R v Middleton

[2023] ACTSC 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Middleton
Citation:	[2023] ACTSC 50
Hearing Date(s):	23 August 2022; 28 February 2023
Decision Date:	17 March 2023
Before:	Loukas-Karlsson J
Decision:	See [209]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child abuse material – use a carriage service to access child abuse material – presumption of period of actual imprisonment – expert evidence – diagnosis of Autism Spectrum Disorder – whether there is a causal link – where offender has
undertaken extensive psychological intervention to address
offending behaviour – exceptional circumstances
Legislation Cited:	Crimes Act 1914 (Cth), pt 1B, ss 3LA, 16A, 16BA 17A, 19, 20, 23ZD
Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Act 2020 (Cth) Crimes (Sentence Administration) Act 2005 (ACT), s 42 Criminal Code Act 1995 (Cth), ss 473.1, 474.22, 474.23 Penalties and Sentences Act 1992 (Qld)
Cases Cited:	Alvares v The Queen [2011] NSWCCA 33; 209 A Crim R 297 Burton v R [2020] NSWCCA 127 Butters v The Queen [2010] NSWCCA 1 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 Clarke-Jeffries v R [2019] NSWCCA 56 Cluett v The Queen [2019] WASCA 111; 279 A Crim R 57 Commonwealth Director of Public Prosecutions v CCC [2021] QCA 4 DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 Director of Public Prosecutions (Cth) v Barnes [2023] VCC 147
DPP v D’Alessandro [2010] VSCA 60
Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41; 262 CLR 428 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DDP v Smith [2010] VSCA 215 Director of Public Prosecutions v Latham [2009] TASSC 101 Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 Fusimalohi v The Queen [2012] ACTCA 49 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mertell v The King [2022] ACTCA 69 Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Mun v The Queen [2015] NSWCCA 234 Munda v Western Australia [2013] HCA 38; 249 CLR 600
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 The Queen v Kilic [2016] HCA 48; 259 CLR 256 R v Armstrong [2020] ACTSC 298 R v Arthur [2017] ACTSC 23 R v BM (Unreported, Supreme Court of the ACT, Refshauge J, 29 October 2012) R v Arnould [2020] ACTSC 345 R v Burch [2020] ACTSC 192 R v Coker [2021] NSWDC 805 R v De Leeuw [2015] NSWCCA 183 R v Dregmans [2022] NSWDC 55 R v Duncan [1998] 3 VR 208 R v Elson [2020] ACTSC 264 R v Ferguson [2015] ACTSC 363 R v GAW [2015] QCA 166 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hill [2016] ACTSC 310 R v Horner [2023] ACTSC 23 R v Hutchinson [2018] NSWCCA 152 R v Johnston [2020] ACTSC 46 R v Kanawaza (Unreported, Supreme Court of the ACT, Murrell CJ, 2 December 2013) R v KB [2019] ACTSC 136 R v Khqustiaan [2022] NSWDC 128 R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996) R v Major [2016] ACTSC 161 R v Maruskanic [2019] ACTSC 337 R v Mumberson [2011] NSWCCA 54 R (Commonwealth) v Nafarette [2022] NSWDC 225 R v Padberg [2010] SASC 189; 107 SASR 386 R v Paredes Valdez [2022] ACTSC 126 R v Pedersen [2021] NSWDC 535 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Pham [2015] HCA 39; 256 CLR 550 R v Srna [2018] ACTSC 337 R v Tootell ex parte AG [2012] QCA 273 R v Verdins [2007] VSCA 102; 16 VR 269 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Wicks [2005] NSWCCA 409 Saddler v The Queen [2009] NSWCCA 48 Stanford v The Queen [2007] NSWCCA 73 Van Zwam v The Queen [2017] NSWCCA 127 Veen v The Queen (No 2) (1988) 164 CLR 465 Woods v R [2023] NSWCCA 37 Wong v The Queen [2001] HCA 64; 207 CLR 584 Xiao v The Queen [2018] NSWCCA 4 Zdravkovic v Queen [2016] ACTCA 53
Texts Cited:	Explanatory Memorandum, Crimes Legislation Amendment
(Sexual Crimes Against Children and Community Protection
Measures) Act 2020 (Cth)
Parties:	The Queen (Crown)
Christopher Alex Middleton (Offender)
Representation:	Counsel
N Purvis and L Cragg (Crown) F J Purnell SC (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Aulich Criminal Law (Offender)
File Number:	SCC 140 of 2022
LOUKAS-KARLSSON J
Introduction
Sentencing a criminal is about individualised justice. It is not about excuses. It is about
the proper and just punishment for the individual offender. A punishment that fits both
the offender and the offences; the crime and the criminal.
I note the following at the outset because the issue of exceptional circumstances is
raised in this case. A test of exceptional circumstances does not do away with
individualised justice. Individualised justice is justice for the individual criminal and
justice for our society. The test of exceptional circumstances does not equate to every
case must lead to full-time imprisonment. That is not individualised justice. It is not
justice. There will be cases that involve exceptional circumstances. Sentencing is not
one size fits all.
On 2 June 2022, Christopher Alex Middleton (the offender) pleaded guilty to the
following offences:

