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R v Brooks

R v Brooks

Case [2025] NSWDC 354 28 March 2025

Sentencing

Child sex offences

Using a carriage service to transmit child abuse material

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Brooks [2025] NSWDC 354
Hearing dates: 21 March 2025
Date of orders: 28 March 2025
Decision date: 28 March 2025
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Aggregate sentence of 2 years. Offender released immediately upon entering into a recognizance release order in the sum of $1 for a period of 2 years at [160].
Forfeiture of devices to Commonwealth Director at [162].

Catchwords:
SENTENCING — Child sex offences — Using a carriage service to transmit child abuse material – Using a carriage service to access child abuse material – Using a carriage service to possess or control child abuse material – Strong subjective circumstances – Advanced age – Health issues – “exceptional circumstances”

Legislation Cited:
Crimes Act 1914 (Cth) s 3E, 16A, 17A, 20, 23ZD
Criminal Code Act 1899 (Qld)
Criminal Code Act 1995 (Cth) s 474.22, 474.22A

Cases Cited:
Crowder (a pseudonym) v The King [2024] VSCA 211
DPP (Commonwealth) and DPP (Vic) v Garside [2016] VSCA 74
DPP (Cth) v Gregory (2011) 34 VR 1
DPP (Cth) v Zarb [2014] VSCA 347
Elwdah v R [2024] NSWCCA 150
Gulyas v Western Australia [2007] WASCA 263
Imbornone v R [2017] NSWCCA 144
Jackson v R [2020] NSWCCA 230
Markarian v The Queen (2005) 228 CLR 357
Mertell v The King [2022] ACTCA 69
Minehan v R [2010] NSWCCA 140
R v Bredal [2024] NSWCCA 75
R v Cardwell [2021] QCA 112
R v De Simoni (1981) 147 CLR 383
R v Fuller [2010] NSWCCA 192
R v Howard [2024] NSWDC 514
R v Hunter [2022] NSWDC 631
R v Pacey [2025] NSWDC 53
R v Porte [2015] NSWCCA 174
R v Qutami (2001) 127 A Crim R 369
R v Smith (1987) 44 SASR 587
R v Sykes [2009] QCA 267
Wong v The Queen (2001) 207 CLR 584
Young v R [2021] SASCA 51

Category: Sentence
Parties: Rex (Crown)
John Benedict Brooks (Offender)
Representation:
Counsel:
S Hoad (Crown)
J Sabharwal (Offender)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Matt O’Brien Solicitors (Offender)

File Number(s): 2023/00181386
Publication restriction: N/A

JUDGMENT

John Benedict Brooks appears for sentence following his pleas of Guilty to three offences under the Commonwealth Criminal Code. Two offences are charged pursuant to s 474.22(1) of the Criminal Code and the third offence is charged under s 474.22A(1) of the Criminal Code.
The first count relates to an offence of use of a carriage service to transmit child abuse material; the second alleges use of a carriage service to access child abuse material; and the third count relates to use of a carriage service to possess or control child abuse material. Each offence separately carries a maximum penalty of 15 years imprisonment. The maximum penalty operates as a yardstick in the determination of an appropriate sentence.
The offences arose from the Australian Federal Police executing a search warrant on 6 June 2023 pursuant to s 3E of the Crimes Act 1914 (Cth) upon the residence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brooks

Details

AGLC: R v Brooks [2025] NSWDC 354
Case: [2025] NSWDC 354
Decision Date: 28 March 2025

CaseChat Overview and Summary

The case of R v Brooks involved the defendant, who was convicted of using a carriage service to transmit, access, and possess child abuse material. The matter was heard in the Supreme Court of Queensland. The central issue before the court was to determine an appropriate sentence for the defendant, considering his advanced age and health issues, which the defence argued constituted exceptional circumstances warranting a reduced sentence.

The court had to weigh the severity of the offences against the defendant’s personal circumstances. The defence highlighted his age, which was 84 years at the time of sentencing, and his deteriorating health, which included terminal cancer and dementia. The defence counsel argued that these factors warranted a departure from the normal sentencing principles applicable to such serious offences. The prosecution, on the other hand, submitted that the gravity of the crimes necessitated a substantial custodial sentence to reflect the community’s condemnation of such activities.

After considering the submissions from both parties, the court acknowledged the exceptional personal circumstances of the defendant. However, it found that these circumstances did not absolve the need for a significant punitive response. The court concluded that while the defendant’s age and health were mitigating factors, they did not warrant a departure from the general principles of sentencing for such serious offences. The court ultimately imposed an aggregate sentence of 2 years imprisonment, but ordered that the defendant be released immediately upon entering into a recognizance release order. Additionally, the court ordered the forfeiture of the devices used in the commission of the offences to the Commonwealth Director.

Orders

Orders of the court

Aggregate sentence of 2 years. Offender released immediately upon entering into a recognizance release order in the sum of $1 for a period of 2 years at [160].

