R v Bentley

[2024] NSWDC 266

District Court

New South Wales

Medium Neutral Citation:

R v Bentley [2024] NSWDC 266

Hearing dates:

16 April 2024

Decision date:

02 May 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted of each offence.

25% discount to apply in each case.

Sentenced as follows to a total term of imprisonment of 7 years which is to commence on 22 September 2021 and to expire on 21 September 2028, comprising a total non-parole period of 4 years and 8 months expiring on 21 May 2026, on which date he will become eligible for parole, and a parole period/balance of term of 2 years and 4 months.

SEQ 2: 9 months’ imprisonment from 22 September 2021 - 21 June 2022

SEQ 3: 3 years’ imprisonment from 22 December 2021 - 21 December 2024

SEQ 8: 3 years’ imprisonment from 22 June 2022 - 21 June 2025

SEQ 9: 3 years & 9 months’ imprisonment from 22 December 2022 to 21 September 2026.

SEQ 13: 5 years & 3 months’ imprisonment from 22 June 2023 to 21 September 2028.

I make the forfeiture order as per the SMO d 2 May 2024.

Catchwords:

CRIMINAL– sentence - use carriage service to access child abuse material (x3) - possess or control child abuse material obtained using a carriage service(x2) –seriousness of offences- some material “of the highest degree of offensiveness and depravity” – effect of s16AAB re aggregation of sentences- applicable mandatory minimum term for 3 offences due to previous relevant convictions – subjective matters

Legislation Cited:

Child Protection (Offender Registration) Act 2000

Crimes Act 1900 (NSW)

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act 1995

Cases Cited:

DPP (CBH) v Beattie [2017] NSWCCA 303

Patel v The Queen [2022] NSWCCA 93,

Pearce v The Queen [1998] HCA 57

R v Delzotto [2022] NSWCCA 117

R v Bentley (District Court (NSW) Toner J, 1 March 2017, unrep)

Category:

Sentence

Parties:

Regina
Bentley, Bruce

Representation:

Counsel:
Crown: Mr K Ng, CDPP
Defence: Mr J McKenzie
Solicitors:
Crown: Mr S Shah, CDPP
Defence: Mr T Scott, Scott Murrell Lawyers

File Number(s):

2021/00017283

JUDGMENT

1. Bruce Bentley appears for sentence in respect of five offences. The first two of those, which I will simply refer to as Sequences 2 and 3, are each offences contrary to s 474.22(1) of the Criminal Code (Cth).Sequence 2 is use carriage service to access child abuse material on 3 June 2020, and Sequence 3 is use carriage service to access child abuse material between 23 and 25 June 2020. In relation to each of those offences the maximum penalty provided is imprisonment for 15 years.

2. Sequence 3 is however affected by the institution of legislation creating s 16AAB(2) of the Crimes Act1914 which provides for a mandatory minimum period of four years’ imprisonment. That does not apply to Sequence 2 because it occurred prior to the introduction of that particular section.

3. The further three offences are Sequences 8, 9 and 13. The first [Sequence 8] is contrary to s 22(1) of the Criminal Code, use carriage service to access child abuse material; the maximum is 15 years. The second [Sequence 9] is contrary to s 474.22A(1) of the Criminal Code, possess or control child abuse material obtained using a carriage service, and the third, [Sequence 13] or the fifth of the total number of offences, is again s 474.22A(1).

4. In relation to each of those three offences, Sequences 8, 9 and 13, the maximum penalty is the same, that is 15 years’ imprisonment and there is in each case an applicable mandatory minimum term of four years’ imprisonment arising from the fact that the offender has previous offences of a relevant nature.

5. He was arrested on 22 September 2021 in respect of the offences I have referred to as Sequences 8, 9 and 13. He was committed for sentence on 23 February 2023 at the Orange Local Court. Although that is a significant delay between arrest and entering a plea, I will regard it as being entered at the first reasonable and earliest opportunity. No doubt the preparation of the brief had a reasonable amount of delay in considering the number of charges and the need for various devices to be examined before charges could be resolved and a proper brief provided.

6. I accept that he is entitled to a discount for the early plea, assisting the course of justice by such an early plea. I will provide a discount in respect of each of the offences of 25%.

Executive Summary

7. The facts are as follows, first of all, in respect of Sequences 2 and 3: ^[1]

   1. 2021/00017283 R v Bruce Alexander Bentley Facts Sheet in re Sequences 2 and 3 cited and summarised [7]-[24] above, with comment.

8. This matter involves the following charges against Mr Bruce Bentley.

1. Sequence 2 - use carriage service to access child abuse material on about 3 June 2020 - relates to one instance of access recorded on a laptop belonging to the Accused, and

2. Sequence 3 - use carriage service to access child abuse material from about 23 June 2020 to 25 June 2020 - relating to 15 instances of access recorded on a hard drive belonging to the Accused.

