R v Khqustiaan

[2022] NSWDC 128

District Court

New South Wales

Medium Neutral Citation:

R v Khqustiaan [2022] NSWDC 128

Hearing dates:

22 April 2022

Date of orders:

27 April 2022

Decision date:

27 April 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 87

Catchwords:

SENTENCING – federal offence – use of carriage service to transmit child abuse material – consideration of Minehan factors - whether ‘exceptional circumstances’ arise which require offender’s immediate release on recognisance - Crimes Act 1914 (Cth) s 20(1)(b)(iii) - consideration of comparable cases

Legislation Cited:

Crimes Act1914 (Cth) ss 16A, 16B, 16F, 19AC, 19AF, 20, 20AA, 23ZD

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020

Crimes (Sentencing Procedure) Act1999 (NSW) s 21A

Criminal Code1995 (Cth) s 477.22

Cases Cited:

Bugmy v R (2013) 249 CLR 571

Chenhall v R [2021] VSCA 175

Dousha v R [2008] NSWCCA 263

DPP (Cth) v CCQ [2021] QCA 4

Gifford v R [2016] NSWCCA 302

Hili v The Queen (2010) 242 CLR 520

Imbornone v R [2017] NSWCCA 144

MinehanvR (2010) 201 A Crim R 243

Olbrich v R (1999) 199 CLR 270

R v Cunningham [2006] NSWCCA 176

R vDe Leeuw [2015] NSWCCA 183

R v Gent (2005) 162 A Crim R 29

R v Houweling [2021] NSWDC 293

R v Hutchinson [2018] NSWCCA 152

R vJones [2021] NSWDC 478

R v Pedersen [2021] NSWDC 535

R vPG [2020] NSWDC 144

R v Porte [2015] NSWCCA 174

R v Talbot [2009] TASSC 107

R v Young [2021] SASCA 51

Totaan v R [2022] NSWCCA 75

Young v The Queen [2021] SASCA 51

Texts Cited:

Nil

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions
Mr D Khqustiaan (offender)

Representation:

Counsel:
Ms D New for the CDPP
Mr A Wilson for the offender

Solicitors:
Mr P Agoth for the CDPP
Mr Djurichkovic for the offender

File Number(s):

2020/00229499

Publication restriction:

Nil

SENTENCING REMARKS

BACKGROUND

1. On 10 December 2021, following a 5-day trial I presided over in Parramatta, a jury returned a verdict of guilty against the offender to the charge that on 3 August 2020, at Bankstown and elsewhere in New South Wales, he transmitted child abuse material on a carriage service, contrary to s 477.22(1) of the Criminal Code1995 (Cth). The offender is now before the Court for sentence.

2. This federal offence carries a maximum penalty of 15 years’ imprisonment.

3. The principles for a sentencing judge to apply in relation to factual findings following a jury verdict of guilt are well established. Some facts relevant to the sentencing exercise have effectively been decided by the jury’s verdict. This includes the essential elements of the offence. Generally, for other facts, where facts are suggested as being adverse to the offender’s interests, they must be proved beyond reasonable doubt; and where there are facts urged upon the Court in mitigation, it is sufficient that they be established on the probabilities: Olbrich v R (1999) 199 CLR 270 at [27]).

4. The parties agreed in this sentencing hearing that, in the way the trial was conducted, the only real question for the jury for its determination was whether it was the offender who engaged in the offending conduct.

5. For a federal offence, the offender is to be sentenced in accordance with the requirements of the Crimes Act1914 (Cth) (the Act). In particular, the sentencing judge must, to the extent relevant, take into account the matters referred to in s 16A of the Act.

Nature and circumstances of offending

6. As was the case at the trial, there was little real dispute about the facts for sentencing purposes, which not only derive from the agreed statement of facts at the trial, but are partly also reflected in the Crown’s statement of proposed facts which was contained in the Crown sentencing bundle (Exhibit A).

7. Australian Federal Police received information from their New Zealand counterparts that a NZ resident had received troubling messages on a ‘Snapchat’ platform using an alias ‘Tom’. An Online Covert Operative assumed an alias (‘Caleb’) engaged in an online chat with ‘Tom’ with a username ‘cjversace’.

8. This information was conveyed to AFP and an Australian OCO received a handover brief. Part of that involved Caleb tracing the thread of messages from the NZ OCO and ‘Tom’. ‘Caleb’ inferred certain language patterns and other matters which Caleb used when, on 3 August 2020, Caleb commenced to engage with ‘Tom’; adopting that alias, and simulating the appearance that ‘Tom’ was engaging with the same person. ‘Tom’ messaged ‘Caleb’ using the encrypted messaging application called ‘Signal’.

9. By its verdict, the jury determined that the offender was ‘Tom’.

10. On 3 August 2020, the offender, using the alias ‘Tom’, a person used a mobile phone number [phone], being connected with the Vodafone network, sent 6 videos to the Australian OCO.

