R v Barnes

[2022] NSWDC 397

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Barnes [2022] NSWDC 397

Hearing dates:

29 August 2022

Date of orders:

7 September 2022

Decision date:

07 September 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [39]

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child abuse material

CRIME — Child sex offences — Child abuse material — Dissemination/Possession 

Legislation Cited:

Commonwealth Criminal Code Act 1995 (Cth)

Crimes Act 1999 (NSW) 

Cases Cited:

Minehan [2010] NSWCCA 140

Totaan v R [2022] NSWCCA 7

Gordon [2009] QCA 209

Cook [2018] TASCCA 20

Cardwell [2021] QCA 112

Category:

Sentence

Parties:

Regina (Crown)
Barnes (Offender)

Representation:

Healy Solicitor for the Commonwealth Director of Public Prosecutions

Davies Counsel for the offender

Johnston Solicitor Instructing Counsel for the Offender - Northern Rivers Law

File Number(s):

2021/00141162

Publication restriction:

Unrestricted

Reasons on Sentence

1. Phillip James Barnes (“the offender”) appears for sentence for 2 contraventions of the Commonwealth Criminal Code (“CCC”), being:
   1. Soliciting child abuse material using a carriage service in contravention of section 474.22 (1) which has a maximum penalty of 15 years imprisonment; and
   2. Possessing child abuse material in the form of data held in a computer or data storage device and using a carriage service to obtain or access the material in contravention of section 474.22A(1) which has a maximum penalty of 15 years imprisonment.
2. Additionally there is a matter to take into account pursuant to section 16BA of the Crimes Act (Cth) (“CCA”), being a contravention of section 474.27A(1) of transmitting indecent material to someone the offender believes to be under 16 where the offender is over the age of 18. The maximum sentence for this offence is 10 years imprisonment.  In respect of this offence it is to be taken into account when sentencing for the section 474.22(1) offence so that the penalty may be increased for the principal offence by giving greater weight to the need for personal deterrence and the community’s entitlement to extract retribution, whilst ensuring that the sentence remains proportional.
3. I note the maximum sentences referred to above and take them into account as legislative guideposts indicating the seriousness with which the offending is viewed by the legislature to assist in determining the appropriate sentence.
4. The offender was born on 31 August 1956 so is now 66 years old. He was arrested on 19 May 2021 and spent 42 days in custody.  The offender was not on conditional liberty at the time of the offending.

The facts

5. In respect of the first count of soliciting child abuse material the offender between 15 April and 19 April 2021 engaged in online chats with an assumed online identity represented to be a 13-year-old girl. The first chat is about 4:30 PM on 15 April.  The last chat is on 19 April.  Annexure A to the facts sets out what those chats were. The offender requested that the online identity send him a nude photograph. On 17 April he asked to see a photograph of the online identity in her panties and later on 18 April asked if she would show him her “pussy” and later again to see her undies and later again on 19 April to see her without her clothes on. 
6. The offence to be considered in accordance with section 16BA is made out by the fact the offender transmitted a nude photograph of himself to the online identity. It was a photograph of his penis.
7. The offender was arrested on 19 May 2021. He gave police access to his mobile phone.  It contained three images of child abuse material in his photo gallery which he said were from an online chat website. The offender also provided access to an encrypted application on his phone and within that application were 38 images, 14 of them duplicated, so that there were 24 images that were unique. The court was provided with copies of the material. They are categorised on the more recent 2 category baseline scale as category one though that is not to indicate that the images are of less depravity than category two.  In the annexure to the Crown material category one is described as sexual material involving prepubescent children. Category two includes sexual material involving post-pubescent children and material involving physical abuse and torture of any child. The material on the offender’s phone shows prepubescent children lying back with their legs spread, a female child holding a male child’s penis and two images where an adult penis is either penetrating or in very close proximity to the point of touching a child's vagina and another of an erect penis poised next to a child's vagina
8. Objective seriousness will be considered below but it should be noted at the outset that the offender said in evidence that he initially thought these were snaps of his grandchild or grandchildren. That is simply an absurd proposition.  The offender also maintained he did not know how the imagery got onto his phone and seemed to be suggesting that it was either a total mystery to him or that somehow due to his use of various websites the material had automatically downloaded onto his phone. It may well be that some websites can interact with a phone that way though one would think it likely that it needs some kind of act to put it on a setting to that effect.  Furthermore 38 of these images were found in the encrypted application which makes the rather generous interpretation just put forward less helpful to the offender.  I am satisfied beyond reasonable doubt that the imagery is on his phone because he caused or permitted it to be there.  That the offender denies the obvious is a real concern in terms of his prospects of rehabilitation and his acknowledgement of wrongdoing and his insight.
9. In respect of objective seriousness the court was referred to Minehan [2010] NSWCCA 140. In this case there were actual children used. My view of this imagery is it is very disturbing. It is not the most depraved material in that it does not show graphic acts of sexual intercourse beyond the borderline instances referred to above of adults with children but the imagery goes will beyond simple sexual posing to sexual interaction between actual children and also children and adults and also of children in at least one image holding open her vagina. There is no overt cruelty on display. The number of images for this type of offending is small. There is no suggestion of the offender having disseminated this material to others or of being part of a group beyond seemingly having access to it from somewhere; it could not be said that he was part of a group circulating the imagery. There was little risk of any other person being exposed to the material.
10. Thus whilst the imagery is disturbing overall when the factors relevant to be considered are taken into account I would assess the matter as being in the low range of objective seriousness.
11. I consider the soliciting count also to be in the low range but by no means at the lowest level.  Contrary to the offender’s assertion it persisted over four days, not one, and so cannot be said to have been some kind of impulsive urge. At the same time the level of conversation is fairly mild. In sentencing for this matter I take into account that he then also forwarded a picture of his penis to the online identity.