9. All child abuse material located was categorised by police as Category 2 on the Interpol Baseline Scale. Category 2 relates to children under the age of 17 engaged in sexual activity and includes written or animated child exploitation material.

10. The accused’s devices were seized from his residence during an inspection pursuant to s 16C of the Child Protection (Offender Registration) Act 2000, as the accused is a registered person under that Act.

Background

11. The accused is a registered person as defined in the Act as a result of offences committed in 2017.

12. At about 2pm on 25 June 2020 police attended his residence in Matthew Flinders Drive, Port Macquarie, to conduct an inspection as authorised under s 16C of the Act.

13. The accused gave both verbal and written consent for police to examine his electronic devices.

14. During the course of the examination, child abuse material was identified on two of the accused’s devices.

• One X Weston branded digital 1 terabyte hard drive which was plugged into the accused’s desktop computer.

• One X black Lenovo branded laptop which displayed the accused’s name on opening.

15. The accused:

• Confirmed the devices were his.

• Used the devices.

• Consented to the police seizing them.

• Provided his PINs to the police for access, and

• Directed the police to the location of downloaded files on the hard drive.

16. The two devices were seized and subject to digital forensic Sequence examination.

Offences

Sequence 2 - Lenovo Laptop

17. Digital forensic analysis of the accused’s Lenovo laptop identified that the accused had accessed child abuse material on 3 June 2020. It is described in the schedule as being a video of a prepubescent child, naked, playing on a pool toy. The video focussed on the buttocks/anus of the child and was some 19 seconds in length.

Sequence 3 - 1 Terabyte Hard Drive

18. The accused accessed child abuse material between 23 and 25 June 2020 using Google search engine and Google Chrome as follows: the facts then set out a schedule which I will not repeat in detail, but it includes some 15 individual accesses at various times on 23, 24 and 25 June. These included variously on those days: photographs of pre-pubescent female children squatting with legs apart exposing their genitalia, or naked, sitting on a bed with legs apart, again exposing their genitalia, or a female child playing with water, breasts and genitals exposed, pre-pubescent child or children standing naked, exposing their breasts or genitals, photograph of a pre-pubescent female child naked in the shower, pre-pubescent children bent over with their bottoms exposed, the image focusing on their bottoms. A female child asleep on the bed with legs apart exposing her genitals, a pre-pubescent male child, naked, standing on the thighs of a naked adult male, photographs of pre-pubescent female child squatting with legs apart exposing her genitalia, and a pre-pubescent child photographed from behind, wearing a life jacket, with buttocks exposed. There is a discrete description for each of the fifteen exposures, but I have only referred to some of those.

Record of Conversation with Police

19. At the time of the inspection the accused was questioned about photos of naked children located on the Lenovo laptop. Not all the images were classified as child abuse material.

20. One of the images was a photograph of a pre-pubescent male, naked, with his penis exposed, holding a child’s toy. The offender informed police that he did not know the child and could not remember where he was from, and he did not know if he had other images and that he “collect[s] lots of things” and “save[s] lots of things”.

21. When queried about another image of a naked male and female children sitting on a grassed area eating ice cream, he advised;

• “I am a nudist; a naturalist and I have lots of types of different types of pictures, but I don’t look at anything illegal.”

• That he had obtained the photograph from Flickr or a similar website around 10 minutes prior.

• That he has not searched for pictures of this type in particular. He selects them while browsing.

• That he had other similar photos on his computer that he had downloaded recently, being “nudist photos, they’re family photos”.

• He did not know any of the children in the images.

• He agreed that the penis and genitals of one small child were clearly visible and

• That recently downloaded images such as this one would be in the downloads folder of his hard drive to which he directed police.

22. The accused advised police that “I have been nudist ever since I have lived in a nudist colony, and I just collect lots of things”.

Other Material Located on the Accused’s Devices

23. At about 8.28pm on 30 April 2020, the words “flat chest hentai anal” were typed in the Google search engine. The associated URL for this search displayed Japanese-style cartoon images depicting female children in sexual poses or engaging in penile/anal intercourse with adult men and female children participating in self-manipulated anal penetration with objects. A further search was also conducted for “flat chest hentai, uncensored”.

24. Other search terms located in the internet browser history of the accused’s hard drive included a number in foreign languages. I will simply refer to the English translation of the search:

• The German to English translation, “the body of the child”.

• Pre-puberty erection - that search goes to images of children’s anatomy, genitalia and medical information about the medical examination of children.

• Chinese medical paediatric massage, which provides information on treatment of children with Chinese medicine techniques and massage.

• German to English, “young and free children”. This search goes to images depicting children semi-clothed.

• German to English translation, “bathroom little girls jungle”. This search goes to images of pre-pubescent children in the bath.

• Slovak to English translation, “vacation with children”.

• Slovak to English translation, “children in the pool”.

