R v Huggett

[2020] NSWDC 117

District Court

New South Wales

Medium Neutral Citation:	R v Huggett [2020] NSWDC 117
Hearing dates:	06 September 2018, 29 November 2018, 31 January 2019, 07 March 2019, 08 July 2019, 30 October 2019, 05 November 2019 & 05 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	State offences – aggregate term of imprisonment of 2 years Federal offence – term of imprisonment of 3 years 4 months with a non-parole period of 2 years
Catchwords:	SENTENCING — Federal offenders — Relevant considerations SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Relevant factors on sentence — Deterrence — General deterrence SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality SENTENCING — Relevant factors on sentence — Purposes of sentencing SENTENCING — Sentencing procedure — Expert reports SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 Criminal Procedure Act 1986
Cases Cited:	R v Henry [1999] NSWCCA 107 R v Porte [2015] NSWCCA 174 Xiao v The Queen [2018] 96 NSWLR 1
Category:	Sentence
Parties:	Regina (Crown) Owen John Huggett (Offender)
Representation:	Michael Tsiavlis (Commonwealth Crown) Wali Shukoor (counsel) (Offender)   Commonwealth Director of Public Prosecutions (Crown) Sydney Criminal Lawyers (Offender)
File Number(s):	2017/00056513

INTRODUCTION

1. Owen John Huggett, the offender, is to be sentenced for three offences. The first of those arises from his use of a carriage service to access child pornography contrary to s 474.19(1)(a)(i) Criminal Code (Cth). The second and third are for offences of possession of child abuse material contrary to s 91H (2) Crimes Act 1900 (NSW). The offences contrary to the Crimes Act are before the Court as related offences to be dealt with as summary offences pursuant to s 166 Criminal Procedure Act 1986.

MAXIMUM PENALTIES

2. The maximum penalty specified for the Commonwealth offence is imprisonment for 15 years. The maximum penalty for the New South Wales offences is in each case imprisonment for 10 years, but, of course, those charges are before the Court as related offences. The maximum penalty to which the offender is exposed in each case is imprisonment for two years. The standard non-parole period provisions are not relevant to the determination of those sentences.

PLEAS OF GUILTY

3. The utility of the pleas of guilty in this instance is qualified because of the history of the prosecution, leading eventually to these proceedings on sentence. After a number of adjournments, the offender ultimately maintained his guilt for these offences when the matter was last before the Court on 5 February 2020, from whence it was adjourned to 12 February 2020 for judgement and sentence. To accommodate the trial in which I was presiding, the matter was vacated from that date and listed for judgement and sentence today, 28 February 2020.

4. The offender initially pleaded guilty in the Local Court at Parramatta on 9 January 2018 and was committed to the District Court for sentence. This followed protracted proceedings in the Local Court, reflected in the JusticeLink records from which I have drawn the following summary.

5. He was first allowed bail upon a determination by a police officer on 27 February 2017. The proceedings were listed before a registrar on 20 March 2017. He was there unrepresented. The matter was listed for mention 3 April 2017. It was then listed for mention on 13 June 2017 and, thereafter, a further mention on 11 July 2017. On that date, he pleaded guilty to two offences of possess child abuse material, an offence of using a carriage service to access child pornography, and an offence of using a carriage service to transmit child pornography. The proceedings were listed for mention on 12 September 2017.

6. In the meantime, the matter was listed for mention at the Local Court in Parramatta on 31 July 2017, when the listing for 12 September 2017 was confirmed, with advice to be given to the offender that he must appear on that date. He was unrepresented on this occasion and did not appear. Thereafter, the matter was listed for further mention on 10 October 2017 with a note in JusticeLink in the following terms, “Registrar notifies defendant ‑ defendant must attend in person, new line, “Wether not (sic) legal advice granted. If not, warrant to issue.” It may be that the word “advice” should be read as “aid” and the entry read as “Legal Aid granted”.

7. He did not appear on 12 September 2017 and was unrepresented.

8. On 10 October 2017, JusticeLink records that the offender was unrepresented and did not appear. The proceedings were adjourned until 14 November 2017 with the following notation, “Registrar to notify the offender.”

9. On 14 November 2017, the offender appeared unrepresented. The matter was adjourned to 12 December 2017, with advice to the offender that he must appear. On that date, the offender appeared with representation and the matter was adjourned to 9 January 2018, when he pleaded guilty and was committed for sentence. The JusticeLink records included the notation that there were to be no further adjournments.

10. I will just go back to that portion of the judgement where I referred to the passage “wether not (sic) legal advice granted”. The word used in the record is “advice”. Upon reflection it might be that, as I noted, an error was made in the recording of that word, but it is at this point impossible to say one way or another.

11. Returning now to the text where I had reached, once in the District Court on 2 February 2018, the matter came before me and was adjourned to 2 March 2018 for the pursuit of Legal Aid. The matter on that date was adjourned for hearing to 27 April 2018, with orders made for the service and filing of material upon which the parties intended to rely.

12. On 27 April 2018, the matter came before Judge Herbert. The offender was unrepresented, but provided a letter representing that he was unwell. The hearing was vacated and the matter listed for mention on 10 May 2018. On that day, the offender failed to appear. His bail was revoked and I ordered a bench warrant.

13. The matter was adjourned for mention on 17 May 2018. In the meantime, the warrant was executed and the matter listed on 11 May 2018, when the offender appeared in custody, represented by a solicitor from Legal Aid. It was adjourned to 14 May 2018 for a release application. I determined that application and ordered the offender’s release subject to bail conditions.

14. The matter was set down for hearing on 21 August 2018. Acting Judge Grogin was assigned the matter. According to JusticeLink, there was no appearance by the offender or the Crown. This is incorrect, as will be seen. I have a transcript of the proceedings before his Honour.

15. On that day, the offender pleaded guilty to two counts set out on an indictment upon which he was presented, including the offence contrary to the Criminal Code upon which he is to be sentenced today. The indictment was endorsed appropriately to reflect this. His Honour listed the proceedings for mention on 6 September 2018. On that day, the matter was before me once more. I was informed that, through oversight, the second count was included on the indictment but there were to be no further proceedings on that charge. By consent, the offender was given leave to withdraw his plea of guilty entered to that offence.

16. I adjourned the hearing to determine sentence on 12 November 2018. On that day, the matter was allocated to Judge Craigie SC, but could not continue for counsel advised that the offender no longer wished to adhere to his plea of guilty to the remaining count on the indictment. The matter was listed for mention on 29 November 2018. The matter came before me on that date and was adjourned to 31 January 2019 for mention. Orders were made for the service and filing of evidence relevant to the application to withdraw the plea of guilty.