Subjective case

12. The offender relied on a total of four psychological reports. Two of them addressed the situation of his son Ryan. The other two had the offender as their subject. In respect of the offender the history given to the psychologist Mr Sheehan was of a conventional childhood in a family of five siblings. The family was intact and there were no issues of abuse or other disadvantage. He left school at school certificate level and entered the workforce. He had a lengthy marriage and with his wife raised a number of children.
13. The offender was subject to a number of setbacks from about 2015. At about that time he was made redundant at the age of 60. Shortly after his wife went to spend time to care for her father in Victoria meaning a separation for some time though the marriage continued. Then in 2018 his son Ryan suffered a significant head injury requiring significant care which has been mostly provided by the offender. The offender’s wife left permanently after that injury. It is these factors that preceded a worsening of mood for the offender and indeed there was an attempted overdose on endone in this period. The offender’s mother died in 2021.
14. Mr Sheehan considers that the offender presents as clinically depressed and met the criteria for a major depressive disorder and that he needed a mental health care plan. There was also an issue of excessive intake of alcohol.
15. Significantly for the present offending the view was expressed that there was no paedophilic disorder due to the short period of offending and no other evidence of fixed deviant interest. In addressing his offending the offender said that he was depressed, lonely and bored and said it was just fantasy. He did say that he acknowledged that it was exploitative of children and he acknowledged that he had the child abuse material on his phone but denied seeking it or viewing it saying it was sent to him by others.
16. Mr Sheehan states that there is a risk of further emotional collapse if there is a further custodial sentence. He assesses the risk of reoffending as in the average range.
17. In the short supplementary report an additional comment was made that there had been a disclosure of abuse of the offender’s sons by a family member which had added to his low mood. It was also noted that he was now seeing a psychologist.
18. There were 2 reports from a Dr Leening, addressing the situation of the son Ryan. As noted above in 2018 Ryan suffered a significant head injury. There were reports that Ryan had threatened suicide if his father could not care for him though Ryan denied that to the doctor. Ryan is able to cook and drive a car on a good day. He receives few visitors and considers the NDIS to be “bullshit”.
19. At the time his father was in custody he managed but had the benefit of the assistance of a friend which cannot be counted on into the future.  Ryan could not identify someone to fulfil that role if his father again went into custody. There is a risk that Ryan may suffer seizures. In terms of what might occur if the father was placed into custody Ryan could either embrace the NDIS which he has failed to do to date or seek the help of another friend. However no other friend can be identified and according to the doctor seeking the involvement of NDIS will not be an immediate solution.  The evidence is very sparse on this point; the suggestion plainly is that it would take time.
20. Ryan is significantly affected by his head injury. The injury was suffered as a result of a king hit incident where he suffered cranial fractures, a subfalcine hematoma and developed a seizure disorder and has since been diagnosed with depression and a pain condition.  He has speech difficulties and has less executive function. He has low self-esteem, anger issues and suffers from a lack of purpose. He is dependent on support. He may be able to cope for a few days but his moods are such that he cannot maintain himself independently.
21. There is a concern that if the father is jailed there will be a moderate risk of self-harm. Dr Leening does not have confidence that if left alone and unsupported that Ryan would find life worth living. In an addendum to this report on the issue of self-harm the point was made that the risk is more from a passive lack of self-care rather than an active event of self-harm.
22. The offender also relied on a letter from Bruce Peterson a psychologist who is presumably the psychologist being referred to by Dr Sheehan. That letter is dated 26 April 2022 and confirms that the offender is seeing Mr Peterson. How often that occurred is not stated nor is it stated whether it is ongoing. Notably it is dealing with his depression without reference in the letter to his offending.
23. A sentencing assessment report was also prepared. The main point from that report is the apparent attempt on the part of the offender to minimise his offending. He referred to it as role-playing or fantasy. He did admit it turned sexual. He maintained it all occurred on the one day which is false. He did say he felt disgusted with himself and wanted to kill himself and said he should be dead. Those comments reflect to me that he does have a genuine sense of remorse and regret and some understanding of his wrongdoing. I take that into account in his favour. At the same time however it cannot be ignored that he made a suggestion that the photos were of his children which is the subject of comment above and he also denied knowing where they may have come from. This evidence is plainly very conflicting.
24. The sentencing assessment report assessed the offender as a medium risk of reoffending and set out a supervision plan. There was also a structured case note though with respect that added little information.
25. At the sentencing hearing the offender gave evidence. He adopted as true the matters set out in the psychological reports. He said that he was ashamed of his conduct and disgusted with what he had done and had embarrassed his family and wasted the court’s time. He said there was no intention to meet the person he was online with. He maintained his position that he did not know where the images came from in what I consider to be an unsatisfactory way with references to it possibly having something to do with an attendance at Optus. I reject that as the explanation. He gave evidence of having had suicidal thoughts but did not take any steps because of Ryan. He has other health issues not mentioned in the reports in particular upcoming cataract surgery. He confirmed the factual matters concerning him in the report concerning Ryan, that is that he does care for him.
26. There is no issue as to the offender being entitled to a 25% discount on his sentence for his plea of guilty.
27. The offender does have a criminal history but in my view it is one that does not deny him leniency. That is because prior to this offending the offender last offended in 1991 some 30 years before. In other words for those 30 years on the evidence he has been a pro social working man raising a family. He did also offend in April 2021 in relation to firearms offences. He was charged with those offences on the same day of his arrest for these offences. In respect of those matters they were dealt with by way of a conviction with no other penalty and two fines. The nature of those penalties suggest that the offending was not terribly serious and does not change the way his criminal history should be viewed.