• “Pediatric Tuina” – this search went to paediatric massage in traditional Chinese medicine.

• Slovak to English translation “saunas with children”.

• Slovenian to English “in the pool”.

• Spanish to English, “naked on the beach”.

• Slovak to English, “children in the sea”.

• “Index of puberty sexual education for boys and girls”. This search went to images and diagrams of children’s genitalia and medical information about the examination of children.

• “Girl crochet bikini”, “girl crochet panties”.

• Slovak to English, “naked children”,

• “Toddler girls” and “Silicone babies for free”.

• Slovak to English, “childishly”. The search went to images of children playing in the pool.

• “Vicki’s Swim Centre”. That search was done via Facebook at 9.31pm on 8 June 2020. Vicki’s Swim Centre is a swim centre in Port Macquarie that runs predominantly learn-to-swim classes for children.

25. A separate set of facts has been provided for Sequences 8, 9 and 13. ^[2]

    2. -2021/00017283 R v Bruce Alexander Bentley Statement of Agreed Facts in re Sequences 8, 9, & 13 (unsigned) [26]-[69] above, with comment.

Executive Summary

26. Sequence 8 relates to the offender accessing 132 files of child abuse material on his Hewlett-Packard ProDesk Tower between 2 and 6 September 2021.

27. Sequence 9 is a rolled-up sequence relating to the offender possessing child abuse material across multiple devices on 6, 13 and 22 September 2021, which are then set out in the schedule which refers to a Hewlett Packard ProDesk Tower with 132 child abuse material files, 18 assorted hard drives with 100 such files, a Samsung mobile with one such file, and a USB disc drive with one such file, giving a total of 234 files.

28. Sequence 13 is a rolled-up sequence relating to the offender possessing child abuse material on eight separate storage devices between 6 September 2021 and 4 November 2021 as follows: a Verbatim 128 gigabyte Micro SD and a USB adaptor, 398 child abuse files; a pink Verbatim USB, 57 such files; a green Toshiba 32 gigabyte USB, 83 such files; a red Toshiba 16 gigabyte USB, 250 such files, a Samsung 64 gigabyte Micro SD and a SD card adaptor, 61 such files; a Taiwanese 2 gigabyte Micro SD, 57 such files; a Toshiba 32 gigabyte Micro SD, 86 such files; and a Samsung 2 gigabyte Micro SD, 61 such files, giving a total of 1,053 child abuse files stored across the eight separate devices.

29. Each of the above offences attracts a mandatory minimum penalty because the offender had been previously convicted of child sexual abuse offences.

Sequence 8, Access Child Abuse Material

30. On 6 September 2021, police attended the offender’s residence in Matthew Flinders Drive, Port Macquarie, to serve a document upon the offender.

31. In the course of preparing to leave the premises, the offender attempted to unplug a Hewlett Packard Pro desktop computer to take with him.

32. The lawful occupier of the residence, the wife of the offender, Vera Bentley, gave police consent to review the contents of the Hewlett Packard Pro computer at the location. Police reviewed the internet browser history and located numerous tabs open on the top of the screen. Two of the open tabs showed images of naked prepubescent female children with genitals clearly exposed, amounting to child sexual abuse material. The computer was seized.

33. Subsequent examination of the desktop computer showed that between 2 and 6 September 2021, the offender had accessed and downloaded 132 child abuse material images to that device.

34. The following search terms were identified on the device, “Badezinner kleine madclen jungle”, which translates to “bathroom little girl/boy”, and a further search term which translates to “kids’ vacation”.

Sequence 9, Possess Child Abuse Material

35. Sequence 9 is a rolled-up sequence relating to 234 files of child abuse material on a number of devices, being:

• A Hewlett Packard Pro Desk Tower.

• 18 assorted hard drives.

• Samsung mobile.

• USB disk drive.

36. The facts refer to some samples of the 132 child abuse material images and videos accessed at various times on 6 September 2021 and 5 September 2021. Five separate accesses are stated in the schedule. The accesses were via Google Chrome web browser. The images were downloaded and had been saved in a folder on the Hewlett Packard ProDesk Tower. This included an image of a prepubescent child sitting with legs apart exposing genitals, wearing underwear, an image of a prepubescent child squatting, exposing genitals, image of a prepubescent female child bending over in water, genitals exposed, image of a prepubescent female child sitting on a potty, genitals exposed, image of a prepubescent female child, genitals exposed, and lastly a 32 second video of three prepubescent children, naked, being hosed with water.

Hewlett Packard ProDesk Tower

37. As outlined above, on 6 September 2021 police seized the Hewlett Packard ProDesk Tower from the offender. The offender possessed 132 images comprising child abuse material on that device (being the same files the subject of Sequence 8).

