R v Brimble

[2025] NSWDC 135

District Court

New South Wales

Medium Neutral Citation:

R v Brimble [2025] NSWDC 135

Hearing dates:

5 & 20 March 2025

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Criminal

Before:

R Tupman DCJ

Decision:

A term of imprisonment of 15 months in relation to sequence 2 and a term of imprisonment of 12 months in relation to sequence 7. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is released forthwith on the condition the offender enters into a recognisance, self, in the sum of $500 for a period of 2 years: at [72]

Catchwords:

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

— Production/Dissemination/Possession

SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend

SENTENCING — Penalties — Recognisance

SENTENCING — Relevant factors on sentence — Deterrence — Establishing relevant matters — Factual basis for sentence — s 16BA schedule offences — General principles — Objective seriousness

SENTENCING — Subjective considerations on sentence — Age of offender — Extra curial punishment — Health issues

Legislation Cited:

Crimes Act 1914

Criminal Code (Cth)

Cases Cited:

R v Bredil [2024] NSWCCA 75

R v Cardwell [2021] QCA 112

R v Hutchinson [2018] NSWCCA 152

Category:

Sentence

Parties:

Rex (Crown)

Toni Brimble (Offender)

Representation:

Ms T Garland (Solicitor for the Commonwealth Director of Public Prosecutions)

Mr Hussey (Counsel for the Offender)

File Number(s):

2023/00363460

Judgment

1. The offender is before the Court for sentence following pleas of guilty in the Local Court to two counts involving the transmission and possession of child abuse material. The two offences specifically are:

1. Sequence 2, an offence that on 15 June 2023 at Harrington he caused child abuse material to be transmitted to himself using a carriage service. That is an offence contrary to s 474.22(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years imprisonment.

2. Sequence 7 is the second substantive offence and it is a charge that on or about 14 September 2023 at Harrington he possessed child abuse material on a computer or data storage device which he had accessed or obtained using a carriage service. That offence is contrary to s 474.22A(1) of the Criminal Code (Cth) and also carries a maximum penalty of 15 years imprisonment.

2. The offender asks that when sentencing for sequence 2 I take into account a further offence pursuant to s 16BA of the Crimes Act 1914, namely, sequence 5 a further offence contrary to s 474.22(1), namely, that between 28 March and 29 April 2022 at Harrington and elsewhere he transmitted child abuse material using a carriage service.

3. In reaching the appropriate sentence for the two substantive offences the Court must take into account the matters referred to in Pt 1B of the Crimes Act 1914, and in particular the provisions of s 16A of that Act. Of significance, as is referred to in s 16A(1), in all Commonwealth sentences the Court should set a sentence that is appropriate in all of the circumstances of the offending. The Court must also take into account the matters referred to in s 16A(2) where they are relevant. In all sentences, the nature and circumstances of the offending is significant, in other words, the relevant facts and the determination of the objective criminality of the offending. The relevant facts here are as set out in the signed agreed statement of facts.

4. From those, I accept that at all relevant times the offender was using an online platform called Telegram in his own name of Toni Brimble and the online username Sharky on the online platform Line. In March and April 2022, he transmitted child abuse material to himself through the encrypted application Line. He corresponded with a person who had the username Tom Price and, on an occasion, sent a screenshot which had previews of 28 videos depicting child abuse material.

5. They are described in at [4] of the agreed facts. I do not propose to read the description of any of the subject matter of any of these charges onto the Court record. Some of them are graphic and, as is known, the sentence judgments of this Court are commonly published on a publicly available platform. I do not propose to allow my sentence judgment to contain material, even in the nature of descriptions, which runs at least very close to the risk of republishing child abuse material, and I certainly do not propose to allow the judgments of this Court to be available publicly for any member of the community to obtain some form of secondary gain or gratification from them. The details or descriptions of each of the relevant items of child abuse material are clearly set out in the agreed statement of facts which is tendered and signed by the offender.

6. In summary, however, relevant for this first offence in time which is a s 16BA schedule offence, the offender sent three videos to this user, each of them of relatively short duration. They all clearly display child abuse material using real children, all girls, all young, two of them as young as six to eight years and some including sexual involvement with another person, in one case an adult male.

