R v Glenn

[2020] NSWDC 44

District Court

New South Wales

Medium Neutral Citation:	R v Glenn [2020] NSWDC 44
Hearing dates:	21 February 2020
Decision date:	12 March 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [105]
Catchwords:	State offence of possess child abuse material; Commonwealth offence of use carriage service to access child pornography material
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 (Cth)
Cases Cited:	Baden v R [2020] NSWCCA 23 DPP v Swingler [2017] VSCA 305 Fitzgerald v R [2015] NSWCCA 266 Hoskins v R [2016] NSWCCA 157 R v Booth [2009] NSWCCA 89 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v De Leeuw [2015] NSWCCA 183 R v Edwards (1996) 90 ACrimR 510 R v Gent [2005] NSWCCA 370 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) (Crown) Rohan Paul Glenn (Offender)
Representation:	Solicitors: E Hirst (Cth Crown) R Baldeo (Offender)   Nyman Gibson Miralis
File Number(s):	19/61872
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of the following two charges to which he has entered pleas of guilty:

1. Sequence 2 – Possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty proscribed is 10 years imprisonment. There is no Standard Non-Parole Period.

2. Sequence 3 – Use carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). The maximum penalty proscribed is 15 years imprisonment.

2. In respect of the second matter, the offender has asked to be taken into account on a Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), the following three offences:

1. Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth), between 10 September 2018 and 20 November 2018.

2. Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth), between 7 November 2018 and 20 November 2018.

3. Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth), between 8 April 2018 and 12 August 2018.

The maximum penalty proscribed in respect of each of these offences is 15 years imprisonment.

3. The offender has admitted his guilt in respect of those three matters and has asked that they be taken into account by the court in passing sentence for the offence listed above, namely, Sequence 3.

The sentence hearing

4. The sentence hearing took place on 21 February 2020. The Commonwealth Crown Sentence Summary became Ex A and included an Agreed Statement of Facts which may be summarised as follows.

5. On 25 September 2018, the Australian Federal Police Child Protection Operations commenced an investigation into an Australian based user of what was known as a “Tumblr” account. Tumblr is a blogging and social networking website, accessible by internet browser access or available via a Tumblr app.

6. On 20 November 2018 and 21 November 2018, members of the New South Wales Joint Anti-Child Exploitation Team (“JACET”), comprised of members of both the Australian Federal Police and the New South Wales Police, executed a search warrant on the residence of the offender. Present at the premises were both the offender and his partner. A number of devices were seized including a Google Pixel 2 mobile telephone, which revealed the presence of an application known as “Mega”. Mega is a cloud storage and file hosting service. The Mega application was signed into an account with the following details:

1. John Smith;

2. …. @amail.club.

7. A review of the Mega account revealed the presence of files identified as child pornography material as defined in s 473.1 of the Criminal Code (Cth).

8. During the execution of the search warrant, the offender participated in a record of interview with police and made a number of admissions, including ownership of the phone, that he used the mobile application Tumblr to view pornography, that he was the owner of a black coloured computer tower, that he had chatted to groups of people online using Facebook, and that he had not shared child pornography online or in a group chat.

9. The computer tower, identified as an LG Hunt Key, was seized and on Wednesday 28 November 2018 a review revealed the presence of files identified by JACET members as child pornography.

10. Child pornography material is classified into categories by way of a scale referred to as the Child Exploitation Tracking System (“CETS”) scale. For present purposes, the scale escalates in seriousness between Category 1 (sexually suggestive posing with no sexual activity) to Category 5 (sadism, humiliation or bestiality of children).

11. In respect of sequence 2, possess child abuse material, a total of nine video files depicting child pornography were stored on the Google Pixel 2 phone as a local copy of files contained in the Mega account. Of the nine videos, one was classified as Category 2, and eight were classified as Category 4 on the CETS scale (penetrative sexual activity between children or adults and children).

12. In respect of sequence 3, using a carriage service to access child pornography material, the Agreed Facts state that a total of 695 unique image files and 1,123 unique video files depicting child pornography were located within the link.

13. Also relevant were the three offences on the Schedule pursuant to s 16BA. The first of those offences concerned five child pornography files on the Mega account, three of which were classified Category 2, and two of which were classified Category 4 on the CETS scale.

14. The second offence on the Schedule concerned an application located on the Google Pixel 2 phone known as Telegram, which revealed the presence of child pornography material. Telegram is a cloud based instant messaging and voice-over IP service and seven conversations were located on the Telegram application. The conversations included imaging video files classified as child pornography material. A total of 125 comprised 91 images and 34 videos depicting child pornography. Of those, 113 were classified as either Category 1 or Category 2, three were Category 3 and nine were Category 4.

15. In the Telegram conversations held on the Google Pixel 2 phone, the offender did not share child pornography, however, he did make the following comments in response to images, videos or other groups being shared in the conversation:

“(a) Fucking love swim boys thanks;

(b) Could you add me too please much appreciated; and

(c) This is by far one of the best vids ever.”

