R v Curle

[2023] NSWDC 654

District Court

New South Wales

Medium Neutral Citation:

R v Curle [2023] NSWDC 654

Hearing dates:

14 April 2023

Date of orders:

9 June 2023

Decision date:

09 June 2023

Jurisdiction:

Criminal

Before:

Baker SC DCJ

Decision:

See [122] – [124]

Catchwords:

CRIME — sentencing — offence under the Criminal Code Act 1995 (Cth), s 474.22(1), s 474.22A(1) — use a carriage service to access child abuse material — use a carriage service to transmit child abuse material — possess child abuse material obtained using a carriage service — Bugmy considerations — rehabilitation — recognizance release order

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 572

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Dungay v R [2020] NSWCCA 209

Grange v R [2023] NSWCCA 6

Lloyd v R [2022] NSWCCA 18

Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243

R (Cth) v Nafarette [2022] NSWDC 225

R v Hutchinson [2018] NSWCCA 152

R v Porte [2015] NSWCCA 174; 252 A Crim R 294

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Category:

Sentence

Parties:

Robert Curle (the offender)
Commonwealth Director of Public Prosecutions (the Crown)

Representation:

Counsel:

Ms S Goodwin (the offender)
Mr A Brown (the Crown)

Solicitors:

Mr M Djurichkovic (the offender)
Ms T Hartcher (the Crown)

File Number(s):

2022/00068192

JUDGMENT

Introduction

1. The offender, Robert Curle, appears for sentence for the following offences:

1. Sequence 1: On 9 March 2022, he possessed Child Abuse Material obtained using a carriage service, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’).

2. Sequence 2: Between 24 February 2022 and 9 March 2022, he used a carriage service to access Child Abuse Material, contrary to s 474.22(1) of the Criminal Code.

3. Sequence 3: Between 23 January 2022 and 8 March 2022, he used a carriage service to transmit Child Abuse Material, contrary to s 474.22(1) of the Criminal Code.

2. All three offences carry a maximum penalty of 15 years imprisonment.

3. On 2 December 2022 the offender pleaded guilty to the offences in the Penrith Local Court and the matters were committed for sentence.

4. The sentence hearing took place on 14 April 2023 at Penrith District Court.

Background

The arrest

5. On or before 8 March 2022, NSW Police received information that the offender's social media accounts contained and/or had been associated with Child Abuse Material.

6. On 9 March 2022, NSW Police attended the offender's home and executed a Commonwealth search warrant.

7. During the execution of the search warrant, and under Police caution, the offender admitted to having "child porn" consisting of images and videos in the messaging application "Telegram", which he used on both his mobile phone and computer. The offender admitted that whilst he was mostly receiving the files in chats with different people on Telegram, he was also sending child abuse material. He further disclosed that he had used "KiK" (an instant messaging application) in the past to receive child abuse material videos of child victims up to the age of 12, and that he had been banned from KiK. He admitted to sending Child Abuse Material movies and photos up to 4-5 times a week.

8. During the search warrant, Police seized a number of electronic devices, including the offender’s Samsung Galaxy S22 mobile phone (“the mobile phone”) and desktop computer. The offender provided Police with the passcodes to his mobile phone and desktop computer on request.

9. At the time of seizure, Police opened the Telegram application on the offender’s phone and a video recording was taken of some of the chats contained in the offender’s account. The offender was able to answer Police questions about how to interpret the different information on the screen when the Telegram app was opened.

10. On 9 March 2022 the offender was placed under arrest and released on bail. He has spent no time in custody to date for his offending.

The offences

11. Between about 23 January 2022 and 8 March 2022, the offender engaged in online communications via the Telegram messenger application. During these communications, the offender sent and received Child Abuse Material in the form of images and videos to and from other Telegram users. An examination of the offender’s Desktop computer hard-drive, Telegram account and Samsung mobile phone revealed that the offender had accessed Child Abuse Material files via Telegram, had saved both Child Abuse Material files from Telegram and Telegram messages containing Child Abuse Material to his Telegram account and Desktop computer, and had saved Child Abuse Material files from other sources to his Desktop computer and mobile phone.

12. Sequence 1 relates to the offender’s possession of Child Abuse Material found on his desktop computer, on the Telegram application and on his mobile phone on 9 March 2022.

13. Sequence 2 relates to the offender’s earlier access to Child Abuse Material using his Samsung Galaxy S22 mobile phone between 24 February 2022 and 9 March 2022.

14. Sequence 3 relates to the offender’s earlier transmission of Child Abuse Material to various recipients via the Telegram application between 23 January 2022 and 8 March 2022.

15. Child Abuse Material is classified into categories under the Interpol Categorisation System. This classification system provides two tiers of child abuse material. Category 1 is the Interpol Baseline which is used in a number of international jurisdictions because it identifies sexual material involving pre-pubescent child victims that is illegal in all countries with child exploitation material laws. Category 2 is for material which falls within the Australian definitions of child abuse material which are broader than the international baseline, including sexual material involving post-pubescent child victims and material involving physical abuse and torture of any child.  The system does not give a gradation based on the gravity of the child abuse depicted or described in the material, unlike previous classification systems.

Sequence 1 – possession of child abuse material

The desktop computer

16. On 31 March 2022, Police examined the offender’s desktop computer hard drive and located a total of 619 video files and 40 images files. All of these files were categorised as Category 1. The age of the child victims in the video files ranged from as young as 2 to 13 years old. They were predominantly female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included (adult) penile/ (child) anal penetration, (adult) penile / (child) vaginal penetration, (child) penile/ (child) vaginal penetration and (child) oral sex.

17. The images files depicted real prepubescent female child victims and the material depicted children either involved in a sex act or was focused on the child's anal or genital region.

18. Two examples of these video files include a 5 minute and 13 second video file depicting a real prepubescent female tied to a couch while an adult male penetrated her vaginally with his penis, and a 24 second video depicting a 3- or 4-year-old female wearing a pink child's night dress being anally penetrated by an adult male’s penis.

