R v Meza Isla

[2024] NSWDC 526

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Meza Isla [2024] NSWDC 526

Hearing dates:

28 October 2024

Date of orders:

8 November 2024

Decision date:

08 November 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

(1)   For the State offences, Seq 2 and 8, impose an aggregate sentence of imprisonment of a fixed-term of 1 year 6 months commencing 4/8/2023. This term has been reduced by a discount of 25 per cent for the plea of guilty.

(2)   For the Commonwealth offence, Seq 1, indicate a sentence of imprisonment consisting of a non-parole period of 2 years 3 months commencing from 4/8/2024 and a head sentence of 3 years. This term has been reduced by a discount of 25 per cent for the plea of guilty.

(3)   For the Commonwealth offence, Seq 27, taking into account the s 16BA matter attached, indicate a sentence of imprisonment consisting of a non-parole period of 1 year 8 months commencing from 4/5/2026 and a head sentence of 2 years 3 months. This term has been reduced by a discount of 25 per cent for the plea of guilty.

(4)   An aggregate sentence for the Commonwealth offences, sequences 1 and 27, also taking into account the s 16BA matters, of a term of 3 years and 6 months, commencing 4 Feb 2025 and expiring 3 Aug 2028. There will be a non-parole period of 2 years and 3 months to commence 4 February 2025 and expire 3 May 2027.

(5)   The overall effective sentence is a head sentence of 5 years commencing 4 August 2023, and a non-parole period of 3 years and 9 months commencing 4 August 2023. The Offender will become eligible to be released on parole on 3 May 2027.

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material – Production/Dissemination/Possession

CRIME – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)

Legislation Cited:

Crimes Act 1914 (Cth) s 16A; s 16BA; s 17A; s 19: s 20(1)(b)(ii); s 23ZD

Crimes (Sentencing and Procedure) Act 1999 (NSW) s 3A; s 5; s 21A

The Criminal Code (Cth) s 474.22; s 474.23

Crimes Act 1900 (NSW) s 79; s 547E

Cases Cited:

Chesworth v R [2023] NSWCCA 115

Pearce v The Queen (1998) 194 CLR 610

Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Gustavo Adolfo Meza Isla (Offender)

Representation:

Counsel:
V Barros Goncalves (Crown)
S Schaudin (Offender)

Solicitors:
CDPP (Crown)
George Sten and Co (Offender)

File Number(s):

2023/186057

Publication restriction:

Nil

JUDGMENT

Introduction

Background

1. Gustavo Adolfo Meza Isla (“the Offender”) has pleaded guilty to, and is to be sentenced for, the following offences, involving the possession and dissemination of child abuse and bestiality material:

Seq	Offence	Description	Maximum penalty As agreed by Parties
1	Section 474.22(1) of the Criminal Code (Cth)	Use carriage service to transmit child abuse material	15 years’ imprisonment
2	Section 547E(1) of the Crimes Act 1900 (NSW)	Disseminate bestiality material	5 years’ imprisonment
8	Section 547E(2) of the Crimes Act 1900 (NSW)	Possess bestiality material	3 years’ imprisonment
27	Section 474.22 of the Criminal Code (Cth)	Use carriage service to possess child abuse material	15 years’ imprisonment
Section 16BA Offence attached to Sequence 27
Item 1	Section 474.23(1) of the Criminal Code (Cth)	Use carriage service to produce child abuse material with the intention of committing an offence against s 474.22(1)	15 years’ imprisonment

2. The Offender has been in custody solely in relation to these offences since his arrest on 4 August 2023. As at the date of sentence, he will have been in custody in relation to these matters for about 460 days, which will be taken into account, and any sentence will be backdated to account for this time, so as to commence on 4 August 2023.

3. The child abuse offences (sequences 1, 27, and the s 16BA matter) are offences under Commonwealth law, whilst the bestiality charges (sequences 2 and 8) are offences under New South Wales law.