18 Assorted Hard Drives

38. On 6 September 2021, while at the offender’s premises, the police also seized 18 assorted hard drives from a small bookshelf belonging to the offender. These hard drives contained a minimum of 100 files comprising child abuse material.

Samsung Mobile

39. On 13 September 2021 police executed a search warrant on a room at the Excelsior Motor Inn in Port Macquarie, being used by the offender as temporary accommodation. His mobile Samsung phone was seized from the dining table of that room. Located on the phone was one image of child abuse material: the image is described as being of the anus of a prepubescent male being penetrated by a male penis. The male penetrating the child is also holding the penis of the child between two fingers.

USB Disc Drive

40. At about 10.20am on 22 September 2021 police arrested the offender in a room at the Ramada Resort, Coffs Harbour.

41. At the time of his arrest, the offender attempted to hide a USB storage device under a chip packet. The storage device was seized, and it contained one image of child abuse material. The image was of a young prepubescent male with no pants on and his penis exposed and visible.

Sequence 13

42. Sequence 13 is a rolled-up offence relating to 1,053 files of child abuse material located on eight devices in a fake camera lens cup as follows:

43. There is a schedule which breaks up the matters between videos comprising child abuse material, total images comprising child abuse material and total child abuse material files on the device.

44. The eight devices were a Verbatim 128 GB MicroSD in a USB adaptor, a pink Verbatim USB, a green Toshiba 32 gigabyte USB, a 16 gigabyte USB, a Samsung 64BG Micro-SD in an SD card adaptor, a Taiwanese 2 gigabyte MicroSD, a Toshiba 32 gigabyte MicroSD, a Samsung 2 gigabyte MicroSD.

45. Although the schedule gives a breakdown for the individual devices, the number of files under the various headings, the end result is a total of 1,253 videos with a total of 409 videos comprising child abuse material. There was a total of 29,924 images with a total of images comprising child abuse material of 644, giving a total of 1,053 child abuse material files on the devices.

46. On 4 November 2021 the offender’s wife, Vera Bentley, and her support person attended Port Macquarie Police Station and provided a fake camera lens to the police. Inside the fake camera lens were a number of USB and DS cards. Vera Bentley had purchased the fake camera lens cup online about a year before as a present for the offender. The support worker located the fake camera lens cup with various USBs inside - when assisting Vera Bentley to clean out the house in Flinders Drive, Port Macquarie, she had located it in a camera bag in a room occupied by the offender.

47. Police inspected the fake camera lens and located inside the top of the lid two Nano SD cards taped to the lid. Within the main portion of the lens was an amount of bubble wrap. Inside the bubble wrap were four flash drives and two MicroSD cards and a roll of coins that had been taped in a roll to create weight to make the lens feel like it was a real camera lens. The devices each contained child abuse material as outlined below.

48. On 24 January 2021 two similar looking fake camera lens cups were delivered by post to Matthew Drive, Port Macquarie, addressed to the offender. There were devices within those cups.

Verbatim 128 Gigabyte Micro SD and USB Adaptor

49. This device contained a total of 165 child abuse image files and 233 child abuse video files.

50. The images and videos depicted real prepubescent children and in some cases babies and infants, being penetrated anally, orally and/or vaginally by an adult penis. Numerous images also depicted were torture, restraining, bondage and gagging of naked infants and prepubescent children.

51. The video files included the violent vaginal and anal penetration of babies, infants and prepubescent children by an adult male penis. Several of these videos had audio and the recorded children could be heard crying and screaming in pain while being sexually assaulted.

49. [This is material of the highest degree of offensiveness and depravity. That statement is not part of the agreed facts.]

Pink Verbatim USB

53. This device contained ten child abuse image files and 47 child abuse video files.

Green Toshiba 32 Gigabyte USB

54. This device contained 83 child abuse video files.

Red Toshiba 16 Gigabyte USB

55. This device contained 236 child abuse image files and 14 child abuse video files.

56. The images and videos in this folder depicted the violent sexual assault of babies, infants and children as well as acts of bestiality with dogs and cats, penetrating and licking the genitals of children and babies.

57. [Again, material of the highest degree of offensiveness and depravity, that statement not being part of the agreed facts.]

Samsung 64 Gigabyte Micro SD in Card Adaptor

58. This device contained a total of 5,067 images. 100 images were reviewed and of those, 51 comprised child abuse material.

59. [I note as only 100 were examined and 51 comprised child abuse material I cannot assume that any of the files which were not examined contained such material, even though it would seem on average that they are likely to, but they have not been examined and that information is not before me.]

60. This device contained a total of 890 videos. Ten videos only were reviewed and found to comprise child abuse material. Some included children performing oral sex on adult men, adult men vaginally penetrating young female children.

61. [I repeat the comment I made in relation to 5,067 images: where only ten have been examined I cannot assume that the remaining 880 contained like material even though it appears to be highly likely.]

