R v Meers

[2023] NSWDC 148

District Court

New South Wales

Medium Neutral Citation:

R v Meers [2023] NSWDC 148

Hearing dates:

5 May 2023

Date of orders:

10 May 2023

Decision date:

10 May 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 183 – 188

Catchwords:

CRIMINAL LAW - sentencing – state and federal offences – state offence of producing child abuse material – consideration of difference to possession and dissemination offending – federal offences of possession, production and transmission of child abuse material – offender’s reliance upon mental impairment and childhood disadvantage as reducing his moral culpability - co-operation with law enforcement authorities – facilitation of administration of justice – hardship to offender and third parties

Legislation Cited:

Crimes Act1900 (ACT) s 61B

Crimes Act1900 (NSW) ss 91F, 91H

Crimes Act1914 (Cth) ss 3LA, 16A, 16F, 17A, 19AB, 20AB, 21

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 22A, 53A, 67

Cases Cited:

Brierley v R [2022] NSWCCA 26

Bugmy v R (2013) 249 CLR 571

Dennis v The Queen [2017] VSCA 251

DH v R [2022] NSWCCA 200

DPP (Cth) v Beattie [2017] NSWCCA 301

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

DPP (Cth) v Garside [2016] VSCA 74

DS v R; DM v R [2022] NSWCCA 156

Giles v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 395; [2009] NSWCCA 308

Glasheen v R [2022] NSWCCA 191

Hili v The Queen (2010) 242 CLR 520

Hutchison v R [2022] VSCA 217

JL v R [2014] NSWCCA 130

Johnson v The Queen (2004) 78 ALJR 616

Makarian v The Queen (2005) 228 CLR 357

R v Appleby [2021] ACTSC 55

RvAsplund (2010) 216 A Crim R 48

R v Booth [2009] NSWCCA 89

R v Cardwell [2021] QCA 112

R v De Leeuw [2015] NSWCCA 183

R v Delzotto [2022] NSWCCA 117

R v Ellis (1986) 6 NSWLR 603

R vGajjar (2008) 192 A Crim R 76

R v Glasheen [2021] NSWDC 544

R v Hutchinson [2018] NSWCCA 152

R v Martin [2014] NSWCCA 283

R v Mould [2020] NSWDC 670

R v Porte [2015] NSWCCA 174

Spartaco Fasciale v R [2010] VSCA 337

Totaan v R [2022] NSWCCA 75

Ungureanu v R [2012] WASCA 11

Weber v R [2020] NSWCCA 103

Texts Cited:

Nil

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (CDPP)
Mr B Meers (offender)

Representation:

Solicitors:
CDPP
Ms N Konic for the offender

File Number(s):

2022/00756666

Publication restriction:

Non-publication of victims’ and childrens’ names

SENTENCING REMARKS

Introduction

1. The offender is before the Court for sentencing following pleas of guilty on 20 December 2022 to 9 offences generally relating to child abuse material. He adhered to those guilty pleas at the commencement of the sentencing hearing. The sentencing exercise is made more complex because of the mix of federal (five) and state (four) offences. The sentencing for the federal offences occurs under the Crimes Act 1914 (Cth) and especially, the range of factors in s 16A (insofar as they have been referred to by the parties); whereas sentencing for the state offences occurs under Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’). In what follows in these remarks, I will, where it becomes appropriate, refer to the provisions of the Crimes Act and corresponding provisions under the CSP Act when addressing the salient considerations.

2. The details of each offence, the relevant statutory provision and their maximum penalties (there being no statutory non-parole periods for the state offences) are set out in the below table.

3. But before I set out that table, I note that prior to the commencement of the sentencing hearing, following indications from the victims, the parties identified the victims in accordance with a particular code which they asked the Court to utilise in the sentencing hearing and in these remarks. The victims, and the respective codes are in MFI 2.

Sequence	Offence	Statutory provision	Maximum penalties
1	Possess or control child abuse material in the period from 23 June 2020 to 16 March 2022	S 474.22A Criminal Code (Cth)	15 years’ Imprisonment
12	Produce child abuse material from 1 December 2018 to 30 January 2019 Victim 1	S 91H(2) Crimes Act 1900 (NSW)	10 years’ imprisonment
13	Produce child abuse material from 1 June 2016 to 1 June 2020 Victim 2	S 91H(2) Crimes Act 1900 (NSW)	10 years’ imprisonment
19	Produce child abuse material from 1 December 2019 to 1 April 2020 Victim 3 and Victim 2	S 91H(2) Crimes Act 1900 (NSW)	10 years’ imprisonment
20	Produce child abuse material from 1 November 2019 to 30 August 2020 Victim 4	S 91H(2) Crimes Act 1900 (NSW)	10 years’ imprisonment
22	Transmit child abuse material from 22 June 2021 to 27 February 2022	S 474.22(1) Criminal Code (Cth)	15 years’ Imprisonment
26	Make available child abuse material from 22 June 2021 to 27 February 2022	S 474.22(1) Criminal Code (Cth)	15 years’ Imprisonment
27	Solicit child abuse material from 22 June 2021 to 27 February 2022	S 474.22(1) Criminal Code (Cth)	15 years’ Imprisonment
37	Cause child abuse material to be transmitted from 30 December 2021 to 23 January 2022	S 474.22(1) Criminal Code (Cth)	15 years’ Imprisonment

4. The offender has been in custody since 16 March 2022.

Nature and circumstances of the offending (Crimes Act, s 16A(2)(a))

5. The parties are agreed as to the following facts.

6. On 16 March 2022, the Australian Federal Police received a referral from the National Centre for Missing and Exploited Children. Federal Police subsequently attended the offender’s residence to execute a search warrant.

7. Federal Police seized 2 hard disks, 3 USBs, 1 laptop computer and 2 apple iPhones and subsequent analysis of the contents of the devices revealed evidence forming the basis of the charges against the offender.

Seq 13

8. Between 1 June 2016 and 1 June 2020, the offender used a hidden camera to covertly film Victim 2 on six distinct occasions. Victim 2 was 12 – 15 years old in the relevant period, thereby producing child abuse material.

9. The offender and victim 2’s family were close friends for the 10 years preceding the offender’s arrest. The offender regularly socialised with the victim’s family, including over weekend trips and at times, the victim’s family would stay overnight in the offender’s caravan.

10. The offender produced the child abuse material without Victim 2’s consent or knowledge that she was being recorded.

11. The six distinct occasions included:

• between 1 June 2016 and 1 June 2017: Victim 2 was alone in a room in the offender’s caravan, she undressed and changed clothes revealing her breasts and vagina in the process. Victim 2 was aged between 12 and 13 years old. The video produced was 2 minutes and 57 seconds in duration.

• between 1 June 2016 and 1 June 2020: Victim 2 was sleeping in a nightie on a bed. The video focused on her exposed buttocks. The victim was 12 and 15 years old. The video produced had a duration of 19 seconds.

• between 1 June 2019 and 1 June 2020: Victim 2 entered the room, undressed and changed clothes revealing her breasts in the process. The video produced had a duration of 6 minutes and 24 seconds.

• between 1 June 2019 and 1 June 2020: Victim 2 entered the room, undressed until she was completely naked and changed clothes. She then exited the room. The video produced was 7 minutes and 11 seconds.

• between 1 June 2019 and 1 June 2020: Victim 2 entered the room, undressed until she was completely naked and changed clothes. She then exited the room. The video produced was 11 minutes and 1 second.

• between 1 June 2019 and 1 June 2020 Victim 2 entered the bathroom then was later seen naked as she dried herself after a shower. She then exited the bathroom. The video produced had a duration of 27 minutes and 59 seconds.

Seq 12

12. Between 1 December 2019 and 30 January 2019, the offender used a hidden camera to covertly film victim 1. Victim 1 was 10 years old at the relevant time.

13. [REDACTED]. 

14. This offending comprised the offender setting up a hidden camera in the offender’s bedroom before exiting the room and telling victim 1 that she could use the room. Victim 1 then entered the bedroom and undressed until she was completely naked and then changed into different clothes. She then exited the room. The video produced was 1 minute and 42 seconds in duration.

Seq 20

15. Between 1 November 2019 and 30 August 2020, the offender used a hidden camera to covertly film Victim 4 on two occasions. Victim 4 was 11 years old at the relevant time, thereby producing child abuse material.

16. [REDACTED]. 

17. The offender set up a hidden camera in the bathroom at the residence.

18. On both occasions, Victim 4 entered the bathroom and undressed for the shower until she was completely naked. She showered, dried herself, got dressed and exited the bathroom. The first video produced was 12 minutes and 6 seconds in duration. The second video produced was 10 minutes and 51 seconds in duration.