General principles of sentencing

Sentencing for Commonwealth offences

4. In addition to any other relevant factors, the Court must specifically take into account the matters listed in section 16A(2) of the Crimes Act 1914 (Cth) (“Crimes Act”) that are relevant and known to the Court.

5. The overarching requirement imposed by Part lB is that the Court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence", having considered the non-exhaustive list of matters in section 16A(2) that are relevant and known to the Court.

6. Section 17A provides that a Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case. However, as the offences are Commonwealth child abuse material offences (sequences 1 and 27), there is a presumption of full-time imprisonment unless “exceptional circumstances” are found.

Sentencing for State Offences

7. The Court must have regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (“CSPA”) as well as the applicable aggravating and mitigating factors provided in ss 21A(2) and (3).

8. There is an issue between the parties as to whether an aggravating factor for both offences is s21A(2)(l), the vulnerability of the victims, being animals without the capacity to consent is applicable, to which I will return.

9. In relation to relevant factors in mitigation, it is agreed that the following are present and should be taken into account:

1. Section 21A(3)(e): the offender does not have a record of previous convictions; and

2. Section 21A(3)(f): the offender was a person of good character.

10. Like s 17A of the Crimes Act, s 5 of the CSPA provides that the Court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate.

Sentencing for a rolled-up charge

11. A charge is "rolled-up" where "more than one contravention of the relevant offence provision, or more than one episode of criminality, is particularised as part of the charge". The applicable principles when sentencing for a rolled-up offence are as follows (citations omitted):

“In sentencing a rolled-up charge, the Court is required to assess the criminality of an offender's conduct as particularised. The issue for the Court on sentence is the criminality disclosed by the offence, not the number of charges. The more contraventions or episodes of criminality that form part of the rolled-up charge, the more objectively serious the offence is likely to be. That said, the maximum penalty for the rolled-up charge is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences.”

Maximum penalty

12. It is clear from the prescribed maximum penalties that all the offences are considered inherently serious. The charges carry respective maximum penalties of 3, 5, and 15 years’ imprisonment. The maximum penalties provide a yardstick for the appropriate sentence but must be balanced against all other factors.

Sentencing principles relevant to child abuse material offences

13. The applicable principles and factors in sentencing for offending involving child abuse material are uncontroversial and well-established.

14. The objective seriousness of such matters is ordinarily determined by reference to the following factors:

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

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

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

4. The number of items or images possessed.

5. The proximity of the Offender's activities to those responsible for bringing the material into existence.

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

7. The age of any person with whom the Offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the Offender.

8. Whether the Offender acted alone or in a collaborative network of like-minded people.

9. Any risk of the material being seen or acquired by vulnerable people, particularly children.

10. Any risk of the material being seen or acquired by people susceptible to act in the manner described or depicted.

11. Any other matter in s 16A of the Crimes Act bearing upon the objective seriousness of the offence.

15. General deterrence is a significant consideration for offending involving child abuse material and the online sexual exploitation of children, given the prevalence and ready availability of pornography involving children on the internet, and the need to protect children online from sexual abuse given their vulnerability.

16. Specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations. The question of likelihood of re-offending is clearly central to consideration of protection of the community from ongoing offending by the particular offender. General deterrence also has a protective factor against other potential offences by other people.

17. Offending involving child abuse material is difficult to detect given the anonymity which is provided by the internet, and it occurs on an international level, where the children abused for the creation of the material can be located anywhere.

18. Conduct such as the possession, transmission, or accessing of child abuse material creates a market for the continued corruption and exploitation of children.

19. There is a paramount public interest in promoting the protection of children, as online child exploitation offences and offences involving activities such as the production or possession of child exploitation material are not victimless crimes - children continue to be sexually abused and degraded to supply the market.

20. Such offending is not mitigated by the fact that an offender did not profit from the offending, did not pay for material, or was not involved in the distribution or sale of the child abuse material.

