R v JS

[2018] NSWDC 342

District Court

New South Wales

Medium Neutral Citation:	R v JS [2018] NSWDC 342
Hearing dates:	11 October 2018
Decision date:	21 November 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [117]
Catchwords:	Child sexual offence; making and disseminating child abuse material; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Berryman v R [2017] NSWCCA 297 Biddell v R [2017] NSWCCA 128 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Fedele v R [2015] NSWCCA 286 Greenwood v R [2014] NSWCCA 64 JM v R [2014] NSWCCA 297 R v Booth [2009] NSWCCA 89 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Gavel [2014] NSWCCA 56 R v Hutchinson [2018] NSW CCA 152 R v Porte [2015] NSWCCA 174 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) JS (Offender)
Representation:	Counsel: M Coates (Crown Prosecutor) B Neild (Offender)   Solicitors: L Burgoyne (Crown) E Renard (Offender)
File Number(s):	17/257186
Publication restriction:	Pursuant to s 7 Non-Publication Order/Suppression Order in respect of name of Complainant and Offender

REMARKS ON SENTENCE

1. The offender is being sentenced in respect of three offences as follows:

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

The maximum penalty for the offence is 10 years imprisonment, and there is no Standard Non-Parole Period.

2. Sequence 6 – Use child under 14 years to make child abuse material pursuant to s 91G(1)(a) of the Crimes Act 1900.

The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole period of 6 years imprisonment.

3. Sequence 7 – Sexual intercourse with a child under the age of 10 years (DV), pursuant to s 66A(1) of the Crimes Act 1900.

The maximum penalty for the offence is life imprisonment and there is a Standard Non-Parole Period of 15 years imprisonment.

2. The offending took place between 15 June 2017 and 23 August 2017 when the offender was arrested. She has been in custody since that date.

The sentence hearing

3. The sentence hearing took place at Port Macquarie District Court on 11 October 2018. The Crown Sentence Summary became Ex A on the sentence hearing. It included an agreed statement of facts which may be summarised as follows.

4. The offender was born on 30 May 1982. She lived with her partner and two children at Barrington, New South Wales. On 23 August 2017, South Australian Police executed a search warrant at the premises of a person named Shane Hartley. A number of electronic items were seized and found to contain child abuse material. When questioned by police, Hartley told them that the offender had sent the child abuse material to him. On the same day, New South Wales Police executed a search warrant at the offender’s home and seized a number of electronic devices. The offender was arrested and participated in an electronically recorded interview. She told police that Hartley was her boyfriend, they having met on the Internet two years beforehand. She had never met him in person and her partner did not know about him. She told the police that the victim, her daughter AR, had spoken with Hartley on the phone and sent messages to him on occasions.

5. The offender admitted that she had taken photos of the victim naked, but said that she had only done so in order to document the progress of her eczema condition. She repeatedly maintained that she had sent the photographs of the victim to Hartley accidentally. She agreed that the victim had not required a medical appointment for her eczema since she was four years of age, and she was then 9 years of age, having been born on 17 July 2008. The images contained no evidence of any significant skin condition.

6. AR was interviewed by police the following day, on 24 August 2017. She told police that she was pretty sure her mother had been taking photographs of her “rude bits” when she sleeps. She recalled being asleep and feeling her mother’s fake nails near her private parts. She was also pretty sure that her mother had taken photographs of her in the shower. She told police that she had spoken with a friend of her mother’s named Shane, who lived in South Australia and thought her mother may have sent photographs of her “privates” to Shane, but she was not sure. She was pretty sure her mother had asked her to lie in certain positions when she had taken photographs of her bottom and “privates”.

7. Forensic examination of the offender’s phone revealed that the photographs had been deleted. However, examination of Hartley’s telephone revealed that in the two months between 16 June 2017 and 15 August 2017 there were over 3,000 pages of SMS and MMS messages exchanged between them. The offender regularly sent Hartley every day photographs of herself, her children, her home and her shopping items. Many of the messages also contained images amounting to child abuse material and featured AR. She was awake in the photographs, not asleep.

8. The agreed facts then enumerated the MMS and text messages sent by the offender to Hartley in chronological order from 16 June 2017 through to 22 August 2017. It is unnecessary for the purpose of this sentence to reproduce the whole of those communications. In that material, there was a total of 133 images amounting to child abuse material sent by the offender to Hartley in 23 separate messages, on 13 different days. The images included photographs of AR naked and in sexualised positions. Many of the images show her vagina and a number of them show the offender’s finger or fingers opening her vagina. Some of the images are close-up photographs of AR’s vagina and some also show her buttocks and vagina.

9. On 30 July 2017, ten images were sent by the offender to Hartley showing AR naked, and two of those images showed the offender’s finger inside AR’s vagina. Later that evening, another 10 images were forwarded by the offender to Hartley. Two of those photographs were of AR’s buttocks, three of them are of AR being posed while naked, one is of AR being posed showing her vagina, and another was of AR naked with the offender’s hand spreading open her buttocks. The final two photographs are of the offender’s finger inside AR’s vagina. The image date confirms those photographs were taken on 29 July 2017, and those images support the charge of sexual intercourse pursuant to sequence 7, by way of digital penetration of AR’s vagina.

