R v Corbett

[2023] NSWDC 248

District Court

New South Wales

Medium Neutral Citation:

R v Corbett [2023] NSWDC 248

Hearing dates:

27 April 2023

Decision date:

12 May 2023

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

SEQ 001:

The offender, Nathan James CORBETT, is sentenced a term of imprisonment of 9 months to commence on 12 May 2023 and expiring on 11 February 2024

Execution of the sentence is wholly suspended upon the condition that the offender enter into a recognizance self in the sum of $1000.00 without security

To comply with the following conditions:

(a) that the offender is to be of good behaviour for a period of 2 years to date from 12 May 2023

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

Supervision to ensure continuation of psychological or psychiatric counselling

To obey the orders of Pauline Jeffress and/or any other appointed Community Corrections Officer

Not to travel interstate or overseas without the written permission of the probation officer.

SEQ 002:

Taken into account under Schedule 16BA

I make forfeiture orders as per the Short Minutes of Order handed up in court and signed by me today.

Catchwords:

CRIMINAL – sentence – transmit child pornography material using a carriage service - solicit child abuse material using a carriage service – seriousness of offences – deterrence – paramount public interest in promoting protection of children - subjective matters

Legislation Cited:

Crimes Act 1914

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

Criminal Code Act 1995

Cases Cited:

Assheton v R (2002) 132 A Crim R 237

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of (2002) 56 NSWLR 14

DPP v Garside [2016] VSCA 74

Gifford v R [2016] NSWCCA 302

Markarian v R (2005) 228 CLR 357

Minehan v R (2010) 201 A Crim R 243

RvGent (2005) 162 A Crim R 29

R v Hutchinson [2018] NSWCCA 152

R v Jones (1999) 108 A Crim 50

Tector v R [2008] NSWCCA 151

Category:

Sentence

Parties:

Rex
Corbett, Nathan James

Representation:

Counsel:
Cr: Ms D New
Def: Mr L Fernandez

Solicitors:
Cr: Ms A Aitken CDPP
Def: Ms J Ceic Nyman Gibson Miralis

File Number(s):

2022/00033146

JUDGMENT

1. HIS HONOUR: Nathan Corbett appears for sentence in respect of an offence of transmit child pornography material using a carriage service contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth). The maximum penalty provided for such an offence is 15 years’ imprisonment and/or a fine of 900 penalty units.

2. There is a further offence contained on a s 16BA Schedule of solicit child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code (Cth). The maximum penalty for that offence is exactly the same as the last offence if being dealt with separately and not on a s 16BA Schedule.

3. The first of those offences was committed on 26 August 2019 and the offence on the s 16BA Schedule was committed between 5 and 7 November 2019. The offender was arrested on 4 February 2022. He has spent no time in custody in respect of these charges.

4. There are Agreed Facts, I intend to refer to the facts that are directly relevant to the two offences rather than what I regard as background information in respect of his relationship with AR which is also contained in the Agreed Facts.

5. On or about 26 August 2019, the offender used a carriage service to transmit child pornography material via Facebook Messenger to Ms AR (Sequence 1). Between 5 and 7 November 2019, the offender used a carriage service to solicit child pornography material from Ms AR (Item 1, s 16BA Schedule).

6. The offender was at the time of the offending a New South Wales law enforcement officer. The offender was not acting in the course of his duties.

The relationship with Ms AR

7. In 2013, the offender and Ms AR commenced a friendship via SMS messages and Facebook Messenger chat. They were introduced through AR’s then husband. By 2016, their communications became sexual and included the exchange of explicit images and videos of each engaging in sexual activities as well as the exchange of various types of pornography.

8. In January 2021, Ms AR provided an induced witness statement in which she confirmed that she and the offender frequently exchanged child pornographic material, including photographs, videos and stories. [I note in that respect of that there is nothing contained in the facts as to any actual videos or stories and the count for sentence of transmit child pornography relates to a single image transmitted on a single occasion.]

9. On about 26 August 2019, the offender and Ms AR exchanged the following messages on Facebook Messenger:

“Offender: Want PD” - (said to be shorthand for paedophilic material) - “how wet are you” - (an unknown image sent) - Like?”

AR: Mm, nice.

Offender: Want PD. Want more. Why? N? Maybe?

AR: N.

Offender: Okay, how come don’t like.

AR: I have plenty to work with LOL.

