R v Maloney

[2024] NSWDC 691

District Court

New South Wales

Medium Neutral Citation:

R v Maloney [2024] NSWDC 691

Hearing dates:

15 March 2024, 27 June 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Criminal

Before:

Baker SC DCJ

Decision:

(1) For the State possession offence (Sequence 6), I impose a fixed term sentence of 12 months imprisonment commencing on 13 May 2023 and expiring on 12 May 2024.

(2) For the Commonwealth transmission offence (Sequence 1), I impose a sentence of 3 years and 9 months imprisonment commencing on 13 August 2023; and expiring on 12 May 2027. Pursuant to section 19AB(1) of the Crimes Act 1914 (Cth), I fix a non-parole period of 2 years and 4 months, expiring on 12 December 2025.

(3) To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management.

(4) I also direct that a copy of the two psychiatric reports of Dr Richard Furst, be supplied to those responsible for the supervision of the offender.

Catchwords:

CRIME — sentencing — Commonwealth and State offences — offence under the Criminal Code Act 1995 (Cth), s 474.22(1) — use a carriage service to transmit child abuse material — offence under the Crimes Act 1900 (NSW), s 91H(2) — possess child abuse material — objective seriousness — Bugmy considerations — motivation for offending — offender’s mental health

Legislation Cited:

Criminal Code Act 1995 (Cth)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Minehan v R [2010] NSWCCA 140

R v Hutchinson [2018] NSWCCA 152

Category:

Sentence

Parties:

Rex (Crown)
Kieran MALONEY (offender)

Representation:

Counsel:
Mr S Howell (offender)

Solicitors:
Mr B Scard (Crown)
Ms A Ritchie (offender)

File Number(s):

2022/00375425

JUDGMENT

Introduction

1. The offender, Kieran Maloney, appears for sentence for the offence that on or about 29 November 2022, he transmitted child abuse material using a carriage service, contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 15 years imprisonment (Sequence 1).

2. The maximum penalty serves as a yardstick to be balanced with all other relevant sentencing considerations. This penalty makes abundantly clear the seriousness with which Parliament views these types of offences and the need for firm punishment to be imposed.

3. The offender will also be sentenced for a related charge on a section 166 certificate: that on 13 December 2022, he possessed child abuse material, contrary to section 91H(2) of the Crimes Act 1900 (NSW) (Sequence 6).

4. The maximum penalty for this offence is 10 years imprisonment. However, when sentencing the offender for sequence 6 the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court. The most relevant of these restrictions is the jurisdictional limit that applies in that court is two years imprisonment for any one offence.

Plea of guilty

5. The offender entered a plea of guilty in the Local Court and this plea was entered at the first reasonable opportunity. The offender was committed for sentence on 25 August 2023. The Crown accepted that the plea of guilty reflected acceptance of responsibility and a willingness to facilitate the course of justice, but noted it was a “recognition of the inevitable” in the face of a strong Crown case. The Crown accepted that the offender was entitled to a 25% discount.

6. The offender’s plea of guilty does reflect an acceptance of responsibility by the offender, albeit in the face of a compelling Crown case, and indicates a willingness on behalf of the offender to facilitate the course of justice. I will apply a 25% discount for the offender’s guilty pleas.

Criminal history, arrest and time spent in custody

7. The offender has an extensive criminal history that includes offences of personal violence, contravening an ADVO, stealing, custody of a knife in a public place, and damaging property. However, the offender has no prior criminal convictions for sexual offences or child sexual offences.

8. The offender is not entitled to the leniency that might otherwise be afforded to an offender with prior good character.

9. At the time of the offending, the offender was serving a three-year Community Correction Order for an offence of assaulting an officer in execution of duty, with supervision by Community Corrections expiring on 6 August 2023.

10. The offender was also serving a sentence of imprisonment for 18 months for an offence of assault occasioning actual bodily harm, with a 6-month non-parole period expiring on 24 September 2022.

11. On 24 November 2022, the offender was released from custody on parole to attend residential drug rehabilitation. The offender was also granted bail in relation to a charge of reckless wounding.

12. The offender committed these two offences less than a week later and whilst on conditional liberty. This is an aggravating factor that I will consider in determining the appropriate sentences. However, I must be careful not to double count this aspect given the offender’s parole was revoked due to the commission of this offending.

13. He was arrested on 13 December 2022 and remanded in custody once again.

14. On 11 January 2023 the offender’s parole was revoked in relation to the sentence imposed for the assault occasioning actual bodily harm, on the basis that he was charged with the current offences. The offender was required to serve the balance of his parole commencing on 13 December 2022 and expiring on 12 October 2023.

