R v Finch

[2022] NSWDC 578

District Court

New South Wales

Medium Neutral Citation:

R v Finch [2022] NSWDC 578

Hearing dates:

17 and 18 October 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Sentence of imprisonment with recognizance release order for immediate release – For orders see [181] – [182].

Catchwords:

CRIME – use carriage service to make available child abuse material – sentence.

Legislation Cited:

Criminal Code 1995 (Cth)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194

DPP (Cth) v Garside [2016] VSCA 74

Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87

R (Cth) v Nafarette [2022] NSWDC 225

R (Cth) v Simonet, unreported NSWDC 7 July 202

R v Burton [2020] NSWCCA 127

R v Delzotto [2022] NSWCCA 117

R v Edwards [2019] QCA 15

R v Henry (1999) NSWLR 346; [1999] NSWCCA 111

R v Hutchinson [2018] NSWCCA 152

R v Wran [2016] NSWSC 1015

Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecution (Crown)
Brett John Finch (Offender)

Representation:

Crown Counsel:
Mr Jordan

Defence Counsel:
Mr N Smith

File Number(s):

21/353905

Publication restriction:

The Court notes a suppression order made on 5 November 2021 in the County Court of Victoria prohibiting the publication of any information identifying the person referred to herein as RB, or his whereabouts. The order extends to publication anywhere in Australia and is extant until 22 May 2031.
Further, the schedule to these Remarks on sentence is to be marked “Not for Publication”. I make an order that the content of the schedule is not to be published pursuant to s7(b) of the Court Suppression and Non-Publication Orders Act 2010.

REMARKS on sentence

1. The offender is to be sentenced in respect of an offence pursuant to s474.22(1) of the Criminal Code 1995 (Cth) (“the Criminal Code”) that between about 6 November 2020 and 30 January 2021 he used a carriage service to make available child abuse material.

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

3. The offender was arrested on 14 December 2021 and entered a plea of guilty in the Local Court on 16 August 2022. He was born on 20 August 1981 and was therefore 39 years old at the time of the offending. He is now 41 years old. The offender has spent no time in custody referrable to this offence.

The sentence hearing

4. A sentence hearing took place on 17 and 18 October 2022. The Crown sentence summary bundle became Exhibit A and it included a statement of agreed facts which may be summarised as follows.

5. In November 2020 Victorian Police had identified and arrested RB, who was a convicted child sex offender, in relation to his use of “Fastmeet” to exchange child abuse material with others. “Fastmeet” is a gay chat service that allows users to leave an introductory voice message or listen to other user’s introductory messages. The ‘Fastmeet’ live chatroom function allows users to engage in four ways: prompts, greetings, messages, and one to one chat. Upon entering this chatroom the following message is delivered to users:-

“For your safety, this service is monitored and may be recorded… All live connections and messages are handled through our system, so your personal details are always kept private. We have monitors regularly checking the system to ensure that all users comply with our chatroom guidelines. Please note for the protection of users calls may be recorded.”

6. The accused was identified as using his mobile phone to communicate with other users on the Fastmeet platform. The agreed facts identifies seven communications between the offender and other users on Fastmeet as the conduct that constitutes the index offending on six separate occasions between 6 November 2020 and 30 January 2021.

7. Each of the introductory messages left by the offender were of relatively short duration. Each contained what could only be described as highly depraved and sexualised content, referring to boys aged 16 years (on 5 occasions) and boys aged 12 and 14 years. Each message constituted child abuse material, which I do not intend to disseminate further by including the content in these remarks. They are set out in a schedule to these remarks which is marked “Not for Publication”.

8. On 14 December 2020 at around 6:50am Police attended the accused’s house and arrested him. At this time the accused indicated the following to the police:-

1. He knew what Fastmeet was.

2. He may have spoken about children but not from him starting the conversation.

3. It might have been when he was “twisted”.

4. He no longer uses Fastmeet and only used it a couple of times.

5. There was maybe one person in Penrith at the time speaking about [it] and that was it.

6. He was on drugs when he was talking about that stuff.

7. He has never done anything since.

8. If he has done it, it was just shit talk.

9. The accused also told police that he had never engaged in sexual activity with children. Following this the accused was taken to Kogarah Police Station where he was entered into custody. The accused refused to participate in an electronically recorded interview. The accused was cooperative with police as follows:-

1. He provided consent to police to search his premises.

2. He voluntarily provided his mobile phone and pin number access to his phone to police.

3. He voluntarily provided other electronic devices to allow police to review and download the contents of these devices.

10. The police did not find anything of further interest or of a nefarious nature on any of these devices or in the accused’s residence.

The offender’s evidence

11. The offender tendered a bundle of documents which became Exhibit 1.1 to 1.7. Exhibit 1.1 was a report of Dr CJ Lennings dated 27 September 2022. Dr Lennings is a psychologist who interviewed the offender on 15 September 2022 for approximately 90 minutes. Dr Lennings took a history that the offender retired from professional football in 2013 and then struggled, and “found himself adrift” without the structure and routine of being a professional sportsman. He obtained employment as a sports commentator but at times engaged in heavy binge drinking. He had not used cocaine until he went on an overseas holiday following which Dr Lennings reported, “he appears to have almost immediately become addicted”.

12. Dr Lennings took a history that “his drug dealer offered him an opportunity to spruik for further clients on a chat site that was used by others for the purpose of sexual conversations”. The offender had gone on that site on six occasions and he agreed that the content of the conversations were “quite simply horrendous”. The offender expressed extreme embarrassment, remorse and regret indicating they had not only caused his arrest but impacted heavily upon his marriage, his daughter and his wider family. Dr Lennings noted his frankly disgusting remarks appear to have been a fantasy in which he engaged in without any thought of the consequences. The offender acknowledged that he was aware that the chat site that he used was monitored and that potential recordings of his communications would be made.

13. Dr Lennings noted that the offender had commenced seeing a psychiatrist in early 2020 and had been prescribed an anti-depressant, Sertraline.

14. Dr Lennings also took a history that as a professional football player the offender had suffered multiple concussions. Dr Lennings opined that Post Concussive Syndrome appeared to be a relevant diagnosis and for that reason the offender was given a test of executive function which confirmed difficulties with inhibitory control. The offender disclosed that he was quite impulsive, demonstrates compulsive behaviours (such as his additions) and has always been reckless and a significant risk taker. Dr Lennings described that these symptoms are typically found in people with Post Concussive Syndrome.

15. Dr Lennings took a family history in which the offender reported having a good childhood with no history of abuse or neglect. He reported being a very active and physical child who was heavily into sport, but was quite reasonable at school. At age 17 he was playing first grade football although he did complete Year 12.

16. The offender expressed that his only interest in life had been as a professional football player. Following his retirement in 2013 he was not afforded any outplacement counselling and felt he had no qualifications for anything except football.

17. The offender denied any sexual interest in young people.

18. The offender denied the use of any illicit drugs other than cocaine which he began using in 2013 and became addicted to “in no time at all”. Dr Lennings reported that his last use was “sometime in 2021 or early 2022 shortly after he was arrested.”

19. The offender told Dr Lennings that he had stopped going to the Fastmeet website in January 2021 when he had a “wake-up call” arising from a communication on the site with someone who offered him an opportunity to have sex with two young girls. Dr Lennings described the offender as having “an epiphany” and making a decision at that point to turn his life around. He ceased access to the site and reduced “almost to nothing” his use of cocaine.

20. Dr Lennings noted that the offender had attended three rehabilitation programs which where all short-term.

21. The offender told Dr Lennings that he had opportunities to set up his life with his family but drugs had “taken everything from him”. He acknowledged he had no-one to blame but himself.

22. Following psychometric assessment Dr Lennings opined that the most likely diagnosis for the offender is substance abuse disorder. He was also assessed for executive function and Dr Lennings opined that although his executive function was impaired his difficulties with inhibitory control were clearly reflected in his history and presentation.