(a) Count 1 (CAN 11244/2021): An offence of using a carriage service for child

abuse material, contrary to s 474.22 of the Criminal Code Act 1995 (Cth)

(Criminal Code). The maximum penalty for this offence is 15 years’

imprisonment.

(b) Count 2 (CAN 11243/2021): An offence of possessing, controlling, producing,

supplying or obtaining child abuse material for use through a carriage service,

contrary to s 474.23 of the Criminal Code. The maximum penalty for this offence

is 15 years’ imprisonment.

The following offence is also to be taken into account on a schedule in accordance with

ss 16A(2) and 16BA of the Crimes Act 1914 (Cth) (Crimes Act):

(a) (CAN 3063/2022): An offence of failure to comply with an order made by a

magistrate, contrary to s 3LA(6) of the Crimes Act. The maximum penalty for

this offence is 10 years’ imprisonment.

The matter first came before me for a sentence hearing on 23 August 2022. I made an

order on that date for the preparation of an Intensive Correction Order Assessment

Report. While it had been anticipated that this matter might be relisted approximately

eight weeks after the initial hearing, the matter was listed before me for the continuation

of the sentencing hearing on 21 February 2023. The matter was subsequently vacated

and relisted by me for 28 February 2023 due to the unexpected continuation of a then

ongoing jury trial.

Agreed Facts

The agreed facts are set out in the Statement of Facts, which forms part of the

Prosecution Tender Bundle. The agreed facts may be summarised as follows.

On 3 September 2021, the Australian Capital Territory (ACT) Joint Anti Child

Exploitation Team received a report from the National Centre for Missing and Exploited

Children (NCMEC) related to the access of child abuse material on the social media

messaging application ‘Kik’. The user was linked by an Internet Protocol (IP) address

to the Internet Service Providers known as iiNet and Telstra. The IP address subscriber

was then identified as the offender.

On 17 November 2021, a search warrant was executed at the offender’s address. The

offender’s mother, father and brother were present at the time.

As the offender declined to provide Police access to his devices and the relevant

accounts, he was subsequently served with an order under s 3LA of the Crimes Act.

After receiving legal advice, the offender provided the pin/password to his devices

including a Samsung mobile phone and a Huawei Matebook laptop, as well as to his

Kik accounts with usernames of 'sneakyibis' and 'jamesdead735'.

The web browsing history of the offender’s phone shows that the offender had

accessed the encrypted cloud storage website ‘Mega.nz’ and that he lied to police in

saying he did not. The offender omitted to inform police that the password and account

details were saved in the ‘My Passwords’ application on the offender’s phone.

The following devices belonging to the offender were seized during the execution of

the search warrant:

(a)	a Samsung mobile phone; and
(b)	a Huawei Matebook laptop.

The Kik application was installed on the offender’s phone and logged into. A

conversation was observed on Kik Messenger which occurred on 14 November 2021

between the offender and another Kik user. The messenger chat concerned the forceful

confinement, assault and rape of a 13 year old female by the offender and another Kik

user. The content of the conversation meets the definition of child abuse material per

s 473.1 of the Criminal Code.

Police reviewed the ‘Mega’ account 'John Smithe' and associated email address and

identified that it comprised five folders containing 374 files. Police viewed three files

and indicated the videos were of varying lengths and depicted rape and indecent acts

committed on prepubescent children by adult offenders.

Subsequent forensic examination of the offender’s Samsung phone revealed the

download of 12 different Virtual Private Network (VPN) applications between 6

September 2020 and 24 July 2021. VPNs are used to encrypt a user’s internet traffic

and disguise their online identity.