7. Some of these files were also replicated in a Telegram conversation between the offender and the user, which is the relevant user in relation to sequence 2, during the course of that conversation in June 2023.

8. On 29 April 2022 the offender transmitted six child abuse material videos to the same user, Tom Price, on the Line platform. The description of some of this material is at [5] of the agreed facts. They were of a similar nature, involving real children, young girls aged between four and nine. These two occasions of transmission in March and April 2022 are the subject matter of the s 16BA offence, sequence 5. I accept from the facts that they were in fact transmitted by the offender to himself using the username Tom Price and that that username was in fact the offender, in an account used by the offender himself. That is the subject matter of the s 16BA schedule offence, sequence 5.

9. Sequence 2 involves the offender’s use of the Telegram app which was downloaded on his mobile phone. Telegram is apparently a cloud-based instant messaging application enabling encrypted video calling and file sharing. He used his real name Toni Brimble and his own telephone number for that account. Within that account there were conversations between himself and a person using the name @ljhaye who it would appear was a person more probably than not then in the Philippines at the time of this offence.

10. This conversation started on 4 June 2023. Over a period of three hours on 15 June 2023 the offender made several payments of 500 Philippine pesos to this username in order to receive child abuse material from this person. In the facts it is described as “her” although there is some conversation at the end of this interaction which might cause some concern about whether in fact that was true. Nonetheless, she is described as “her”. This person transmitted the videos to him on receipt of payment by him.

11. The details of the separate conversations on this day are at [12] - [14] of the agreed facts. The first conversation was at 1.10pm. During that conversation the offender negotiated the purchase of videos for 500 pesos. He received from this other person 38 child abuse files which were all videos. Three of those, referred to as a sample of those videos, are described at [12] of the facts. They all depicted real girls aged between four and ten engaging in sexual contact with adult males, including penetrative sexual activity.

12. The offender then, at the request of the person apparently in the Philippines, agreed to and did send another 500 pesos to pay for and receive more videos. He then sent another 500 pesos and received 50 videos. Samples of those are set out at [13] of the agreed facts. They are all child abuse material of much the same nature involving children aged between four and eight.

13. After receiving these, the offender told the person, apparently in the Philippines, that he had already received some of these videos before from her but paid for more videos and made two specific requests for the type of videos he wanted to receive. This conversation occurred at 3.15pm in circumstances where he had already received 88 child abuse videos of the type which I have already described. The specific requests he made were during a conversation at 4.12pm. He did not make specific reference or complaint about the fact that what he had received was all child abuse material but did say that he had been sent many of these videos previously. He said that what he wanted to see were girls with, and I use his words, “grown tits and lesbian videos”.

14. He then sent more money for more videos and received another 55 files. A sample of these is described at [14] of the agreed facts. They were all child abuse videos of a similar type. The first in that group is of relatively high seriousness in that it depicts a real prepubescent female, apparently aged between four and six, who is slumped over and unresponsive throughout the video, who is then sexually assaulted by an adult male orally, vaginally and anally whilst that person is wearing a balaclava. This video lasts for eight and a half minutes. That is, at least so far as the descriptions are concerned, more probably than not the most serious of any of the videos that are the subject matter of these charges.

15. After receiving these videos, the offender then engaged in more conversation with this person of a sexually explicit nature. This occurred on 15 June. On 7 July he blocked this user. He has provided a history to professionals who have provided reports for him in this sentence that he did so at that stage because he had not specifically requested child abuse material and wished no longer to receive it. He blocked this other user in July 2023 but was not arrested until September 2023.

16. This is the subject matter of sequence 2 of using a carriage service to cause child abuse material to be transmitted to himself. As I have said, he was arrested in relation to this matter on 14 September 2023 and police executed a search warrant at his premises. They seized two electronic devices, namely a mobile phone and a digital external hard drive. He admitted ownership of these and gave police the PIN code to access the content of his phone.

