R v Atkinson

[2024] NSWDC 475

District Court

New South Wales

Medium Neutral Citation:

R v ATKINSON [2024] NSWDC 475

Hearing dates:

10 October 2024

Decision date:

10 October 2024

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Sentenced to 2 years and 4 months imprisonment, with a non-parole period of 1 year and 2 months to date from 8 October 2024. Release to parole arises on 7 December 2025.

Catchwords:

SENTENCE – Imprisonment - possess child abuse material – possess bestiality material – Form 1 – special circumstances

Legislation Cited:

s.91H(2)Crimes Act 1900 (NSW)

s.547E(2) Crimes Act 1900 (NSW)

Cases Cited:

Minehan v R [2010] NSWCCA 140

Category:

Sentence

Parties:

Rex;
Simon Thomas Atkinson

Representation:

Counsel:
Defence: L Davids

Solicitors:
Crown: E Blackburn

File Number(s):

2023/262013

JUDGMENT

1. Simon Atkinson, the offender, appears for sentence after entering a plea of guilty in the Local Court to an offence of possessing child abuse material. This offence is contrary to s.91H(2) Crimes Act with an applicable maximum penalty of 10 years imprisonment.

2. The maximum penalty reflects the seriousness with which this offence is regarded.

3. The offender has signed a form 1 document that lists an offence of possessing bestiality material. This offence is contrary to s.547E(2) Crimes Act, and if for sentence would have a maximum penalty of 3 years imprisonment. The offender asks that I take into account this matter on the form 1 when I sentence on the offence for sentence. I consider it appropriate that I take this further matter into account in accordance with sentencing principles. The offence is of a separate but not dissimilar nature to the offence for sentence. It is of far less severity. It warrants minimal recognition in adjusting the sentence.

4. The offender was arrested on 17 August 2023. The plea of guilty was entered in the Local Court on 1 May 2024. The early plea is such as to warrant a reduction of 25% to an otherwise appropriate sentence.

5. The Crown tendered agreed facts as part of Ex A on sentence.

6. The document is detailed, particularly in describing the nature of images or videos. I have had regard to the entire document although in delivering my reasons for sentence, I intend to incorporate only selected parts.

7. The offender came to the attention of police due to his downloading of media files containing child abuse material being detected by the Child Exploitation Media Unit. Two days later police executed a search warrant at the offender’s home and located relevant material on his desktop computer which was located in the family dining room. This was a home that the offender resided in with his wife of 16 years and his son and twin daughters; all three children being aged under 10.

8. The offender initially did not declare the possession but did so after being informed that items were to be seized. He volunteered he downloaded a peer-to-peer software to download the images. The images included both photographs and videos. Admissions were made during his subsequent interview including his addiction to pornography and a sexual attraction to females aged around 12- 18 years. From the samples particularised in the facts, the images included pre-pubescent children.

9. The images are described as being obtained from two downloads. The images are classified using the Australian Child Abuse Categorisation Scheme. Category 1 is defined as depicting a real pre-pubescent child/ very first signs of puberty and the child is involved in a sex act or the material is focussed/ concentrated on the anal or genital region of the child. Category 2 includes illegal material not within category 1, and includes a person who appears to be or is implied to be a child and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive who:

1. Is a victim of torture, cruelty or physical abuse; or

2. Is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or

3. Is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or

4. Is exposing the genital area or anal area whether bare or covered by underwear or the breasts of a female person or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

10. Download 1 contained 710 picture media files of prepubescent children aged between infancy and around 13 involving sex acts identified within category 1 and 353 picture files of real pre-pubescent children identified as category 2.

11. Download 2 contained 94 picture media files of prepubescent children aged between infancy and around 13 involving sex acts identified within category 1 and 105 files of real pre-pubescent or early pubescent children identified as category 2. Some files were videos and reflect different duration of up to 66 minutes.

12. Some files reflect the purported age of the child. I note that the titles of some images noted in the facts are descriptive of the image and would well warn any person accessing the images that the material is likely to be child abuse material.

13. I have had regard to the fuller descriptions contained in the facts. Given the age range of the images, and that some are of girls and others of boys, there are multiple victims depicted. Some discrete images involve obvious distress or the use of restraints. That other images do not capture signs of distress does not equate with there being no physical or emotional harm.

14. Within download 2 police also located two video files involving bestiality material with images of an adult and a dog engaged in different sex acts. These images support the offence on the form 1.