19. The offender produced the child abuse material without the consent or knowledge of victim 4.

Seq 19

20. Between 1 December 2019 and 1 April 2020, the offender used a hidden camera to covertly film Victim 2 and Victim 3. The victims were 15 years old at the relevant time, thereby producing child abuse material.

21. Victim 3 was friends with Victim 2 and accompanied her on a number of skiing trips with Victim 2’s family and the offender’s family around the beginning of 2020.

22. The offender set up a hidden camera in a room inside the offender’s caravan. The victims entered the room together. Victim 2 changed her tampon and then changed clothes exposing her breasts and vagina in the recording. Victim 3 then re-entered the room and also changed clothes. Victim 3 removed her underpants and bra to change into a swimming costume with her hands and legs visible in the recording. The periods of time where Victim 3’s vagina was exposed were outside the left side of the camera’s view and were not captured on the recording. The video produced was 6 minutes and 15 seconds in duration.

23. The child abuse material was produced without the consent or knowledge of the victims.

Seq 22, 26, 28 and 27

24. Between 22 June 2021 and 27 February 2022, the offender engaged in chat conversations via the ‘Telegram’ messaging application with seven separate users. During this time, the offender:

• transmitted child abuse material (seq 22);

• made available child abuse material by the provision of links to other sites that contained child abuse material (seq 26);

• caused child abuse material to be transmitted to himself (seq 28); and

• solicited child abuse material in response to which the offender received links to other sites that contained child abuse material (seq 37).

25. The ‘Telegram’ messaging application is a cloud based mobile and desktop messaging application that allows users to send and receive encrypted messages that can include text, audio, video and images.

26. Police’s examination of the offender’s iPhones located the Telegram messaging application and within the messaging application, Police identified the following offending:

• between about 22 June 2021 and 27 February 2022, the offender transmitted links to child abuse material to a total of 6 users on multiple occasions.

• between about 22 June 2021 and 27 February 2022, the offender solicited child abuse material from 7 users and as a result received links to child abuse material on multiple occasions.

• on 27 February 2022, the offender transmitted a video and multiple other files containing child abuse material to the username ‘Bac’.

• on 27 February 2022, the offender caused child abuse material to be transmitted to himself from the username ‘Bac’.

27. A transcribed copy of the conversations with descriptions of some of the material sent and received between the offender and the 7 other users was annexure ‘A’ to the Agreed Facts.

28. The facts in Annexure ‘A’ are extensive, but may be summarised as follows. Between 22 June 2021 and 27 February 2022 the offender had the chat conversations with the 7 users in which child abuse material or links to child abuse material were traded. The ‘users’ were identified by name. At the time of the offender’s arrest, the links had expired and could not be accessed by police.

29. The child abuse material in the ‘chat conversations’ was truly vile. Specific details are set out in paragraphs 2, 7, 11, 14, 16 and 17-18 (incl). If it is possible to generalise in a summary fashion, they feature videos depicting prepubescent female children being forced to perform sexual acts upon themselves or upon adults and often adults engaging in indecent or sexual assaults (featuring sometimes rough penile-vaginal or penile-anal sexual intercourse) upon those female children; completely heedless of the welfare of these children.

Seq 1

30. Between at least 23 June 2020 to 16 March 2022, the offender was in possession of child abuse material which he obtained via the internet across 6 different devices.

31. A total of 6328 video files and 66,236 picture files consisting of child abuse material were located by police across the 6 devices.

32. A description and breakdown of some of the child abuse material located on each device was contained in Annexure ‘B’ to the Agreed Facts, and the descriptions were referred to in paragraphs 4, 10, 13, 17, 19, 22 & 26. The content of this material was consistent with the content of the videos referred to in Annexure A, which I have described.

Supplementary evidence

33. As I will indicate at greater depth later in these remarks, the offender gave evidence in the sentencing hearing; primarily to address matters pertinent to his personal circumstances. But during the course of his cross-examination, he accepted that he had not only downloaded child abuse material on to his hard drive, but had separately stored it on to multiple other devices. This, he acknowledged, was because of a desire to retain or preserve the content of the material; there being sometimes issues with the preservation of material downloaded on the hard drive.

34. He also indicated that he had kept the hard drive and USBs in a laptop bag in his home office. There was no lock to the door of that office, so he accepted that it was possible that his wife or two children might (if they were inquisitive) access the material themselves.

Evaluation of objective seriousness of conduct

35. For offences involving child abuse material, the types of considerations typically engaged in by sentencing judges were described in R v Hutchinson [2018] NSWCCA 152 at [44]-[45] and I respectfully adopt that statement of principle.

The state offences: Seq 12, 13, 19 & 20

36. As to the state offences, s 91FB(1) defines “child abuse material” as follows:

“child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensives -

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.”

….

As from 1 June 2016 to 20 June 2018:

(4) The “private parts” of a person are:

(a) a person’s genital area or anal area, or

(b) the breasts of a female person.

As from 21 June 2018 to 30 August 2020:

(4) The “private parts” of a person are –

(a) a person’s genital area or anal area, whether bare or covered by underwear, or

(b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

37. My impression is that most sentences for offences under s 91H(2) of the Crimes Act 1900 (NSW) concern the ‘dissemination’ or ‘possession’ of child abuse material. There are not many that deal with the nature of the offending concerning the ‘producing’ of such material. When I articulated that impression, Mr Crown did not disagree with me. One such decision was R v Mould [2020] NSWDC 670 (Neilson DCJ), although that decision concerned production of a different kind of ‘child abuse material’ to what I am dealing with. A more relevant decision is R v Martin [2014] NSWCCA 283 (“Martin”), one of the ‘comparable’ cases cited by the Crown in connection with the federal offences.

38. Although every case turns on its own facts, at the risk of generalising, it seems to me that, at least in the abstract, ‘producing’ material of this nature might be potentially more serious, at least, than possessing it (Martin at [68]), which is essentially passive conduct. The conduct in ‘producing’ child abuse material inherently suggests planning, and a level of some intellectual activity in order to create something which did not previously exist; and may be more likely to involve a more direct or immediate relationship with the victim. The directness is at least in a sense one of physical proximity but may also occur, as it did here, with victims who are known to the perpetrator. These factors, as I will later remark, naturally fall within statutory aggravating factors. But the assessment of seriousness of production partly depends upon purpose for the production: whether it is for the ‘producer’s’ own gratification or for monetary (or some other) gain which might accrue through disseminating it to others. Dissemination of child abuse material is also serious in itself, for example, by reason of its contribution to a market. But without production of the material, there would be nothing to disseminate.

39. As to the other factors that bear upon the objective seriousness of the child abuse material offences, the Crown’s submissions were scarcely challenged, and I accept them.

40. Before I consider them, I note that both the Crown and the offender’s written submissions resorted to the discourse of where the offending fell with reference to the “mid-range”. Following the Court of Criminal Appeal’s decision in DH v R [2022] NSWCCA 200 and especially, with respect, the additional observations of Yehia J, I prefer not to use that terminology for the state offences. It is even less apposite for federal offences where there are no statutory non-parole periods.

41. There are close similarities in this offending, identified by the Crown:

1. there were real victims depicted in the material produced;

2. for two of the victims, they were undressing and at certain points seen to be naked;

3. none of the victims knew of or consented to the material being produced.

42. The material for sequence 19 was of longer duration than for sequence 12.

43. The Crown submitted in writing that there was no evidence that this particular child abuse material was disseminated. But in oral argument, Mr Crown accepted that it could be inferred that the material was for the offender’s private consumption, given that some of the video content identified the offender himself and it occurred in a home setting: it was suggested that it would be improbable that the offender would wish to disseminate such material since it might identify him. Further, it was not the case that the victims were engaging, or appearing to engage, in sexual posing or sexual activity, which also would have made the offending more objectively serious than it was.

44. The offender referred to an observation of Dr Ellis, the forensic psychiatrist, to the effect that ‘physical and psychological coercion’ had not been used on the victims. That may be so, but it hardly assists the offender other than to say that the offending could have been worse than it was. As I pointed out in argument, the need to exert control upon a victim when filming the victim is obviated where, as here, the victim is ignorant in the first place about the offending that is, or is about to be, perpetrated against the victim through the offender’s concealment or deception; which connotes greater planning than any typically spontaneous exertion of ‘control’; which usually arises after attempts to cajole or persuade victims have failed.

