R v EC

[2024] NSWDC 458

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v EC [2024] NSWDC 458

Hearing dates:

25 and 27 September 2024

Date of orders:

27 September 2024

Decision date:

27 September 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) EC is convicted of each offence.

(2) With respect to sequences 3, 4, 5 and 6, you are convicted, and no further penalty will be imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

(3) With respect to sequence 1, you are sentenced to a term of imprisonment of two months. That sentence is to date from 25 September 2024 and will expire on 24 November 2024.

(4) With respect to sequence 2, you are sentenced to a term of imprisonment of four months. That sentence is to start from 25 October 2024 and will expire on 24 February 2025.

(5) With respect to sequence 7, you are sentenced to a term of imprisonment of two years. The sentence is to date from 25 November 2024 and will expire 24 November 2026.

(6) With respect to sequence 7, pursuant to s 20(1)(b) and s 20(1B) of the Crimes Act, after a period of 12 months you are to be released on a recognizance in the sum of $500 for the remaining 12 months of that sentence.

(i) Firstly, you are to be of good behaviour.

(ii) Secondly, you must be subject to the supervision of a Probation and Parole officer, appointed in accordance with this order.

(iii) Thirdly, you must obey all reasonable directions of that Probation officer.

(iv) Fourthly, you must undertake a rehabilitation program designed for offenders convicted of sexual offences, in addition to any other rehabilitation program that the Probation officer directs you to undertake.

(v) Not travel interstate or overseas without the written permission of the probation officer.

(7) You are to be released onto this recognizance from custody on 24 November 2025.

(8) Pursuant to s 23ZD of the Crimes Act and upon the application of the Commonwealth Director of Public Prosecutions, the mobile phone belonging to you and the HP laptop computer, seized by investigators on 13 March 2023, is forfeited to the Commonwealth.

(9) Finally, I will direct that the report of Dr Kim Dilati be provided to Corrective Services to assist with the management of the offender while in custody.

Catchwords:

CRIME – sentence – child pornography – sharing of intimate images - “revenge porn” – image based abuse - Commonwealth and NSW offences

Legislation Cited:

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Poisons and Therapeutic Goods Act 1966 (NSW)

Cases Cited:

Bugmy v R (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74

Minehan v R [2010] NSWCCA 140

Category:

Sentence

Parties:

EC (Offender)
Commonwealth Director of Public Prosecutions (Crown)

Representation:

Counsel:
Ms S McKensey (Offender)
Mr J Fennel (Crown)

Solicitors:
Ramsland Laidler Solicitors (Offender)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2023/00084394

Publication restriction:

Pursuant to section 7 of the Court Suppression and Non-Publications Orders Act 2010 (NSW), the names of the victim, or any features which may identify them, including the name of the offender are suppressed.

JUDGMENT

1. EC comes before the court for sentence for a total of seven offences, with one matter on a schedule pursuant to 16BA of the Crimes Act 1914 (Cth) (“the Crimes Act”). The offences and their maximum penalties are as follows:

1. The first offence is an offence under s 474.22(1) of the Criminal Code 1995 (Cth) (“the Criminal Code”), which has a maximum term of imprisonment of 15 years.

2. The second offence is an offence under s 91Q of the NSW Crimes Act 1900 (NSW). It has a maximum term of imprisonment of three years.

3. Sequence 7 is an offence under s 474.22A of the Criminal Code. That is an offence which carries a maximum of 15 years imprisonment.

2. The offence on the s 16BA schedule is an offence under a combination of s 11.1 of the Criminal Code and s 39 of the Crimes Act. It has a maximum period of imprisonment of five years.

3. There are also four matters before the court on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”) that is, matters that are normally, and would in the ordinary case, be prosecuted in the Local Court. The District Court will deal with those matters, but its jurisdiction is constrained by the Local Court’s rules and regulations.

4. The first three of those offences, sequences 3, 4 and 5, are all offences under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and have a maximum term of imprisonment of two years. The final offence, sequence 6, is an offence under s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW), which has a six month term of imprisonment as a maximum penalty.

5. The maximum penalties I have referred to represent the seriousness with which the Commonwealth and New South Wales Parliaments take each of these offences and they act as a critical consideration in my assessment of the appropriate sentence to be imposed on the offender in this matter.

6. I note the offender has spent two days in custody and his sentence will be backdated accordingly to take that into account.

7. I also note that for the purpose of this sentencing exercise, there are two parallel sentencing regimes in place. Sequences 1 and 7 have been brought pursuant to the Criminal Code, as well as sequence 8, the matter before the court on the s 16BA schedule is brought pursuant to the Crimes Act.