Offender: Okay, will you show me? Sure don’t want to see dick sucking? Which one using? Or not using?

AR: Oo dick sucking?

Offender: Want?

AR: Yep.”

10. The offender then sent adult pornography to AR together with child pornography. The Facebook chat then froze, and the offender was refused access to his Facebook account.

11. The offender later sent an SMS message to a friend indicating that he “sent someone a message and (was) immediately banned for “breach of policy of content.” A child pornography image was recovered which depicts an “image of a prepubescent child and the child is involved in the act of performing fellatio with (on) two males simultaneously.”

12. Police later attributed this image to Interpol Classification Category 1, namely an image depicting a real prepubescent child involved in a sex act.

13. When the offender’s Facebook account was frozen, the offender exchanged SMS messages with AR in which he expressed worry that he was “in big trouble” and that he would lose his job and go to gaol.

Sequence 2 - Solicit child abuse material (item 1 on the s 16BA Schedule)

14. The conduct on Facebook was reported and referred to Australian law enforcement. In April 2020, a search warrant was executed at the offender’s residence. The offender provided investigators with the passwords to all of his electronic devices, including an Apple iPad which was located with the offender’s cooperation.

15. On forensic examination of the seized Apple iPad an SMS conversation with AR was located. On 5 November 2019, the following messages were exchanged:

“Offender: Can you look? I’d be interested in your opinion of old? Still want? You in bed nude? No?

AR: I’m not in the mood.

Offender: Got baby pic handy then? Or others? Niece? Sister? Neph? I’m guess you have no PD? Do you still like 3-5 as favourite?”.

16. On 7 November 2019, the following messages were exchanged:

“Offender: But you didn’t show me.

AR: LOL.

Offender: Why? N?

AR: Well most things slide in easy.

Offender: Mmm. No? If you could? Did you find that bubba pic?

AR: Yes.

Offender: Do you want a vid of me wanking over it? Cumming? No? Ass?”

17. In her induced witness statement, AR indicated that she had sent a family picture of herself as a baby in the bath to the offender. [I note there is no charge in relation to that particular photograph. There is no information as to whether it was in itself child pornography or simply one of the usual photographs that some parents take of their children when they are very young, bathing or playing in the bathtub.]

18. The agreed facts set out assertions by AR as to the offender posing a number of questions to her at various times. These are not attributed to the date of either of the offences, that is, 26 August 2019 or the soliciting offence between 5 November and 7 November 2019. The questions are of an offensive nature but are not directly relevant to either of the charges, rather to the nature of the relationship between the offender and AR. They are contained in the agreed facts at paras 17, 18 and 19.

19. The offender participated in a police interview on 29 April 2020 and 4 February 2022. The offender gave substantively no comment in interviews on both occasions as was his right.

20. I note in respect of the photograph, the one image relevant to the transmit child pornography material charge, that the image itself has not been produced to the Court, making it difficult to make any determination in relation to its potential seriousness. The only information is that it was an image of a prepubescent child involved in the act of performing fellatio with (on) two males simultaneously.

21. Any image of that nature is of course significantly serious, but even within that description there must be variations in terms of seriousness. It was not a video but a single image. How a child would perform fellatio on more than one adult male simultaneously is left to my imagination in the absence of the photograph.

22. While the information contained in paragraphs 17, 18 and 19 is offensive, it does not directly relate to either of the charges, but as I said before, simply to the nature of the relationship between the offender and AR.

23. In Minehan v R (2010) 201 A Crim R 243 at 94 to 95, relevant matters affecting the objective seriousness of offending for offences, including the transmission of child pornography, were outlined. Those principles were later substantially adopted by R S Hulme, J A Meagher and Button J in relation to cognate Federal offences in R v Hutchinson [2018] NSWCCA 152 at 45.

24. In respect of the transmitted image, applying those principles, it was a single image sent on the one single occasion. The recipient was an adult known to the offender, having personally met her. She was not someone that he had met online. She was not a child or an undercover police officer.

25. AR consented to the sending of the image and the offender knew that before sending the image. He did not harass AR regarding sending of the image. There is no evidence that the image was sent for financial gain or intimidation. The offender held no position of trust or responsibility over AR as is frequently encountered with offences of this type. He was not an adult transmitting material to someone more vulnerable, such as a child.