11. The descriptions of those videos (in the Crown’s proposed statement of facts contained in Exhibit A), and the relevant category of Interpol child abuse material ^[1] , which the offender did not dispute, were:

    1. The INTERPOL Baseline categorisation system is a four-category system used by the New South Wales Police

Video Number	Description	Interpol Baseline Category
1	Video fifty-eight seconds in duration showing an adult male forcing his penis into the mouth of a nude male aged about 14 years of age.	2
2	Video one minute and thirty seconds in duration showing an adult male performing oral sex on a prepubescent child aged about 4 years of age. The adult then lies back and has the child perform the same act on the adult male. The camera is focused on the genitals.	1
3	Video five seconds in duration showing an adult male holding and grabbing the exposed buttocks of a child aged about 5 years of age lying in a bed.	1
4	Video four seconds in duration showing an adult male pulling down the pants of a child aged about 5 years of age who is lying in bed, and playing with the child’s penis with his finger. The child’s upper body is not in frame.	1
5	Video fourteen seconds in duration showing a close up of a male child aged about 5 years of age lying in a bed with his genitals exposed. An adult male leans into the picture and licks the child’s penis.	1
6	Video five seconds in duration showing a close up of an adult hand on the exposed leg of a nude 5-year-old male child lying in a bed.	1²

12. It was agreed at trial that all of this material constituted ‘child abuse material’.

The Court’s inspection of a sample booklet of photographs depicting the videos

13. In R v Hutchinson [2018] NSWCCA 152 RA Hulme J (Meagher JA agreeing) observed at [49]-[50] that the in the vast majority of cases, a written description would provide sufficient description for the Court of the “relevant perversion and debauchery of the pornographic material” to obviate further harm to victims through the inspection by lawyers and sentencing judges. However, prior to the sentencing hearing, the Crown indicated its desire for me to see a sample booklet of photos of certain stills of these videos. At the sentencing hearing, there was some brief argument before me as to the necessity and desirability of me looking at the sample. Ms Crown submitted that the agreed description of video 1 did not convey the child’s age nor the ferocity or dominance evinced by the adult; and that the agreed description of video 5 did not sufficiently indicate that an adult was giving a young child oral sex; or the comparative body size of adult and child. The Crown urged that I inspect this material in response to the offender’s submissions on the gravity of the offending, which had emphasised the relatively small volume of the images, as distinct (in the Crown’s view) as to the content of the videos.

14. The offender’s Counsel indicated that he did not oppose the course of my inspecting the booklet, although he indicated concern that my visual impressions may exceed, in some way, the description of what was depicted in the agreed facts at trial. He also indicated that he had not seen the sample booklet himself (the Crown later noted that there was only one copy of it) ^[2] . In light of that indication, the Court offered the offender’s Counsel the opportunity to look at the booklet himself and make any supplementary submission he wished to supply. But by the conclusion of the sentencing hearing, and without any further elaboration by Ms Crown as to the content of the booklet in her submissions in response, Counsel for the offender changed his mind, and indicated that it was unnecessary for him to inspect the booklet himself before I did. He did not suggest that, by himself being deprived of the opportunity to inspect the material personally, it was no longer appropriate for me to look at it. Neither the Crown nor the offender’s Counsel submitted that I should view the actual videos themselves.

    2. He did not indicate whether or not he had seen the actual videos themselves.

15. It was in these circumstances that I inspected the booklet (MFI 3).

16. On the same day, at about the time that certain videos were transmitted the offender sent to Caleb texts which included the following:

1. “Want some young cock”;

2. “U crAvn da young dick g”

3. “Want his young mouth g”;

4. “damn id love to watch u wif a 5yo aye”;

5. “play with his dick”, “suck it”, “rim him”.

6. In response to a question by “Caleb” the offender replied: “Mah bro sucked his 6 yo borther lastnite. Was hot asf”

17. These texts also amounted to child abuse material, but in the way that it was utilised by the Crown, it was to establish a course of conduct and proof of an asserted sexual deviancy in the offender which elevated specific deterrence and diminished the offender’s rehabilitation prospects.

18. The offender was arrested on 6 August 2020. He participated in an electronically recorded interview during which he denied that he was “Tom” on the 051 number who sent child abuse material on the Signal application. The offender suggested his phone was used by other members of his family and that his nephew may have used his phone and sent the child abuse material. The offender denied recognising the 51 number.

19. The Crown has set out in in its written submissions (located within Exhibit A, paragraphs 11-20) the details of the investigation undertaken in its quest to identify ‘Tom’. The Crown submitted, and I accept, that the investigation established that the offender used a different phone from his personal phone, used a phone number not subscribed to him, used an encrypted messaging application and created a false name and profile, ‘Tom’.

20. Evidence which the Jury accepted indicated that the material was transmitted on a Samsung mobile phone J9. By their verdict, the Jury found that the offender used this phone to transmit this material.

21. At trial, the Crown had led evidence that the offender had at least two other phones, a Samsung S10 and Samsung J2Pro in his possession or control. Those phones, along with the Samsung J9 phone, were all seized by AFP agents who had executed a search warrant at the offender’s residential address in Bankstown on 6 August 2020. It was not suggested that child abuse material was located on these other phones.

Moral culpability

22. The offender relied at the sentencing hearing on the report of a psychologist, Mr Chafic Awit, who reported on 3 February 2022, which referred to certain circumstances and events in the offender’s life and contained diagnoses of his mental condition.

23. Two preliminary points may be made in my assessment of Mr Awit’s evidence. First, Mr Awit has been a practising psychologist for 13 years. His curriculum vitae was annexed to his report and, amongst other things, he indicated the types of issues he assisted his clients with during his career as a psychologist. It is pertinent to note that amongst the disorders he treated patients for, there was no reference to sexual dysfunction or deviancy in clients that he treated. I raise this point not in criticism of Mr Awit’s report, but by way of explanation or context for omissions in his report on the question of sexual deviancy in the offender. Secondly, based as Mr Awit’s report is upon statements made by the offender out of court, those statements being insusceptible of testing, I approach them with an instinctive circumspection ^[3] .