8. Sequences 2, 3, 4, 5 and 6 are offences under New South Wales law and governed by New South Wales laws, including the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). I will refer to each of the different regimes as required.

9. As I have mentioned, the offender has signed a s 16BA schedule. The effect of that is that he has asked the court to consider that additional matter when he is sentenced for sequence 7. The offender has admitted his guilt in relation to this matter and I will take it into account when I sentence him for sequence 7.

10. As I have indicated, there are four offences before the court by virtue of s 166 of the Criminal Procedure Act. The District Court has the same functions and is subject to the same restrictions and procedures as the Local Court when dealing with those matters.

11. Importantly, the offender has entered a plea of guilty in relation to each of these charges and he is entitled to a reduction of 25% on the sentence which would otherwise have been imposed by the court, so far as the New South Wales offences are concerned. Whilst the EAGP regime which sets out the 25% discount for a plea of guilty for New South Wales offence’s is not strictly applicable to Commonwealth offences, in the absence of any reason to impose a different discount, I will apply the same 25% discount for the Commonwealth offences, noting the utilitarian value of the plea. This is relevant to s 16A(2)(f) and (g) of the Crimes Act.

Facts

12. The facts of the matter are relatively lengthy and contained in the Crown bundle, Exhibit 1. I am going to provide a summary but I have taken all the facts into account. For the purpose of the facts, I will refer to two of the victims in this matter by their initials, the first being someone I will refer to as LH and the second as BP.

13. Sequence 1 is the offence at s 474.22 of the Criminal Code, that is the offence of using a carriage service to transmit child abuse material. For a period of time the offender was in a relationship with BP and during that time BP’s friend, LH, would visit the offender’s house. On 23 May 2021, LH received a message on Instagram from a person who sent her a screenshot from a social media platform known as Discord. That screenshot depicted a naked image of LH in a bathroom alongside a screenshot of LH’s Instagram account. There was also a caption that stated, “LH tits and tight little pussy”. The image was shared by a username “blake78”.

14. LH saw the image and recognised the bathroom that the photo was taken in. She recognised it as the bathroom in the offender’s home. At the time the image was taken LH was 16 years of age. She had not consented to a naked photograph of herself being taken and she was not aware of any device in the bathroom which was capturing her undressing or dressing and showering.

15. Sequence 2 is the offence under s 91Q(1) of the Crimes Act 1900 (NSW), the offence of intentionally distributing intimate images without consent. Between 2014 and 2017, the offender and BP were in a relationship. BP was aged between 15 and 18 years old at the time. During their relationship, BP voluntarily took sexually explicit photographs of herself and sent them to the offender. These photographs were taken in 2016 when she was 17 years of age and the offender was 19.

16. After the relationship ended, BP was contacted on several social media platforms by someone, stating that they had intimate photographs of her. This person also raised private matters that BP had only ever raised with the offender. On each occasion the user refused to identify themselves.

17. On 23 May 2021, BP received a message on Instagram from another person who was not known to her but said that he had seen images of her on the Discord platform, with her name attached to it. Attached to the sexually explicit images of BP was the caption, “BP being a little slut showing off her pretty little pussy for everyone to see”. BP recognised these as the sexually explicit photos that she had taken during 2016 and sent to the offender and only to the offender. The IP address from which these images were uploaded was subsequently checked by police and they were found to come from an address used by the offender. On 23 May 2021, BP spoke with the offender and confronted him about the post. The next day, BP observed the Discord user responsible for posting the images had changed their username.

18. On 16 December 2022, BP again became aware that the same images had been uploaded onto the internet but by another account. It was accepted by the offender as part of the sentencing proceedings that he had uploaded BP’s images on two occasions, 18 months apart.

19. Sequence 7 is the offence at s 474.22A(1) of the Criminal Code, the charge of possessing child abuse material. Police executed a search warrant at the offender’s home. They conducted a forensic analysis of his laptop which was seized at the property. Police located a total of 6,208 files, being both videos and images, of child abuse material. On the desktop folder there were 1,106 files of child abuse material, comprising of four videos and 1,102 images. The facts are silent as to the date range which the images were downloaded and/or accessed.

20. The material generally depicted prepubescent female children between six and 15 years of age. The girls are depicted in a range of sexual activity from fully clothed sexual posing to completely naked posing, engaging in sexual intercourse and other sexual acts. The files on the desktop were grouped in sub-folders. Just some examples of the names were “Asia Jap fuck sperm”, “Maever 8YO” and “Niece (private)”.

