPhone gallery on the offender's mobile phone at the time of his arrest. There is no evidence it had been or was shared with any other person. Notwithstanding the rarity of bestiality offences from which to draw a range or pattern of prior sentences; I am satisfied having regard to the depravity and offensiveness of the conduct, and with proper recognition of the vulnerability of the animal, as has been urged by the Crown and conceded by Ms Kluss for the offender, a sentence of imprisonment is warranted in this matter. That is, no penalty other than a sentence of imprisonment in accord with s 5(1) CSPA is appropriate.

124. As I have already noted I propose that this sentence will be separate from the aggregate sentence I will shortly impose for the federal offences. As previously noted, the offender entered a plea of guilty to all the offences in the Local Court at Penrith on 21 April 2023. He is therefore entitled to a 25% discount on the otherwise appropriate sentence for the state offence by virtue of the timing of the plea and the statutory discount in s 25D(2) Crimes (Sentencing Procedure Act 1999.

125. In respect to each of the federal offences, that is, sequences 1, 3, 4, 5, and 8, being the offences involving the possession/control and/or transmission of CAM, I am satisfied in accordance with s 17A(1) Crimes Act Cth, that no sentence other than a sentence of full-time imprisonment in each is appropriate.

The need for consistency

126. The Crown provided me with a number of cases that it was submitted would inform the sentence to be imposed here. I have considered those cases in light of the need for courts to seek to achieve consistency when sentencing for Commonwealth offences and the need to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. As was submitted by the Crown and previously referred to in these reasons, the consistency that is sought to be achieved is in the application of relevant legal principles rather than the numerical equivalence of sentences and I have sought to give effect to that in this matter.

Covid

127. In her submissions Ms Kluss noted that the offender had been in custody since 16 August 2022 which period in part coincided with the Covid 19 pandemic, and its impact on the custodial environment, and consequential harsher conditions experienced by inmates due to the restrictions imposed in the prison system by corrective services. While Ms Kluss conceded that the impact of the pandemic has abated over time, it's impact at least for some of the period that the offender has spent in custody to date remains a significant factor in the sentencing exercise. It was submitted that the principles enunciated in SF v R [2022] NSWCCA 216 (7 October 2022) in respect to the hardship and isolation caused to inmates by the pandemic have some application. Whilst it was implicit in this submission that the impact of the pandemic on the community generally and in the prison system has now substantially abated with vaccines being widely available, nonetheless in 2022, even the latter part of that year corrective services NSW had implemented a number of efforts to reduce the spread of the virus within the prison system that impacted significantly on inmates, and consequentially more so on those serving their first period of time in custody with no prior experience of the criminal justice system. I am satisfied at least to some moderate degree that this is a matter I may consider for the offender as part of the instinctive synthesis.

Special circumstances/minimum term to be served.

128. It was submitted by Ms Kluss that I would make a finding of special circumstances for the offender in respect of all offences. The primary consideration in such a finding is the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrent to him and others.

129. Unlike state offences, there is no statutory ratio prescribed for the minimum period an offender must serve in custody following sentence for a federal offence. I must impose a sentence for those matters of a severity appropriate in all the circumstances. In determining that period, the objective gravity of the offending, the interests of the community and the purpose of fostering rehabilitation are, amongst other considerations, all to be considered.

130. When sentencing for a federal offence, where the sentence of imprisonment imposed is more than 3 years, the court must fix a non-parole period unless reasons are provided as to why it has declined to do so. In the event that the offender is sentenced to a term of imprisonment of 3 years or less, the court will be required to impose a recognisance release order pursuant to s 19AC(1) Crimes Act (Cth). Section 20(1)(b)(ii) of the Crimes Act (Cth) provides that, if a court determines to sentence a 'Commonwealth child sex offender' to imprisonment but release them on a recognisance release order, there is a presumption that they will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a reconnaissance release order. In respect to the federal offences herein the Crown submitted that having regard to the objective seriousness of the offences, the need for general and specific deterrence, the presumptions of imprisonment and cumulation, the maximum penalty applicable to each of the offences, and comparable cases, the only appropriate sentence is a period of full-time imprisonment with a non-parole period: R v Haynes [2017] VSCA 79.

131. Relevantly in the circumstances of this case, if the sentence imposed is less than 3 years then I must impose a recognisance release order, unless I am satisfied that such an order is not appropriate given the nature and circumstances of the offence or offences concerned and, the antecedents of the offender. As already observed it is my intention to impose a separate sentence for the State offence and having regard to the objective seriousness of the federal offences, the sentences I propose to impose for them will be for a term of greater than 3 years.

132. The Crown in submissions referred to s 16A(2AAA) of the Crimes Act (Cth) which as I have already observed provides that, in determining the sentence to be passed in respect of a "Commonwealth child sex offence", the court must have regard to the objective of rehabilitating the offender, including by considering whether it is appropriate that any order should include a condition about rehabilitation or treatment options or that the length of the sentence to be imposed should include sufficient time for the offender to undertake a rehabilitation program. However, the section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence. I have had regard to the offender's need for rehabilitation and treatment. I am satisfied that the structure of the sentence to be imposed for the federal offences, will provide sufficient time for the offender to undertake such rehabilitation or treatment programs as may be recommended.

