R v Arbuthnot

[2024] NSWDC 663

District Court

New South Wales

Medium Neutral Citation:

R v Arbuthnot [2024] NSWDC 663

Hearing dates:

4/12/24, 5/12/24

Date of orders:

5/12/24

Decision date:

05 December 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to imprisonment for a period of 2 years 11 months, but pursuant to s.20(1)(b), the offender is to be released, after serving a period of 15 months, on a Recognisance Release Order for a period of 2 years upon giving security without surety, in the amount of $100.

The sentence will commence on 7/12/23. Therefore the head sentence will expire on 6/11/26. The offender will be eligible for release on 6/3/25, upon entering into the recognisance for a period of 2 years.

The Recognisance Release Order will be subject to the following conditions:

1.   Be of good behaviour and not commit any offences.

2.   Be subject to the supervision of a probation officer appointed in accordance with the order.

3.   Obey all reasonable directions of the probation officer.

4.   Undertake counselling, treatment, and rehabilitation as directed by the probation officer.

5.   No to travel interstate or overseas without the written permission of the probation officer.

A total discount of 30 percent has been taken into account.

I make the forfeiture order signed and dated by me on 4 December 2024.

Catchwords:

Crime – Sentence – Commonwealth offences – Access child abuse material using a carriage service

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Crimes Act 1914

Criminal Code (Cth)

Cases Cited:

Hili and Jones v The Queen (2010) 242 CLR 520

Hurt v The King; Delzotto v The King [2024] HCA 8

R v Hutchinson [2018] NSWCCA 152

R v Skinner (2016) 126 SASR 120

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Ian Arbuthnot - Offender

Representation:

Mr J Fennell for CDPP
Mr H McDuff for Offender

File Number(s):

23/444507

Publication restriction:

Non-publication order in relation to name of website

remarks on sentence

1. Mr Ian Arbuthnot is for sentence in relation to a single offence under s 474.22(1) of the Criminal Code (Cth), that being an offence of accessing child abuse material using a carriage service. The maximum penalty for that offence is 15 years’ imprisonment and there is a minimum penalty specified which is four years, about which I will make some comments later. The maximum and minimum sentences are important yardsticks in the sentencing exercise to which I have had regard.

2. The offender pleaded guilty to the offence at the earliest stage and although there is no specified discount to be applied in Commonwealth matters, I do intend to apply a discount of 25% by reason of that plea of guilty. The facts are stated in short form and are agreed and are as follows:

FACTS

3. On 25 August 2017 the offender was convicted and sentenced for some child sexual abuse offences, namely, three counts of aggravated sexual assault involving a victim under 16 and three counts of indecent assault involving a victim under 16. As a result of those convictions he was subject to the provisions of the Child Protection (Offenders Registration) Act 2000. On 7 December 2023 police attended his residence at Carrington to conduct an inspection pursuant to the Act to which I have just made reference.

4. During the course of that inspection police located an electronic tablet that the offender had used to access child abuse material consisting of written stories describing children involved in sexual acts. The offender assisted the police in unlocking that device and upon unlocking the tablet device police noticed that the device was at that stage open to a particular page.

5. The page involved a website which displayed a page that contained numerous written stories, some of which are child abuse material. Upon discovery of this page, police cautioned the offender and questioned him about his use of the tablet.

6. One of the words that appeared on the page which was open on the tablet was the word “ped” and the offender admitted to police that he knew that the term “ped” referred to paedophilic material and he admitted also that child abuse material also included written stories describing children involved in sexual acts. The facts note that the webpage to which I have made reference contained numerous written stories, some of which were child abuse material.

7. Upon being cautioned and questioned by police, the offender apologised immediately, telling police he was sorry for what he had done and that he had let police and his family and his mates down. Police went through the browsing history on the device and noted numerous visits to the particular website. The offender assisted police in showing them how he accessed the material via a dropdown list.