17. The subject matter of the remaining substantive offence, sequence 7, relates to the child abuse material located on these two devices. On the phone there were 231 child abuse material files which were images and videos. According to the agreed facts, there was also adult pornography on the phone mixed in with the child abuse material. The description of some of the child abuse material located on his phone is referred to at [16] of the agreed facts. It is of a similar type to the material referred to in the other charges, involving real girls aged between three and seven engaged in penetrative sexual activity with an adult male.

18. On the hard drive there were 18 child abuse material files which included videos and images as summarised at [17] of the agreed facts. It is of a similar type.

19. It is clear that by the time the police executed the search warrant at his premises and arrested the offender, that they were aware of the nature of the online conversations he was having with the person in the Philippines. When they executed the search warrant, they asked him about this conversation with a person in the Philippines, the subject matter of sequence 2.

20. According to the facts, the Police noted when talking to the offender that this conversation contained both child abuse material and adult pornography. In response to those questions by the police to the offender, according to the agreed facts, he replied:

“I didn’t want stuff with women under 18 and I didn’t want anything like that, and she sent more, and I blocked her.”

21. This would appear to have been supported by the fact that he blocked this other person two months before his arrest.

22. Various factors inform the objective seriousness of offences involving child abuse material. The decision of the New South Wales Court of Criminal Appeal R v Hutchinson [2018] NSWCCA 152 sets out many of those factors. I accept that the type of material and degree of depravity is a primary focus. The Court can also take account of the quantity of this material as being relevant to an assessment of objective seriousness, albeit that might be a secondary consideration. The following matters are relevant to inform the objective seriousness of the offences here:

1. This material all involved real children;

2. The children were young, most of them aged between three and ten with some of them children aged 12 to 14;

3. The total number of children who can be identified as involved in the making of this child abuse material is 392;

4. So far as the s 16BA schedule offence is concerned, the transmission was in fact a transmission from the offender to himself, not to another person. However, for sequence 2 it involved his causing another person to do so via an encrypted service;

5. He possessed this material on two separate devices;

6. The number of separate items of child abuse material, most of them videos, was not particularly large and not of the very large number regrettably often seen in offences of this type;

7. Some of the files were of particular depravity, especially the one to which I have already referred, as were a number of the others. I accept the descriptions of relative depravity summarised at [11.6] of the Crown’s written submissions;

8. Whether or not the offender initially sought out child abuse material, nonetheless, on 15 June he continued to pay to receive material even after becoming aware that the first group amounted to child abuse material;

9. The only reasonable conclusion about his purpose in seeking the transmission of this material to himself and possessing this material was that he did so for his own sexual gratification;

10. He actually paid for the files the subject matter of sequence 2 and which I infer, more probably than not, were the files that were found in his possession at the time of his arrest. From this, I infer that the person who sent them to him, in some way or other, at the very least on the basis of acquisition and distribution of these files, was doing so for her own monetary gain. This is a matter of factual aggravation. I infer that in doing this, he added to the commercial exploitation of children who were used in the production of this material and, on the face of it, I infer that he did so in relation to children who more probably than not were from the Philippines or from regions of the Asian Pacific area nearby. The market for this material is regrettably large and especially so in developed countries like Australia. It is well known to the Court that impoverished families in places like the Philippines frequently resort to the abuse and exploitation of their children, especially their young girls, simply so a family can survive. It is a serious indictment on those members of our community, regrettably usually middle-aged to older Australian men, that they add to the suffering of people in our region, who are already struggling, by encouraging the sexual exploitation of children by perpetuating the market. These offences are not victimless. Every one of these videos has a separate victim, namely the young girl who was portrayed there. These videos remain in circulation forever. Australian men who allow themselves to be the market for this exploitation deserve to be condemned for doing so and therefore sentences for offences of this type must carry a significant element of general deterrence;

11. Other factors that may inform the objective seriousness of these offences were not present in this matter, which regrettably are often seen in matters of this type. None of these images, as bad and all as they were, depicted any physical harm or cruelty in addition to the actual acts themselves. There was no risk that these files would be acquired by others in the community and certainly not by children. There is no suggestion that the offender either did or ever intended to transmit them to anybody else and the only evidence of transmission by him is that he transmitted them to himself. He was not part of a paedophile group or anything of that type, but acted alone. He did not try to hide or encrypt the material on his electronic devices, the subject matter of sequence 7, and he used his own name Toni Brimble and his own telephone number when committing the offence which is the subject matter of sequence 2. That indicates a degree of lack of sophistication and planning in the commission of that offence.