15. On 29 March 2023, the offender was sentenced to a fixed term of imprisonment for 12 months for the reckless wounding offence, expiring on 24 November 2022.

16. Save for the brief 19-day period between 24 November 2022 and 13 December 2022, when the offender was on bail and parole, he has been in custody continuously since 26 November 2021.

17. The offender has been in custody solely referrable to these offences since 12 October 2023.

Sentence commencement date

18. In determining the commencement date for this sentence, the Crown asked the Court to have regard to the very short period of time that the offender was on parole before reoffending and the significant degree of leniency seen in the wholly concurrent sentence for the reckless wounding offence.

19. The Crown submitted that the sentence for these current offences ought to commence on 12 October 2023, being the date that the balance of his parole expired.

20. Mr Howell, Counsel for the offender, submitted the commencement date should be 13 December 2022, when the offender was arrested and taken into custody for these offences. This was submitted for the following reasons:

1. The fact that the offender committed the offences while on parole would already be taken into account as an aggravating factor, and the Court should be careful not to double punish the offender;

2. The offender’s parole was revoked because of the commission of these offences, which is a relevant consideration in determining an appropriate commencement date of a sentence;

3. The offender has been disadvantaged by the substantial delay in the finalisation of his matters; and

4. Considering his age and the period he had already spent in custody, the Court should consider the risks associated with long periods of custody being served by young offenders.

21. Balancing the matters referred to by Mr Howell with the point at which the offender pleaded guilty to these offences in the Local Court and considering the discretion available to a sentencing judge to backdate the commencement of a sentence, I consider that in all the circumstances the appropriate commencement date will be part way between his arrest date and the expiration of the balance of his parole, being 13 May 2023.

The agreed facts

22. There are agreed facts that set out the circumstances of the offending.

23. On 24 November 2022 the offender was released on parole and went to live at the Restoration Rehabilitation Centre in Richmond. At the time he was in possession of a Samsung Galaxy5 mobile phone.

Transmissions of Child Abuse Material – Sequence 1

24. On 29 November 2022 the offender used his mobile phone to transmit child abuse material to four different mobile phone numbers belonging to four separate women completely unknown to the offender.

25. The transmissions involved the offender sending multiple child abuse images to two of the women and sending a series of text messages to all four of the women that contained graphic descriptions of violent sexual acts that he said he either had committed or wanted to commit on babies, including acts of torture, rape and murder.

26. To properly recognise the magnitude of the explicit and extremely depraved nature of these messages and the likely shocking impact these transmissions would have had on these four unsuspecting women, it will unfortunately be necessary for me to refer to the sickening details of these messages.

First transmission

27. The first transmission involved the offender transmitting 16 images to the first woman. Those images were of real female children aged between 3 and 5 years old, in various stages of undress and involved in penetrative sex with adult men.

28. The offender accompanied those images with a series of five text messages in which the offender asked the woman if she “liked” the images and that he also had “loads” of videos of him “molesting newborn babies and torturing them”. The offender also said that he would “belt her (the baby) with whips chains and belts while she’s tied up there…till she’s screaming and crying her eyes out screaming for me to stop but no one can.”

Second Transmission

29. The second transmission involved the offender transmitting 54 images to the second woman. Those images were of real female children aged between 4 and 8 years old, in various stages of undress and being subjected to penetrative sex with adult men.

30. The offender accompanied these images with a series of 14 text messages in which he claimed to have videos of babies being “abused tortured and killed while getting raped.” This also included a description of the baby being “choked till purple and till death while raped”.

31. The offender also said he had videos of babies “getting whipped with chains and whips until bleeding and pissed all over”. The offender also expressed a desire to kill a baby with “my big cock by fucking it hard I wreck it’s [sic] inside of its belly.” The offender also went on to represent that he had kidnapped a baby a week ago and was intending to molest the baby that night and invited the woman to watch him do that by using FaceTime. The offender then stated that he was going to “fuck (the baby) till it’s lifeless and continue fucking it necrophilia styles.”

32. The offender then invited the woman to participate by “fuck(ing) a baby together” and asked her if she wanted to watch a video he had of a “baby getting whipped with chains while it’s screaming and crying it’s eyes out in so much pain” before dying from pain.

33. The offender completed this series of messages by telling the woman that he had a baby daughter of his own that fellates his penis each evening and that his girlfriend knew about this and “loved it”.