23. Dr Lennings noted that the offender appears to be genuinely remorseful for his behaviour and concerned for the impact upon his family. He opined that the offender’s primary presenting problem is not sexual deviance, but rather a combination of difficulties arising from heavy dependence upon cocaine and a Post Concussive Syndrome. He further opined that the offender had an underlying hypo-manic element to his behaviour that has reduced his regulatory control. Following risk assessment, Dr Lennings further opined that the offender has reasonable prosects of rehabilitating himself and that the likelihood of further offences of the nature with which he has pleaded guilty to are remote.

24. Dr Lennings then set out a treatment regime with four core targets. First, treatment to rule out any underlying issues for which his current work with Mr Randall was appropriate. Secondly, a focus on his prior substance abuse for which further exploration with Mr Randall was advised. The third target was for his mood disturbance and failure to manage the transition away from his role as a professional footballer. This would require significant work with a sports psychologist experienced in outplacement counselling for elite athletes. Finally his underlying mood disturbance of a hypo-manic nature requires further psychiatric assessment and treatment as advised by the psychiatrist.

25. Dr Lennings advised that the treatment regime outlined is only available if the offender is to remain in the community and that his psychiatric needs are unlikely to be addressed in custody.

26. Dr Lennings was required for cross-examination on his report. At his examination on 15 September 2022 he understood that the offender’s last use of cocaine was just after his arrest and he noted that at [24] of his report. The offender’s evidence that he had used drugs sporadically since that time and his last use was a single line of cocaine one week before he was assessed by Dr Lennings was inconsistent with the history given by the offender. Dr Lennings agreed. When asked whether the offender’s continued use of drugs affected his assessment of the prospects of reoffending and rehabilitation. Dr Lennings gave evidence that it suggests that rehabilitation would require more input and, in particular, biological monitoring.

27. Dr Lennings agreed that there was a slight hypermania present in the offender’s presentation. He was asked about his description of the offender’s role in obtaining a source of drugs for his dealer, and asked whether he interpreted that “as a marketing exercise for his drug dealer”. He agreed that he would get a commission in the form of free drugs.

28. Dr Lennings was asked if the messages left by the offender did not refer to drugs how would the recipients understand their purpose. He gave evidence that it was his understanding that the purpose of the offender was to identify if people were likely to use drugs. He gave further evidence that the offender was a person who liked to be the centre of attention however he had cut his time in the chatroom short. It was put to him that the offending occurred over almost three months between 6 November 2020 and 30 January 2021 however he said that was a short time. In relation to biological drug testing Dr Lennings identified urine screening, blood tests and hair follicle testing, of which hair follicle testing was the most reliable. In his rehabilitation the offender would require relapse prevention work and would also need psychotherapy.

29. In re-examination Dr Lennings gave evidence that the offender’s evidence of spasmodic drug use following his arrest would not cause him to resile from his opinion that he was not sexually motivated in leaving the chat messages. He confirmed his opinion that he does not require treatment for sexual deviance and that he would not qualify for such a program in custody. Also, biological testing was unlikely to be available in custody and in his experience, he had not heard of a single hair follicle test on a prisoner in custody. Urine analysis was only conducted by way of a random regime in custody.

30. Dr Lennings gave further evidence that given the half-life of cocaine, urine analysis would have to be conducted three times a week and was very expensive. The best option would be regular but random urine analysis and/or hair follicle testing which was the only measure to determine if he was using cocaine and how much. It would also determine whether his use was recent or longer term. Whilst hair follicle testing was expensive, in the range of $500-$600, it was required only four times per annum. Dr Lennings recommended regular screening for the first year followed by random testing.

31. Exhibit 1.2 was a list of appointments booked for the offender with Adrian Keller psychiatrist on five occasions between 16 June 2020 and 23 December 2021. Exhibit 1.3 is an affidavit sworn by Paul McGirr attaching a google search of media reports following the offender’s arrest.

32. Exhibit 1.4 is a list of associated charity work contributed to by the offender in respect of twelve separate charities or events.

33. Exhibit 1.5 was a testimonial from Mr C Young dated 6 October 2022. Mr Young stated that he had known the offender for most of his life and had been involved closely in his sporting career. He stated that the offender had at times demonstrated strong leadership skills. He also expressed an awareness of the offender’s long battle with mental health issues and stated that he is highly remorseful for what has happened. He described the offender as “a highly decent young man who has made a genuine mistake in this instance”, and a belief that he would not be before the courts again.

34. Exhibit 1.6 was a testimonial from Mr L Redman who stated he had known the offender for over thirty years, and that their families were close. He stated that he believes the offender’s criminal conduct was totally out of character and that he had, since finishing his rugby league career, battled with mental illness and depression, turning to drugs which became an addition which was the reason for this out of character conduct. Mr Redman described the offender as “a loving husband, father, uncle, brother, son and friend”. He stated that his reputation is ruined, he has been publicly humiliated and lost his job.

35. Exhibit 1.7 comprised Judicial Commission statistics in respect of offences pursuant to s474.22(1) of the Criminal Code.

36. Exhibit 2 comprised three documents. Exhibit 2.1 was a report of Mr G Randall dated 14 October 2022 setting out his treatment of the offender on three occasions, 15 and 29 August 2022 and 4 October 2022. Mr Randall noted that the offender engaged fully in each session and exhibited an overriding sense of shame regarding his offending. His treatment had focused on gaining an understanding of the events which led to the offending and the offender’s perspective on the offending, developing strategies to manage his distress and consolidating therapy he had previously engaged in concerning his problematic use of drugs.

37. Mr Randall opined that given the “extremely early stage of his therapy, his developing insight is impressive”. He also noted that despite the stress of the offender’s current situation he had been able to maintain his abstinence however this would be monitored.

38. Mr Randall opined that the offender would require ongoing therapy and that he would be able to continue to see him should he be able to continue therapy.

39. Exhibit 2.2 was a bundle of extract telephone records with the offender’s various calls to the Fastmeet website highlighted.

40. Exhibit 2.3 was a further bundle of media reports on the offender following him being charged with the index offence.

The offender’s oral evidence

41. The offender gave evidence that he is now 41 years of age and that he has never had a sexual interest in children or minors. He acknowledged that he had entered a plea of guilty to the agreed facts and was asked how he came to use the Fastmeet site. The offender gave evidence that his drug dealer had been arrested and the drug dealer’s partner took over his supply operation. On an occasion where she supplied him with two grams of cocaine she told him that there was no more cocaine available. The woman, who’s name was “Selina”, told the offender that she had obtained methamphetamines or “ice” on the Fastmeet site. She asked the offender to make a call to the site which he refused; she then told the offender that if he could obtain ice for her she would give him the two grams of cocaine for free.

42. The offender gave evidence that at the time he was a heavy user of cocaine, consuming between12 and 25 grams per week and was heavily addicted to the drug in September and October 2020.

43. The offender gave evidence that he understood Fastmeet was a male chat site used by people whom he believed would be under the influence of drugs or would have drugs to sell. It was a site where voice calls were made and he never used text or other media to communicate on that site. He also believed that he was only communicating with people who resided in the Sydney area.

44. The offender agreed that the agreed facts stated that he had left messages as a greeting on multiple occasions. Any recipient of a message could only listen to it once, and the message was only available as long as the other person remained connected to the site. He was made aware of any person listening to his message only if they replied to it.

45. When asked what was the link between the characteristics of people using the site and obtaining drugs the offender gave evidence that his experience in rehabilitation was that gay men spoke of hypersexualised incidents. This meant he believed that by leaving what he described as a “twisted message” it was more likely that the recipient was using drugs and he would be able to buy cocaine from them.

46. The offender denied ever using methamphetamines and was asked to explain the link between the twisted messages and the securing of drugs. In response he gave evidence that the child abuse material came from his knowledge from previous rehabilitation programs and he believed that if someone did reply they would likely to be under the influence of drugs.