10. The agreed facts also set out communications between the offender and Hartley, including images and text or SMS messages which are not the subject of the offences charged, but place that material in context. There are images which do not constitute child abuse material of AR wearing various items of clothing, and text messages relating to her wearing those items, and the offender telling Hartley about clothing she was planning to shop for AR, and Hartley’s request to her to “buy tight sexy stuff for AR so I can look at it”.

11. The agreed facts also outline AR’s use of the offender’s phone to send and receive messages from Hartley, in which she referred to him as “daddy”.

12. The SMS exchanges also included messages from Hartley as to sexual acts he would perform on AR. In another message he expressed a need to the offender for two other girls as well as AR that he could use for sexual purposes.

13. In one SMS exchange on 24 July 2017, Hartley had said:

“See if you can get AR to rub herself now she’s asleep.”

The offender replied:

“No I just want you hun”

and then:

“In NSW you go to gaol”

Hartley replied:

“I know that you are not going to gaol you’re going to fuck lots of girls and me xx”

14. Further text messages followed concerning sexual acts that would take place between the offender Hartley, and these other girls.

15. Text messages were sent by AR using the offender’s phone on 31 July 2017 to the offender, to which he replied. In one of those messages Hartley asked AR:

“Do you still enjoy making dad happy with your sexy pics”

16. The SMS messages included communications about the offender becoming a foster carer and Hartley encouraging her to do it for girls only.

17. The images contained sexualised posing by AR when she was naked with her legs spread open, or posing with her buttocks in the air, and opening her vagina with her hands, as well as the offender opening her vagina. The co‑accused Hartley responded on a number of occasions with SMS messages stating “Yummy” or “Yum”. Further images were of AR naked in the shower.

18. On 16 August 2017 a series of text messages were exchanged between the offender and Hartley concerning him masturbating whilst AR would sit on his lap. It included Hartley saying:

“Hun please come to sa I need u.”

The offender replied:

“I would love to live there hun.”

Later, Hartley sent an SMS:

“My cock can go inside her.”

The offender replied:

“Well just on the outside of her for a while and just let her touch it and play with it first.”

19. The offender then send an MMS containing an image depicting AR’s vagina and offender’s fingers.

20. Exhibit A contained a statement from New South Wales Police confirming that the offender had no criminal antecedents.

21. Exhibit B was a document entitled “Child Abuse Material Interpol Baseline Categorisation”. It revealed that of the 133 images, 78 photographs fell into the Interpol Baseline Category 1, namely:

“An image depicting a real pre‑pubescent 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”.

Fifty-five of the photographs fell within Category 2, “Other Child Abuse Material”, which was described as:

“That is Material that is not included within Category 1, and such material includes 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 of 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 offender’s evidence

22. The offender tendered a report of Dr Amanda White, forensic psychologist and clinical neuro-psychologist dated 27 September 2018 (Ex 1), and a report of Dr Sathish Dayalan, forensic psychiatrist, dated 17 September 2018 (Ex 2).

23. In her report, Dr White set out the psycho-social, educational, and medical history of the offender. The offender had described a quiet country upbringing, She was bullied at school and left in year 10. The offender left home in her 20’s after she fell pregnant and moved in with her partner of 10 years. They had two children, AR and a son.

24. The offender gave a history of online relationships over the past few years, whilst still living with, and in a relationship with her partner. She suffered depression following the death of her father three or four years ago, and admitted to a few online relationships which turned intimate, and in which she had sent naked photos of herself to three to four men. She had commenced an online relationship with the co-accused as she enjoyed his musical talent. They engaged in regular online activity, text messages and spoke on the telephone on average once weekly for up to two hours. She had disclosed to him a history of being sexually abused as a child, something she had not told anyone close to her. She told the author that she was repeatedly sexually assaulted by a family friend around 12 years of age, over a period of one to two years.

25. Dr White also recorded a history of anxiety from young childhood. She always experienced anxiety in crowds and in social settings, and had experienced depression following the birth of her son, and after the death of her father.

26. In respect of the offences for which she is being sentenced, the offender admitted to Dr White that her initial statements to the police, that she had taken the photos to evidence her daughter’s eczema, were untrue, and were an attempt to legitimise her actions. Initially, Hartley had expressed a sexual interest in her, but then told her of his interest in young girls. She commenced to send him sexual images of her daughter and she was aware that her actions were wrong, and that if caught, she could go to gaol. She acknowledged that she had taken the images without her daughter’s knowledge and consent, and that this was a violation of her trust. She also admitted that she discussed with Hartley taking in foster children, however, she was adamant that she was never going to go through with this plan. She had wanted to keep and build her relationship with Hartley, stating that she enjoyed his company and attention and, “he always cheered me up”.

27. The offender’s children were currently in the care of the Department of Family and Community Services, and she was aware that she would unlikely be permitted to see them again without supervision.

28. The offender was subjected to neuro-psychological assessment which showed her pre-morbid intellectual functioning to be within the extremely low to borderline range. Her full IQ fell within the borderline range, and showed severe levels of depression and stress, and moderate anxiety sympotomology.

29. Dr Dayalan took a similar psychiatric history and noted that she had been diagnosed with Attention Deficit Disorder in childhood and medicated on Ritalin for a short period of time. She was also very anxious in crowded places and suffered from panic attacks. Under the heading, “Account of Circumstances Around the Time of Offence”, the author stated that the offender had been depressed since the death of her father, with whom she had a close relationship. She was largely house-bound, and only left home three or four times a month. Her relationship with her partner had been good. She had met Hartley online a month before she started sending photos of her daughter. She stated that she liked him because of “his music, his ute, his hat and clothes”, however, she was not going to meet or see him. When asked why she had sent the photos, she stated:

“May be because I was down and depressed. He kept pushing me and said that we can’t be friends any more. I was down and depressed.”