15. The images of the various victims were located on a sole device. The computer was not encrypted. It was located in a shared living space. The offender downloaded the images located. There is no organisation of the images either alphabetically or by category. There is no suggestion the images were shared or for use by others. The evidence supports the images were sought for personal use and sexual gratification. There were both still images and videos. I have had regard to the number of different images, the classification, and the description of a sample.

16. Both lawyers, with reference to the guiding considerations in Minehan v R [2010] NSWCCA 140, advance a determination the offending falls ‘around the mid-range’. This terminology is not necessary, but it provides some guidance of the assessment by the lawyers. For consistency I shall adopt the same language. The offence is objectively serious and around the mid-range.

17. The offence does not assert the offender was involved other than to possess the images after downloading them. He did not engage with the victims to produce the images and he did not physically abuse any victim. His involvement fostered the insidious market for such images. Each access to images further victimises the victim and compounds the initial offending which occurred to obtain the material.

18. The offender has one offence of drink driving on his criminal history. I regard him as a person of good character but for his involvement in possessing child abuse material. The offender admitted his access and use of child abuse material was not isolated. Although his good character may be of limited influence given the nature of the offence, it still serves him favourably.

19. The offender is now aged 42. He has a positive employment record and still retains employment after being charged. His employer is aware of the charges and remains supportive. It is considered likely he will lose his position once convicted as he will not pass certification. The offender stated this position was a position he enjoyed and would have liked to continue in. The inevitability of a custodial sentence is accepted in submissions. There will therefore be a loss of employment and some expected difficulty re-entering the work force. An offence of the type for sentence will hinder his prospects.

20. The offender gave evidence on sentence. He outlined what he has gained from treatment and personal reflection subsequent to his arrest. He presented as a person who has progressed his self-improvement consequential to the devastation of his arrest.

21. The offender retains the support of his family. This includes his wife, his mother and a younger brother. Each has separately written to the court. None had any awareness of the offender’s secret offending. There is a perception the offending was uncharacteristic. Each of the referees speaks well of the offender. There is evidently a sexual deviancy that was existent yet unobserved. His wife, mother and brother all attended court to support the offender.

22. The offender and his brother both provide details of the offender being exposed to the drug use of his older brothers and bullying during school. This exposure to bullying is relied upon to explain the opinions on his low self-esteem and the link to his anxiety and depression.

23. The offender was bailed to reside with his mother. This condition would have impacted the offender and his family. He was not permitted to remain overnight in the family home but evidently was entitled to attend the home on a daily basis and to continue to participate as a member of the family. This has undoubtedly been beneficial to his wife and more so his children. It was however restrictive, and I will take this into account on sentence. The deprivation of the offender from this life will particularly impact the children, now aged 9 and 7. The sole provider of financial support will also be absent. There will be hardship occasioned to the family from the loss of the offender from the family unit. This hardship is an inevitable consequence but one warranting recognition.

24. Tendered on behalf of the offender are reports of psychologists and psychiatrists including those who have been involved in treating the offender since his arrest.

25. It is noted therein that although there were some disadvantages as a child his adult life had been unproblematic. He enjoyed a secure homelife.

26. Monis Aliferis, psychologist, commenced therapeutic treatments in September 2023. The offender was described as motivated to engage in therapy. It is recommended that therapy continue to consolidate gains and to provide strategies to address mood, anxiety, and childhood issues. Dr David Grace, psychiatrist, was similarly engaged in providing treatment from October 2023. He also noted the commitment to treatment demonstrated by the offender. He diagnosed the offender with paedophilia, major depressive disorder, social anxiety disorder and autism spectrum disorder. He prescribed medication for depression which was effective until it declined with the pending sentence and there was an increase in anxiety. I would consider this entirely likely for any person facing sentence for a serious offence. Dr Grace also reflected upon testing for resilience and opined that a long custodial sentence would adversely impact mental health. In diagnosing ASD he opined it may inform the offender’s social anxiety and low self-esteem.

27. Dr Grace referred the offender to Dr Jeremy O’Dea, psychiatrist, to attend to the assessment and management of the addiction to pornography. The first consultation was in January 2024. This treatment would continue if available. Dr O’Dea addressed the admitted long-term addiction to legal pornography which was described by the offender as ‘pushing the boundaries’. This transitioned into accessing younger post-pubescent pornography. Evidently, given the charge, it transitioned into illegal activity. This illegal activity informs the paedophilia diagnosis. The offender admitted to problematic sexual behaviours. The offender indicated the sexual gratification obtained from viewing images. Despite the large number of images of pre-pubescent children, and the limited bestiality images, the offender advanced he had no interest in either and had not viewed these images other than inadvertently.