Third transmission

34. The third transmission involved the offender transmitting a series of six text messages to a third woman. The offender represented to this woman that he had a video of a baby being anally raped by him using atrocious and vile descriptions such as, “I have a video of me fingering a baby tiny little asshole and letting it suck and lick my cock and smelly sweaty asshole” and “look at this newborn babys nice little cunt mmm I wanna finger fuck it.”

35. The offender also made further disgraceful and repulsive comments about sexually abusing and torturing babies and asking the woman if she wanted to see a video of the baby being tortured. The offender went on to describe using “a barbed wired baseball bat damaging it’s inside bleeding out everywhere.” The offender ended these messages by asking the woman if she was into “incest, age play and rape fantasy” and that he could send her money for “a certain something.”

Fourth transmission

36. The fourth transmission involved the offender transmitting a series of five text messages to a fourth random woman again unknown to him. The offender represented to this woman that he had a video of a newborn baby being anally raped by him and a video of a baby and children being raped, tortured and killed. He offered to send the video to her to prove it. The offender again used the atrocious and vile description of “a barbed wired baseball bat damaging it’s inside bleeding out everywhere.”

Possession of child abuse material – sequence 6

37. On 13 December 2022 police officers attached to the Child Exploitation Internet Unit executed a search warrant at the rehabilitation centre where the offender was residing. Investigators seized the offender’s mobile and also discovered an image on his phone of the offender’s penis accompanied by the words, “wish my little new born baby niece was here to slobber and suck my big juicy cock and sweaty smelly balls just like she sucks on a dummy” which had been superimposed over the top of the image (Sequence 6).

38. During the search the offender denied knowing the mobile number used to send the text messages or that he was the user of a phone with that mobile number. He also denied that he knew anything about the child abuse material.

39. The offender was arrested and taken into custody. He declined to be interviewed and was then charged.

Supplementary evidence of the offender

40. The offender gave evidence at the sentence hearing and provided the following supplementary evidence regarding the offending.

41. The offender said that soon after he arrived at the rehabilitation centre he was offered and began using methamphetamine intravenously. He said he was shown by the other men at the centre how to source drugs using the Dark Web. The offender said he began seeking drugs from a Drug Forum “and somehow it led (him) to the porn site”. He said that the porn site had “kids and stuff...children.” The offender then said that “being on the ice, I’ve scattered I just - scrolling and just doing silly things on it…very stupid things, outrageous things.”

42. In relation to the women to whom he sent the messages, the offender said he had seen their mobile numbers on their escort pages on the internet, and “sent it” – being the child abuse images – “straight from the page through text message”.

The offender’s subjective case

43. The offender is a 26-year-old single male, who was 24 at the time of the offences.

44. His background is largely summarised in the first report of Dr Richard Furst, forensic psychiatrist, dated 10 February 2024, and supported by the affidavit of Karen Warwick, the offender’s mother, dated 6 March 2024. The offender also gave evidence at the sentence hearing.

45. The offender also tendered a letter from Mr David Simpkin, the Chaplain at Junee Correctional Centre, dated 14 February 2024. Mr Simpkin stated that the offender has been attending weekly chapel and bible studies and was “enthusiastic, respectful and polite”.

Personal and developmental history

46. The offender is the youngest of his siblings, with two older half-brothers. He was raised by his mother; his parents having separated when he was 2-3 years of age. In evidence, the offender described his upbringing as troubled and chaotic. There were times when he went to school without food and in dirty clothes. He said that at that time he felt very detached, dissociated and very alone.

47. His mother has schizophrenia and has had extensive treatment through mental health services. His father, who he did not see often, has a history of depression and obsessive-compulsive disorder. His brothers both have problems with drug addiction and criminal offending. The offender said they were tormenting and aggressive, and recalled times when they would hit and grab his mother by the throat. He also reported to Dr Furst a home invasion triggered by his older brothers, in which a large group of people entered his house, with knives and bricks being thrown through the windows.

48. Dr Furst reported that the offender had no apparent behavioural problems during his early childhood and described himself as an average student. However, he was expelled from several high schools for misbehaviour and left school half-way through Year 12 due to continual disobedience. He began a pre-apprenticeship bricklaying course at Wollongong TAFE but discontinued that course after a couple of months.

Medical and mental health history

49. The offender described to Dr Furst having a history of anger problems and mood-swings, and that he was also anxious. He described feeling ‘low’ in his mood since he was 15 or 16 and was negative in his thinking and lacked motivation when he was assessed by Dr Furst in September 2016.