42. Putting aside momentarily aggravating matters, all of the offending for these state offences was serious.

Aggravating circumstances for State (sequence 12, 13, 19-20) offences

46. The offender’s solicitor conceded that the following aggravating factors were engaged for these offences:

1. the offending occurring in the victim’s home (or something analogous to it) (s 21A(2)(eb);

2. the offender’s abuse of trust by producing the material without the victims’ knowledge (s 21A(2)(k)) (I will return to this particular matter later in connection with harm to the victim);

3. the offending involved a level of planning and premeditation through setting up of the filming (s 21A(2)(n)).

47. These concessions were properly made. As a further matter, which I address in a separate sub-heading shortly in these remarks, the offending was part of a course of conduct.

The federal offences: sequences 1, 22, 26, 27 & 37

Seq 1

48. I accept the Crown’s emphasis upon the following features of sequence 1, which was not contested by the offender. Across no less than 6 digital devices was a total of 6,328 video files and 66,236 picture files. Actual children were used in the creation of most of the material. Real children were depicted, some aged as young as two years, in a variety of rough penetrative vaginal and anal intercourse and even bestiality. Necessarily, the nature of the material involved substantial cruelty inevitably causing mental harm upon vulnerable children. The volume and nature of the material, and also the transferring of material from the hard drive to the devices indicates the very serious objective nature of the offending.

49. The offender’s solicitor argued that there was significant duplication in the material across the devices. A similar submission was considered in one of the comparable cases referred to by the Crown, being R v Martin [2014] NSWCCA 283 at [13]. However, the Court of Criminal Appeal observed (at [71]) that it is wrong to reason from the circumstance that material is downloaded on a computer, that all other criminality relating to the use of the material is of no or minimal consequence. In this case it was transferred to multiple devices.

Seq 22 & 37

50. The Crown bracketed these offences. The offender used the ‘Telegram’ messaging App to transmit, or cause to be transmitted child abuse material with a person with the username ‘Bac[Russian Characters]. This means of transmission involved encryption that made it difficult to detect. The material depicted real prepubescent female children in sexual acts and the offender caused material to be transmitted to himself from that user name. The nature of the material indicated that the offending was serious.

Seq 26 & 27

51. This reflected the trading activities of the offender in relation to this material: the making available to 6 others of the material (by transmission of links) and the solicitation of material from 7 others over a period of about 7 months. Real children were depicted and I agree with the Crown’s submission that the graphic content of the material exhibited a high degree of depravity, indicating extremely young children engaging in vaginal and anal intercourse with adults and other children and even depictions of children visibly distressed and crying. Both offences were very serious.

Course of conduct (Crimes Act, s 16A(2)(c); CSP Act, s 21A(2)(m))

52. In Giles v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 395; [2009] NSWCCA 308 at [49], Basten JA observed:

“It is not in dispute that a course of conduct may be taken into account, if satisfactorily established, to deny an offender the benefits of leniency flowing from an assumption that the offences charged were isolated incidents.”

53. Those observations were recently adopted in Brierley v R [2022] NSWCCA 26 per Harrison J (Fagan J agreeing) at [19], in the context of the state offence considered here.

54. For sequences 13 and 20 (state offences), they were each ‘rolled up’, in the sense of comprising multiple instances of offending, involving two distinct victims, within each sequence. For sequence 13, the offending occurred on different occasions between the period 1 June 2016 to 1 June 2020. For sequence 20, instances of offending occurred on different occasions in the period between 1 November 2019 and 30 August 2020. In the case of sequence 13, 6 videos were produced over multiple years. For sequence 20, there were two videos.

55. For the sequence 1 (federal offence), this also involved child abuse material being on six different devices. In certain instances, there were different date ranges for the devices and they were all for substantial periods: for the hard disk drive, the range was 25 November 2021 to 4 March 2022; for the 8GB Laminex USB, the date range was 14 March 2016 to 22 October 2020; for the HP Laptop computer, it was 28 July 2020 to 15 March 2022.

56. In this sense they engage this consideration (or, for the state offences, this ‘aggravating’ factor).

Harmful impact upon victims (Crimes Act, s 16A(2)(d); CSP Act, s 3A(g))

57. Two victim impact statements were read aloud at the sentencing hearing, which related to sequences 13 and 19, both state offences, respectively. These were from V2 and V3.

[THE COURT WAS CLOSED FOR THE READING OF THESE REMARKS RELATING TO VICTIM 2’S VICTIM IMPACT STATEMENT]

58. [REDACTED]

59. V3’s victim impact statement was read by her mother (who, at certain points was plainly distraught). It spoke in similar terms to victim 2’s victim impact statement. She perceived herself as an innocent child and since the offending, doubts her capacity to trust men. She stated that she now felt unsafe and was now fearful of undressing; even in her own room. She cited one instance when showering at a friend’s place: where she was so fearful or anxious that she turned on the shower and merely pretended to have the shower. She also spoke ruefully about the effect of the offending coming out during a stressful time for her (she was studying for the HSC) and the impact on her family: she emphasised that her parents felt that they had let her down.

60. What is commonly apparent, or what may confidently be predicted is that the harm upon these young victims is likely to endure, affecting their lifestyles, their relationships (particularly with men) and their peace of mind.

61. I have already alluded to the breach of trust as an (objective) aggravating circumstance of the offending. I am conscious of a risk of double counting. Nevertheless, the victims’ common grievance about a breach of trust is separate and distinct as an obvious feature of harm to them.

62. In relation to the federal offences, especially, the possession, transmission or solicitation of child abuse material, these are not victimless crimes. In R v Porte [2015] NSWCCA 174, Johnson J (Leeming JA and Beech-Jones J (as his Honour then was) agreeing) at [65]–[70] emphasised that possession of child pornography creates “a market for the continued corruption and exploitation of children”, and that possession is not a victimless crime, and at [69] observed that:

“69 [a]n additional feature of harm done to victims of child pornography offences was referred to by Professor Kate Warner (as her Excellency then was) in ‘Sentencing for Child Pornography’ (2010) 84 ALJ 384 at 385 (references omitted):

‘The damage done to the children so abused can be, and undoubtedly often is, profound. In addition to the physical and psychological harm from the abuse itself, the New South Wales Sentencing Council has explained that harm may also result from the knowledge, as they grow older, that the material may remain in circulation, heightening the shame and distress associated with being exploited when young and vulnerable.’”

63. Very similar observations were expressed in R v Cardwell [2021] QCA 112, per Sofronoff P at [10]-[12].

Contrition or remorse (Crimes Act, s 16A(2)(f); CSP Act, s 21A(3)(i))

64. When reflecting on his offences, the offender reported to Dr Ellis that he wondered “what is wrong with me?”. He explained that he is worried about losing his family and that he has had thoughts that he would be “better off not here”.

65. During his interview with Mr Knight, the offender became frequently highly distressed when discussing the offending and was unable to continue the session. He denied having an ongoing sexual interest in child exploitation material, although he stated that he wished to ensure that he never offended in such a manner in the future and that he was willing to engage in sexual offence specific treatment on an ongoing basis.

66. Dr Ellis opined that the offender’s account was consistent with an understanding of the illegality of his actions and the effect on the victims. There was no indication that the offender was seeking to avoid responsibility or appropriate rehabilitation. Mr Knight opined that the offender had some insight into his condition, however his judgment appeared to be impaired.

67. The offender relied upon a letter of his wife, Ms Carrie Meers dated 27 April 2023. She explained that her husband had shown a great deal of remorse for what he had done to the victims, his family and friends. She stated that the offender said things such as “I hate myself”, “I wish I had been caught sooner” and “this is what I deserve.” The offender also relied upon a letter of his father-in-law, Mr Ray Turner. Mr Turner also described the offender’s display of contrition and remorse for both the victims of his offending and the impact that his offending has had on his family.

68. The Crown cautioned the Court against acceptance of self-serving statements by the offender made out of court. Certainly in writing, the offender could not have been more fulsome in expressing his contrition.

69. On the eve of the sentencing hearing, the Court was supplied with a handwritten letter of apology by the offender. The offender read the letter out in Court. In the letter, the offender emphasised his sense of shame, guilt and disgust for his offending. He accepted his behaviour was unacceptable. Moreover, he acknowledged the impact of his offending on the victims, to whom he apologised, and his contribution to the market for “this disgusting industry”. He apologised also to other participants in this proceeding.

70. He gave other evidence in this sentencing hearing led by his solicitor.

71. Notwithstanding the Crown’s caution about the weight that should be given to out of court statements, the offender’s handwritten statement, was read in Court and was therefore subject to scrutiny. The offender was in tears at points when he read his handwritten statement. I believed he was genuine; although I note two things. First, although the bare reading of an out of Court letter of apology may suggest a lack of spontaneity, the timing of his reading aloud his statement followed on the heels of the reading out of the two victim impact statements. The reading out of those victim impact statements had a powerful effect on the people in the Courtroom who heard it (the Court was closed for victim 2’s VIS but not victim 3’s VIS). I think it contributed to the offender’s display of emotion, but this actually assisted him to prove his contrition. Secondly, some of the content of the statement indicated his regret for the consequences for his family. I have no doubt that he is upset about the consequences that have befallen and will befall them for the sentencing, but that might be distinct from recognition and acceptance of his wrongdoing.