21. In the downloads folder there were 5,068 files of child abuse material, comprising 67 videos and 4,461 images. The material generally depicted prepubescent female children between five and 15 years of age. The girls are depicted in a range of sexual activity from fully clothed posing to completely naked and engaging in sexual intercourse and other sexual acts. These files were also sub-grouped into folders. Some examples of those folders were “Tiny Americans 28 set”, noting this folder contained a further 28 sub-folders titled with female names. The material depicted in what is described as “category 1” included videos such as:

• An image titled “cuteslut.jpg”, which was an image of a child less than 10 years of old who had no underpants on, with the image focused on the child’s genitals and anal region.

• An image titled “Fuckkk.jpg”, which was an image of a child less than 10 years of age who was naked and again focused on her genitals.

• A video that depicted a small, distressed child, hung by one leg from the roof, upside down. The child is then forced to commit some sexual act on a half-naked adult female. The statement of facts referred to this child as appearing to be under six years of age.

• A video depicting a small child less than six having a sex act performed on them by an adult female.

• A video titled “Good girl sucking big cock”. This video depicts a distressed small child, less than six years of age, being forced to perform a sex act on an adult male.

• A video titled “Teacher”. This video depicted a prepubescent child that appears to be less than 12 having a sex act performed on them by an adult male. There was also a video depicting a distressed toddler being anally penetrated by an adult male. These are simply some examples.

22. There was also material in category 2, including images and videos such as:

• 16 images of deceased children located at crime scenes or in a mortuary. The children appeared to be aged between an infant and approximately 10 years old. These children had suffered extensive injuries with some beheaded.

• An image of a prepubescent child under 10 who was naked.

• An image titled “Fucked puss”, depicting a naked pubescent child being vaginally penetrated by an adult male. The child in that photo was less than 16 years of age.

• photos depicting naked prepubescent children with the images focusing on the child’s genitals and anal region.

• A video depicting a pubescent female having a sex act committed upon her by a younger male child. The female in that image is said to be less than 16 years of age.

23. In the downloads folder on the offender’s computer there were 34 files of child abuse material organised into password protected folders. The example of the file in the password protected folders included:

• A 17 minute video of a young boy and girl both said to be between the ages of 10 and 12, engaging in sexual activity with each other. The two engaged in penile vaginal intercourse and then performed oral sex on one another.

• A 14 minute video depicting a young female child aged about 12 jumping around and lying down on a couch in various stages of undress. The video contained close up shots of the child’s breasts and groin areas. These are simply a sample of the over 6,200 images found on the offender’s laptop.

24. In summarising the facts for this offence, I have not seen the images and videos myself and I am relying on what has been set out in the Agreed Statement of Facts. Attaching to this sequence is the matter on the s 16BA schedule. This is the offence under s 11.1 of the Criminal Code and s 39 of the Crimes Act. That is the offence of attempting to destroy evidence with the intention of preventing that evidence from being used. The circumstances giving rise to this matter are that the police attended the offender’s residence pursuant to a search warrant. The police knocked on his door several times with no answer. When the offender finally opened the door, police observed the offender’s mobile phone appearing to have been recently reset to its original factory settings. The offender’s laptop computer was also in the process of being reset to its original factory settings. However, police intervened and cancelled that process.

25. With respect to the four matters before the court via s 166 of the Criminal Procedure Act, these offences all occurred because of the execution of the search warrant on the offender’s residence. During the execution of that warrant, police seized four prohibited drugs and substances which were in the offender’s sole possession. Sequence 3 relates to three vials of testosterone. Sequence 4, one vial of Anadrol. Sequence 5 was two vials of Nandralone and sequence 6, one vial of Clenbuterol.

Objective seriousness

26. The court is required to consider the objective circumstances and the objective seriousness of the offence before the court for sentence. This is relevant with respect to s 16A(2)(a) of the Crimes Act and also with respect to each of the New South Wales offences. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending itself.

27. I will deal firstly with the New South Wales offences, noting that the court is not required to place these offences on some arbitrary spectrum of least to most objectively serious.

28. With respect to sequence 2, the offence at s 91Q of the Crimes Act 1900 (NSW), the intentional distribution of an intimate image without consent, this offence involved the sexual images sent to the offender by the victim during the course of their relationship, when she was 17 years of age. The age of 17 is above which people in this State can have consensual sexual activity, but interestingly, those photos would fall within the Criminal Code’s definition of “child abuse material”, at s 473.1. In other words, BP could have been prosecuted for sending her own naked sexual photos to the offender when she was 17, as, strictly speaking, it is a breach of s 474.22 of the Code. Quite sensibly, that did not happen. However, it reveals a potential flaw with the definition of “child abuse material” at s 473.1 of the Criminal Code. A law that relies simply on prosecutorial discretion to avoid unfairness is, in the court’s view, a concern.