41. The offender gave evidence that on the first occasion Selina did obtain drugs from someone from the site, which made him more “keen”. However, he had never sourced cocaine and he acknowledged that in none of the communications did he ever ask for drugs.

42. When asked why he left messages on multiple occasions over a number of months the offender gave evidence that during the COVID-19 lockdowns drug dealers were not “on the roads”. On each occasion he was desperate to obtain drugs to feed his addiction.

43. The offender was taken to Exhibit 2.2 and was unable to recognise a number of the recipients of his phone calls other than to state that they were a drug dealer. The suburbs listed in that exhibit where mobile telephone towers were located indicated that he was in those places trying to obtain drugs.

44. When asked why he stopped contacting Fastmeet in January 2021 the offender gave evidence that he received a reply where the recipient wanted to take him to meet and do something with his granddaughters. He realised he was dealing with a person he described as a “sick fuck” and told him to “fuck off”. He realised that the whole thing was horrendous.

45. The offender stated that he used the site at a time when he had “blinkers” on, and his only goal was to source drugs. When asked, given his background, his experience in media and the fact that he was not dumb and had had a bit of life experience how he could explain himself he replied, “I am disgusted in myself. That reply made me feel sick. I felt ashamed and disgusted with myself and I deeply regret it.”

46. The offender now understood that the words that came out of his mouth may have contributed to the child abuse market. The offender gave evidence that he now understood that his actions may have promoted or contributed to a susceptible person’s offending or wanting to offend against children.

47. The offender gave evidence that he used the Fastmeet site in 2021 at a time when his life had spiralled out of control. He was desperate to obtain drugs but on each occasion was unsuccessful. He had been treated by Dr Keller who diagnosed depression in 2010 and he took anti-depressants for a time. When asked what “spiralling” meant the offender gave evidence that he would take drugs until he would pass out. This would involve taking as many drugs as possible over a period of up to five days.

48. The offender gave evidence about his employment in the media. In 2020 he had no job but in 2021 he obtained work with a sports radio broadcaster SEN over the rugby league season from March to October 2021. He was employed to commentate games and to participate in “Drive Shows”. In December he was offered a contract for full-time employment which he was to sign on 16 December 2021, however he was arrested on 14 December and lost the opportunity to sign the contract.

49. The offender gave evidence that since his arrest he has had limited drug use which he described as “sporadic with slips”. He confirmed that he provided police with access to his computer and mobile phone and gave them the pin numbers to allow access. He had never attempted to search any online sites for sex with underage people.

50. The offender gave evidence that in the twenty years he had worked with young people in sport he had never been accused of misconduct relating to a child. He described the impact of his arrest on his family as “huge” and that he suffered great shame and embarrassment as a result of it. He gave an example of his child’s childcare centre being contacted by media asking for interviews. His wife had also been subject to ridicule at a park by other parents.

51. The offender gave evidence that he himself had been abused half a dozen times and that he rarely left his home. He avoided public places and did not make eye contact with people. He was unable to look after his own physical health and his mental health had been affected hugely, suffering dark depressive thoughts. He felt he had no opportunity to plan for the future now. He understood that he had hurt his wife, parents and family and “so many others” and he had no-one to blame but himself.

52. The offender gave evidence that he was now receiving Centrelink benefits, a condition of which was that he had to apply for a work every fortnight. He had made over three hundred applications for work but had not received one response. He acknowledged that he needed to work and gave evidence that Centrelink had modified his profile and were to help him to find work. He gave further evidence that he understood why “no-one wants to come near me”.

53. The offender gave evidence that he understood the Fastmeet site was for adults only to leave messages.

54. The offender gave further evidence that over 25 years he engaged in a huge amount of charity work. He often spoke at charity events without payment and would have done so on around 100 occasions. He also attended coaching clinics for poor children, for football clubs and for his mates. He had raised $10,000 for the Children’s Hospital in one event and had contributed personal memorabilia for auction at charity events. He had also waived a speaking fee of between $1500 and $3000 on occasions.

55. The offender outlined his three attempts at rehabilitation. The first was at the end of 2014 in Melbourne at “Day Hab” which was for a period of 14 days which he completed, following which he stayed clean for a few weeks.

56. In 2015 the offender attended the South Pacific Residential Program for a period of 21 days which he completed, following which he was clean for a few months.

57. The third program he attended was “The Cabin” situated in Thailand in August 2016. It was a 28 day program but he stayed for 48 days following which he was abstinent for a period of 12 months. He described the different models for the recovery program and the tools that he had accumulated to use to avoid relapse into drug abuse.

58. The offender described himself as being “not perfect” and accepted that he had had “slips” meaning relapse into drug use. His goal was to be clean forever and he did not want to use drugs. He had virtually lost everything and was trying to get better.

59. The offender gave evidence that over the last twelve months his rehabilitation had progressed in “leaps and bounds”. He would love to say that he would never use drugs again but he recognised that it was necessary for him to continue to engage with professional help. He has spoken publicly about his addiction and didn’t want to be an addict however he stated that “drugs don’t discriminate”.

60. The offender gave evidence that in 2022 he had used drugs on one occasion which involved one line of cocaine. It occurred a week before he saw Dr Lennings and he had disclosed his use to his solicitor who advised him in the strongest terms that it was unacceptable and that if he continued to lapse he would not act for him. He gave evidence that he had not used drugs since that occasion.

61. The offender was asked about the circumstances of his arrest and what he had told police, namely, that he had only used Fastmeet a couple of times. He acknowledged that was a lie and stated that it was at 6:30am in the morning, in the presence of his wife and he was “in complete shock”.

62. The offender confirmed that he never did drugs whilst playing Rugby League. He acknowledged alcohol was a problem during his playing days however he gave evidence that he felt all his life revolved around Rugby League, it gave him his sense of value. He played first grade since the age of 17 when he was in Year 12 and was the youngest player to do so. When he retired in 2013 he had no qualifications to do anything else and felt a huge loss.

63. The offender gave evidence that he could now prevent spiralling drug use by talking to people, his family and treating psychologists. It was his goal to stay healthy, and he understood his physical health was closely tied to his mental health. If he socialised in family circles only he gave evidence that his urge to use illicit drugs passes. Further he was prepared to engage in the treatment regime with Mr Randall.

64. When asked about his bail conditions the offender gave evidence that he was free to leave his house but had elected not to, mostly. Whilst he was allowed use of a telephone he had not used a phone since his arrest. In cross-examination the offender was asked about the occasion in 2022 when he consumed one line of cocaine in the beginning of September. When it was put to him that he told a lie to Dr Lennings about his abstinence the offender gave evidence that he had forgotten that he had taken the drugs. However, his last consistent use of drugs was still two years ago.

65. The offender was also asked about Mr Randall’s report that he had been abstinent during that period. He acknowledged that he did not tell Mr Randall in October that he had used drugs in early September 2022. He understood that he had an obligation to tell a psychologist the truth and when asked why he did not tell Mr Randall he stated “I only did one line and then stopped. But I should have told him”. Whilst there was a big difference in the quantities he had previously consumed than one line of cocaine, he accepted that he had lied and had made a false statement to Mr Randall.

66. In further cross-examination the offender gave evidence that he had not had any regular drug testing since playing Rugby League. Following his rehabilitation he had a number of lapses. He confirmed that the last appointment he had with Dr Keller on 23 December 2021 he had been prescribed anti-depressants. He confirmed his evidence that his drug use had spiralled when he got off anti-depressants in October 2020.

67. The offender was cross-examined about the occasion when Selina had asked him whether he would obtain methamphetamine from someone on Fastmeet. He confirmed that in rehabilitation he had spoken to people, namely gay men, who had spoken about their methamphetamine addiction. This led him to believe that he may identify on Fastmeet a drug user who was under the influence of drugs and therefore increase his chance of obtaining cocaine. He accepted however that there was never a mention of drugs in the communications left on Fastmeet. It was put to him that that was like “fishing in a pond with a hook with no bait”. When asked how it was going to work, ie, to obtain drugs, the offender said it would occur with a follow up message. His ultimate goal was to find a supply of methamphetamine for Selina on the first occasion. Every other time he was trying to obtain cocaine for himself.