72. Nevertheless, his statements of remorse were consistent also with the opinions of (disinterested) trained health professionals and the character referees he relied upon. I accept that he is remorseful and contrite.

Character, antecedents, age, means, physical and mental condition (Crimes Act, s 16A(2)(m), CSP Act, s 21A(3)(f))

73. The offender is a 42-year-old married man. He was aged between 35 and 41 years of age in the period of his offending.

74. He has been with his partner for 15 years and married for 11 of those.

75. Prior to entering custody, the offender was living in a rental property on the Central Coast with his wife and daughter. He was working as the director of a sheds and home franchise. This business has subsequently been sold following the offender being taken into custody.

76. At the time of his arrest, the offender was not seeing any mental health professional. He had never engaged in psychological therapy, although he was placed on antidepressant medication for about two weeks after his son was born, 17 years ago.

77. Much of the offender’s background is referred to in the two principal reports of mental health professionals, the forensic psychiatrist, Dr Andrew Ellis; and a clinical nurse consultant (forensic mental health), Lee Knight. The offender gave unchallenged evidence that he told the truth to those two professionals.

78. He indicated to Mr Knight a generally unremarkable childhood upbringing, at least in terms of his schooling; subject to some events which I address below under the sub-heading ‘Psychosexual history and diagnosis’. The offender did however mention that his parents separated when he was a young child. It does not appear that, as an adult, he had an especially close relationship with either of them.

79. The offender reported having relationship issues after the birth of his son and that that led to him experiencing anxiety, gastric disturbance, racing thoughts, feeling keyed up and on edge and suffering an increased heart rate. The offender reported having suffered from gastro-oesophageal reflux.

80. The offender reported to Dr Ellis that he feels “numb and lifeless” and thinks he has been depressed since entering custody. He reported a hatred towards himself, that he appears moody to other people and that he feels constantly low in his mood across the day. Mr Knight reported that the offender’s issues largely revolve around planning for the future and that he has frequent thoughts of death and dying. The offender reported taking half a tablet of mirtazapine (antidepressant medication) on an occasional basis when given to him by other inmates. He is yet to see a doctor, however, has been seeing Mr Knight on a fortnightly basis by AVL for assessment, psychotherapy and case management. Although, Mr Knight reported that despite various requests for the offender to be reviewed by the custodial mental health team at Parklea Correctional Centre, treatment has not been forthcoming. Mr Knight described the offender’s access to psychopharmacotherapies as being very limited.

81. The offender reported to Dr Ellis that most of his family were taking antidepressants. He assumed his father, who passed away in 2019, suffered from depression. His step-sister committed suicide at the age of 32. He also reported to Mr Knight a maternal family history of depression.

Substance Use

82. In the 4 to 5 years prior to the offender’s arrest, the offender reported drinking one quarter to half a bottle of bourbon each day. This consumption increased on the weekends. The offender reported experiencing alcohol withdrawal in the past, however was unsure if this was related to symptoms relating to his gastro-oesophageal reflux. The offender never encountered legal or work problems as a result of his drinking. However, Dr Ellis opined that the offender’s long-term use of alcohol was consistent with a substance use disorder which he is currently in remission for in a controlled environment. Mr Knight concurred with this conclusion.

83. In cross-examination in the sentencing hearing, the offender said that he was sometimes drinking alcohol when he was trading or viewing the child abuse material.

84. The offender reported to Dr Ellis that he had previously engaged in cannabis use as a teenager, as well as ecstasy or speed use 3 to 4 times a week during his 20s. He reported using cocaine two to three times each year up until he was arrested.

Psychosexual History and Diagnosis

85. The offender reported learning about sex at the age of 12, although he could not recall receiving sex education at school. Sex was not discussed in the family home, and he believed he learnt about sex from other children. He reported masturbating from the age of 12 and later looked at mainstream pornographic magazines about two times a week. The offender reported that he would, at times, masturbate to fantasies pertaining to his stepsister who would have been 8 years old at the time.

86. The offender reported his first sexual experience at the age of eight or nine when he was “mucking around” with a slightly older boy. They would look and touch each other. The offender reported similar behaviour with his stepsister.

87. The offender reported to Mr Knight that he had been sexually abused between the ages of 7 and 9 by an adult man who was a family friend. The offender recalled that he was “messing around” with the son of the family friend. The offender reported that his friend “forced his bum” against his “like they were having sex.” They then heard a noise outside of the room and went into a cupboard together. Whilst in the cupboard they rubbed their penises together. It was at that point that the friend’s father opened the cupboard door and caught them rubbing their penises together. He reported that the friend’s father made them bend over with their pants down. This man then smacked them across the buttocks and rubbed his penis around his anus “a few times.” He then stated that this man inserted his finger into the offender’s anus. The offender reported to Dr Ellis that he was unsure about how this impacted him at the time and whether it impacts him now. He did however report to Mr Knight that he has experienced intrusive thoughts pertaining to this abuse and stated that he actively avoids thinking about it.

88. The offender reported his first consensual sexual activity at the age of 17 with a girl from school who would then become his partner for 7 years. He said he had about 20 brief relationships with women between the ages of 18 and 30. He reported having a sexual interest in women with dark hair, pale skin and a slim figure.

89. The offender said that he began looking at pornography on the internet for approximately an hour each day at the age of 20. He would mainly look at women and engage in masturbation. He stated that his wife knew about his internet usage, however, he never talked about it with her.

90. In relation to child exploitation material, the offender reported to Mr Knight that he first noticed his interest in this material when he was around the age of 30. He first came across this material via an online chat app. The offender stated that he searched for this material online via mobile phone apps. He recalled initially using these apps infrequently, however, his use gradually increased, and this became his preferred source of sexually explicit material. He described a preference for “solo teens” between 12 to 14 years old and child exploitation material of children masturbating themselves.

91. The offender reported to Mr Knight that he did not have a “primary interest” in child exploitation material. He instead reported that his “drive” to offend may have occurred in the context of his prior sexualised relationship with his younger stepsister. He estimated that he preferred child exploitation material 20 percent of the time, compared to preferring adult pornography 80 percent of the time. He stated that he had no interest in having a sexual relationship with a child and denied that he would commit a hands-on-offence against a child. He explained that the thought of touching a child sickened him.

92. Dr Ellis opined that the offender’s sexual fantasy, difficult to control urges and behaviours consistent with attraction to underage females in states of nudity was consistent with a diagnosis of paraphilic disorder with features of paedophilia and voyeurism. Mr Knight concurred with this conclusion. Dr Ellis reported that this disorder is not exclusive in that he is unable to form sexual relationships with adult females. On the available evidence, he reported that the attraction is to images of girls only. He stated that the offender’s adverse sexual experiences in his childhood may have formed a template for the development of this pattern of sexual arousal. He had spent a considerable amount of time and effort to source the material that sexually aroused him and that behaviour has caused distress to both the offender himself and the victims.

Lack of antecedents

93. The offender has no relevant criminal history and, on that account, a degree of leniency may be afforded to him. Nevertheless, in Western Australia v Collier (2007) 178 A Crim R 310 at 42, it was said that:

“in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender.”

94. The absence of prior offences will, however, be relevant to the question of the length of any non-parole period imposed upon him.

Prior good character

95. In her letter to the Court, the offender’s wife, Ms Meers, spoke of the offender’s good and respectable character. She opined that they had a great relationship filled with love, support, respect and care. She expressed the offender’s role in helping manage their daughter’s severe global development delay as well as her complex medical history.

96. The offender also relied upon further letters of Mr Ray Turner, Ms Sandra Kidd, Mr Gregory Kidd and James Bennett that all spoke to the offender’s prior good character.

97. I take into account in the offender’s favour his prior good character, although this has limited weight. As the Victorian Court of Appeal in DPP (Cth) v Garside [2016] VSCA 74 observed at [63], it is often the case that offenders for these types of offences have prior good character.

Mental condition

98. [REDACTED].

99. [REDACTED].

100. The offender reported viewing pornography on a daily basis and that when he discovered ‘Telegram’ he began to see images of younger females on this. He said that the application had links to sites where there were ‘mega links’ to underage pornography. He said that he began to masturbate daily to images of teenagers on their own aged approximately 11 years old and upwards. He reported being more attracted to teenagers who had begun to develop breasts. He understood that he was attempting to relive the type of activity he had undertaken with his stepsister.