19. In addition, the offender possessed two written stories constituting Child Abuse Material which was saved in the hard drive of the desktop. Metadata revealed that these two stories were accessed and downloaded by the offender from a website on 28 October 2021.

20. Both stories were assessed as being category 2 and are described as an adult man engaging in sex with an 8-year-old girl and a ‘pre-teen’ girl engaging in sex with a man.

The mobile phone – Telegram saved messages

21. During the search warrant, Police reviewed 254 Telegram chat messages which had been saved by the offender in the Telegram application on his mobile phone. Each of the saved messages contained at least one image or video file. The files included:

1. 60 Child Abuse Material images, which Police categorised as Interpol category 1. The age of the child victims appeared to range from 2 to 13 years old. They were all female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included (adult) penile/(child) anal penetration, (adult) penile/(child) vaginal penetration and (child) oral sex.

2. 384 Child Abuse Material video files, which Police categorised as Interpol category 1. The age of the child victims appeared to range from 2 to 13 years old. They were predominantly female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included (adult) penile/(child) anal penetration, (adult) penile/(child) vaginal penetration and (child) oral sex. One file was (child) penile (child) vaginal penetration.

22. Three of the video files were files received by the offender from "Pablo Rodriguez" during the chat referred to later in my judgment, in response to the following messages sent by the offender: "Hello there". "I love your forced videos". These files are described as:

1. A 1 minute and 54 second video file depicting a real, prepubescent female being held down on a bed and an adult male performing penile/vaginal penetration in several positions while the prepubescent female is seen to be struggling and crying;

2. A 22 second video file depicting a real, prepubescent female tied to a bed head by her wrists and an adult male forcing his penis into her mouth; and

3. A 22 second video file depicting a real, prepubescent female tied to a wall by her wrists and an adult male forcing his penis into her mouth.

The mobile phone – files saved on the SD Card

23. During a further review of the offender’s phone, two Interpol category 1 video files were found to be saved in the Downloads folder of the SD Card associated with the mobile phone. The first had been downloaded on 28 January 2022, and the second on 13 February 2022. The videos depicted the following:

1. 1 minute and 2 second video depicting an adult male vaginally penetrating a real prepubescent female;

2. A 22 second video depicting a real, prepubescent female tied to a wall by her wrists and an adult male forcing his penis into her mouth; and

3. A 2 minute and 57 second video depicting an adult female fellating a real prepubescent male.

Sequence 2 – accessing child abuse material

The mobile phone – Telegram

24. An examination of the offender’s mobile phone also located a total of 1333 Child Abuse Material video files which had been downloaded by the offender from the Telegram server between 24 February 2022 and 9 March 2022 and stored temporarily on his device as a result of the offender opening them through the Telegram application. All files reviewed were categorised as Interpol category 1.

25. The child victims ranged from 2 to 13 years of age and were predominantly female child victims. The files depicted the victims either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included (adult) penile/ (child) anal penetration, (adult) penile / (child) vaginal penetration, (child) penile /(child) vaginal penetration and (child) oral sex.

26. Examples of the files include:

1. A 23 second video of a real, prepubescent female being held down on a bed and crying while an adult male conducted penile/vaginal penetration;

2. A 1 minute and 10 second video depicting a real prepubescent male being masturbated and having oral sex performed on him by an adult female; and

3. A 49 second video depicting a real prepubescent female with her wrists tied behind her back and tape gagging her mouth as an adult male holds her on the bed and penetrates her vaginally as she cries and struggles.

Sequence 3 – transmitting child abuse material

The mobile phone – Telegram

27. Further Police examination of the Telegram application on the offender’s mobile phone revealed a number of conversations in which the offender, under the username “Robert”, transmitted Child Abuse Material video and/or image files to the other participants. Some of the image files contained multiple Child Abuse Material Images and all contained at least one Interpol category 1 image.

28. An examination of the conversations confirmed that the offender transmitted a total of 114 Child Abuse Material files to 11 different recipients.

29. The child victims ranged in age from 2 to 13 years old. They were predominantly female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included anal penetration of a child by an adult male, vaginal penetration of a child by an adult male, and penetrative and oral sexual activity between children.

Cristian chat

30. Between 6 and 8 March 2022, the offender and an unknown person with the username “Cristian” exchanged messages and Child Abuse Material videos and/or images via Telegram. The offender sent 13 Interpol category 1 Child Abuse Material files in the form of messages containing Child Abuse Material files that had been sent to him by other users. In the course of this exchange, the offender also queried whether “Cristian” had any “forced videos”.

Carlos chat

31. Between 23 January 2022 and 20 February 2022, the offender and an unknown user – whose account had been deleted at the time the contents of the offender’s Telegram account were reviewed by Police – exchanged messages and Child Abuse Material videos and/or images via Telegram. The offender sent 30 Interpol category 1 Child Abuse Material files and messages containing Child Abuse Material files. In the course of this exchange, the unknown user enquired: “…you have another CP group to send me please?.. because I have just one...”, to which the offender responded, “Same here they are all closed”. “CP” means Child Pornography.

Andrianna chat

32. On 3 March 2022, the offender and an unknown person with the username “Andrianna”, exchanged sexually explicit messages via Telegram. In the course of this conversation the offender sent Andrianna 12 category 1 Child Abuse Material videos by forwarding messages from other users containing the files, and two pictures of an adult penis implied to be his. After receiving some of the Child Abuse Material videos, Andrianna messaged: “do you have more of the little ones drinking milk please I want it”.

Chad Perez chat

33. Between 31 January 2022 and 3 February 2022, the offender and an unknown person with the username "Chad Perez" exchanged messages – including descriptions of Child Abuse Material – and Child Abuse Material videos and/or images via Telegram. The offender sent 15 Interpol category 1 Child Abuse Material files and messages containing Child Abuse Material files. At the commencement of this exchange, both participants indicated that they were looking at "CP", meaning child pornography. The offender queried whether Chad Perez had any kids and Chad Perez advised the offender that he "wish[ed] he had a daughter, though, for fun stuff ", to which the offender responded, "Me two [sic]" and sent a Child Abuse Material file. Further into the exchange, the offender advised Chad Perez: "I like to watch little girls sucking cock. Or forced" and "no little boys please".