50. The offender was hospitalised in January 2016 for drug induced psychosis after taking LSD and was prescribed the antipsychotic medication Risperidone. In the months and years following this admission, Dr Furst said that the offender reported symptoms including ‘overthinking’, feeling ‘disconnected’ and ‘detached’, lacking motivation and having a low mood. The offender indicated he had a lot of anxiety from around 2018 onwards and felt depressed. He was prescribed antidepressants to help with his depression.

51. The offender was thought to have had schizophrenia when assessed in 2016. However, Dr Furst said the offender’s diagnosis was revised to bipolar affective disorder considering his more prominent mood instability symptoms in his 20s. Those symptoms included periods of depression and hypomania/mania.

52. The offender suffered serious injuries in 2017 after a motorbike accident. He was hospitalised for 2 months and suffered from ongoing pain thereafter. He was also shot in the leg in March 2021 in the context of using drugs. The offender required surgery on his leg for a shattered femur and vascular surgery to repair his femoral artery.

History of drug use

53. The offender gave evidence that he first started to use cannabis at age 13. From then until the age of 17, his cannabis use increased to the point where he was smoking it every day. The offender said he stopped using cannabis in later adolescence and started taking “all different drugs…party drugs”, including MDMA and ketamine. He said he also used acid and as reported by Dr Furst, was hospitalised for drug-induced psychosis in 2016.

54. Following his serious motorbike accident in 2017, the offender said he began doctor shopping for oxycontin and morphine. He said he had withdrawals and was cut off by his doctors, so started getting opioids from the streets. He said he started smoking heroin to stop the withdrawals from the opioids and the pain. He also began using “all different types of [benzodiazepines]”, including Xanax, Valium and Clonazepam.

The offending

55. The offender told Dr Furst that he was “manic” at the time of the offending and that he was “not in his right frame of mind” and that he “felt ashamed of it.”

56. Dr Furst reported that the offender denied having any thought or fantasies of a sexual nature at the time of the interview and denied being sexually attracted to children. However, the offender acknowledged that he had sexual fantasies involving young children at the time of the offending but stated that he had not had them before or since.

57. The offender gave evidence that he was shocked by his offending behaviour and said that his ice use had “triggered it” and he did not believe he would have committed the offence if not for his deteriorating mental health and drug use.

55. The offender said that this offending has “caused him to wake up”. He said he was committed to continuing his anti-psychotic and anti-depressant medication, to remain on methadone and to access drug and alcohol and psychological treatment and counselling. The offender gave evidence that upon release he intends to continue with his treatment, hopes to get his driver’s licence and live with his mother.

56. Under cross-examination the offender conceded that whilst in the community over the past five years he had not stuck to his treatment and often resorted to drug use. He also conceded that although he had said in evidence (when referring to the offending) that he did not “like” or “want” to hurt people, he had convictions for violent offences, and he had targeted these women and sent them these terrible messages with very violent descriptions.

Diagnosis

60. Dr Furst said the offender now meets the DSM-5 TR criteria for the diagnosis of the following mental disorders:

1. Bipolar Affective Disorder;

2. Substance Use Disorder; and

3. Chronic Pain Disorder.

61. Dr Furst also reported that in addition to these disorders the offender has a history of persistent behavioural problems dating back to his childhood, anger management issues, oppositional disorder, negative peer associations and/or conduct disorder dating back to his childhood and comorbid substance abuse, most likely the combination of an unstable family home and the harbinger of the now obvious mood disorder.

Cause of the offending

62. In terms of the offending, Dr Furst was of the opinion that considering the presence of residual intermittent periods of elevated mood and the form of mania or hypomania, it would appear that the offender was experiencing such an elevated mood at the time of the offending.

63. Dr Furst also noted that “the motivations for his offending action are not clear” but that the messages “he sent to the four women who were strangers to him suggest he was trying to shock them.”

64. However, Dr Furst also opined that given the offender’s propensity towards mood instability, he was probably elevated and disinhibited when he sent the messages and images. Dr Furst was also of the opinion that the offender was “likely not thinking about the consequences of his actions” and that his judgment was “probably also impaired because of his elevated mood/disorder affective disorder.”

Conditions in custody/onerousness

65. Dr Furst also said that the offender’s history of bipolar affective disorder increases his vulnerability compared to other inmates, and that the stress of being incarcerated would probably increase the risk of him relapsing into more acute phases of depression and/or mania.