    3. Imbornone v R [2017] NSWCCA 144 at [57]

24. I refer, at greater length, to the offender’s childhood disadvantage, manifested by his reported suffering of child sexual and physical abuse, later in these remarks when addressing his subjective case. Mr Awit considered that the offender had suffered from moderate depression and severe anxiety in the lead up to his offending. There are cases, of course, of which Bugmy v R (2013) 249 CLR 571 is pre-eminent, where an offender’s childhood disadvantage may contribute materially to offending in the sense of reducing the offender’s capacity to exercise his or her critical faculties. Awful as the position is that the offender was himself the victim of child sexual abuse, for that matter to have salience on the question of his moral culpability, the Court would expect demonstration that such experience contributed to the offending: R v Cunningham [2006] NSWCCA 176 at [67]; Dousha v R [2008] NSWCCA 263 at [47]. Mr Awit did not elucidate how ‘childhood disadvantage’, or more particularly, traumatic events observed or experienced by the offender, was linked to the development of sexual deviancy. I agree with the Crown’s submission that there was therefore no evidentiary foundation for the proposition that the offender’s own childhood disadvantage, encompassing his own child sexual abuse or physical abuse perpetrated upon him, was causally connected to the subject offending.

25. It is pertinent to note, at any rate, that notwithstanding such disadvantage as he may have sustained, the offender was capable of functioning to such level of completing two years of a combined law degree in New Zealand, and thereafter partly commenced a Diploma. Further, his employment career has remained relatively constant; albeit in different jobs. Further still, he had shown enough self-control and judgement as to be capable of ceasing his illicit substance use in his early 20s, until relapsing after his mother passed away when he was 25, before stopping again a year later. It was not for nothing that, for other sentencing purposes, his Counsel argued that the offender was the effective leader of a large Polynesian family.

26. In relation to the mental conditions expressly indicated by Mr Awit, it is by no means self-evident that a person with depression or anxiety would gravitate towards the subject offending. I will return later to the sources of anxiety and depression when addressing the offender’s subjective case. The circumstances of the offending indicated some sophistication and pre-planning to the extent of taking steps to avoid detection and it is difficult to discern anything impeding the exercise of his critical faculties.

General principles for weighing the objective gravity of the offending

27. The New South Wales Court of Criminal Appeal in Minehan v R (2010) 201 A Crim R 243 (at [94]-[95]) outlined relevant matters affecting the objective seriousness of offending for offences including the transmission of child pornography. Those principles were later substantially adopted by RS Hulme J (Meagher JA and Button J agreeing) in relation to cognate federal offences in the Court of Criminal Appeal’s decision of R v Hutchinson [2018] NSWCCA 152 at [45]. The parties substantially agreed, in relation to how those factors applied to the facts in a transmission case, being relevantly as follows:

1. whether actual children were used in the creation of the material – here, the material, and other messages about performance of sexual acts, involved actual children.

2. the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed – here, the material depicted very young children (around 4 or 5 years old) in 5 of the 6 videos transmitted, and a teenage boy in the sixth video.

3. the extent of any cruelty or physical harm occasioned to the children that may be discernible from the material – there is no particularly heightened degree of cruelty or physical harm apparent from the material.

4. the number of images or items of material – in this instance there were a limited number of images and (at least 6) children involved.

5. the Crown argued that the purpose of transmission was the offender’s sexual gratification. The offender described the motive only in negative terms: that the offending was not engaged in as part of any commercial enterprise.

6. the number of persons to whom the material was transmitted was limited to one person ‘Caleb’.

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 is no evidence of any payment here. The point of transmission was to send the material for a common interest in the sexual abuse of children.

8. the proximity of the offender’s activities to those responsible for bringing the material into existence – this is a neutral factor.

9. The age of any person whom the offender was in communication with - this is not applicable.

10. the degree of planning, organisation, sophistication and/or deception employed by the offender in transmitting the material – here, the Crown argues that there was considerable planning, given the different phone used, different SIM card, mobile number not subscribed to the Offender, using an encrypted messaging application, using a fake display name within that application, namely “Tom.” The offender argues that there was no pre-planning, with no high degree of sophistication in planning.

11. whether the offender acted alone or in a collaborative network of like-minded persons – the offender acted alone.

12. any risk of the material being seen or acquired by vulnerable persons, particularly children – the Crown accepts that the child abuse material was stored discretely.

13. any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted – there was no risk.

14. any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act1999 (NSW) (for State offences) or s 16A Crimes Act 1914 (Cth) (for Commonwealth offences) bearing upon the objective seriousness of the offence – addressed further below.

28. The qualifications to the agreement as between the parties to these factors lies in factors (e) and (j) above, which differences I will resolve momentarily.

29. In R vDe Leeuw [2015] NSWCCA 183, the Court of Criminal Appeal (Johnson J, with Ward JA and Garling J agreeing) determined (at [72]) other principles applicable to child pornography offences, beyond the matters bearing upon the objective gravity of such offending, in the context of sentencing for state and federal offences, relevantly as follows (citations omitted):

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

……

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

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

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

(6) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet.