17. On that day, the matter was adjourned for mention on 7 March 2019, then the offender abandoned his intention to withdraw his plea and the matter was adjourned to 8 July 2019 for hearing. On that day, the lawyer representing the offender announced that there was a conflict and that the Legal Aid application was to be considered afresh with new representatives. On 19 July 2019, with an agent appearing in place of the further lawyer retained to represent the offender, the matter was once more adjourned, with orders for the service and filing of evidence relevant to the application to withdraw his plea of guilty.

18. On 30 October 2019, the matter returned to me with the offender’s present solicitor, requesting a further adjournment for the preparation of the application to withdraw the plea of guilty. The application was refused, but the hearing was adjourned until later in the day to allow the solicitor to prepare. The offender gave evidence in due course. Toward the end of the day, I adjourned until 5 November 2019. On that occasion, the offender’s lawyer announced that the application to withdraw the plea of guilty would not be pursued. The matter was adjourned to 17 December 2019, part heard before me for the determination of sentence, but, due to illness, I could not sit and the hearing was adjourned until 5 February 2020, when I re‑arraigned the offender upon the first count on the indictment. After some delay and allowing him further time to consult with counsel, he pleaded guilty. The two offences before me pursuant to s 166 Criminal Procedure Act were read and, after some further delay, when the offender again consulted with his representatives, he pleaded guilty to those charges.

19. The Crown submits that there is little utility in the pleas to these offences against the history of the proceedings and the vacillation by the offender, moving back and forth between his guilty pleas and the announcements that he wished to withdraw them. I agree with the Crown’s submission, however, it is the case that he ultimately adhered to the plea of guilty to the sole count on the indictment, though on the final day with hesitation, and he pleaded guilty to the New South Wales offences, which, until that point, he had not been required to answer.

20. I propose to allow him a discount for utility to the indictable offence of 10%. I would apply the same discount, I should say, to the indicated sentence for the New South Wales offences. To the extent that this approach might result in an aggregate sentence for the New South Wales offences or a sentence for the Commonwealth offence expressed in years, months, and days, I shall abandon the days. For the New South Wales offences, he has throughout been equally hesitant, including, on the day he was called upon to plead on 5 February 2020. I have not overlooked that he had not been called upon to do so before then and it might be said that he pleaded guilty to these at the first opportunity. However, the conduct upon which those charges are brought is intrinsically bound to the offence contrary to the Criminal Code and, although the basis upon which he was hoping to defend that charge is not known, apart from what is to be gleaned from the documents that have been produced from time to time, it must be that the conduct to which the New South Wales charges relate would have been included in the challenge to the Crown case against him. For these offences, I propose to allow him a discount, in each case, of 10% for the limited utility he provided by pleading guilty to them and, as I said, I propose an aggregate sentence in respect of those.

21. Thus, there will be an aggregate sentence for the New South Wales offences and the sentence for the federal offence will be announced separately.

22. It does not follow that the discount for the state offences would be applied to the jurisdictional limit of two years applicable to the New South Wales offences if the sentence I select for those offences falls at that level, or above it. The benchmark is the maximum penalty for the offences, which could have been prosecuted on indictment. Thus, if upon the synthesis of the relevant material for the determination of those sentences I find that it is appropriate that one or both of the indicative sentences exceeds two years and that would have been the sentence imposed upon an indictable prosecution, it is to that result to which the discount will be applied. The sentences though could exceed two years at this level of prosecution.

23. His vacillation throughout the conduct of these proceedings and his explanations for the conduct given from time to time is a concern, and challenge the proposition that he has demonstrated appropriate remorse and contrition for these offences. However, this notwithstanding, he must be given some consideration for contrition and remorse, limited though it might be. I have considered the strength of the Crown case and the inevitable finding of guilty in contested proceedings. I find that his ultimate decision was reached, at least in part, upon recognition of the wisdom of the advice given to him from time to time by the array of lawyers who advised that he should admit his crimes.

PRE-SENTENCE CUSTODY

24. The offender was arrested on 22 February 2017 and spent four days in custody before he was released to bail. There is also a period to be brought to account after he was arrested on the bench warrant issued on 10 May 2019. He was in custody until 14 May 2019 for four days. He has remained free, subject to bail, until today. Thus, he must have his sentences imposed today commence on 20 February 2020.

THE FACTS

25. I was called upon to review the abhorrent material upon which this prosecution is brought. I did so in open court and afterwards returned the images to the Crown. The offender did not give evidence in the sentence proceedings before me, but he gave evidence before Acting Judge Grogin and, in my Court offered an additional two explanations with which he has been attributed by others. He provided reports to which I shall refer. Upon arraignment and his plea of guilty on 21 August 2018, in the course of evidence before Acting Judge Grogin, he said at p 4 at line 50:

“Q. Have you had a chance to think about the victims?

A. Yes, I have, your Honour. Yes, I have.

Q. What did you want to tell the Court about that?

A. I feel sorry. I am disgusted in myself for what’s happened. My views towards the victims, I feel sorry for the victims, it’s a disgusting thing. If I could do something in my lifetime to stop anything like this ever happening to any other child or anything like that, I would, I would do so.

Q. At the time you saw these photos, did you think about the victims then?

A. At the time, I didn’t, no, because I was affected strongly by methamphetamines at the time. Since I’ve come off the drugs and stuff like that, I’m very remorseful towards what I’ve done.

Q. You said that you've come off drugs, since when? When was the last time you used?

A. Three to four months ago now.

Q. Is it the case that you’ve been using drugs since you were very young, around 13 or 14?

A. Yeah.

Q. Is this the first time that you’ve been off drugs for a period of three months?

A. Yeah, yes, it is, yeah.

Q. Why is that the case? Why is it now that this has happened?A. Now, because I’ve erased myself from the situation that I was with, my girlfriend that I was with. My living situation, the people that I had around, it’s all be changed. I’ve moved back home, now with my parents, and they’ve got a room set up for me.

Q. How long have you been back with your parents?

A. About three, four months now.”

26. A little further on, at p 6 from line 1, the following evidence was given:

“Q. And when was the last time you lived with your parents?

A. About two years ago, three years ago.

Q. Why did you decide to change your life now?

A. Well, with the charges that have come up against me, I’m disgraceful in myself that it’s happened, it’s, it’s, it’s time to change. I have to stop using drugs now. It’s opened up my eyes to what had happened and, if I wasn’t on - if I wasn’t under the influence I would never have done it.

HIS HONOUR

Q. How do you know?A. Because I - it’s not interest - I don’t - it’s not of interest to me, that type of stuff. I am not - I am not - I am in no way - it’s no sexual thing for me, it’s a disgusting thing.”

Counsel, to whom I shall refer to as Ms D:

“Q. What was it for you when you did look at the photos?

