R v Lozinski

[2022] NSWDC 487

District Court

New South Wales

Medium Neutral Citation:

R v Lozinski [2022] NSWDC 487

Hearing dates:

23 September 2022

Date of orders:

20 October 2022

Decision date:

20 October 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Discharged without conviction pursuant to s19B. For orders see [128].

Catchwords:

CRIME – sentence – Use carriage service to make available child abuse material– early plea of guilty.

Legislation Cited:

Child Protection (Offender’s Registration) Act 2000 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Evidence Act 1995 (NSW)

Cases Cited:

Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332

DPP (Cth) v Garside (2016) 259 A Crim R 299; [2016] VSCA 74

DPP (Cth) v Moroney [2009] VSC 584

Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140

R v Hutchinson [2018] NSWCCA 152

R v Ingrassia (1997) 41 NSWLR 447

Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101

The Queen v De Simoni (1981) 147 CLR 383

Totaan v R [2022] 400 ALR 578; [2022] NSWCCA 75

Walden v Hensler (1987) 163 CLR 561;[1987] HCA 54

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Michael Anthony Lozinski

Representation:

Trial Advocate:
A. Ranson (Crown)

Counsel:
P. Cranney (Offender)

Solicitors:
Lamont Law (Offender)

File Number(s):

2021/344679

Publication restriction:

The Court notes a suppression order made on 5 November 2021 in the County Court of Victoria prohibiting the publication of any information identifying the person referred to herein as RB, or his whereabouts. The order extends to publication anywhere in Australia and is extant until 22 May 2031.

I further order the schedule in [5] of these remarks is not to be published.

REMARKS on SENTENCE

1. The offender is to be sentenced in respect of an offence pursuant to section 474.22(1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”) that on or about 4 December 2020 at Surry Hills, NSW, he did make available material, using a carriage service, the material being child abuse material.

2. The maximum penalty for the offence is 15 years imprisonment.

3. The offender was arrested on 4 December 2021 and entered a plea of guilty in the Local Court on 31 May 2022. He was born on 8 November 1967 and was therefore 53 years of age at the time of the offence. He is now 54 years of age.

Sentence Hearing

4. The sentence hearing took place on 23 September 2022. The Crown Sentence Summary became Exhibit A. It recorded that the offender had no previous criminal convictions.

5. Exhibit A included an agreed statement of facts which may be summarised as follows. On 4 December 2020 the offender used his mobile phone to call a telephone chat service known as “Fastmeet” to communicate with another user RB. In November 2020 Victorian Police had identified and arrested RB who was a convicted child sex offender in relation to his use of Fastmeet to exchange child abuse material with others. In October 2021 NSW Police had established a Strike Force to investigate the activities of individuals located in NSW who had been identified as communicating with RB on the Fastmeet platform about the sexual abuse of children. The facts outline that on 4 December 2020 the offender used his mobile phone to exchange recorded voicemail messages with RB on Fastmeet as set out below.

6. On 4 December 2021 the offender attended, by prior arrangement, Surry Hills Police Station and was placed under arrest. The offender was cooperative with police as follows:-

1. The offender advised that the phone number involved belonged to him;

2. He advised that there were a number of electronic devices at his home and he confirmed that none of those devices contained child abuse material;

3. When asked he provided Police with the pin code to his mobile phone; and

4. He provided Police with a key to access his residence.

7. Shortly thereafter a search warrant was executed at his home, during which a number of electronic devices were seized and were found not to contain anything nefarious.

8. On 4 December 2021 the offender participated in a record of interview with Police in which he told them he was in the process of moving to Canberra, that he did not recall the relevant message exchange, that Police were not going to find anything on any of his devices, that he had never “asked for images” or spoken to a child and that he was not sexually attracted to children.

9. The offender told police that no one had access to his mobile phone and that he had “never had an image of a child in my mind…” and “I don’t even have it in my head to even want to access that material because it doesn’t do anything for me”.

10. At the time of the offending the offender was employed as a director at the Australian Electoral Commission.

The Offender’s Evidence

11. The offender relied on a bundle of 7 documents which became Exhibit 1, comprising Exhibits 1.1 to 1.7. Exhibit 1.1 was an affidavit of the offender affirmed on 23 September 2022 in which he deposed that because of his commitment to work and the COVID-19 pandemic and restrictions imposed by it he relied upon online forums to meet his social and personal needs. He engaged in Fastmeet which was an online telephone service for gay, bi-sexual and bi-curious men as a way of meeting other homosexual people. His normal practice was to leave pre-recorded voice messages for other users rather than engaging directly with any other user.

12. The offender deposed that in his first recorded message as set out above his reference to “father/son” was not referring to pre-pubescent males or in fact anyone under the age of 18 years. He deposed that the expression was vernacular and typically used by those in the homosexual community to describe older men who partner with younger males of lawful age.

13. The offender deposed that after RB’s response referring to “pre-teen boys” he regrettably responded with his second message. He stated,

“In my mind, when I was providing this description to [RB], I was not referring to any non-consensual sexual act involving an adult male and a child”

14. The offender deposed that once he heard the second voicemail message left by RB, he “came to realise that RB was steering our conversation deeper into the topic of pre-pubescent males”. At that stage it was clear that RB was in fact speaking about children and he terminated the service.