8. He was arrested and taken to Newcastle Police Station where he participated in an interview. During that interview he told police the following things:

9. Firstly, that he had been accessing stories consisting of child abuse material for around five weeks before his arrest.

10. Secondly, that he would access the child abuse material sporadically, sometimes three or four days per week and other times not for a whole week.

11. Thirdly, that he estimated that over the offending period he had accessed around 300 stories, of which 80 to 90% were child abuse material.

12. Fourthly, that he knew the stories were child abuse material and were illegal.

13. Fifthly, he denied any sexual interest in children, and;

14. Sixthly, he apologised to police and said that he had “stuffed up” again and that he had let down his family, friends and police.

S.16A CRIMES ACT 1914 MATTERS

15. As this is a Commonwealth offence, it is necessary for me to address, insofar as they are relevant, the various paragraphs of s 16A(2) of the Crimes Act 1914.

16. I commence with the matters referred to in para (a) which is the nature and circumstances of the offence and para (c) which relates to whether the offending involved a course of conduct.

17. Factors relevant to the objective seriousness of offences of this kind have been identified by the New South Wales Court of Criminal Appeal in a number of cases including R v Hutchinson [2018] NSWCCA 152. I note by reference to relevant factors referred to in Hutchinson the following:

18. First, so far as is known, none of the stories accessed by the offender involved actual children.

19. Secondly, as to the nature and content of the material, the gravity of the sexual activity and the age of the children, the agreed facts on this topic are rather silent. In these circumstances, and given that aggravating matters on sentence must be proved beyond reasonable doubt, it is appropriate that I assume that the content and gravity of the material was at the lower end of the scale of seriousness. Similarly, I am unable to determine the age of the children referred to in the stories and I proceed on the basis that the children’s ages is not an aggravating factor.

20. Thirdly, as to the extent of any cruelty or physical harm depicted, again I am unable to form any conclusion as to whether the stories involved cruelty or physical harm and so this is a neutral aspect.

21. Fourth, by reference to the Hutchinson matters, the offence involved accessing a large number of written stories, namely, at least 240 of them, to which the offender had access over a period of about five weeks. I am unable, however, to determine the number of children involved in the stories.

22. Fifth, I conclude that the offender’s purpose in accessing the material was for personal use, and not for sale or dissemination to others. He also did not take action to save the material nor is there any suggestion that the offended acted with the intention of obtaining any financial or other material benefit by accessing the material.

23. There is no suggestion that the offender was engaged in disseminating the material or made or received any payment and so factors number 6 and 7 in the Hutchinson case are not relevant. However, the fact that no payment was made does not mitigate the offending to any great degree because of the fact that simple accessing of such material feeds the market.

24. As to the eighth factor in Hutchinson, there is no evidence that the offender had any connection in a proximate sense with the persons responsible for bringing the child abuse material into existence.

25. As to Hutchinson factor 9, the offending did not involve extensive planning, organisation or deception. However, it did involve the offender deliberately going to the particular website which he had remembered from an earlier time.

26. There is no suggestion that the offender was in communication with anyone in connection with accessing the material or that he was acting collaboratively with others, or that there was any risk of vulnerable or like-minded persons seeing the material and so factors 10, 11, 12 and 13 of Hutchinson are not of relevance.

27. It is, however, relevant to take into account that the offending occurred over a considerable period of about five weeks. It therefore involved a course of conduct and cannot be regarded as isolated or as an aberration.

28. Paragraph (d) of s 16A(2) refers to the personal circumstances of any victim and para (e) refers to any injury, loss or damage resulting from the offence. As to the personal circumstances of any child victim, it is agreed that the stories did not involve any real child victims. It is not therefore suggested that there was any injury, loss or damage resulting to any child. These aspects therefore do not affect the seriousness of the offence.