Sentencing Considerations

28. The written submissions of the Crown helpfully address the factors that are relevant of section 16A CCA.  It is of course necessary that the punishment be adequate. A significant matter to address is to ensure the protection of children for it is only due to people such as the offender that there is a market for the abuse of children reflected in the facts of this case. It is necessary for there to be a sentence reflecting deterrence both general and specific. Matters of remorse and contrition are relevant to take into account. In that regard I have noted the conflicting evidence above. I am not at all satisfied that the offender truly appreciates the gravity of his conduct or has any concept of the damage it causes. There is on one level with the offender an appreciation of wrongdoing though that might be born perhaps of the fact that he knows he should not have done what he did having been caught without having a more thorough understanding of the damage it can cause.
29. There are other matters however that assist the offender. Firstly the flipside of that last remark is that there is some recognition of wrongdoing. There is also the fact that he has the benefit of a 25% discount on sentence due to his plea of guilty. On arrest he did cooperate with police and provided his phone and access to the encrypted application. His character and antecedents assist him. There is also a need to promote rehabilitation.
30. A significant matter relied upon by the offender is section 16A(2)(p) which provides that account may be taken of the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents. Contrary to the common law it has recently been held that this section does not require there to be exceptional hardship before this factor has any role to play; see Totaan v R [2022] NSWCCA 7. In this case there is significant evidence of a perhaps fatal effect of a custodial order upon the offender’s son Ryan though that is taking the possibility to its most extreme. It is certainly established on the evidence that there will be significant hardship placed on Ryan who is in need of care if his father is not available to provide care and there would also be additional mental strain on the offender through concern for Ryan. I note also that given the offender’s age and health, and also due to the Covid pandemic, a period of custody would be more onerous for the offender than might be expected otherwise.
31. In my view is not necessary to determine just how far reaching this subsection (p) is; that is, if the offending was far more serious than this current matter could it still result in a non-custodial sentence? The view I take is that it is just one of a range of matters to take into account, without the hardship or effect having to be exceptional. 
32. There was no argument that a term of imprisonment should be imposed.  Nor was any argument put that an ICO could be imposed.  I accept that there needs to be a term of imprisonment for both offenses.
33. In considering the appropriate sentences, the Crown accepted that comparable sentences could be of assistance but did not cite any. The offender relied on a document which was marked aide memoir 1 which showed a sentence of 12 months for possessing over 3000 images followed by recognisance for three years (Gordon [2009] QCA 209); an aggregate sentence for offenses of soliciting child pornography, transmitting child pornography, transmitting to a person under 16 and possessing child pornography of 15 months to be released to recognisance after 10 months. The numbers of images involved there was approximately 400; see Cook [2018] TASCCA 20. In that case the soliciting took place over four years compared to the current case of four days. In the case of Cardwell [2021] QCA 112 there were 2 charges of accessing child pornography and possessing child exploitation material where there was more than 520 images. For the 2 charges of accessing pornography there was a 12 month sentence with immediate release no a release recognisance order, and for the possession charge there was a 15 month sentence suspended after three months for 2 years.