15. The offender deposed that he never held any intention to be a party to the transmission of child abuse material, nor was he aware that he was committing a criminal offence at the time. The entire interaction lasted three minutes before he terminated it. He now understands the seriousness of any material being communicated involving the abuse of children and he did not wish to excuse or justify his behaviour.

16. The offender deposed that having had considerable time since his arrest to ruminate over how he may have contributed to the production of child abuse material he felt extremely disappointed and disgusted in the role that he may have played. He believed that he accepted impulsively, uttering one sentence before immediately ceasing the service. He further stated,

“In the context of my social isolation and withdrawal, I believe that my motivation in engaging the latter part of this conversation was to please [RB] and connect with him”

17. The offender stated this was the first time he had ever engaged in any conversations or material relating to the abuse of children. He had never previously held any fantasies about children, nor would he wish to in the future.

18. The offender repeated his explanation for his reference to “father\son stuff”. He further deposed that whilst he did not watch pornography often when he did he would sometimes search “father/son”, “daddy/son”, or “bear/cub” material. He deposed that this was a legitimate genre of porn involving performers of a lawful age and were accessed on a website known as “Pornhub”.

19. The offender deposed that he had no interest in non-consensual, underage material involving children and had never tried to access or view any material which was unlawful. This was confirmed when the police conducted a search of his electronic devices and determined that he did not have any unlawful material on them.

20. The offender deposed that he had been diagnosed as suffering from a Major Depressive Disorder, Generalised Anxiety Disorder and a Panic Disorder. He had suffered depressive episodes in 2004 and 2018. His symptoms had recurred following his arrest in December 2021.

21. The offender deposed that he had been receiving treatment from Ms Leanne Jones, psychologist for approximately one year to understand the gravity of his behaviour and to ensure that he did not repeat it.

22. The offender deposed that he is now the primary carer for his mother who is 91 years of age. She suffers a number of age-related disabilities and has limited mobility. His parents had met in a prisoner of war camp in Poland during World War Two and following the end of the war were displaced and homeless for some time before securing immigration to Australia in 1949. They settled in Maitland and raised three children, of which the offender is the youngest. His sister Julie Sales passed away in July 2022, aged 72 years.

23. Exhibit 1.2 was an affidavit affirmed by Joanna Pasternak on 23 September 2022. The deponent is a solicitor and she deposed having accessed the Google search engine to search “Father and Son pornography”. This search revealed approximately 48,500,000 results, the top result being from a site named “Pornhub”. Ms Pasternak went on to describe accessing a number of videos of “Father and Son” gay pornography on that site and described them as being videos depicting consensual sexual acts between what appeared to be persons of lawful age. She deposed that “all of the featured images were of adult males at least 20 years of age, most in their late twenties and thirties and none of them resembled anyone I would consider to be a child or a teenager.”

24. The Crown objected to the affidavit on the basis of relevance however as the Evidence Act 1995 did not apply to the sentence hearing I allowed the offender to rely on the affidavit and Ms Pasternak’s opinion expressed therein.

25. Exhibit 1.3 was a report of Dr T Dornan dated 12 June 2022. Dr Dornan had interviewed the offender for approximately two hours on 24 May 2022. Dr Dornan took a history of the offender being raised in a loving and supportive family. At school and at university the offender had performed well academically, and he had steady employment in a number of roles before moving to the Australian Electoral Commission.

26. Dr Dornan took a history in which the offender denied ever viewing child abuse material or sexual fantasies about children. The offender reported “mainstream homosexual interests”.

27. Dr Dornan stated that the offender identifies as homosexual, being maximally attracted to adult men in their thirties or forties with moderate sexual attraction to men in their twenties and fifties.

28. With respect to the index offence, Dr Dornan reported that the offender stated that he was using a gay telephone service as a way of meeting people. On this occasion the other person expressed an interest in pre-teen boys and the offender responded by saying “like it when Dad opens them up for the first time…” before panicking and terminating the call, realising what he had said.

29. Dr Dornan recorded that the offender stated that his comments were the result of a “brain snap”. He reported disappointment and disgust over the comments which has changed his life. Dr Dornan stated:-

“His explanation of his behaviour indicated that his offending was really about trying to please somebody else because of his own high motivation for connection with others, rather than to meet a specific criminogenic need”

30. Dr Dornan noted that the offender had reported experiencing recurrent panic attacks and depressive symptoms since his arrest. He had also suffered suicidal ideations as a result of his being charged, but advised that he had no intention of acting on those ideations.

31. Psychometric assessment confirmed significant depression and anxiety.

32. The offender was assessed in the low-risk range of recidivism of sexual reoffending.

33. Dr Dornan opined that the following issues reduce the offender’s risk of further offending:-

• Mr. Lozinski does not have a criminal history and he does not present as antisocial in his attitudes or lifestyle,

• Mr. Lozinski’s offending behaviour did not reveal evidence of escalation or diversification,

• Mr. Lozinski’s sexual offending behaviour did not involve either psychological or physical coercion,

• Mr. Lozinski does not present with a history of entrenched sexual deviancy, sexual self-regulation difficulties, deviant sexual interests or attitudes consistent with sexual abuse,

• Mr. Lozinski does not present with substance abuse issues,

• Mr. Lozinski does not present with a history of concerns in relation to emotional coping or regulation,

• Mr. Lozinski was not a victim of child sexual abuse,

• Mr. Lozinski does not present with psychopathic traits,

• Mr. Lozinski has had a stable employment and has not experienced previous problems at work.