66. Dr Furst also said the offender would be more vulnerable to being ‘stood over’, intimidated, threatened and/or assaulted by other inmates. Indeed, the offender gave evidence that he had been threatened by other inmates in custody after they had learnt about the nature of his offences. He said they threatened to pull him into the toilets without the camera seeing and stab him.

Prognosis and risk of re-offending

67. In relation to the offender’s prognosis, Dr Furst reported that the offender’s available history suggests that he is likely to remain vulnerable to episodes of depression and mania by virtue of his bipolar effective disorder and that he will require assertive psychiatric treatment and follow-up over the longer-term to manage.

68. Dr Furst reported that the offender’s main risks posed are in the form of potential further relapses into more acute stages of depression and/or mania if his illness is not adequately managed. Dr Furst recommended that the offender receive ongoing treatment and psychotropic medication accompanied by regular reviews by a psychiatrist. Dr Furst also recommended the offender engage in psychological and drug and alcohol treatment and counselling.

69. In relation to the offender’s risk of reoffending, Dr Furst reported that the likelihood of the offender reoffending in a sexual manner, based upon “the available literature” was low. However, considering the offender’s history of mood instability, addiction issues, poor role-models and previous offending, Dr Furst identified the offender’s risk of re-offending in a non-sexual manner to be “moderate”.

The offender’s evidence - the offending and his state of mind

70. The offender gave evidence at the sentence proceedings about his state of mind at the time of the offending. The offences were committed five days after the offender was released from custody into the rehabilitation centre. The offender said that when he was granted bail to attend a rehabilitation program at the Restoration Centre he was “very excited” to the point it started making him feel “a bit manic”. He said that once he arrived at the centre he was offered “a lot of crystal meth” by the other males attending the program. He said, “they were shooting [him] up in the neck and shooting [him] in the arm”, and that he was taking ice throughout the day and throughout the night.

71. The offender said prior to the offending he had never experienced sexual thoughts about children. Although in evidence he accepted that at the time of the offences he likely did because of his conduct. The offender said he could not explain why he sent the images and messages to the women.

72. The offender expressed remorse for his conduct and said that he would cry thinking about what he had done, regretted it, and wished he had never done it.

Further evidence tendered on behalf of the offender

73. At the beginning of the sentence hearing, it became apparent that Dr Furst’s first report did not directly address the context of the offending, in that it addressed neither the offender’s drug use at the Restoration Centre, nor the interplay of that drug use with the offender’s mental state. The offender was granted an adjournment for the offender to obtain further evidence including an updated report from Dr Furst.

74. When the sentence proceedings were able to continue, the offender tendered an affidavit of Ms Ritchie (the offender’s solicitor) dated 24 June 2024 and an addendum to Dr Furst’s earlier report dated 16 June 2024.

Affidavit of Ms Ritchie

75. In the affidavit, Ms Ritchie stated that when she first spoke with the offender on 1 February 2023, he told her that there had been ‘plenty of drugs’ at the Restoration Centre. He also said that he had been using drugs, including ice and liquid G, at the time of the offending.

76. Ms Ritchie also said that at a case conference between the offender, Ms Ritchie and Mr Howell on 9 June 2023, the offender again raised that he was using ice and liquid G at the time of the offending. At a further conference on 7 March 2024, the offender told them that the other men at the Restoration Centre encouraged him to inject ice, using needles. The offender said he told them he had not done this before and that injecting ice, in addition to the medication he was on for his mental health, was causing him to ‘black out a bit’. Ms Ritchie said the offender described his mental health as poor and remembered feeling hypersexualised.

Dr Furst’s second report

77. In the addendum to the earlier report, Dr Furst addressed the offender’s methylamphetamine consumption at the time of his offending, in the context of his bipolar disorder.

78. Dr Furst said that the conduct involved in the offending is not typical of sex offenders in general or drug users (including those intoxicated with methylamphetamines) in particular, but that a significant proportion of people who commit offences involving child abuse material are intoxicated with alcohol, methylamphetamines and/or other drugs at the time of their offending.

79. He said that the methylamphetamine consumed by the offender preceding and at the time of his offending increased his energy level, libido and disinhibition. Dr Furst said that the interaction of this methylamphetamine consumption and the offender’s bipolar disorder likely made him less stable in his mood and more inclined towards mania or hypomania.

80. Notwithstanding this, Dr Furst relied upon his assessment of the offender’s risk of re-offending from his first report, in which he said the offender’s risk of re-offending for accessing further child abuse material is low, but that the offender’s risk of future criminal offending of a non-sexual manner is moderate.