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

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

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

30. General observations of sentencing principle in authorities concerning child pornography offences, although of some illumination, do not, however, displace the statutory requirements in the Act. Thus, it is not correct, when sentencing for a federal offence, to ascribe any hierarchy to the relevant sentencing considerations within s 16A: Totaan v R [2022] NSWCCA 75 per Bell CJ (Gleeson JA, Harrison J, Adamson J and Dhanji J agreeing) at [83] and [100].

Assessment of objective gravity of the offending

31. The offender did not dispute, and I accept, the Crown’s submissions that:

1. five of the six videos the offender transmitted involved male boys 4 and 5 years of age and the sixth video involved a 14-year-old boy, all of them being sexually abused by adults. I agree with the Crown that at least in relation to video 1, the still evokes an adult male’s domination towards a helpless child in forcing the sexual activity;

2. the victims were vulnerable. In particular, the 4 and 5-year-old boys were of an age where, the Court can infer they would not have understood the sexual acts they were involved in and were trusting of the adults in their company. The adults in those videos exploited each child’s vulnerability and took significant advantage of the children;

3. the offender knowingly transmitted this child abuse material and celebrated the obscene abuse of these children with messages immediately before and after the videos, stating “Wantsome young cock”; “U crAvn da young dick g”, “Want his young mouth g”; “damn id love to watch u wif a 5yo aye” and “play with his dick”, “suck it”, “rim him”;

4. the offender’s transmission of child abuse material involved more than just sending videos. It included the above messages sent to the Caleb and the message to Caleb about what the offender did to a 6 year old boy (“Mah bro sucked his 6 yo brother lastnite. Was hot asf”);

5. on the Interpol Categorisation System, five of the six videos of child abuse material the offender sent (and celebrated) were in the most serious category; and

6. the offender went to considerable effort to conceal his offending. This evidences the degree and knowledge of his culpability:

1. he used a different phone from his personal phone;

2. he used a phone number not subscribed to him;

3. he used Signal messaging application which is an encrypted messaging application; and

4. he created a false profile and display name - “Tom”

32. The Crown submitted that the nature and content of the videos and messages, said to betoken a ‘celebration’ of the sexual abuse of children led to the irresistible inference that the offender had a sexual interest in children and that it was this which motivated the offending. In this way, his motive amplified the force given to specific deterrence and community protection (Young v The Queen [2021] SASCA 51 (“Young”) at [31]-[34]).

33. The offender submitted the videos could not be considered to be the worst type of child pornography. They did not involve gratuitous violence in addition to the sexual abuse of children. There were only 6 videos transmitted within what was not a long period of time. The transmission was not undertaken for commercial purposes.

34. It is not strictly necessary to ascribe where within the scale of objective offending lies for this federal offence. It may be useful, however, as a gauge of the Court’s assessment of the objective gravity of the offending. I take cognisance that the ‘rolled up’ nature of the offending (multiple videos each of which could, individually, establish separate offences), which generally inheres in the prosecution of this type of charge, the very serious nature of the category of the material in the videos, as described with the benefit (if it be called that) of inspecting the sample booklet photographs, the youth of the children depicted and the steps that were taken by the offender to conceal detection of his offending. However, the transmission all occurred on the same day, and to the same person. Notwithstanding the force exerted to impel the sexual activity depicted, there was no additional cruelty or violence inflicted upon the child victims. No monetary benefit was obtained by the offender through the transmission. I accept the offender’s submission that the volume of what is transmitted is important, even for a rolled – up charge. In that sense, the amount of child abuse material transmitted was relatively small. But I also take heed of the point raised in Young at [65] that even in circumstances where what is transmitted is a small number of images, the decision to transmit to a third person (who was presumed to be a paedophile) and the dissemination of it elevates the objective gravity than it if was simply a case of accessing for private consumption. I acknowledge, of course, that the person to whom the material was transmitted was not a paedophile, but that was not something anticipated by the offender. Having regard to the content of the videos and the content of the texts which provided context for the transmission of the videos, with a qualification, I accept the Crown’s submission that they betokened the offender’s sexual interest in children, and that his motive in transmission was to gratify that interest. The qualification is that his interest was in young male children specifically. There was nothing in the video material or the surrounding texts to indicate a sexual interest in young female children. I also accept that the offender went to significant lengths to try to conceal detection, and in in this way, there was a substantial level of planning. This last matter makes the offending more serious: R v Talbot [2009] TASSC 107 at [9].

35. As I have indicated, although it is not necessary to identify where along the scale the objective gravity this offending fell, I would regard it as falling within the mid-range, but towards the lower part of it.

General deterrence and adequacy of punishment

36. I have noted the weight accorded to these considerations in the authorities earlier identified. General deterrence is a very important consideration for offending of this type. The offences are typically difficult to detect.

37. The offender did not dispute the significance of general deterrence as a factor for the subject offending. He submits that general deterrence is sufficiently served if he was subject to immediate release on a recognisance order, or recognisance after a period of incarceration.

38. I take into account the maximum penalty for the offence, reinforcing the extremely serious nature of the offending. I agree with the Crown’s submission that to fail to adequately punish the offender would undermine society’s moral rebuke of the exploitation of children for others sexual gratification.