101. At the time that the offences were committed, the offender reported being sexually active with his wife one or two times a week.

102. Dr Ellis opined that at the time of the offending, the offender’s heavy alcohol use, his wish to fulfil his fantasies relating to his experiences as a teenager and inability to discuss this with his partner contributed to his mental state at the time of the subject offending. He also opined that the stress attributed to coping with the illnesses suffered by his daughter could have contributed to his state of mind at the time of the offending.

103. Dr Ellis opined that the offending was consistent with paraphilic arousal to themes of voyeurism and paedophilia, attracted to females. He opined that the substance use and stress may have prompted his use of paraffinic arousal as a more prominent coping mechanism to deal with the distressing mental states he was experiencing at the time. However, Dr Ellis opined that the offender’s state of mind was not likely at the point where he would have been deprived of the knowledge of the illegality of his actions, or the ability to control his actions.

General deterrence (Crimes Act, s 16A(2)(ja), CSP Act, s 3A(b))

Moral culpability

104. I have previously remarked upon the objective seriousness of the offending. An offender’s moral culpability can overlap with the concept of the seriousness of offending, but I prefer to treat it distinctly as it must be intimately connected with an offender’s subjective case (DS v R; DM v R [2022] NSWCCA 156 (“DS”) at [63]-[96]). That being so, I have deferred my evaluation of the consideration of general deterrence since the offender’s solicitor submitted that because of his mental conditions, De La Rosa and Bugmy principles are engaged. These principles were inter-connected: it was certain traumatic events in childhood which contributed to the paedophilia which caused the offending. In particular, she submits that because of a posited causal connection between his mental conditions (themselves affected by traumatic incidents in childhood) and the offending, the offender’s moral culpability is reduced so that his case is not an appropriate vehicle for general (and specific) deterrence and the weight to be given to these principles is moderated.

105. As to De La Rosa principles, it is well-established that where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Moreover, the mental impairment need not be the sole, or precipitating or direct cause of the offending: DS at [95].

106. However, it is important to note that the existence of a mental impairment, of one kind or another, at the time of offending does not automatically translate to a diminution in the seriousness of the offending, the moderation of other considerations, such as general and specific deterrence and yield greater leniency. As Beech-Jones CJ at CL observed in DS at [96]:

“… while a mental impairment “may” affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is “a” causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.”

107. A difficulty with the offender’s submission invoking De La Rosa principles is that it runs counter to Dr Ellis’ view that the offender was not deprived of the knowledge of the illegality of his actions, or the ability to control his actions. It is also offensive in principle. Not every person with a major depressive disorder, a substance use disorder or who has been subject to traumatic incidents in childhood is a natural or inevitable candidate for engaging in criminality of the nature displayed in this case. I do not believe that the offender’s profession of shame and disgust reflect any recent epiphany. He must have known that he had significant issues. He said he had not been treated previously by any health professional but he did not provide any explanation, or persuasive explanation, for why he had not. In particular, I do not find persuasive the offender’s contention that the stigma associated with child sex offenders might discourage offenders from seeking out treatment until they are ‘caught’. That, to my mind, is an aspect of free moral choice. Let it be accepted that he apprehended that seeking out help might expose his past offending to light. His choice is between obtaining treatment and possibly bringing to light past offending which may help to prevent further offending, or to carry on, untreated, with likely present and future offending in the hope that this is not detected. The moral choice is in my view very clear. He never lost his sense of right or wrong or autonomy. This offender preferred to indulge and gratify his needs and he did so in the most callous way over a not insignificant period, planning and preying upon innocent girls of his acquaintance and contributing at the same time to a trade he acknowledged as disgusting in its treatment of vulnerable young children. His offending was not spontaneous.

108. So, the offender’s argument that he refrained from seeking out treatment for fear it might expose his offending paradoxically works against him when arguing for a reduction in his moral culpability. So too does the offender’s age and capacity to get by with managing his sexual appetites not only by sexual activity with his wife or other partners but also sexual acts towards himself as affected by mainstream pornography until he was about 30 years of age. These circumstances show several things. First, it shows he knew his conduct was unlawful. Secondly, it shows that he was, for a not insignificant period, able to contain and manage his sexual needs – to the extent that they were shaped by his childhood abuse and dealings with his stepsister - without descending to the criminality identified in this case. In this last respect, Mr Knight traces in some detail, details about the offender’s personal relationships with women. From at least the age of 17, he had had at least 3 substantial relationships with women (although one of them was for 18 months), the last of which has been with his current wife. There was no unusual or paraphilic sex with any of these partners.

109. To a degree, I accept that the early sexualisation of the offender through the relationship with his step-sister and the evidence of an incident of sexual abuse from a male family friend was not challenged and therefore should be accepted.

110. However, as I have said, there appeared to me to be a significant temporal gap between the offender’s consumption of what I might call ‘mainstream’ pornography to gratify his sexual desires and his descent into child abuse material which indicates some attenuation in the causal connection between the traumatic incidents from childhood and the offending. The solicitor for the offender did not dispute this evidentiary gap, other than to submit that traumatic incidents in childhood can have enduring effects.

111. But such traumatic experiences as the offender had endured when he was younger had not stopped him from entering marriage for a significant period, setting up his own business, engaging innocently in community activities (such as coaching his son’s football team) and leading an ostensibly blameless life, in the sense of having no criminal history to speak of until his early 40s. Further, as the Crown submitted, the nature of the offending, especially for the state offences, was of a very different kind to the paradigm Bugmy case, where a recourse to criminality arises from impulsive behaviour and an impairment of executive functioning leading to a loss of self-control.

112. I can accept that the particular burdens associated with looking after a daughter with the special needs that the offender’s daughter has would be a significant contributor to a major depressive disorder and partly explains his drinking. But as his wife explained, whilst an adult, he had immersed himself in his business and community sports and plainly, he has had a loving partner to help his daughter with what, ostensibly, appeared to be an unremarkable sex life for a married couple.

113. The Crown accepted, as do I, that there is a connection between the offender’s paedophilic disorder, itself the product of some traumatic events a long time before in his life, and the offending. That is a statement of the obvious. But, whilst the offender’s moral culpability is diminished, it is not significantly diminished in view of the circumstances raised, individually or in combination.

114. A further difficulty for the offender is that his paedophilic disorder engages other sentencing considerations, such as specific deterrence and protection of the community, which I address elsewhere in these remarks.

115. General deterrence remains therefore a very significant factor, at many levels, in this sentencing exercise. This has been variously explained in caselaw. For example, in R v Asplund (2010) 216 A Crim R 48 McClellan CJ at CL (Latham & Price JJ agreeing) at [50] said:

“The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity.”

116. The Victorian Court of Appeal observed in R vGajjar (2008) 192 A Crim R 76 at [56]:

“.. the legislature viewed conduct of this kind as deplorable. The legislation creating this offence had been introduced as a measure against an ‘increasing trend’ of paedophiles using the internet as a means of accessing children, and thereby grooming them for subsequent sexual offending.”

117. In  R v Booth [2009] NSWCCA 89, Simpson J explained at [41] that child pornography could not come into existence without the exploitation and abuse of children, who often come from disadvantaged countries that lack resources to provide adequate child protection mechanisms.

Guilty Pleas (Crimes Act, s 16A(2)(g); CSP Act, ss 21A(3)(k), 25D)

118. The Offender pleaded guilty on 20 December 2022 and was committed for sentence from Wyong Local Court.

119. The Crown conceded that, insofar as all the offences were concerned, state or federal, the offender is entitled to a 25% discount on sentence. I agree and will adopt that level of discount for all offences.

Co-operation with law enforcement officials (Crimes Act, s 16A(2)(h); CSP Act, ss 21A(3)(m), 23)

120. As noted in the agreed facts, the offender voluntarily assisted police in unlocking some of his devices. The offender complied with an order, pursuant to s 3LA of the Crimes Act 1914 (Cth), compelling him to unlock some of his devices. As was his right, he declined, however to participate in a record of interview with police.