30. When asked whether she was aware of the wrongfulness of her behaviour, she responded:

“I sort of did and did not.”

She did not know how her behaviour would impact on her daughter.

31. Dr Dayalan diagnosed the offender suffering a Panic Disorder with agoraphobia. She relied on the offender’s reports that she had been desperate for companionship around the time of the offences, given her depressed state of mind and limited social interactions, due to her agoraphobia. She found that her interactions with Hartley assisted her with emotional distress. Dr Dayalan opined that:

“Her offending behaviour appears to be her effort to sustain this relationship rather than any paraphilic tendencies.”

32. She was assessed as being a low to moderate risk of sexual re‑offending.

The Crown submissions

33. The Crown relied on a thorough written outline of submissions. It was submitted that the three offences arise out of an ongoing course of conduct by the offender, who made child abuse material involving her daughter, who was aged eight or nine years (sequence 6), and then sent that child abuse material to Hartley (sequence 2). The child abuse material involved the offender inserting fingers into her daughter’s vagina (sequence 7).

34. Whilst the objective seriousness of the offences had to be assessed individually, the Crown submitted that some factors, and the moral culpability of the offender were the same for each offence.

35. The objective seriousness of sequence 2, disseminate child abuse material, involved the offender sending a total of 133 images of child abuse in 23 messages, on 13 different days. Seventy-eight of those images were classified as Interpol Based “Category 1”, and 55 were classified as “Category 2”. As outlined above, all of the images were of the offender’s daughter AR, who was then under 10 years of age. They included images of the offender opening the victim’s vagina, the offender inserting her fingers into the victim’s vagina, naked photos of the victim in suggestive poses, and naked photos of the victim with her legs spread open. There were also a number of text messages between Hartley and the offender planning and organising for specific images to be taken of the offender’s daughter, and to be sent to him. Other images were taken by the offender and sent to Hartley without any prompting.

36. The Crown referred to the relevant factors to assessing the objective seriousness of child abuse material set out in R v Hutchinson [2018] NSW CCA 152, by R A Hulme J (with whom Meagher JA and Button J agreed). The relevant factors are set out at [45] of his Honour’s judgment 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 portayed.

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 the 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.

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 or sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. The age of any person 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) Crimes (Sentencing Procedure) Act (bearing upon the objective seriousness of the offence).”

37. Each of these factors will be dealt with below. However, the Crown’s submission was to the effect that its submissions diverge from those of the offender in this case, only in respect of five of them, namely, items 4, 5, 6, 9 and 11, as set out above.

38. The Crown also relied on the well established sentencing principles that, first, possession of child pornography material creates a market for continued corruption and exploitation of children (see R v Porte [2015] NSWCCA 174 at [67]), and secondly, that possession of child pornography is not a victimless crime, rather, it was a callous and predatory crime involving the exploitation and abuse of children and resulting in profound damage to those children (see R v Booth [2009] NSWCCA 89 at [39] – [44]).

39. The Crown submitted that another level of criminality to the offence of possession of child abuse material here, was that it involved the offender disseminating the material to a person she knew to be a paedophile for his sexual gratification. That included the specific paedophilic tendencies he held for her daughter AR.

40. Once the material was electronically sent, there was no control of that material and it could be distributed to countless other like-minded persons or groups instantaneously. Once disseminated, there was no way of retrieving or controlling it and it therefore can remain accessible and be able to be further disseminated in perpetuity.

37. The Crown submitted that the dissemination of child abuse material was above the mid-range of objective seriousness for an offence pursuant to s 91H(2).

38. In respect of the objective seriousness of the offence in sequence 6, use child under 14 years to make child abuse material, the Crown submitted that as the victim was eight or nine years, she was well under the statutory age of 14 years. The victim was also extremely vulnerable, not only due to her age, but it was her own mother who was using her to make the child abuse material.

39. It was submitted that this was not an isolated offence, but that the victim had been used on 133 occasions over a two month period to make the child abuse material. The Crown submitted that the child abuse material made was above mid-range, given the sexually provocative poses that the offender manipulated the victim to adopt, some of which were specifically directed to meet Hartley’s requests. Further, the child abuse material was made specifically to disseminate, and in this case, to disseminate to a person that the offender knew had paedophilic tendencies, and in particular, paedophilic tendencies for her daughter.

40. The Crown submitted that the offence was above the mid-range of offending.

41. The Crown submitted that the objective seriousness of the offending in sequence 7, sexual intercourse with a child under 10 years, involved the offender digitally penetrating her daughter, who was only eight or nine years of age, and recording the sexual assault to disseminate to a male she knew had paedophilic desires for her daughter. In assessing the objective seriousness of the offending, an assessment should be made where the sexual intercourse sits in the spectrum of offences falling within the wide definition of sexual intercourse. The Crown acknowledged that there was no hierarchy of offences of sexual intercourse and that the fundamental concern in assessing the objective seriousness was a consideration of all of the relevant circumstances, including the nature of the sexual intercourse involved, relying on Greenwood v R [2014] NSWCCA 64.