A. It wasn’t anything for me. I, I, I don’t know.

HIS HONOUR

Q. Why did you put them in special folders and label them?

A. Your Honour, I didn’t, I didn’t do that. I only had photos that downloaded when I was looking on a website. I was unaware that they’d downloaded onto my computer and so it was due to the settings on my computer that had gone through my Google.

MS D

Q. You've seen the photos, though, haven’t you?

A. Unfortunately, yes.

HIS HONOUR

Q. There were specific folders named - one was “Little Sluts Love Cock” and one called “Nude Little Girls”?

A. Your Honour, I was unaware that they were putting in photos. The computer was in my girlfriend’s possession for a matter of time. We had broken up just after I was arrested, just after the photos were put on the computer.

MS D

Q. You assisted the police, didn’t you? You told them about the fact that there were photos on your laptop. Is that right?

A. Yes, that's correct.

Q. But the police didn’t ask you about that, did they?

A. No.

Q. Why did you tell the police about the photographs in your laptop?

A. Well, when I was - when I got pulled up the day before, when they took my phone, I didn’t realise the photos, the photos had downloaded to my phone at that time.

Q. But you accept that they were, though?

A. I do, yeah. And when I got arrested the next day and the police officer said to me, ‘Oh, because of the photos on your phone,’ and then I automatically knew that must have come from the laptop.

Q. Is that when you told them about it?

A. Yes, that's right.”

27. In evidence before me on 30 October 2019, when pursuing an application to withdraw from his guilty plea, he gave the following evidence. This is at p 9 from line 24:

“Q. Could you tell the Court about what was happening in your life generally around February 2017?

A. My life wasn’t very good at that time. I was heavily under the influence of methamphetamine. I was in a toxic relationship with my then girlfriend. My life was going downhill very fast.

Q. What was the name of your then girlfriend?

A. HM.

Q. Mr Huggett, do you recall pleading guilty to these charges in the Local Court?

A. Yes, I do.

Q. Before you entered those pleas, had you had the benefit of receiving any legal advice?

A. No.”

Then at p 10 from line 21:

“Q. How soon after your arrest in February did you enter pleas of guilty, as far as you can recall?

A. The first time I went to court.

Q. Can you tell the Court days, weeks, months?

A. It was in 2017 after I got arrested, a few months. I went to court. It was adjourned and I went back to enter my plea. So on the second occasion, I entered the pleas of guilty.

Q. Could you tell the Court why you pleaded guilty to those charges at that point in time?A. Because I was trying to protect my then girlfriend.

Q. Could you explain to the Court what you mean by ‘protect her’?

A. Protect from - her getting into any trouble from having the photos on the laptop in which she downloaded. I thought I was in love. I didn’t realise at the time that my relationship with her was toxic, yeah, wasn’t making my life any better and she has a son - I didn’t want her not - her to not be able to see him because she was also arrested the same time I was.”

Then on p 11 from line 9:

“Q. When you were released on police bail in February 2017, did you continue your drug use?

A. Yes.

Q. When did you cease using those drugs, if ever?A. I stopped using drugs and stopped my relationship with her on pretty much the day that I come back to court from being arrested, I think it was on the Monday, and I got bail from the Court on Monday. I got bailed to live back with my mum, so that’s where I stayed ever since.

Q. And you’re referring to May 2018?

A. Correct.”

I then interposed with, “Sorry, I’m still unclear”:

“Q. You were released to police bail. Did you continue to use drugs when you were released?

A. Yes, I did.

Q. For how long?

A. Up until - up until the day I got arrested for not attending court, which was a Friday. I was in prison over the weekend and I came to the Court..(not transcribable)..Monday.

Q. And when was that?

A. I believe it’s around May 2018. I’m not exactly sure of the correct date. Well, sorry, it was the date the fire alarm went off at court, if that makes any sense.

Q. Sorry, what was that again?

A. The date the fire alarm went off at court. The Court was evacuated. At that stage, I don’t remember the exact date.

KOH

Q. How heavily were you using the drug methamphetamine between February 2017 to May 2018?

A. We both used to smoke around $400 worth a day, thereabouts. All our money went to it pretty much.

HIS HONOUR

Q. That’s between you, $400 worth of methylamphetamine a day?

A. Correct.”

28. How the offender and his then partner were able to fund this level of consumption is not further explained. Then with regard to the proceedings before Acting Judge Grogin from p 14 of the transcript in the proceedings before me, beginning at line 6:

“Q. Do you recall your lawyers on that particular day raising for the first time that you wished to traverse or withdraw your guilty pleas?A. Yes.

Q. When was the first time you have communicate that intention to your lawyer?

A. It was in the middle of our hearing sentence. There was a piece of paper handed up to the judge and it was handed to my lawyers and the judge stated, ‘If you need time to speak about it, go and talk,’ so we went out into the private room and that’s when we were talking about it. That’s when I told him that I wanted to traverse my pleas.

HIS HONOUR

Q. There was a barrister representing you then?

A. Correct.

Q. Ms D?

A. Correct.

KOH

Q. Why didn’t you raise your intention to withdraw your guilty pleas earlier than 21 August?A. Because I was still not in the right state of mind.

Q. What do you mean by that?

A. Well, I didn’t have the lawyer to say that and I didn’t know the proceedings were going to proceed so guilty to sentence. I only spoke to the lawyers - me and my mum visited the lawyers once and they virtually told me that, ‘You’ve got no choice, you’ve pleaded guilty, you have to go to sentence and you’re going to go to gaol.’

Q. Who told you that?

A. The barrister and the lawyer, J, his name was.

Q. You recall having a meeting outside the courts with your legal team on 21 August during that day?

A. Correct.

Q. You accept that you’ve provided me waiver of the privilege you might have with those practitioners?

A. Correct, yes.

HIS HONOUR

Q. Can I just clarify, Ms D had a solicitor instructing her in those proceedings. Is that so?

A. As far as I knew, it was a lawyer, it was a solicitor, who was J.

Q. Sorry?

A. His - my lawyer was J.

Q. JM; is that right?

A. That's correct.

Q. And he was giving instructions to your barrister, Ms D?

A. I think he did, yeah. I’m not too sure on exactly what happened.

KOH: I beg your pardon, your Honour?

HIS HONOUR: I'm just clarifying whether he was represented by Mr M, a Legal Aid solicitor who was instructing Ms D of counsel.

KOH: Thank you, your Honour.

Q. Mr Huggett, in that meeting, was the barrister present?

A. Yes.

Q. How about Mr M, was he present?

A. Yes.

Q. What instructions did you provide to those two lawyers about your pleas?

A. No direct instructions. I heard their advice and I guess I chose to continue on with it.

Q. What was their advice to you?

A. It was to maintain my pleas because if it goes to the trial, then a trial was going to hear - you’re probably, not going to get told you're not guilty.