121. The solicitor for the offender ambitiously submitted that in addition to the discount for guilty pleas, the offender should receive a further discount of 25% for these actions. The solicitor did not refer to the Court to a precedent where a discount of that magnitude for her primary position had been given to an offender in a comparable circumstance. In supplementary written submissions, the offender’s submission was scaled back to suggest that 12.5% might be appropriate and his solicitor referred the Court to the Court of Criminal Appeal’s decision in Glasheen v R [2022] NSWCCA 191, where a 5% discount had been given by the sentencing judge for co-operation with the investigating police. In that case, the facts supporting that discount was that the offender unlocked his mobile phone and laptop and enabled police to conduct their duties. Police thereafter observed that the material involved children and the offender told police that “all of those girls are of age”. As to the persuasiveness of this precedent, I note that there was no issue in the subsequent appeal to the Court of Criminal Appeal about the correctness of the discount: what was in issue was whether the sentencing judge had failed to give full effect to it (R v Glasheen [2021] NSWDC 544 [14], [30], [32]). I note that in R v Delzotto [2022] NSWCCA 117 (which decision is the subject of an appeal to the High Court following a grant of special leave, but not on this point), an offender received a 5% discount from the sentencing judge for co-operation to law enforcement authorities by providing passwords to investigators, but the offender in that case, unlike the offender in this sentencing proceeding, also made admissions to police when questioned. That particular discount was maintained on re-sentence in the appeal (at [50], [111]). The Crown additionally argued that Glasheen did not assist because it concerned the application of s 16AAC(3). It is unnecessary to consider that particular submission given what I have said already about the decision, and it is especially unwise to do so, in any event, since issues associated with s 16AAB are now before the High Court.

122. The Crown submitted that no discount for co-operation should be awarded.

123. Section 23 of the CSP Act confers a discretion; not an obligation. The extent to which an offender receives a discount by reason of assistance varies upon the likelihood of his guilt being otherwise discovered (R v Ellis (1986) 6 NSWLR 603). This sentencing consideration was referred to in not dissimilar circumstances in JL v R [2014] NSWCCA 130, especially at [26], where no discount was awarded where the offender provided a password to enable police to access a computer; which led to further charges being instituted against him. It is noted that all of the offences in that case were state offences.

124. I do not regard compliance with a statutory requirement as amounting relevantly to ‘co-operation’ that relates to mitigation in the relevant sense (Ungureanu v R [2012] WASCA 11 at [69]). If he did not comply with the order, the offender’s position would have been worse (s 16A(2)(fa)(ii)). That he did comply should not make his position better. Mr Crown suggested in argument that police or investigators could have obtained physical access to the content of the material without the offender’s assistance.

125. The offender’s fallback position was that the circumstance that the offender effectively yielded some information without legal compulsion meant that more of his offending was likely to come to light than if he did not; and also earlier than it otherwise would have. Even if the cooperation would not have made any difference, that is, even if it was not ‘useful’, that did not necessarily deprive the offender of receiving a discount (Weber v R [2020] NSWCCA 103 per Bellew J (Simpson AJA and Rothman J agreeing) at [67]). In that decision, Bellew J noted (at [66]) the slightly different worded provisions concerning this factor under the federal and state sentencing regimes; indicating that under the state sentencing regime, there was a more explicit requirement for the Court to take into account the significance and utility of the assistance provided.

126. Police did not need the offender’s assistance to anticipate that the devices contained incriminating material. Although it was evidence given from the Bar Table, there is no reason to doubt Mr Crown’s oral submission (which was repeated in the Crown’s written supplementary submissions) that even if co-operation had not been forthcoming in circumstances where it had been supplied, the investigators could have lawfully compelled the offender to produce the information. Nevertheless, there is some force in the offender’s submission, not contradicted by the Crown, that the voluntary unlocking did yield the information more quickly in a way that likely made more apparent the scale of the offending than would have occurred if the assistance was not voluntary. The Crown argued that if allowance was to be made, it was not necessary to specify the discount. I consider it desirable in the interest of transparency. In my view the appropriate discount for co-operation, for all offences, is 3%.

Facilitating the administration of justice (CSP Act, s 22A)

127. This factor was expressly adverted to in the offender’s written submissions (MFI 4, p 4), but was not elaborated in oral argument.

128. However, the offender did submit, through his solicitor’s written submissions, that he refrained from taking any point about the validity of the s 3LA order even though, in his solicitor’s view (which apparently was conveyed to the offender) there was a potential issue; given that the order was apparently served only after items had been seized. I consider that some credit should be given to the offender for his position in this regard, beyond the plea and co-operation, in terms of discount, which I would quantify at 2%; noting that I consider, again, that the interest of transparency will be satisfied if the discount is specified for this consideration.

Prospects of rehabilitation (Crimes Act, ss 16A(2)(n), 16A(2AAA); CSP Act s 3A(d))

129. I acknowledge that in relation to the federal offences, the way in which rehabilitation is assessed for child sex offences is under s 16A(2AAA). I accept (as did the offender’s solicitor) the Crown’s submission that an offender’s rehabilitation is relevant in a particular statutory context and with a statutory purpose. It is, ultimately, to protect the community by ensuring that the offender receives treatment in custody, or on parole, to prevent re-offending of this particular kind.

130. Dr Ellis reported that the offender fell into the average risk category according to the STATIC 99R scale. He stated that deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffending. Dr Ellis reported that whilst the offender has shown some insight around the motivation for offending, he shows impulsivity around self-awareness and difficulties with stress and coping; although, Dr Ellis opined that this could be improved with mental health treatment.

131. Mr Knight reported that, in accordance with the STABLE-2007 scale, the offender scored 3 out of a possible 26 points. This indicates that he falls into the ‘interpretive range’ which is considered to be a low level of stable dynamic needs. Mr Knight explained in his report that when combining the offenders scores on the STATIC 99R scale and the STABLE-2007 scale, the offender falls within Level III for supervision which is considered ‘average’ when using the standardised risk level framework. He concluded that men with the same risk profile as the offender have been seen to reoffend sexually at 3.8% over one year and 7.5% over 5 years. I do not consider that those statistics are insignificant.

132. The offender shows a good employment history and his attitudes to supervision, psychological treatment and moderate alcohol use are positive. The offender reported to Mr Knight that he has “signed up” for drug and alcohol counselling whilst in custody.

133. Dr Ellis ultimately opined that the offender evinces a risk profile centred around specific paraphilic arousal to underage females and voyeuristic content which emerged alongside impulsivity, poor stress coping and intermittent intoxication. Dr Ellis reported that mental health treatment and an individualised psychological program to address sexual offences, as well as anti-depressant medication and substance use monitoring will best manage the relevant risk factors.

134. Dr Ellis further suggested that the offender should have a medical screening to exclude any physical contribution (such as elevated hormone levels) to paraphilic arousal.

135. In the offender’s letter of apology, he spoke of his determination to seek treatment whilst he was in custody. He said that he thought that his time in custody allowed him to reflect on his ‘disgusting’ behaviour and poor choices. Upon his release, he indicated his intention to seek employment, and also to regain the trust of his family.

136. I take into account the support that the offender has from his wife and what appears to be a good work ethic. As to the former, I note that the offender is doubtful whether his marriage will survive the period of incarceration. Those doubts are understandable, and I note that Ms Meers herself alluded to having lost trust in her husband and questioned whether she can remain married to him. Whatever occurs, however, she said that she will support him. It is likely, given the extent of her daughter’s needs, that Ms Meers will need all the support or assistance she can get even after the offender serves his sentence. Ms Meers attended the sentencing hearing in support of the offender.

137. I also acknowledge his expressed commitment to treatment and some indications of insight into his offending.

138. The offender was asked, via a leading question of his solicitor, whether he would re-offend and he answered in the negative. This ‘Dorothy Dixer’ question was tailored to and produced a single (and predictable) negative response. The offender was asked a different question in cross-examination, being whether he would make every effort not to re-offend and he answered yes to that. The latter answer better reflects the reality of his situation.

139. The Crown’s position was that the offender’s rehabilitation prospects were ‘favourable’, given that he had taken demonstrable steps to address his disorders.

140. But taking into account also the nature of the offending - the heinous and vile content of the child abuse material the offender traded in, his flagrant violation of the privacy of children of friends and length of the period of offending - his awareness of his wrongdoing and the continuing concern expressed by Dr Ellis as to his impulsivity, I find that his rehabilitation prospects are no more than reasonable.

Hardship to offender

141. Whilst in custody, the offender has been placed in a shared cell in the protection wing. He is a ‘protection inmate’ who works regular hours (7:30am to 3:30pm) before returning to his cell. He was impeded in accessing the library and oval in the correctional centre. He is working in a cabinet shop and receives visits from his wife on a fortnightly basis. The offender has not had any contact with his children since his arrest. This reflects a condition of his custody preventing his access to children.

142. The offender reported fear of reprisal from other inmates if they discover the nature of his offending.

143. The offender also gave evidence that he was inhibited in receiving assessments and treatments whilst in custody. He said that he had not seen a mental health professional and had not received medication he desired. (He noted in cross-examination that he had not sought out treatment for his substance use disorder).