26. While such an image is serious, there is no evidence that it included violence. I would accept that any image of a child performing fellatio on a single adult or male or even two adult males would be demeaning to the child. The image had apparently been located by the offender searching the internet. He had not traded it with others and was not in transmitting it engaging in any sort of business enterprise involving the sharing and dissemination of child pornography.

27. He transmitted it via Facebook rather than using any encrypted application and it was immediately identified by Facebook and his account was frozen. Transmitting it by Facebook in my view was careless and unsophisticated.

28. I accept that the offender in transmitting it was trying to get the recipient to send photos to him, noting of course that they had previously exchanged photographs of themselves involved in sex acts. There was no doubt some limited premeditation and planning as the offender was seeking a response from AR.

29. In his affidavit and in his evidence on sentence, he indicated that his motivation was to engage AR in order to get her to send naked photos of herself to him. It was not to groom or take advantage of a child as is so often the motivation for these types of offences, and there were no threats made as part of the soliciting. AR was a willing participant in the conduct. The offender accepts by his plea that he was soliciting child pornography. By his evidence he has indicated that he was really seeking photographs of her.

30. The relevant conversations on the 5th and 7th certainly would allow a conclusion that he was soliciting child abuse material. I note however, as I have said before, that the only material apparently sent, according to AR, was a single photograph of herself as a child in the bath. There is no information as to whether that photograph displayed her genitals or any other relevant part of the anatomy and there is no suggestion that she has been charged with transmitting child abuse material.

31. In that event it means that what the offender managed to solicit was potentially an entirely innocuous photograph of the nature I referred to yesterday, one frequently taken by parents of young children without any sexual content or focus.

32. In my view, on the basis of the material placed before me for sentence, Mr Corbett’s offending in relation to each of the charges is not simply at the lower end of the range of seriousness but at the lowest end of the range of seriousness.

33. He is to be sentenced in respect of the transmitted child pornography material using a carriage service and I must in sentencing him take into account a single offence contained on the s 16BA Schedule.

34. The offence on the s 16BA Schedule does not receive a separate sentence but is simply taken into account as a relevant consideration in the assessment of the gravity of the whole course of conduct and the need for personal deterrence and the community’s entitlement to extract retribution as referred to the Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of (2002) 56 NSWLR 14, what in short can be referred to as the guideline judgment concerned with matters contained on a Form 1 under the State legislation. The offence adds marginal criminality to the conduct in Sequence 1.

35. Before the Court in respect of subjective matters are the following; the offender’s criminal history, in respect of which I note he has no previous criminal conviction, a Sentencing Assessment Report under the hand of Pauline Jeffress, 21 April 2023, together with a Sentencing Assessment Report from Windsor Community Corrections being under the hand of Annaliese Mifsud, clinical psychologist with New South Wales Corrective Services.

36. In addition, as previously indicated, the accused gave evidence on sentence.

37. Tendered on his behalf is an affidavit of himself sworn on 20 April 2023, an affidavit of Kylie Catford, sworn on 19 April 2023, she being the current partner of the offender. A report from Dr Pulley, forensic psychiatrist, dated 17 April 2023. A letter from Dr Bartram, psychologist, dated 16 April 2023. A letter from Ms Kerrie Higgins, clinical hypnotherapist, dated 5 April 2023. A letter from James Corbett dated 4 April 2023, the father of the offender. A letter from Marilyn Corbett dated 3 April 2023, the mother of the offender. A letter from Amy Mouafi, dated 19 April 2023, of AM Consultants and Associates. A letter from Ellen Raczkowski, dated 31 March 2023, being a maternal aunt of the offender and his godmother. A New South Wales Police Force Commander’s Certificate of Merit dated 15 November 2016, a New South Wales Police Force Commander’s Certificate of Appreciation, dated 11 November 2013. A University of Tasmania Bachelor of Paramedic Practice Certificate of Appreciation for being a guest speaker, dated 15 July 2013. A letter from Superintendent Waites of the New South Wales Police Force, dated 5 December 2008. A reference from Superintendent Rae New South Wales Police Force, dated 15 February 2006. A letter from Dr Yates, an ophthalmology registrar, dated 29 November 2017. A letter from Hassam Lami on behalf of Dr Pai, a consultant ophthalmologist, dated April 2023. Subjective matters are taken from all of that material.