68. It was put to the offender that this was a “very inexact way of trying to find cocaine”, and a “very haphazard way” of doing so.

69. When asked whether it was not the case that in fact he had obtained cocaine and then rang the Fastmeet site, the offender denied that. He rejected a contention that his phone calls were made after he had obtained drugs and gave evidence that he was trying to purchase them. He stated, “I would have been on a drug-fuelled bender”.

70. In relation to the inspiration for his statements about youth and children the offender gave evidence that he believed if he made “twisted comments” the recipients were more likely to be under the influence of drugs and he was more likely to obtain drugs from them. He was asked about whether the references to physical violence had been the subject of a discussion in group rehabilitation to which he agreed that there were conversations on the topic, but that they did not involve discussions about physical violence. He agreed that the wording was disgraceful and on occasion went beyond anything he had heard in rehabilitation.

71. The offender accepted that he was the creator of the word picture generated by him in each of the conversations.

72. In relation to the location of the recipients, the offender conceded that he had no idea where they were located but he assumed they were Sydney based. He agreed that it was a terrible method by which to attempt to buy drugs and he was deeply ashamed of it. He also confirmed that on the occasions when he was using cocaine he was on his own all the time.

73. In re-examination the offender confirmed that when he contacted Fastmeet on behalf of Selina he did not leave a child abuse message. At no time when he was in company of Selina did he do so. There were also multiple other occasions when he did not leave any child abuse messages.

74. The offender was asked why he persisted with this “inexact way” of obtaining drugs. He stated that when he was first given the phone number which Selina used he was in desperate need and hope of obtaining drugs.

Evidence of Mr C Young

81. Mr Young was the author of the testimonial in Exhibit 1.5. He gave evidence that he had known the offender’s parents and the offender for the majority of the offender’s life. He had read and was aware of the agreed facts. In his testimonial (Exhibit 1.5) he had referred to the offender’s long battle with mental health issues. He became aware of the offender’s drug addiction approximately four years ago and gave evidence that the offender’s battle with his addiction was not a secret in Rugby League circles, in fact it was well known.

82. Mr Young gave evidence that he had been involved in top grade Rugby League since 1977. He was asked whether there were times when players transitioned poorly to civilian life after a football career. He gave evidence that in the past clubs have not given enough support to players however “the game” was getting better at managing the transition. In 2013 when the offender retired that support was in infant stages. Welfare officers were now employed by the clubs to assist players when their football career finished. Mr Young confirmed his opinion that the offender was a very caring person with leadership qualities. He described him as “outgoing and confident” and that he cared for teammates during his playing career both on and off the field.

83. Mr Young gave evidence that he had, since the offender’s arrest, discussed his offending behaviour with him. He was of the opinion that the offender takes responsibility for his criminal conduct and knows that it is “horrific”. He understood the reasons why the offender offended was that drugs change people, and he was prepared to provide ongoing assistance to him. He understood that the offender was still coming to grips with his drug addiction.

84. In cross-examination Mr Young was asked about his opinion that the offending constituted a genuine mistake. He was asked whether he understood that the offending occurred on several occasions over three months and was not an isolated mistake, to which he replied that the offender’s mistake was taking drugs which lead him to the offending. It was his view that but for the drugs, this behaviour would not have occurred.

Evidence of Ms C J Redman

85. Ms Redman first met the offender and his family in 1991 and they remained good friends to the present time. She had regular contact with the offender over those years, especially when he was playing football. Ms Redman had read the agreed facts and was aware that the offender had been struggling with drug addiction over the last seven years. She gave evidence that his offending was totally out of character, that he was a good person and he was “loyal kind and caring, a good son, husband and brother, a good friend and a great dad”.

86. Ms Redman also gave evidence that she was able and willing to provide assistance to the offender, including assistance with his drug addiction. There was no cross-examination.

The Crown Submissions

87. The Crown relied on a detailed written outline of submissions to support an ultimate submission that the only appropriate sentence is a custodial sentence with a period of fulltime imprisonment to serve.

88. The Crown set out in an annexure to the submissions general principles for sentencing for Commonwealth offences which are well established and uncontroversial. The Crown further noted that the maximum prescribed penalty of 15 years imprisonment provides a yard-stick for the appropriate sentence and must be balanced against all other factors. In particular the court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence (s16A(1) of the Crimes Act 1914 (Cth) (“the Act”)) having considered the non-exhaustive list of relevant matters set out in s16A(2) of the Act.

89. The Crown referred to the factors relevant to the assessment of objective seriousness for an offence involving child abuse material as determined in R v Hutchinson [2018] NSWCCA 152 at [44]-[45]. Those factors are referred to below.

90. The Crown also submitted that general deterrence is the primary sentencing consideration for offending involving child pornography and online sexual exploitation of children given the prevalence and ready availability of child abuse material on the internet and the need to protect children from sexual abuse. The protection of children was a paramount public interest.

91. In relation to the relevant matters pursuant to s16A(2) of the Act the Crown relied on the following submissions:-

(2)(a) – Nature and circumstances of the offence

92. There was no issue that the messages left by the offender on the Fastmeet site constituted child abuse material. On that site the offender communicated with multiple persons whose identify and connection to children was unknown to him. One of those persons, unknown to the offender, was a convicted child sex offender. This was a significant fact as it highlights the risk taken by the offender in making available child abuse material as he was communicating with persons who may be susceptible to act in the matter described, and was normalising sexual activity between adults and children.

93. The Crown submitted that the communications contained highly graphic, depraved, and explicit descriptions of sexual activity between adults and children, and incest. One of the communications described physical violence and the infliction of injury as part of a sexual act and several of them described sex in non-consensual terms.

94. The Crown submitted that whilst there was no actual child involved in the audio recordings it was wrong to categorise the offending as a victimless crime, relying on R v Edwards [2019] QCA 15 at [58]. In that case it was held that material of this type is not harmless, it has a tendency to normalise “exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children”.

95. The Crown also relied on R v Burton [2020] NSWCCA 127 where the Court of Criminal Appeal stated that the seriousness of the offence of transmission of child abuse material is necessarily informed by the nature and content of the material itself.

(2)(d)(e) and (ea) – Circumstances of the victim/any injury, loss, damage or harm caused

96. The Crown conceded that there were no actual children victimised in the offending

(2)(j)(ja) and (k) – General deterrence, specific deterrence and the need for adequate punishment

97. The Crown submitted that general deterrence is a paramount factor in sentencing for child abuse material offences. In considering the need for specific deterrence the Crown submitted the court could take into account consideration that the offender’s conduct indicates that he was motivated by a sexual interest in children.

(2)(g) – Plea of guilty

98. The offender’s plea is to be assessed with regard to the timing of the plea and to the degree which it benefits the community. The plea may also be relevant on a subjective basis in considering remorse and contrition. The Crown submitted that the court may consider whether the plea was motivated by a willingness to facilitate the course of justice or simply a recognition of the inevitable.

(2)(f) – Contrition for the offending

99. The Crown submitted that contrition must be shown by “taking action… or in any other manner” and should be established by proper evidence.

(2)(m) – Character, antecedents, age, means and physical and mental condition

100. The Crown noted that the offender was 39 years at the time of the offending and has no previous criminal convictions. Limited weight should be given to the offender’s prior good character relying on DPP (Cth) v Garside [2016] VSCA 74 at [63]. It was submitted that in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender, relying on Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250 at [42].

(2)(n) – Prospects of rehabilitation and s16A(2AAA)

101. The Crown submitted that steps taken by the offender towards rehabilitation should be taken into account on sentence but should not be given focus at the expense of other important sentencing considerations such as general deterrence and denunciation. The offender’s prospects for rehabilitation must be considered in conjunction with any treatment undertaken by him since being charged with the offences, inclusive of treatment to address the offending behaviour. The Court will also need to consider the risk of re-offending.