16. A review of the file’s application revealed the presence of child pornography material located on a file path comprising 37 video files accessed between 21 October 2018 and 20 November 2019.

17. A total of 511 image files depicting child pornography were located within the file path, which were accessed between 21 October 2018 and 20 November 2018. Of a total of 548, 511 were images and 37 videos. The bulk were classified as Category 1 and Category 2 on the CETS scale, however, a total of 16 were classified as Category 3, 43 classified as Category 4, and three images were classified as Category 5 on the CETS scale.

18. The third offence on the Schedule pursuant to s 16BA, arose from a review of the LG Hunt Key computer tower which revealed the presence of child pornography material comprising nine unique video files dated between 8 April 2018 and 12 August 2018. Of the nine files, three were classified as Category 2 and six were classified as Category 4 on the CETS scale.

19. Exhibit A included a criminal history of the offender which showed that the offender had no prior record for similar offences, and otherwise had a number of traffic related offences in the ACT between 2004 and 2011.

The offender’s evidence

20. The offender tendered the following documentary evidence:

Exhibit 1 – Psychological assessment report by Ms J Blundell dated 19 February 2020.

Exhibit 2 - Letter to the court by the offender dated 11 February 2020.

Exhibit 3 - Letter from Ms K Halford dated 12 February 2020.

Exhibit 4 - Letter from Mr S Glenn dated 2 February 2020.

Exhibit 5 - Letter from Ms E Sebo dated 10 February 2020.

Exhibit 6 - Letter from Ms B Sebo dated 14 February 2020.

Exhibit 7 - Letter from Ms M Sebo dated 14 February 2020.

Exhibit 8 - Letter from Ms A Stevenson dated 14 February 2020.

Exhibit 9 - Letter from Mr S Kelly

Exhibit 10 - Letter from Mr T Sebo dated 20 February 2020.

21. Ms Blundell, the author of Ex 1, held qualifications, namely, Master in Counselling, Bachelor of Education. She had counselled the offender for 20 hours over a period of 12 months. She set out the offender’s educational and employment history as a chef. She described an adolescent interest in sex. By his mid-20’s, his experience of pornography and masturbation had become a way to deal with increasing high stress, experiences of depression and anxiety. She reported that he viewed pornography whilst intoxicated on drugs and alcohol, and he experience resulted in feelings of shame, guilt, confusion and anxiety.

22. The author noted that the offender’s general practitioner had diagnosed anxiety and depression, for which he has been prescribed medication. At the beginning of her counselling process, suicidal ideation was part of his presentation, although that had now receded to a low risk.

23. The author noted that the offender had expressed remorse for his offending behaviour and had gained insight and understanding of the harm he caused to others. She noted that the offender held a belief that he had experienced anxiety and depression throughout his adolescent and adult life. She described the offender’s prospects of rehabilitation as positive, based on the progress he had made through sexual offending specific counselling. He had consistently expressed remorse for his actions and showed insight through his acknowledgement and understanding of the harm caused by his offending conduct. It was her opinion that the knowledge gained and changes made by the offender over the last 12 months mediates his risk of reoffending. She was of the opinion that, given the nature of the charges, he was unlikely to be provided with appropriate rehabilitation programs in the event of a custodial sentence.

24. Exhibit 2 is a letter from the offender expressing his wholehearted and genuine remorse, for what he refers to as his “reprehensible actions”. He described his shame and humiliation, and that caused to his partner and family as a result of his arrest. He referred to the support of his partner and family in assisting his rehabilitation and the stress a custodial sentence would cause to his partner. Such a sentence would also jeopardise his employment as a chef. The offender expressed that he had gained great insight into the damage caused to the victims of his crimes and committed to continuing his therapy until such time as Ms Blundell deemed it unnecessary.

25. The other testimonials, namely Exhibits 3 to 10, were written by the offender’s mother, his father, his partner’s sister, sister-in-law, mother, friends, and his partner. The testimonials speak highly of the offender’s committed relationship with his partner, the humiliation, shame and embarrassment brought about by his offending, his strong work ethic and the progress that he has made with his rehabilitation.

The offender’s oral evidence

26. The offender gave evidence that on 20 November 2018, when police executed a search warrant at his home leading to his arrest, he felt humiliated, ashamed, and disgusted as he had brought unimaginable shame upon his partner and family for his crimes.

27. After he was charged he immediately sought professional help and was referred by his GP, having been diagnosed with anxiety and depression and treated by way of medication, to a psychologist who referred him on to a specialist, namely, Ms Blundell. He had attended 21 sessions on a weekly or fortnightly basis with her over the last 12 months.

28. The offender gave evidence that he was always truthful when speaking to his counsellor. He agreed with the contents of the Agreed Facts and accepted full responsibility for his criminal conduct. He had spoken to each of the people who had provided testimonials for him, a process that left him feeling absolutely humiliated and ashamed.