12. All of the above are factors relevant in determining the objective seriousness of the offence.

23. I also must note at this stage, although not in any way that should be seen to aggravate an assessment of this offender’s offending, that not only should the end users of this product be condemned, but so should the platforms which allow it to occur and continue, more so the telecommunication companies operating in Australia which do not seem to take action to block and prevent encrypted services of this type to continue, even though it is well known to the Court and the community that many of these encrypted services in fact are used by people for the transmission and dissemination of child abuse material. I make that comment not because it impacts in any way on the objective seriousness of the offending by this offender but as an indication that there are others who ought be held responsible for the fact that this material exists in the community at all.

24. The relevant sentence for sequence 2 needs to be somewhat more severe than might otherwise be the case because the Court is required to take into account sequence 5 pursuant to s 16BA of the Crimes Act 1914 (Cth). Whether or not they are the same videos is not clear. It was the beginning of the offending, it would appear, albeit that he was transmitting them to himself. It is nonetheless serious and the sentence for sequence 2 must be a little higher than it might otherwise be to take that into account.

25. Whilst I do not accept the submission made on his behalf that it is towards the bottom of the range for offences of this type, nor is it anywhere near the top of the range for that combination of objective factors. It is a little below the middle of the range, it seems to me, for offences capable of being charged under this section.

26. Given the more limited number involved for sequence 7 and what appears to be the fact that these files of child abuse material had already been transmitted to him and were simply either advertently or inadvertently stored by him, it seems to me the objective seriousness of that offence is a little less.

27. Turning to other provisions of s 16A(2), there is no evidence of any particular loss or damage suffered by the victims apart from that to which I have already referred. I do take into account the fact, however, that this material is likely to remain in circulation and so these victims, once they come to realise the extent to which they have been exploited and victimised by those surrounding them when they were young, will have a heightened sense of shame and distress.

28. The offender pleaded guilty in the Local Court on 14 October 2024 which the Court is to take into account pursuant to s 16A(2) when assessing the appropriate sentence. These pleas have a significant utilitarian value, making it unnecessary to prove all of the aspects otherwise that would be necessary in circumstances where it involves the use of encrypted platforms, electronic equipment and the like. It also indicates his willingness to facilitate the course of justice. It is not necessary to apply any particular numerical discount here in the way it would be if these were State offences but, nonetheless, I propose to discount the relevant sentences by around 25% overall to take into account the pleas of guilty.

23. I also take into account that the offender assisted police at the time of the search warrant by providing the PIN to his phone and also by effectively admitting the conversation with the user in the Philippines the subject matter of sequence 2.

24. The pleas also, I accept, are some indication of contrition and remorse. There is other evidence from which I accept that the offender is in fact genuinely remorseful and contrite for having committed these offences. Amongst that evidence is the fact that he took relatively quick action to obtain treatment to deal with the fact that he committed these offences, which themselves are very much out of character for him.

25. I also must take into account a matter which I have already addressed, namely that there needs to be an element of general deterrence, particularly for offences of this type.

26. I also must now take into account the subjective circumstances, that is the situation of the offender himself, both at the time of offending and now. He was 69 at the time of offending and is now 71. I accept that he had a largely prosocial childhood. It may be that when sentencing somebody who is already in their early seventies a consideration of some of these factors is not of great relevance and he has not sought to exaggerate or maintain anything other than a relatively positive childhood.

27. He left school at the age of 14, largely because of learning difficulties. He immediately entered the workforce and not long afterwards started working on the railways where he worked for most of his adult life until he retired at the age of 65. He appeared to have succeeded in that work, working up the organisational hierarchy during his years there.