34. Dr Dornan opined that on the information available the offender was unlikely to engage in future acts of sexual offending, although he may experience future episodes of mental ill health. Further, the offender impressed as being genuine and responsible in his remorse and did not seek to justify his offending behaviour. He recommended that the offender’s most salient need was to engage in psychological intervention. However, he would not require treatment for sexual offending.

35. Exhibit 1.4 is a report of Dr Leanne Jones dated 31 August 2022.The offender had been referred for psychological treatment on 16 December 2021 by his GP. He attended nine appointments up to 25 August 2022 in which he described a twenty-year history of depression and anxiety.

36. At the commencement of his treatment the offender was assessed as being within the severe range for depression, anxiety and stress. Treatment had focused on specific stress management strategies utilising a number of different therapies. The offender’s prognosis was for improvement to continue with medication compliance and psychological therapy.

37. Exhibit 1.5 was a letter from the offender’s mother setting out some of the family history referred to above. Mrs Lozinski stated that the offender is making a huge difference to her life as her carer. She also stated that the offender is embarrassed about his actions and is remorseful.

38. Exhibit 1.6 is a letter from Dr M Alexander dated 13 December 2021 confirming that the arrangement for the offender as carer for his mother was highly beneficial for Mrs Lozinski.

39. Exhibit 1.7 is a letter from the offender’s sister Julie Sales dated 19 December 2021 in which she stated that the offender is embarrassed about his actions and is remorseful. She noted that he was undergoing treatment with his GP and psychologist and would benefit from being at home with those he loves. Ms Sales had passed in July 2022.

The Offender’s Oral Evidence

40. The offender gave evidence that the histories contained in the reports of Dr Dornan and Dr Jones were true and correct. At the time he was arrested the offender was employed as a director of the Australian Electoral Commission however, he has resigned from that position following his arrest. He is now on a Centrelink Benefit as a carer for his mother aged 91 years.

41. When asked what his attitude was to his offending conduct the offender said that he was “horrified”, that he had never been involved in the world of child sexual abuse and had never had that image in his head. Being charged left him feeling at rock bottom psychologically, and he had suffered suicidal ideations on occasions.

42. The offender gave evidence that he had since enrolled in a Bachelor of Archaeology. He had been able to study the first year via textbook, however as he was not allowed internet access as a result of his bail conditions, completing the second and third years of the degree would be increasingly difficult. Further, those running the course call for volunteers from time to time on archaeological digs mainly overseas. Having a conviction would make such overseas travel “a little bit more challenging”.

43. The offender gave evidence that the most important thing in his life now is looking after his mother. He was concerned about her being placed in a nursing home due to cultural differences, for example, the food to be provided and whether she would obtain the best possible care.

44. The offender gave evidence that whilst studying his university course had given him intellectual stimulation, he had missed the social interaction of working.

45. In cross-examination the offender gave evidence that following his arrest on 4 December 2021 he had asked the officer in charge to be bailed to his mother’s address for his own welfare. He agreed at the time that it was a consequence of his arrest, not to care for his mother. However, he had in September 2021 become aware that his mother was struggling with her health.

46. At that time he had been planning to move to Canberra for work however had requested some flexibility in that arrangement allowing him to spend one week out of three in Maitland.

47. The offender gave evidence that the only positive to come out of his being charged was that he had become the full-time carer for his mother. Overtime she had become more and more frail requiring full-time care.

48. When asked whether he had explored any alternative care arrangements the offender gave evidence that they were entitled to a cleaner for one hour per fortnight which was inadequate. He had resigned from his position in the public service on 31 May 2022 and was now living permanently with his mother. In respect of the index offending, it was put to the offender that the first message from RB included the words “pre-teen boys” and he accepted that a pre-teen was a child. The offender was challenged about the content of [12] of his affidavit. It was put to him that the first message from RB concerned child abuse material to which he responded. The offender gave evidence that it became very clear in RB’s second message that he was referring to child abuse material and that he did not recall the first part of the conversation.

49. The offender gave evidence that he was using the Fastmeet app because he was lonely and that he usually enjoyed just chatting online. He agreed that the first sentence from RB had child sexual connotations and he understood it to involve the abuse of children.

50. The offender gave evidence that he did not recall participating and using the words “fucking sounds perfect mate”. Whilst he now accepted that he did use those words he gave evidence that he wasn’t necessarily talking about the abuse of children himself.

51. The offender confirmed that he had no attraction to children and therefore he was concerned about what outcomes there may be for him undergoing treatment although he would be more than happy to participate in any programs. He reiterated that the police had found no other evidence of any interest he may have in child abuse material. Any possibility of him having a sexual interest in children had been discussed between himself and Dr Jones.

52. When asked how his evidence relating to his use of porn and low sex drive sits with the offending conduct the offender replied, “Very well”, and that he had only ever accessed legal pornography that involved sexual activity between consenting adults, usually men in their thirties and forties.