Additional applications found on the offender’s phone included:

(a) the ‘Tor Browser’ which is designed to access the ‘Tor Network’ or the ‘Dark

Web’, downloaded 8 December 2020;

(b)	‘IP Change’, downloaded 22 March 2021;
(c)	‘DuckDuckGo’, an internet search engine designed to prioritise a user’s

personal privacy and security which can be used to search the internet and

access the ‘Dark Web’, downloaded 20 April 2021; and

(d) ‘Hide My IP’, downloaded 24 July 2021.

In addition, the internet history of the Google Chrome application on the offender’s

phone also showed navigation to temporary email providers and Mega.nz between 2

October 2021 and 16 November 2021. Located on the Mega account were a total of

220 video files that were assessed to meet the definition of child abuse material. Three

files were duplicates.

The Statement of Facts disclosed that, of the 220 video files, the shortest video file was

three seconds in duration and the longest video file was 52 minutes and 10 seconds.

Of the 220 video files, 51 percent depicted prepubescent child victims and 49 percent

depicted pubescent child victims.

The child abuse material depicted female child victims ranging in ages from six months

to 14 years of age. The files depicted, among other things, rape of children by adults

and bestiality.

During the execution of the search warrant, the offender stated the following:

(a) When asked what his understanding of child abuse material is, the offender

stated “It’s bad. It’s not good.” The offender further stated: “People abusing

children” and “people exploiting children sexually and then filming it, I

guess.”

(b) He denied having child abuse material, child exploitation or child

pornography on his Samsung mobile phone and Huawei Matebook.

(c) He had the Samsung mobile phone for two years and in regards to anyone

else accessing the phone it was only his brother who would use it to change

songs.

(d) He would access Google Chrome with the ‘DuckDuckGo’ extension on his

Huawei Matebook but not on his mobile phone.

(e)	He did not use ‘Cognito’ application regularly.
(f)	He did not use VPNs or the ‘Tor’ browser.
(g)	There was a VPN on his phone that he had not used in years.
(h)	The offender’s understanding of his compliance with the s 3LA order was “I

was only meant to provide passwords and account details, not information

on data.”

Objective Seriousness and Sentencing Submissions

The offences for which the offender is to be sentenced are serious, as is clear from the

maximum penalty of 15 years.

In assessing the objective seriousness of an offence of possession of child abuse

material, it must be borne in mind that the possession of child abuse material creates

a depraved market for the continued corruption and exploitation of children: R v Porte

[2015] NSWCCA 174; 252 A Crim R 294 (R v Porte) at [67]. The absence of sale, distribution or dissemination of material does not mitigate the penalty for the possession

offence: R v Porte at [66]. The possession of child pornography is not a victimless

crime. On the contrary, because the material remains in the community, the offence

creates significant ongoing harm: see R v KB [2019] ACTSC 136.

The depravity of this material is clear. As stated in DPP (Cth) v Garside [2016] VSCA

74; 50 VR 800 (DPP (Cth) v Garside) at [62]:

What is clear from all of the authorities is that access to child pornography is regarded as a very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending.

(emphasis added)

Taking into account the depravity of the offences, specific deterrence and protection of

the community, the prosecution submitted that a term of immediate imprisonment was

appropriate in this case.

The prosecution tendered a sample of the child abuse material for the court to view. It

was submitted by the prosecution that the utility of the sample booklet has further

increased in light of the new Interpol classification regime and its broader categorisation

scheme. The prosecution emphasised it is important for the court to view the material

in this matter to form an impression of the realistic nature of the material and its degree

of depravity: see R v Porte at [76]. The court viewed the material as it was submitted

must be done. It was truly depraved and degrading. There are no sufficient words to

describe the appalling nature of this material. It is one of the worst aspects of a judge’s

work to be forced to view this material. For the record I state the court is aware of the

nature of the material and the degree of depravity (see also R v Hutchinson [2018]

NSWCCA 152 at [48]-[50]).

Factors relevant to the objective seriousness of offences of this kind are discussed in

R v De Leeuw [2015] NSWCCA 183 (R v De Leeuw) at [72]; R v Ferguson [2015]

ACTSC 363 at [48]; R v Arthur [2017] ACTSC 23 at [17]; and R v Major [2016] ACTSC

161 at [25].