102. The Crown submitted that the court would accept that the offender’s conduct was motivated by sexual gratification.

103. S16A(2AAA) required the court to have regard to the objective of rehabilitating the offender including by considering whether it was appropriate that any order should include a condition about rehabilitation or treatment options. This section does not displace the requirement that the sentence must be of severity appropriate in all of the circumstances of the offence.

104. The Crown also referred to s20(1)(b)(ii) of the Act to submit that there is a presumption that in sentencing a Commonwealth child sex offender to imprisonment the offender will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order. Pursuant to s20(1B) of the Act a court making a recognizance release order for a child sex offender must attach certain conditions to the order. Further, it was submitted that an intensive corrections order pursuant to s7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) was unavailable, by application of s67 of the CSPA.

105. The Crown provided a schedule of comparative sentences to be used as yardsticks that may illustrate a possible range of sentences available and for the assistance of the court in determining the applicable unifying principles relevant to the offence.

106. In his oral submissions the Crown referred to the reports of Dr Lennings and Mr Randall as giving rise to an impression that this offending was out of character behaviour which arose because of the offender’s addiction to cocaine. Some doubt was cast on the offender’s case by his admission of ongoing drug use.

107. It was submitted that the court should be guarded in accepting the submission to be made on behalf of the offender that his offending arose out of his drug abuse. It was further submitted that the court should have some reservations about accepting the offender’s evidence although counsel conceded that it was not put to the offender in cross-examination that his explanation for his conduct was a fabrication. Notwithstanding that, counsel submitted that aspects of his explanation were troubling, and it was an inexact way to find cocaine particularly as there was no mention of drugs in any of the communications. It was submitted that it was an improbable way of satisfying the offender’s addiction.

108. The Crown submitted that the court would justifiably be guarded with respect to the offender’s prospects for rehabilitation which to date had been very unsuccessful.

109. The Crown submitted that making available child abuse material by transmission of the statements or communications left by the offender was for the complex or simple expediency of obtaining drugs does not relieve the offender of the criminality involved. The Crown characterised this as a cynical attempt to obtain drugs.

110. The Crown rehearsed its submissions as to the impact of the offending in that it normalised sexual activity with children and was exploitative of children, capable of inciting a successful recipient to offend against children. Here the real risk of the recipient offending materialised in relation to one of the recipients, a convicted paedophile.

111. Counsel submitted that the contrition expressed by the offender in his evidence involved a disconnect between what he says and what he is prepared to do. Therefore, his contrition was unresolved in fact.

112. The Crown noted that the offender was a person blessed with great sporting ability which he used to great effect for the enjoyment of many in the community. This put him in a position where he was able to contribute to the community for example, to charities, however it also made the fall more awful for him. The Crown referred to the extra-curial punishment caused by media coverage disproportionate to the offending conduct relying on R v Wran [2016] NSWSC 1015 at [77]-[79] and Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87 at [90] to submit that public humiliation does amount to a mitigating factor. Here there was a need to find evidence of public humiliation and vilification before they are taken into account. Other punishment included the withdrawal of the offender’s contract with SEN however this was an inevitable consequence of his drug abuse, arrest, and ultimately his sentence. The court may also take into account the diminution in his job prospects.

113. Counsel submitted that the impact on his family by the media for example, by them attending his child’s childcare centre did not necessarily amount to vilification. What was required was beyond usual coverage of the event by the media.

114. The Crown rehearsed his submissions in relation to the offender having guarded prospects of rehabilitation, the impact of s16A(2AAA) and the fact that an Intensive Correction Order was not available.

115. Counsel further submitted that addiction to drugs as a motivating factor for criminal conduct is not a mitigating factor relying on the guideline judgment of R v Henry (1999) NSWLR 346; [1999] NSWCCA 111. Although that guideline judgment involved different criminal conduct the offender’s case here was that he engaged in that conduct to provide a logistic avenue for the acquisition of drugs. At [273] Wood CJ at CL stated that the motivation fed by a need to obtain funds to get drugs could be taken into account in assessing the objective seriousness of the offending for example, whether there was planning or impulsivity involved. Here the offending took place over a number of months and demonstrated the offender was disinhibited in his manner of obtaining or attempting to obtain drugs. Lastly, it was submitted to engage in criminal conduct in that cynical fashion does not diminish the criminality of the conduct.

116. Counsel also referred to relevant facts in the comparative sentencing cases to distinguish them from the present case.

Offender’s submissions

117. Counsel for the offender also relied on a thorough and detailed written outline of submissions acknowledging that the offender is not eligible to serve any sentence of imprisonment by way of Intensive Correction Order pursuant to s67 of the CSPA, but submitting that his case involves exceptional circumstances so at to warrant an order pursuant to s20(1)(b) of the Crimes Act so as to authorise an order that he be released forthwith and placed on a recognizance release order.

118. In relation to the facts, Counsel noted that somewhat unusually the offending here did not involve the use of the internet. It was submitted that the six occasions on which the offender contacted the Fastmeet telephone chat service he left short, recorded voice messages that described sexual acts with children ranging in age from 12-16 which constituted child abuse material. However, it was submitted that the evidence of the offender, the telephone records and the complete absence of anything relating to visual child abuse material on the offender’s electronic devices together with the evidence of Dr Lennings established that the offences were not motivated by a desire to obtain sexual gratification. Rather, the offender’s motivation was a desire to obtain drugs to fuel his chronic addiction to cocaine. Further, the offender voluntarily ceased the offending conduct in January 2021 and was not arrested until December 2021.

119. Counsel for the offender made the following submissions in regard to the relevant factors pursuant to s16A(2)(a) of the Act as follows.

(2)(a) - the nature and circumstances of the offence

120. In relation to the factors listed in R v Hutchinson which informed the objective seriousness of offences of this type the offender submitted there were no actual children used in the creation of the material. It was conceded that the content was both graphic and depraved, however, in each case consisted of a very short voice description communicated on a telephone messaging service. The material had the following characteristics:-

1. For each of the seven discrete messages constituting child abuse material, only one recipient could listen to the message that had been left and that recipient needed to have been connected to the service at the time the offender was also connected.

2. The recipient could only listen to the message for the duration of the phone call and not thereafter. Once the recipient terminated the phone call, they could not hear the message again even if they dialled back into the service.

3. There was no risk of further dissemination.

4. With the exception of the call on 18 November 2020, there is no evidence that any recipient had actually listened to the child abuse material message that had been left for them.

121. It was submitted that there was no cruelty or physical harm occasioned to children discernible from the material and there were no real children depicted in the seven extremely short messages. Each message was transmitted to a single person and could not be disseminated further, and whilst the offender sought a material benefit in the form of access to drugs, he never received one.

122. It was further submitted that although the offender brought the material into existence, he did not exploit a child in order to do so. The offending involved no planning, organisation or sophistication. The offender used his own telephone number registered in his own name and whilst he took rudimentary steps to conceal his identity by using a pseudonym on one occasion, he took no other steps to conceal his identity.

123. The extract of call records in Exhibit 2.2 revealed that all but one offence occurred between 12:00am and 7:00am. It was further submitted that on each occasion that there was a message left, contact was made with a drug dealer in the period before and/or after the message was left. This supported the complete lack of any planning, organisation or sophistication and the offences occurred against a backdrop of a drug-fuelled binge.

124. It was further submitted that the offender understood that everyone using the service was over 18 years of age and therefore the persons he left messages for were all adults.

125. It was submitted that the offender acted alone and there was no evidence that he was in a collaborative network of like-minded individuals. What he sought to do was to use the chat service on seven occasions to identify people who to his mind were more likely to be able to source prohibited drugs. Only one person ever responded. It was further submitted that there was no risk of the material being acquired by children, although it was conceded that there was some risk of the material being acquired by a single individual susceptible to act in the manner alleged, hence the offending was extremely confined.