29. The offender gave evidence that the letter he wrote to the sentencing judge was truthful and that he intended to continue his treatment with Ms Blundell and never wanted to reoffend again.

30. In cross-examination, the offender gave evidence that as well as watching pornography to alleviate stress and feelings of loneliness, he had explored other things such as illicit drug taking and alcohol. He said he had felt ashamed and could not cope, and worked very long hours in his job as a chef, found it hard to socialise and he did not exercise. He had been in a relationship with his partner since 2017 which had alleviated some of his symptoms of social isolation. He acknowledged, however, that during that relationship he still had the child abuse material on his phone and had not deleted it. When asked whether he had a sexual interest in children, the offender denied having such interest now.

The Crown submissions

31. The Crown relied on a thorough detailed outline of written submissions, to which were annexed a summary of general principles for sentencing for Commonwealth offences, including compliance with s 16A of the Crimes Act 1914 (Cth), by taking into account the matters set out in the non-exhaustive checklist of matters referred to in s 16A(2) thereof. Further, when sentencing for both Commonwealth and State offences, it is necessary to comply with s 19(3) of the Crimes Act in the event of custodial sentences being imposed, so that no Federal sentence commences later than the end of the sentences already fixed or the last to end of those sentences. The annexure also set out the importance of compliance with s 17A of the Crimes Act in respect of custodial sentences.

32. The Crown set out general sentencing principles applicable for child pornography offences as summarised by the Court of Criminal Appeal in R v De Leeuw [2015] NSWCCA 183 at [72], where Johnson J (Ward JA and Garling J agreeing) said:

“(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.

(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:

(i) The nature and content of the material, in particular the age of the children and gravity of the sexual interest depicted;

(ii) The number of items or images possessed;

(iii) Whether the material is for the purpose of sale or further distribution;

(iv) Whether the offender will profit from the offence;

(v) In the case of possession or access to child pornography for personal use, the number of children depicted and thereby victimised;

(vi) The length of time for which the pornographic material was possessed.

(c) General deterrence is the primary sentencing consideration for offending involving child pornography.

(d) Less or limited weight is given to an offender’s prior good character;

(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography;

(f) Offending involving child pornography is difficult to detect given the anonymity provided by the internet;

(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children;

(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime – children are sexually abused in order to supply the market;

(i) The fact that an offender does not pay to access a child pornography website, was not involved in the distribution or sale of child pornography, does not mitigate the offending.” (authorities and citations omitted).

33. The Crown submitted that s 16A(1) of the Act requires a sentence that “is of a severity appropriate in all of the circumstances of the offence”. Given the objective seriousness of such offending, and the primary consideration given to general deterrence, it was submitted that a term of imprisonment will ordinarily be expected for online child pornography offending.

34. The Crown relied on R v Booth [2009] NSWCCA 89 per Simpson J at [40] to [43], where her Honour endorsed the view that general deterrence was the paramount consideration in sentencing for such offences. Her Honour described possession of child pornography as “a callous and predatory crime” and that in sentencing for such a crime, the sentencing judge must bear firmly in mind that the child abuse material came into existence by way of exploitation and abuse of children somewhere in the world, often in under‑developed or disadvantaged countries. The crime was callous because each time it is viewed the offender is reminded of and confronted with evidence of the exploitation, abuse and degradation it causes to the victims. On each occasion it is accessed, it “provides further encouragement to expand their activities to those who create and purvey the material.”

35. The Crown submitted that in assessing the objective seriousness of the offences, the court should have regard to the following factors as set out in R v Gent [2005] NSWCCA 370:

“(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

(b) The number of items or pages possessed;

(c) Whether the material is for the purpose of sale or further distribution;

(d) Whether the offender will profit from the offence;

(e) In the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

(f) The length of time for which the pornographic material was possessed.”

36. The Crown submitted that the following matters should be taken into account when assessing the objective seriousness of the material here:

“(a) The child abuse material comprised nine items which were all videos.

(b) The majority of the videos possessed fell within the most serious category, i.e. Category 4, as they depicted oral and penetrative sexual activity between children and adults, or other children.

(c) The video materials ranged in duration from four seconds to 58 minutes.

(d) The longest video (58 minutes and 28 seconds) was classified in the most serious category, Category 4.

(e) The quantity of material accessed by the offender through Mega link was substantial (695 images and 1123 videos).

(f) The age of the victims depicted in the material are between approximately 4 and 15 years of age.

(g) The age of the children depicted in child pornography is relevant to the gravity and depravity of the offending. Section 16A(2)(d) of the Act requires the sentencing judge to take into account any personal circumstances of the victim.

(h) There are hundreds of victims depicted in the material.