21. The nature of the internet and the evolution of remote storage devices using internet networks, means that images may be published and stored around the world for many years. The longevity of such materials is akin to re-victimising the abused children. The victims not only have to endure the abuse that occurs in producing such material but must live with the consequences of their images being swapped, traded, and accessed potentially indefinitely.

Sentencing principles relevant to bestiality offences

22. In Chesworth v R [2023] NSWCCA 115 at [22] (“Chesworth”), the Court of Appeal considered, among other charges, a charge of bestiality contrary to s 79 of the Crimes Act 1900 (NSW). Rothman J in discussing the offence remarked of the criteria for assessing the objective seriousness that "offences against animals, as distinct from humans, involve slightly different criteria”. First, they take into account the vulnerability of a domestic animal and their incapacity, usually, to consent or refuse to engage in particular conduct. As a consequence, bestiality is difficult to compare, in terms of seriousness, and the factors associated with its objective seriousness, with offences against human beings." His Honour further indicated that "in the offence of bestiality, general deterrence looms large as does condemnation of the conduct". It was further observed in Chesworth that given the rarity of the offence, there is no "range" evident for bestiality cases.

23. Rothman J observed that a bestiality offence is not concerned wholly or principally with the infliction of violence or cruelty, such that if that conduct was present, it would have been an aggravating factor of that offence. In the Court of Appeal, the appellant's conduct was assessed as "just below mid-range", albeit in circumstances where no party had argued that it should be assessed as higher than it had at first instance (as "below mid-range"). The indicative sentence on appeal was 2 years and 6 months.

24. As I have already recorded, the Crown contends that the vulnerability of the victims (the animals) who did not have the capacity to consent ought be seen to be an aggravating factor under s 21A(2)(l).

25. I do not think that submission can be accepted. As was explained in Chesworth, animals have no capacity to consent to any activity involving interactions with humans. The very offence of bestiality has intrinsically built into it an acknowledgement that what is happening is happening to an animal and therefore, the question of consent is irrelevant. Almost by definition, the animal is, in that and other senses, vulnerable to humans. I therefore do not consider there to be a s 21A(2)(l) aggravating factor because that vulnerability is already built in the offence itself.

The Commonwealth offences

The facts

26. There was tended before me an Agreed Statement of Facts, relevant to both the State and Commonwealth offences.

27. I set out below my summary of those agreed facts dealing with the Commonwealth offences.

28. Over a period of approximately 19 months, the Offender transmitted images, videos and text child abuse material. In summary, there was a total of 78 video or image files, and the Offender transmitted child abuse material of some form to 17 unknown people.

29. As a "rolled up" offence, the Offender is also to be sentenced for the following conduct:

1. Between 16 January 2022 and 21 July 2023, the Offender transmitted a total of 46 files depicting child abuse material to thirteen “Telegram” users.

2. Between 30 January 2022 and 3 August 2023, the Offender transmitted text child abuse material to another four “Telegram” users.

3. Between 13 July 2023 and 20 July 2023, the Offender transmitted 32 files depicting child abuse material to an AOl.

30. There is also in evidence a detailed table describing the transmitted child abuse material videos and the text-based material and the possess child abuse material.

31. I think it is sufficient for the purpose of a proper understanding of my reasons to refer to the material in the Agreed Statement of Facts without putting into the public arena too much underlying detail which is, to say the least, distressing and quite frankly abhorrent.

The Commonwealth offences

Sentencing considerations

The nature and circumstances of the offending: s 16A(2)(a)

Sequence 1

32. Whilst the number of files is relatively small, it is a significant that there is a substantial quantity of individuals to which the Offender transmitted files and that his offending was not confined to the transmission of visual files but included the transmission of text child abuse.