126. The offence is a rolled-up charge and is not a representative charge in the sense that there are other criminal acts that are not subject of a discrete charge.

127. Counsel submitted the offence is well below the mid-range of objective seriousness for offences of this type however it was conceded that it does not fall at the bottom of the range for an offence pursuant to s474.22. The section encompasses a very wide range of conduct including the dissemination over the internet of thousands of child abuse images and videos at an international scale involving actual victims. This type of dissemination gives rise to a potential for unlimited further dissemination.

128. It was submitted that the true vice to which the section is directed is the use of internet as a market for child abuse material. The harm done to the victims is perpetual given that images may be circulated indefinitely and the Bill that introduced s21B(1) and (2) of the Act was itself directed towards combatting the use of the internet in child sexual abuse cases, relying on R v Delzotto [2022] NSWCCA 117 at [80].

129. Counsel submitted the objective seriousness of the offending is less than offences that involve the actual depiction of children, however the offence is aggravated by the highly depraved nature of the descriptions in each of the seven messages and the fact that the offending occurred sporadically over a three-month period. This warranted a finding that the offence is well below the mid-range of objective seriousness.

(2)(f) – Contrition

130. Counsel submitted the best exposition of the offender’s remorse was his voluntary cessation of his conduct almost one year prior to his arrest. The offender now understands the manner in which his offending had the potential to promote the type of conduct that he finds so abhorrent and which caused him “to come to his senses”. Dr Lennings opined that the offender was genuinely remorseful for his behaviour and had taken responsibility for it.

(2)(g) – Plea of guilty

131. It was not in issue that the plea was entered early and the offender is entitled to a discount on sentence for its utilitarian value. It was also submitted that the timing of the plea together with the voluntary cessation of conduct demonstrates considerable remorse and contrition.

(2)(j) and (ja) – General and specific deterrence

132. The offender acknowledged that general deterrence remains a significant if not primary sentencing consideration for offences pursuant to s474.22 of the Code. However, it was submitted that general deterrence does not remain a key focus of the sentencing exercise here as the offending did not involve the internet. This is because the present case does not involve anonymity, international distribution, difficult detection and in perpetuity victimisation that is associated with the internet. Further, specific deterrence is not warranted in this case as the offender voluntarily ceased his conduct and did not commit any further offences before his arrest.

133. It was submitted that extra-curial punishment and public humiliation and opprobrium are separate and distinct concepts which operate in tandem in this case. The evidence supported a submission that publicity about the offender’s conduct had been widespread. The only career the offender had ever known meant that the combination of adverse publicity and the need to avoid contact with juveniles is decisive that he is highly unlikely to ever work in that field again. The offender is now reluctant to leave his own home and this has impacted upon his mental health. Further, Centrelink has taken steps to offer additional assistance for him to obtain employment as his attempts to secure alternative employment have been fruitless to date.

(2)(h) – Co-operation with law enforcement

134. At the time of the execution of the search warrant at his home the offender made admissions as to his use of the chat service and his use of the mobile phone to connect with this service. He volunteered all of his electronic devices together with passwords to enable the devices to be forensically examined and forensic examination revealed no nefarious material. Although the offender was not completely honest with investigators about the number of times he connected with Fastmeet, the context in which those lies were told included the shock of police arriving at his home in the early morning some eleven months after the offending had ceased and the fact that his wife was present during his questioning.

(2)(m) – Character, age and antecedents

135. The offender submitted that there were significant subjective matters to take into account on sentence. The offender had been a former professional rugby league player for 14 years and had contributed his services to charity work for more than a decade both during and after his football career. He also conducted coaching clinics for young people well over 100 times. It was submitted that the offending was entirely out of character, and whilst good character is of reduced significance in sentencing for this type of offence, it nevertheless remains relevant and given his contribution to the community it extends well beyond the ordinary claim of no prior convictions.

136. It was submitted that the dominant feature of the offender’s physical and mental health is his addiction to cocaine, complicated by the possibility of an underlying hyper-manic condition and the ongoing effects of head injuries sustained whilst playing professional sport. The offender had readily identified the loss of identity and structure following his career as a professional footballer as the catalyst for his descent into drug addiction. It was this addiction which led to the offending conduct, and the offender relied on Dr Lennings opinion that his prior presenting problem was not one of sexual deviance.

137. The offender submitted that whilst the opinions of Dr Lennings did not engage the principles in DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194, his complex presentation is a matter to be taken into account pursuant to s16A(2)(m) of the Act and in determining whether exceptional circumstances have been established.

(2)(n) – Prospects of rehabilitation

138. Counsel outlined the three rehabilitation attempts together with the offender’s current treatment with Mr Randall, and noted that the court is required to have regard to whether it is appropriate to impose conditions concerning rehabilitation or treatment. It was submitted that as the offender’s conduct was not sexually motivated there was virtually no risk of the offender ever committing a prescribed sexual offence again and treatment to address sexual deviance is not required. Rather, the offender’s treatment requirements involve tailored treatment for drug addiction. The offender relied on Dr Lennings opinion that his treatment needs are unlikely to be addressed in custody. Counsel submitted the offender has good prospects of rehabilitation having made good progress and that further progress will be impeded if he is sentenced to a period of fulltime imprisonment.

139. In determining whether exceptional circumstances for the purposes of s20(1)(b)(ii) and (iii) have been established the counsel for the offender referred to the explanatory memorandum and relied on the formulation expressed by Buscombe DCJ in R (Cth) v Nafarette [2022] NSWDC 225 at [89] as follows:-

“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”

140. It was submitted that the following combination of factors operated to establish exceptional circumstances:-

1. Offending well below the mid-range of objective seriousness, involving no victim, no use of the internet, a very limited class of persons for a very short time and no risk of retransmission.

1. The voluntary cessation of offending conduct.

2. The very wide ranging adverse media publicity, long term destruction of realistic employment opportunities (of any type) and the prejudicial effect of events on his family represent a very significant punishment on the offender. The media publicity is disproportionate to the gravity of the offending conduct and is (at least in part) apt to mislead.

3. The offender will be vulnerable in custody by reason of the notoriety of the matter and the opprobrium with which offending of this type is regarded in custodial settings. The subtleties of the instant case and the absence of any paedophilic tendencies (even if reported in the media), are likely to be lost on those in custody who would seek to act in a vigilante manner. The offender will likely serve his sentence in protection, and thus be further deprived of those limited programs that are available in custody.

4. The offender’s community service work ranging over a period of 15 years.

5. The offender’s commitment to treatment, his good prospects of rehabilitation and the likely unavailability of appropriate programs in custody to promote the offender’s rehabilitation.

141. The offender relied on a schedule of cases where exceptional circumstances have been found to exist. Although the offending conduct in each case was demonstrably more serious in this case, it was submitted that the combination of factors set out above satisfied the test and any term of imprisonment should be suspended forthwith upon the offender entering into a recognizance release order that has conditions directed toward promoting his continued rehabilitation, including the mandatory conditions set out in s20(1B) of the Act.

142. In his oral submissions counsel for the offender rehearsed his submission that the comparative cases relied upon by the Crown were, on the facts, more objectively serious offending than the index offence. In a subsequent submission Counsel distinguished R (Cth) v Simonet, unreported NSWDC 7 July 2022 on the basis that the offending in that case was demonstrably more serious, that this offender has a far more powerful subjective case than Simonet and that the sentence in Simonet was out of step with other comparable cases.

143. Counsel submitted that the Court would comfortably come to a finding on the balance of probabilities that the offender’s motivation for his offending was that stated in his evidence, namely, that he engaged in the offending conduct in the hope of attracting a source for obtaining prohibited drugs. It was further submitted that the court would accept Dr Lenning’s opinion that the offender had no sexual interest in children and exhibited no sexual deviance. Important in that finding was that there was not a single item of child abuse material on any device of the offender following forensic examination. Supporting this finding was the fact that he had ceased voluntarily the conduct that was the subject of the index offence.