ELW chat

34. Between 5.41pm on 5 March and 9.50am on 6 March, the offender and an unknown person with the username "ELW" exchanged Child Abuse Material videos and/or images via Telegram. The offender sent 4 Interpol category 1 Child Abuse Material files and messages containing Child Abuse Material files. There was no conversation in this exchange.

Felicia chat

35. Between 5 and 8 March 2022, the offender and an unknown person with the username “Felicia” exchanged messages and Child Abuse Material videos and/or images via Telegram. The offender sent 3 Interpol category 1 Child Abuse Material files or messages containing files. He asked Felicia what she looked like and whether he could see her naked. During this exchange, Felicia queried: “u have teens 12 16 17 years”, to which the offender responded, “No all under 12”.

Juan s chat

36. Between 23 January 2022 and 16 February 2022, the offender and an unknown person with the username “juan s” exchanged messages and Child Abuse Material videos and/or images via Telegram. The offender sent 4 Interpol category 1 Child Abuse Material files or messages containing files. During this exchange, the offender stated: “Do you have any forced sucking and fucking”.

Pablo Rodriquez chat

37. Between 22 February 2022 and 3 March 2022, the offender and an unknown person with the username “Pablo Rodriguez” exchanged messages and Child Abuse Material videos and/or images via Telegram. The offender sent 7 Interpol category 1 Child Abuse Material files or messages containing files. The exchange commenced with the offender messaging: “hello there. i love your forced videos.” In response, Pablo Rodriguez sent the files I referred to earlier. The offender also forwarded these same files to “Cristian”, “Carlos”, “Andrianna” and “Dale”.

Skye Exp chat

38. Between 25 January 2022 and 29 January 2022, the offender and an unknown person with the username “Skye Exp” exchanged messages and Child Abuse Material videos and/or images via Telegram. In the course of chat the offender transmitted 21 Child Abuse Material files or messages containing files and stated: “So what nudes you have of little girls” and “I love little girls”. Skye Exp also queried, “do you have preteen”, following which the offender forwarded a message containing Child Abuse Material and said, “Not many” and “Most are under 12”.

Blue Savvy chat

39. Between 6 and 8 March 2022, the offender and an unknown person with the username “Blu Savvy” exchanged messages and Child Abuse Material videos and/or images via Telegram. The offender sent 2 category 1 Child Abuse Material files or messages containing files. On 8 March 2022, he asked Blu Savvy: “do you have any forced videos”.

Dale chat

40. On 23 February 2022, the offender sent an unknown person with the username “Dale” 3 Category 1 Child Abuse Material videos and/or images via Telegram.

Police interview with the offender

41. After his arrest, the offender was taken to Blacktown Police Station where he agreed to participate in a record of interview, during which he made the following admissions:

1. The Samsung S22 Galaxy mobile phone was the phone that he used to access “child porn”.

2. He had had the Telegram app for a couple of years. He described Telegram as a “chat app” and did not know whether it stored or deleted messages.

3. There were up to 50 videos of “little girls” aged 12 and under saved in his Telegram account, which mainly depicted the young girls having vaginal and oral sex with adult men.

4. He obtained the videos from other people, stored them in the Saved section of the Telegram app and had “occasionally” sent them to other people.

5. The videos ranged in length from 10 seconds to an hour.

6. There were also photographs of naked girls on the Telegram App.

7. He started receiving the Child Abuse Material videos around the same time as he installed the Telegram app. He had been sending the Child Abuse Material videos for about a year.

8. He had sent maybe 20 or 30 Child Abuse Material videos. These videos were, again, videos of child victims having sex with adults.

9. He did not know that the child victims were under the age of 12 but was guessing it based on their appearance.

10. He did not know the girls in the photos.

11. He was sometimes aroused by the videos and sometimes masturbated to the videos.

12. He was the only person with access to his phone.

13. The Telegram app was additionally stored on his computer. As far as he was aware none of the Child Abuse Material videos and photos were saved on the computer.

The offender’s subjective case

42. At the time of these offences the offender was 53 years old and had been married for over 20 years. He has no children. He was employed operating a charity organisation which had one employee at the time of the sentence proceedings.

Sentence assessment report and attached case note report

43. A Corrective Services sentencing assessment report dated 28 March 2023 (Exhibit B) was prepared by a Community Corrections Officer, Mr Brian Pham. Mr Pham interviewed the offender and his wife. Mr Pham reported that the offender’s wife was shocked to find out about the offences but affirmed her ongoing support for him.

44. The offender told Mr Pham that he was grateful to be arrested as he now realises he has a problem. The offender said he was aware he was doing the wrong thing but did not realise that it had become an addiction.

45. Mr Pham was of the view that despite the regret the offender has expressed, he has “limited insight into the impact of the offending and was primarily concerned with the impact it had on himself and his wife”.

46. Mr Pham assessed the offender as a Tier 2 low risk of reoffending. Mr Pham also provided a possible supervision plan that included the offender being required to undertake a psychological assessment by Corrective Services after sentencing to determine his supervision level and treatment. The offender was assessed as suitable to undertake community service work.

47. A case note psychological report by Mr Alex Quan was tendered as part of Exhibit B. The purpose of the report was to provide an actuarial risk assessment and comment on the offender’s eligibility for sex offender treatment programs.

48. The offender was assessed using the Child Pornography Offender Risk Tool and scored 1 out of a possible 7. He obtained this score due to indication of paedophilic and/or hebephiliac interest. Mr Quan reported that compared to male offenders convicted of contact offences, non-contact offenders are generally at a lower risk of sexual re-offending.

49. Mr Quan reported that that offender would be ineligible for sex-offender programs in custody. However, he may be eligible for the RUSH program to improve mood and emotion regulation.