33. With respect of the video and images, the material depicts real children, as young as infants and toddlers as well as pre-pubescent children. To summarise, the material includes the:

1. displaying of the genitals of various children;

2. displaying of a child's genitals with semen on them;

3. vaginal and anal penetration of children;

4. toddlers and infants engaged in fellatio, cunnilingus, and anilingus;

5. restrained children engaged in sex acts;

6. children who have been dehumanised, having been defecated and urinated on by adults;

7. children engaged in bestiality;

8. a child penetrated by two adult males at the same time;

9. sexual activity between children;

10. anal and vaginal penetration by objects;

11. the children were abused over a significant period, with the two longest videos being each over 19 minutes in length; and

12. it is obvious that physical pain is experienced by some of the children, with some descriptions indicating children who were screaming during the abuse.

34. There is no evidence that the offending was done for financial advantage or commercial distribution. However, the absence of payment does not mitigate the offending. The Offender contributed to the ongoing further victimisation of each of the child victims whose image he shared. Offending of this nature also encourages and rewards future exploitation of child victims by creating a market for this type of material.

35. As to the text child abuse material, the Offender transmitted child abuse material to 4 of the 17 individuals. The material he created was serious. Text material is no less serious than images or videos as it similarly encourages a market for the abuse of children. Some examples here include:

1. The Offender discussed the sexual abuse of a 7-year-old child.

2. The Offender discussed oral and penetrative sexual intercourse across all the conversations.

36. There was a real risk of the text child abuse material being seen or acquired by people susceptible to act in the manner described or depicted, given the Offender was corresponding with individuals who willingly engaged in the correspondence.

Sequence 27

37. The Offender had a total, between videos and images, of 797 child abuse files possessed across two devices., The material was sourced from three applications. Not all that material relates to real children, with 170 files being cartoon files. The remaining 627 files are all real children, between infancy to puberty. The files involve sexual activity with adults, sexual activity between children, penetration with objects and a range of other sexual acts.

Offender’s submissions as to sequences 1 and 27

38. The Offender made the following observations and submissions as to objective seriousness of the Commonwealth offences.

39. In an extended period of 19 months the Offender transmitted 23 videos and 13 images of child abuse material. In an extended period of time, seemingly approximately 20 months the offender engaged in 4 chats with 4 different profiles on an internet platform. The Offender provided accurate personal details, and an image of his face during one of the contacts. The dissemination is not wide. It is accepted the nature of the images and video is significant. There is no indication of a commercial operation, nor is there any indication that the Offender is in close proximity to those responsible for bringing the material into existence. Applying the characteristics contained in the decided cases would lead to the conclusion the offending falls within the low spectrum or scale.

Resolution as to the objective seriousness of the child abuse offences

40. I do not accept the Offender's characterisation of the child abuse offences (sequences 1 and 27, together with the s 16BA matter), to the effect that the offending falls within the “low spectrum or scale”. In my view, the offending is and can only be seen to be at least very serious, even by reference to other cases of this type.

41. I think the better approach is for me to remain focused on and conscious of what the Offender actually did, rather than try and apply labels placing that conduct on some form of notional scale. As I have said, the conduct is disgusting, perverted, and morally reprehensible. On any view of things, it represents a real threat to real children.

Adequate punishment

42. Section 16A(2)(k) emphasises the obligation of the Court to "ensure the person is adequately punished for the offence". The Court must have regard to the maximum penalties applicable and determine the extent to which the Offender's conduct offends against the legislative object of suppressing the online transmission of, and possession of child abuse material.

General and specific deterrence (s 16A(2)(j)-(ja))

43. As I have said, general deterrence is of particular significance when sentencing for offences involving child abuse material, given the difficulty of their detection and the substantial public interest in promoting the protection of children in the online environment.

43. The sentence to be imposed on the Offender must make clear to other like-minded people within the community that offences of this type are considered abhorrent, reprehensible, and totally unacceptable by right thinking members of the community and that offenders will be met with punishment reflective of the broader community's attitude, as expressed by Parliament in the maximum penalties, towards activities involving the online sexual exploitation of children.