133. Generally, the reform of the offender will often be the purpose in finding special circumstances for state offences, but this need not be the only purpose. Here, I am satisfied that both the offender and the community will benefit from him having an extended period of supervision on parole. This will not only assist his reintegration into the community and promote his prospects of rehabilitation but will also allow time for the intensive interventions he requires to be undertaken. The fact this is required is a clear from the subjective material tendered in the offender's case and to which I have earlier made reference. I also have regard to the fact this is his first time in custody. These matters viewed in combination satisfy me that the non-parole period that I will shortly impose, having regard to the aggregate sentence to be imposed for the federal offences, as well as the partial accumulation of the aggregate sentence on the sentence I am to impose for the State offence appropriately addresses the statutory requirements of s 16A(2AAA) and is the minimum period of full-time custody that justice in the circumstances of this offending requires.

The sentence for the State offence.

134. The offender has been in custody since the date of his arrest by police on Tuesday, 16 August 2022. Relevantly s 24 CSPA states that:

"In sentencing an offender, the court must take into account-

(a) any time for which the offender has been held in custody in relation to the offence…".

135. Section 47(3) CSPA states:

"…In deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates".

136. Having taken into account the plea of guilty, which attracts a 25% discount, the sentence I impose for the offence of "commit an act of bestiality with an animal (a dog), as principal in the second degree", contrary to s 79 and 345 Crimes Act NSW is 2 years imprisonment. That sentence is to be served by way of a fixed term to date from 16 August 2022, expiring 15 August 2024. I have declined to set a non-parole period for the offence by reason of the fact that I will now impose a separate aggregate sentence for the federal offences which will be partially cumulative upon the sentence imposed for the state offence.

The Indicative Sentences - The federal Offences

137. As aggregate sentences are to be imposed for the federal offences, it is necessary for me in accordance with the statutory scheme to note the indicative sentences that I would have imposed had I not determined to proceed in this way. The indicative sentence for each offence is arrived at having regard to the objective seriousness of the offending, all aspects of the offender's subjective case, and the need to give effect to the purposes of sentencing generally. The 25% discount to reflect the utilitarian value of the pleas of guilty are to be applied to the indicative sentences.

138. The indicative sentences I regard as appropriate are as follows:

1. Sequence 1 (s 474.22A(1) Criminal Code Cth): Possess or control child abuse material obtained using a carriage service.

1. A sentence of 8 years imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 6 years.

2. Sequence 2 (s 474.22(1) Criminal Code Cth): Transmit CAM using a carriage service.

1. A sentence of 8 years imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 6 years.

3. Sequence 4 (s 474.22(1) Criminal Code Cth): Transmit CAM using a carriage service, taking into account the offence of "use carriage service to offend" contrary to s 474.17 Criminal Code Cth on s 16BA Schedule (seq 9).

1. A sentence of 5 years imprisonment less 25% to reflect the plea of guilty, making an indicative sentence of 3 years, 9 months.

4. Sequence 5 (s 474.22(1) Criminal Code Cth): Transmit CAM using a carriage service.

1. A sentence of 5 years 4 months imprisonment less 25% to reflect the plea of guilty, making an indicative sentence of 4 years.

5. Sequence 8 (s 474.22(1) Criminal Code Cth): Transmit CAM using a carriage service - taking into account the offence of "use carriage service to offend" contrary to s 474.17(1) Criminal Code Cth on s 16BA Schedule (seq 10).

1. A sentence of 7 years 4 months imprisonment, less 25% to reflect the plea of guilty, making an indicative sentence of 5 years 6 months.

139. I have concluded in respect to the federal offences that a total aggregate sentence of 7 years 6 months imprisonment with a non-parole period of 5 years is appropriate. In reaching this conclusion I have borne in mind the serious nature of the offending over the period, against the particular personal circumstances of the offender.

140. In the exercise of my discretion and having concluded there need be some measure of accumulation of the sentence imposed for the federal offences on the sentence imposed for the state offence, to reflect the different nature of the offence, the aggregate sentence is to commence on 3 February 2023. Taking into account the non-parole period imposed on the aggregate sentence, this will result in the offender serving a total of 5 years 6 months in custody from 16 August 2022, and a total sentence of 8 years imprisonment. Having regard to the nature of the offences, and my assessment of their seriousness, given all the circumstances, I am of the opinion that no lesser period is appropriate. I am also of the view that a longer period of supervision to which the offender will be subject is similarly appropriate and necessary.

Conclusion and orders.

141. In each matter you are convicted.

142. In respect to sequence 6, that is the offence of "commit act of bestiality as a principal in the second degree" and (taking into account the Form 1 offence), you are sentenced to a fixed term of imprisonment of 2 years to date from 16 August 2022. The sentence will expire on 15 August 2024.

143. In respect to sequence 1 (possess/control CAM), and sequences 3, 4, 5, and 8 (transmit CAM using a carriage service), and taking into account the offences attaching to sequences 4 and 8 by virtue of s 16BA schedule, pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 you are sentenced to an aggregate term of imprisonment of 7 years 6 months and a non-parole period of 5 years each to date from 16 February 2023.

144. The indicative sentences are as noted earlier in these reasons.

145. You will be eligible for release to parole on 15 February 2028, and I recommend such release.

146. Your total sentence will expire on 15 August 2030.

147. I recommend that the report of Dr Paul Pusey, psychologist, dated 10 October 2023 be provided to Corrective Services NSW and Justice Health.

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Decision last updated: 16 December 2024