Sentencing considerations

Approach to the sentencing

81. When sentencing the offender for Sequence 1, I must have regard to Part 1B of the Crimes Act 1914 (Cth) and in particular the matters provided for in section 16A of that Act.

82. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances.

83. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court. This list of factors is not exhaustive and common law principles also apply to the sentencing of federal offenders.

84. When sentencing the offender for Sequence 6 I will have regard to the purposes of sentencing and the other relevant considerations under the Crimes (Sentencing Procedure) Act 1999 (NSW).

85. The Court may only impose a sentence of imprisonment if having considered all the other available sentences, it is satisfied that no other sentence is appropriate in all of the circumstances. The offender accepted that a sentence of full-time imprisonment was the only appropriate sentence for both offences.

Child abuse material

86. Child abuse material is an international problem which has attained prominence in the internet age and continues to plague the community. The courts have repeatedly stressed the need when sentencing for such matters to give primacy to general and specific deterrence and denunciation. General deterrence generally requires harsh penalties be imposed. Such penalties are designed to signal what will happen if an offender is caught and hopefully deter people from offending. Sadly, harsher penalties have not dented the production and dissemination of such deviant images. However, another reason for the harsh penalties is that those inclined to exploit children by involving them in the production of child pornography or child abuse material are encouraged by the fact that there is a market for it. Those who make up the market cannot escape responsibility for the exploitation of these real child victims.

87. It should also be kept in mind that the possession of child abuse material is not a victimless crime. On the contrary, because the material remains in the community the offence creates significant ongoing harm.

Nature and circumstances of the offending

The objective seriousness

88. In written submissions the Crown submitted that in relation to both charges the offending was serious. In support of this the Crown referred to Sequence 1 as involving the offender transmitting 70 images depicting the penetration of real female children aged between 3 and 8 years by adult men, and in relation to the text-based child abuse material, it included vivid descriptions of violent behaviour the offender wished to engage in with children, including torturing and raping a child until they died. In relation to Sequence 6 the image of the offender’s penis also included superimposed text that referred to the sexual assault of a newborn niece in similar depraved terms.

89. In oral submissions the Crown noted that it was rare to find offending of this kind that is not clearly motivated by a sexual interest in children. However, the Crown submitted that although the evidence may not support a finding that the offender’s conduct was borne out of a continuing sexual interest in children, considering the context, the innocent recipients, and extreme nature of these malevolent messages the offending is no less serious.

90. Mr Howell acknowledged the seriousness of the offending, noting that the course of conduct involved in the transmission of child abuse material took two forms – the images to the first two women and his text messages to all four women. Mr Howell also acknowledged the obviously disturbing and abhorrent nature of the transmissions.

91. However, Mr Howell submitted that the relevant context was critical to an assessment of the offending. Mr Howell submitted that the offender seems contextually to have accessed the images very soon before disseminating the images and messages and that this was done impulsively over a short period of time, being all on the same day. Mr Howell also submitted that much of what was represented in the offender’s text messages was patently untrue or unachievable. Mr Howell also submitted that the offender appears to have been manic at the time of the offending, and his bipolar affective disorder appears to have contributed to the commission of the offences.

92. In relation to the objective seriousness of the related offence (Sequence 6), Mr Howell acknowledged that this involved the possession of a single image which the offender “doctored”, likely for his use in his engagement with others over the internet. However, despite the utterly abhorrent and obscene nature of this image Mr Howell submitted that this offending did not add much if anything to his overall criminality.

Finding on objective seriousness

93. There are a number of well-established factors which bear upon the assessment of the objective seriousness of these types of offences. Those factors are set out in Minehan v R [2010] NSWCCA 140 at [94] and summarised in R v Hutchinson [2018] NSWCCA 152 at [45]. Relevant factors that are present in Sequence 1 include:

1. That actual children were used in the creation of the images involved;

2. The nature and content of the material transmitted, including the very young ages of the children (in terms of the images - 3- to 8-year-olds and newborn babies in the text messages) and the gravity of the sexual activity portrayed (the images involved penetrative sexual assaults and acts of painful anal penetration of babies and necrophilia referenced in the messages);

3. The extent of any cruelty or physical harm occasioned to the children (the messages included references to gratuitous acts of violent rape, torture and murder using implements such as whips, chains and barbed wired baseball bats resulting in painful deaths from choking and internal bleeding); and

4. The number of images involved (being 70 images and 30 separate text messages) and the number of persons to whom the material was transmitted (being four random innocent women).