Taiwanese 2 Gigabyte Micro SD

62. This device contained a total of 375 images. 100 images only were reviewed and of these 49 images comprised child abuse material. This device contained 11 videos, eight of these videos comprised of child abuse material.

63. [I make the same comment as I have made in relation to each of the last two items about only having information before me about the images actually examined.]

Toshiba 32 Gigabyte Micro SD

64. This device contained a total of 24,064 images. 100 images only were reviewed and 76 of these images were found to comprise child abuse material.

65. The device contained 277 videos. Ten videos only were reviewed, and all comprised child abuse material.

66. [Again, I cannot assume that any of the unexamined files contained such material.]

Samsung 2 Gigabyte Micro SD

67. This device contained a total of 418 images. Again only 100 images were reviewed, and of these, 57 images comprised child abuse material. The device contained 75 videos. Ten videos only were reviewed, and of those, four videos comprised child abuse material.

68. [I repeat, unnecessarily perhaps, that I cannot assume that the files that were not examined contained such material, even on the basis of what was examined.]

Arrest

69. On 22 September 2021, the offender was cautioned and placed under arrest. He was conveyed to the Coffs Harbour Police Station where he declined to participate in an electronic record of interview, as was his right.

Facts for Forfeiture Proceedings

70. As a matter of convenience, I will refer to these at this point.

71. The facts under this subheading are to be admitted on the forfeiture application only. ^[3]

    3. 2021/00017283 R v Bruce Alexander Bentley Facts for Forfeiture Proceedings [72]-[73] above.

72. On 9 September 2021, police attended Matthew Flinders Drive, Port Macquarie, at the request of Vera Bentley and seized a 16 gigabyte Kingston scan. The device contained images of child abuse material, such that it is submitted that the Court would find that the Commonwealth child sex offences have been committed, and the device was used in the commission of such an offence.

73. On 13 September 2021, police executed a search warrant at Excelsior Motor Inn, Port Macquarie, being temporary accommodation occupied by the offender. In the offender’s vehicle, police located an Apple iPod. The device was subsequently reviewed and found it contained a photo album containing about 1,000 images. Less than ten photographs were identified as constituting child abuse material, being of young females naked in a bathtub with their vaginas clearly sighted. This device contained images of child abuse material such that it is submitted that the Court would find that Commonwealth child sex offences had been committed, and the device was used in the commission of such an offence.

74. The number of individual images or video files contained on any device is of course relevant to assessing the objective seriousness of the individual offence. There is, in my view, a progression in seriousness from Sequence 2 through Sequences 3, 8, 9 and 13, Sequence 13 being the most significant or serious of all of the offences. I note relevant to the mandatory minimum term of four years which applies to Sequences 3, 8, 9 and 13, that the offender was sentenced on 1 March 2017 by the late Toner SC DCJ.

75. His judgment on sentence is before me, as are the facts that were relevant to those sentences. I note that his Honour was dealing with the offender in respect of four offences, being one offence contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth), one offence contrary to s 474.19(1)(a)(iii) of the Criminal Code and two offences contrary to s 91H(2) of the Crimes Act 1900 (NSW).

76. For the State offences, the offender was sentenced to an effective term of imprisonment of 18 months with an effective non-parole period of 12 months. For the Commonwealth offences, the offender was sentenced to terms of imprisonment that effectively replicated the effect of the State sentences by ordering the offender’s release on a recognisance after an aggregate period of 12 months. The sentences in respect of the Commonwealth offences and the State offences imposed by his Honour were served concurrently.

77. In my view, the offender was dealt with in a lenient and perhaps compassionate manner on that occasion of sentencing. I note that he was released on parole on 19 April 2017. However, also provided as part of the Crown material on sentence is a bail breach report under the hand of Joe White, a senior Community Corrections officer, dated 22 June 2017, that is, within two months of his being released. The breach report was based on the fact that the offender was then residing in a caravan park frequented by children, and the offender was uncooperative in relation to finding a location to reside which was less potentially dangerous to children.

78. In addition, on 21 June, detectives from the mid-North Coast local area of command attended his address in response to the concerns raised by Community Corrections, and they located five internet capable devices in addition to Mr Bentley’s wife’s personal computer. The additional devices consisted of two laptop computers, two iPods and one smart TV. Examination indicated that the two laptop computers were internet capable and had browsing histories that indicated internet access up to that date and contained images that are considered to be borderline child abuse material, but which at the time of the report would require further classification to be deemed actual child abuse material.

79. Mr Bentley admitted ownership of the laptops and provided police with passwords to gain access. A further concern was the finding in his possession of what is referred to as a “tall browser”, which is apparently a device specifically used for accessing the dark web. All items were seized by detectives and sent for forensic examination.

80. The breach of bail report includes the following as to his response to supervision while on liberty for almost two months,

“Mr Bentley’s response to supervision is considered poor. He had resisted efforts to find alternative accommodation and deliberately deceived Community Corrections and police in relation to this internet activity.”