The evidence called by the offender

50. A treatment report of Mr Graeme Randall, psychologist, dated 29 March 2023 (Exhibit 2), and an assessment report of Dr Olav Neilsen, psychiatrist, dated 29 March 2023 (Exhibit 3) were tendered on behalf of the offender. The offender, his wife and Mr Randall also gave evidence at the sentence proceedings.

The offender’s background

51. The offender’s background is set out in the two reports. The offender did not know his biological father and believed his stepfather to be his father until he was in his thirties. The offender’s stepfather was physically abusive to both his mother and him until his stepfather left the home when he was around 12 years old. The offender left school during year nine following arguments with his mother and ran away from home. He said his attitude changed after spending several weeks in a boys’ home and he returned home to his mother and found a job soon afterwards. The offender has been employed since then and has worked all his adult life except for a period when he was recovering from a work injury.

52. The offender told Mr Randall his childhood was “pretty crappy” and had experienced bullying at school and some violence at home. He recalls an occasion where his mother burnt his fingers for setting fire to a toy box and her friends using illicit drugs in his presence.

53. The offender told Mr Randall that he had very few friends throughout his childhood. He said he had three significant intimate relationships and had been married to his wife for twenty years. He said that during his other relationships he began using adult pornography to alleviate negative feelings throughout his later teen years, it eventually becoming a daily activity and coping mechanism.

54. Mr Randall was of the opinion that the offender’s difficulty in forming appropriate relationships was likely exacerbated by his observations of his parent’s dysfunctional relationship, and the excessive discipline he reported. Mr Randall was of the opinion that the offender’s use of adult pornography was a coping mechanism that likely further prevented him from engaging and developing deep intimacy with his partners.

55. The offender told Dr Nielsen that around 10 years ago he was seeing a general practitioner because of anger problems and that he had been diagnosed with depression. The offender said that in 2016 he was prescribed medication for depression and for anxiety and he had responded well.

56. Dr Nielsen said that the offender appeared labile in his emotional responses during the assessment and did not seem pervasively anxious or depressed. Dr Nielsen said that, if anything, the offender was a little uninhibited in his remarks about the offending and his frank account of his sexual behaviour.

57. In evidence the offender said for over six or seven years his stepfather was an alcoholic and that almost every day he would get drunk and would use his hand, fist or a belt to beat his mother and him for “no good reason”. This only ended when aged 12 or 13, when his stepfather moved out. This occurred before he ran away from home. The offender said he slept on the streets and would sometimes shop lift. He got caught, was charged and spent three weeks in a boys’ home. The offender said that after he left the home he spoke to his mother, and she let him smoke at home which he said was the cause of the problems at home. He said he then moved home and went into the work force.

The offending and the offender’s account

58. The offender told Dr Nielsen that “basically I have been addicted to porn for some years now…I accidently stumbled upon the younger stuff in a chat room on Telegram.” He told Dr Nielsen that viewing the material created an interest, and he found himself drawn to images and videos featuring pre-pubescent female children, and he said, “I looked at it until I became bored with that material as well”.

59. The offender told Dr Nielsen that he had accessed a website with fictional stories of sexual activity with children but said he had not downloaded any stories, only images (I note that the agreed facts state that two such stories were downloaded). In evidence the offender said that he did not realise that he had downloaded them.

60. The offender told Dr Nielsen he did not know why he read those stories but said “I think it was because it was taboo.” The offender told Dr Nielsen that he found the Telegram group through a link on Facebook and that he started off with friendly chats in chat rooms until they were closed down and then had private one on one conversations with members of the group, in which he swapped his images.

61. The offender told Dr Nielsen that this started off with messages being exchanged about the types of pornography that they were interested in, and he had around six or seven contacts at any one time, including those listed in the agreed facts. He said he did not know the people personally and assumed they were from all over the world.

62. The offender told Dr Nielsen that the offences took place over a period of three to four years prior to his arrest in early 2022. He said part of the attraction was communicating with other people, which he related to his own isolation which included the COVID Lockdown period. In evidence, the offender said that he could not remember when he started viewing child abuse material. When asked how he came up with this period of three to four years that he told Dr Nielsen and that when he spoke to police, he said that it was around a year, the offender said that when speaking to Dr Nielsen he was feeling nervous and anxious and that his “brain starts to panic” and he must have made a mistake. He said he tends to blurt out the “first thing to my brain”.

63. In cross-examination the offender was asked to “do his best” to remember over what period of time he believed he had been viewing child abuse material. Although he initially had said he could not remember he then said, “to be fair, maybe between one and two years.”

64. I note that I found the offender’s evidence in chief on this point disingenuous and indicative of my overall assessment of the offender that at different times he attempted to minimise his interest in the child abuse material.

65. The offender told Dr Nielsen that he was aware that accessing the material was illegal, but he said that “because I was addicted to porn so much yes…I took the chance.” In cross-examination the offender said that this was a “wrong answer”. He said that it was not that he “took a chance”, he said he knew that it was illegal but “I wasn’t thinking at the time.” He said that he has found out more recently that, “it’s because of my addiction to porn and my intimate issues.” I found the offender’s change on this point to be another example of him minimising his offending and admitted interest in the child abuse videos (see the agreed facts).

66. The offender confirmed to Dr Nielsen that the video files and images were stored on his computer because he said unlike adult porn it was not readily accessible and needed to be downloaded and stored. The offender told Dr Nielsen that he did review a number of the video files, but said that he mostly only watched them once, and he said, “before I was arrested, I was getting bored with them.”

67. In evidence that offender repeated that before he was arrested, he was “just getting bored with watching child pornography.” I do not accept the offender’s evidence on this and note that even in the days just immediately before the offender’s arrest he was actively seeking to acquire “forced videos”.

68. The offender told Dr Nielsen that although there were distressing images of children being abused, he said he did not like those himself, but had shared them. He also said that he had a high libido and masturbated regularly while watching pornographic videos.

69. The offender in evidence said that he “did not like the content of the video of forcing children to have sex. I only saved them on my computer in the off-chance I can swap for non-violent videos.” He said that he would swap non-violent videos with people around the world. When asked about the comments he made to others to the effect, “I really like that”, he gave evidence that he only said that “because he found out that if you’re on the chatroom and you don’t say certain things, people would not talk to you again.”