(i) By reason of the victims’ ages and the type of sexual activity depicted in the material, it is clear that the children suffered a high degree of physical harm, fear and distress;

(j) Also to be taken into account in sentencing are 693 images and 119 videos accessed by the offender in the Scheduled offences. This material was accessed over a period of a few months. The majority of the child abuse material access fell within the less serious categories (Category 1 and 2). The material involved sexually suggestive posing and non-penetrative sexual activity between children, or solo masturbation by a child.”

37. The Crown conceded that there was no evidence that the offender profited financially from his offending or that he possessed the material for the purposes of sale and distribution.

37. In relation to Sequence 3, using a carriage service to access child pornography material, the Crown submitted that the offending fell within the mid‑range of objective seriousness, having regard to the considerations set out above. Actual children were used in the creation of the pornographic material referred to. The nature and content of the material was a significant consideration, along with the number of images involved. In this case, the extent of cruelty and harm to the individual child victims was self-evident from the categorisation of the images and videos in the most serious category (Category 4). Further, the majority of the material involved penetrative sexual activity between adults and children, and this activity cannot occur without manifest inherent cruelty, harm and injury to the children involved.

38. The Crown submitted the following matters were relevant to mitigation:

1. The offender’s guilty plea should be taken into account pursuant to s 16A(2)(g) for its utilitarian value, as well as an indicator of remorse and contrition for the offending and acceptance of responsibility and willingness to facilitate the course of justice. In the interest of transparency, the discount should be specified, although there is no obligation to do so – see Xiao v R [2018] NSWCCA 4 at [280].

2. Contrition and remorse pursuant to s 16A(2)(f). This was a strong Crown case and the court must assess whether the offender’s plea was motivated by a willingness to facilitate the course of justice, or whether it was simply a “recognition of the inevitable”. In the latter case, it could not be afforded as much weight as evidence of remorse as a plea entered in the face of a weak Crown case.

3. Prospects of rehabilitation pursuant to s 16A(2)(n) and specific deterrence (s 16A(2)(i)). The Crown submitted that specific deterrence must play a very significant role in sentencing for offences of this kind, and was linked to prospects of rehabilitation and the risk of reoffending.

4. The good character of the offender (s 16A(2)(m)). Given the objective seriousness of the offence, the Crown submitted that less weight ought to be given to the fact that this is the offender’s first conviction for offending of this nature and he is otherwise of good character.

40. The Crown relied on a schedule of comparative cases to assist with guidance as to the identification and application of relevant sentencing principles, and to illustrate sentencing patterns being used as a yardstick against which to examine any proposed sentence.

41. The Crown submitted that it was necessary to comply, where sentences of imprisonment are to be imposed for Commonwealth and State offences, with s 19(3) of the Crimes Act, and for a term that exceeds six months, but does not exceed three years, the court must make a Recognisance Release Order (s 19AC(1)). For an offence exceeding three years, the court must fix a single non-parole period (s 19AB(1)).

42. Finally, the Crown submitted that the only appropriate sentence to impose in the present case was one of full time imprisonment.

43. In her oral submissions, the Crown submitted that for the Commonwealth offence, Sequence 3, a custodial sentence was the only appropriate sentence. In respect of the State offence, Sequence 2, pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), no sentence other than imprisonment was warranted, but it was a matter for the court how that sentence was served.

44. The Crown rehearsed its written submissions in respect of general deterrence being a paramount consideration in sentencing for child pornography offences. Further, limited weight should be given to the previous good character of the offender, and other subjective factors in his favour. It was submitted that there was nothing exceptional here, and the offending was very serious, so as to warrant a custodial sentence.

45. The Crown rehearsed its submissions in respect of the assessment of the objective seriousness of the offending in respect of each offence here. Such assessment was not based solely on the number of images involved, which were large here, but also the nature of the material which it characterised as being significantly depraved. The Crown submitted that the majority of the video material was within the most serious CETS scale, i.e. Category 4, as it revealed oral and penetrative activity between children and adults, and children and children. One of those videos was for 58 minutes and 21 seconds, and the material depicted hundreds of victims. Further, given the ages of children ranged from 4 to 15 years of age, there was a high degree of damage, fear and distress caused by the offending.

46. The Crown submitted that the objective seriousness of the offending in Sequence 3 was within the mid-range for an offence pursuant to s 474.19(1)(a)(i) of the Criminal Code. The objective seriousness for the offending in Sequence 2, possess child abuse material, was just below the mid‑range of objective seriousness for an offence pursuant to s 91H(2) of the Crimes Act 1900 (NSW).

47. In respect to the offender’s prospects of rehabilitation, the court would take into account two matters. First, the counsellor, Ms Blundell, had no medical or professional qualifications to provide expert opinion as to any causal connection between the anxiety and depression diagnosed in the offender after his arrest, and the offending conduct. Secondly, any progress the offender had made with his rehabilitation was subjective in that it relied on his oral history. The evidence did not amount to evidence establishing that he was not an appropriate vehicle for general deterrence. Further, the fact that at the time of the offences the offender may have been vulnerable to flawed thinking as a result of being “stressed and isolated”, did not lessen his moral culpability because such factors were common in child exploitation cases.