42. With respect to the offender’s moral culpability, to be assessed as part of the objective seriousness of the offending here, it was submitted by the Crown that the offender was a willing participant in the offending in order to please Hartley and receive attention and affection from him. It was submitted that not only did she send images at the instigation of Hartley, but the offender also took a proactive approach in making and disseminating the child abuse material. Whilst she may have been easily led, the offender was not threatened or pressured into the offending, but rather, freely engaged in the communication by way of text messages about the photographs. She also engaged in text messages with Hartley about sexual acts they would engage in with AR and other underage girls, as well as fostering children for the purpose of further offending.

43. The offender had stated that she knew it was wrong, but continued to offend against her daughter. That showed complete disregard for her daughter’s welfare. She also took steps to conceal her offending and lied to the police. This included:

1. “The offender had removed the photos from her phone.

2. The offender had removed the text messages from her phone.

3. The offender lied to the police by stating the photos she sent were about the progress of AR’s eczema.

4. The offender further lied to police that the naked photos of AR were sent by accident and were photos she had taken of the eczema.”

48. The Crown submitted that the following aggravating features should be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act (“CSPA”):

“(2)(k) Breach of trust

This constituted the offender abusing the trust and responsibility and trust upon her as a mother to the victim AR. In addition, AR was under her authority as her mother. Both must be acknowledged as aggravating features, relying on MRW v R [2011] NSWCCA 260.

(2)(eb) Home of the victim

The offending occurred in the victim’s home where she should have felt safe.

(2)(n) Level of planning

It was submitted that there was a level of planning beyond that considered an inherent characteristic of the offending here. The offender and Hartley discussed the particular type of images she would take of AR and she would then use AR to make and disseminate the requested child abuse material.

(2)(m) Multiple criminal acts

It was submitted that the sentence must reflect the offences involved numerous images being taken and disseminated.”

49. The Crown made submissions as to the general principles of sentencing pursuant to the CSPA, including general and specific deterrence, which were not in dispute. Further, the Crown submitted that while the offences were interrelated, there needed to be a level of accumulation to account for the separate and distinct offences. This involved having regard to the principles of totality reflecting the overall criminality for which the offender was being sentenced.

50. In his oral submissions, the Crown highlighted the divergence between the parties relating to the five factors set out in R v Hutchinson, supra, and adumbrated above. As to item 4, concerning the number of images, it was agreed that there were 133 images which the offender characterised as a relatively small quantity. The Crown submitted that it was a significant number in the context of this case in which there was one child as a victim who was aged between eight or nine years. The offender had access to her, not for the purpose of storing the images, but for sending them to Hartley. In the circumstances, over a short period of time, it was a significant number of images.

51. In respect of item 5, which related to possession of the images, the offender had submitted that this item was not applicable. The Crown submitted that it was applicable because it distinguished between simply having the images for possession and disseminating them to others, which was clearly the case here.

52. In respect of item 6, which concerned the number of persons to whom the material was disseminated, the offender relied on the fact that the offender had disseminated them to one person only. The Crown highlighted the loss of control once those images were sent to Hartley, and the risk of further dissemination of them, particularly when the offender knew that Hartley had paedophilic tendencies, and in particular, paedophilic tendencies for the victim AR.

53. Item 9 concerned the degree of planning involved. Whilst the offender acknowledged some planning inherent in the offending, the Crown submitted that the planning went beyond the objective seriousness of the offending and was an aggravating feature to be taken into account on sentence.

54. Item 11 concerned whether the offender acted alone or in a collaborative network of like-minded persons. The offender submitted that there was no network used in terms of a typical case, but rather, knowledge that there was some collaboration between the offender and Hartley. The Crown submitted that they were working in collaboration because he was requesting the material and therefore it comprised a “network”.

55. The Crown rehearsed its written submissions regarding the objective seriousness of the offending and moral culpability involved in each of the three offences, together with the aggravating features set out above. It submitted that the offender had tailored the images to what Hartley had requested of her, and that her moral culpability was increased by her knowledge that Hartley had specific paedophilic tendencies for her eight or nine year old daughter, and notwithstanding that, she sent the images to him.

56. On the question of the offender’s mental health issues, the Crown acknowledged the diagnosis of Borderline Intellectual Functioning, together with a diagnosis of Panic Disorder and Agoraphobia. However, the Crown submitted that the offender had insight into what she was doing was wrong, and notwithstanding that insight, and the consequences therefore, continued to use her daughter to make the child abuse material and disseminate it to Hartley.

57. The Crown submitted that there was no causal connection between the offender’s criminal behaviour, or alternatively, that any connection would be limited in that she was made vulnerable by her mental health diagnoses, to suggestions by Hartley. This was a factor which should go in mitigation, in that it gave some understanding as to why the offences occurred, but does not explain or justify the offending in any way.

58. The Crown submitted that the agreed facts established that the offender had engaged in online relationship for a few years prior to her arrest. The fact of her long-standing depression and/or anxiety did not lead to a causal connection of those conditions with the offending. She had no reduced capacity to understand the wrongfulness of her actions, notwithstanding she seemed to have no insight into the damage it could cause.

59. The Crown submitted there was a countervailing argument available for the protection of the community and the offender’s children, which should also be taken into account in assessing her risk of re-offending.

Submissions of the offender

60. Learned counsel for the offender also relied on a detailed and thorough outline of written submissions. It set out the principles that apply to child abuse material offences, including the factors referred to above arising from R v Hutchinson, supra.