70. In cross-examination the offender was further asked about his evidence concerning the forced videos. He agreed that these were videos where children were either tied up or being forced to have sex with adults. The offender was asked why at times he told other Telegram users that he “loved” their forced videos. The offender said that he only said those things at the time because if he did not say certain things people would not talk to him on Telegram. It was put to the offender that he did enjoy those videos and that he was actively pursuing them for his own purposes. The offender denied that and said the only reason he had saved those videos was to share them with other people on Telegram. The offender denied that he was sexually aroused by the forced videos. He said that if he knew someone had a particular video that he might be interested in, he would ask them if they were interested in forced videos and then he would swap videos.

71. The offender told Dr Nielsen that he did not believe that his sexual attraction to prepubescent children was a long-standing interest, and that he “found it by accident…I started reading the stories and that led me down a dark hole of Telegram.” The offender denied having a specific attraction to children, despite the nature of the images he stored. He told Dr Nielsen, “I think the biggest problem I have is that I don’t enjoy sex.”

72. In evidence the offender said he accepts Dr Nielsen’s diagnosis of him having a paedophilic disorder. He sought to explain this denial of sexual interest in children by saying that he “actually misunderstood the question” he was asked and thought that he was being asked if he “wanted to actually have sexual intercourse with children.” Even allowing for the offender’s comprehension difficulties, I found this to be another example of the offender trying to minimise his interest in the child abuse material.

Dr Nielsen’s diagnosis

73. Dr Nielsen diagnosed the offender as having a depressive illness (in partial remission) and a paraphilic disorder. Dr Nielsen was of the opinion that the offender’s depressive illness was in partial remission based upon the offender’s own account of improvements in mood after taking medication and the effect of his recent counselling with Mr Randall and his presentation when he did not appear especially depressed.

74. In relation to the further diagnosis of paraphilic disorder, Dr Nielsen was of the opinion that this was in the form of a preference for voyeuristic sexual behaviour, and the development of an attraction to prepubescent females. This diagnosis was made on the basis of the offences themselves and the offender’s own account of being addicted to viewing pornography. Dr Nielsen said that since being introduced to child abuse material the offender developed a specific interest in pornographic material involving children. The offender also engaged in communications to source and share the material, and stored a large number of files in a pattern that is common of digital hoarders who are aware that the material is taboo and difficult to obtain.

75. In relation to the risk of reoffending, Dr Neilsen reported that there are no scales to estimate the probability of reoffending for non-contact offences such as possession of child abuse material, in part because the recidivism rate is so low. Dr Nielsen is of the opinion that although having an addiction to child abuse material increases the probability of reoffending, there are other relevant factors such as the offender reporting losing interest in the material, having had a positive response to treatment with Mr Randall, and the ongoing support from his wife.

76. In relation to the question of whether the offender would find imprisonment to be onerous because of his condition, Dr Nielsen was of the opinion that imprisonment would inevitably exacerbate any symptoms of depression and anxiety.

Mr Randall’s report and evidence

77. Following the offender’s arrest, he was referred for psychological treatment to Mr Randall, psychologist. Mr Randall has been treating the offender since 18 May 2022 and at the time of the report had seen the offender on seventeen occasions for counselling. In evidence Mr Randall said that the program generally takes between one and two years and the offender was not even halfway through the program.

78. Mr Randall reported that the offender was initially reluctant to engage in therapy, however, after the first two sessions, Mr Randall said the offender noted that he had begun to have developed insights and perspectives which he had not previously considered. Mr Randall was of the opinion that as a result, the offender’s engagement in the sessions has been “remarkable”, that he “regularly talks about looking forward to the sessions, and often notes he misses the sessions when there is an extended gap between sessions.”

79. Mr Randall reported that the offender had difficulty with the vocabulary required to share concepts, which required a slower delivery of the treatment. However, Mr Randall was of the opinion that the offender “had made remarkable progress and gained significant insights into his offending behaviour, past distorted thinking, and past maladaptive coping mechanism.”

80. Mr Randall reported that the offender had said that he had gained insight into his previous distorted thinking regarding pornography and the importance of developing close relationships. Mr Randall was of the opinion that a significant insight gained by the offender is his realisation that he had difficulty with witnessing and expressing intimacy.

81. Mr Randall reported that whilst treatment is available in custody, those programs are limited and generally reserved for inmates at a high risk of reoffending. Mr Randall acknowledged that his report concerned treatment rather than providing a risk assessment but yet offered an opinion that in light of the offender’s response to treatment, his risk of reoffending is “very low”. As such, Mr Randall reported that he did not believe that the offender would be able to access treatment in custody.

82. Mr Randall was also of the opinion that any interruption to the offender’s treatment, caused by a custodial sentence, would likely be detrimental to his long-term recovery. Mr Randall was of the opinion that any custodial sentence “would add to his experience of trauma from childhood, reinforce his behaviour of isolation, as well as his previous maladaptive coping mechanisms, such as sexual behaviour”. Mr Randall reported that in his view a custodial sentence would “undo the progress currently made through therapy and significantly increase the difficulty in engaging in future therapy, thereby increasing the risk of future reoffending.”

83. Mr Randall said in evidence that he believed that the custodial environment would reinforce the “culture of trauma and abuse” that the offender had experienced, and that the offender would “go back to his shell and retreating back to his old ways of thinking” and “that reinforcement would make future re-engagement a bit more difficult and would interfere with some of the progress he's made.” Although in cross-examination, Mr Randall accepted that the offender’s insight would remain, but that he may close down emotionally.

84. I note that in evidence the offender (who gave evidence after Mr Randall) said that it had been explained to him that there was a high likelihood of him going into custody and his counsel asked him how he thought he would go in custody. The offender said, “Honestly, not well.” He said that “it will be undoing all the good work that I’ve had with Mr Randall for a start.”