The Crown’s Submissions

53. The Crown relied on a detailed written outline of submissions setting out general principles of sentencing for Commonwealth offences which were not controversial. Relying on R v Hutchinson [2018] NSWCCA 152 at [44]-[45] the Crown set out the following factors which are taken into account in assessing the objective seriousness of offending involving child abuse material:-

1. Whether actual children were used in the creation of the material;

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

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

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

5. In the case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383;

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

7. The proximity of the offender’s activity to those responsible for bringing the material into existence;

8. The degree of planning, organisation, sophistication and/or deception employed by the Offender in acquiring, storing, disseminating, or transmitting the material;

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

10. Whether the offender acted alone or in a collaborative network of like-minded persons;

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children;

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted;

13. Any other matter in section 21A(3) of the Crimes (Sentencing Procedure) Act (“the CSPA”) (for State offences) or 16A of the Crimes Act 1914 (“the Crimes Act”) (for Commonwealth offences) bearing upon the objective seriousness of the offence.

54. The Crown submitted that general deterrence is the primary sentencing consideration for offending involving child pornography and the online sexual exploitation of children. The Crown further submitted that an offender’s personal mitigatory factors such as good character, age and prospects of rehabilitation must therefore be given less weight in the sentencing process. Specific deterrence, denunciation and protection of the community were also very important sentencing considerations.

55. The Crown also submitted generally that there is a paramount public interest objective in promoting the protection of children as online child exploitation offences are not victimless crimes and children continue to be sexually abused and degraded to supply a market for child abuse material. Further, the nature of the internet meant that images may be published and stored around the world for many years and victims may not only have to endure the abuse that occurs in producing such material but must live with the consequences of that abuse indefinitely.

56. In assessing the nature and circumstances of the offence pursuant to s16A(2)(a) of the Crimes Act, the Crown submitted that the offending occurred through two audio messages left by the offender on 4 December 2020 on the Fastmeet App. The Crown conceded the offending is relatively unsophisticated and submitted that the objective seriousness fell towards the lower end of objective seriousness for an offence pursuant to s474.22(1) of the Criminal Code. The Crown further conceded that there were no actual children victimised by the offending.

57. The Crown submitted the following factors were to be taken into account pursuant to s16A(2):-

(i) General deterrence, specific deterrence and the need for adequate punishment - s16A(2)(j)(ja) and (k).

58. The Crown submitted the Court is to impose a sentence of severity appropriate in all of the circumstances of the offence and to ensure that the offender is adequately punished for the offence. General deterrence is of primary importance in sentencing for child abuse offences and in considering the need for specific deterrence. The Crown submitted the Court should take into consideration that the offender’s conduct indicates that he was motivated by a sexual interest in children.

(ii) Plea of guilty – s16A(2)(g).

59. The Crown concedes that the offender’s plea was entered at the earliest opportunity and the offender should therefore be afforded a utilitarian discount on sentence. The plea was also relevant on a subjective basis in considering remorse and contrition. The Court should however consider whether the plea was motivated by a willingness to facilitate the course of justice or simply a recognition of the inevitable.

(iii) Co-operation with law enforcement agencies – s16A(2)(h).

60. The Crown conceded that the offender was co-operative and made partial admissions in respect of the offending.

(iv) Contrition for the offending – s16A(2)(f).

61. The Crown submitted that the contrition should be established on the evidence and the Court is not bound to accept hearsay evidence.

(v) Character, antecedents, age, means and physical and mental condition – s16A(2)(m).

62. The Crown noted the offender was currently 54 years of age, he had no prior convictions and was otherwise of good character. However, it was noted that such offences are frequently committed by persons of otherwise good character. For that reason, the seriousness of the sexual offending against children will often outweigh the subjective circumstances of a first offender.

(vi) Prospects for rehabilitation – s16A(2)(n), s16A(2)(aaa).

63. The Crown submitted that the steps taken towards rehabilitation should be taken into account on sentence, but not at the expense of other sentencing considerations including general deterrence and denunciation. The offender’s prospects for rehabilitation must be considered in conjunction with any treatment undertaken by him since being charged. For the purposes of considering the protection of the community, the Court will need to consider the offender’s risk of reoffending. The Crown submitted that here the conduct was motivated by sexual gratification.

64. The Crown also took issue with a submission made on behalf of the offender in writing that having regard to all of the circumstances here, would include the Court “appreciating these comments through the lens of the offender’s life experience and vernacular and therefore, if one accepts the evidence, the offender’s comments regarding “a taboo chat” and “father/son stuff” would be less likely to within contemporary society cause sufficient offence.” The Crown submitted that the Court would not accept this submission as it could only be understood to be relating to the crime of incest. Here, the offender by his plea of guilty had accepted that he had the requisite intention or was reckless as to his communications. It was an aggravating factor here that RB was a convicted child sex offender. Even though the offender did not know that, there was a risk that he would be a paedophile and use the communication in which the offender engaged so as to normalise sexual activity between adults and children.

65. In respect of the application of s19B of the Crimes Act as advocated by the offender, the Crown referred to the mandatory condition that the Court was required to find that it was “inexpedient to inflict any punishment”. The Crown also submitted that an order pursuant to s19B would only be made in exceptional circumstances, and that such orders are rare. The circumstances require something to distinguish the present case from what may be regarded as a typical breach relying on Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [72]; DPP [Cth] v Moroney [2009] VSC 584 at [27]. Further authorities were provided as to the exceptional or atypical nature of orders pursuant to s19B(1).

66. Further, the Crown noted that the statutory definition of child abuse material here was contained in s473.1(e) of the Criminal Code as follows:-

“Child abuse material means;

(e) material that describes a person who is, or is implied to be under 18 years of age and who;

1. is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

2. is in the presence of a person who is in engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive;

67. The Crown conceded the offender was co-operative with authorities and made partial admissions in respect of the offending when interviewed by police.