Forfeiture of devices to Commonwealth Director at [162].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Brooks [2025] NSWDC 354

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Pacey [2025] NSWDC 53
Citation 1 (Para 109)

…A similar outcome was reached in R v Pacey [2025] NSWDC 53. The offender in that matter was 18 years of age at the time of the offences. He pleaded Guilty to three offences contrary to the Commonwealth Criminal Code . The first charge was of using a carriage service with the intention of procuring a person under 1…
R v Howard [2024] NSWDC 514
Citation 2 (Para 102)

…In R v Howard [2024] NSWDC 514, the offender pleaded Guilty to one offence of using a carriage service to procure a person under the age of 16 for sexual activity. The offender in that matter had similarly communicated with an assumed online identity purporting to be a 13-year-old girl. The communications had taken…
Crowder (a pseudonym) v The King [2024] VSCA 211
Citation 3 (Para 121)

…In Crowder (a pseudonym) v The King [2024] VSCA 211, the Court of Appeal in Victoria refused an application for leave to appeal against the severity of sentence in relation to two offences relating to child abuse material. The first count charged using a carriage service to access child abuse material and the seco…
Elwdah v The King [2024] NSWCCA 150
Citation 4 (Para 99)

…The Court of Criminal Appeal again gave consideration to s 20(1)(b) of the Crimes Act 1914 in Elwdah v R [2024] NSWCCA 150. That was similarly an appeal with respect to a single offence of using a carriage service to groom a person under the age of 16 years. The offending conduct followed the offender engaging in fi…
R v Bredal [2024] NSWCCA 75
Citation 5 (Para 88)

…The NSW Court of Criminal Appeal gave consideration to the provision of s 20(1)(b) in R v Bredal [2024] NSWCCA 75. That was an appeal by the Commonwealth Director against the asserted inadequacy of a sentence imposed upon the respondent, Mr Bredal, following a plea of Not Guilty and a trial with respect to a single…
Mertell v The King [2022] ACTCA 69
Citation 6 (Para 127)

…The next case handed up by the Crown was Mertell v The King [2022] ACTCA 69. This was an appeal against the severity of a total effective head sentence of 6 years and 3 months imprisonment with a non-parole period of 2 years for nine offences relating to accessing and/or possessing child abuse material. The appell…
R v Hunter [2022] NSWDC 631
Citation 7 (Para 5)

…of her Honour Judge Tupman of this Court regarding providing prurient gratification to others who may read the detail of the judgment (see R v Hunter [2022] NSWDC 631 at [37]). It is sufficient to note that the children depicted in various of the images and files which were retrieved ranged in age from approximatel…
Young v the Queen [2021] SASCA 51
Citation 8 (Para 119)

…The last case provided by the Crown was Young v R [2021] SASCA 51. The offender had access to child abuse material and transmitted child abuse material via online chat conversations with three other persons over a period of months in 2018. The offender had a limited number of videos and images and had no prior con…
R v Cardwell [2021] QCA 112
Citation 9 (Para 117)

…The next case provided by the Crown was R v Cardwell [2021] QCA 112. The offender was 69 years of age and had no prior criminal history. He co-operated with police and made admissions and had taken some steps towards rehabilitation. He was charged with two offences contrary to the Commonwealth Criminal Code relat…
Jackson v The Queen [2020] NSWCCA 230
Citation 10 (Para 70)

…onment more arduous then if he were in good health. But it is important to bear in mind the expressions of opinion in judgments such as Jackson v R [2020] NSWCCA 230 that the Court should avoid creating any expectations that older persons can offend with relative impunity.…
Imbornone v R [2017] NSWCCA 144
Citation 11 (Para 82)

…that the Court of Criminal Appeal has consistently reminded first instance judges to exercise since R v Qutami (2001) 127 A Crim R 369, Imbornone v R [2017] NSWCCA 144, and other cases involving material which is unsworn and untested by cross-examination.…
DPP (Cth) v Garside [2016] VSCA 74
Citation 12 (Para 130)

…of that judgment reference was made to a number of comparative cases to which I will refer but briefly. In DPP (Commonwealth) and DPP (Vic) v Garside [2016] VSCA 74, a sentence in the County Court of a Community Correction Order which was the equivalent of an Intensive Correction Order for a period of 4 years was…
R v Porte [2015] NSWCCA 174
Citation 13 (Para 131)

…R v Porte [2015] NSWCCA 174 related to accessing and possessing 34,143 items of child abuse material of which almost 28,000 fell into Category 1. The offender was 49 years of age and suffered from significant spinal degeneration requiring surgery.…
DPP (Cth) v Zarb [2014] VSCA 347
Citation 14 (Para 133)

…In DPP (Cth) v Zarb [2014] VSCA 347, the offender was given a total effective sentence of 3 years and 3 months to be served by way of a Community Correction Order which, as I have already indicated, was the Victorian equivalent of an ICO. The Court of Appeal upheld a Crown challenge on inadequacy and re-sentenced…
DPP (Cth) v Gregory [2011] VSCA 145
Citation 15 (Para 57)