144. It was submitted that the offender acknowledged the potential that his conduct gave rise to and that the threshold in s17A of the Crimes Act had been met.

145. In assessing the objective seriousness of the offending having regard to the factors in R v Hutchinson, it was clear that there was no risk of further dissemination of the messages left on the chat site. Further, such material was not capable of being possessed by the recipient, which was not an element of the charge. There was therefore a complete absence of a risk of re-transmission and a limited time in which the recipient had to access the material. It could not be uploaded to the internet and shared in perpetuity. The offender did however accept the Crown submission that there is a risk that the material would be left to a recipient susceptible to act on it.

146. It was submitted that this was therefore a different order of magnitude compared to offending involving child abuse material on the internet.

147. It was further submitted that the actual offending was not of lengthy duration rather it was the length of time it took to utter the words in seven messages on six discrete occasions. Further those messages were not available after the recipient’s phone call ended.

148. It was further submitted that the offender obtained no benefit from the criminal conduct. Counsel rehearsed his submission that the Hutchinson factors relate to child abuse material which is left in perpetuity on the internet but there could be no circulation or dissemination here.

149. Counsel also accepted the Crown submission regarding the applicability of the Henry principle. As this offending had no capacity to fuel the market for child abuse material it lacked the more egregious features of online offending.

150. Counsel rehearsed his submissions in relation to contrition and further submitted there should be some moderation in the application of general deterrence here. Specific deterrence required a nuanced approach as there was no real risk of the offender repeating his offending behaviour.

151. Counsel submitted that the contention that imprisonment will deter an offender from illicit drug use is both against the weight of the evidence and also the sentencing judge’s experience. It was important here that the offender’s treatment was not available in gaol and the court would take into account whether there was any room left for specific deterrence because of the adverse media publicity suffered by this offender.

152. Counsel submitted there were four ways to take into account the adverse media publicity. First, the direct impact it had on the offender who rarely leaves his house and the profound effect it has had on his family out of all proportion to the offending conduct. But for his profile in rugby league it was submitted this offending would have been unlikely to have attracted the degree of media publicity it has, even though the offending was completely unrelated to his football career.

153. Secondly, the adverse publicity has had a direct impact on his capacity to obtain employment, having lost the opportunity to have a contract with SEN and then being unable to obtain employment through Centrelink.

154. Thirdly, the extract of media publications in Exhibit 2 made it clear that much of the reporting, although factually correct, was such that a casual reader would not appreciate the subtleties of the case and would believe that he had committed heinous crimes and liked having sex with children. As a result he will be known for this offending forever, unlike others who offend in a similar way.

155. Fourthly, the adverse media publicity increased substantially the risk to the offender if a prison sentence is imposed. It was submitted that the fact that the offender was not a paedophile and was not motivated by a sexual attraction to children would be lost on hardened prisoners.

156. Counsel submitted that a combination of these factors would lead to a finding of substantial extra-curial punishment.

157. Counsel rehearsed his submissions relating to the offender’s cooperation with authorities and also as to his character and charity work. It was noted that much of that work was carried out without pay and was not carried out as a result of a privileged position in the community as advocated by the Crown. Rather it arose from the offender’s desire to assist the community.

158. Counsel also rehearsed his submissions relating to the opinions of Dr Lennings and his treatment plan as set out above. The offender’s position diverged from the Crown position on the topic of the offender’s prospects of rehabilitation however it was submitted that the offender’s prospects of rehabilitation were excellent given the progress the offender had made in his rehabilitation and his insight into his drug addiction. The offender gave evidence candidly and eloquently about his previous attempts to rehabilitate and this insight is not a recent recognition. Rather he had publicly discussed his addiction to drugs and accepts he has a long way to go. The fact was that the offender had repeated attempts at rehabilitation, and he had admitted he was not perfect. It was submitted his prospects of rehabilitation will not be improved by imprisonment.

159. Finally, Counsel submitted that the nub of the sentencing exercise here was a finding of exceptional circumstances. It was submitted the appropriate assessment of objective seriousness here in no sense precludes a finding of exceptional circumstances and the imposition of a non-custodial sentence.

Determination

160. S17A of the Act provides that the court shall not pass a sentence of imprisonment for a federal offence unless, having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all of the circumstances of the case. The offender by his counsel has acknowledged that the criminal conduct here passes the threshold implied in that section, but has advocated a finding of exceptional circumstances so as to engage s20 of the Act.

161. S16A of the Act provides that in determining the sentence for a federal offence a court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. S16A(2) prescribes a number of matters the court must take into account. In the sentencing exercise here the following are relevant matters pursuant to s16A(2):-

(2)(a) The nature and circumstances of the offence

162. The offending comprised the seven messages left on six occasions over a three month period on the Fastmeet app, each of which constituted child abuse material. It was properly characterised as, and accepted by the offender as being, “highly graphic, depraved and explicit descriptions of sexualised activity between adults and children, and incest.” Making available child abuse material is pernicious offending, particularly when carried out online with the potential for dissemination to a worldwide market for such material facilitated by the internet. That however, was not the case here as there was limited access to the material on the Fastmeet application.

163. S474.22(1) of the Criminal Code however encompasses a very wide range of criminal conduct. In assessing the objective seriousness of the offending here, having regard to the factors outlined in R v Hutchinson, I take into account that there were no actual children involved, no images of children transmitted or disseminated, the offending was entirely unsophisticated in that except for the use of a pseudonym on one occasion the offender used his own phone and was easily identified, he was acting alone and that the bulk of the offending occurred between midnight and 7am at times when the offender was engaged in a drug-fuelled binge on cocaine.

164. There was a risk however of the material being acquired by a person susceptible to act in the manner described and to offend against children. That risk materialised here when a convicted child offender in Victoria responded.

165. The offender’s motivation in the offending is relevant to the assessment of objective seriousness. Here, the language used by the offender in leaving each of the messages on the Fastmeet app are rendolent of the type of language the courts are customed to seeing in offences involving the transmission of child abuse material by persons who are motivated by their sexual interest in children. The offender however has given sworn evidence that his motivation in using that language was to provoke a response from persons he believed would be drug users and therefore may ultimately be able to supply cocaine to him. The Crown did not challenge that evidence on the basis that it was fabricated but rather characterised it as a “very inexact” and “very haphazard” way, and a “cynical” way of going about obtaining drugs.

166. Nor did the Crown challenge Dr Lenning’s opinion that the offender had no sexual interest in children, as supported by the evidence that he had no child abuse material on any devices which were forensically examined. I therefore accept that the offender’s motivation was, given his addiction to cocaine, born out of his desire to obtain drugs and I accept that this occurred during the COVID-19 pandemic. I am mindful that the offender’s addiction to drugs does not mitigate his offending however it is relevant to the assessment of the objective seriousness of the offending given that it may explain the impulsivity of the offender’s conduct, the lack of any planning or sophistication in the offending together with some disorder of his thought process that would discern a scheme which was on any view patently absurd with no hope of success – see R v Henry at [273] per Wood CJ at CL. It could only have been borne out of desperation, to obtain drugs to feed his addiction. Also relevant is the fact that the offender voluntarily ceased the criminal conduct, and committed no further offences in the eleven months prior to his arrest.

167. Having regard to all those matters I find that the objective seriousness of the offending fell in the middle of the low-range for an offence pursuant to s474.22(1) of the Criminal Code. It still constituted objectively serious criminal conduct, and was morally reprehensible.

(2)(d) The personal circumstances of any victim of the offence

168. Whilst no actual children were involved in the commission of this offence, making available child abuse material is not regarded as a victimless crime – see R v Edwards [2019] QCA 15. Nor does it diminish the offender’s moral culpability for his criminal conduct.