HIS HONOUR

Q. Sorry, probably get?

A. I said they told me that if I do want to change any pleas, you are going to a trial, that a jury would more likely not - more than likely not accept my not guilty plea and I would be found guilty.

Q. Yes?

A. So going on their advice, I stuck with it.

KOH

Q. And have you ever told either of those lawyers that you wanted to traverse or withdraw your guilty pleas to all of the offences?

A. Yes, I did in that meeting we had in the break-up of the sentence.

Q. That was on 21 August?A. Correct.

Q. And you maintain your innocence, is that the case?A. I - correct, yes, I do.

Q. To what counts, count 1, abuse carriage service to access child pornography material?

A. Yeah, yes.

Q. Why didn’t you make any efforts to withdraw or traverse or otherwise cancel your guilty pleas earlier on 21 August? You had plenty opportunities in the Local Court?

A. I, I was going off what the lawyers were saying to me.

HIS HONOUR

Q. Sorry, say that again?

A. I was going off what the lawyers were saying to me. I didn’t know the severity of the charges against me, so I thought that if I have done something wrong then I should go along with what the lawyers say because they are going to give me the best advice.

Q. Were you shown the statement of facts that the Crown had prepared for your case?

A. No, no.

Q. Never saw that document at all?

A. No, I only seen those, the lawyer and the barrister, one time at their office and one time when they were here at court representing me.

Q. Did they look at that, a document that sets out what the Crown alleged against you and asked you what you had to say about those matters?

A. No, your Honour.

Q. Not at all?

A. No. They just told me what the severity would be and what’s going to happen if I do this and what’s going to happen if I do that.

Q. I’m going to show you a document. This is exhibit A in the proceedings today. Just turn it over for me, one page back. Go forward again. Do you see that narrative there that’s all set forth?

A. (No verbal reply)

Q. Yes? All that describes the conduct that the Crown alleged that you had engaged upon in the commission of the offences with which you were charged. Have you seen that document before?

A. No.

Q. Never seen that before?

A. No.”

29. There followed discussion regarding attributions in pre-sentence and sentence assessment reports and his decision to abandon his intention to withdraw guilty pleas announced on 7 May 2019, which preceded a conflict which imperilled another counsel’s representation of the offender. He was asked about certain of the attributions at p 18 from line 40 in the transcript in the proceedings before me:

“Q. Mr Huggett, do you have that document in front of you?

A. Yes.

Q. Can you see towards the bottom of page 3 under the subheading, “Attitude to Offending”?

A. Correct.

Q. Do you see that it reads that you had agreed with the author of that report with the police facts?

A. Yes.

Q. You acknowledge the seriousness of the offending behaviour?

A. Yes.

Q. What do you say about that, Mr Huggett?

A. At that time, I was still living with my girlfriend and I was still heavily under drugs. I said at that time - I said what I thought I put to try and get her out of trouble.”

30. From p 21, line 28, he was shown an agreed statement of facts and at p 22, line 1:

“HIS HONOUR

Q. Do you want to leave it with him while you ask him questions about that?

KOH

Q. Keep it with you, Mr Huggett. Mr Huggett, if you would turn to page 2 of the document.

A. Two?

Q. Yes, at paragraph 9?

A. Yeah.

Q. You would accept that it reads, ‘The offender admitted that he would enter the chat rooms where child pornography material was being made available by other users and access it via a download link. The offender said this was the only source that the offender used to access child pornography.’ Do you agree with that paragraph?

A. No.

Q. Now, in this document, there are references, various references, to your mobile phone?

A. Correct.

Q. That would have been a Huawei brand mobile phone?

HIS HONOUR: Sorry, say that again?

KOH: Huawei brand mobile phone, the brand name being Huawei, H‑U‑A‑W‑E‑I. Let me just find the reference. Beg your pardon, your Honour.

HIS HONOUR: There’s only one mobile phone?

KOH: Yes.

WITNESS: Huawei is the name of my phone, was the brand name.

KOH

Q. Whose mobile phone was that?

A. Huawei.

Q. Whose mobile phone was that?

A. It was, it was in my possession at the time. That was Heather’s phone. Heather had used it.

HIS HONOUR

Q. In your possession, I just want to make it clear about this. In your possession but Heather’s phone?

A. Yeah, I just recently got it back from V.

Q. Say that again?

A. I just recently got it back from V, the day I got arrested.”

31. It is not clear to whom he was referring. It was possibly a reference to the return of the phone by the police, though, but as I say, it is not clear. He shortly after told me that Heather had bought him the phone. At p 24, he spoke of another phone that she had, which also had child pornography, for which he was charged separately.

32. I have documents relevant to her prosecution in respect of a Samsung Galaxy phone. In the Local Court, she was sentenced to imprisonment for seven months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 for the material found on that device.

33. In a pre-sentence report written on 11 September 2017, the author wrote of its preparation based upon two interviews. It is noted that Mr Huggett was unable to provide a third-party contact for verification purposes and the information thereafter could not be verified. In relation to the offending, the following appears under the heading, “Substance Abuse”:

“Mr Huggett reported a history of illicit substance dependency, which commenced at the age of 15. The offender disclosed that he began using cannabis, which eventually progressed into daily use of methamphetamine (ice) at the age of 30 for approximately three years to date. The offender stated that he was under the influence of methamphetamine (ice) and cannabis at the time of the offences.”

34. Then beneath the heading, “Negative Peer Groups/Associates” the following appears,

“The offender stated that he was ‘bad company’ at the time of the offences, citing, ‘My ex-girlfriend introduced me to child pornography.’”

35. Under the heading, “Sex Offending”, the following appears,

“The offender stated that he would view the images as a ‘fantasy thing’ and cited, ‘I decided to look at the images and download them to make my ex-partner happy.’”

36. In the pre‑sentence report written on 26 July 2018 under the heading, “Substance Abuse”, the following appears:

“Mr Huggett reported that he commenced using cannabis as an adolescent and methamphetamine four years ago, when he met his ex-partner. Whilst he denied any current illicit substance use, he attributed it to being under the influence of methamphetamines when committing the offence.”

Under the heading, “Sex Offending”, the following appears:

“Mr Huggett’s version of events has differed since he initially admitted to police and Community Corrections that he viewed the child abuse material together with his ex-partner whilst under the influence of methamphetamines. Mr Huggett now disputes his initial claims and appears to divert the blame for the offence on his ex‑partner and takes no responsibility for his offending behaviour.”

37. In a sentence assessment report written on 10 December 2019, the following appears beneath the heading, “Family and Social Circumstances”,

“Mr Huggett described his ex-partner to be toxic and blamed her to have influenced his antisocial behaviour.”