34. The current case is far less serious than the few examples just cited. It is of course a truism that much care must be taken in seeking guidance from comparable cases.
35. In my view there should be a six-month term of imprisonment in respect of the soliciting charge taking into account the transmission matter under section 16 BA and in respect of the possession charge also a six-month sentence.  I consider there should be some concurrency as the offending appears to have occurred as the one course of conduct or at least contemporaneous to a certain degree.  The aggregate sentence should be 9 months.  
36. I note from the examples just sighted that the release to recognisance can be for a period in excess of the term of imprisonment somewhat akin to a suspended sentence. The relevant legislative provisions are in section 19AC and s20(1)(b) of the CCA.
37. I note that the offender has already served 42 days in custody.   In my view there should be an aggregate sentence of nine months imprisonment to date from 27 July 2022,  with the offender to be released upon conditions set out below after having served 42 days of that term of imprisonment with the effect that the offender would be released today and not need to be returned to custody.  This outcome is supported by the evidence of Dr Sheehan of the offender not suffering any pedophilic condition, and having no fixed deviant traits.  It bests deals with the various purposes of sentencing identified above, in particular deterrence and rehabilitation.  It also takes into account the possibly life-threatening effect that a term of custody may have upon the offender’s son Ryan.

28. The conditions are:
    1. That the offender be of good behaviour for a period of two years commencing 7 September 2022 and ending 6 September 2024;
    2. Be subject to the supervision of a parole officer appointed in accordance with the order;
    3. Obey all reasonable directions of the probation officer;
    4. That the offender will not travel interstate or overseas without the written permission of the probation officer;
    5. Undertake counselling to address his mental health issues and also to address the offenders offending behaviour and his inability to fully acknowledge his responsibility therefore as identified in the above reasons.

ORDERS

1. The offender is convicted in respect of the offences under s474.22(1) and 474.22A(1) CCC.

2. The offender is sentenced to an aggregate term of imprisonment of 9 months to commence on 28 July 2022 and expiring on 27 April 2023. Execution of the sentence is partially suspended after serving a period of 42 days, pursuant to section 20(1)(b) of the Commonwealth Crimes Act 1914 upon the condition that the offender enter into a recognizance self in the sum of $500.00 without security and to comply with the following conditions:

   (a) that the offender is to be of good behaviour for a period of 2 years to date from 7 September 2022

   (b) that the offender is to comply with the following further conditions:

   - Be subject to the supervision of a Probation officer appointed in accordance with the order;
   - Obey all reasonable directions of the Probation officer;
   - The offender will not travel interstate or overseas without the written permission of the probation officer;
   - The offender is to undertake counselling to address his mental health issues and also to address the offender's offending behaviour and his inability to fully acknowledge his responsibility therefore as identified in the reasons on sentence.
    

3.  I direct that a copy of the report of Dr Sheehan be provided to the probation authorities.

4. Direct that the material provided by the Crown to be viewed by the Court be destroyed.

Amendments

08 September 2022 - Amendment to the Representation details

Decision last updated: 08 September 2022