The objective seriousness of child abuse material offending is ordinarily determined by

reference to, inter alia, the following relevant factors:

(a) the nature and content of the material, in particular the age of the children

and the gravity of the sexual activity depicted;

(b)	the number of items or images possessed;
(c)	whether the material is for the purpose of sale or further distribution;
(d)	whether the offender will profit from the offence;
(e)	in the case of possession or access of child pornography for personal use,

the number of children depicted and thereby victimised;

(f) the length of time for which the pornographic material was possessed.

As stated earlier, in R v Porte, the court also observed the following at [67]-[69]:

(a) the possession of child abuse material creates a market for the continued

corruption and exploitation of children; and

(b) the possession of child pornography is not a victimless crime and that the

harm is ongoing because the material remains in circulation on the internet.

Nature, content and quantity of material

The offending for Count 1 is particularly serious due to the violent and depraved nature

of the conversation.

In relation to Count 2, the offender had 220 video files of child abuse material, including

one video being 52 minutes and 10 seconds long. The volume of material is one

indicator of objective seriousness with respect to offences of this type. The primary

focus, however, is the type of material and the degree of its depravity: see Director of

Public Prosecutions v Latham [2009] TASSC 101 at [35]; see also Commonwealth

Director of Public Prosecutions v CCC [2021] QCA 4.

The offending material depicts very young children, with 51 percent of the files depicting

prepubescent child victims.

The content of the child abuse material possessed by the offender is grossly degrading,

abhorrent, and graphic and reflects a very high level of depravity and cruelty.

Make available to others

The offending material was stored for the purpose of further offending. The offender

admitted that this also included for the purpose of sharing with others.

Counsel for the offender submitted, in terms of transmission, that there is no evidence

to suggest the offender received any payment or other material benefit for the

acquisition or transmission, nor is there any evidence of risk of the material being seen

or acquired by a child, or by persons susceptible to act in the manner described or

depicted. Counsel for the offender correctly submitted these are not mitigating factors,

although their presence may be an aggravating factor.

The prosecution correctly submitted that the absence of any benefit or profit does not

mitigate the offending: see Saddler v The Queen [2009] NSWCCA 48 at [54].

Length of time

Counsel for the offender submitted the length of offending is relatively short, being a

matter of months. A time frame for the offending is not specified in the agreed facts or

prosecution submissions.

Conclusion on objective seriousness

The features discussed above are the relevant identifying features in this case

concerning Count 1 and Count 2.

An assessment of the objective gravity of an offence has always been an essential part

of the sentencing process. What is required is for a court to “fully identify the facts,

matters and circumstances which the judge concludes bear upon the judgment that is

reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011]

HCA 39; 244 CLR 120 at [29]. The facts, matters and circumstances have been

identified from [28] to [35].

In The Queen v Kilic [2016] HCA 48; 259 CLR 256 (The Queen v Kilic), the High Court

held at [19] that unless the maximum penalty for an offence is to be imposed, a

sentencing judge is bound to consider where the facts of the particular offence and

offender lie on the “spectrum” that extends from the least serious instances of the

offence to the worst category, properly so called. The offending in this case is not a

least serious instance, nor is it at the higher range.

Taking into account the above, I assess the objective gravity of the offences to be in

the mid range. As the High Court made clear in The Queen v Kilic, it is best to avoid

using the expression “worst category” as lay persons may wrongly take it to mean that

a judge has underestimated seriousness: see [20]. The offending is not low range. I

have come to the conclusion that the offending falls in the mid-range arising from the

factors discussed above.

Subjective Circumstances

Pre-sentence report

In evidence before me is a pre-sentence report (PSR) dated 18 August 2022.

The offender is 22 years old and born and raised in Canberra. He described a positive

upbringing. He is one of two siblings and reported close and loving relationships with

both parents and his younger brother. The offender reported stable accommodation at

his parents’ house. He advised he has resided with his parents for the duration of his

lifetime, and has no imminent plans to leave the family home.

The offender attained his Year 12 Certificate, and then subsequently completed a

Bachelor of Science in 2022. The offender reported previous employment at

McDonalds fast food restaurant from 2016 to early 2022. The offender’s employment

was suspended due to the charges before the court, and he subsequently resigned. I

note that counsel for the offender’s supplementary written submissions state that the

offender regained full-time employment at a building supplier in December 2022. The

offender financially supports himself.