29. Given the matters to which I have made reference, I am satisfied that the offence is a moderately serious example of its kind. I say moderately serious because of the number of stories that were accessed and the period over which the offending occurred. It is true, however, that the offence which relates to text based material is far less serious than many or most examples of this type of offence. I assess the objective seriousness of the offence as being well below the mid-range and towards the lower range.

30. Paragraph (f) of s 16A(2) refers to the degree to which the person has shown contrition for the offence. In my view the offender has shown some contrition for his offending. He demonstrated this at his arrest when he apologised to police, assisted in showing them how he accessed the material and admitted that he had access to around 300 stories over about five weeks and said that 80 to 90% of the stories were child abuse material and were illegal.

31. This, however, has to be balanced against the offender’s inability to acknowledge to the psychologist that he had a sexual interest in children and his suggestion that he did not know “why he did it” which in my view involves denial of an obvious sexual interest in children. However, on balance, I do accept that there is some genuine contrition.

32. Paragraph (g) of s 16A(2) refers to the significance of a guilty plea and in this regard the offender entered a plea of guilty at the earliest opportunity. As I have said, there is no set discount for a plea of guilty in Commonwealth matters. The question of discount involves an assessment of the utility of the plea, its timing and benefit to the community and others including any victims. It also involves making an assessment of whether the plea is an indicator of contrition or whether it is a recognition of the inevitable. In my view the plea of guilty is of reduced value in terms of its utility and as an indication of contrition in this case because the offender was effectively caught red-handed when police examined the tablet. His plea of guilty was therefore, to a large degree, an acknowledgement of the inevitable because the prosecution case was very strong. However, given the Crown’s concession that a discount of 25% is appropriate, I intend to apply that level of discount for the guilty plea.

33. Paragraph (h) of s 16A(2) refers to cooperation with authorities. It has been argued that the offender ought to receive the benefit of some sort of reduction in sentence by reason of his assistance to police in showing them how he had accessed the material and in making admissions to the quantity and nature of the material he had accessed. I have already taken this into account in the offender’s favour in my finding of some genuine contrition.

34. However, I am prepared to accept that this assistance should be acknowledged by a further small discount on sentence. That is because while it is very probable that police would have been able to reveal some of the offender’s conduct by conducting an examination of the electronic device, there is no certainty that all the material would have been revealed. There is also the fact that the offender’s admissions saved the police the time and expense of conducting this sort of analysis. I intend therefore to allow a further discount of 5% by reason of the offender’s assistance, taking the total discount to 30%.

35. Paragraph (j) of s 16A(2) refers to the deterrent effect that any sentence may have on the person. As discussed elsewhere in these remarks, I am satisfied that the offence was committed because the offender had a sexual interest in the material and in children. This flows not only as an inference from the nature and quantity of material accessed, but also from the offender’s history of sexual offending upon a young girl. In my view, therefore, personal deterrence is of great importance in this case.

36. Paragraph (ja) of s 16A(2) refers to general deterrence. Clearly, general deterrence is of great importance in sentencing for offences of this kind. That is largely because these kinds of offences, including those involving fictional stories, feed the market for the exploitation of children, are difficult to detect, are very prevalent, and occur at an international level. It is necessary therefore that the sentence to be imposed recognise these factors and send a message to potential offenders that such offences will be met with serious punishment.

37. Paragraph (k) of s 16A(2) refers to the need for adequate punishment which, of course, is an important factor in any sentencing exercise, as it is in this one.

38. Paragraph (m) refers to the character, antecedents, age, means and physical or mental condition of the offender. The offender is now 66 years of age. He has a prior criminal history which, until 2015, was fairly limited. However, in 2017 he was sentenced by a judge of this Court to imprisonment for offences of a sexual nature committed on a female child. He was released to parole on that sentence on 18 November 2020 and his parole period ended on 18 May 2023, only a few months before he committed the offence now before the Court.