94. The difficulty the Court confronts in assessing the objective gravity of this offending is that although the nature and content of the 70 images transmitted is consistent with the vile and despicable child abuse material that is regrettably often seen by sentencing judges, the offender’s conduct and his apparent motivation in sending the images and the messages, in conjunction with the extreme terms of the messages, is even more disturbing.

95. Although the offending occurred over a short period of time, during which the offender’s impulsive behaviour was disinhibited and his judgment compromised by the combination of his mental condition and his drug use, he nonetheless targeted four random and innocent women, seeking to cause them what can only be described as mental anguish and psychological harm. To two women he sent the images. To all four he then deliberately composed and sent 30 text messages that contained the most shocking details of things that he represented he had done, was doing and intended to do to babies. These messages were made then worse by his suggestions and invitations for the women’s involvement. The fact that these acts were untrue or unachievable would not have been known to these four unsuspecting recipients. The offender’s ulterior purpose appears to have been to gratuitously inflict on them significant shock or psychological harm.

96. Considering all these circumstances, I find the offending in Sequence 1 to be very grave indeed.

97. In relation to Sequence 6, whilst this possession charge relates to a single image, the offender’s use of his own penis, the reference to the offender’s fictional “little newborn baby niece”, the graphic depraved terms of the superimposed “wish” of the offender and its obvious connection to the other offending, significantly elevates the seriousness of this offence such that it is also a very serious offence of its type.

Subjective considerations

Moral culpability – Bugmy and mental illness considerations

98. An offender will be less morally blameworthy for an offence where the offender’s disadvantaged background or mental condition explains, is connected with or otherwise sheds light on the offending. A strict causal connection is not required before a Court can make a finding of reduced moral culpability. However, it is important to note that this may not necessarily mitigate the overall sentence imposed on an offender, as an offender’s background does not have the same mitigatory relevance for all of the purposes of sentencing. For example, an offender’s background of deprivation and disadvantage and resultant mental illness may explain that the offending occurred due to the offender’s inability to control that behaviour. However, this difficultly in self-control may then increase the importance of protecting the community from the offender.

99. Mr Howell submitted that the offender’s background and personal circumstances have been marked by profound deprivation and disadvantage. He submitted that the offender was exposed to violence, mental illness, and neglect at a young age and that there is a connection between his background of deprivation, his resort to drugs and resultant mental illness and the offences. Mr Howell also submitted that based on Dr Furst’s opinion the offender’s mental condition impaired his judgment at the time of the offending. Ultimately Mr Howell submitted that the offender’s background and his mental illness reduce his moral culpability for his offending to some extent.

100. The Crown accepted that given the offender’s background and mental illness a finding of reduced moral culpability is open and appropriate.

101. There is little doubt that the offender has a compelling subjective case. He suffered significant disadvantage and trauma throughout his childhood. This factor will be given “full weight” on sentence and is relevant to a reduction of his moral culpability.

102. The offender’s mental illness at the time of the offending also sheds light on the offending to some degree and also somewhat reduces the offender’s moral culpability. However, conversely this also renders the offender more of a danger to the community, requiring greater weight be given to the need to protect the public.

103. I will take the offender’s reduced moral culpability into account on sentence. I also take into account the way the offender’s background and mental health issues mean that his time in custody will be more onerous.

Remorse

104. I find that the offender is genuinely remorseful. In evidence, the offender said that he is “very remorseful” and that he cries thinking about the offences at night. He agreed that the content of the messages he sent was disgraceful. He said he doesn’t know why he did it and regrets his offending.

Prospects of rehabilitation and risk of reoffending

105. The offender has expressed a desire to address the cause of his offending. He has made some progress in custody by seeking out pastoral care, abstaining from drugs and taking his anti-depressant and anti-psychotic medication. However, given his background and offending history, I find his prospects of rehabilitation to be guarded.

106. In relation to his risk of reoffending, given that his current offending appears to be more driven by the factors that underpin his previous non-sexual offending such as his mood instability and addiction issues rather than an identified sexual interest in child abuse material, I find that his risk of reoffending is moderate.

The objective of rehabilitation

107. I have separately considered s 16A(2AAA) of the Act which requires the Court when making an order or considering the length of any sentence to have regard to the objective of rehabilitating the offender, including imposing conditions or treatment options. The Court must have regard to the objective of rehabilitating the offender in respect of Sequence 1, including by considering whether it is appropriate to impose conditions about rehabilitation or treatment options (when making an order) and in determining the length of any sentence or non-parole period to include sufficient time for the person to undertake any rehabilitation program.