38. I do not intend to go through the fine detail of each of those matters nor the accused’s evidence on sentence.

39. The conduct by the accused is difficult to understand in the circumstances of him having been, throughout his adult life, since leaving school in effect, a serving police officer up to the age of 44, when he committed these offences. He is now some 47 years of age.

40. As a serving police officer, it could be expected that he would know better than to engage in conduct of this type. It would also be expected that he would understand that if his engagement in contact of this nature was discovered it would cause him to lose his job, which on the material before me, appears to be a job that he loved and devoted himself to. He did not recognise that until such time as he realised Facebook had stopped his account and realised the inevitable consequence was that he was in difficulty and as referred to by him at the time that he would lose his job and at least potentially go to gaol.

41. I note that his father, who has provided a reference, was himself a serving New South Wales Police Officer for some 30-odd years before his medical discharge. The offender grew up in Sydney in Padstow and St Johns Park. He moved with his parents to Coffs Harbour in 1993 when he was 17, after finishing Year 11 which he had to repeat because his previous subjects were not available at his new school.

42. He graduated in 1994 and joined the police academy in 1995. He married when he was 27, and his wife 25, in 2002. There were two children of the marriage. He separated from his wife in 2009, day-to-day custody of the children being with his wife, although he had regular access.

43. The highest rank that he obtained as a police officer was as a sergeant as a temporary appointment and he resigned in 2020 when he was charged in respect of these offences, at which time he was a senior constable.

44. He has suffered from a viral condition to his eyes and has lost some 20 to 25% of permanent vision, particularly in relation to his peripheral vision. During the course of his lengthy police career, he particularly specialised in domestic violence policing for approximately some 13 years. He has worked at various places in relation to domestic violence. He was part of the domestic violence and family violence team at police headquarters, being part of the Corporate and Policy Team responsible for implementing domestic violence policies in New South Wales. They developed training for New South Wales Police in that field and he mentored some 100 to 150 specialist DV police throughout the State, being in the team from 2009 to 2015.

45. He has been a representative of the New South Wales Police Force in establishing the DV Helpline and the Elder Abuse Helpline in New South Wales. He wrote the standard operating procedures for the correct recording of all domestic violence incidents. He has also represented the NSW Police Force on several external interagency committees, the Apprehended Violence Legal Issues Consultative Committee, the Police Multicultural Advisory Council and the Same Sex DV Interagency Committee. He has been involved in numerous law reforms and New South Wales Police Force procedural improvements.

46. After some 13 years in the field of domestic and family violence, he moved to the Bias Crimes Unit, now renamed as the Hate Crimes Unit, for a period of some three years between 2015 and 2018. That unit specialised in targeting right wing extremists, white supremacists and politically motivated groups and individuals who preyed on victims due to sexuality, race, gender, disabilities, homelessness, mental illness and the elderly.

47. He received departmental commendation and public recognition for his efforts as indicated by the material before me. He was nominated for Police Officer of the Year in 2016 for organising and facilitating the first Australasian Policing Forum on Organised Hate Groups. That forum involved all States and territories as well as the Federal police and intelligence jurisdictions, including ASIO and New Zealand Federal Police, as well as several international law agencies from the United States, including the FBI and the United Kingdom.

48. At the time of his resignation, he was attached to the Police Prosecutions Command from 2018 and running the Witness Unit for AVL for witnesses in summary prosecutions. He had been responsible for implementing the Court matter file management system across the state-wide police prosecutions command and New South Wales Courts.

17. He resigned on 18 December 2020 of his own volition but was not arrested until 4 February 2022. His current partner indicates in her letter to the Court that she was shocked and concerned by his conduct in regard to these matters but has elected to stand by him, holding him in high regard despite the offending.

18. I note in relation to the facts before me that although the offender provided his electronic equipment to the police there is no suggestion that anything was found on his iPad or any other device as is typically found in relation to matters such as this; that is, a library of offending material. In my experience of matters such as this that come before the Court, it is the usual course that those who have a real paedophilic interest in children accumulate videos and images to be able to feed their perverted interest on a regular basis, much of the material being acquired from other like-inclined persons. In my view it is significant that all that can be located in relation to this offender was one single image that he had sent to AR, and which according to his affidavit was something that he had found online in order to provide it to her.

19. As a result of his retirement from the police force, he obtained work elsewhere but left that work when charged with the current offence. I accept that the impact of this offending on him has been of a serious and detrimental nature. I accept, as indicated in his affidavit to the Court, that he is genuinely remorseful and contrite and takes full responsibility for his own conduct and recognises the adverse impact such images and involvement with them can have on members of the community.