61. The offender also set out principles applying to the assessment of the objective seriousness for sexual assault offences pursuant to s 66A. Here, it was noted that the form of intercourse was digital/vaginal, that the victim was at the upper end of the age range for the offence against s 66A, and that no force or coercion was used.

62. Whilst it was acknowledged that the offence pursuant to s 66A(1) was not charged as a representative count, it was not an isolated incident, and the court may have regard to the uncharged conduct of a similar nature as providing a proper context for the offence. That uncharged conduct, however, may not be taken into account as an aggravating factor so as to lead to the imposition of a higher sentence than would otherwise be imposed.

63. The offender also acknowledged the aggravating factors pursuant to s 21A(2)(eb) (committed in the home of the victim) and 2(k), (abusing a position of trust or authority in relation to the victim).

64. It was submitted that whilst in accordance with 2(l), the victim was vulnerable because she was very young, this was inherent in all of the offences and does not separately aggravate the objective seriousness. The court had to be careful not to double count in respect of the aggravating features.

65. In respect of 2(n), (planned or organised criminal activity), it was submitted as outlined above, that whilst there was some planning involved, it was rudimentary in nature and not such as to aggravate the seriousness of any of the offences.

66. The offender submitted that there were no mitigating factors set out in s 21A(3) that apply to the court’s determination of the objective seriousness of the offences. However, that objective seriousness was mitigated by the offender’s borderline intellectual functioning, as assessed by Dr White, and her mental diagnoses of Depression, Panic Disorder and Agoraphobia as diagnosed by Dr Dayalan. Dr Dayalan provided an opinion as to the causal connection of the offender’s mental health with her offending as follows:

“JS reports that she had been desperate for companionship around the time of the offences, given her depressed state of mind and limited social interactions due to her agoraphobia. She had found interactions with Mr Hartley to have assisted with her emotional distress. Her offending behaviour appears to be her effort to sustain this relationship rather than any paraphilic tendencies.”

67. It was submitted that the offender’s mental condition was relevant both because of the direct causative link with the offending, and also because they made her more susceptible to the encouragements of Hartley to engage in that offending conduct.

68. It was submitted that the offender’s mental condition, which must impact upon her moral culpability, was a matter to be properly taken into account when assessing the objective seriousness of her offending, relying on Biddell v R [2017] NSWCCA 128 at [68].

69. It was therefore submitted that the offender’s moral culpability was diminished and accordingly the court would make a corresponding finding in relation to the assessment of the objective seriousness of her offending. It was acknowledged that the offending was objectively very serious, given the nature of the offences committed and the breach of trust by the offender as mother of the victim. However, it was submitted that the court would characterise it as considerably less serious than would otherwise have been the case, had the offender not suffered from conditions which were causally related to the offending conduct.

70. It was submitted that the offender’s motive in committing the offences was unusual in that it did not derive from any desire to obtain a sexual gratification or financial reward for herself, but rather from her perceived need to meet the requests of Hartley in order that their online relationship might continue.

71. In respect to the child abuse material offences, the offender submitted that the objective assessment of the offences here were significantly less grave than many other examples of child abuse material offences with which the courts are regularly confronted. The offences were not accompanied by threats, violence, coercion or instructions to the effect that the victim was not to complain. Whilst it was acknowledged that the absence of such factors does not amount to a mitigating factor, their absence is nevertheless relevant to the determination of the objective seriousness of the offending.

72. The offending here concerned one victim and was disseminated to one individual only (the offender accepted that the offender would have no control over the recipient’s subsequent use of the material), however, the offender did not profit from the offences and did not retain the material in her own possession for her own sexual gratification. This last factor, allied to the causal connection between her mental condition and the offending, was submitted to render this case relatively unusual and to significantly mitigate what would otherwise be a very much more serious course of offending. Having regard to all of the above factors, it was submitted that the court would find the objective seriousness of the child abuse material offences fell below the middle of the range.

73. In assessing the objective seriousness of the child sexual assault offence (sequence 7), such assessment should have regard to the entirety of the facts and circumstances. The same factors as outlined above in relation to the child abuse material, in respect to the offender’s motivation in committing the offending, and the causal connection between it and her mental condition, applied to moderate the objective seriousness of this offence as well. It was submitted that the act of sexual intercourse involved digital penetration of a nine year old in circumstances devoid of coercion, threats or instructions not to complain, where the offender was herself not obtaining sexual gratification from the act and where her moral culpability was lessened by virtue of the causal link between the offence and her mental condition. The court would therefore find this offence falls at the lower end of the range of offences against s 66A.

74. The offender highlighted her subjective circumstances as set out at length in the reports of Dr White and Dr Dayalan. Relying on DPP (Cth) v De La Rosa [2010] NSWCCA 194, the offender submitted that not only was her moral culpability for the offending reduced, but that her mental difficulties meant that she was a less appropriate vehicle for general deterrence, whilst accepting this was a factor which must be still given some weight in the sentencing process. It was further submitted that it was likely that a custodial sentence would weigh more heavily upon her as a consequence of her mental conditions and in particular, her agoraphobia.

75. The offender highlighted that her motive did not include the indulgence of her own paraphilic tendencies, but rather those of the recipient of the material disseminated by her. Relying on Fedele v R [2015] NSWCCA 286, it was submitted that this was relevant to an assessment that the offender was unlikely to re-offend in this way.