108. However, the objective of rehabilitation does not displace the requirement for a sentence to be of a severity appropriate in all of the circumstances of the offence. The principal purpose of rehabilitation is to protect the community by ensuring the offender is required to undertake treatment in custody or upon release to prevent reoffending.

109. There will be a sentence of immediate imprisonment imposed. However, I will include a condition of release that the offender be supervised by the Department of Community Corrections and such supervision includes compliance with all reasonable directions as to ongoing treatment and counselling with a suitably qualified health professional.

Instinctive Synthesis

110. The intuitive process of sentencing involves synthesising the objective seriousness of the crime and the subjective circumstances of the particular offender to arrive at a sentence that best meets the purposes of sentencing.

111. There are a number of sentencing considerations that are relevant when considering the appropriate sentence for the Commonwealth offence. There are some similar sentencing considerations that are relevant when considering the State possession offence.

112. These purposes of sentencing often overlap and may point in different directions and reach different conclusions. Of necessity, the promotion of the rehabilitation of the offender, if successful, is the best way of ensuring the offender does not commit further similar offences. Despite the promotion of rehabilitation, a different conclusion or different synthesis may be arrived at when factoring into the sentence adequate punishment, denunciation of the conduct and recognition of the harm to the community or victim.

113. In any event, each of the purposes of sentencing are guidelines to the fixing of an appropriate sentence and none of them can, nor should, be considered in isolation.

114. I will balance all these purposes when sentencing this offender and apportion the appropriate weight to each in the process of assessing the necessary sentence by way of instinctive synthesis.

Determination

115. As I have already referred to, I have made a finding that the offender’s moral culpability was reduced to some extent by reason of his childhood experience and his mental health issues. Accordingly, the need for general deterrence is also reduced to some extent. At 25 years of age, promoting the offender’s rehabilitation is also an important consideration.

116. However, in relation to both offences, given the circumstances of this case there still remains a significant need for general deterrence. Specific deterrence, retribution and denunciation and recognising harm to the victims; whilst also holding the offender to account for his offending, are also important considerations. There is also a need for protection of the community.

117. For these reasons I am satisfied that in all the circumstances of this case no sentence other than full-time imprisonment is appropriate for both offences.

Accumulation and totality

118. It is necessary to impose separate offences for the Commonwealth and the State offending. The State possession offence will commence first.

119. Mr Howell submitted that the criminality involved in the related State possession offence (Sequence 6) is capable of being reflected by the sentence imposed for the principal offence. Mr Howell submitted that the court could impose a fixed term to be served concurrently with the Commonwealth transmission offence (Sequence 1). Whilst the state possession offence is significantly less serious than the compendious Commonwealth offence and clearly interconnected with that offending, I consider that it does represent a separate aspect of criminality that should be reflect in the sentence. However, it will take the form of a very modest accumulation.

120. In determining the appropriate sentence, I have also had careful regard to the totality principle, the fact that apart from the short period the offender spent in the community when these offences were committed the offender has been in custody since 26 November 2021, and that this sentence will now involve him spending further time in custody.

Orders

121. Synthesising all of the matters I have referred to and reducing both offences by 25% for the offender’s guilty pleas I make the following orders:

1. Mr Maloney, you are convicted of Sequences 1 and 6.

2. For the State possession offence (Sequence 6), I impose a fixed term sentence of 12 months imprisonment commencing on 13 May 2023 and expiring on 12 May 2024.

3. For the Commonwealth transmission offence (Sequence 1), I impose a sentence of 3 years and 9 months imprisonment commencing on 13 August 2023; and expiring on 12 May 2027. Pursuant to section 19AB(1) of the Crimes Act1914 (Cth), I fix a non-parole period of 2 years and 4 months, expiring on 12 December 2025.

4. That means that, for the federal offence, Mr Maloney you will be imprisoned for not less than 2 years and 4 months after you have served 3 months of the state offence.

5. That means you will serve an overall period of 2 years and 7 months in custody before being eligible for release on parole. If you are granted parole at the end of that time, you will serve the balance of the sentence, being 1 year and 5 months, in the community.

6. If you are granted parole, the order will be subject to conditions determined by the relevant parole authority and may be amended or revoked. If you fail, without reasonable excuse, to comply with the conditions of your parole, parole may be revoked and you may be taken back into custody to serve the remainder of the head sentence.

7. To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management.

8. I also direct that a copy of the two psychiatric reports of Dr Richard Furst, be supplied to those responsible for the supervision of the offender.

Decision last updated: 31 October 2025