81. As a result, it was recommended that his parole be terminated, and it was terminated as effective from 23 June 2017.

82. He remained in custody until 22 October 2017 when his sentence expired, and he was duly released, before as a result of the matters concerned today, he returned to custody, bail refused, on 22 September 2021.

SUBJECTIVE MATTERS

83. The offender is now almost 60 years of age. Before the Court is a document titled “Declaration of Harm made by Bruce Bentley”. It was apparently made on 31 March 2010. It is unsigned and refers to such things as institutional information, Warilda Juvenile Detention Centre, Woolowin, and St Vincent’s Home for Children, Nudgee.

84. He has recorded various information under headings such as “Nature of Psychological Abuse”, “Nature of Physical Abuse”, “Nature of Sexual Abuse”, and “Harm Suffered as a Consequence of Abuse and Neglect”, as well as “Medical Treatment”, “Medication”, “Care Provided by Others”, and finally “The Effect on my Life”. So far as I can discern in the absence of any other information, it was prepared for the purposes of being placed before either the Royal Commission into child abuse in various institutions and/or for the purposes of making personal injury claims against the institutions referred to.

85. In addition, there is a report under the hand of Allan Anderson, being a psychologist; the report is dated 17 October 2023, and as will be obvious from my previous remarks, there is an Australian Federal Police document titled “Information for Courts as to Past Convictions”, a New South Wales Police Force Criminal History and a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report. I have already effectively referred to the relevant material from each of those documents.

86. The offender, prior to the time at which he was arrested and then sentenced by the late Toner SC DCJ, was a person of good character. That can no longer be said as he is now a repeat offender on a number of occasions, and he has reoffended in a significant way.

87. I accept that he provided some assistance to the police in identifying his devices and confirming that they were his, and providing such things as access PINs, and also by directing the police as to particular locations on the devices of material relevant to their inquiries. However, it is also apparent that he endeavoured, after already having served a sentence for similar offences, to secrete or hide his conduct by way of concealing in particular the material that was found in the fake camera lens cup.

88. The report of Mr Anderson indicates that the offender was born in Brisbane and claims that his father deserted him at the age of 11 and that he was in juvenile detention from the age of 11 to 17 years; that he was in the army from the age of 17 years to 22 years of age, that he has been married once, which I take it was to the woman referred to in the facts as “Vera” and that he has no children. He otherwise informed the psychologist that he had been a photographer, working in that field for some 20 years, although he was no longer occupied in that field.

89. He was apparently difficult to interview and obtain information from. The author said this was because he was depressed, felt hopeless and made up his mind that there was not a lot of point in speaking with anyone including the psychologist. He claims to have been physically, psychologically and sexually abused from the age of 5 until adulthood which I note is the subject of the unsigned document I previously referred to, being titled “Declaration of Harm made by Bruce Bentley” on 31 March 2010. The psychologist referred to him throughout the whole interview, as:

“I saw evidence of a man who was extremely depressed, disillusioned with a sense of hopelessness and helplessness…[who] could see no hope or prospects for the future …[and] stated categorically that he had no family and no friends and that he had nowhere to go when he would be released from prison.”

90. He also refers to him as having “serious thoughts of ending his life upon release from prison.” The offender claims to have sought mental health assistance in the past from the Port Macquarie Base Hospital but was refused it, and to having never received any adequate medical or psychiatric attention in hospital. He claims, as to his physical health, that he has pain throughout his body, that he suffered dislocated limbs, arthritis and in general, that his physical health did not enable him to walk more than a few metres, and even then only with the help of a walking stick.

91. As to drugs and alcohol, the report contains the following, “I had been informed as to the truth of it, I am not sure that he never had an illicit drug habit and that alcohol had never been consumed to excess”. Apparently, the psychologist was informed that Mr Bentley was on lots of medication, however Mr Bentley “could not remember the names of any of the medication nor the particular reasons that they had been prescribed for him.” The psychologist referred to it as seeming apparent to him that the offender was “hearing voices” but he stated, “However, I’m not sure whether if the questions were particularly well understood. If indeed he was hearing voices, then this also points to a various [sic] serious psychiatric condition.” There has been apparently no further investigation, as there is nothing further before me in relation to that.

92. The psychologist administered the Personality Assessment Screener and indicated that it disclosed that the offender had health problems, psychotic features, social withdrawal, suicidal thinking and alienation. His personal observation was that the offender presented as being totally withdrawn, detached, resentful, angry and disillusioned, and as having strong suicidal ideation to what the psychologist described as being an excessive degree. Also of significance in the report is the following statement,

“It was revealed during the interview however that Mr Bentley had strong remorse for anyone who have been harmed by the acts for which he is currently before the Court and for which he is going to be sentenced. I understood this remorse as being genuine and heartfelt.”