38. Under “Attitudes”:

“Mr Huggett agreed with police facts of being in possession of child pornographic material, however, denied being responsible for downloading the material and has shifted the blame to his ex‑partner.”

39. Then there is reference to his involvement with negative peer group or groups and the influence of his ex-partner and antisocial neighbours. Under the heading, “Insight into the Impact of Offending”, the report states,

“Mr Huggett was not able to identify any consequences of his offences other than his own arrest.”

40. He was assessed with medium-low risk of reoffending.

41. In his case, a psychologist provided a report. Ms Laura Durkin wrote, on 6 August 2018, of the product of the semi-structured interview and psychometric testing over two hours on 17 July 2018 conducted in her offices, that:

“His account at interview was brief and undetailed and he struggled to provide elaboration or clarification. It seems Mr Huggett is not a particularly thoughtful of psychologically-minded person and, consequently, he struggled to articulate himself during the interview. Otherwise, Mr Huggett appeared to be a reasonable historian. His account was appropriately structured, logical, and coherent, providing no evidence of thought disorder, and no receptive or expressive language deficits were evident.”

42. There is a detailed history of his formative years and his relationships. At para 23, it is noted that he denied any sexual interest in children and young people and says that he has never experienced arousal in response to children. At para 25, he spoke to his occasional viewing of heterosexual pornography via the internet. His drug history was discussed, including his use of crystal methamphetamine, which he represents somewhat differently to the evidence that he gave before me according to this report at para 32, though he is attributed with representations that he was introduced to crystal methamphetamine by his former partner.

43. Initially, he consumed up to twice a week, but that increased to 0.4 grams per week and using it up to three times a week until his arrest on the current charges. That implies a lower level of use compared to what he said to me in the course of his evidence, but there is a significant level of imprecision in the propositions that have been attributed to him here and there has been no attempt to clarify or quantify or perhaps compare and contrast what is contained in the report with the effect of what is said in the course of his evidence. With regard to the offences at para 38, the following appears:

“While he acknowledged being in possession of the child pornography, there were discrepancies between his account and the facts regarding the transmission of child abuse material (CAM) with Mr Huggett indicating that the transfer of CAM occurred automatically. The facts indicate that CAM was found on Mr Huggett’s mobile telephone and on his computer. Of all the images on Mr Huggett’s mobile telephone …”

44. What followed was a description of the material to which I shall come when I rehearse the statement of facts that are before me. Further on, in para 38, the following appears:

“In describing the motivation for his offending, Mr Huggett indicated that his partner introduced him to CAM, but he was disinterested in the material and apparently did not view it for sexual purposes.”

In para 39:

“Mr Huggett said that his offending is ‘bad’ and he stated it is not ‘right’. He advised that the issue of children being used in pornography is generally ‘not right’ and commented that CAM ‘shouldn’t be there’. He made no further comments about the impact or consequences of child pornography on the victims.”

45. The offender, as I noted, did not give evidence in the sentence proceedings that were conducted before me. The statement of facts upon which the sentence is to be determined were, as I said, supplemented upon the presentation to me of some of the images, which I was requested to view by the Crown, and, as I said, I did that in open court without exposing the material to the public areas of the Court and returned the material forthwith to the Crown.

46. According to the facts and by way of background, the offender, on 21 February 2017, was questioned in relation to an unrelated matter, in the course of which police seized his mobile phone and, upon a review of the material saved on his phone, child abuse material was located. On 22 February 2017, police attended an address in Canley Heights, where he was living. He was arrested and cautioned in relation to the possession of the child abuse material. He admitted to the police the child abuse material could also be found on his laptop computer.

47. The police seized his computer based upon those admissions. He agreed to participate in an electronically-recorded interview with police and during that he told the police officers that he had the phone seized by the police for a period of about one week. He said he had downloaded pictures of naked children from a link he was sent via chat site called Chat Step. He said he never intentionally saved the pictures. He said the files downloaded depicted children as young as ten years old engaged in sexual acts with older men. He knew how to delete files but could not explain why he did not delete the material, and he was concerned that he would be detected by police if he deleted the images, so he did not.

48. He initially told the police that when he realised the files he had downloaded were inappropriate, he exited the application and did not look at the material again, but later admitted that he looked at the material at least once or twice after downloading.

49. The conduct upon which count 1, the sole count now on the indictment is brought, is then described. The offender admitted to using the website chatstep.com to access child pornography material.

50. Chatstep.com is a website that allows users to chat online in chat rooms. Users can chat using a nickname or anonymously and do not need to have an account to use the service, but can create an account for photo sharing features and to send private messages. The offender admitted he would enter chat rooms where child pornography material was being made available by other users and access it via a download link. The offender said that this was the only source he used to access child pornography.

51. Forensic analysis of the offender’s phone revealed that, on 7 February 2017, the offender searched the Google Play store, where users download applications for “teen sex chat” and “app for sluts”. The offender admitted to police that images were on his mobile phone through the use of the “Google Photos” application and his Google account, the particulars of which are provided. Google Photos is a free application which is used to store photo and video files using the internet. Users create a Google account and download the Google Photos application to their mobile phone or computer. Folders on users’ mobile phone or computer are linked with Google photos as the application uses the internet to upload content into the cloud for retrieval when the user logs into the Google Photos account on the new device.

52. The offender downloaded the Google Photos application to his mobile phone on 6 February 2017, which was around the time he purchased the phone. Forensic analysis of the offender’s mobile phone revealed that the offender logged into his Google Photos and 88 child abuse material images were saved into the offender’s Google account between 21 April 2016 and 19 July 2016.

53. The charge, to which the offender pleaded guilty, contrary to s 474.19(1) of the Criminal Code, is expressed thus:

Between about 21 April 2016 and 19 July 2016 at Bass Hill and elsewhere in the State of New South Wales [the offender] did access material using a carriage service, the material being child pornography material.

FURTHER FORENSIC ANALYSIS OF DEVICES

54. On 8 August 2017, police forensically analysed the offender’s mobile phone and laptop. This analysis revealed that the child abuse material was stored on both devices. The material was classified by police using the Interpol baseline categorisation system. This system provides two categories as follows:

55. Category 1. Material depicting a real, prepubescent child and the child is involved in a sex act, witnessing a sex act, or the material is focussed/concentrated on the anal or genital region of the child;

54. Category 2. Material depicting a person who is, appears to be, or is implied to be a child and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive, who,

• is a victim of torture, cruelty, or physical abuse; or,

• is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or

• is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or

• is exposing the genital area or anal area or breasts of a female child.