20. I also accept that having been formally suspended on 17 April 2020 from his job as a police officer he has been at times in the intervening period suffering from suicidal ideation and highly concerned about the effects of his conduct on his partner, his parents, his children and is sorry for the embarrassment that he has caused to the police service, particularly by breaking his oath of office and breaking the law.

21. The offender has had an enormous fall from grace. He describes it in the affidavit as having “fell into an abyss of despair, shame and paralysing fear...the consequences of my past reprehensible actions were resoundingly made clear to me.” I accept that that is an accurate description of the effects on him.

22. I note that Dr Pulley has diagnosed the offender as suffering from post‑traumatic stress disorder, major depressive disorder (recurrent, in remission) and a compulsive sexual behaviour disorder.

23. Dr Pulley, in respect of the offender’s compulsive sexual behaviour disorder, stated at 56:

“Mr Corbett fulfils diagnostic criteria for compulsive sexual behaviour disorder as described in the international Classification of Diseases 11th Revision. He manifests a persistent pattern of inability to control intense repetitive sexual impulses or urges. His consumption of pornography was repetitive and became the central focus of his life to the point of neglecting health and personal care. There were adverse consequences including marital conflict and legal consequences of his sexual behaviour. The behaviour continued over many years and is not better accounted for by another mental disorder. It primarily took the form of masturbation use of pornography but also consensual sexual encounters with others. It appeared that the behaviour appeared intense, irresistible, uncontrollable and out of bounds of normal. Underlying causes contributed to this disorder include exposure to childhood sexual abuse, normalising sexual behaviour at a young age leading to its utilisation as a means of gaining relief from anxiety and psychological distress. Some of this distress may have arisen from conflicted emotions caused by the sexual abuse itself. By self‑report this condition appears to be in partial remission”

(I note in the material before me the offender refers to having been sexually abused at about the age of 9).

56. Dr Pulley identified a nexus between the offender’s mental condition and the offending behaviour as follows:

“In my opinion there is a significant nexus between Mr Corbett’s offending and his mental conditions. At the time of his offences, he was highly affected by symptoms of PTSD and depression. These conditions were exacerbated by his concerns about his eye condition. His pre-existing addiction to sex and pornography led to this being increasingly utilised as a strategy for coping with psychological distress. His desire to share pornography with Ms AR represents part of his addiction and maladaptive coping strategy of using sexual contact to cope with psychological distress. His account of being primarily interested in sexualised text messages from Ms Ross is plausible. Collateral information regarding the amount and nature of pornography found on his devices would be useful in corroborating this aspect of his account.”

57. I note of course it must be in his favour that there is no evidence of any other material being located on any of his devices.

58. I accept Dr Pulley’s opinion and acknowledge that where a person’s mental health contributes to the commission of the offences in a material way, the offender’s moral culpability may be reduced, and accordingly the need to denounce the crime may be reduced with a reduction in the sentence.

59. The Court is required to take into account the utilitarian value of a plea of guilty. In this case the plea of guilty was entered on 14 December 2022 at the Burwood Local Court. I accept that that was an early plea and that he is duly entitled to a discount of 25% in relation to any sentence to be imposed. Such a discount has been taken into account.

60. A plea of guilty in relation to Federal offences may also be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility and/or a willingness to facilitate the course of justice. I accept that the offender’s plea of guilty reflects each of those matters.

61. He has in his evidence an affidavit to the Court adopted by his evidence taken full responsibility for his actions, he does not endeavour to blame anyone else, and he accepts that his conduct was wrong.

62. At para 44 of his affidavit, he said:

“As to the wrongfulness of the context of what I was saying in my conversations I always knew I was wrong. I overrode my own judgment. I was so fixated on AR I lost the ability to control myself. I made the conscious choice to involve myself in these conversations. Some of the content I came up with were bizarre and violent as well as sexually depraved...I should have known better on several levels and yet I still choose to commit these crimes...I am extremely sorry for my actions.”

63. Dr Pulley noted in respect of the offender’s contrition,

“Mr Corbett reported a sense of distress at betraying himself and everything he stood for in his actions including his ethics and morals, his office, his partner and the esteem of his sons.”