The offender described himself as being socially isolated. He reported he does not

maintain contact with his friends from school, nor from his previous employment. He

stated he would typically only engage in casual interactions with acquaintances via

online platforms. The offender has never had a romantic relationship or been sexually

active.

This information about the offender’s subjective circumstances contained in the PSR

accords with the information about the offender’s subjective circumstances provided in

the psychological reports outlined below.

I note that the PSR was completed prior to the offender’s engagement with his treating

psychologist, Ms Tabitha Frew. The question of the offender’s mental condition or lack

thereof loomed large in this sentence proceeding. I will now discuss this topic.

Psychological reports

In evidence before me are the following psychological reports:

(a)	Psychological Treatment Report of Mr Graeme Randall dated 21 July 2022;
(b)	Psychological Assessment Report of Ms Megan Godbee dated 5 August 2022;
(c)	Psychological Report and Comprehensive Mental Health Assessment of Ms

Tabitha Frew dated 15 August 2022.

In the interim period between the initial sentence proceedings on 23 August 2022 and

the hearing on 28 February 2023, counsel for the offender provided a supplementary

tender bundle containing two updated psychological reports and further submissions.

Counsel for the offender provided the following additional material:

(a) Psychological Treatment Report – Update Letter of Mr Graeme Randall dated

27 January 2023;

(b) Psychological Treatment Summary Report of Ms Tabitha Frew dated 24

January 2023.

Psychological reports of Ms Tabitha Frew

Ms Frew, a clinical psychologist, provided a report and mental health assessment dated

15 August 2022 which outlined the following.

Under the heading ‘Brief psychosocial history’, the report outlines the offender’s

childhood and family history; education and employment; relationships; medical history;

mental health history; and (lack of) substance use. The report outlines the offender’s

upbringing, which he described to the author as ‘great’. It outlines the offender’s

engagement in school and extracurricular activities, work and education.

Under the heading ‘Psychological Testing’, the report outlines the offender’s response

to the following tests:

(a)	Paulhus Deception Scales;
(b)	Millon Clinical Multiaxial Inventory; and
(c)	Ritvo Asperger and Autism Diagnostic Scale and Structured Clinical Interview.

Under the heading ‘Ritvo Asperger and Autism Diagnostic Scale and Structured Clinical

Interview’, the report notes that the offender’s results from Autism [Spectrum Disorder]

testing indicated marked deficits in verbal and nonverbal social communication skills,

social impairments apparent even with supports in place, limited initiation of social

interactions, and reduced or abnormal responses to social overtures from others. The

report notes the offender had inflexibility with his behaviours, difficulty coping with

change, and other restricted/repetitive behaviours which interfered with his functioning

in a variety of contexts. The offender experienced distress and/or difficulty changing

his focus or actions even when outside factors required this of him.

Under the heading ‘Response to Terms of Reference’, the report provides responses

to questions contained in a letter from the solicitor for the offender, including the

following.

The report states that the offender attended 15 of 17 scheduled appointments from

November 2021 to August 2022, completing all appointments on time and actively

engaging in the sessions. There were no issues with compliance.

The report author states that in her professional opinion, the offender has (previously

undiagnosed) Autism Spectrum Disorder (ASD) Level 2, without intellectual or

language impairment. The report author outlines that a comprehensive mental health assessment was conducted over the first 6 sessions with the offender which formulated

this diagnosis. Importantly, for the purposes of sentencing, the report outlines that

based on the information provided and the assessment undertaken, Ms Frew is of the

view that the offender was suffering from an undiagnosed and untreated ASD in the

lead up to the commission of the offences and at the time of the offending.