68. The Crown relied on DPP (Cth) v Garside [2016] VSCA 74 at [63] to submit that the offender’s good character, familial support, remorse and prospects for rehabilitation would be given less weight than normally given as such offenders generally have similar backgrounds and are of prior good character.

69. The Crown submitted that rehabilitation is an important factor in sentencing and the offender’s prospects of rehabilitation must therefore be considered in conjunction with any treatment undertaken by him since being charged. The Court will also need to consider the risk of reoffending. Here, the Crown submitted the Court would accept that the offender’s conduct was motivated by sexual gratification.

70. The Crown submitted that the Court would have regard to s16A(2AAA) of the Crimes Act, namely, that the Court must have regard to the objective of rehabilitating the offender, including by considering whether it is appropriate that any order should include a rehabilitation condition outlining treatment options, or be of sufficient length for the offender to undertake a rehabilitation program. The Crown noted that the section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence.

71. The Crown also referred to the presumption of actual imprisonment contained in s20(1)(b)(ii) of the Crimes Act namely, that there is a presumption that a child sex offender will serve some period of actual imprisonment unless there are exceptional circumstances justifying the offender being released immediately on a recognizance release order. The Crown also noted the statutory conditions to be attached to any recognizance release order pursuant to s20(1)(b) for a child sex offender. The Crown noted, and it is common ground, that an intensive corrections order is unavailable for a prescribed sexual offence in NSW.

72. The Crown annexed to it’s written outline of submissions a schedule of appellant decisions relating to similar offences for the assistance of the Court. Having regard to all of the circumstances of this case, the Crown submitted the only appropriate sentence is a custodial sentence with a period of full-time imprisonment to serve.

73. In her oral submissions, the Crown rehearsed the factors to be taken into account in assessing the objective seriousness of the offending as outlined above. The Crown confirmed that the objective seriousness here does fall towards the lower end of objective seriousness for an offence of it’s type but not at the lowest end.

74. In anticipation of a submission of behalf of the offender, that he should be discharged without conviction, the Crown referred to the two-step process required pursuant to s19B(1) of the Crimes Act. Here, the Crown accepted that the Court would accept the opinion of Dr Dornan that the offender was not suffering from a mental health impairment at the time of the offence, however, the Crown submitted that the offending was not of a trivial nature and noted that the communication had been initiated by the offender.

75. Further it was a mandatory consideration for the application of s19B that the Court find that it is inexpedient to inflict any punishment. Orders pursuant to s19B were exceptional and rare, requiring something to distinguish the instant case from what may be regarded as a typical breach relying on Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [72]; DPP [Cth] v Moroney [2009] VSC 584 at [27]. The Crown provided a number of authorities for examples of such orders being “rare”, “exceptional” or “atypical”.

76. In relation to the hardship caused by the offender’s arrest and being charged for this offence, the Crown accepted that there is no requirement that such hardship needs to be found to be “exceptional” as found in Totaan v R [2022] 400 ALR 576; [2022] NSWCCA 75. Here, there has been limited exploration of other care arrangements for the offender’s mother since the offender’s arrest. Hardship to families was in the Crown’s submission a common consequence of criminal conduct.

The Offender’s Submissions

77. Counsel for the offender also relied on a detailed written outline of submissions advocating that the Court should discharge the offender, conditionally or otherwise, without conviction pursuant to s19B of the Crimes Act. The correct approach was outlined in Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101 at [216]:-

1. Section 19B(1)(b) itself consists of two stages. The first is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and/or (iii). The second stage is the determination whether, having regard to the factor or factors so identified, it is ‘inexpedient to inflict any punishment’ or to reach the other conclusions provided for in the paragraph;

2. Section 16A(2) of the Crimes Act identifies the matters that must be taken into account in exercising the second stage of the discretion in s 19B;

3. The application of s 19B to revenue offences does not require ‘exceptional circumstances’ to be established. The statute formulates a test of whether punishment is ‘inexpedient’. That is the test to apply;

4. The significance of the conduct regulated by the statute which creates the offence is a consideration to which a sentencing judge must have regard in deciding whether it is ‘inexpedient’ to impose punishment in a particular case; and

5. General deterrence remains a relevant principle for sentencing Commonwealth offenders, and it is appropriate to take such matters into account in determining whether to exercise the discretion under s 19B.

78. The offender relied on the family history and subjective factors set out in the report of Dr Dornan. Dr Dornan opined that the offender, who had no reported sexual interest in children, displayed insight into his offending and was concerned that he contributed to the market of child abuse material. Dr Dornan further opined that there was no evidence of a history of sexualised coping, entrenched sexual deviancy, or sexually deviant interests and that his risk of re-offending was assessed as low. Further, the offender did not require treatment for sexual offending. These findings were not challenged by the Crown.

79. As to the trivial nature of the offence, the offender relied on the following passage from Walden v Hensler (1987) 163 CLR 561;[1987] HCA 54 at [55]:-

“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provisions which prescribed the maximum penalty.”

80. The offender submitted that the nature of this particular offence was towards the very lower limit of objective seriousness for two main reasons. First, the offence did not involve the transmission of material that contained actual child victims of abuse. Secondly, the offender did not intend or attempt to involve himself in that market.