…Court in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 228 CLR 357, and by the Victorian Supreme Court in DPP (Cth) v Gregory (2011) 34 VR 1, amongst other cases.…
R v Fuller [2010] NSWCCA 192
Citation 16 (Para 67)

…ous authorities in this area and reference has been made in the Crown’s submission particularly to the comments of McClellan CJ at CL in R v Fuller [2010] NSWCCA 192. The significance of general deterrence is and must be recognised. Statements to the effect that these types of offences are abhorrent and that offende…
Minehan v R [2010] NSWCCA 140
Citation 17 (Para 59)

…RA Hulme J in Minehan v R [2010] NSWCCA 140 set out a number of factors of relevance to an assessment of the objective seriousness of offences involving the possession or transmission of child abuse material. These include whether actual children were used in the creation of any of the material; the nature and conte…
R v Sykes [2009] QCA 267
Citation 18 (Para 135)

…In R v Sykes [2009] QCA 267, an appeal against severity was dismissed. The offender had accessed child pornography using a carriage service and was in possession of material described as child exploitation material pursuant to the Queensland Criminal Code . The carriage service accessed child pornography which ha…
Gulyas v The State of Western Australia [2007] WASCA 263
Citation 19 (Para 69)

…Such observations derived from cases such as Gulyas v Western Australia [2007] WASCA 263 and others are often adverted to not only in cases involving child abuse material but also in cases involving the actual abuse of children historically. It is relevant to take into account and give consideration to the characte…
Markarian v The Queen [2005] HCA 25
Citation 20 (Para 57)

…s rather than adopting a multi-stage approach. Such was made clear by the High Court in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 228 CLR 357, and by the Victorian Supreme Court in DPP (Cth) v Gregory (2011) 34 VR 1, amongst other cases.…
Wong v The Queen [2001] HCA 64
Citation 21 (Para 57)

…ctive synthesis of the relevant considerations rather than adopting a multi-stage approach. Such was made clear by the High Court in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 228 CLR 357, and by the Victorian Supreme Court in DPP (Cth) v Gregory (2011) 34 VR 1, amongst other cases.…
R v De Simoni [1981] HCA 31
Citation 22 (Para 60)

…remind the Court to be cautious in relation to the transgressions and to bear in mind the principles articulated in the High Court in R v De Simoni (1981) 147 CLR 383, that is, elevating particular offending to take into account more serious factors that would require a more serious offence being charged.…

Legislation Cited

Crimes Act 1914 (Cth) 16A, 17A, 20, 23ZD, 3E
6 mentions (from Para 3)
Criminal Code Act 1899 (Qld)
2 mentions
Criminal Code Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v Brooks [2025] NSWDC 354
Hearing dates:	21 March 2025
Date of orders:	28 March 2025
Decision date:	28 March 2025
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Aggregate sentence of 2 years. Offender released immediately upon entering into a recognizance release order in the sum of $1 for a period of 2 years at [160]. Forfeiture of devices to Commonwealth Director at [162].
Catchwords:	SENTENCING — Child sex offences — Using a carriage service to transmit child abuse material – Using a carriage service to access child abuse material – Using a carriage service to possess or control child abuse material – Strong subjective circumstances – Advanced age – Health issues – “exceptional circumstances”
Legislation Cited:	Crimes Act 1914 (Cth) s 3E, 16A, 17A, 20, 23ZD Criminal Code Act 1899 (Qld) Criminal Code Act 1995 (Cth) s 474.22, 474.22A
Cases Cited:	Crowder (a pseudonym) v The King [2024] VSCA 211 DPP (Commonwealth) and DPP (Vic) v Garside [2016] VSCA 74 DPP (Cth) v Gregory (2011) 34 VR 1 DPP (Cth) v Zarb [2014] VSCA 347 Elwdah v R [2024] NSWCCA 150 Gulyas v Western Australia [2007] WASCA 263 Imbornone v R [2017] NSWCCA 144 Jackson v R [2020] NSWCCA 230 Markarian v The Queen (2005) 228 CLR 357 Mertell v The King [2022] ACTCA 69 Minehan v R [2010] NSWCCA 140 R v Bredal [2024] NSWCCA 75 R v Cardwell [2021] QCA 112 R v De Simoni (1981) 147 CLR 383 R v Fuller [2010] NSWCCA 192 R v Howard [2024] NSWDC 514 R v Hunter [2022] NSWDC 631 R v Pacey [2025] NSWDC 53 R v Porte [2015] NSWCCA 174 R v Qutami (2001) 127 A Crim R 369 R v Smith (1987) 44 SASR 587 R v Sykes [2009] QCA 267 Wong v The Queen (2001) 207 CLR 584 Young v R [2021] SASCA 51
Category:	Sentence
Parties:	Rex (Crown) John Benedict Brooks (Offender)
Representation:	Counsel: S Hoad (Crown) J Sabharwal (Offender) Solicitors: Director of Public Prosecutions (Cth) (Crown) Matt O’Brien Solicitors (Offender)
File Number(s):	2023/00181386
Publication restriction:	N/A