Harmful impact upon victims

39. The Crown acknowledged that the offender did not actually meet the victims. But the Crown correctly pointed out that this does not lessen the objective seriousness of the offending, or the harm caused to them (Gifford v R [2016] NSWCCA 302 at [106]). The offender’s Counsel pointed out that no victim impact statement was before the Court. But that is beside the point. Given the apparent age of the victims depicted in the videos, it is fanciful to expect such statements to be received. As the Crown correctly submitted, there is a vital public interest objective in promoting the protection of children from being sexually abused in order to supply the market, and from suffering an additional layer of trauma living with the knowledge that images of their abuse exist in perpetuity and may resurface at any time: R v Porte [2015] NSWCCA 174 at [69]-[70].

SUBJECTIVE CIRCUMSTANCES

Contrition or remorse

40. In a sound-recorded record of interview and by his plea of not guilty, the offender protested his innocence.

41. He went so far as to tell the community corrections officer that he believed that he had been ‘set up’ for the offending. It appears, from the offender’s father’s written reference, that the offender conveyed this belief to his father.

42. The offender said very little, and then only in an out of court statement to the community corrections officer, expressing concern about the content of the videos found on his device other than an anodyne expression of ‘concerns for the victims of these crimes’. I agree with the Crown that it was striking that for someone like the offender, who professed himself to be a victim of child sexual abuse, could not find any more empathetic statement consistent with his declared position of innocence. I am unable to accept that he has real insight into the harm caused to the child victims by his conduct.

43. The absence of contrition does not aggravate the offending, but it diminishes the case for leniency or the force of specific deterrence to the sentencing exercise that would ordinarily apply. As I will remark momentarily, it also presented a difficulty for the offender on the question of his rehabilitation prospects.

Character, antecedents, age, means and physical or mental condition of offender

44. The offender was nearly 32 years of age at the date of the offending.

45. He has not had much of a criminal history up to the offending, generally concerning driving offences, although there was a single conviction for common assault. He has no past history for anything like the subject offending. A modest measure of leniency should be accorded: it is not the case that his dearth of (relevant) prior convictions assisted him to offend.

46. The offender relied upon written testimonials from his father and a case manager who worked with him at the State Insurance Regulatory Authority and had known the offender since 2016. The former adopted a defiant tone: questioning the Jury’s determination of his son’s guilt. Aside from having some value in terms of the offender’s background, I did not regard the father’s reference as persuasive as to his good character. The reference from the co-worker might also be thought as canvassing the Jury’s verdict, if expressed less defiantly than the father’s. Be that as it may, I accept that her reference carries some weight as to the working capacities of the offender and provided some evidence of his prior good character. Nevertheless, as noted in the authorities alluded to, prior good character has little if any weight for offending of the subject kind ^[4] .

    4. R v Gent (2005) 162 A Crim R 29 at 44, [65]; Mouscas v R [2008] NSWSC 181 at [37]

47. I referred to Mr Awit’s report earlier in these remarks. The report speaks of the offender being a child of a large family, with 9 siblings. He moved to Australia from New Zealand when he was 8 years of age. He reported the offender’s disclosure that he grew up with a father with a violent and criminal background (including association with crime gangs) who had sustained child sexual abuse in New Zealand. Alcohol was a contributing factor. The father reportedly brought fear and unrest into the household and the offender reported feeling frightened and constantly in fear of failing in his father’s eyes. To some degree, this abated when the family moved to this country, but the marital relationship remained rocky. The difficulties in the marriage resulted in the offender being raised by his grandparents.

48. The offender reported to being a victim of sexual and physical abuse himself as a child. The sexual abuse started at the age of 5, emanating from his cousins, often when he returned to New Zealand for visits. He reported being subject to physical or verbal abuse from the age of 4 as well as bullying from within the family through to early adulthood.

49. He had an early exposure to alcohol even before he became a teenager. He was introduced to cannabis from 15. The offender reported to Mr Awit that he used cannabis as a coping mechanism, although the psychologist reported his being capable of ceasing drugs when aged 23, until his relapse following his mother’s death, when he was 25. That was 7 years before the subject offending and he told Mr Awit that he was capable of stopping again, a year later, with the support of close relatives and friends. Conspicuously, Mr Awit did not identify any alcohol or substance abuse disorder amongst his diagnoses. As already remarked upon, Mr Awit did not address the offender having any sexual deviancy disorder, notwithstanding the offending.

50. The offender informed Mr Awit that he identifies as being bisexual. He disclosed that he had had relationships with men and women.

51. At the time of his arrest, the offender was unemployed and in receipt of Centrelink benefits.

Likelihood of re-offending & rehabilitation prospects

52. The Court must have regard to an objective of rehabilitating the Offender, including whether it is appropriate to impose conditions about rehabilitation or treatment options and, if a non-parole period is imposed, sufficient time for the Offender to undertake a rehabilitation program: s 16A(2AAA) of the Act. But for a crime of this nature, this concern is hardly predominant in the sentencing exercise.

53. There is self-evident force to the Crown’s submission that for offending of this kind, an offender who seeks out treatment and who evinces an intention to commit to continuing with remedial treatment may likely be attributed with having greater prospects of rehabilitation than an offender who does not (R v Young [2021] SASCA 51 at [31]). Consistently with his belief in his innocence, the offender has not sought out treatment to deal with his sexual interest in young male children or, indeed, specifically, any lingering effects from the child sexual abuse perpetrated upon him, to the extent that this had any role in his offending; a matter which, as previously remarked, was not apparent in the evidence before me.

54. The offender informed his psychologist that he had attended a psychologist for an unidentified period of time after his mother’s death, when he was told that he was suffering from panic attacks and had also been prescribed Valium.