81. It was submitted that the conduct constituting the offence here was that contained only in the second voice message by the offender at 3:06pm on 4 December 2020, namely, the words:-

“Yeah mate, fucking sounds perfect mate. Like it when dads open them up for the first time mate”

82. The offender noted that the fault element for the offence did not require intention to transmit child abuse material, but that the offender was reckless as to whether what was transmitted constituted child abuse material. Thus, the intention of the offender was not determinative, rather the material must “in all the circumstances” be regarded as sufficiently offensive to a reasonable person.” Hence the offender’s submission, referred to by the Crown above, that all the circumstances here would include appreciating the comments through the lens of the offender’s life experience and vernacular and thus the words would be less likely in contemporary society to cause sufficient offence.

83. The offender also relied on the Commissioner of Taxation v Baffsky, supra, to submit that the scope of considerations relevant to the exercise of the Court’s power in s19B(1) encompasses each of the matters identified in s16A(2) of the Crimes Act.

84. Counsel for the offender noted that general deterrence remains a foremost consideration in the exercise of the discretion under s19B. Counsel referred to Totaan v R, at [82] where the Court stated “nothing in s16A(2) as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2)”. At [130] the Court had also noted “the need for general deterrence in any given case… must always be assessed by reference to the personal circumstances of the offending which may have operated on the offender”. Plus, the offender submitted that the Crown’s submission that the offender’s personal mitigatory factors “must be given less weight in this sentencing exercise” is not supported by the statutory construction of s16A(2), nor is it consistent with the flexibility to be afforded to sentencing judges.

85. Counsel submitted that the Crown’s submission that the offender ought to receive a full-time custodial sentence should be rejected and that having regard to all of the circumstances it would not be inappropriate to place greater emphasis on the offender’s prior good character, previous standing in the community and prospects of rehabilitation in imposing a non-custodial order.

86. In his oral submissions, Counsel for the offender submitted that the characterisation by the offender of his interests in “father/son” was an expression used in the vernacular and explained by the offender in his affidavit. This explanation frames the offence committed by the offender who was an introverted man although not withdrawn. The offending involved two messages only, following which he terminated the communication.

87. It was submitted that the legislative framework involved a presumption that the offences were aimed at the offender’s intent on contributing to the child abuse market. This offender was not in that market and was disgusted by it. It was significant that he did not know that RB was a convicted child offender and that once it became clear that RB had an interest in child abuse matters the offender terminated the communication by his own volition.

88. It was submitted that there was an absence of factors normally associated with child abuse material as outlined in Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140.

89. It was submitted that the objective seriousness of the offending here must take into account the nature and content of the material. There was no ongoing transmission, no pictures, no videos and no actual victims. Thus, the comparative cases relied on by the Crown were not helpful. They all involved graphic explicit material and involve offenders who are intent on being involved in the child abuse market, therefore general deterrence was important in sentencing in all of those comparative cases. Here the offender had no such interests or intentions. The Court would have regard to the opinion of Dr Dornan that the offender had no sexual interest in children, that he is remorseful and has not minimised his conduct.

90. In determining whether s19B should be applied the Court will take into account that the offender had no criminal antecedents, that he had significant subjective factors in his favour including a stable family, no dysfunctional or cognitive impairments and an exemplary work history. He had no mental health issues at the time of the offending, and is now caring on a fulltime basis for his elderly mother.

82. The Court will also take into account that the offender had suffered extra-curial punishment by way of having to retire his employment as a Director of the Electoral Commission.

83. In assessing the extent to which the offending was of a trivial nature, Counsel submitted that the Court would take into account Dr Dornan’s opinion that the offender was sexually conservative, that due to his social isolation at the time to which the COVID-19 pandemic contributed, he had a high motivation to communicate with others on the Fastmeet app, and that it was RB who steered the conversation towards child abuse. The offender had been arrested one year following the communication and there was no further criminal conduct on his part.

84. In assessing whether it was inexpedient to inflict any punishment other than a nominal punishment the Court would take into account the whole of the circumstances here, including the shame suffered by the offender, the effect of the proceedings on him and his interaction with the criminal justice system, together with the contrition and remorse expressed by the offender.

85. In considering whether to impose a conviction the Court would have regard to the following passage in Baffsky at [38]:-

“The fact that a person is subject to additional consequences by reason of the recording of a conviction is a relevant consideration in the exercise of the statutory discretion. The reason this is so was stated by Gleeson CJ in R v Ingrassia (1996) 41 NSWLR 447 when his Honour said:-

“The essence of s556A is that it empowers a court, which considers that a charge has been proved, in certain circumstances to take certain steps “without proceeding to conviction”. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.”

95. Here in addition to any other penalty following conviction the offender would be placed on the Child Protection Register. The only way to avoid that is to apply s19B. Otherwise this would be an inordinate punishment. There were no risk factors here given the offender’s low-risk of reoffending and the fact that he had no interest whatsoever in children. In all of the circumstances to proceed without conviction will be an outcome that the community would understand objectively.

Determination

96. S17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence “unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case”.

97. S16A of the Crimes Act provides that in determining the sentence to be passed for a federal offence “a court must impose a sentence or make an order that is of a severity appropriate in all of the circumstances of the offence.” S16A(2) provides that the Court must take into account the following relevant matters:-

(2)(a) The Nature and Circumstances of the offence

98. Here the offending conduct comprised two voice messages on a chat service know as Fastmeet which took place for a duration of 3 minutes on 4 December 2020. Unknown to the offender, the person he was communicating with was a convicted child sex offender. I accept the offender’s evidence that he used the online telephone service to meet his social and personal needs. I further accept that in the offender’s first entry the reference to “father/son stuff” did not necessarily constitute making available child abuse material, given the offender’s evidence which was not disputed by the Crown, and which was supported by the evidence of Ms Pasternak that the expression when used in the context of an online telephone service for gay, bisexual and bi-curious men was vernacular and typically used within that community to describe a relationship between older homosexual men who partnered with younger males of lawful age.