48. The Crown submitted that the offender’s prospects of rehabilitation were still guarded, given that factors outside his control, for example, relationship breakdown or termination of employment, may set back any progress he has already made. The Crown relied on the principle in R v Porte [2015] NSWCCA 174 at [71] and [72], that for offences of this type, rehabilitation may have reduced significance, with the weight to be attributed to rehabilitation depending on the seriousness of the particular offence. It was therefore important that the court did not place undue focus on the offender’s treatment and rehabilitation when sentencing.

The offender’s submissions

49. The solicitor for the offender also relied on a written outline of submissions, acknowledging that general deterrence is a paramount consideration for offences involving child abuse material. His submissions also referred to the following list of relevant matters in assessing the objective seriousness of child abuse material offences in R v Hutchinson [2018] NSWCCA 152 as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

(14) Any other matter in s 21A(2) or (3) of the CSPA (for State offences)s or s 16A of the Crimes Act 1914 (Cth) (for Commonwealth offences) bearing upon the objective seriousness of the offence.”

50. The offender’s submissions acknowledged that the CETS scale does allow for some assessment overall of the extent of harm or cruelty occasioned comparably to other cases. It was submitted that overall the majority of the material here fell within the lower categories of the scale, namely, Categories 1 and 2. The State offence involved nine video files, whereas the Commonwealth offence, Sequence 3, involved 695 unique image files, and 1,123 unique video files. In addition, there were 693 images and 119 videos the subject of the three offences on the Schedule.

51. The offender submitted that the primary purpose of his possession of that material was for personal use and there was no allegation of dissemination or transmission by him. It was conceded that he did participate in conversations on the Telegram App. It was also submitted there was no evidence of any relationship or proximity between the offender’s activities and those responsible for bringing the material into existence.

52. The offender accepted that there was a degree of planning and organisation in his activities, however, it was submitted that use of the applications and websites did not require particular skill or sophistication. Further, there was no real attempt to conceal his identity or activities by way of encryption or use of password. Nor was there any cataloguing on the devices seized.

53. The offender conceded he engaged in conversations with other like-minded individuals. He submitted that there was no real risk of the material being seen or required by vulnerable persons or children, and there were no aggravating factors. It was submitted that the objective seriousness of the offending fell within the low-range level of objective seriousness.

54. The offender entered pleas of guilty in the Local Court and was entitled to a 25% discount in respect of the State offence. In respect of the Commonwealth offence, the court was permitted to take into account his plea of guilty and to consider his willingness to facilitate the course of justice. The offender’s plea was also a significant consideration in determining his remorse, acceptance of responsibility and willingness to facilitate the course of justice.

55. Whilst the offender had no prior criminal antecedents, it was accepted that his prior good character should be given less weight.

56. In mitigation, the offender submitted that he had struggled with his sexual orientation for many years and that this had contributed to feelings of shame and anxiety. He acknowledged, by viewing child pornography, he was committing an offence and he had engaged in specific offence based treatment and indicated a willingness to continue such treatment in the future. It was submitted that the offender was genuinely remorseful and had good prospects of rehabilitation. It was further submitted that he was unlikely to reoffend because he:

“(i) has acknowledged his guilt and accepts responsibility for his actions;

(ii) has shown insight;

(iii) sought and accessed treatment to which he has demonstrated commitment; and

(iv) enjoys strong family support.”

57. It was submitted that specific deterrence has a lesser role to play in this sentence because the offender has acknowledged his wrongdoing, is genuinely remorseful and engaged in early and frequent specific offending based treatment with Ms Blundell.

58. In respect of Sequence 2, the offender noted that an Intensive Correction Order was not available as a sentencing option by virtue of the offence being a prescribed sexual offence. However, it was submitted that a Community Correction Order was available as an alternative to a sentence of full time custody.

59. In respect of Sequence 3, the Commonwealth offence, it was submitted that an alternative to full time imprisonment was an available sentencing option as the court has the power to suspend any term of imprisonment on condition that the offender enter into a Recognisance Release Order for a period up to three years. In the event that the court imposes a term of full time imprisonment, it was submitted that a finding of special circumstances was appropriate because it was his first time in custody and he had good prospects of rehabilitation.

60. The offender also annexed JIRS statistics in respect of both offences.

61. In his oral submissions, the solicitor for the offender rehearsed his submissions regarding the assessment of the objective seriousness of the offences. It was submitted that the majority of the images the subject of the offences fell in Category 1, and the majority of the videos fell within Category 1 and 2, with a portion falling in Category 3 of the CETS scale. This indicated globally that the objective seriousness of the offending fell towards the lower end of the scale. There was no contest, however, that it still amounted to serious offending. By comparison to other offending, the objective seriousness of the offending here was within the lower range. Sequence 2, the State offence of possessing child abuse material, concerned nine videos, and whilst the court had to assess the harm done to the children depicted, the objective seriousness of the offending overall fell below mid-range.