44. There is also a need for specific deterrence to be given significant weight in the sentencing exercise, given that the Offender's conduct discloses that he has a sexual interest in infant children and a preparedness to disseminate material to others, who may have been unknown to the Offender. The Offender's conduct is varied and includes different forms of carriage service offences. The sentences to be imposed must be of such a severity as to act as a personal deterrent from his engaging in further offending of a like nature.

45. The nature of the offending can only be demonstrative of the Offender's ongoing sexual interest in children, and a willingness to act on his interest by possessing and transmitting child abuse and bestiality material over a substantial period of time. The offending continued until the time of arrest, and there is no evidence it would have ceased but for the arrest.

46. It was submitted on behalf of the Offender by reference to some statements recorded in the Sentencing Assessment Report, that I should conclude that the material and conversations did not sexually arouse the Offender, rather the explanation for his behaviour was that he was trying to “excite" other members of the online group.

47. The Offender is also recorded to have said that he took “full responsibility for disseminating the content”, that it was a “mistake”, and that he should have “deleted all the content". The Offender also acknowledged the impact on himself.

48. I do not accept that the Offender was not sexually aroused by the material. I am satisfied beyond reasonable doubt that part of his motivation was for his own perverted sexual gratification. I reject any submission to the effect that he was only storing and disseminating the material so as to “excite" others. I should say, even if that was the explanation, I am not sure that advances the Offender's position at all. If that were the reason, the conduct would, in my judgement, be just as reprehensible and even a little bit more difficult to understand than it is if explicable by sexual gratification. I do not think the regret expressed by the Offender is anything other than regret for the position he now finds himself in, rather than any relevant remorse.

Character, antecedents, age, means and physical and mental condition (s 16A(2)(m))

50. The Offender is currently 38 years of age and was between 35-37 years of age at the time of the offending.

51. The Offender has no convictions, however the Crown notes that evidence of prior good character will often be of less (relative) weight in such matters given the strong need for sentences that serve to protect a vulnerable class within the community (children).

52. In Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [63], the Court stated:

"The respondent could call in aid a number of mitigating factors, including his lack of prior offending, [mature] age, familial support and remorse and prospects for rehabilitation. These factors were relied on by the respondent before the sentencing judge to justify 'mercy.' But the authorities to which we have referred demonstrate that such factors must be given less weight than they ordinarily would in sentencing for possessing and accessing child pornography as such offenders generally have similar backgrounds and are of prior good character."

Guilty plea (s 16A(2)(g))

53. The Offender entered pleas of guilty to each of the offences for sentence at the Downing Centre Local Court on 29 May 2024.

54. The Court must, for the Commonwealth offences, take into account the fact and timing of the guilty plea and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence. In so doing, the following considerations apply:

1. The NSW mandatory discount scheme does not apply to federal offences.

2. The fact of the plea may be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility, and/or a willingness to facilitate the course of justice.

3. The strength of the Crown case may be taken into account in assessing the subjective value of a guilty plea, including whether the Offender's plea was simply "recognition of the inevitable". It follows that a guilty plea entered in the face of a strong Crown case should not be afforded as much weight (in the assessment of its subjective value) as a plea entered in circumstances where the Crown case is weak.

4. The Court must have regard to the utilitarian or objective value of a guilty plea, even in the absence of any subjective value.

5. In the interests of transparency, it is desirable for a sentencing judge to specify the discount given for a guilty plea, although it is not necessary.

55. The Crown accepts that the Offender's pleas were entered at the first reasonable opportunity, and, in the interests of transparency, it is desirable that he be afforded an arithmetical discount for the utilitarian value of those pleas.

56. In relation to the subjective value of the Offender's pleas, I consider the guilty pleas were given in the face of a very strong Crown case, comprised of evidence from an undercover operative and evidence found on devices seized at the Offender's residence. A plea such as this, that has resulted from the recognition of the almost inevitable, is not necessarily evidence of genuine contrition.