29. The Commonwealth is, quite properly, criminalising offences relating to the use of carriage services for sending and receiving child abuse material, but the definition of “child abuse material” has as its fundamental element that the image is of a person who is or appears to be under the age of 18. The law in New South Wales, at least, with respect to consensual sexual activity is 16 years of age. In other words, as the law currently stands, a pair of 16 year olds can engage in consensual sexual activity, including intercourse, but if one of them texts the other person an “offensive” photograph of their breasts, for example, they are facing a possible prosecution under s 474.22 of the Criminal Code, carrying with it, as I have already set out, a 15 year gaol sentence. Or, if it happens on more than one occasion, a minimum gaol sentence of four years. I simply make this observation for others to consider.

30. With respect to sequence 2, and the victim BP, the number of photos is described as “several”, so no precise number is known. The photographs were distributed by the platform Discord and, therefore, what is described as a closed group, although it is obvious to anyone with even limited understanding of how 21st century communication works that even if images appear on a discreet social messaging platform, it is easy for screenshots to be taken or copies made, so distribution is potentially infinite. Here, there is no evidence as to distribution, so the point about distribution is ultimately neutral.

31. The images, though, are explicit. They identify the victim, and the uploading and distribution of her multiple images was not one which was spontaneous. It was a clear act of retribution or, perhaps, anger, done twice, 18 months apart, with a posting which not only identified the victim but contained offensive commentary directed towards her. It was a significant breach of the victim’s trust.

32. With respect to the four matters before the court, being sequences 3, 4, 5 and 6, the facts are silent on the quantity of the four substances found or why the offender had them. It is difficult to find that they are anything other than for personal use, but the significance of the steroids is relevant when I discuss his mental health.

33. With respect to the Commonwealth offences, commencing at sequence 1, this is the offence of transmitting child abuse material. The Crown’s characterisation of this offence is that it is a moderately serious example, which I find does slightly exaggerate its seriousness.

26. This is a single image of a 16-year-old, so at the upper end of the age range for offences of this type. The victim was known to the offender, but the offender obtained the photos surreptitiously by hiding a camera in his family bathroom. This elevates the seriousness of his appalling conduct because it demonstrates that he went to some trouble to obtain the image. However, there was no violence or sexual acts or sexual degradation contained in the image and it appears it was simply the victim undressing. The image was uploaded again to Discord in what is again described as “a private chat”. I repeat the observations I made earlier about what could be considered private chats. As with sequence 2, when this image was posted, it was given an offensive caption by the offender and expressly named the victim.

27. Sequence 7 is, in my view, by far the most serious of the offences. There were, as I have said, over 6,200 files constituting child abuse material in the offender’s possession at the time his computer was searched by police. While the vast majority were simply stored as downloads, there were four videos and 1,106 files saved to the desktop, grouped into various different folders. Such a vast quantity demonstrates more than simply an inadvertent download. I accept that each file depicted real pubescent and prepubescent children ranging in age from infants and toddlers to about 15 years of age, in a range of sexual poses and sexual activity.

28. As I said earlier, I have not seen the images but the Agreed Statement of Facts refer to what the Crown has, in my view, correctly described as extremely depraved material: young children being sexually abused, with extensive injuries, specific examples of which I have already set out above. When sentencing for this sequence, the offender asks the court to take into account the offence of attempting to destroy evidence with the intention of preventing that evidence from being used. The presence of this offence demonstrates a greater need for personal deterrence and retribution for the principal offence.

29. I do find that his moral culpability for each of these offences has been reduced to some degree because of the issues of childhood deprivation and mental illness that I will shortly deal with, but it is a relatively modest reduction in the circumstances.

Personal circumstances of the victim, s 16A(2)(d) of the Crimes Act and 3A(g) of the CSPA

38. There was harm caused by this offence or offences to the two victims and that is a relevant sentencing consideration. The victim BP produced a victim impact statement which she very powerfully read in court. Some of the passages were particularly important, in my view. For example, she stated that now, as an adult, she understands that sharing intimate images of herself as a minor was a mistake and perhaps reflected some naiveite. Perhaps more importantly, BP stated that the sharing of images by the offender says significantly more about his character than it does about hers.

Contrition: s 16A(2)(f) Crimes Act, and remorse s 21A(3)(i) of the CSPA

39. One of the matters a court is required to consider is whether or not the offender has demonstrated contrition and/or remorse. While the court accepts that hearsay evidence is routinely admitted during sentence hearings, the court is still required to critically assess the weight of that evidence. The New South Wales Court of Criminal Appeal has repeatedly said that while hearsay evidence of statements made by offenders to third parties, such as doctors or psychologists and parole officers in reports, is admissible on sentence, some caution should be exercised in relying on those statements when the offender does not give evidence and the matters may not appear to be very powerful. Here, the evidence from the offender is limited to a letter that he provided to the court and the remarks made to Dr Dilati. It is not very powerful evidence but I am prepared to accept it does demonstrate some remorse.