39. The offender’s background and subjective case has been placed before the Court by means of the psychological report of Ms Gumbert. The offender was raised largely in a New South Wales rural environment in a family in which he was the eldest child. He reported no history of abuse, violence or deprivation as a child. He left school in year 11 and after that worked in a variety of jobs including 12 years as a delivery driver and 20 years doing grounds maintenance at a golf course. He identifies as heterosexual, has never married or been in a de facto marriage, but has a history of numerous relationships with women.

40. Between about 2010 and 2015 he was the full time carer for his younger brother who was seriously disabled by reason of a motor vehicle accident when aged 17. However, this carer role ceased when the offender, in 2015, was arrested and imprisoned for his previous sex offences. The offender’s brother then had to be placed into care where he died in 2020.

41. The offender has no history of mental health diagnoses and reported that he is coping “fairly well” in custody. I note that the offender’s custodial records indicate that he was initially classified to be held in “SMAP”, which I understand stands for Special Management Area Placement, apparently due to his being a sex offender. While no detailed submissions were made to me as to whether this involves a form of more onerous custody, I have taken into account that as a sex offender this offender is likely to experience and to have already experienced a more restricted and therefore more difficult custodial environment. The offender has a history of excessive alcohol use, but says he has remained off alcohol since 2015 and has the intention of maintaining this.

42. He told the psychologist that he became aware of the website to which I made reference prior to his 2015 offences and said that about two months before the current offence he had remembered this website and began reading some of the stories again. Although the offender denied having a sexual interest in children, he agreed that he had found the stories sexually arousing in a mental sense.

43. Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation. The psychological report of Ms Gumbert considers the offender’s risk of reoffending. She concluded that while the offender partially acknowledged some sexual interest in children, he has limited insight and self-awareness. She concluded that the offender may be at risk of further attempts at contact offences with prepubescent female children or of accessing online child abuse material. She further concluded that it is likely that the offender’s sexual interest in children is greater than what he is prepared to admit to, although there is insufficient evidence to confidently diagnose him with a paedophilic disorder. She says that he is above average risk on the Static-99 tool and of moderate risk on the RSVP predictive tool. She also thinks that the offender would benefit from participating in some programs aimed at giving him better insight into his risk of reoffending and notes that while he has not yet engaged in any such programs, he expressed a preparedness to do so.

44. Having had regard to all of this material, along with the offender’s history of direct sexual offending on a young girl in 2015, I think he remains a material risk of reoffending in a similar manner by either committing a hands-on offence or an internet based sex offence in the future. His prospects of rehabilitation are, in my opinion, guarded.

45. Section 16A(2AAA) provides that in determining sentence I have regard to the objective of rehabilitating the offender including by considering whether it is appropriate to impose any conditions about rehabilitation or treatment options and/or to include within the length of any sentence sufficient time for the offender to undertake a rehabilitation program. I have taken this into account, but, of course, it does not remove the important requirements that the sentence be appropriate in its severity and reflect general and personal deterrence and the other purposes of sentencing.

46. Section 17A of the Crimes Act 1914 requires that the Court not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in the circumstances. In this regard it was acknowledged on behalf of the offender that the threshold created by s 17A has been crossed. There is also the fact, however, that the offence carries a mandatory minimum head sentence of four years.

47. In Hurt v The King; Delzotto v The King [2024] HCA 8 the High Court clarified that the mandatory minimum sentence serves a double purpose. Firstly, it restricts the sentencing power to the minimum period, subject, however, to the exceptions in s 16AAC. Secondly, it provides a yardstick in the exercise of the sentencing discretion which is effectively the opposite of the statutory maximum.

48. In determining the sentence it is first necessary for me to determine whether the offender must be convicted for the offence. Appropriately, no submission to the contrary was made and I am well satisfied that it is appropriate to convict the offender, which I do. I am also satisfied that the offence is one where no sentence other than imprisonment is appropriate.

15. In determining the appropriate sentence I have had regard to all of the matters to which I have made reference. I have also had regard, as important yardsticks, to the mandatory minimum and to the maximum penalty for the offence. In setting the sentence I am of the view that a starting point of four years, three months is appropriate.