I accept on the basis of the opinion of Ms Frew that there is a causal relationship

between features of the offender’s ASD and the offending. Ms Frew identified relevant

factors at [410]-[532] of her report. There is, in my view, a causal relationship to a

significant degree based on these factors. The relevant factors in summary are as

follows:

(a) The offender’s ASD caused deficits in his ability to make and maintain

friendships or romantic relationships in adulthood;

(b) The offender’s late awareness of a deficit in life experiences relating to romance

or sex compared to his same-age peers made him feel defective and socially

isolated, which was a precipitating factor in the commission of the offences;

(c) At the time of report writing he presented to the report author as a person with

the social and emotional understanding of someone of similar intelligence aged

about 15 years old;

(d) Because the offender’s undiagnosed ASD caused him to fail to progress along

the developmentally normal continuum of age-appropriate intimacy in

relationships, he was vulnerable to meeting people online who could take

advantage of his underdeveloped social and emotional maturity;

(e) The offender had no social or emotional capacity to understand the subjective

context of reality as it related to real-time sexual experiences, and to generalise

this knowledge to the needs and rights of the victims in child abuse material;

(f) The offender’s naivety and literal interpretations meant that if a user profile

stated the person was a 25 year old female, he genuinely thought he was talking

to someone of that age and gender; and

(g) The offender’s neurocognitive capacity to recognise that child abuse material

was direct malice toward a child was reduced because of his ASD.

Relevantly for sentencing, Ms Frew noted the following in summary:

The offender is a psychologically vulnerable person because of his sheltered upbringing and neurocognitive deficits in social and emotional understanding, with an emotional age of approximately 15 years old in terms of how he relates to others and views himself. The undiagnosed Autism Spectrum Disorder was a causal factor in his offending, because if it was diagnosed in childhood, he would have had access to professional support to learn about emotions and social skills, plus appropriate sexual development, and socially normative behaviour.

The report author also states that the offender has sub-clinical (emerging) features of

Posttraumatic Stress Disorder (PTSD), developed after viewing a video of child abuse

material. Importantly, I note that the author states that based on available information,

the offender does not meet the DMS-5 criteria for Paedophilic Disorder. The report

states the following:

While he experienced sexual arousal on viewing child abuse material, Mr Middleton said, “I

have never been attracted to a child, I like girls my age. Whenever I watched [child] abuse material, I had to have normal [adult] pornography going at the same time to get myself [sexually] excited. The [child] abuse material was more about the shock value and doing

something I shouldn’t do.” Mr Middleton acknowledged there were 220 files of child abuse material on his personal devices. He said “I had a few group folders with heaps of it [child abuse material and bestiality content], but I didn’t watch a lot of the videos. I would say I

opened about 20 percent of the videos, just to check they were the [child] abuse material, so

I could then swap them with other people online, that is how I made friends.

In evidence, Ms Frew stated that she did not conduct a forensic evaluation and that this

conclusion is based on the self-reporting of the offender about his lack of sexual

attraction to children. The offender told Ms Frew that he had to have adult pornography

playing in order to become sexually aroused.

Under the heading ‘Treatment Options’ Ms Frew states that the offender would benefit

from a two-year period of psychological treatment using Cognitive Behavioural Therapy

adapted for ASD. The offender requires a significant period of ongoing treatment to

target his neurocognitive deficits because his ASD was not detected in childhood or

adolescence. Therefore, he has not had any education or skills training to improve his

capacity to cope with life and relationships.

Under the heading ‘Sentencing Matters’ Ms Frew states that she assesses the offender

as having a low risk of reoffending. Ms Frew is of the opinion that restricting the

offender’s access to open source internet until the age of 25 would be a significant

protective factor in reducing his risk of reoffending. Ms Frew also formed the view that

the offender has the capacity to deal with the demands and constraints of a sentence

served in the community.

Importantly, Ms Frew stated that she is of the rare clinical opinion that the offender fits

into a very small group of offenders who warrant special consideration for a non-

custodial sentence, as it is likely to weigh on him more heavily than it would on a person

without ASD and his adolescent-like interpersonal style. Ms Frew noted the concern

that in custody the offender may be exposed to mature men with paraphilias such as sexual sadism and paedophilia, and they may influence his learning about sexual

relationships. The offender’s naivety means he would be ‘easily influenced’ by such

individuals. Further, Ms Frew noted that the offender will not receive the treatment

benefits in custody that can be delivered to him in a one-on-one offence-specific

therapeutic setting. These are important matters for sentencing.

Evidence of Ms Tabitha Frew – specialist in both ASD and sexual offending

Ms Frew gave evidence before me at the sentencing hearing on 23 August 2022

concerning the contents of the first report dated 15 August 2022. Ms Frew gave

evidence that her specialist areas are ASD and sexual and violent offending behaviour.

Her dual forensic specialties are of particular significance in this case.