55. Mr Awit identified several features of a treatment plan, none of which were directed to sexual recidivism, whilst eschewing any opinion as to the offender’s willingness or ability to engage in it. The offender indicated to the community corrections officer who prepared the sentencing assessment report that he was willing to engage in intervention. However, there is no evidence of the offender using the time whilst he has been on bail to seek out special treatment for his sexual interest in young male children.

56. In the sentencing assessment report, it was also recorded that the offender told the community corrections officer that his father and siblings were pro-social supports. I have noted the father’s continued support of the offender through his provision of a written reference.

57. Up to the trial, the offender has complied with his bail conditions since his arrest until the determination of his guilt. There has been no subsequent breach and the Court was informed, without contradiction by the Crown, that he has complied with the conditions of an ICO imposed in relation to unrelated offence(s).

58. The community corrections officer opined that he was at a medium risk of re-offending, applying the LSI-R scale, however, community corrections overrode that assessment of risk after reviewing the results of an NSW Community Services clinical psychologist’s consultation with the offender and the application of the Static-99R Assessment to ‘Medium-High’. The latter form of assessment appears more specifically geared towards assessing the risks of sexual re-offending and although it had the limitation of an absence of a face-to-face consultation, I also place greater weight upon the results of that assessment than the assessment conducted according to the LSI-R scale. This elevates the Court’s concern to protect the community.

59. The offender submitted that he had good prospects of rehabilitation, evidenced by his willingness to engage in intervention and community service work, his substantial employment history and his abiding by bail conditions and conditions to his ICO. If released, it was proposed that he would be subject to Mr Awit’s treatment. I do not accept this submission. I accept the Crown’s submission that the inherent content of the videos that were transmitted, seen in the context of the text messages, evinces a sexual interest in young male children and the offender’s denial of that interest, which explains his omission to receive treatment for it, casts real doubt upon his effective rehabilitation. This is so notwithstanding his purported willingness to engage in intervention which, as envisaged by the corrections officer, would see his referral to a CNSW psychologist.

60. I regard the offender’s rehabilitation prospects as, at best, guarded.

Specific deterrence

61. I have noted the emphasis placed upon this consideration in the authorities I have identified.

62. I have referred to and accepted the Crown’s submission as to the offender’s motive for the offending, being a sexual interest in young male children. That finding, coupled with the absence of evidence indicating any desire to seek out treatment, elevates the force of specific deterrence, subject to the next two topics I address in these remarks.

Hardship to family

63. It was submitted that by virtue of his position, in age, in a large Polynesian family, and also his superior background in educational attainment and employment history, it would be expected that the offender is expected to support that family and, inferentially, it was argued that a term of imprisonment would create hardship to the family. His Counsel suggested, tentatively, that there may have been some financial support supplied in the past, though he could not put a figure on it.

64. Recently, in Totaan v R [2022] NSWCCA 75, the Court of Criminal Appeal discarded the requirement for proof of ‘exceptional hardship’ as an effective precondition to admit this consideration as a mitigating factor under s 16A(2)(p) of the Act.

65. However, the offender’s difficulty is that the evidence does not go beyond a generalised statement of aspiration or perhaps expectation of what the offender might provide to the family. No evidence was adduced to identify material benefits that the offender would have been expected to obtain which would be lost if he was sentenced to imprisonment, or how they would suffer, in any tangible non-material sense, if he was incarcerated. I reject the offender’s submission of this being a relevant factor in the sentencing assessment of the length of sentence. I take it into account, however, when considering the length of the minimum term of imprisonment.

COVID-19

66. It has been well-established by authorities in this Court and the appellate level that the restrictions imposed by reason of the Pandemic mean that greater hardship than usual will apply to offenders from being incarcerated. In circumstances where the situation remains fluid for institutional settings like jail, and that state of affairs is unlikely to change for the foreseeable future, and referring also to the offender’s conditions of anxiety and depression which predated the offending, I accept that this is a factor which moderates, if perhaps slightly, against the force of specific deterrence.

Intensive correction order

67. The offender is currently the subject of an ICO. His Counsel referred to s 16B(a) of the Act and submitted that if he was to be released on recognisance, he would still be subject to the ICO and further that there is no indication that the conditions of the ICO had been breached. As I understood the submission, it appeared to amount to an argument that protection of the community and, to a lesser extent, specific deterrence, could be attained in the event that the offender was immediately released on recognisance, given the constraints to which the offender would remain subject.

67. The Crown did not address specifically on this matter.

68. The penalty of the ICO concerned drug offence ^[5] , which the offender was charged with at the same time as the subject offence. Because of the view that I take as to the minimum period of time that the offender should serve in full-time incarceration, it has minimal relevance to assessing that term, in terms of reducing its length, applying the principle of totality, having regard to the objective gravity of the offending, general deterrence and the need for adequate punishment.

    5. See the NSW Corrective Services Case Note report appended to the Sentencing Assessment Report

INSTINCTIVE SYNTHESIS

70. I take into account the maximum penalty, the approach to sentencing for the subject offence as indicated by the authorities I have referred to and have evaluated all of the matters under s 16A of the Act to which reference has been made by the parties. Generally speaking, the offending, although confined to a single offence, was most grave and was barely mitigated by the offender’s subjective case.

71. I am satisfied, for the purposes of s 17A of the Act, that no other sentence other than one of full-time imprisonment is appropriate in all the circumstances of the case.