64. Dr Pulley assessed his risk of reoffending as appearing to be low, noting of course that the actuarial tools, such as Static-99, have little validity in relation to offenders of this nature.

65. Ms Jeffress of Community Corrections assessed the offender as being at a low risk of reoffending according to the Level of Service Inventory - Revised.

66. Annaliese Mifsud, psychologist, in her report simply noted that Static-99 cannot be used for child abuse material offences.

67. Having considered all of the material before me, and the impact that being discovered and charged with these offences has had on the offender, in my view he would be more likely to be appropriately assessed as a very low risk of reoffending.

68. He has made significant efforts in the intervening period to address his problems: having consulted with Dr Bartram after being referred by his general practitioner on 17 April 2020, the offender first attended for treatment on 21 April 2020, and from then up to the date of the report, being 16 April 2023, he had attended 28 sessions, weekly for the first seven sessions, fortnightly for seven sessions, tapering to monthly then a one year break and recommencing on February 2022 for eight sessions. His most recent visit at the time of the report was on 17 March 2023, approximately one month before the report.

69. Ms Higgins, a clinical hypnotherapist, also indicates that he had been attending online group programs referred to as the Authentic Insight Program, for a period of 18 months, attending weekly for two hours, the program being designed to guide participants towards “absolute authenticity within themselves and in their life”. She has also seen the offender regularly in one-to-one sessions since 21 May 2020. She states:

“Throughout his time working with me he has remained consistent with appointments, seeing me approximately every three weeks to date. This allows me to assess how he integrates the information he gains from the sessions, and that it is being applied.”

70. She refers to him as having communicated that he had been suffering from suicidal ideation. She states:

“Mr Corbett had a sexual addiction to deal with which began when he was a teenager and escalated...he has displayed a keen and I believe genuine desire to understand himself and his prior actions. He has been forthcoming in discussing the unresolved parts of his own personal history and now has a greater awareness of what drove his prior unlawful actions. Mr Corbett has remained self‑motivated in his progress and in attending sessions.

In many ways it has been rewarding to work with Mr Corbett. He has been open, allowing me to challenge his prior viewpoint and behaviours. He displays the ability to be honest and to connect himself where necessary. I consider Mr Corbett’s progress has been hard-earned and sincere.”

71. I note the offender’s mother and father stand by him and have indicated they will continue to stand by him.

72. Amy Mouafi of AM Consultants and Associates first met the offender when she had commenced working with New South Wales Police Force as a civilian officer working directly in the realms of victims of domestic and family violence. She similarly holds the offender in high regard.

73. She refers to him in the past as having suffered some form of suicidal ideation in April 2011 and then taking some time off work to get professional help with what had then been identified as post-traumatic stress. She has continued to have ongoing contact with the offender and seen his support networks collapse as a result of this offending, particularly because most of his friends were police officers and they were not permitted to socialise with him.

74. She observes that his current relationship, while surviving, has not been without some difficulties to work through. She states, “the Nathan of today recognises that he has no one else to blame for his actions but himself and has changed his whole outlook on life.”

75. As part of the material provided is the New South Wales Police Force record, being a computer printout, which on p 7 of the report records awards provided to the offender in the course of his work as a police officer. In 2000, complementary remarks. In 2001 again, complementary remarks. In 2004, an acknowledgment of good police work. In 2007, a New South Wales Police medal. In 2008, complementary remarks. In 2009, complementary remarks. In 2009, New South Wales Police medal. In 2014 a first clasp to the New South Wales Police medal and later in 2014, a national medal. In 2016, National Police Service Medal. In 2002, complementary remarks. In 2012, a CAP unit citation. In 2013, a certificate of appreciation.

76. As I have referred to before, the material tendered on his behalf includes, attached to Exhibit C1, a number of individual certificates and letters of commendation in relation to his work.

77. If I have not said it before, I accept that the offender is genuinely remorseful and contrite. I accept that there is a very low risk of his reoffending and that he has made significant efforts in the intervening period to rehabilitate himself and there is a good prospect that he will succeed in rehabilitation. Nonetheless, this offending will follow him forever.

78. It is trite to say that he will never be able to return to work, such as that which he embarked on from school as a police officer. He will forever have difficulty in relation to other occupations where offending of this nature is a disqualifier. I note that in recent times he has been working as a cleaner at a supermarket, storage or distribution centre, an occupation of far lessor importance or community recognition than being a police officer.