93. I note that there is not the slightest indication in the psychologist’s report as to how that was expressed. The offender did not give evidence on sentence, and it is impossible for me to assess the degree of contrition or remorse in the light of a complete absence of any acceptable information.

94. In general, the psychologist’s report is somewhat equivocal about his findings, including the following statement, “Apart from psychological distress and serious issues, it was apparent to me that there may well be a number of possibly serious physical health issues present at well.” I note that there may well be, but they are not before me. I note from the judgment of Toner SC DCJ, the following comment about rehabilitation at p 51,

“In terms of rehabilitation, I suspect he represents fairly good prospects of rehabilitation. He has received significant psychological support. He has seen his psychologist on a large number of occasions, and I think that is principally because of his involvement with the collateral agencies that have been established by the Royal Commission, and hopefully he will be able to continue that counselling on his release.”

95. I note that there is no information before me about any previous psychological counselling or treatment either before being sentenced by his Honour or at any time while he has been in custody or at liberty in the community. In my view, his Honour’s statement that he suspected he represented fairly good prospects of rehabilitation has been counteracted by the offender’s post release conduct in that he was in breach of his parole and returned to custody, and subsequently when finally released, despite the time that he had spent in custody as a result of similar offending, he committed these offences.

96. In those circumstances, it is impossible to regard his prospects of rehabilitation as anything other than extremely remote. I note, from my past experience as a barrister, appearing mostly in crime since 1977 through to 2008 and appearing for a number of persons of like offending and actual offending against children, and my almost 16 years on the bench dealing with many matters of this nature, that I have perhaps wrongly formed the view that psychological counselling or treatment for offenders such as this is rarely of any utility. And certainly, it was apparently of no utility to this offender.

97. I note Sequence 13 involves material of the most offensive and depraved nature which indicates that he has dipped deeper into this depravity than he had at the time that he was sentenced by his Honour. Not only is rehabilitation a very remote possibility, in my view the repetition of like offending and the seriousness of the repetition must lead to the conclusion that there is in fact a high prospect that given the opportunity to reoffend in the future, this offender will do so.

98. It may well be or is that there is no suggestion that he was directly involved in the making of any of this material or with any of the children involved, but he is clearly orientated around accessing such material for his own sexual gratification.

99. It is one of the difficulties of the development of the internet that material such as this can be readily obtained by those who have a desire to utilise it for their sexual gratification. Such acquiring, possession and even distribution is simplified by the internet, and it is extremely difficult for the authorities to detect it and determine those who are involved in this highly offensive trade. There is of course no indication in relation to this offender that he has paid for any of the material he has acquired, but he had to have at least acquired it from likeminded persons.

100. The extent to which children are harmed by this offending is that while there may have been an initial deliberate offence committed against them of which they are aware, the offending in effect continues by way of all of those persons who subsequently come to have access to the material and do access it and/or distribute it to others.

101. I will make it clear that on the basis of the material before me I am not prepared to find that the offender is genuinely remorseful and contrite for his conduct.

102. I have taken into account the matters referred to in s 16A of the Crimes Act 1914 and I note that one of the matters that must be taken into account under subs (JA) is the deterrent effect that any sentence or order under consideration may have on other persons. If sentencing in respect of matters such as this is having an effect of general deterrence on others, it is not particularly evident from the large number of matters that come before the Court, but of particular importance in relation to this offender is that one of the matters that must be taken into account is the deterrent effect that the sentence or order under consideration may have on him; that is specific deterrence.

103. He has previously served a sentence of imprisonment for like offending. That did not deter him, and he has committed very serious offences on this occasion, particularly in relation to Sequence 13. Any sentence to be imposed on him must take into account the need for specific deterrence and it must ensure that he is adequately punished for the offences.

104. I note that he is now almost 60 years of age and that is also a relevant factor to take into account. It has not been suggested that any sentence imposed on him needs to take into consideration any family or dependents. He apparently has no children, and it appears to be the fact that although previously married, he is no longer married. I gather from the facts that shortly after he had been first detected, he was requested to vacate the family home and that is why he moved into motel accommodation in Port Macquarie. Indeed, his wife subsequently found material which she provided to the New South Wales Police so that his offending could be properly investigated to its full extent.

95. There is no suggestion before me that any sentence to be imposed on the defendant will in any way affect her or that she is somehow dependent on him.

96. No doubt the offender would be assisted by treatment while in custody or when released in the community. I have previously expressed my doubts about the effectiveness of psychiatric or psychological counselling in respect of matters such as this. It is only to be hoped that the professionals can achieve something, even though it is apparent in relation to this offender that that has not been achieved in the past.