28. There is no evidence that he ever had or does not have any addiction to alcohol or substances, but has at periods in his life, struggled with a gambling addiction.

29. He has had two significant relationships, initially with his wife of many years with whom he has five children. They married very young. They divorced after a short time and then remarried and were together for a long time and had five children. After that, he was in a long-term relationship with another partner who died from cancer at a relatively young age.

30. I accept that he has a good relationship with his five children who remain supportive of him, even after becoming aware of his arrest for these matters. There are two references tendered, written by his two daughters-in-law, the wives of his sons, both of which indicate their ongoing support for him, notwithstanding becoming aware of these offences, and in particular have no concerns about his ongoing contact with their children, his grandchildren.

31. His former wife remains in contact with him. They are friends and have a good relationship. She remains supportive of him also.

32. He would appear to have become a relatively solitary person after his second partner died and has only a few friends, most of his interactions being with his family. His family and the friends that he does have, all appear to be prosocial and there are none with antisocial attitudes or involvement in matters such as the subject matter of these offences.

33. There is a forensic psychology report undertaken by Dr Sidhu, after an assessment of the offender, from which I accept that after the death of his partner the offender’s already low confidence and sense of insecurity, especially sexual insecurity, led to his withdrawing from relationships and instead he began to use the internet to procure pornography and used adult sex workers when overseas. I accept from the history that he gave Dr Sidhu that it was in this context and in this timeframe that the offences before me occurred.

34. He is in all other respects a person of good character. There is one entry on his criminal record only, an offence of assault occasioning actual bodily harm in the year 2000, for which the Court did not record a conviction. I have no details about that matter, but I infer from the lack of conviction that it was not a matter regarded as serious by the Court. There is nothing else on his criminal record apart from the matters before me.

35. As I understand it, the submission made on behalf of the offender established through various pieces of evidence, including what he said to the person in the Philippines during those conversations, what he said to police at the time of his arrest and the history given to both Dr Sidhu and a psychologist who has been treating him, was that he did not intentionally seek out child abuse material but that he came to do so on these relevant occasions in the context of his increasing use of online pornography.

36. The Court is aware and takes judicial notice of the fact that there is often a fine line between what is depicted in pornography falling into the category of child abuse material and adult pornography, simply because the age of those depicted is not always clear. That is not the case here. Almost all of the subjects of these videos or files were clearly children, but the argument, as I understand it here, is that he did not seek out these items as child abuse material but received them in the context of seeking and receiving adult pornography.

37. There is some evidence to support that, particularly what he said to Police at the time of his arrest, and at least some of what he said to the person in the Philippines during that conversation on 15 June, namely telling her what he actually wanted, which would seem to be a reference to more adult pornography. There is also evidence that on the devices which were seized the child abuse material was included together with adult pornography. So, to that extent, there is evidence to support that assertion on his part.

38. However, on 15 June, having received at least two portions of child abuse material, there is nothing in the conversation to indicate that he made a complaint or objected to doing so. He went on and paid more money for more files, only adding that he wished to see other material, from which I infer he was referring to more adult material.

39. Furthermore, the s 16BA schedule offence involves his transmitting child abuse material items to himself in March and April 2022. There is no evidence as to how he came into possession of that, although, as I understand what he has said to those who have provided reports to the Court, nothing that he came into possession of or transmitted to himself or continued in possession of was deliberately sought by him as child abuse material. He did, however, not just cause material to be transmitted to himself but in fact stored it and at least some of what he stored was child abuse material. So, the evidence, it seems to me, is not entirely clear in relation to this aspect of what he has said.

40. Overall, however, on the balance of probabilities I accept more probably than not that he initially came into possession of this child abuse material whilst seeking adult online pornography and that he did not ever actively seek out this material. What he ought to have done was simply to ignore or delete it. He did not do that. He transmitted some to himself and retained possession of some. I do, however, accept in large part that he did not actively seek out this material as child abuse material and that itself informs to an extent the objective criminality, in particular of sequence 2.