144. Mr Knight reported that the offender’s mental health needs are not currently being met and that he requires further review, with respect to commencing antidepressant medication to treat a major depressive disorder. He noted, specifically, that several sessions had to be cancelled, or were disrupted, because of issues with the AVL.

145. Dr Ellis opined that the offender’s current circumstances and predicament are the likely cause of the prolongation and severity of his depressive mood symptoms.

146. I accept that given the needs of his mental health, and also the nature of his offending, including the involvement of child victims (to the extent that these matters become known within the custodial setting), the offender has endured, and is moreover, likely to continue to endure hardship greater than the general inmates under full-time incarceration and this is a factor in his favour.

COVID- 19

147. The offender’s solicitor submitted that given that he has been on remand since 16 March 2022, recognition should be given to the circumstance that part of his incarceration has coincided with social distancing and other restrictions imposed as a result of the Pandemic. Apparently throughout 2022, there were 52 days of lockdown because of the Pandemic. I agree that for someone with this offender’s circumstances, this has accentuated the hardship of incarceration to date.

Hardship to others (Crimes Act, s 16A(2)(p))

148. The offender has a 17-year-old son from a prior relationship and a 9-year-old daughter with his current wife. He has shared custody arrangements with his son. His daughter has a chromosomal abnormality which has led to significant intellectual and physical disabilities and a complex medical history.

149. In her letter to the Court, the offender’s wife, Ms Carrie Meers, explained the severity of their daughter’s disability. Ms Meers described their daughter’s complex medical needs as “constantly changing with new and unexpected issues arising all the time”. Their daughter’s medical condition remains at large. Nevertheless, she does have NDIS support. Ms Meers explained that she has watched their daughter struggle with the loss of access to her father and the resulting change of her life and routines that previously involved the offender.

150. The offender has not seen his children since he was arrested nearly 13 months ago. Ms Meers explained that this has had a significant impact on both of them. Ms Meers explained that outside of prison, they have completely lost their family unit. The offender’s son remains solely in the care of his mother, as compared to his previous 50/50 care arrangement prior to the offender being in custody.

151. Ms Meers explained the reputational damage that has ensued from the offender’s offending and the embarrassment it has caused her. She has sought counselling. She alluded to negative media publicity. She also explained in her letter that she had to sell their business at a loss, their car and their holiday cabin on the river. These events, I infer, is a manifestation or consequences of reputational damage.

152. For the state offences, I apprehend that it remains the law that the offender needs to establish (on the probabilities) ‘exceptional circumstances’ of hardship. The principle has its roots in the consideration of mercy, however, it is important that another consideration of equality of sentencing is not compromised; such that offenders whose incarceration will adversely affect third parties are not benefited in comparison to those who do not. Insofar as the federal offences are concerned, I am conscious that it is unnecessary for an offender to establish ‘exceptional circumstances’ of hardship to enliven hardship to others as a factor in mitigation (Totaan v R [2022] NSWCCA 75).

153. The Crown submitted that, at least in relation to the state offences, there were no ‘exceptional’ circumstances. I am inclined to agree. The offender’s son is nearly an adult and it is not suggested that he lacks the capacity to become an increasingly independent or self-sufficient young man. It is very sad to read of the daughter’s predicament, but whilst acknowledging the added strain upon Ms Meers, the daughter is not bereft of having most of her needs attended to beyond the emotional support and stability that a parent can provide. But all family members whose spouse is incarcerated will need to make adjustments to altered circumstances. The Court recognises that physical separation of a child from a parent is unfortunate, but it is inevitable.

154. The Crown submitted that, however regrettable the effects upon the children, the hardship was not ‘exceptional’ but should rather be regarded as the inevitable consequences of offending of this kind. In this regard, the Crown pointed to a passage from the decision in Hutchison v R [2022] VSCA 217 at [24], where the offender’s incarceration meant that he could not look after his autistic daughter and family. The sentencing judge in that case pointed to the contrasting concern that the offender had for his daughter as distinct from manifest disregard for the childhood victims of his offending. The passage was approved on appeal. I note that the offender’s solicitor submitted that this offender’s daughter’s condition was more severe than the offender’s daughter’s autism in Hutchison. Whether or not that is so, the offender’s solicitor did not answer, and could not answer, the thrust of the point raised by the sentencing judge in Hutchison.

155. In relation to Ms Meers’ position, it is also often commonly, and perhaps even unfairly, the case that spouses of offenders suffer a loss of reputation and status within the community following the revelation of an offender’s criminality and suffer detriments that go beyond mere separation from the offenders. It is understandable that someone in Ms Meers’ position would seek counselling form mental health professionals herself. Where the offender is self-employed or runs a small business and commits offending of the kind here, those who depend upon the financial viability of the business will also likely suffer detriment. That again is a common consequence of incarceration of an offender who derives a living in this way. It is not exceptional.

156. To the extent that it is permissible to take the consideration of hardship to others into account in relation to the federal offences, whilst I take it into account, it is of limited weight.

157. Nevertheless, as will be seen, hardship to family members has an influence in my consideration of the minimum term (for the federal offences) and the non-parole period for the state offences.

Personal deterrence (Crimes Act, s 16A(2)(j); CSP Act, s 3A(c))

158. The offender’s solicitor argued that the circumstances of the offender’s guilty pleas, remorse, his prior good record, his reasonable prospects for rehabilitation and the hardship already sustained whilst on remand substantially fulfils this sentencing consideration.

159. I partially accept that consideration. Nevertheless, the matters I referred to earlier when evaluating his mental condition indicate that specific deterrence remains a matter of some weight.

Other sentencing considerations: protection of the community, accountability, retribution, denunciation and adequacy of punishment (Crimes Act s 16A(2)(k))

160. By its terms, s 16A(2) of the Crimes Act plainly indicates that sentencing principles at common law apply in addition to the express considerations in s 16A(2): Johnson v The Queen (2004) 78 ALJR 616 at [15]. These include the need to protect the community, the need for adequate punishment, making the offender accountable for his actions, denunciation and retribution; all of which are principles of common law also recognised in s 3A of the CSP Act.

161. In my view, protection of the community is a very significant consideration. As the High Court observed in Bugmy, although, for example, such matters as a ‘disadvantaged upbringing’ may be taken into account generally in mitigation, where an offender has been demonstrably unable to regulate impulsive actions over a substantial period, that may augment the weight to be given to protection of the community. That is the situation here. The sentence should also manifest the need to hold him to account for his criminality and to impose adequate punishment. For the federal offences, the sentence must be “of a severity appropriate in all the circumstances” (s 16A(1)).

162. As to the offender’s submission regarding the significance of his diagnosis of a paraphilic disorder, in my view this is a double-edged sword since this tends to elevate the importance of protecting society, and specific deterrence, in a way that effectively means that there is no reduction on sentence. In DPP (Cth) v Beattie [2017] NSWCCA 301, Price J (Basten JA and Walton J agreeing) noted a point raised by Kirby J in Ryan v The Queen (2001) 206 CLR 267 at [126] emphasising that such condition may be viewed as a cause of offending; before referring to observations by McHugh J in the same case. The relevant passage is as follows:

“203.However, in Ryan McHugh J said at [40]:

“40 Whether or not paedophilia is an ‘underlying condition’ — and it appears not to be a psychiatric illness — it is by no means clear that a paedophile should be punished ‘less severely than would be appropriate for a series of wilful and completely unconnected offences’. If two men commit similar offences against children — one because he was a paedophile and the other for sexual gratification — I doubt that the general public would see any difference in the two cases. Indeed, the public view — which cannot be disregarded if courts are to maintain the confidence of the community — may be that the paedophile should get the heavier sentence of the two because he is more likely to reoffend. There is certainly judicial authority for that view. In Channon v The Queen, Brennan J, then a member of the Federal Court, said:

‘An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.’

204. His Honour then referred to Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 473, at [41]:

“41 In Veen v R [No 2], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to reoffend. But the majority noted that, although the condition may be said to diminish his or her ‘moral culpability for a particular crime’, it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case."

205. Although the respondent’s paraphilic disorder may be seen to provide an explanation for his offending and reduce to some extent his moral culpability, in my view, it heightens the need for specific deterrence.”

163. I find further, that retribution and denunciation have a role to play. It is not the case that the offender was ignorant of the wrongfulness of his conduct. That could not be so in view of his profuse acknowledgement of his wrongdoing, and his professed feelings of shame and disgust. I do not accept that these insights only occurred to him after his apprehension when his offending was detected and he had the opportunity to reflect whilst he was on remand.

INSTINCTIVE SYNTHESIS

Maximum penalties

164. I have taken into account the maximum penalties for the offences as legislative guideposts (Makarian v The Queen (2005) 228 CLR 357 at [372]).