THE FIRST OF THE STATE OFFENCES: POSSESSING CHILD ABUSE MATERIAL ON THE MOBILE PHONE

57. Police manually reviewed the material saved on the offender’s mobile phone and identified 88 images of child abuse material. Of these images, police classified 50 as falling into category 1 and 38 falling into category 2. The child abuse material were of children as young as seven years old and up to children 14 years old, and variously depicted:

58. (a) naked or partially naked children in sexually suggestive poses;

59. (b) a young girl holding an adult penis near to her mouth;

60. (c) seven-year-old girls being penetrated by an adult male;

61. (d) two young children engaging in sexual intercourse with each other; and (e) multiple images of children performing oral sex on adult males.

62. Those descriptions, as distressing as they are to read, only partly reflect the abominable material when presented by way of the images. That said, it is a fair comment that the description summarised in this agreed statement of facts is a reflection of what one might see in the images if called upon to view them.

THE SECOND OF THE STATE OFFENCES: POSSESSING CHILD ABUSE MATERIAL ON THE LAPTOP COMPUTER

63. Police used a program involving what is described as a discovery examination method to analyse the offender’s laptop, conducted in order to determine the quantity and level of child abuse material contained on the device.

64. The files of interest identified as child abuse material through this process are the result of a randomised sampling of a filtered set of valid files found in the device. These valid files are assigned an arbitrary number on which they are sorted. This creates the random sample. The investigator then reviews the random sample and nominates the files which amount to child abuse material. Each file is classified in line with the Interpol baseline categorisation system.

65. Once the investigator has completed the selections, a conservative estimate of the total number of files of interest on the exhibit is extrapolated from the sample selection using proven statistical methods. The statistical breakdown of each exhibit item compares the number of files of interest for each Interpol baseline categorisation system category with the total number of files examined for each file type.

66. This laptop contained 37,000 valid image files. Of these, a random sample of 8000 was examined and 145 were identified as child abuse material. Through proven statistical methods, it is therefore estimated that the laptop contains between 544 and 796 image files that constitute child abuse material.

67. Of the 145 sample images, 71, or 48.96%, were category 1, and 74, or 51.04% were category 2. The video files saved on the laptop were reviewed using the discovery examination method. One video file was determined to be child abuse material and it was classified as falling into category 1. The video file included various scenes of a six-year-old girl performing oral sex on an adult male. Later in the video, the adult male is shown engaging in sexual intercourse with a six-year-old girl. The child abuse material was saved into various folders within the laptop hard drive, such as in the saved pictures and Dropbox folders. There were also child abuse material specific folders with names such as “Little Sluts Love Cock” and “Nude Little Girls”. The review of the sample images showed that the child abuse material depicted at least 25 different victims.

68. The task that I have to perform includes an assessment of the objective gravity of these offences. The material as described and as exhibited to me, and the circumstances in which it came to be on the devices to which the offender had access, on my assessment, places the objective seriousness below mid-range in each case. I have taken into account, particularly with regard to the New South Wales offences, the number of images that were discovered in the course of the investigation. The submission made on behalf of the offender that an alternative to incarceration is within range in the determination of this matter, I do not accept. There is nothing less than full-time custody appropriate for the misconduct to which the offender has admitted in these proceedings.

THE OFFENDER

69. The offender was born in 1984 and has turned 36 years of age. He has a record of antecedents, which do not include conduct of the type that is now before the Court. The first entry on the antecedent report refers to an appearance in June 2004 in the Local Court for driving well in excess of the speed limit and not obeying a direction of a police officer, for which he was given the benefit of s 10 Crimes (Sentencing Procedure) Act 1999. In June 2007, for driving whilst suspended and driving an uninsured and unregistered motor vehicle and driving under the influence of alcohol or drugs, he was fined, and disqualified for the offences of driving whilst suspended and driving under the influence.

70. In August 2010, for driving with a high-range prescribed concentration of alcohol and driving with an expired licence and using a mobile phone, he was fined and, in the case of the high-range PCA offence, was required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act with a disqualification period imposed. In August 2015, he appeared for driving dangerously, using an uninsured and unregistered motor vehicle, and possessing a prohibited drug, and driving without a licence. For the dangerous driving charge, he was required to perform community service; so too for possessing the prohibited drug. The remaining charges were dealt with pursuant to s 10 Crimes (Sentencing Procedure) Act; disqualification periods were imposed.

71. In August 2015, for driving without a licence, he was again given a bond pursuant to s 10 Crimes (Sentencing Procedure) Act for a period of two years. On the same day, for driving without a licence, driving on a path, and driving an unregistered vehicle, using an uninsured motor vehicle, and using a motorbike without wearing a helmet, he suffered one nominal fine with the other offences being dismissed pursuant to s 10. For driving without a licence, he was ordered to enter a bond pursuant to that provision. A period of disqualification was included. I do not know how that could have occurred, but I note that there is an endorsement that it was quashed.

72. In May 2017, for possessing a prohibited drug he was fined. In January 2018, we come to the commencement of the prosecution for these offences and there are appearances in his antecedent record in relation to those, back and forth. There is another charge of possessing a prohibited drug for which he was fined.

73. Thus, there is nothing on his record of sexual offending until this misconduct, at a relatively later stage in his life, which might offer some support for his representation that he engaged upon this misbehaviour as a consequence of his association with his former partner. The view I have, which I shall explain, is that, regardless of his motivation for getting involved in this activity he must suffer appropriate punishment.

74. His mother and father have provided testimonials, speaking of his life and their obvious affection for their son, and the unfortunate influence that his former partner had, leading to his present predicament. They write in a document which bears both names and signatures:

“While I’m utterly appalled at what he and Heather have done in regard to downloading this kind of sickening material, I believe in my heart that if Owen had not been under the influence of drugs he would never have downloaded or accessed or possessed anything of this kind. He is an honest, good-hearted person when he is not on drugs. He certainly is not a person without morals - not the way we raised him.”

75. His parents have my sympathy. It must be extraordinarily difficult for them to be sitting in court to hear a judge delivering judgement in a matter such as this in a prosecution brought against their child, regardless of the age of the child. The fact that he was under the influence of drugs, which he chose to take, explains perhaps why he made the decisions that he did, but it does not mitigate his criminality.

76. There is also a document provided by the offender’s girlfriend, who obviously holds him in great affection. She writes of not seeing any signs of paedophilic interest. She writes of struggling to understand why he engaged upon this conduct as, I might say, any sensible person might.

77. The antecedent reports, as I have said, have gone back and forth in the value they might have for the offender, but there are common threads regarding his formative years, his involvement with antisocial associates, his evolution from the misuse of alcohol to cannabis and then to methylamphetamine and, ultimately, the relationship which occurred with the woman to whom I have referred. Clearly, there is nothing in his background which could be attributed to his parents as having any causal connection to the decisions he made to misbehave as he has.