(2)(f) and (g) The degree to which the offender has shown contrition and the plea of guilty

169. The offender entered an early plea of guilty and is entitled to a utilitarian discount on sentence of 25%. He has also expressed his remorse to the court, to his family and to the authors of the testimonials referred to above. I accept that he is genuinely remorseful for his offending conduct and has expressed genuine contrition for it.

(2)(h) Co-operation with law enforcement agencies

170. I find that the offender has generally been co-operative with law enforcement agencies providing his mobile phone and computer and passwords for them to be forensically examined. He was not however, entirely candid with investigating police when they arrested him.

(2)(j) and (ja) General and specific deterrence

171. General deterrence is of primary importance is sentencing for child sex offending including offences involving making available child abuse material. A clear message must be sent to the community that such activity is abhorrent, that Parliament has imposed lengthy maximum terms of imprisonment for such criminal conduct and that the courts will impose condign punishment in appropriate cases. The offender by his counsel has conceded that his mental health issues do not attract the principle in DPP (Cth) v De La Rosa, however those issues are still a relevant factor to take into account on sentence. They do impact on the weight to be given to specific deterrence, as does the effect of his experience in the criminal justice system and the media publicity.

(2)(m) The character, antecedents, age, means and physical and mental condition of the person

172. The offender is now aged 41 years old and was previously a man of good character who rose to public prominence by means of his career as a professional footballer. It was only when that career finished, and he struggled with the transition to a civilian way of life without the structure of the life of an elite athlete, that he fell into drug abuse. That abuse spiralled and within a short time he was addicted to cocaine. Notwithstanding three separate attempts to rehabilitate, and increasing lengths of abstinence following each attempt, that addiction led to the depletion of his assets and, at the time of the offending during the COVID-19 pandemic, a desperation to obtain drugs following the arrest and imprisonment of his dealer.

(2)(ma) The offender’s standing in the community

173. Whilst the offender’s standing in the community was not used as an aid in the commission of the offence, it did mean that he was subjected to intense media scrutiny following his arrest and during his interactions with the criminal justice system. That scrutiny could only be described as above and beyond the usual media coverage of offending of this type. It has highlighted his fall from grace and, whilst on the whole constituting accurate coverage I accept the submission made on behalf of the offender that in much of the coverage an average reader could easily infer that the offender was a paedophile with an active sexual interest in children. As set out above however, that is a direct consequence of the language he used in committing this offence. The fact of the media coverage being out of proportion is however a matter that I will take into account on sentence.

(2)(n) Prospects of rehabilitation

174. The offender was candid about his addition to cocaine, his attempts at rehabilitation and his insight into the causes of his addiction to the extent of disclosing random drug abuse since his arrest. I was generally impressed with the evidence of the offender notwithstanding that at times he was somewhat unresponsive to the questioning and gave an impression of being somewhat hypermanic. However, it demonstrated a man with insight into the enormity of the struggles he now faces. The court acknowledges that it is no mean feat to overcome an addiction to a highly addictive drug like cocaine, and the offender is determined to use the tools he has previously, and is presently using, to battle that addiction. Given the risk of relapse for any addict, his prospects of rehabilitation must be somewhat guarded however I am persuaded that he is determined to do his best in that process. Given the nature of the offending I must have regard to the objective of rehabilitating the offender pursuant to s16A(2AAA) and include in any sentence imposed sufficient time for him to undertake a rehabilitation program.

175. Given the above matters I find that the offender has low prospects of recidivism for offending of this type.

176. I take into account the maximum penalty imposed by Parliament of 15 years imprisonment. The maximum penalty indicates the seriousness of the offending, and is also to be taken as a guidepost in the sentencing process.

177. I accept the offender’s submission that extra-curial punishment should be taken into account. As set out above the wide-spread media scrutiny and the nature of the reporting would lead to a risk of custodial retribution, enduring damage to the offender’s reputation and would impede his recovery from his ongoing mental health and drug related problems – see R v Wran [2016] NSWSC 1015. A further relevant factor is the loss of his employment prospects which I also take into account on sentence.

178. S20 of the Act provides relevantly as follows:-

20 Conditional release of offenders after conviction

(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

(a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

…

(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or

Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.

(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):

(i) if none of the offences is a Commonwealth child sex offence—either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with s19AF(1); or

(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 s19AF(1); or

(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.

…

(1B) If at least one of the offences the person is convicted of is a Commonwealth child sex offence, the court must specify under paragraph (1)(b), as mentioned in subparagraph (1)(a)(iv), the conditions that the person will, during the specified period:

(a) be subject to the supervision of a probation officer appointed in accordance with the order; and

(b) obey all reasonable directions of the probation officer; and

(c) not travel interstate or overseas without the written permission of the probation officer; and

(d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

(2) Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her:

(a) the purpose and effect of the proposed order;

(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and

(c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

179. In determining whether exceptional circumstances have been established for the purpose of s20(1)(b)(ii) and (iii) I adopt the construction of the expression “exceptional circumstances” formulated by Buscombe DCJ in R (Cth) v Nafarette set out in [139] above. His Honour stated at [89], “in my opinion the word exceptional in the statutory context means out of the ordinary course or unusual or special or uncommon… a combination of factors, in my opinion can amount to exceptional circumstances”. Here, I am satisfied that a number of factors warrant a finding that exceptional circumstances exist and displace the presumption of immediate imprisonment. Those factors include the following:-

1. The low objective seriousness of the offending for an offence pursuant to s474.22(1) of the Criminal Code that did not involve any actual child victim and is explained by the offender’s drug addiction.

2. The absence of any sexual attraction or interest in children rendering the offender’s risk of recidivism to be very low.

3. The absence of any prior criminal conduct or suggestion of antisocial behaviour on the offender’s part other than his drug addiction.

4. The offender’s contribution to the community by way of charitable events and coaching clinics.

5. The offender’s insight into his underlying drug addiction and his commitment to rehabilitation.

6. The offender’s genuine remorse and contrition.

7. The availability of ongoing treatment in a positive, therapeutic environment not available in a custodial setting.

8. The extra-curial punishments offered as a result of the vilification of the offender in the media.

9. The mandate contained in s16A(2AAA) of the objective of rehabilitating the offender.

10. I am therefore satisfied that this combination of factors amount to exceptional circumstances which warrant an order pursuant to s20(1)(b)(ii) that the offender be convicted of the offence, but that he be released immediately upon giving a security without sureties by recognizance that he will abide by the following conditions:-

1. The mandatory conditions set out in s20(1)(a) and s20(1B).

2. A treatment condition that for the duration of the recognizance release order that he remain under the care of his treating psychologist and accept such recommendations for treatment made by his treating doctor and psychologist.

180. The term of the recognizance release order will be for a period of two years.

Orders

181. I hereby make the following orders:-

1. You are convicted of the offence pursuant to s474.22(1) of the Criminal Code 1995 (Cth) that between about 6 November 2020 and 30 January 2021 you used a carriage service to make available child abuse material.

2. I sentence you to a term of two years imprisonment but order that you be released pursuant to s20(1)(b)(ii) of the Crimes Act 1914 (Cth) immediately upon giving a security in the sum of $1000 without surety by recognizance release order subject to the following conditions:-

1. That you will be of good behaviour for a period of 2 years.

2. That you will remain under the care of Mr G Randall for a period of 12 months, and for any period thereafter determined to be necessary by Mr Randall.

3. That you accept supervision by a probation officer appointed by Community Corrections and follow the directions given to you by that service including testing for the presence of illicit drugs either in your urine, blood or hair follicle, randomly or otherwise.

4. That you follow all reasonable directions of your probation officer;

5. That you do not travel interstate or overseas without the written permission of your probation officer, and

6. That you undertake any such treatment or rehabilitation programs that your probation officer reasonably directs.

182. I direct you to report to Community Corrections at Sutherland within 7 days of today. You must understand that this is a gaol sentence that you are required to serve in the community. If you breach any conditions that are attached to the order, without reasonable cause or excuse, consequences will follow that may include you serving the balance of the term in custody.

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Decision last updated: 23 November 2022