In evidence in chief Ms Frew gave evidence that one of the significant areas of the

offender’s impairment is his capacity to have relationships with people and make

friends outside of his family system. Ms Frew stated that her clinical opinion is that this

was a causal factor that led to him being isolated at home and making friends online,

and consequently the commission of the offences.

Importantly, Ms Frew gave evidence that if the offender were to be sentenced to a

community-based order, she would make herself available on a fortnightly basis for a

period of two years as the offender’s treating psychologist to address his ASD.

Ms Frew gave two reasons for there being a causal relationship between the offender’s

ASD and his offending. Firstly, she referred to the existence of research surrounding

the inherent vulnerabilities for individuals with ASD as they relate to online child sex

abuse offences. And secondly, the unique combination of a number of factors for Mr

Middleton being late diagnosis, staying at home, lack of any real experiences with

genuine friendship, social naivety (including being of the belief that the person he was

speaking to online was a friend), and no experiences in dating or romantic relationships.

In her evidence Ms Frew stated the following:

There was, in my clinical view, a toxic combination which is written about in the autism and offending literature that talks about the social and emotional impairments in understanding

the true impact and the real world experience of victims in those films …

Ms Frew noted that the offender’s capacity to express remorse is directly influenced by

his ASD.

The evidence of Ms Frew was vigorously tested by the prosecution. In my view, Ms

Frew’s opinion was not undermined by the prosecution’s cross-examination.

Updated 2023 report

The purpose of Ms Frew’s updated report is to “summarise the relevant observations

of Mr Middleton’s progress in psychological treatment” and to provide the Court with

“tailored clinical recommendations” to assist the Court in sentencing the offender.

The offender has been under Ms Frew’s ongoing care for the management of ASD

Level 2 and Attention Deficit Hyperactivity Disorder, combined presentation.

The report states that the offender has attended an additional nine clinical psychology

appointments since the sentence hearing of 23 August 2022, with his parents attending

one session. The report also refers to future appointments. I note that according to Ms

Frew’s original report of 15 August 2022 the offender had attended 15 sessions

between November 2021 and August 2022. This is now a total of 24 appointments.

The report outlines a case consultation between Ms Frew and Mr Randall on 20

January 2023. I summarise and deal with Mr Randall’s evidence later in this judgment.

Suffice it to say at this point that Ms Frew provided a summary of the relevant facts of

their discussion as follows.

(a) The offender has been attending fortnightly sessions with Mr Randall via the

video platform Coviu and he was near completion of the intensive component

of the sexual offending treatment program;

(b)	Mr Randall outlined the offender’s positive participation in the program;
(c)	Mr Randall outlined some of the offender’s vulnerabilities including difficulty with

expressing empathy and understanding his own needs which will take longer in

therapy;

(d) While Mr Randall outlined in his initial report that he was of the view the offender

was sexually attracted to children, Mr Randall changed this opinion in the case

conference;

(e) With reference to a diagnosable condition, Mr Randall stated that he agrees

after working with the offender for a while now that the offender has traits of

ASD. Mr Randall stated that he did not do a full assessment at the time of writing

the first report as it was not relevant to his work with the offender;

(f) Mr Randall stated that he intended to continue to support the offender in a

maintenance program for the duration of any sentence served in the community.

The update provides further information regarding the offender’s continued

engagement in treatment for his ASD.

Under the heading ‘Additional Relevant Information’ the letter notes that the offender

has applied to the NDIS for funding supports for management of ASD. The offender is

in the process of seeking a referral to a forensic psychiatrist for trial of a stimulant

medication to improve impulse control and emotional regulation. It notes that if afforded

a community based sentence, it would be important for ACT Corrective Services to

provide the offender with a list of suitable websites he can access such as elearning,

internet TV and music, email, health and finance websites and government websites.

This list would then be displayed in his bedroom as a visual reminder and deterrent

against any decision to access sites. This would be a protective factor against

reoffending.

The letter further notes that while the offender’s parents cannot prevent him from re-

offending, residing under their roof is a deterrent from re-offending now that they are

aware of the offences. Further, Ms Frew notes if sentenced to a community based

sentence, Ms Frew would provide the offender’s parents with consumer resources

regarding ensuring vigilance online in the area of child and animal abuse materials.

This would be a protective factor against reoffending.