41. Why he did keep it and did not simply delete or ignore it is not clear, but I do accept that, despite the nature of these videos and the charges, there is no evidence that he is a paedophile. I accept that he does not and has not had a sexual interest in children and there is no evidence that, apart from watching these videos, he engaged in any sexual behaviour surrounding them or was sexually aroused by them. There is no evidence that he has ever used chat forums to talk to children sexually or with other adults who endorse the use of child abuse material, and I accept that he is a heterosexual man attracted to adult women and not to children. There is nothing about either his history or his psychological assessment that indicates he presents any sexual or other risk to children or any other members of the community.

42. The only negative portion of Dr Sidhu’s report appears at [33] in which he says that it is still unclear whether the offender’s offending was due to his confusion around appropriate ways to procure legal pornography or, because it occurred over 18 months, he is concealing more deviant sexual attitudes or a sexual interest in children.

43. Overall, I am not satisfied that there is anything in any of the evidence before me to endorse or make available any finding that this offender has a sexual interest in children.

44. Presumably, however, he recognised the issues that surround the fact that he committed these offences and, after he was arrested, he sought psychological treatment and counselling. He was referred by his General Practitioner and started counselling in July 2024. He attended five treatment sessions with a particular company up to November 2024 and there is a report before the Court from that organisation. It would appear that at the same time he was also seeking and getting treatment from Mr Graham Randall, psychologist, and there is a report from him. He also started that in July 2024. Apparently neither organisation realised they were providing therapy together. The offender ceased with the other company and has continued with Mr Randall and continues receiving that treatment.

45. I accept from Mr Randall’s report that this treatment was designed to address the nature of his offending. He has had eight sessions to date. The programme he provides is similar to a sex offender’s programme of the type made available to some prisoners within the New South Wales prison system. I accept that the offender has taken advantage of this treatment and is responding well to it.

46. As I have said, it was in the course of this treatment that the offender also made comments to Mr Randall of the type which support the finding that I have already made, that more probably than not, he came into possession of this child abuse material in the course of accessing adult pornography and not because he actively sought it out. There is also other material to suggest that part of his offending had at its basis, the fact that he was not adept at using computers or online platforms, although the evidence about that is not particularly clear. I accept that Mr Randall remains available to continue treatment, and that the offender will do so if it is possible.

47. Overall, I accept that his risk of reoffending, either in relation to offences of this type, or at all is low. As to the risk of reoffending in this way, my assessment is based not just on Dr Sidhu’s risk assessment but also taking into account other factors that are not part of an actuarial assessment, namely, his lack of criminal history, his relatively pro-social life in the community and his apparent lack of any previous sexual offending. Whatever risk there is, albeit low however, in my view will be ameliorated if he has continuing treatment of the type being provided by Mr Randall. I have already said and take into account that that treatment programme is of the type usually provided by New South Wales Corrective Services and apparently endorsed by them as being appropriate.

48. I accept that when sentencing for these offences the Court must have regard, pursuant to s 16A(2AAA), to the objective of rehabilitating offenders of this type, which includes determining the length of the sentence and the need to impose relevant conditions regarding rehabilitation. I do so and note that in this case there is ongoing rehabilitation available in the community which is able to continue. It has already been successful to an extent and this success is likely to continue if the counselling continues to be available to the offender.

49. I also accept from the other evidence before the Court that the offender has a number of relatively serious medical conditions. He has insulin-dependent diabetes and atrial fibrillation. He has sleep apnoea requiring him to use a CPAC machine and lumbar spondylosis and polymyalgia. He is prescribed insulin and blood thinners for some of these conditions. I accept the opinion of his General Practitioner that managing this medication will be difficult if incarcerated. That of itself, of course, does not mean that this offender should not be facing a term of imprisonment. It would be incumbent on New South Wales Corrective Services to ensure that he receives proper medical attention. However, this is a complex series of conditions, and the Court can take judicial notice of the fact that insulin and anticoagulants are both drugs that require constant monitoring. It is also the experience of this Court that prisoners frequently have difficulty gaining access to ongoing medication which they were using in the community, after they go into custody. This offender’s medical conditions, particularly diabetes and atrial fibrillation, are likely to deteriorate in the event that the relevant medications are not both available and appropriately monitored during any period of time in custody.