Sentencing considerations

Assessment of the objective seriousness

85. It is well established that the objective seriousness of offences involving child abuse material and child pornography is ordinarily determined by reference to the following factors:

1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. The proximity of the offender’s activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.

11. Whether the offender acted alone or in a collaborative network of like-minded persons.

12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

14. Any other matter in s 16A of the Crimes Act 1914 (Cth) (‘the Crimes Act’) bearing upon the objective seriousness of the offence.

86. See Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94], as summarised in R v Hutchinson [2018] NSWCCA 152 at [45].

87. In assessing the objective seriousness of an offence of possession of child abuse material, it must also be borne in mind that the possession of child abuse material creates a depraved market for the continued corruption and exploitation of children: R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (at [67]. The absence of sale, distribution or dissemination of material does not mitigate the penalty for a possession offence: Porte at [66]. The possession of child pornography is not a victimless crime. On the contrary, because the material remains in the community, the offence creates significant ongoing harm.

Submissions

88. The Crown submits that as a whole, the course of the offending indicates that the offender has a particular interest in young females (aged under 12) being subjected to a “forced act” – that is, young females who are bound or otherwise detained being subjected to various forms of forced sexual assaults. Also, that his interest was of some duration and that the offender pursued it with particular determination over the two-week period when he accessed 1,333 video files. There is no evidence that the offender paid or profited financially from the material, nor that he was in any close proximity to the producers of the material.

89. A relevant consideration for all three of the offences is that despite the personal circumstances of the children being unknown, there is an intrinsic harm caused by the creation of the child abuse material, and considering the age of the child victims it is inherent that cruelty, harm and injury would have been occasioned to them.

Sequence 1 – possession charge

90. In relation to sequence 1, the offender possessed a total of 1,107 saved files across two devices which totalled 1,005 videos, 100 images and two stories.

91. Ms Goodwin on behalf of the offender submitted that this offence falls below the mid-range of seriousness. I do not agree with this assessment. For the reasons identified by the Crown, I find that this offence constitutes a particularly serious example of the offending of its type. Those reasons are as follows:

1. All of the video and image files depicted real prepubescent children;

2. The real children depicted ranged in age from as young as 2 years old to 13 years old;

3. The files had been saved over a period of 4-5 months, with the two “stories” downloaded on 28 October 202119 and one of the video files saved on the offender’s mobile phone having been saved on 13 February 2022;

4. The offending involved a total of 1,107 files, of which a significant proportion were video files;

5. The video files included highly depraved material, such as children engaged in sex acts, specific examples of which are as follows:

1. A three- or four-year-old female wearing a pink nightie being anally penetrated by an adult male;

2. A prepubescent female tied to a wall by her wrists being forced to perform fellatio;

3. A prepubescent female being held down on a bed, struggling and crying as an adult male performed several acts of penile/vaginal penetration on her;

4. A prepubescent female tied to a couch with an adult male penetrating her vaginally with his penis; and

5. A prepubescent female tied to a bed by her wrists being forced to perform fellatio.

6. As an aspect of the depravity of the material, it included (as described above) children in a distressed state who were subjected to acts of cruelty and what must, given the nature of the acts, have amounted to physical harm;

7. The offender did not indiscriminately collate the material but was actively seeking such depraved content, as is apparent from conversations he had with other Telegram users:

1. He asked the user “Cristian” whether he had any “forced” videos;

2. He wrote to the user “Chad Perez”: “I like to watch little girls sucking cock. Or forced”;

3. He asked the user “Juan S”, “Do you have any forced sucking and fucking”;

4. He wrote to the user “Pablo Rodriguez”, “hello there. I love your forced videos”; and

5. He asked the user “Blu Savvy”, “Do you have any forced videos”.

8. I reject the offender’s claim to Dr Nielssen and in evidence that he did not himself like distressing images of children being abused in light of the offender’s active sourcing of them as just described. I do not accept the offender’s evidence that his motivation for acquiring them was to exchange or swap them for non-violent material. If I am wrong about this, I do not consider this would make it more favourable for the offender.

9. It is apparent from the above exchanges that the offender’s motivation for accumulating the child abuse material was in part his own sexual gratification. Further, the offender told police in a record of interview that he was “sometimes aroused by the videos and sometimes masturbated to the videos”.

10. The offender clearly had a specific attraction to children given the nature of the material he collated and the content of the conversations he shared with other Telegram users. In evidence, the offender admitted as much. Dr Nielssen was of the opinion that the offender seemed to have developed “a specific interest in pornographic material involving children, consistent with a diagnosis of heterosexual paedophilia”; and

11. An additional purpose for the offender’s possession appears to have been the further dissemination of the material to like-minded individuals. Although I note that the actual acts of dissemination are the subject of a separate charge and care must be taken to avoid double-counting.

Sequence 2 – access charge

92. Sequence 2 relates to the offender using his mobile phone and the Telegram application to access 1,333 video files containing child abuse material.

93. Ms Goodwin on behalf of the offender submitted that this offence falls below the mid-range of seriousness. I do not agree with this assessment. For the reasons identified by the Crown, I find that this offence constitutes a particularly serious example of the offending of its type. Those reasons are as follows:

1. All of the video and image files depicted real prepubescent children;

2. The real children depicted ranged in age from as young as 2 years old to 13 years old;

3. The files had been accessed over a period of two weeks, suggesting an intense level of interest over that period;

4. The offending involved a total of 1,333 video files;

5. The video files included highly depraved material, such as children engaged in sex acts. Specific examples included:

1. A prepubescent female being held down on a bed crying while an adult male subjected her to penile/vaginal penetration.

2. A prepubescent male being masturbated and having oral sex performed on him by an adult female; and

3. A prepubescent female with her wrists tied behind her back and tape gagging her mouth, crying and struggling as an adult male held her on a bed and penetrated her vagina.