99. The first response from RB however clearly constituted child abuse material by referring to “preteen boys”.

100. The offender’s response namely:

“Yeah mate, fucking sounds perfect mate. Like it when dad’s open them up for the first time mate”,

clearly constituted making available child abuse material, engaging the topic raised by RB.

101. The offender did however immediately terminate the communication when RB responded to those words, and it became clear to the offender what RB was referring to. I accept the comment of Dr Dornan, which was not challenged by the Crown, that the offender’s explanation for his offending was that he was trying to please somebody because of his own higher motivation for connection with others, rather than to meet a specific criminogenic need. Whilst I accept that the offender does not have a deviant sexual interest in children his engagement in the communication with RB was clearly motivated for his own sexual gratification.

102. In assessing the objective seriousness of the offending I have had regard to the factors set out in R v Hutchinson as relied on by the Crown. It is significant here that no actual children were used in the creation of the material, no images were involved and that the communications were not disseminated or transmitted to others. As conceded by the Crown it was clearly unsophisticated offending of very short duration and did not involve a network of like-minded persons. Nor could it be said that the offender was in collaboration with RB given this was the one and only communication he had with that person. It could not be an aggravating factor in this case that RB was a convicted child sex offender as the offender had no knowledge of that fact.

103. In all of the circumstances of the offending I find that for an offence pursuant to s474.22(1) of the Criminal Code, the offending here fell towards the very low-end of the range of objective seriousness for such an offence.

(2)(f) The degree to which the person has shown contrition for the offence

104. I am satisfied that the offender has demonstrated genuine remorse and contrition for his offending conduct. He has expressed that remorse in his own evidence, to Dr Dornan and to his mother and sister. I accept those expressions of his remorse and contrition are deeply felt and should be taken into account on sentence.

(2)(g) The offender’s plea of guilty

105. The offender pleaded guilty at the earliest opportunity and is entitled a 25% utilitarian discount on sentence in respect of his plea.

(2)(h) The offender’s cooperation with law enforcement agencies in the investigation of the offence

106. The offender clearly cooperated with law enforcement agencies making admissions about his conduct and also assisting with the investigation.

(2)(j) General Deterrence

107. General deterrence is the primary consideration in child abuse offending. A clear message must be sent to like-minded members of the community that Parliament has prescribed lengthy maximum terms of imprisonment for such offending and that courts will impose condign punishment in appropriate cases.

(2)(m) The character, antecedents, age, means and physical and mental condition of the person

108. The offender is otherwise a person of good character who has achieved well academically and has been in constant employment. The offence occurred when he was 53 years of age and a director of the Electoral Commission, a highly responsible position. That employment was terminated as a result of him being charged, and his is now on a Carer’s Benefit, being the carer for his elderly mother. The offender has mental health issues for which he is being treated by Dr Jones. He did not however suffer any mental illness which was causative of his offending conduct.

(2)(ma) The offender’s standing in the community

109. The offender’s standing in the community did not aid him in the commission of the offence and is therefore not an aggravating factor.

(2)(n) The offender’s prospects for rehabilitation

110. I accept the offender’s evidence, which in general terms I was impressed with, that he has no sexual interest in children and therefore any rehabilitation required must relate to his mental health generally. The offender has progressed that rehabilitation by accepting treatment from Dr Jones and intends to continue that treatment. I therefore find that he has good prospects of rehabilitation.

(2)(p) The probable effect of any sentence on the offender’s family

111. The offender is the carer for his mother who is now aged 91. Whilst he was not responsible for her care at the time of the offence, I accept that he only became fully aware of her needs when he was bailed to reside with her. I find that the offender’s mother would suffer considerable hardship in the event that a custodial sentence was imposed on the offender and that such hardship would endure for what may be the rest of her life.

112. I accept Dr Dornan’s opinion set out above that the offender is a low-risk of recidivism given the absence of risk factors as set out in [33] above. I also accept that the offender is genuine in his remorse and has insight into the impact of his offending.

113. I am satisfied here that the offending was reckless, and that the offender had no intention to contribute to the market for child abuse material. The fact that he terminated the conversation immediately, had no further offending in the 12 months prior to his arrest and no indicia of any interest in such offending on any electronic devices owned by him are all matters that support a finding that the offender had no sexual interest in children.

114. S16A(2AAA) provides as follows:-

“In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a) when making an order--to impose any conditions about rehabilitation or treatment options;

(b) in determining the length of any sentence or non-parole period--to include sufficient time for the person to undertake a rehabilitation program.”

115. I accept Dr Dornan’s opinion that the offender would not require treatment for sexual offending but that he would experience future episodes of mental ill health for which he would require treatment.

116. The offender has sought an order that he be discharged without proceeding to conviction pursuant to s19B of the Crimes Act. That section provides as follows:-

S19B “Discharge of offenders without proceeding to conviction

(1) Where:

(a) a person is charged before a court with a federal offence or federal offences; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

(c) dismiss the charge or charges in respect of which the court is so satisfied; or

(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A) on or before a date specified in the order; or

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; and

(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.”