76. As a mitigating factor pursuant to s 21A(3)(e), the offender did not have a record of previous convictions. It was submitted that pursuant to s 3(g), the offender was unlikely to re-offend and in accordance with 3(h), she had good prospects of rehabilitation. Further, a mitigating factor was the remorse shown by the offender for the offences as reported by Dr White in her report at page 6, and by Dr Dayalan in his report at page 3. It was, however, acknowledged that in relation to the child pornography offences, significant weight is to be given to general deterrence and correspondingly less weight to subjective matters relating to the offender, relying R v Porte, supra.

77. The offender submitted that a finding of special circumstances should be made based on the offender’s need to facilitate her rehabilitation, her mental health issues and the fact that it was her first time in custody.

78. It was conceded that no sentence other than full time custody was appropriate here, however, the offender was entitled to a 25% utilitarian discount for pleading guilty at the first available opportunity. She had been in custody since 23 August 2017 and any sentence should be backdated to commence on that date.

79. Finally, it was conceded that there should be some accumulation in the sentences to be imposed for the three offences, but that the principle of totality should be applied so that appropriate allowance should be made by way of concurrency to take into account that the three offences together formed a course of conduct.

80. In his oral submissions, learned counsel on behalf of the offender referred to the following three factors set out in R v Hutchinson, supra, as follows:

“(1) Item 4 – Here, only one child was involved. Whilst not seeking to minimise the offending, the court should look at the quantity of material and the number of children involved. Here there were a modest number of images compared to other cases that come before the courts of this type.

(2) Item 5 – The offender accepted the Crown submission in respect of that item.

(3) Item 6 – This item involved a consideration of whether the offender knew of Hartley’s circumstances, but in any event, was picked up by item 13 (namely, the risk of any material being seen or acquired by persons susceptible to act in the manner described or depicted).

81. Counsel submitted that Hartley’s antecedents (Ex C) were important for two reasons:

“(1) It was unclear whether the offender may have known about them.

(2) His prior record was for offences for possession of child abuse material rather than acting on paedophilic tendencies.”

This was an important distinction in the circumstances of this case.

82. It was submitted that Hartley had demonstrated an interest in child abuse material which lent weight to the offender’s case that she was led into the offending by Hartley. The genesis of the offending therefore squarely came from Hartley rather than the offender.

83. It was submitted that the offender’s mental health issues related both to the genesis of the offending and her moral culpability.

84. With respect to planning, it was submitted that this was necessarily an element in the offending, however, there was little sophistication in the planning over and above what is usually found in such offending. The evidence here demonstrated that the offender was not “making the running” with the offending, but rather she was responding to encouragement or suggestions from Hartley for the material, for the most part.

82. In respect of the text messages concerning fostering of girls for sexual purposes, it was submitted that this never occurred and whilst reprehensible and alarming, was really only talk. The offender was not to be sentenced in respect of those matters.

83. It was submitted that the offender was enthralled to Hartley and wanted to please him. Whilst they collaborated on the material, they did not constitute a network in the usual sense, other than a network of two.

84. Counsel submitted that the moral culpability of the offender here was significantly diminished by the material outlined in Exs 1 and 2. It explained how the offences came about and her connection with Hartley. It was also important to avoid double counting as moral culpability was really inherent in the offending conduct. The moral culpability of the offender’s conduct was relevant to the objective seriousness of the offending. Counsel accepted that there was no direct causal link between the offender’s mental health issues and the offending, i.e. it did not occur because she was depressed or of borderline intelligence, however, it still had a causative role to play because as a result of those conditions, she was suggestible, and that caused her to act when Hartley asked her do so. This was important to the genesis of the offending.

85. It was further submitted that whilst the offender had some insight, it was a rudimentary insight into the wrongfulness of her offending. Her mental health issues were enduring, and whilst they did not diminish her moral culpability to zero, it was lessened by virtue of her diagnoses.

86. Counsel submitted that it was inconceivable that the offender will be able to offend again when she should be assessed at a low risk of re-offending. There was therefore no weight to be placed on protection of the community in the sentencing process.

87. Counsel submitted that a finding of special circumstances should be made based on her mental health diagnoses, her need for significant rehabilitation and the fact that it was first time in custody, and she had no previous criminal antecedents.

88. Whilst the s 5 threshold had been crossed and given the application of general and specific deterrence, a full time custodial sentence should be imposed, it was submitted that all three offences were intrinsically linked and the principle of totality should be applied as the offending took place as one course of conduct which required some accumulation in sentence only.

89. In submissions in reply, the Crown submitted that in applying the R v Hutchinson, supra, factors, it was important not to double count any aggravating factors. The objective seriousness of the offending should be assessed not in a vacuum, but in respect of all of the circumstances of the case.

Determination

93. Section 3A of the C(SP)A 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.”

94. In assessing the objective seriousness of offences concerning the possession and dissemination of child abuse material, I have regard to the following factors set out in R v Hutchinson, supra:

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

In this case the material involved the victim AR, who was the natural daughter of the offender.

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

The victim was aged eight or nine years. The sexual activity portrayed included naked images of the victim, images of her vagina being manipulated open, images of the victim naked in suggestive poses and with her legs spread open, and images of her being penetrated by her mother’s fingers.

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

It was common ground that there appears to be no cruelty or physical harm beyond the offending conduct to the child in the images.