General and specific deterrence: s 16A(2)(j) and (ja) of the Crimes Act; s 3A(b) of the CSPA

40. Although there will be some moderation for the role of general deterrence based on the reduction of the offender’s moral culpability, general deterrence remains of particular significance when sentencing for offences involving child abuse material, given their difficulty of detection and the substantial public interest in the promotion of the protection of children from sexual exploitation. The sentence to be imposed upon the offender must make clear to other like-minded persons within the community that offences of this type are abhorrent and that offenders who participate in such offences will be punished appropriately to reflect the broader community’s attitude towards activities involving the sexual exploitation of children.

41. General deterrence is also a critical consideration for the New South Wales offence at sequence 2. Members of the community need to recognise that if they are in possession of intimate images of a former partner those images are not some type of currency which can be distributed by them on the internet to exact revenge or for some sense of satisfaction in embarrassing the other person.

42. In terms of specific deterrence, the nature of the offending in sequence 7 is appalling. It demonstrates a sexual interest in children and sexual gratification from the infliction of pain, which the offender must recognise is unacceptable.

The character, antecedents, age, means and physical or mental condition of the offender, a requirement of s 16A(2)(m) of the Crimes Act

43. I now deal with the character, antecedents, age, means and physical or mental condition of the offender, which is a requirement under s 16A(2)(m) of the Crimes Act, and as part of his subjective case to be considered for the New South Wales offences.

44. In terms of antecedents, the offender has virtually no criminal history, except for a single driving offence. For the purposes of sentencing him, I am going to treat him as if he has no criminal record and afford him the full leniency a first time offender would receive, noting that he is 27 years of age and at the time of the offending was between 19 and 26.

45. However, as was submitted by the Crown, relying on the authority of the Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [63], factors including a lack of prior offending, mature age (when relevant), familial support and remorse and prospects for rehabilitation must be given less weight than they ordinarily would in sentencing, for possessing and accessing child pornography, as such offenders generally have similar backgrounds and are of prior good character before coming before the court.

Mental health

46. I want to now address in some detail the offender’s mental health and the report provided on his behalf by Dr Kim Dilati, which is dated 18 September 2024. An offender’s mental health may be relevant on sentence, firstly where it contributes to offending in a material way, because it can reduce moral culpability. The form and connection between the offence and its commission may have a causal connection, but it need not be direct. An offender’s mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment may affect an assessment of the objective seriousness of an offence, it will not necessarily do so, even if there is a causal connection.

47. The critical factors are the nature of the impairment, the nature and circumstances of the offence and the degree of the connection between the former and the latter. The most obvious circumstances is where the mental impairment is effectively a constituent element of the crime. For example, if an offender damaged property during the period of psychosis or by suffering delusions but in circumstances that fall short of establishing a mental illness defence. In such a case, the objective seriousness of the offending could be reduced because such an offence would not be premeditated or planned, and the offender would not have sought or derived any advantage from their offending.

48. On the other hand, though, where an offender suffered from depression, for example, that impaired their decision making, it is very difficult to accept that the objective seriousness is somehow reduced, even though it might be said that their depression, for example, materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might still warrant a reduction in their moral culpability and which, in turn, would warrant further consideration be given to the weight attached to various sentencing factors but not necessarily.

49. A person suffering from a mental impairment may be an inappropriate vehicle for general deterrence. Custody may weight more heavily on that person. And it may reduce or eliminate the need for specific deterrence. Conversely, such a person may present more of a danger to the community, in which case specific deterrence may increase.

50. In this instance, the offender did not give evidence on sentence but relied on the report of Dr Kim Dilati and his general practitioner, Dr Steven Lindsay. I will start first with Dr Lindsay’s notes.

51. Dr Lindsay, on 5 June 2024, created a note which referred to the offender visiting him and stated that the reason for contact was “schizophrenia”. No other details were provided regarding the schizophrenia. Dr Lindsay goes on to note, though, that the offender presented with stress and anxiety, anxiety being the worst and limiting him from leaving the house but noted that his mother had had a suicide attempt some time previously. There was a reference to childhood trauma and his mother having a history of threatening suicide and attempting to turn the offender against his father when he was much younger. There is a reference to the offender having an anxiety disorder and panic attacks and possible psychosis based on memory lapses and childhood post-traumatic stress disorder.