62. It was submitted that Sequence 3, the Commonwealth offence of using a carriage service to access child pornography material, also fell below mid‑range because the overwhelming majority of the material fell within Category 1 and 2.

63. The offender acknowledged that the number of images and videos was relevant and that good character was given less weight in the sentencing for such matters. It was also acknowledged that general deterrence was paramount in the sentencing process.

64. The offender rehearsed his written submissions as to his contrition and remorse, which was described as genuine. He had done everything to rectify his thought processes in respect of this offending.

65. The offender was entitled to a 25% discount in respect of Sequence 2, and a further discount in respect of Sequence 3. He had good prospects of rehabilitation and the offender had been truthful in reporting his background to Ms Blundell. It was acknowledged that there was no causal link established by her opinion between his personal circumstances and his offending conduct. However, he had received support from his family as evidenced by the testimonials relied on, and he was committed to ensuring that he does not come before the court again. This meant that in respect of specific deterrence, he could do no more than he had already done. The key difference was that he had now progressed with his treatment and had a mechanism to allow him to deal with stresses in his life. This would lead to a finding that he was unlikely to re‑offend.

66. In respect to Sequence 2, it was submitted that the s 5 threshold was not crossed. Acknowledging that a further report would be required before the court could impose a community based order, it was submitted that strict conditions would be available to address his criminogenic needs. In applying the purposes of sentencing set out in s 3A of the CSPA, it was suggested that considerable limitations could be placed on his life and employment by such an order.

67. The offender also referred to the JIRS statistics, acknowledging the limitations on them. Also referred to were four comparable cases, however, it was acknowledged that each offender must be sentenced according to his own facts and circumstances.

68. It was submitted that, in respect of Sequence 3, a suspended sentence could be imposed with a recognisance. The court would take into account Ms Blundell’s opinion that he would not be able to get the same type of treatment in custody as is available in the community.

Submissions in reply

69. The Crown in reply noted that pursuant to Xiao v R, supra, where it was held that in respect of a Commonwealth offence, the court may now take into account an offender’s plea of guilty in assessing the utilitarian value of the plea, although the court is not required to specify the discount provided.

Determination

Sequence 2 – Possess Child Abuse Material – s 91H(2) of the Crimes Act 1900 (NSW)

70. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

71. In accordance with the principles set out in R v De Leeuw, supra, the objective seriousness of the offending must be determined in accordance with the nature and content of the material, as well as the number of items or images possessed, as well as other factors such as whether the material was for the purpose of sale or further distribution, whether the offender would profit from the offence, whether the possession was for personal use, the number of children depicted and thereby victimised, and the length of time for which the pornographic material was possessed.

72. I accept that the child abuse material was in possession of the offender for his personal use and that he did not possess it for the purpose of sale or further distribution, and therefore did not profit from the offending. In R v Gent, supra, at [99], Johnson J said in a case involving the possession of child pornography for personal use only, “the significance of quantity lies more in the number of different children who are depicted and therefore victimised.” There is no evidence before me about the length of time for which the pornographic material was possessed. By comparison to other cases, the number of videos possessed was relatively small, however, the seriousness of the offending may be assessed by reference to a classification of eight out of the nine videos, one of which was some 58 minutes in length, as being Category 4 on the CETS scale, and one within Category 2 of that scale. The material by its very nature therefore meant that physical and emotional harm was occasioned to the many children depicted in the video material.

73. The objective seriousness of the offending in Sequence 2 was below the mid‑range of objective seriousness for an offence pursuant to s 91H(2) of the Crimes Act 1900, however, it still constituted serious offending within the upper part of the low range of objective seriousness for such an offence.

74. I have had regard to the maximum penalty of 10 years imprisonment for an offence pursuant to s 91H(2) of the Crimes Act 1900. The maximum penalty is a guidepost in the sentencing process.

75. It is not in dispute that general deterrence is of paramount importance in sentencing for offences involving child pornography. It is insidious offending which perpetuates the continued corruption and exploitation of children, which is difficult to detect given the anonymity provided by the internet. There is clearly a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime. Rather, children are sexually abused internationally, often in third world countries which lack appropriate safeguards for the protection of children, in order to supply the market. For that reason, a clear message must be sent to like‑minded members of the community that Parliament has proscribed heavy maximum terms of imprisonment as a penalty for such offending, and the courts will impose condign punishment as a deterrent to others – see Baden v R [2020] NSWCCA 23 at [43] where Bell P referred to the need to protect children from predators using electronic facilities, and for sentences of appropriate severity to be imposed.