79. The offender has expressed his high degree of fear and anxiety should he be required to serve an actual term of imprisonment as to how he would be treated by other prisoners while in custody. It is well known that offenders who are ex-police officers and offenders serving sentences for paedophile type offences are frequently the subject of harsh treatment including violence from other inmates. I accept that his fears are realistic and that despite the best efforts of Corrective Services and the availability of protective custody that offenders who fall within either of those two categories, let alone both as here, can reasonably expect to be seriously victimised by other inmates.

80. I do not accept on this limited evidence that he actually has a physical sexual interest in children; that is, I accept that he is not a paedophile in that sense, after careful consideration of all of the material.

81. The Court is required to impose a penalty of a severity appropriate in all the circumstances, s 16A(1) of the Crimes Act (Commonwealth) and the Court is required to have regard to the factors referred to in s 16A(2). I can only sentence the offender to imprisonment if I am satisfied that no other sentence is appropriate in all the circumstances of the case, s 17A(1).

82. I acknowledge that in the case of child pornography or abuse material a term of immediate imprisonment is ordinarily appropriate and expected, DPP v Garside [2016] VSCA 74 at 62 86-87.

83. It has been consistently stated that sentences for offending of this nature ought to send a clear deterrent message both to the offender and the public. When introducing the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act of 2020, the second reading speech contained the following statement:

“Sexual crimes against children destroy lives. The depraved individuals who prey on these most vulnerable members of our community for their own sexual gratification or financial gain are too often handed short gaol terms and are released into the community without any supervision, or worse still, without serving a single day in prison. Meanwhile, victims are left to face the resulting trauma for the rest of their lives.

These current sentencing practices for Commonwealth child sex offences are out of step with community expectations. They do not reflect the severity of the harm inflicted by these predators and they fail to protect our children and communities from further offending. This government is completely committed to ensuring that the predators who commit these heinous crimes receive the sorts of sentences that the community would expect.”

84. I note that that amendment significantly changed the sentencing regime in relation to child sex offences and increased the penalties as well as including a mandatory minimum sentencing regime, as well as providing in s 21(b)(iii) that immediate release on recognisance was no longer available for offenders unless there were “exceptional circumstances”. This offender’s offences occurred before those amendments; however, the Court is required to have regard to the objective of rehabilitation as provided by s 16A(2AAA).

85. General deterrence has always been found to have a significant role in sentencing for child sex offences, more particularly in relation to child sex offences, that is, offences involving actual children, but general deterrence remains significant in respect of offences of this nature because there is intrinsic harm to children caused by these offences. There is a considerable difficulty of detecting the commission of such offences and the dissemination of any child abuse material of any sort fuels the fantasies of child sex offenders and it may stimulate persons with such inclinations to commit sexual acts against children.

86. In Markarian v R (2005) 228 CLR 357 it was said that a sentence involving an immediate term of imprisonment is ordinarily required. General deterrence is the primary sentencing consideration for offending involving child pornography, Assheton v R (2002) 132 A Crim R 237 and a number of following cases.

87. There is also a paramount public interest in promoting protection of children, as offences involving activities such as the transmission or possession of child pornography/abuse material are not victimless crimes. Children are sexually abused in order to supply the market, R v Jones (1999) 108 A Crim 50 at 9. Less or limited weight is given to the offender’s prior good character, R v Gent (2005) 162 A Crim R 29 at 44. It was held in Tector v R [2008] NSWCCA 151 that repeated communications may reveal a persistence in the conduct. In my view, in relation to this matter, the incidents are significantly isolated and cannot really be regarded as a persistent form of conduct.

88. Also said to be relevant is whether the offender ceased the communications of his own accord, Gifford v R [2016] NSWCCA 302 at 41. In this matter Facebook blocked the offender’s account but he did then cease transmitting such material. Of course, that was because of his recognition that he had created a serious problem for himself. I note the Crown accepts that the offending is in the low range of the spectrum of objective seriousness.

89. The offender is now 47 years of age, nearly 48 years of age. He has had the stress of this matter in fact hanging over his head since the time that his Facebook account was stopped, and certainly since the time that he was charged and arrested on 4 February 2022. His arrest, in my view, simply brought home to him the seriousness of what he had already recognised as serious at the time that his Facebook account was stopped.