52. There is a recommendation that the offender recommence care with a psychiatrist. It does not appear from the notes, though, whether that actually occurred. I have taken all that material into account as part of the offender’s subjective case and it helps inform the court regarding the reduction in moral culpability that I have found applies to him.

53. There is also the report of Dr Dilati, which was prepared after a two-hour consultation with the offender. It included psychometric testing. It contained his hearsay account regarding his background, his attempted employment over the course of the last few years, his education, family and drug use. No issue was taken with the matters raised in the report and no submission advanced that the details contained in the report should be approached with caution and, accordingly, I accept that history as outlined in the report. I will refer to some of the paragraphs in the report specifically, but the parties should accept that I have read the entirety of it, which is extremely thorough and detailed.

54. The report states that the offender was born and raised in Newcastle. He described his childhood as difficult and, although he denied experiencing poverty, he recalled being regarded as the “poor kid” at school, which led to what he described as a challenging upbringing. He recounted an upbringing marked by significant deprivation, a history of domestic violence between his mother and her partners, as well as harsh physical discipline from his mother. This included incidents of medical and physical neglect and physical abuse. His mother kicked him in the back of the head as a teenager.

55. He reported experiencing bed wetting until the age of 10 and had various deficits when it came to gross motor skills, learning, attention, concentration, interpersonal relationships and speech. He was also shy and anxious during his youth.

56. He describes having anti-social tendencies and was involved in truancy and gravitating towards anti-social peers. He denied a history of shoplifting, fire setting or cruelty to animals. In terms of prosocial behaviours, he had participated in some sport.

57. Regarding any history of trauma, the offender endured repeated physical, psychological and sexual abuse, neglect and adversity by his mother. He believes he was specifically targeted by his mother who recognised traits of his father in him and inflicted harm as a means of retaliating against his father. Around the age of seven or eight, the offender discovered his mother’s boyfriend and a close neighbour hanging in the garage. Clearly, these are all terrible things which have had a negative impact on his life and I rely upon them in finding that he has had a childhood of deprivation which has also acted to reduce his moral culpability in accordance with the authorities such as Bugmy v R (2013) 249 CLR 571.

58. There is also a family history of poor mental health, particularly with his mother suffering from a major depressive disorder and a personality disorder and anger management problems and alcohol abuse.

59. Overall, the offender described to Dr Dilati as having a transient employment history, having held approximately 15 to 20 odd jobs across various sectors, such as real estate, retail, hospitality, labouring, truck driving, training mortgage broking and factory work. I note that he is currently unemployed and receives Centrelink benefits.

60. There is a history of cannabis use and some MDMA use, and steroids described in the report. The offender told Dr Dilati that in May 2023 he had a drug induced psychosis. The report states that he believes he has not received the necessary support to deal with his drug use and has not pursued rehabilitation programs or out-patient drug or alcohol counselling. At paragraph 74 of Dr Dilati’s report she states:

“EC may be presenting himself in a more negative light or exaggerating psychological problems. The positive impression management score was low, indicating that he did not attempt to present himself overly favourably.”

61. Such a comment in the middle of the report of Dr Dilati, in circumstances where she is relying heavily on his reported history to her, certainly causes the court to wonder whether he may have been exaggerating his difficulties. Although I stress that in addition to the history reported to her, Dr Dilati did have the advantage not only of psychometric testing but it would appear some substantial medical histories were also provided to her. However, Dr Dilati goes on to state this, at paragraph 75:

“EC reported elevated scores in somatic complaints, anxiety, anxiety related disorders, depression, paranoia, schizophrenia, borderline features and drug problems. These scores suggest that EC is experiencing significant psychological distress, including severe depressive symptoms, high levels of anxiety, potential paranoia, symptoms related to thought disorders, emotional instability and substantial issues related to drug use. The very high depression score and extremely high suicidal ideation indicate a sever risk of suicidal thoughts or behaviours which required immediate intervention.”

62. Dr Dilati applied something described as the “child pornography offender risk assessment tool”. Although this appears to have been a fairly blunt tool, as per the way it was described in her report, it is of some concern in that it regards his chance of recidivism as 25.8%. Other psychometric testing found that he was sexually interested in children. Dr Dilati described him as providing her vague and evasive recollections regarding the offending behaviour. At paragraph 120, Dr Dilati wrote:

“The psychological effects of steroid abuse such as feelings of power, invulnerability and dominance, may increase a sense of entitlement or control over others. This may manifest in sexual offending especially if the individual already has underlying beliefs or cognitive distortions that justify sexual aggression or coercion.”