78. The psychologist’s report provides greater detail than one sees in the pre-sentence report or the sentence assessment report. Again, it includes particulars of his education up to year nine, his work history, such that it is, his stable family life provided by his parents to whom he has returned after the breakdown of the relationship with his former partner. He represented to the psychologist that he is on the opposite end of the scale, and as being straight down the line. He noted that he was historically prone to risk taking and poor decision making, including with regard to antisocial conduct. His wayward lifestyle started when associating with negative peers, he said.

79. He denied any social difficulties. He has had short and long-term relationships and friendships, and then his drug use, which he reports as having influenced his conduct. He has, it is said, sought to desist in the misuse of drugs. He spoke of his former partner as someone psychologically abusive towards him, but the report continues at p 5 regarding this:

“However, he seemed unaware and generally unconcerned by the abuse, although he apparently grew tired of both partners due to the instability of the relationships.”

80. That raises more questions than it answers. It continues, though, in para 20,

“The second relationship ended after both Mr Huggett and his partner were arrested on the current charges.”

81. I note that Mr Huggett claims his partner engaged him in the current offending behaviour. He is attributed with denials of sexual interest in children and denied any arousal in respect of children. His alcohol and drug use is discussed, and I there were discrepancies observed by the psychologist with regard to the offending behaviour and his representations regarding it.

82. Psychometric testing included a personal assessment inventory, which was completed by the offender. It is said that he failed to attend appropriately when responding to test items. Potential reasons for this include reading difficulties, carelessness, random responding, confusion, or failure to follow the test instructions. There is nothing before me to allow the Court to conclude precisely what might have impacted in that test, but, one way or another, there is no interpretation of the profile provided because it was not possible.

83. Risk assessment is discussed at some length, together with the risk factors itemised on p 10, and other relevant factors, significantly less in number, discussed at p 11. Ultimately, his risk of sexual offending falls in the moderate range but one must look at that with some caution, as the psychologist writes. At para 53, under the heading, “Formulation”, the psychologist wrote:

“With regards to the current offending, by Mr Huggett’s account, his offending occurred in the context of his intimate relationship. He denied seeking out the CAM or being aroused by it and indicated that his partner was motivated to obtain the pornography. While he accepts he was in possession of it, Mr Huggett denies he wanted to view such material. Whether or not that is the case remains unclear, and such a denial is not uncommon in untreated sex offenders. But what is evident from the information available is that, again, Mr Huggett appears to have been influenced by an adverse influence, he failed to think through the consequences of his conduct, he avoided responsibility, and he apparently continued to associate with someone engaged in illegal activity, which, it is argued, highlights his acceptance and permissiveness of offending conduct.”

84. The report goes on to offer the contribution that substance dependence might have made. He is said to be not an insightful individual and he will be in need of ongoing Community Corrections support, a proposition with which I agree.

85. I have written submissions provided by the Crown and on behalf of the offender.

86. The submissions written on his behalf reflect the challenge that is offered with regard to the way this matter has been conducted over the years, impacting upon the assessment of contrition, but, as I believe I have already indicated, he has some benefit for some contrition, ultimately accepting what he has done and finally adopting what was correct advice given to him by his legal representatives from time to time.

87. I am reminded that at certain points, in contrast to his latter oral evidence, the offender accepted responsibility for his offending and, at least at those occasions, demonstrated contrition and remorse, but it must be said he undid that with his later attitudes. I agree with the submission, ultimately, that there should be some weight given to some demonstration of contrition and remorse. There is discussion in the written submissions on behalf of the offender with regard to the objective seriousness of the Commonwealth offence. There is overlap, it is said, between the material provided for the New South Wales offences and the federal offence.

88. There is a summary of what is depicted. It is noted that there is no gratuitous violence, torture, or cruelty. Had there been such, of course, the sentence would be longer than it is going to be. The offender is said not to be proximate to those responsible for bringing the material into existence, or to those who were at the point of distribution

89. However it is the possession that is the essence of these charges. The offender with others such as him provides the market for these base individuals to exploit these children, wherever they are in the world.

90. I am reminded that the drug use does not rate as a mitigating factor, though it provides explanation.

91. It is said he had a “fleeting” desire to traverse his plea of guilty. I would not have applied the word “fleeting” to that phrase over the history of these proceedings.

92. I agree he has no relevant criminal history. It is said in para 28 of the offender’s written submission that the Court should give consideration to a suspended term of imprisonment in relation to the Commonwealth offence, and that one must consider the totality of the misconduct, particularly the significant overlap between the Commonwealth offence and sequence 1 in the New South Wales offences. So far as that submission goes, I would agree that one must take care in that regard, but a non-custodial option is not appropriate.

93. The Crown has provided me with examples of cases with some bare facts, providing an indication of sentences that were imposed in past matters, the guidance they might provide, and I have drawn comparisons and contrasts between what occurred in those matters with the present matter before me, to arrive at what is the appropriate sentence in the circumstances.

94. The Crown has provided me with the summary of general principles relevant for the sentencing of Commonwealth and state offences and the corresponding provisions in the legislation from those jurisdictions. The Crown correctly observes that a term of immediate imprisonment would ordinarily be expected in such offending as this.

95. General deterrence has a significant if not primary role to play in child pornography offences. I am reminded that this occurs at an international level. It is increasingly prevalent unfortunately, with the advent of technology and it is challenging when attempts are made to interdict or detect the perpetrators. There is a market created by such as the offender and the public interest in promoting the protection of children, wherever they are in the world, is of paramount consideration, a proposition with which I agree.

96. Section 16A Crimes Act 1914 (Cth) mandates the Court’s consideration of various matters in relation to the federal offence; general deterrence is a consideration, as I have indicated; the protection of children from sexual abuse is also a matter to be brought to account. I am reminded of various utterances in the Court of Criminal Appeal, particularly the decision of R v Porte [2015] NSWCCA 174 and the judgement of Johnson J. The punishment must be adequate. I am reminded of the continuing nature of this abuse every time someone accesses and views this material.

97. I have taken into account the utilitarian benefit of the guilty pleas and the extent to which this is a demonstration of contrition and remorse and, in the case of the federal offences, the facilitation of the criminal justice process, ameliorated, though, by the attitude taken by the offender throughout this process up until the present time. I have taken into account his age, the limited criminal history within the context of this type of misconduct, although he has clearly demonstrated an unfortunate attitude to his responsibilities as a member of the community.