6. As these examples demonstrate, an aspect of the depravity of the material are the depiction of real children in a distressed state who were subjected to acts that involved cruelty, degradation and what must have amounted to physical pain;

7. The offender’s access to this form of content was deliberate rather than indiscriminate; and

8. The offender’s motivation for accessing this content was for his own sexual gratification.

Sequence 3 – transmission charge

94. Sequence 3 relates to the offender transmitting a total of 114 files containing child abuse material. Ms Goodwin on behalf of the offender submitted that this offence falls below the mid-range of seriousness towards the lower end of the range. I do not agree with this assessment. For the reasons identified by the Crown I find this offence to be a serious example offending of this type. Those reasons are as follows:

1. All the files transmitted depicted real children ranging in age from approximately 2 to 13 years;

2. The transmission of the specific files took place over a period of 44 days (approximately 7 weeks). Given the offender’s admissions that he had been sending material for a longer period than this, the offending is not mitigated due to it being an isolated aberration;

3. The offending involved the transmission of 114 files to a total of 11 different users.

4. I find of particular relevance that the material that the offender actively sought and transmitted included the highly depraved material that I have already described and was referred to by the offender as “forced acts”; and

5. The offender’s motivation for transmitting the material was in order to gain access to further material himself, and he was participating in a loosely connected network of likeminded individuals.

Moral culpability – Bugmy considerations

95. An offender will be less blameworthy for an offence where the offender’s disadvantaged background, or mental illness, in some way “explains”, is connected with, or otherwise sheds light on the offending: Bugmy v The Queen [2013] HCA 37; 249 CLR 572 at [44]-[45]. A strict causal connection between the offender’s disadvantaged background and the offending is not required before a Court can make a finding of reduced moral culpability: Dungay v R [2020] NSWCCA 209 at [153] Lloyd v R [2022] NSWCCA 18 at [27]. However, where there is a clear causal relationship between the offending and an offender’s background, the offender’s moral culpability may be significantly reduced. Where the connection is not as strong there may be less of a reduction.

96. The offender had a somewhat traumatic childhood during which he experienced early exposure to alcohol, domestic violence, interrupted school attendance and a transient period of homelessness. Ms Goodwin submitted that this background impacts on the assessment of his moral culpability and should moderate the weight attributable to general and specific deterrence and protection of the community. The Crown questions the existence or degree of correlation between the offender’s childhood experiences and his offending conduct.

Evidence of any causal connection

97. Dr Nielsen reported that he found that there was no obvious explanation for the development of the offender’s abnormal sexual interest in his early development, and that the difficulties he did experience appear to have had a maturing effect on him as he reported starting work from that early time and being consistently employed for most of his adult life, and able to form a stable marriage with a supportive partner.

98. Although Dr Randall did not prepare an assessment report, in cross-examination he said that he was of the opinion that, “there was some association” between the offender’s childhood background and the offending because he witnessed his parents’ dysfunctional relationship which reinforced certain dysfunctional behaviours and his coping mechanism of watching pornography which in turn led to trying to find other ways of meeting his emotional needs. In cross-examination, Dr Randall said that he based this opinion on the offender’s “whole history”. When pressed on being more specific in terms of the particular features of the offender’s background that would have contributed to his offending, Dr Randall said he could not be more specific, and it was the offender’s entire history. The Crown questioned the value of this approach.

99. I am satisfied that the offender’s childhood experience does shed light and explain his offending to some extent. It explains how he utilised adult pornography as a coping mechanism and that this then served as a “gateway” to his later viewing of child abuse material. However, I agree with the Crown’s submission that it is not a strong correlation and says little about the offender’s moral culpability when he was plainly aware that what he was doing was wrong and proceeded to repeatedly do it. Nonetheless, I am satisfied that offender’s moral culpability for the offences is reduced to some degree.

Moral culpability - Paraphilic Disorder

100. Also of relevance is Dr Niellsen’s diagnosis of the offender having a paraphilic disorder in the form of a preference for voyeuristic sexual behaviour and an attraction to prepubescent females. I accept that this diagnosis provides an explanation for his offending and will reduce to some extent his moral culpability. However, it heightens the need for specific deterrence: Grange v R [2023] NSWCCA 6 at [84]-[86]; Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [205].

Depression

101. I also take into account on sentence the offender’s diagnosis of depression. Although this is currently in partial remission (due to treatment which began in 2016 and counselling post-dating the offences) it also remains a relevant consideration both to the offending and making any custodial sentence more onerous.

Antecedents

102. Prior to these offences, the offender was of good character with no relevant criminal history.

Plea of guilty (s 16A(2)(g))

103. The offender pleaded guilty in the Local Court and these pleas were entered at the first reasonable opportunity. The Crown accepts that these pleas have resulted in a benefit to the community, avoiding the need for a trial. However, the Crown notes that the pleas were entered in the face of a strong prosecution case. I will afford a 25% discount for the offender’s plea of guilty in respect of each charge.

Remorse and cooperation

104. The offender has demonstrated remorse through his admissions and guilty pleas. The offender also gave evidence, which I accept, that through his treatment he has a gained a greater insight into the harm done by his offending and that he now understands that the offending was not a victimless crime.

105. The offender has also cooperated with authorities, providing full admission both on arrest and during a subsequent interview. He also provided passcodes to access all devices and cooperated with them fully during the execution of the search warrant.

Rehabilitation and risk of reoffending (s 16A(2)(n) and s 16A(2AAA))

106. The Crown submitted that the Court would have some reservations about finding the offender has good prospects of rehabilitation given the duration and nature of the offending, the extent of his interest in child abuse material, his prior addiction to pornographic material more generally and his paraphilic disorder.

107. Ms Goodwin submitted that the Court would find that the offender is unlikely to re-offend and has positive prosects of rehabilitation given his willingness to undertake treatment, the demonstrated progress he has made, his lack of prior criminal conduct and the ongoing support from his wife. Ms Goodwin also notes that Mr Randall expressed the view that his risk of re-offending is “likely very low” and the Community Corrections risk assessment categorises him as of a low risk. I am somewhat circumspect in my finding on this issue for the reasons identified by the Crown. However, on balance I am satisfied that the offender has a low risk of reoffending and reasonable prospects of rehabilitation.

