R v Castellarin

[2021] NSWDC 571

District Court

New South Wales

Medium Neutral Citation:

R v Castellarin [2021] NSWDC 571

Hearing dates:

1 October 2021

Date of orders:

22 October 2021

Decision date:

22 October 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [117].

Catchwords:

CRIME – SENTENCE – use carriage service to access child pornography material.

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Baden v R [2020] NSWCCA 23

DPP (Cth) v Saadieh [2021] NSWSC 1186

Fitzgerald v R [2015] NSWCCA 266

Hili v The Queen (2010) 232 CLR 520; [2010] HCA 45

R v Hutchinson [2018] NSWCCA 152

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Director of Public Prosecutions (Cth) (Crown)
Daniel Castellarin (Offender)

Representation:

Counsel:
S. Dayeian (Offender)

Solicitor/Trial Advocate:
N. Ojerholm (Crown)

File Number(s):

2019/283885

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of an offence pursuant to s 474.19(1) of the Criminal Code Act 1995 (Cth) of use carriage service to access child pornography material. The offence was committed between about 22 and 23 May 2019 and the offender was arrested on 11 September 2019.

2. The maximum penalty for the offence is 15 years imprisonment.

3. The offender was born on 7 August 1972 and was therefore 46 years of age at the time of the offence.

The sentence hearing

4. The sentence hearing took place on 1 October 2021. The Commonwealth Crown sentence summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows. From July 2018, the offender had been employed by Starboard IT. He had been contracted to Pepper Group as a project manager and had been issued with a company laptop. The offender had assigned a password of his own choosing to the laptop.

5. At 10:00am on 22 May 2019, the offender had downloaded what is known as a “Virtual Machine”, which is a virtual computer system that provides the functionality of a physical computer, isolated from the operating environment of the offender’s computer. This allowed the user to operate multiple types of operating systems at the same time.

6. At 10:15am, the offender downloaded what is known as a “tor browser”. This is software that enables anonymous communication via the internet. Use of this software makes it more difficult to trace the location and internet activity of a user. It also allowed access to parts of the internet that are not indexed by traditional web browsers, such as “Google”.

7. Between 11:17am and 2:55pm, the offender downloaded files into a folder which he titled “cul”. Many of the files were then loaded into VLC, a multimedia player. A number of other tasks were performed during the same period of time.

8. The following day, the IT Security Manager at Pepper Group received a malware alert in respect of the offender’s laptop computer. The alert had occurred on 22 May 2019 at 11.20am…