28. Dr O’Dea opined the access commencing as a teenager with viewing legal material progressed to an addiction and a compulsion and led to the accessing of illegal material. This need to access more taboo material is said to be required to maintain the desired arousal. Dr O’Dea addressed the sexual interest in illegal images but did not opine there to be a causal connection between anxiety and depression and the offending. As part of the treatment the offender commenced abstaining from all pornography online. He referred to the possibility of more specific paedophiliac urges being detected that may warrant medication including anti-libidinal. Dr O’Dea stated there was no effective treatment available in custody and treatment would need to recommence upon release.

29. In addition to the reports from three treating professionals, a further report was obtained from Tim Watson-Munro, psychologist. He was provided with documents including the initial reports of Mr Aliferis and Dr Grace. A single AVL consultation was conducted. A considerable portion of the report contains restatements of aspects contained in the reports of the treating professionals. Mr Watson-Munro stated the offender indicated he had no sexual interest in minors. This statement is repeated uncritically. It is inconsistent with the accepted sexual interest in children aged 12 and over. There is nothing in this report that materially adds to the substance of the other reports. I note the opinion, a reiteration of that expressed elsewhere, that custody would be more onerous given the nature of the offending and the underlying psychological vulnerability.

30. The evidence suggests the offender’s childhood-informed low self-esteem and depressive disorder explained the initial interest in pornography, and that the escalation is a not unexpected trajectory. I accept the offender’s background and the pathway over 20 years of accessing more taboo pornography until the offender succumbed to paedophilic interests, explains how an otherwise law-abiding person came to offend. It serves to modestly lessen his moral culpability. This aspect does not warrant any adjustment to the role of specific or general deterrence.

31. General deterrence is a paramount sentencing consideration in offences of child abuse material. These offences are committed in private and difficult to detect. Such offences are increasingly prevalent.

32. The offender had no or limited insight into his offending. He accepted he was aware the offending was illegal but did not perceive the severity of his conduct or the harm he was occasioning. That insight was obtained after his arrest. He now has a fuller understanding and with that awareness has expressed remorse. He has expressed this remorse to others and those hearsay expressions are conveyed in tendered documents. He also has written to the court in which he directly expresses his remorse. He gave evidence of his remorse. I accept his remorse to be genuine.

33. The offender, with treatment, has ceased access to all pornography given the likely connection to his offending. His libido has decreased due to a side effect of medication for depression. His achievements are significant given the regularity of his viewing of sexual material accompanied with masturbation.

34. Prospects of rehabilitation and likelihood of reoffending are difficult to gauge. I am cognisant of the assessment that the offender is low risk in the Sentencing Assessment Report. He has a long-standing interest in under-age children, even on his suggested interest in children aged as young as 12. Considerable re-wiring is required. The offender is diagnosed as a paedophile. This is difficult to treat. However, the offender has embarked upon a pathway of treatment and the prognosis advanced by the experts of his prospects are favourable. Further offence specific treatment is available via custodial programs addressing the causative factors for this type of offence. Continued participation in treatment will only enhance his prospects. It is hoped the desire to maintain his relationship with his wife and children will provide the required incentive to not reoffend. The two days on remand provided an insight into custody. He had sought to address his criminogenic factors. The preparedness to continue treatment bodes well. I consider he has reasonable prospects of rehabilitation and of not re-offending.

35. I have had regard to the sentencing principles which guide consideration of offences of possessing child abuse material.

36. It is conceded on behalf of the offender that a full-time custodial sentence is required. This was an appropriate concession.

37. It was submitted the opinion of Mr Watson-Munro that the offender’s depressive disorder would make custody more difficult. I make a finding of special circumstances based upon the anticipated conditions in custody, hardship to family, this being the first custodial sentence, the need for support upon reintegration into the community and in maintaining treatment.

38. The offender has served two days of pre-sentence custody. I propose to back date the sentence to reflect this period of detention.

39. The offender is convicted. For the offence of possessing child abuse material, taking into account the further offence of possession of bestiality material on the Form 1, the sentence imposed is one of imprisonment for 2 years and 4 months with a non-parole period of 1 year and 2 months to date from 8 October 2024. Release to parole arises on 7 December 2025. This is a variation to the statutory ratio to 50% to reflect my finding of special circumstances. No lesser sentence is warranted.

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Decision last updated: 14 October 2024