16. In coming to that starting point I am satisfied that the seriousness of the offence lies close to the “least serious circumstances”. However, I am also of the view that that sentence ought to be reduced by reason of the combined discount of 30% on account of the plea of guilty and cooperation. In other words, I am satisfied that it is appropriate to set a sentence that is below the mandatory minimum so as to give adequate recognition of the offender’s plea of guilty and cooperation.

17. I impose, after the 30% discount, a head sentence of two years, 11 months. As this is a Commonwealth child sex offence, s 20(1)(b)(ii) provides that I must order that the offender serve some part of that sentence in actual custody unless satisfied that there are exceptional circumstances justifying his immediate release.

18. I accept, as was said in R v Skinner (2016) 126 SASR 120, that “exceptional circumstances” is a test that ought not to be set too high and that it can be made out by either a single circumstance or a combination of matters.

19. It was argued on behalf of the offender that exceptional circumstances are made out in this case by reason of the following matters:

20. Firstly, the offender’s age, being currently 66, which is likely to make a custodial sentence particularly difficult.

21. Secondly, the nature of the material, being written stories, which makes them significantly lower in terms of seriousness.

22. Thirdly, that the offender has already spent approximately one year in custody and that this, it was argued, is an exceptionally long period having regard to the nature of the material he accessed, and;

23. Fourthly, that he expressed immediate and genuine remorse and provided assistance to police.

24. Having considered these matters and all of the circumstances of this case, I am not satisfied that exceptional circumstances have been made out.

25. Since the decision in Hili and Jones v The Queen (2010) 242 CLR 520 it has been clear that in Commonwealth matters there is no predetermined or default proportion that applies between a head sentence and a non-parole period or recognizance release order. Rather, I must take into account all of the facts and other matters relevant to sentencing.

26. In my view some period of actual custody is required in order to appropriately reflect all of the purposes of sentencing and, in particular, those of general and personal deterrence. The period of actual custody, however, should be such as to involve a significant period of time in which the offender will be subject to supervision and during which he will be expected to engage in counselling and/or treatment to reduce his risk of reoffending.

27. I sentence the offender to a period of two years, 11 months’ imprisonment, but I order pursuant to s 20(1)(b) that he be released after serving a period of 15 months on a recognizance release order for a period of two years upon giving security without sureties in the amount of $100.

28. The sentence will commence on 7 December 2023. The head sentence will expire on 6 November 2026. The offender will be eligible for release on 6 March 2025 upon entering into the recognizance for a period of two years.

29. The recognizance release order will be subject to the following conditions:

30. Firstly, that the offender be of good behaviour and not commit any offence.

31. Secondly, that he be subject to supervision of a probation officer appointed in accordance with the order.

32. Thirdly, that he obey all reasonable directions of the probation officer.

33. Fourthly, that he undertake such counselling, treatment and/or rehabilitation as the probation officer reasonably directs.

34. Fifthly, that he not travel interstate or overseas without the written permission of the probation officer.

35. Those are the terms of the sentence that I impose. I also make the forfeiture order which was in the form of a document handed to me by the Crown yesterday.

36. Do either of the representatives have anything to raise about any of those orders?

37. MCDUFF: No, your Honour, if I could perhaps just have 30 seconds to double check, I’m aware there’s some mandatory conditions that need to be imposed for child sex matters in s 20. It may be the case your Honour considered all of those, but if I could just check those?

38. HIS HONOUR: I think so, but by all means check.

39. MCDUFF: I don’t have anything to add, your Honour.

40. OXLEY: The Crown intends to file with the registry henceforth the Form 1 and 2 for the CPR so the offender will be subject to continued compliance under the CPR provisions. So those don’t necessarily need to be made as orders as they all automatically attach to the proceedings.

41. HIS HONOUR: All right, thank you, Mr Crown.

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Decision last updated: 08 April 2025