57. Nonetheless, I think the 25% that would be applicable under the State regime should be afforded to the Offender.

Contrition (s 16A(2)(f))

58. Contrition must be "shown" by "taking action... or in any other manner" and should be established by proper evidence. The Court is not bound to accept hearsay evidence of what an offender may say to third parties.

59. There is some evidence of some cooperation with law enforcement authorities in the form of the provision of the password to his Samsung phone, however that assistance was minimal.

60. Other than that and the guilty plea itself, there is really no evidence before me to explain why it is the Offender did what he did apart from the suggestion, which I reject, that he did it to “excite” others. He is remorseful about his current predicament, that is that he has been apprehended and charged with serious criminal conduct. I do not consider there to be any basis for me to find that there has been any real contrition shown.

61. It is irrelevant that the Offender considers that he made a mistake, that he should have deleted all the content, and that he regrets not contacting the police. I am also not persuaded that he has ‘acknowledged the impact on others’, but rather it seems to me he has focused on the impact on himself and, in the context of being in custody, has said that he understands the implication of his offending.

62. I do not think that the Offender has demonstrated that he understands why it is that his conduct is considered to be a serious breach of the criminal law, which of course becomes very important to the next question, which is his prospects of rehabilitation and reoffending.

Prospects of rehabilitation (s 16A(2)(n))

63. Section 16A(2AAA) of the Crimes Act provides that, in determining the sentence to be passed in respect of a Commonwealth child sex offence, the Court must have regard to the objective of rehabilitating the offender, including by considering whether it is appropriate that any order should include a condition about rehabilitation or treatment options or that the length of the sentence to be imposed should include sufficient time for the Offender to undertake a rehabilitation program. However, that section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence.

64. As I have said, I do not accept the Offender's explanation for his conduct. I am not satisfied that he has shown any insight into why what he did was wrong, nor do I think that he is remorseful, other than he has real regret as to being apprehended and now being in custody.

65. There is no suggestion that he has any intention of undergoing any rehabilitation program, which of course is consistent with him not understanding there is a problem to be dealt with.

Prospects of reoffending

66. Notwithstanding the conclusion in the Sentencing Assessment Report that he has been “assessed at a low risk of reoffending according to the level of service inventory”, I consider that there is a significant risk that the Offender will reoffend, because amongst other things he is unlikely to undergo any rehabilitation.

The State offences of bestiality

67. I will deal now with the sentencing considerations for the purpose of the State offences, that is sequences 2 and 8.

68. I have already rejected the submission made on behalf of the Crown that s 21A(2)(l) has applicability here, but I do accept that s 21A(3)(e) and (f) have application as the Offender does not have a record of previous convictions and is a person who is otherwise of good character.

69. Section 5 provides that the Court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate.

70. As the relatively few decided cases have made clear, because there are not very many of these types of offences that come before the Court, it is very difficult, whether by experience or reference to statistical sentencing information, to discern any particular range of appropriate punishment.

71. By reference to the facts in the matter of Chesworth, to which I have referred, the offending here is significantly less serious than the acts involved in Chesworth, where it was found in the Court of Appeal that an assessment of the objective seriousness as “just below the mid-range” was appropriate as was an indicative sentence of two years and six months.

72. In Chesworth, it was the offender himself who was involved in the sexual acts depicted. In this case, the activity depicted did not involve the Offender but did involve real people engaging in sex acts with real animals.

73. I think the best I can do is to say that the objective seriousness here is below the seriousness identified in Chesworth, which was identified at below mid-range.

74. I have already dealt with the other relevant matters required to be taken into account under s 3A of the CSPA in my discussion concerning the Commonwealth offences, all of which are equally applicable to the State matters.

