District Court
New South Wales
Medium Neutral Citation: R v Houweling [2021] NSWDC 293 Hearing dates: 19 February 2021, 9 March 20201 Decision date: 09 March 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Possess/control child abuse material using carriage service (sequence 1) - Recognizance pursuant to s 20(1)(a) of the Crimes Act 1914. See [42]
Use carriage service to access child abuse material (sequence 2) - Recognizance pursuant to s 20(1)(b) of the Crimes Act 1914. See [46]
His Honour's judgment of 19/02/2021 was amended on 09/03/2021 - see [44]-[46]
Catchwords: CRIME - Possess child abuse material - Access child abuse material
SENTENCING - Relevant factors on sentence - nature of child abuse material – low level posing by children - high level - escalation into deviance - animated videos - low number of images- guilty plea – remorse - paedophilic disorder - progress toward rehabilitation –Intensive Correction order unavailable - structure of sentence - is custody required?
SENTENCING - terms- child abuse material - use of cellebrite - cache files- animated videos - Interpol Baseline Categorisation System - Child Exploitation Tracking System
SENTENCE – sentence correction – unavailability of community service as a condition of a recognisance release order
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Cases Cited: Adams v Carr (1987) 26 A Crim R 372
DeLeeuwv R [2015] NSWCCA 183,
Dimech v Watts [2016] ACTSC 221
DPP (Cth) v D’Alessandro
DPP v D’Alessandro (2010) 26 VR 477
Gent v R [2005] NSWCCA 370
Heathcote (A Pseudonym) v R
Minahanv R [2010] NSWCCA 140
R v Coffey [2003] VSCA 155; 6 VR 543
R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469
R v Hutchinson [2018] NSWCCA 152
R v Hutchinson [2018] NSWCCA 152
R v Jones
R v Jones [1999] WASCA 24; 108 A Crim R 50
R vJongsma
Category: Sentence Parties: Daniel Peter Houweling (the offender)
Director of Public Prosecutions (Commonwealth)Representation: Counsel:
Ms C Doosey (for the offender)
Ms L Barnes (for Director of Public Prosecutions -Commonwealth)
File Number(s): 2020/00099140
sentence – ex tempore revised
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On 31 March 2020, Daniel Houweling provided his iPhone X and PIN code to New South Wales Police. He then went with them to his home in southern Wollongong, where a search warrant was executed. A number of electronic devices were seized. The contents of devices were downloaded by a device and process known as ‘Cellebrite.’ The contents of the devices led to two charges pursuant to the Commonwealth Criminal Code:
Sequence 1, use carriage service to possess child abuse material: s474.22A(1) Criminal Code Act 1995 (Cth) - maximum penalty 15 years imprisonment.
Sequence 2, use carriage service to access child abuse material 474.22(1)(a)(i) Criminal Code Act (Cth) - maximum penalty 15 years imprisonment.
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- AGLC
- R v Houweling [2021] NSWDC 293
- Case
- [2021] NSWDC 293
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the sentence imposed by the trial judge was manifestly excessive, taking into account all relevant factors. The court was also required to determine whether the trial judge had erred in finding that custody was necessary for the appellant's case. The appellant argued that the trial judge had not adequately considered certain mitigating factors, such as the low level of posing by the children in the material, the relatively low number of images, and the appellant's progress towards rehabilitation. The appellant also contended that the trial judge had not properly considered the unavailability of an intensive correction order and the use of cellebrite in the investigation.
The court found that the trial judge had not erred in imposing a custodial sentence. The court held that the nature of the child abuse material was a significant aggravating factor, and the appellant's paedophilic disorder and escalation into deviance were also relevant considerations. The court found that the appellant's guilty plea and remorse were mitigating factors, but they did not outweigh the severity of the offending. The court held that custody was necessary in this case due to the seriousness of the offending and the need for general deterrence. The court also noted that the use of cellebrite, cache files, animated videos, and the Interpol Baseline Categorisation System and Child Exploitation Tracking System were relevant factors to consider in determining the sentence.
The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court also noted that the unavailability of community service as a condition of a recognisance release order was a relevant factor to consider in determining the appropriate sentence. The final orders of the court were that the appellant be placed on a recognizance pursuant to s 20(1)(a) and s 20(1)(b) of the Crimes Act 1914 for the two offences.
Orders
Orders of the court
Possess/control child abuse material using carriage service (sequence 1) - Recognizance pursuant to s 20(1)(a) of the Crimes Act 1914. See [42]
Use carriage service to access child abuse material (sequence 2) - Recognizance pursuant to s 20(1)(b) of the Crimes Act 1914. See [46]
His Honour's judgment of 19/02/2021 was amended on 09/03/2021 - see [44]-[46]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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