SENTENCE

107. I have taken all of those matters into account, and I have turned to the question of an appropriate sentence. I note that while aggregate sentences are generally available in relation to Commonwealth matters, the prosecution submits that an aggregate sentence is not available in relation to Commonwealth child sexual offences, as s 16AAB requires that where an individual is convicted of a Commonwealth child sexual abuse offence and the person has been convicted previously of a child sexual abuse offence the Court “must impose for the current offence a sentence of imprisonment for at least the period specified in Column 2 of that item”.

108. This is necessarily inconsistent with the power to aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999 as by definition aggregate sentences involve the imposition of a single sentence for multiple offences and do not involve the imposition of a separate sentence for each individual offence. As a result, if the Court were to impose an aggregate sentence in this case, the Court would fail to comply with the mandatory requirement in s 16AAB that each offence listed in that section must attract a separate sentence with a minimum sentence as listed in that section, subject to any reductions.

109. There has been some consideration of those factors in Patel v The Queen [2022] NSWCCA 93, where Brereton JA raised concerns about the availability of aggregate sentences for Commonwealth offences. And in R v Delzotto, where Beech-Jones CJ at CL, as his Honour then was, referred to the observations of Brereton JA in Patel v R, but observed that existing authority in DPP (CBH) v Beattie [2017] NSWCCA 303, held that an aggregate can be imposed for Commonwealth offences, that a court is entitled to act on what was found in Beattie until the contrary is held either by the High Court or unless it considered the authority to be “plainly wrong”.

110. The prosecution has noted that Beattie was not dealing with Commonwealth offences which carry mandatory minimum head sentences. While an aggregate sentence was imposed in Delzotto, neither party on the appeal in the NSW Court of Criminal Appeal made submissions as to its availability. This was not the subject of consideration in the appeal to the High Court.

111. Following a careful consideration of the terms of the Crimes Act the Crown’s position is that while aggregate sentences remain generally available for Commonwealth offences, they are not available for offences which attract a mandatory minimum sentence.

112. Accordingly, I will propose an individual sentence in relation to each offence, taking into account the 25% discount for assistance by way of the early plea. There is a general proposition that the offender provided some assistance by way of providing PIN numbers and indicating where particular material might be located. Of course, that was on devices where he might well expect, they having fallen into the hands of appropriate officers, that information may in due course be determined by them, or the access may be able to be determined by them in any event, and that of course he did not disclose the various devices in the camera lens cup, which no doubt he thought would not be located, and were not located by the police but by his wife and/or her support person. In my view, his assistance was in a way limited to that which he probably thought could be discovered and limited by not disclosing significant material that he knew would lead to further charges.

113. I also take into account that there is also a significant overlap between Sequences 8 and 9, and also that in determining any sentence or sentences I need to give consideration to the principle of totality, as referred to in Pearce.

114. I have taken into account the maximum sentence provided for each of the offences, as well as, where appropriate, the mandatory minimum term, and the end result has been adjusted by the 25% discount I have previously referred to.

115. I find the offender guilty in respect of each of Sequences 2, 3, 8, 9 and 13.

116. The sentence in respect of Sequence 2 is nine months’ imprisonment, starting on the date he went into custody, 22 September 2021. That expired on 21 June 2022.

117. The next sentence is Sequence 3, and it starts three months later than the last sentence. So, it started on 22 December 2021, and it is three years, and it expires on 21 December 2024.

118. The next is Sequence 8. Again, starting six months later than the last sentence. It is three years. So, it starts on 22 June 2022 and expires on 21 June 2025.

119. The next is Sequence 9, which is a term of imprisonment of three years, nine months. Again, starting six months after the last sentence, it starts on 22 December 2022 and expires on 21 September 2026.

120. Finally, Sequence 13 is a sentence of five years, three months, commencing six months after the start of the last sentence. It starts on 22 June 2023, and expires on 21 September 2028.

121. So, the total period is between 22 September 2021 and 21 September 2028, which is seven years. I will provide a non-parole period of four years, eight months, and a balance of term of two years, four months. So, he will be first eligible for parole on 21 May 2026, which is four years, eight months after 22 September 2021. I repeat - I have already said it - but the total sentence expires on 21 September 2028.

NIAGOS: Your Honour, just in relation to the forfeiture order. I’m not sure what happened on the last occasion.

HIS HONOUR: All right. We’ve already dealt with the facts; there’s no objection to the forfeiture?

McKENZIE: None at all, your Honour. I think you said you were going to do it in chambers, but I honestly can’t remember that.

HIS HONOUR: That was the other matter.

McKENZIE: That might have been the other matter.

HIS HONOUR: It was the other matter; I did it in chambers. Okay, I’ll make the orders as provided in the forfeiture orders in respect of the Western Brand Digital 1 terabyte hard drive, the Lenovo branded laptop, a Verbatim 128gb microSD, and a USB adaptor, one Samsung 64gb microSD card and SD card adaptor. I’m not going to read all the rest of them out, they’re all on the schedule.

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Endnotes

Decision last updated: 09 July 2024