50. I have already referred to the very positive references before the Court from his family who continue to support him, even though they are aware of these charges and condemn them. There is a theme throughout those references that, at least in part, his lack of experience in using computers and understanding online platforms played a part in the offending and, as I have already said, he has said much the same to Dr Sidhu and Mr Randall. Both of his two daughters-in-law who provided these references endorse this. As I have said, however, there is not much else in the way of evidence so far as that is concerned. Both of his daughters-in-law, however, describe him as an excellent grandfather and neither of them appears to have any hesitation in allowing that relationship to continue, despite these charges.

51. The offender has spent only one day in custody following his arrest. He was granted conditional bail which has required daily reporting and a residence condition. There were more onerous bail conditions applied subsequently, but they appear to have arisen in circumstances where there was a breach of the bail. As such I do not take those into account as onerous bail conditions in the way that that this might otherwise be used.

52. There has been some extra curial punishment because of the publication of news stories showing his face and name clearly displayed. I do not, by making that finding, suggest that these were not appropriate. It is simply a matter of fact, according to what has been tendered, that this case has been the subject of some publicity depicting his face and, of course, his name. Whilst this was via a major news outlet, it is available to him and everyone else in the relatively small community where he lives. That is some extra curial punishment, because no doubt it amounts to public denunciation in circumstances where he has been clearly identified in a small community and particularly so for offences of this type, which the community, quite rightly, condemns.

53. I then turn to the appropriate sentence in this case. I have had reference to a number of what are said to be comparable cases. Whilst the maximum penalty for this offence is 15 years, and that is to be borne in mind as some form of guidepost, each case is different, depending on the circumstances, the objective criminality and the circumstances of the offender. Regrettably, this Court is all too familiar with cases of this type regarding the possession of extremely large numbers of child abuse material and regrettably most of that material and much of that material is of the same type as is depicted here. There is some similarity with one of the so-called comparable cases and the matter here, and that is the first in the list, the matter of R v Cardwell [2021] QCA 112 which is a Queensland decision.

54. Clearly enough only a term of imprisonment is appropriate to deal with all of the relevant factors for this offence.

55. I have concluded that, after taking into account the discount for a plea of guilty and the s 16BA schedule offence, the appropriate penalty for sequence 2 is a term of imprisonment of 15 months. For sequence 7, bearing in mind that it is a somewhat less serious offence, I have concluded that a term of imprisonment of 12 months is appropriate.

56. Each of those sentences, in my view, should be concurrent with the other. They are separate offences involving different criminality, but they represent more or less the same overall criminality, particularly so as it would appear the offences the subject matter of sequence 7 are more probably than not some of the videos that came into his possession as a result of committing sequence 2. Therefore, the overall sentence is one of 15 months imprisonment.

57. That being the case, the Court is required to determine a period to be spent in custody. I accept that it is open to the Court in an appropriate case to order that an offender be released forthwith on a recognisance release order. I accept, however, that because this is a Commonwealth child sex offence there is a presumption that unless there are exceptional circumstances, the offender should serve some form of actual imprisonment, so that an order with immediate release should only be made where there are those exceptional circumstances. That term is not defined in the Act anywhere, nor was there any attempt to do so in the second reading speech when provisions were made to amend the relevant legislation.

58. I accept that it has been recently considered by the New South Wales Court of Criminal Appeal in R v Bredil [2024] NSWCCA 75 and in particular I refer to the portion extracted by the Crown in its written submissions at [42] and in particular this section:

59. 'Exceptional' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

60. While there is no one circumstance here which could be said to be exceptional, in that each individually might well be seen as being regular or routine or normally encountered, it is open to the Court to consider whether a combination of circumstances demonstrates an exceptional case such that it would be open to the Court to order the offender’s release forthwith.