71. Specific deterrence is also important in that the offender must understand the full gravity of his offending and the harm done to the most vulnerable people, namely, children, to facilitate that offending.

72. The offender is entitled to a 25% utilitarian discount on sentence for his early plea of guilty, which has facilitated the course of justice. It was made, however, in the face of a strong Crown case. Notwithstanding that, I accept that the offender has accepted responsibility for his offending conduct and has expressed genuine remorse in relation to it.

73. I was impressed with the sworn evidence given by the offender on the sentence hearing. He has clearly been humiliated and ashamed of his offending conduct and has actively taken steps to address his criminogenic needs by way of counselling with Ms Blundell. He is also supported by his family and friends who have presented testimonials on his behalf confirming his humiliation and shame, his adherence to his own rehabilitation and his otherwise good character.

74. The offender’s character is to be given little weight in the sentencing process for this offending. I do, however, acknowledge that he has made some progress with his rehabilitation and I accept his evidence that he now never wants to reoffend again. However, his rehabilitation is far from complete, and the likelihood of him re-offending must be somewhat guarded at this time.

75. There is no evidence establishing a causal link between his anxiety and depression and his offending conduct, and the subjective matters put on his behalf, including the impact of his offending on his relationship since 2017 and his work as a chef, which do not weigh heavily in the sentencing process. Those factors certainly do not amount to hardship to the offender, but rather, are the unavoidable consequences of his offending conduct, and are not in any way exceptional – see R v Edwards (1996) 90 A Crim R 510 per Gleeson CJ at 515; Hoskins v R [2016] NSWCCA 157 at [63].

76. I am satisfied, having regard to the serious nature of the offending, that no penalty other than imprisonment is warranted in all of the circumstances of this offence. As it constitutes a prescribed sexual offence, an Intensive Correction Order is not available as an alternative to a sentence of imprisonment. Further, a Community Correction Order (“CCO”) pursuant to s 8 of the CSPA is not in the circumstances an appropriate form of punishment for this offending, given the serious nature of the offending. As Johnson J said in R v Porte, supra, at [131], to proceed by way of CCO would mean concepts of general deterrence and denunciation would “slip through almost without trace”.

77. Having regard to the serious nature of the offending and the need for paramountcy to be given to general deterrence in the sentencing process, after applying a 25% discount, I intend to sentence the offender to a term of imprisonment of 9 months for this offence. Given that this will be his first time in custody, the fact of his anxiety and depression for which he will require ongoing treatment and the need to continue his counselling, I find that there are special circumstances pursuant to s 44(2) of the CSPA and I intend to order a non-parole period of 5 months for this offence.

Sequence 3 – Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth)

83. The offence in Sequence 3 involved the offender accessing child pornography material by way of the Mega Link, which had a last edited date of 17 December 2017. A total of 695 unique image files and 1,123 unique video files depicting child pornography were located within the link. Whilst the vast majority of these (1,436) fell for classification within Category 1 and Category 2 of the CETS scale, 371 fell within Category 4 and eight within Category 5. It is clear that hundreds of children were involved in all of this material.

84. Further, the offender has asked to be taken into account on sentence for Sequence 3, the three offences under the same section on the Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth). Each of these offences constituted serious offending, given the large number of images and videos involved, the nature of the content, and the content of the conversations referred to above. Each offence has a maximum penalty proscribed of 15 years imprisonment, and in taking each of the three matters into account on sentence, some accumulation on sentence must occur. Child abuse material classified as Category 1 or 2 on the CETS scale has been held to be capable of possessing significant gravity – see R v De Leeuw, supra, at [85].

85. I have viewed a sample of the material provided by the Crown and have no hesitation in confirming the pornographic nature of the material and the depravity of the sexual activity portrayed therein involving children of very young age, from 4 years to 15 years. Discernible from the material is that great physical and emotional harm must have been occasioned to the children the subject of this material. Having regard to the nature and content of the material, the depravity depicted in the sexual activity involving children of very young age constituted pernicious offending. Nor was the offending isolated. Rather, it demonstrated some planning, and an entrenched and protracted pattern of offending. Given the extent of the offending, the objective seriousness clearly fell within the mid-range for an offence under s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth).and within the middle of that mid-range.

86. In sentencing the offender for this Commonwealth offence I must have regard to the matters set out in s 16A of the Crimes Act 1914 (Cth). Section 16A(1) requires the sentence to be imposed that is “of a severity appropriate in all of the circumstances of the offence”.

87. I take into account the following matters:

(a) The nature and circumstances of the offence

88. The offending in Sequence 3 has been set out in detail above, as has my finding as to the objective seriousness of the offending. It involved a large number of images and videos, and whilst a large proportion of those were classified within Category 1 and 2 on the CETS scale, a very large number were classified as Category 4 or 5 thereof. As outlined above, material classified in Category 1 and 2 is still possessive of significant gravity.