(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.

Here, there were 133 images of the same victim which were sent to Hartley on 23 separate occasions. I accept the offender’s submission that the number of images involved was modest compared to other cases of this type which come before the courts. Further, there was only one child involved.

(5) In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination.

It was common ground here that the offender’s purpose was to obtain and retain the attention and affection of Hartley. This was a way to please him and maintain an online relationship with him.

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

I accept the Crown’s submission that the offender only sent the material to Hartley, however, she thereby lost all control of the material. She knew of his paedophilic tendencies. The risk of the material being disseminated further is taken up by item 13 below.

(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.

There was no evidence here of payment or material benefit. The benefit to the offender was the attention and affection of Hartley.

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

Here, the offender was a person who produced the material and disseminated it, using her own child as the subject for the child abuse material.

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

I find that there was some level of planning here, particularly in respect of those images which were the subject of text messages in which Hartley made requests of the offender. Further, some level of planning was required to take images of the victim and disseminate them to Hartley of the offender’s own accord.

I do not accept the Crown’s submission that the deletion of the images by the offender bespeaks of a level of planning or organisation in producing the child abuse material. Rather, it bespeaks a consciousness of guilt on the part of the offender and a concern to avoid the consequences of her conduct.

Nor do I accept the Crown’s submission that the text messages about obtaining other girls, including fostering girls to produce further child abuse material, demonstrated a degree of planning or organisation. At no time did the offender act on those communications.

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

Here, the offender was in communication with an adult male she knew to have paedophilic tendencies who had expressed a desire to have sex with her eight or nine year old daughter, as well as other young girls. The child abuse material was disseminated to him for his sexual satisfaction.

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

It is clear that the offender worked with Hartley to produce and disseminate the material, however, the facts fall short of establishing that there was any further “collaborative network” involved in the offending.

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

I find that as the material was sent electronically, the offender no longer had control over it. There were therefore significant risks that the material would be on-sent, with the possibility of being seen by vulnerable persons, and in particular, by children.

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

I accept the Crown’s submission that the offender knew she was sending the images to a male with paedophilic tendencies who had openly told her that he wanted to have sex with her daughter and other underage girls. Despite that, the offender continued to send him child abuse material. By doing so, the offender demonstrated she did not care what happened to the images of her young daughter. I accept the Crown’s submission that she put her own emotional needs and wants above the welfare of her daughter, with no concern if the images would be shared among other persons or groups online.

95. I further accept that the following aggravating factors pursuant to s 21A(2) of the CSPA bear upon the objective seriousness of the offending:

• (2)(k) breach of trust and in addition, breach of the offender’s position of authority.

It is clear that there was a gross breach of trust by the offender as mother of the victim, who was eight or nine years of age when the offences took place. I find it is an additional aggravating factor here that the offending also constituted a breach of the offender’s position of authority as the child’s natural parent to engage in the criminal conduct.

• (2)(eb) the offences occurred in the home of the victim

• (2)(m) the offending conduct constituted a series of criminal acts over a period of time

• (2)(n) the offending did constitute part of a planned or organised criminal activity, however that planning was, as outlined above, somewhat unsophisticated.

96. The offender’s moral culpability in the offending was high. I accept the Crown’s submission that the offender was a willing participant in the offending in order to please Hartley and receive attention and affection from him. Not only did she send images of the victim at the instigation of Hartley, but she took a proactive approach in making and disseminating the child abuse material. Whilst her mental health issues may have rendered her easily suggestible, she was neither threatened nor pressured into the offending, but did freely engage in the communication by way of numerous text messages, not only about the images sent, but about sexual acts that she would engage in with Hartley. I further find that the offender knew that her conduct was both wrong and illegal.

97. Having regard to all of the circumstances of the offending here, and the factors relevant pursuant to R v Hutchinson, supra, I find that the offending in sequence 2 of disseminate child abuse material pursuant to s 91H(2) of the Crimes Act 1900, was within the mid-range of offending for that offence. The offender disseminated child abuse material of her own daughter who was eight or nine years of age to a person she knew had paedophilic tendencies.

98. I find that the objective seriousness of the offending in sequence 6, use child under 14 years to make child abuse material pursuant to s 91G(1)(a) of the Crimes Act 1900 was also within the mid-range for an offence pursuant to s 91G(1)(a). The offending took place over a period of over two months and involved the offender’s own daughter aged eight or nine years. It was clearly serious offending involving a gross breach of trust and a breach of her authority over her daughter.

99. Consideration of the objective seriousness of the offending in sequence 7, sexual intercourse with a child under the age of 10 years, pursuant to s 66A(1) of the Crimes Act 1900, involved a consideration of all of the circumstances of the offending. There is no hierarchy of the type of sexual intercourse involved. Here it was digital penetration of the offender’s own daughter’s vagina for the purpose of making the child abuse material. Whilst sequence 7 is not a representative charge, the agreed facts outline that this happened on a number of occasions. Whilst it was not done for the offender’s own sexual gratification, it was done for her own benefit, to the extent that she perceived that it would benefit her by attracting Hartley’s affection and attention to her. It constituted a gross breach of trust and a breach of her authority as the mother of her daughter, and constituted predatory and depraved behaviour. Section 66A does, however, cover a very broad range of criminal behaviour involving sexual assaults on children. Having regard to all of the circumstances here, I find that the offending was below the mid-range for an offence pursuant to s 66A(1), however, it was just below the mid‑range and towards the top of the lower range for such offence. It still constituted most serious offending.