‘Exceptional circumstances’

72. On the premise that an order for imprisonment was otherwise found to be appropriate, the offender submitted that under s 20(1)(b)(iii) of the Act, it would be open to the Court to find that “exceptional circumstances” exist, which would require the offender’s immediate release on recognisance. Reference was made to a decision of Berman SC ADCJ in R v Pedersen [2021] NSWDC 535, which, in the absence of express definition as to what the expression “exceptional circumstances” means, was said to provide guidance as to what the expression encapsulates. In that case, his Honour referred to a combination of matters which pointed to the conclusion that exceptional circumstances were satisfied:

1. the hardship that would effectively flow to the offender’s family;

2. the stress and trauma;

3. the medical needs of the daughter;

4. the risks associated with COVID-19;

5. the nature of the offending.

73. Before me, Counsel for the offender added to this list what he described, compendiously, as the ‘16A considerations’ overall. Counsel submitted that the offender’s position could be regarded as being assimilated to the offender’s position in Pedersen. Reference was also made to the offender himself being a victim of child sexual abuse (and physical abuse). In response to my question as to how the offender’s psychologist had approached the matter of the offender’s own child sexual abuse, Counsel submitted that the effect had not really been explored by Mr Awit, but the Court should find that he would be willing to have it addressed in future treatment of him.

74. Ms Crown convincingly demonstrated how Pedersen is distinguishable on the facts in this case: in Pedersen there was a guilty plea, findings of remorse and good prospects of rehabilitation and a secure evidentiary foundation for a finding of hardship to family members from the offender’s incarceration, through his being the sole income provider and especially the mental health needs of a member of the family.

75. I am not persuaded that ‘exceptional circumstances’ are established which would warrant the offender’s immediate release on recognisance. It will be apparent from my earlier remarks why this is so. Most significantly, his rehabilitation prospects are guarded. I have not accepted that meaningful hardship would be visited upon the offender’s family through his incarceration. Although COVID-19 is a factor which may work in the offender’s favour facing the prospect of incarceration, the offender’s position, in that particular respect, is no different to any other offender facing a term of imprisonment, irrespective of the offence. Finally, I agree with the Crown’s submission that the requirement for ‘exceptional’ circumstances reinforces the significance of the general position: that the Commonwealth Parliament intended to clamp down upon the prevalence of offenders guilty of this offence being immediately released (see the Attorney General’s Second Reading Speech to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020, 11 September 2019). Such ‘presumption’ as is contained within the legislative framework is not rebutted on the facts here.

Length of the term

76. Counsel for the offender submitted that if I was against his client on the question of whether he should be immediately released on recognisance, it was still open for the Court to incorporate, within the sentence of imprisonment, his release on recognisance after a certain period. This option could only arise where the Court finds that the minimum time to be served is less than 3 years: the Act, s 19AC.

77. Specifically, Counsel for the offender nominated a sentence of 12 months with a release after 6 months as an appropriate option.

Assessing comparable cases

78. Counsel essentially did this by comparing the gravity of this offending against a list of sentencing decisions of this Court identified in his written submissions (MFI 2). Most of those were in respect to the offence of using a carriage service to access child abuse material, which carries the same maximum penalty as the offence of transmission. These cases included (and were, in fact, the only ones expressly referred to in the offender’s written submissions) R vJones [2021] NSWDC 478, where an offender was released on a recognisance of 24 months for the offence of his voluminous accessing of files which depicted, amongst other things, sexual assaults (separately) on a 9-month baby boy and 2 year old female child, and R v Houweling [2021] NSWDC 293, where for 10 images of ‘Category 2’ material, an offender received a sentence of imprisonment of 1 year and 7 months but was to be released immediately. In R vPG [2020] NSWDC 144, an offender received an indicative sentence for the same (or similar) subject offence of 12 months.

79. These submissions focussed on identification of the comparative objective gravity of the offending. Both Counsel indicated that their research did not disclose another case of this kind where sentencing had occurred after a plea of not guilty. To focus only upon the objective gravity as the sole comparator obscured the weight given by the sentencing judges in the cases the offender relied upon to their respective subjective cases. Thus, in Houweling, aside from there being a guilty plea, there were beneficial findings in the offender’s case of his giving “frank” evidence (including the admission of a deviant sexual interest), of there being a low risk of re-offending, of the offender showing good prospects of rehabilitation which could be interrupted by a sentence of imprisonment. These mitigating factors were not evident in this offender’s case. In Jones, again in the context of a guilty plea, there were findings of real remorse (“disgust”), acceptance of fault and dedicated and effective participation in rehabilitative treatment post-arrest for an offender who had only just been an adult at the time of offending, who had a long-standing general addiction to pornography who effectively stumbled into accessing child abuse material. Again, the subjective factors are very different to this offender. Similarly in PG, there were beneficial subjective factors in the offender (guilty plea, contrition and low or below-average likelihood of re-offending) not available to the offender here. The nature of the child abuse material (cartoons and literature) appeared to be of a qualitatively different nature of the child abuse material in this case.