90. I have given considerable consideration in relation to this matter as to whether it passes the threshold and could be dealt with pursuant to s 21(A) of the Crimes Act. I have in the end come to the conclusion that offences of this nature are in general of such seriousness that there needs to be some deterrent value in the sentence and that to take such an approach would be inappropriate, however it has been submitted by Mr Fernandez of counsel on behalf of the offender, and accepted by the Crown during the sentence proceedings, that in this case it is open to the Court to take the course of imposing a sentence but allowing the offender to be released immediately on a recognisance, and in my view that is the appropriate sentence to be imposed in this matter.

91. Accordingly, Mr Corbett is convicted. I sentence him to a term of imprisonment of nine months, but he is to be released immediately on a recognisance on agreeing to forfeit $1,000 if in breach and to accept supervision, particularly to ensure his continuing attendance for psychiatric or psychological counselling.

He is to obey in that regard the orders of Pauline Jeffress, Senior Community Corrections Officer at the Windsor Community Corrections office, and/or any other appointed Community Corrections officer to deal with this matter for a period of two years from today.

Is there anything else, particularly Madam Crown, that I need to do?

AITKEN: Your Honour, under s 20(1b) there are some standard conditions that are--

HIS HONOUR: That I have to tell him of?

AITKEN: I understand the legislation does require for those orders to be made.

HIS HONOUR: Yes, all right. I’m sorry, I can’t quite find what you’re referring to.

AITKEN: Your Honour, under s 20 of the Crimes Act, further down there is - independent of subs (1) there is subs (1b).

HIS HONOUR: Yes.

AITKEN: Where it states, “if at least...under para 1b”, following that it says, “the conditions that...that specified period”. Then it sets out A through D. I’m more than happy to state those aloud if that assist, your Honour?

HIS HONOUR: Yes, that would be handy.

AITKEN: “A. Be subject to...with the order,” which I understand your Honour has done. “B. Obey all reasonable...the probation officer.”

HIS HONOUR: Which I’ve already done.

AITKEN: Yes, your Honour, and “C. Not travel interstate...officer reasonably directs.”

HIS HONOUR: All right.

92. I will amend my order by adding in C and D.

93. I had forgotten about the not travel interstate. All right. Thank you, Mr Corbett, that completes your sentence matter and I hope you manage to find something useful to do with your life. You made a significant contribution to the New South Wales Police Service in my view in the time you were there. It’s tragic that you have committed these offences, and put in colloquial language, “screwed” your otherwise good career. I have no doubt that you will not reoffend in this or any other matter, and unfortunately, I am constrained by the legalisation and by the caselaw as to having to impose at least this sentence on you. Thank you. You’ll need to go up to Level 3 to sign some paperwork.

AITKEN: Your Honour, I do apologise to interject. Might I just clarify, I’m unaware if on the last occasion, and I believe it would not have been done on account of conviction--

HIS HONOUR: This is the forfeiture document?

AITKEN: Yes, your Honour, s 23 is the forfeiture document.

HIS HONOUR: Yes. There’s no need to stand, this is just the forfeiture of your Apple iPad. I know I had two copies of the short minutes of orders, and I signed and stamped both of them, but I can only find one now and there’s not one that has Mr Corbett’s signature on it, nor mine, nor a stamp. There must have been three copies.

AITKEN: Your Honour, I can indicate that I provided an additional copy to my friend this morning which may be signed.

HIS HONOUR: Yes, all right.

SPEAKER: It is, I can give that to the Court.

HIS HONOUR: That’s been signed by him?

SPEAKER: Yes, thank you.

HIS HONOUR: I’ve found at least one that’s signed. It would be easier if I just hand this down and we can get Mr Corbett to sign it.

94. I will make the order orally that pursuant to s 23ZD of the Crimes Act 1914 in respect of the conviction of Nathan James Corbett of the offence set out in the second schedule, the property specified in the first schedule is forfeited to the Commonwealth.

95. There is to be no order as to costs or any other order.

96. The first schedule refers to the exhibit, being the Apple iPad referred to at 12 and 13 in the statement of agreed facts. The second schedule sets out the charge.

Do you want that, Madam Crown?

AITKEN: Those orders to be made?

HIS HONOUR: I’ve made them. Do you want the document?

AITKEN: A copy of the document? I’m more than happy to contact the registry if there is only one copy. Thank you, your Honour

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Decision last updated: 10 July 2023