Comparable cases

165. In Hili v The Queen (2010) 242 CLR 520 the High Court reiterated that consistency in federal sentencing is achieved with regard to what has been done in other cases through the work of the intermediate courts of appeal.

166. The Crown annexed to its written submissions a schedule of appellate decisions to meet this imperative. The following cases were referred to:

1. Hutchison v R [2022] VSCA 217;

2. R v Martin [2014] NSWCCA 283;

3. R v De Leeuw [2015] NSWCCA 183; and

4. Dennis v The Queen [2017] VSCA 251.

167. I accept that these cases are comparable in relation to penalties imposed on offenders in terms of subjective features. There was a common pattern in most of these cases of a troubled mature (in age), if not middle-aged man, who had, to all intents and purposes, led a blameless life (in the sense of there being absent any relevant criminal history), but deep down, there was a traumatic incident at childhood, of a sexual kind, with lingering effects, contributing to paraphilia and upon exposure of offending, the offender expressed sentiments of shame and remorse.

168. As to the objective circumstances of the comparable cases, a difficulty is that the quantity of the child abuse material in question may be relatively small, but the nature of the material itself is very significant; and vice versa. There are also differences in the number of children involved. I found little assistance in the comparison between the objective features in these cases.

Evaluation

169. The offender’s solicitor conceded that the s 5 threshold has been crossed in relation to the state offences. She submitted that insofar as the federal offences are concerned, a term of imprisonment with a recognizance release order up to 5 years should be imposed. She cited a sentencing decision of R v Appleby [2021] ACTSC 55 as one that considered offending which related, as the state offences in this case did, to an invasion of privacy. However, that decision did not involve an offence under s 91H(2) of the Crimes Act 1900 (NSW) but a different offence containing, as an express element, an invasion of privacy (being s 61B(1) of the Crimes Act1900 (ACT), which carried a maximum penalty of 2 years, unless aggravated, when it would be 3 years’ imprisonment). I note, in passing, that the offender was not charged with an offence apparently similar in nature to this ACT offence, being under s 91F of the Crimes Act 1900 (NSW), (which carries a maximum penalty of 3 years’ imprisonment). As the maximum penalties for these other offences suggest, an offence under s 91H(2) is inherently much more serious, given that s 91H(2) plainly serves the specific purpose of protecting children. Finally, as the Crown emphasised, the sentence was, with respect, one imposed at first instance whereas the High Court emphasised that comparable cases of intermediate appellate courts should be the primary focus for sentencing judges. Appleby therefore provides very limited assistance.

169. I find that for the state offences, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. For the federal offences, having considered all other available sentences, I find that no sentence other than imprisonment is appropriate in all the circumstances of the case.

170. For the sake of completeness, I note that even if the term of imprisonment, considered in isolation, was such as to generally qualify the offender for service of this term of imprisonment by intensive correction, the sentencing regimes preclude that particular option (Crimes Act, s 20AB(1)(b); CSP Act, s 67(1)(b)).

Aggregate sentences

172. In Spartaco Fasciale v R [2010] VSCA 337, Weinberg J observed that:

“…it is well established that, when sentencing for both State and Commonwealth offences, separate sentences must be imposed. Moreover, it is not possible to fix a single non-parole period in relation to both State and Commonwealth sentences. If a non-parole period is considered to be appropriate, a separate such period should be fixed for the State sentences and for the Commonwealth sentences, and the commencement dates stipulated: at [27].”

173. The Crown submitted that it is open for a sentencing judge, when sentencing for multiple federal offences, to impose an aggregate sentence in accordance with s 53A of the CSP Act (DPP (Cth) v Beattie [2017] NSWCCA 301 at [141]-[146]). The solicitor for the offender agreed with this submission. See also R v Delzotto [2022] NSWCCA 117 for a recent endorsement of that option notwithstanding some doubt expressed in other earlier judgments (noting, again, that this decision is before the High Court, but not on this point).

174. Taking into account the discounts for the guilty pleas (25%), for assistance to police (3%), and facilitating the administration of justice (2%) the indicative sentences for the offences (rounded up) are:

Seq 1:      5 years’ imprisonment

Seq 12:   2 years imprisonment

Seq 13:   3 years and 4 months’ imprisonment

Seq 19:   2 years’ imprisonment

Seq 20:   3 years’ imprisonment

Seq 22:   4 years imprisonment

Seq 26:   3 years’ and 2 months imprisonment

Seq 27:   3 years’ imprisonment

Seq 37:   4 years’ imprisonment

Totality

175. The offender’s solicitor acknowledged that for the state offences, there were multiple individual victims and that the harm sustained by each of them warrants accumulation. She also recognised that there were multiple victims in relation to the federal offences, which also warranted accumulation. Nevertheless, she submitted that the offences, altogether, represented an episode of criminality.

176. The Crown submitted that concurrency should apply in relation to sequences 13 and 19, and between 22 and 37 and 26 and 27. The Crown submitted that there needed to be accumulation for the state offences, reflecting the different victims.

177. I disagree with the proposition that there was an ‘episode of criminality’. There is some force to that proposition insofar as the federal offences are concerned, although even then there was an on-going course of conduct that marked certain offences. There should be significant, but not entire, concurrency between sequence 1 and the other federal offences even though there was considerable duplication of the content of the child abuse material. Some accumulation is necessary to reflect the different offences between sequence 1 and the other federal offences.

178. I accept the Crown’s submission that the aggregate state sentence should be accumulative upon the aggregate sentence for the federal offences, given the qualitatively different nature of the offending and the harm imposed on 4 individual victims (actually known by the offender). Within the aggregate sentence for the state offences I have accorded some concurrency, especially where there was a common victim in multiple sequences. I propose to commence the federal sentence upon the expiration of the non-parole period for the aggregate sentence for the state offences. I have allowed substantial, although not full, concurrency for the federal offences in reaching the aggregate sentence for those offences. The effect of the two aggregate sentences is intended to reflect my comprehension of the offender’s criminality overall.

Time in custody

179. The offender has been in continuous custody, solely in relation to the subject charges, since being arrested on 16 March 2022. The commencement of the aggregate sentence for the state offences will be backdated to that date.

Special circumstances (state offences)

180. The Crown accepted that it was open to the Court to make a finding of special circumstances in sentencing for the state offences. I find that there are special circumstances justifying a variation of the non-parole period for those offences. This is the first time the offender is in custody, with his having no relevant criminal history. I have already observed that for various reasons, he is likely to endure more hardship because of his conditions whilst under incarceration and others have also sustained hardship because of his actions. He plainly needs effective rehabilitation which will not only be of benefit to him, but also ultimately for the community.

181. The same considerations are relevant to my fixing of the non-parole period for the federal offences.

sentence

182. Mr Meers, please stand.

183. You are convicted of all of the sequences 1, 12-13 (incl), 19-20 (incl), 22, 26, 27 & 37.

184. For the state offences (sequences 12, 13, 19 & 20), I impose an aggregate sentence of 6 years’ imprisonment commencing on 16 March 2022 and expiring on 15 March 2028. The non-parole period is 3 years and 4 months, expiring on 15 July 2025.

185. For the federal offences (sequences 1, 22, 26, 27 & 37), I impose an aggregate sentence of 6 years and 6 months’ imprisonment commencing on 16 July 2025; and expiring on 15 January 2032. Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), I fix a single non-parole period of 3 years and 7 months, expiring on 15 February 2029.

186. Section 16F of the Commonwealth Crimes Act requires that I explain the (aggregate) sentence I have imposed for the federal offences. I have imposed an effective head sentence of 6 years and 6 months’ imprisonment commencing on 16 July 2025 and expiring on 15 January 2032. As required by the Commonwealth Crimes Act, I have fixed a single non-parole period for all of the federal offences. The single non parole period is a term of 3 years and 7 months. It commences upon the expiration of the non-parole period for the aggregate sentence for the state offences, on 16 July 2025. That means that, for the federal offences, Mr Meers will be imprisoned for not less than 3 years and 7 months after he has served the non-parole period for the state offences (which is 3 years and 4 months). If he is granted parole at the end of that time, he will serve the balance of the sentence in the community. If he is granted parole, the order will be subject to conditions determined by the relevant federal parole authority and may be amended or revoked. If he fails, without reasonable excuse, to comply with the conditions of his parole, his parole may be revoked and he may be taken back into custody to serve the remainder of his head sentence.

187. I also direct that a copy of the psychiatric report of Dr Andrew Ellis, dated 27 April 2023 be supplied to those responsible for the supervision of the offender.

188. The parties agree that a forfeiture order should be made. I will make orders in accordance with the consent order that the Crown proposes.

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Decision last updated: 27 July 2023