63. Dr Dilati concludes that, in terms of his current mental health diagnosis, the offender meets the DSM-5 criteria for major depressive disorder, generalised anxiety disorder, anabolic steroid use disorder, cannabis use disorder, an opioid use disorder, a paedophilic disorder and a substance induced psychotic disorder as well as complex trauma. There is no reference to schizophrenia, in contrast to the note I have referred to in Dr Lindsay’s report.

64. I accept Dr Dilati’s opinion that the offender’s mental health conditions were present during the offending and this reduces his moral culpability, to some degree. I also accept that a custodial sentence would weigh more heavily upon him and that the role of specific and general deterrence will need to be mitigated slightly because of his mental health conditions. But, the report is far from entirely helpful to him on sentence. At paragraph 137, Dr Dilati states:

“EC presented with a complex array of psychological conditions which contribute to an overall elevated risk of reoffending, particularly if these conditions remain untreated or poorly managed and his rehabilitation will require a treatment approach for example long term intensive treatment to address his co-occurring disorders.”

65. In this case, Dr Dilati does not draw an express link between the mental health conditions and the offending but finds they were present in his personality at the time. It was submitted it must have impaired his judgment. I accept that his judgment might have been impaired.

66. The nature of the offences are not ones that are spontaneous, by any means. Sequences 1, 2 and 7 are quite deliberate. Although there was no date range for the downloading and access of the sequence 7 images, to have so many images can be no mere accident. Similarly, the posting on more than one occasion 18 months apart for sequence 2 and the attached comments show deliberate attempts to embarrass and hurt the victims. So, while I accept that there is reduced moral culpability, it is a modest reduction and does not lessen the objective seriousness of the offender’s conduct.

67. As I have already alluded to, the offender submitted that his social circumstances were akin to a background of childhood deprivation and social disadvantage. It is well established that a disadvantaged background can mitigate a sentence when a profound childhood deprivation, in whatever form it occurred, is taken into account by way of a reduction of moral culpability or, more broadly, simply as part of the subjective case, is largely a matter for the evaluative assessment of the sentencing judge. As I have indicated, the offender’s dysfunctional background is a feature of his makeup and warrants a reduction in moral culpability. I accept that there has been relevant disadvantage.

Prospects of rehabilitation: s 16A(2)(n) of the Crimes Act and s 21A(3)(g) and (h) of the CSPA

68. The need for rehabilitation is emphasised in Dr Dilati’s report. In the context of his cannabis abuse, the offender stated to Dr Dilati that he does not consider that he has received the necessary support and that he has not pursued rehabilitation programs or out-patient drug and alcohol counselling.   There does not appear to have been any recent attempt to pursue counselling or rehabilitation in the community when it comes to any issue, be it drugs or the mental health issues I have described. This is despite the ongoing role of Dr Lindsay and the referral in 2023 to the Hunter New England Mental Health Service. There does appear to have been some counselling in 2016 and 2020.

69. Dr Dilati notes that if the offender was placed in custody it could limit his access to mental health services. However, elsewhere in her report, she states that there are programs and services in custody that the offender could actually benefit from. I note that he is not attending a psychiatrist or a psychologist at present. Dr Dilati included a treatment plan at annexure A to her report.

68. In the offender’s favour is the fact that he has not reoffended since his arrest for these offences and he has adhered to his bail requirements. Nonetheless, given the comments made by Dr Dilati in her report, which I have already set out in some detail, I find his prospects for rehabilitation to be guarded.

69. Section 16A(2AAA) of the Crimes Act states that the sentencing court, in sentencing an offender for a Commonwealth charge sex offence, must have regard to the objective rehabilitating the person, including considering whether it is appropriate to impose conditions about rehabilitation or treatment options when making an order and in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program.

70. I accept that the principal purpose of rehabilitation in this context is to protect the community by ensuring offenders are required to undertake treatment in custody or upon release from custody or within the community in order to prevent their reoffending. This is a critical consideration and this will be reflected in the sentence that I impose.

Totality

73. I have also considered matters of totality because there is more than one offence for which the offender is to be sentenced. Apart from the four charges before the court under s 166 of the Criminal Procedure Act, the three other primary offences are all matters of a sexual nature, while the matter on the schedule 16BA relates to the destruction of certain evidence. There is certainly some type of overlap between three offences. They are all picking up different criminality but while there are two named victims, there are also many thousands of unnamed victims. I have taken totality into account, but the period of time over which the offences occurred is uncertain and in setting the sentence, while there will be some concurrency, the sentences will all be quite discrete.