98. There is reference to his health and injury he suffered through work; It has impacted upon his opportunity to earn an income; I have regard to what is said of his character, notwithstanding this behaviour and his record, offered by his parents and his present girlfriend. I note what the Crown has said in relation to drug addiction and that it is not a mitigating factor. I am reminded of what was said by the Chief Justice and by Wood CJ at CL at the time, in R v Henry [1999] NSWCCA 107 who provided guidance with regard to drug addiction and the extent to which it informs the approach when assessing the extent of planning involved in an offence, its impulsivity, any alternative reason, and the offender’s state of mind and capacity to exercise judgement. This is a slightly different context to the decision in Henry ibid, which was concerned with an armed robbery.

99. I have had regard to the prospects of rehabilitation and it would seem to me, on the material I have, that he has good prospects and they will be built upon with a longer period of parole than might otherwise have been imposed after he has served what should be the custodial component for this misconduct. The evidence before me is at least suggestive of efforts to disengage from his antisocial peers and misuse of methylamphetamine.

100. There is to be some slight accumulation between the sentences for the two state offences. I note that the offences involved different devices with different sets of material, and the offence charged on the indictment targets different conduct, but there must be, I would suggest, a significant overlap between the sentences to be identified. I have considered whether an alternative to full-time custody is appropriate. I am satisfied that there is not an alternative in the circumstances of this offending.

CONSIDERATION

101. Whether the offender engaged upon this misconduct because he was interested in viewing this material or did so for the benefit of and to please the woman with whom he was in a relationship, is, in my assessment, overall, of limited significance in the assessment of his moral culpability. His limited interest in this type of material might speak to his risk of reoffending, but it does not diminish the significance of the misconduct to which he has pleaded guilty. His representation that he engaged upon this misconduct under the influence of a prohibited drug, the use of which continued from cannabis as a youth until he resorted to methylamphetamine, which, according to his evidence before me, was at a cost of $400 per day for his and his partner’s use of the drug, might explain, but does not mitigate, his wrongdoing.

102. His attempt to address his propensity for poor decisions no doubt will be assisted if he learns to abstain from prohibited drugs and continues to do so henceforth. His use of drugs at that cost raises other questions for which there are no answers before me. He suggested that he was using the drug at that level for more than 12 months, which would cost in excess of $146,000 over a period of 12 months without bringing into account the entire period which he claimed in evidence before me. It is not explained how he and his former partner would have funded that consumption at that level, but I note that what he said before me is not necessarily consistent with what I referred to elsewhere in the report from the psychologist, which carries at least the implication that the consumption was at a lower rate. Whatever questions there might be in relation to that there is no opportunity to find answers for them on the material that I presently have.

103. There can be no justification for anyone accessing for their pleasure or curiosity child abuse material, and none for having it in possession. To access it and retain can only be for the sexual stimulation it offers those who would wish to view that product. Children are not commodities to be used for exploitation and the recording of sexual activity with adults or otherwise for the base gratification of people who engage in this market.

104. A common thread throughout the authorities upon this crime is that the courts must do what they can to deter this conduct for the protection of children throughout the world who are mistreated so. The impact of the crime extends each time these images are availed of by those who participate in this deplorable market. In this period of the development of the law, the courts in New South Wales are mandated to bring to account current sentencing practices when determining sentences for certain historical sexual offences against children, particularly after the findings of the recent Royal Commission into Institutional Responses to Child Sexual Abuse and the recognition that child victims of such deplorable conduct, so graphically illustrated in the photographs which were before me, are likely to bear the psychological burden of the victimisation for years after, if not for the entirety of their lives.

105. The images I was required to view include stark presentations of the sexual assaults of the children depicted, wherever they might have been in the world at the time. They were probably in some location remote from Australia, but that does not detract from the significance of these considerations. Whether or not the offender so engaged for his or the pleasure of his former partner, exercising poor judgement because of the self-induced consequences of his decision to use prohibited drugs, there can be no alternative other than full‑time custody for his behaviour.

106. For the state offences, the so‑called “line” in s 5 Crimes (Sentencing Procedure) Act has been clearly passed and so, too, upon the application of the relevant provisions from the Crimes Act (Cth).

THE SENTENCES

107. The offender is convicted of each of the offences to which he has pleaded guilty.

108. For the offences contrary to s 91H(2) of the Crimes Act 1900, if I were to impose individual sentences they would be as follow. For the offence of possess child abuse material found on the offender’s mobile phone, imprisonment for 1 year and 9 months and 18 days. For the offence of possess child abuse material found on the offender’s laptop computer, imprisonment for 1 year, 11 months and 12 days. For those offences, I have allowed the offender a discount of 10% for the utility of the late pleas of guilty applied to each of the sentences that would have otherwise been imposed upon the synthesis of objective facts and subjective material, including the extent to which he has, upon my findings, shown some contrition and remorse.

109. The aggregate sentence I impose for those offences is a fixed term of imprisonment of two years, commencing on 20 February 2020 to expire on 19 February 2022. For the offence contrary to s 474.19(1) of the Criminal Code, allowing a discount of 10% in accordance with recent pronouncements in the New South Wales Court of Criminal Appeal, including Xiao v The Queen [2018] 96 NSWLR 1, after the decision by the offender to finally abandon efforts to avoid the consequences of his conduct, I impose a sentence of imprisonment commencing on 20 August 2020. I specify a non‑parole period of 2 years to expire on 19 August 2022 with a further period when the offender shall be eligible for parole of 1 year and 4 months to expire on 19 December 2023.

110. The imprisonment to which the offender is now subject is overall a period of 3 years and 10 months, including the custodial component of 2 years and 6 months. The relevant dates are 20 February 2020 until 19 August 2022 and, thereafter, until 19 December 2023.

111. The Crown seeks forfeiture orders pursuant to s 23ZD Crimes Act 1914 in respect of the Huawei mobile phone and the Hewlett Packard laptop computer. I shall make those orders. I have signed the short minutes. The exhibits can remain on file for such periods as the parties might require. Any other orders required as far as the Crown is concerned?

112. TSIAVLIS: No other orders, but, my apologies, could you read the Commonwealth component of the sentence out again? I missed some of the dates.

113. HIS HONOUR: I will repeat that. I will repeat that more slowly. In fact, I will go back to all of them. For the offence of possessing child abuse material found on the offender’s mobile phone, the sentence after the application of 10% discount is 1 year, 9 months and 18 days. For the offence possess child abuse material found on the computer, he is sentenced to imprisonment for 1 year, 11 months and 10 days upon the application of 10% to that sentence. The aggregate sentence I impose for those offences is imprisonment for 2 years from 20 February 2020 to expire on 19 February 2022. For the Commonwealth offence, the period of imprisonment that I specified is a non-parole period of 2 years commencing on 20 August 2020, expiring 19 August 2022, with a further period when he shall be eligible for parole of 1 year and 4 months to expire on 19 December 2023.

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Decision last updated: 20 April 2020