61. There are a number of circumstances here which give rise to an overall exceptional situation. They include the medical condition of the offender, which is likely to deteriorate in custody, despite the best efforts of Corrective Services and particularly so given that he is now 71. It includes the fact that he is now an almost rehabilitated sex offender and that that rehabilitation is likely to continue with treatment in the community of the type that in fact he might otherwise receive in custody if in fact that were available, provided that he is regarded as significantly high a risk that the treatment is in fact made available to him in the New South Wales prison system. It is the experience of this Court that, given what would probably be a relatively low risk assessment and a relatively short period of actual imprisonment, he is unlikely to receive that treatment in custody. A further factor is that the objective seriousness in particular of sequence 7 is relatively low and, whilst not so low for sequence 2, it is likely that he only came into possession of this material in a way that means he is now described as a child sex offender, because he was otherwise accessing legal pornography. A further factor is that he has been and will likely continue to be subject to extra denunciation and punishment in the community because his name and the nature of this offending has already been published and is likely to be published again following the determination of this sentence.

23. The Court also takes judicial notice, as an additional factor, of the likely impact that the fact of these offences is likely to have on the nature of his incarceration. It is known to the Court that people convicted of offences of this type are likely to be held in protection and are frequently the subject of assault within the gaol system unless in protection. If that were the case, his access to rehabilitation is likely to be even further reduced. Another factor is his almost blameless life up to the age of 70.

24. That is a combination of factors that the Court can take into account and does take into account in determining whether or not this amounts to an exceptional circumstance.

25. I also take into account the fact that if there were to be a period of actual imprisonment for a period of time before a recognisance release order, it would not be for a particularly long period, given the overall term. In determining the length of the sentence, I also take into account the statistics published by the New South Wales Judicial Commission in relation to sentences for offences of this type sentenced in the higher courts in New South Wales. It is for that reason that I make the finding that any term of actual imprisonment would not be for a particularly lengthy period. It would, however, be for a short period interrupting demonstrated sex offender treatment.

26. All of these factors must be weighed up and taken into account and every case, of course, is different. No decision on whether or not this amounts to a case where there are exceptional circumstances in any way diminishes the seriousness of the offending and the extent to which the community condemns the access largely, as I have already said, by middle-aged to older Australian men of child abuse material. However, I have ultimately concluded that this is one of those cases in which, by way of that combination of factors, the Court would determine that this is an exceptional case and that it is open to the Court, whilst setting a term of imprisonment, to order that he be released on a recognisance release order forthwith.

27. I make the following formal orders:

1. The offender is convicted for each offence.

2. For sequence 2, taking into account sequence 5 , the s 16BA schedule matter, he is sentenced to a term of imprisonment of 15 months commencing today.

3. For sequence 7, he is sentenced to a term of imprisonment of 12 months commencing today.

4. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith on the condition that the offender enters into a recognisance, himself in the sum of $500 for a period of 2 years subject to usual conditions imposed by s 20(1B) of the Crimes Act 1914 and the following additional conditions:

1. The offender is to be of good behaviour for the period of the recognisance;

2. The offender is to continue sex offender and psychological treatment with Mr Graham Randall for the length of the prison term;

3. The offender is to accept supervision from New South Wales Community Corrections;

4. The offender is not to access any online pornography sites either in Australia or overseas during the term of the sentence;

73. I realise that this is contrary to the submission made on behalf of the Commonwealth which argues that a term of fulltime imprisonment ought to be imposed, but are there other conditions that are sought in addition to those that I've already set?

74. GARLAND: No, your Honour, other than the conditions prescribed in the Act which I understand you’ve referenced with “usual conditions”.

75. HER HONOUR: When I said “usual conditions”, what it should be in addition to the conditions prescribed in the Crimes Act 1914.

76. HUSSEY: If I may assist your Honour, it’s s 20(1B) and they are the mandatory conditions that must be imposed for a recognisance release order if it’s a Commonwealth child sexual offence, and the Crown have particularised that in para 48 of their submissions.

77. GARLAND: I thank my friend.

78. I make a forfeiture order in terms of the document entitled Forfeiture Order signed by me.

79. EXHIBIT #C FORFEITURE ORDER DATED 20/03/25 TENDERED, ADMITTED WITHOUT OBJECTION

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Decision last updated: 22 April 2025