108. I turn to s 16A(2AAA) of the Crimes Act which requires the Court when making an order or considering the length of any sentence to have regard to the objective of rehabilitating the offender, including imposing conditions or treatment options. Whether there is a sentence of immediate imprisonment or whether the court ultimately suspends any term of imprisonment, any condition of release will include a condition that the offender be supervised by the Department of Community Corrections and such supervision includes compliance with all reasonable directions as to ongoing treatment and counselling, including continuing with the treatment by Mr Randall or some other suitably qualified health professional.

Effect of any sentence on offender’s family or dependents (s 16(2)(p))

109. Ms Goodwin conceded that there was no evidence that any sentence would cause hardship on the offender’s family other than the impact it would have on his relationship with his wife.

COVID-19 and custody

110. I have also taken into account that the COVID-19 pandemic continues to be a relevant consideration when considering whether to sentence an offender to imprisonment. I accept that although the time this will continue for is unknown, this continues to cause hardship including restrictions on visits and the availability of courses.

Comparative sentences

111. Both the Crown and the offender have helpfully provided a table of cases and appellate decisions relating to similar offences. Obvious limitations apply as to the use that can be made of sentences imposed in other cases. The Court must make its own independent assessment of the particular case. The Court must identify the limits of the discretion by reference to the facts of the case before it. Ultimately, the sentencing discretion is individual and must be exercised by the judge in respect of the individual offender and the particular offending. Nevertheless, viewing comparable cases in an overall and broad way can provide some measure of the types of sentences passed in similar (although not identical) circumstances.

Totality

112. As the Crown properly accepted, there is a degree of overlap as between the sequences given there is some common material, and the offending is linked in time, nature and motivation. However, the charges of possessing the material (by storing it) and accessing the material (by downloading and viewing it) reflect slightly different and distinct criminality and there will be a small degree of accumulation. The third charge of further disseminating the material (by transmitting it to others) will have a small but a greater degree of accumulation.

Determination

113. As I have already mentioned, I have made a finding that the offender’s moral culpability was reduced to some extent by reason of his childhood experience and paraphilic disorder. Accordingly, the need for general deterrence is also reduced to some extent.

114. However, general deterrence remains a primary consideration in this case, as does specific deterrence, the objective gravity of the offending, the need to denounce the conduct of the offender and to recognise the harm done to the victims involved and to protect a vulnerable class within the community.

115. For these reasons I am satisfied that no sentence other than imprisonment is appropriate in all of the circumstances of this case.

116. Ms Goodwin submitted that given the importance of the offender’s ongoing treatment with Mr Randall, his response to that treatment, the unavailability of similar treatment in custody and the damage and interruption to that treatment it would cause, that it is in both the offender’s and the community’s interest to extend leniency and impose a term of imprisonment with immediate release as part of a section 20(1)(b) recognizance release order.

117. Section 20(1)(b) of the Crimes Act relevantly provides that where a person is convicted of federal offence, the Court may, “if it thinks fit”:

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):

…

(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1);

118. Therefore, it is only if the Court is satisfied that there are “exceptional circumstances” that the Court may release the offender in a Recognizance Release Order without requiring the offender to serve an actual period of imprisonment.

119. The phrase “exceptional circumstances” is not defined in the legislation. In R (Cth) v Nafarette [2022] NSWDC 225 at [89] Buscombe DCJ said:

“In my opinion, the word, ’exceptional’, in the statutory context means out of the ordinary course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances.”

120. I have had close regard to the matters raised by Ms Goodwin, being the offender’s background, his psychosocial history or treatment history and the possible detrimental impact an interruption to his treatment may cause. However, I am not satisfied that these factors amount to exceptional circumstances for the purpose of s 20(1)(b(ii).

121. In my view a sentence of full-time imprisonment is required. However, I will order that the term of imprisonment be suspended after a period of full-time custody. The full-time custody component of the sentence will reflect the minimum period that the offender should receive in custody having regard to all the circumstances of the case. This will enable the offender to renew his community-based treatment after that period of custody which will best meet the need for rehabilitation, and through this, best achieve the protection of the community and the need for specific deterrence.

Orders

122. I make the following orders:

1. I record convictions for each of the offences.

2. I have reduced each sentence for the offender’s guilty plea.

3. For the offence of using a carriage service to transmit Child Abuse Material (sequence 3), the offender is sentenced to imprisonment for 24 months to commence on 9 June 2023 and expire on 8 June 2025;

4. For the offence of possessing Child Abuse Material obtained using a carriage service (sequence 1), the offender is sentenced to imprisonment for 20 months to commence on 9 December 2023 and expire 8 August 2025;

5. For the offence of using a carriage service to access Child Abuse Material (sequence 2) the offender is sentenced to imprisonment for 20 months to commence on 9 March 2024 and expire on 8 November 2025

6. I set a recognizance release order, commencing on 8 March 2025 with a recognizance self in the sum of $1000 for a period of 18 months, commencing on 8 March 2025 and expiring on 7 September 2026 with conditions that:

1. The offender be of good behaviour;

2. The offender be subject to the supervision of officers of Community Corrections and to obey all reasonable directions of that service;

3. The offender obey any requirement of Community Corrections that he permit inspection of any mobile phone owned or possessed by him and to provide access to any data on such mobile phone;

4. The offender accept any direction of Community Corrections that he attend any sex offender treatment program and/or that he be evaluated for or accept treatment for any mental health disorder including depression; and

5. The offender is not, during that period, to travel interstate or overseas without written permission of Community Corrections.

123. The overall effect of those sentences is that the offender will spend 21 months in custody before being released on a recognizance release order for a period of 18 months.

124. I also make a forfeiture order pursuant to s 23ZD of the Crimes Act on the application of the Director of Public Prosecutions that the following items are forfeited to the Commonwealth:

1. Samsung Galaxy S22+ mobile phone with IMEI number 355014520000805; and

2. Desktop computer with serial number MSB933K950102356.

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Decision last updated: 03 October 2024