(b) Other offences that are required to be taken into account

89. I have outlined the three offences to be taken into account on the Schedule pursuant to s 16BA above. They also constituted serious offending.

(c) The course of conduct of the offending

90. The offending took place over a period of time in 2017 and 2018 and consisted of a series of criminal acts carried out online which were not isolated, but represented a protracted pattern of offending.

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

91. As outlined above the victims of the offence are children who are the most vulnerable members of society who are subject to corruption and exploitation as a result of this criminal conduct.

(e) The injury loss or damage resulting from the offence

92. As outlined above, great harm is caused, both physical and psychological, to the victims of child pornography. The courts have long held that such damage may be profound – Fitzgerald v R [2015] NSWCCA 266.

(f) The degree to which the offender has shown contrition

93. As outlined above, I accept that the offender has expressed remorse for his offending conduct and has expressed remorse for the impact that that has had on his family and relationship.

(g) The offender’s plea of guilty

94. I have taken the offender’s early plea of guilty into account, both as an expression of his remorse, and giving effect to an utilitarian discount by way of facilitating the course of justice in the face of a strong Crown case. I intend to allow a discount of 25% for the utilitarian value of his plea, together with his contrition and remorse for his offending conduct.

(h) The degree of cooperation with law enforcement agencies

95. I have taken into account that the offender made admissions during the execution of the search warrant to investigating officers.

(j) Specific deterrence

96. As outlined above, specific deterrence has been taken into account, as the offender must understand the serious nature of his offending and the need for him to address his criminogenic needs.

(ja) General deterrence

97. As outlined above, general deterrence is of paramount importance in sentencing for offences involving accessing child pornography.

(m) The good character of the offender

98. The offender, who is 34 years of age, is otherwise of good character. That is a factor that does not weigh heavily in the sentencing process for child abuse material offences.

(n) Prospects of rehabilitation

99. I accept that the offender has commenced rehabilitation by way of counselling with Ms Blundell and has made some progress in his rehabilitation. This is a matter to be taken into account, but must be weighed against general deterrence as a paramount consideration, and denunciation for his callous and predatory crimes.

(p) Effect of any sentence on the person’s family

100. It is clear that the offender’s sentence will impact upon his partner and family, as he is the major financial contributor to his relationship, however, that does not amount to hardship in the sentencing process by comparison to other offenders. It is, as I have said above, the unavoidable consequence of his criminal behaviour.

101. I have had regard to the maximum penalty proscribed pursuant to s 474.19(1)(a)(i) of 15 years imprisonment as a guidepost in the sentencing process.

102. I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances pursuant to s 17A of the Crimes Act 1914 (Cth). Given that the offender is being sentenced for one offence pursuant to the CSPA and one offence pursuant to the Crimes Act 1914 (Cth), I adopt the approach set out in DPP v Swingler [2017] VSCA 305, and intend to sentence the offender first for the New South Wales offence, and then for the Commonwealth offence. For that offence, there must be some accumulation on sentence given the three serious matters taken into account on the Schedule pursuant to 16BA, and I intend to sentence the offender, after discount for his early plea of guilty, to a sentence of 2 years and 3 months imprisonment.

103. In assessing the appropriate sentence, I have taken into account the principle of totality. In R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27], Howie J said:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

104. In applying principles of totality and proportionality, I intend to make the sentences for Sequence 2 and 3 partly cumulative, and in respect of the sentence for Sequence 3, order a Recognisance Release Order pursuant to s 19AC of the Crimes Act 1914 (Cth) for the release of the offender after a period of 1 year and 3 months of that sentence.

Orders

105. I make the following orders:

1. You are convicted of the following offences:

Sequence 2 – Possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900 (NSW).

Sequence 3 – Use carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth).

2. In respect of Sequence 2, I sentence you to a non-parole period of 5 months commencing on 12 March 2020 and expiring on 11 August 2020. The balance of term will be for a period of 4 months from 12 August 2020 and expiring on 11 December 2020.

3. In respect of Sequence 3, I sentence you to a term of imprisonment of 2 years and 3 months to commence on 12 August 2020 and to expire on 11 November 2022.

4. I order a Recognisance Release Order pursuant to s 19AC of the Crimes Act 1914 (Cth) for you to be released after a period of 1 year and 3 months on 11 November 2021, upon giving security in the sum of $500, for a period of 1 year.

5. I have certified that I have taken into account the three offences attached to the Form pursuant to s 16BA of the Crimes Act 1914 (Cth).

6. The effective sentence for both sentences therefore is a term of imprisonment of 2 years and 8 months, with a non-parole period of 1 year and 8 months.

7. I further order pursuant to s 23ZD of the Crimes Act 1914 (Cth) that the following items be forfeited to the Commonwealth:

1. Google Pixel 2 mobile phone (IMEI) number 35803608037152/20.

2. LG Hunt Key Computer Tower (no serial number – device built by the offender).

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Decision last updated: 13 March 2020