75. In addition, under the State regime, the Offender is entitled as a matter of statute to a 25% reduction because of the guilty plea. He also is entitled to the benefit of the mitigating factors that I have identified.

Resolution

Commonwealth offences

76. Dealing with Commonwealth offences first. There is some overlap between sequences 1 and 27 and the s 16BA offence, in that the child abuse material disseminated forms part of the child abuse material, the subject of the possession matters. However, it is only a small overlap as there is a very large quantity of material, the subject of the possession charges, which was not disseminated.

77. The starting point is that there is no question but that a term of imprisonment must be imposed. Even without the statutory presumption in favour of imprisonment created by s 20(1)(b)(ii), no penalty other than a significant period of full-time imprisonment is appropriate for each of the Commonwealth offences on their own.

78. I do not find it necessary to reiterate the depraved, violent, and wholly abhorrent nature of the material in question.

79. As I have said, without using tags such as “above the midrange" or “slightly below the upper end of the midrange", I consider the objective seriousness of the offending to be substantial.

80. I also think that it is extremely significant that there is no satisfactory explanation before me as to why the Offender offended, other than what I infer, which is that he did it for his own perverted sexual gratification. I do not think that the Offender understands why what he did is wrong and is considered wrong by others, nor the gravity of the matter. Accordingly, I think that there is a low prospect of him being rehabilitated and therefore, a reasonably significant prospect of him reoffending. I have an obligation to protect the community, and in particular children within it, from that potential reoffending. General deterrence is a matter which also must also be given great weight. The community needs to understand with clarity that offences of this nature will be met with significant punishment almost always involving significant periods of imprisonment.

81. I accept that the Offender has no previous convictions, however that is not unusual in this type of offending, and in light of the facts before me, it is very difficult to accept a submission that the Offender ought to be treated as if he is of good character and that this conduct represents some form of unusual conduct generally out of character.

82. I will afford the 25% discount that the Offender would qualify for under the State regime.

83. In all the circumstances, the indicative sentences I consider appropriate are as follows:

1. Sequence 1 - transmit child abuse material using a carriage service: 4 years imprisonment less 25% discount for the guilty plea being a head sentence of 3 years.

2. Sequence 27 (taking into account the matter on the s 16BA schedule) – possess child abuse material obtained using a carriage service: 3 years imprisonment less 25% being a head sentence of 2 years and 3 months.

State offences

84. I consider the objective seriousness of both the State offences to be considerable.

85. Taking into account all the matters I have already identified, I consider that the s 5 threshold has been satisfied and that no punishment other than a term of full-time imprisonment is appropriate. In all the circumstances, I consider the appropriate indicative sentence for sequence 2 to be 2-years imprisonment, less 25% for the guilty plea, meaning a head sentence of 18 months’ imprisonment. An appropriate head sentence for sequence 8 is one year less the 25% discount, meaning a head sentence of 9 months. I would wholly accumulate the State offences so that the aggregate indicative sentence for the State offences is a fixed-term of 18 months’ imprisonment after discount for the plea of guilty.

Commencement date

86. As I have said, the total term of imprisonment should be backdated so as to commence on 4 August 2023, to take into account the time already spent in custody in relation to these offences.

Totality and accumulation

87. As there is more than one Commonwealth offence involved, it is necessary before turning to questions of concurrency/accumulation and issues of totality, to come to a conclusion as to the sentence appropriate for each individual sentence: Pearce v The Queen (1998) 194 CLR 610 at [47].

88. The next question becomes whether those sentences should be accumulated at all. Section 19(5) of the Crimes Act provides for a presumption in favour of cumulative sentences when sentencing an Offender for multiple Commonwealth child sex offences. It is open to the Court to impose accumulated or concurrent sentences if the Court is satisfied that the sentences are of a severity appropriate in all circumstances (s 19(6)), but the reasons must be stated and entered into the Court record (s 19(7)).