Determination

74. I have considered s 3A of the CSPA and the threshold for a custodial sentence in s 5 of the CSPA as well. I do not consider the threshold has been crossed of s 5 for the four matters before the court, pursuant to s 166 of the Criminal Procedure Act. I believe that it has been for sequence 2, the sharing of the intimate images. This is an objectively serious example of such an offence, deliberately and repeatedly designed to embarrass and humiliate the victim BP.

75. With respect to s 17A of the Crimes Act, considering the matters I have set out above with respect to sequence 7, I consider a fulltime custodial sentence is necessary. While it is always possible to imagine larger numbers of images and videos and greater levels of depravity, the possession of this child abuse material by the offender warrants a custodial sentence, notwithstanding his subjective case. Similarly, I find in respect of sequence 1.

76. While I was not initially persuaded that sequences 1 and 2 passed the thresholds of s 5 of the CSPA and s 17 of the Crimes Act, on reflection, the objective seriousness of the offences and the importance of both specific and general deterrence, the observations made by Dr Dilati, notwithstanding the childhood deprivation and reduced moral culpability, these offences do cross the threshold. With respect to sequence 1, my conclusion about the need for a custodial sentence also reflects the seriousness with which the Parliament has regarded this offence, as noted by the maximum penalty which could be imposed as being 15 years.

77. An intensive correction order is not available for the offences of s 474.22 and 474.22A of the Criminal Code. However, it is available for the offence of s 91Q(1) of the Crimes Act 1900 (NSW) but taking into account the paramount consideration of community safety and s 66(1) of the CSPA, I do not consider an ICO would be appropriate, given the seriousness of the charges and the ongoing risk he poses, particularly where there is no indication that he has committed to any treatment beyond simply what he has told Dr Dilati. He has not undertaken any treatment that I can see.

78. Given the sentence I am going to impose, considerations of a non-parole period for the New South Wales offences and a non-parole period for the Commonwealth offences do not arise.

79. I note also that two offences for sentence are a Commonwealth child sex offence, as defined within the Crimes Act. The effect of s 20(1)(b)(ii) of that Crimes Act is that if a court, in sentencing for a Commonwealth child sex offence, determines to sentence an offender to imprisonment, but release them on a recognizance release order, there is a presumption that they will serve some period of actual imprisonment, unless there are exceptional circumstances that justify being released immediately. However, as the Crown fairly conceded during the sentencing hearing, this presumption actually only applies to sequence 7, as the period for the offending at sequence 1 occurred prior to when that section of the Act was in effect. However, given the sentence I am going to impose, “exceptional circumstances” does not need to be considered.

80. If a recognizance release order is imposed, s 20(1)(b) of the Crimes Act requires that a court making the recognizance release order for a child sex offender must attach certain conditions to the order, which I propose to do.

Orders

81. I make the following orders:

1. EC, you are convicted of each of these offences.

2. With respect to sequences 3, 4, 5 and 6, you are convicted, and no further penalty will be imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

3. With respect to sequence 1, you are sentenced to a term of imprisonment of two months. That sentence is to date from 25 September 2024 and will expire on 24 November 2024.

4. With respect to sequence 2, you are sentenced to a term of imprisonment of four months. That sentence is to start from 25 October 2024 and will expire on 24 February 2025.

5. With respect to sequence 7, you are sentenced to a term of imprisonment of two years. The sentence is to date from 25 November 2024 and will expire 24 November 2026.

6. With respect to sequence 7, pursuant to s 20(1)(b) and s 20(1B) of the Crimes Act, after a period of 12 months you are to be released on a recognizance in the sum of $500 for the remaining 12 months of that sentence.

1. Firstly, you are to be of good behaviour.

2. Secondly, you must be subject to the supervision of a Probation and Parole officer, appointed in accordance with this order.

3. Thirdly, you must obey all reasonable directions of that Probation officer.

4. Fourthly, you must undertake a rehabilitation program designed for offenders convicted of sexual offences, in addition to any other rehabilitation program that the Probation officer directs you to undertake.

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

7. You are to be released onto this recognizance from custody on 24 November 2025.

8. Pursuant to s 23ZD of the Crimes Act and upon the application of the Commonwealth Director of Public Prosecutions, the mobile phone belonging to you and the HP laptop computer, seized by investigators on 13 March 2023, is forfeited to the Commonwealth.

9. Finally, I will direct that the report of Dr Kim Dilati be provided to Corrective Services to assist with the management of the offender while in custody.

82. They are my orders and my reasons for sentence.

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Amendments

10 October 2024 - With the consent of the parties, pursuant to s 19AHA(1)(a) and (c) of the Crimes Act 1914 (Cth) Order 6 was amended to make it clear that the Orders are picking up the entirety of s 20(1B) of the Crimes Act 1914 (Cth).

Decision last updated: 10 October 2024