100. I have regard to the maximum penalty for the offence pursuant to s 91H(2) (sequence 2) of 10 years imprisonment. I have also had regard to the maximum penalties for sequence 6 of 14 years imprisonment and a Standard Non-Parole Period of 6 years imprisonment, and sequence 7, a maximum penalty of life imprisonment and the Standard Non-Parole Period of 15 years imprisonment. The maximum penalties, and Standard Non-Parole Periods in respect of sequences 6 and 7 as set out above, are guideposts in the sentencing process.

101. General deterrence and denunciation are important in the sentencing process here. A clear message must be sent to like-minded persons in the community, that the court will impose condign punishment for sexual offences involving sexual intercourse with persons under the age of 10 years. The most vulnerable members of our community must be protected from this type of criminal conduct. The courts have long recognised the trauma caused to victims of child sex offences, both physical and psychological, and its duration in some cases, over a lifetime. Whilst for obvious reasons there is no Victim Impact Statement here, the harm caused to the victim must loom large in the sentencing process pursuant to s 3A(g) of the CSPA – see R v Gavel [2014] NSWCCA 56 at [104] – [112].

102. In R v Booth, supra, Simpson J said as follows in respect of the exploitation involved, and damage done to children in respect of offences pursuant to s 91H:

“41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

42 What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) it provides further encouragement to expand their activities to those who create and purvey the material.”

103. Specific deterrence is also important here. The offender must understand the very serious nature of her offending, which involved a pernicious abuse of the trust placed in her as a parent of the victim, and preyed on the victim’s vulnerability when she, as a young girl, had no capacity to resist or protect herself.

104. I accept that the offender has been diagnosed with borderline intellectual functioning, together with a Panic Disorder and Agoraphobia. However, I accept the Crown’s submission that there was no causal nexus between those diagnoses and the offender’s criminal conduct. Rather, they may be taken into account in mitigation by way of explanation of her conduct, which made her more susceptible to the encouragements of Hartley to engage in the offending conduct. I accept the offender’s submission that her motive for committing the offences did not derive from any desire to obtain a sexual gratification or financial reward for herself, but rather, from her perceived need to meet the requests of Hartley in order that their online relationship might continue.

105. The absence of a record of previous convictions by the offender is a matter of insignificant weight, given the nature of the offences here. I do, however, find that she is unlikely to reoffend, and she has good prospects of rehabilitation.

106. As the offender did not give evidence, the subjective matters set out in Exs 1 and 2 must be viewed with some caution. I do, however, find that she has expressed to others some remorse for her offending conduct which is also indicated by her early plea of guilty which will entitle her to a 25% utilitarian discount on sentence.

107. Having regard to the offender’s mental health issues, I make a finding of special circumstances pursuant to s 44(2) of the CSPA, based on her mental health diagnoses, her need for significant rehabilitation and the fact that this is her first time in custody.

108. I find that the s 5 threshold has been crossed, and no other punishment other than a full-time custodial sentence should be imposed.

109. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. Before I do so, I will indicate the indicative sentences in respect of each offence and the non-parole periods in respect of those offences which carry Standard Non-Parole Periods. This involves transparency in the sentencing process. In arriving at the indicative sentences, I have taken into account the objective seriousness of each offence, as set out above, the 25% utilitarian discount on sentence, and the subjective factors set out above.

110. The indicative sentences are as follows:

1. Sequence 2 – disseminate child abuse material pursuant to s 91H(2) of the Crimes Act 1900 – 2 years and 6 months imprisonment.

2. Sequence 6 – Use child under 14 years to make child abuse material pursuant to s 91G(1)(a) – 3 years imprisonment with a non-parole period of 1 year and 6 months.

3. Sequence 7 – Sexual intercourse with a child under the age of 10 years pursuant to s 66A(1) of the Crimes Act 1900 – 6 years imprisonment with a non-parole period of 4 years imprisonment.

111. In aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be just and appropriate to the totality of the offending behaviour.

112. In R v Van Ryn [2016] NSWCCA 1, supra, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentences for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

113. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“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.”

114. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

115. The offending took place over a matter of months, and involved a gross breach of trust and of authority by the offender over her daughter and involved digital penetration of her eight or nine year old daughter. Some accumulation is therefore necessary to reflect the totality of the criminality involved in the offending here.

116. I have, however, found special circumstances pursuant to s 44(2) of the CSPA and therefore I am prepared to vary the standard ratio of head sentence to non-parole period. I intend to sentence the offender to an aggregate sentence of 9 years imprisonment, with a non-parole period of 5 years. The non-parole period will commence on 23 August 2017.

Orders

117. I make the following orders:

1. You are convicted of the following offences:

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

(2) Sequence 6 – Use child under 14 years to make child abuse material pursuant to s 91G(1)(a) of the Crimes Act 1900.

(3) Sequence 7 – Sexual intercourse with a child under the age of 10 years (DV) pursuant to s 66A(1) of the Crimes Act 1900.

2. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA 1999 of 9 years imprisonment.

3. I sentence you to a non-parole period of 5 years to commence on 23 August 2017 and to terminate on 22 August 2022.

4. I sentence you to a balance of sentence of 4 years imprisonment, to date from 23 August 2022 and to terminate on 22 August 2026.

118. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 22 November 2018