89. As I have said, as between the Commonwealth offences there is some degree of overlap in the conduct, and therefore the criminality involved does create some risk of double counting or over punishment if there is no accumulation at all. I think there should be some, although moderate, accumulation between the Commonwealth sentences.

90. As between the Commonwealth offences and the State offences, the distinction is between child exploitation offences and bestiality offences. I am not sure how one measures that distinction. It is clear that Parliament considers bestiality offences to be of lesser significance than child abuse offences. However, when considering accumulation, I think it is important to recognise that the bestiality offences fall into a very different type of criminality and to significantly accumulate any sentence with child abuse offences would be an error. I will allow some moderate accumulation.

91. I have concluded that the appropriate course in the circumstances is to partially accumulate between the two Commonwealth head sentences and the aggregate indicative State sentence.

Totality

92. Ultimately, the question before me is to step back and consider the total criminality involved here against the subjective case of the Offender and come to a just overall effective sentence in all the circumstances.

Conclusion

93. I have decided that a total effective head sentence of 5 years imprisonment is appropriate.

94. The sentence for each offence is as follows:

1. Sequences 2 and 8 – State bestiality offences: an aggregate fixed-term sentence, after discount of 25% for the guilty pleas, of 18 months’ imprisonment, to commence 4 August 2023 and expire 3 February 2025.

2. Sequence 1 - transmit child abuse material: a sentence, after deduction of 25% for the guilty plea, of a term of imprisonment of 3 years to commence 4 August 2024 and expire 3 August 2027, with a non-parole period of 2 years and 3 months.

3. Sequence 27 – possess child abuse material: Taking into account the s 16BA matter attached, a term of imprisonment, after discount of 25% for the guilty plea, of 2 years and 3 months, such sentence to commence on 4 May 2026 and expire 3 August 2028, with a non-parole period of 1 year and 8 months.

95. My intention is that there be an effective total head sentence of 5 years, commencing 4 August 2023 and expiring 3 August 2028.

96. As to the period on parole, I can see no reason to depart from the ordinary position that the Offender will be eligible for parole after 75% of the overall effective sentence. Meaning that the Offender will first be eligible for parole on 3 May 2027.

Orders

97. I order as follows:

1. For the State offences, Seq 2 and 8, impose an aggregate sentence of imprisonment of a fixed-term of 1 year 6 months commencing 4/8/2023. This term has been reduced by a discount of 25 per cent for the plea of guilty.

2. For the Commonwealth offence, Seq 1, indicate a sentence of imprisonment consisting of a non-parole period of 2 years 3 months commencing from 4/8/2024 and a head sentence of 3 years. This term has been reduced by a discount of 25 per cent for the plea of guilty.

3. For the Commonwealth offence, Seq 27, taking into account the s 16BA matter attached, indicate a sentence of imprisonment consisting of a non-parole period of 1 year 8 months commencing from 4/5/2026 and a head sentence of 2 years 3 months. This term has been reduced by a discount of 25 per cent for the plea of guilty.

4. An aggregate sentence for the Commonwealth offences, sequences 1 and 27, also taking into account the s 16BA matters, of a term of 3 years and 6 months, commencing 4 Feb 2025 and expiring 3 Aug 2028. There will be a non-parole period of 2 years and 3 months to commence 4 February 2025 and expire 3 May 2027.

5. The overall effective sentence is a head sentence of 5 years commencing 4 August 2023, and a non-parole period of 3 years and 9 months commencing 4 August 2023. The Offender will become eligible to be released on parole on 3 May 2027.

6. Order that, pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Commonwealth Director of Public Prosecutions, the following items be forfeited to the Commonwealth:

1. ‘Samsung’ branded mobile phone; NSW Police Force Exhibit X0003062876.

1. ‘Huawei’ branded mobile phone; NSW Police Force Exhibit X0003062878.

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Amendments

11 November 2024 - Amended typographical error in orders.

Decision last updated: 11 November 2024