80. Annexed to the Crown’s written submissions (MFI 1) was a schedule of cases, across the Commonwealth, indicating penalties for the subject offence. I have also considered those cases, although it is questionable to divine, and Ms Crown did not submit that any sentencing pattern could be divined, given the different scale of the objective gravity of offending across the cases, most obviously in the frequency of transmission, and other circumstances. Of the cases which the Crown cited, I regard as the most objectively serious the case of DPP (Cth) v CCQ [2021] QCA 4. In that case, for the subject offence, following a guilty plea, an indicative sentence of 5 years’ imprisonment was imposed, where the facts comprised the transmission of 5 files to a single person comprising depictions of mutilated diseased babies. In the offender’s favour (apart from the guilty plea) was a degree of co-operation with investigative authorities, and admissions as to the extent of his accessing child abuse material on the internet, and significant participation in rehabilitative treatment prior to sentencing. The case of Chenhall v R [2021] VSCA 175 relevantly concerned an offender, after a guilty plea, receiving an indicative sentence of 12 months, after transmitting to a public group chat, a single image depicting a 12-year-old girl exposing her breasts. In Young v R [2021] SASCA 51, an offender received small indicative sentences following guilty pleas in relation to the three counts of transmission of images regarded as being the lowest category of seriousness, had contributed significantly to the (swimming) community, was genuinely remorseful and had good prospects of rehabilitation with treatment.

81. Notwithstanding the limited utility of the comparable cases, I have taken them into account, guided by the schedules supplied by the legal representatives for the parties, when fixing upon the length of the term.

82. Taking into account my assessment of all of the considerations in s 16A of the Act, in my view the length of the term of imprisonment is such that it should be 3 years’ duration.

83. The offender was in custody from 6 August 2020 to 1 October 2020. The commencement date will be backdated to take into account the time (57 days) he has previously spent in custody.

84. By s 19AC(1), a minimum term is required for a head sentence of 3 years or less. By the combined operation of ss 19AC(1)(b), 20(1)(b)(ii) (& 19AF), since the sentence I am about to impose does not exceed 3 years, the Court must impose a recognisance release order, in this case, after a specified period of imprisonment. When assessing the length of that specified period of imprisonment, the Court is not to take into account any preconceived or ‘formulaic’ notion of the ratio between the minimum period of imprisonment and the overall sentence (Hili v The Queen (2010) 242 CLR 520 at [44]). I have taken into account, in my assessment of the minimum period of imprisonment, all of the matters in s 16A.

85. I will articulate the proposed form of the sentence to reflect these reasons before hearing from Counsel as to the adequacy of that form, including the proposed conditions to the release order. I will also articulate an explanation for the sentence, before inviting comment from the legal representatives.

SENTENCE

86. Mr Khqustiaan, please stand. You are convicted of the offence that on 3 August 2020, in Bankstown and elsewhere in NSW, you transmitted material, using a carriage service, being child abuse material.

87. I sentence you to a term of imprisonment of 3 years commencing on 1 March 2022 expiring on 28 February 2025. Pursuant to s 20(1)(b)(ii) of the Crimes Act, this sentence is to be served as follows:

1. you are to serve a minimum (‘pre-release’) period of imprisonment of 2 years, 1 month and 7 days,

2. on 7 April 2024 you are to be released upon you entering a recognisance yourself, upon posting security in the sum of $500, without surety, subject to your compliance with the following conditions for the balance of your sentence, being a period of 10 months and 21 days:

1. you are to be of good behaviour;

2. you are to be subject to the supervision of a probation officer; and

3. you are to obey all reasonable directions of the probation officer; and

4. you are not to travel interstate or overseas without the written permission of the probation officer; and

5. you are to undertake such treatment or rehabilitation programs that the probation officer reasonably directs; and

6. you are to report to the NSW Community Corrections Service within 48 hours of your release.

88. I am required by s 16F(2) of the Crimes Act 1914 (Cth) to explain the sentence imposed for this sentence. I have imposed as penalty on you a term of imprisonment of 3 years to commence on 1 March 2022 with you to be released from custody on recognisance after a pre-release period, before you serve the balance of your sentence under supervision in the community. You will serve a pre-release period, also known as a minimum period, of imprisonment of 2 years, 1 months and 7 days, which period expires on 7 April 2024. On that day you will be released, on recognisance, by payment of $500 as security, after which you will serve the balance of your sentence, so long as you remain of good behaviour, being a period of 10 months and 21 days in the community under the supervision of a probation officer. Service of the balance of the term of sentence in that way is subject to your complying with all of the conditions I have referred to when announcing sentence, including (without limitation) obedience to the probation officer’s reasonable directions to you.

89. If you fail, without reasonable cause, to comply with those conditions, the Court may imposed a monetary penalty of you or not more than $1,000, extend the period required of good behaviour, order that you be imprisoned for the whole or part of the duration of the sentence you would not have served at the time of your release (being 10 months and 21 days) or take no action (s 20A(5)(c) of the Crimes Act 1914 (Cth)). The conditions of the recognizance given may also be discharged or varied under s 20AA of the Crimes Act 1914 (Cth).

90. Pursuant to s 23ZD of the Crimes Act 1914 (Cth), on the application of the Commonwealth Director of Public Prosecutions, and without opposition by the offender, the following items of property are forfeited to the Commonwealth:

1. Samsung Galaxy S10, IMEI 354651102602940;

2. SIM card for mobile phone number 0490487547;

3. Samsung Galaxy J9, IMEI3528020944788263; and

4. SIM card for mobile phone number 0404174051.

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Endnotes

Force and Australian Federal Police to classify child abuse material: Category 1 is Child Abuse Material depicting

a real prepubescent child, under the age of 13, with the child being involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child; Category 2: Other Child Abuse Material that is illegal but not captured within Category 1

Decision last updated: 27 April 2022