117. It is common ground that the application of s19B involves a two-stage process. In Sabel v R [2014] NSWCCA 101 the Court of Criminal Appeal referred to the process of inquiry involving the following consideration at [216]:-

“(a) S19B(1) itself consists of two stages. The first is the identification of a factor or factors of the character specified (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it is inexpedient to inflict any punishment or to reach the other conclusions provided for in the paragraph.

(b) S16A(2) of the Crimes Act identifies the matters that must be taken into account in exercising the second stage of the discretion in s19B; ….

(d) The significance of the conduct regulated by the statute which creates the offence is a consideration to which a sentencing judge must have regard in deciding whether it is “inexpedient” to impose punishment in a particular case; and

(e) General deterrence remains a relevant principle for sentencing Commonwealth offenders and it is appropriate to take such matters into account in determining whether to exercise the discretion under s19B”.

118. The first stage involves assessing the matters set out in s19B(1)(b). The first of those factors is significant here, namely the character, antecedents, age, health, and mental condition of the offender are all mitigatory factors. The offender is a 54-year-old man of otherwise good character who has worked all of his adult life.

119. The second factor concerns the extent (if any) to which the offence is of a trivial nature. It could never be said that making available child abuse material using a carriage service could be a trivial offence. The legislative scheme is designed to address what is pernicious offending which feeds a worldwide market in which the most vulnerable members of our community, namely, children are victimised and the suffering caused thereby is perpetuated indefinitely given the platform of dissemination provided by the internet. However, s19B does not require a finding that the offending was trivial but rather a determination of the extent to which the offence is of a trivial nature. That is to be determined by reference to the offending conduct and the circumstances in which it was committed – see Walden v Hensler, supra. Here, the offence was constituted by a communication which took place in a very short period of 3 minutes on a chatline which was not subject to dissemination and it involved no actual children. For an offence pursuant to s474.22(1) of the Criminal Code it was at the very-low end of objective seriousness for that offence. None of the factors of significance relevant to the possession, transmission and dissemination of child abuse material identified in Minehan v R [2010] NSWCCA 140; (2010) A Crim R 243 apply here. It was, therefore, an offence which was to an extent relatively trivial.

120. The third factor under s19B(1)(b) is the extent (if any) to which the offence was committed under extenuating circumstances. Here, the only extenuating circumstances were that the offence occurred during the COVID-19 pandemic lockdown when the offender relied on online forums to meet his social and personal needs. By engaging in the online telephone service, the offender was not committing an offence but rather it was the content of the communication which developed with RB which constituted the offending conduct.

121. These factors must be taken into account with the matters outlined above relevant to sentence pursuant to s16A of the Crimes Act. The offending of short duration comprising the two messages left on the chat site, the second of which recklessly contained child abuse material. There was no other evidence whatsoever that the offender had a sexual interest in child abuse material. Upon execution of the search warrant at his home his electronic devices were searched and no incriminating evidence was found on any of those devices.

122. I am mindful that general deterrence is the primary sentencing consideration for offences involving child abuse material and online sexual exploitation of children. The importance of general deterrence however is diminished here where the offending was at the very-low end of objective seriousness for an offence pursuant to s474.22(1) and the offender himself terminated the communication with RB following RB’s second message.

123. The offender has suffered extra-curial punishment in the termination of his senior position in the public service as a result of him being charged with the index offence. I am also mindful that usually, subjective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the offending – see Kearsley v R [2017] NSWCCA 28 at [14]. That principle does not apply here where the objective seriousness of the offending is low and the subjective considerations to taken into account are significant.

124. The offender’s counsel submitted that the Court would have regard to the fact that a conviction would mean registration pursuant to the Child Protection (Offender’s Registration) Act 2000, and this should be taken into account in arriving at a determination of sentence pursuant s19B.

125. S24A of the CSPA provides relevantly as follows:-

“24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing

(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender:

(a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or…”

126. In Sabel v R the Court held that s24A applies to federal offenders pursuant to the operation of the Judiciary Act 1903 – see [209]. I have therefore not taken this matter into account in the second stage of my determination pursuant to s19B of the Crimes Act, namely, whether “it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation.”

127. In weighing all of the above matters in the sentencing synthesis, I find that it is inexpedient to inflict any punishment other than a nominal punishment, and it is expedient to release the offender on probation. I propose to order pursuant to s19B(1)(d) that the offender be discharged without proceeding to conviction in respect of the index charge upon his giving security in the sum of $250 without sureties, by recognizance to be of good behaviour for a period of 12 months on condition that he will continue under the care of Dr Jones during the probation period, or for so long as Dr Jones determines is appropriate.

Orders

128. I make the following orders:-

1. In respect of the offence pursuant to s474.22(1) of the Criminal Code 1995 (Cth) that on or about 4 December 2020 at Surry Hills, NSW, you did make available material, using a carriage service, the material being child abuse material, I discharge you pursuant to s19B(1)(d) of the Crimes Act 1914 without conviction, upon you giving security in the sum of $250 without surety by recognizance to be good behaviour for a period of 12 months from today.

1. The following further condition will apply:-

That you will for the period of 12 months remain under the care of Dr L Jones for the duration of that period or for so long as Dr Jones determines is appropriate.

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Decision last updated: 20 October 2022