In summary, Ms Frew notes that the offender remains vulnerable to poor impulse

control, sensory-seeking behaviours, and a preference to make friends solely online,

all of which are risks for reoffending. However, with NDIS supports, meaningful

education and employment, engagement in treatments, family support, and specific

restrictions on his online activity, he has an opportunity to learn to develop into a

prosocial and law abiding member of the community. I accept Ms Frew’s opinions as

to these matters.

Mr Graeme Randall (Psychologist)

As outlined above, in evidence before me is a Psychological Treatment Report of Mr

Graeme Randall dated 21 July 2022 and an Update Letter dated 27 January 2023. Mr

Randall was also subject to cross examination at the second sentence hearing of 28

February 2023.

The first report outlines the offender’s referral to Mr Randall for targeted therapy

focusing on his sexual offending. Treatment sessions between Mr Randall and the

offender occurred via a telehealth platform, commencing 4 April 2022.

Mr Randall reported that the offender presented as an individual who, despite outward

appearances, has a poor sense of self. The offender communicated to Mr Randall that

he has had difficulty fitting in socially and, as a result, has not been able to effectively

build strong emotional supports and relationships. Mr Randall noted that the offender realised that rather than addressing his emotions, he has intellectualised his feelings,

resulting in poor emotional regulation at times and disconnection from emotions. This

has further impacted his ability to form close friendships.

The report author noted the offender presented throughout the sessions as being

relatively stable, though disconnected from his emotions. The offender reported feeling

somewhat depressed at the time of the offences, however there were no obvious signs

of depression during sessions and he reported that the depression was a consequence

of the COVID-19 lockdowns.

The report identified that the offender requires ongoing psychological support to

address the various factors that led to his offending behaviour and develop appropriate

supportive relationships. The focus of Mr Randall’s treatment is the offender’s

disconnect from his own emotions as barriers to empathy and the development of

fulfilling relationships, as well as disclosures around being sexually aroused in

response to child abuse material. The report author noted that the offender has

engaged well in treatment and is open to exploring different perspectives regarding his

behaviour and thought patterns, which appears to be slowly building his insight into his

behaviour.

The court was provided with a Psychological Treatment Report – Update Letter of Mr

Graeme Randall.

The letter provides that Mr Randall has continued to treat the offender on a fortnightly

basis and (at the time of writing of the report of 27 January 2023) he has had a further

11 sessions with the offender, totalling 18 sessions. The letter notes that the offender

has engaged well with the material in the sessions.

In the original report, Mr Randall indicated he did not conclude that the offender

currently suffers from a mental disorder, impairment, or condition. However, the update

letter notes the following at [6]:

Having read [Ms] Tabitha Frew’s report, I agree with her assessment of Mr Middleton. I agree

with her recollection of the case conference.

Mr Randall stated further that it was not his intent in the original treatment report to

suggest that the offender was primarily attracted to minors, nor that the offender met

the criteria for Paedophilic Disorder. Mr Randall distinguished that at the time of the

offending, the offender acknowledged sexual gratification from child abuse material,

which is different to being primarily attracted to minors or meeting the criteria for a

Paedophilic Disorder. Importantly, the offender reported to Mr Randall that he no longer

has thoughts of experiencing sexual gratification through child abuse material, and that the thought of seeking gratification through child abuse material is now repulsive to the

offender as he recognises the harm caused.

Mr Randall notes that the offender has expressed a desire to continue with therapy,

noting the positive impact it has had on his life and perception of others, including his

understanding of appropriate sexual behaviour.

Mr Randall notes that while the offender’s specific course is nearing completion, the

offender can continue to see Mr Randall on a monthly basis via telehealth to engage in

maintenance therapy. Clearly maintenance therapy is important for the continuing

rehabilitation of the offender.

These comments accord with the case conference summary contained in Ms Tabitha

Frew’s updated report.

Evidence in Court – Mr Graeme Randall

Mr Randall gave evidence at the sentencing hearing of 28 February 2023.

Mr Randall gave evidence that he defers to Ms Frew’s opinion in relation to the effects

of ASD on the offending behaviour.

Under cross examination, Mr Randall noted that his initial observation that the offender

was not suffering from a mental condition was an observation rather than a diagnosis.

The witness confirmed that his discussions with Ms Megan Godbee in August 2022 did

not involve an actual discussion of ASD. The witness stated that neither himself nor Ms

Godbee had undertaken a detailed assessment that would have diagnosed ASD.

I note the following exchange:

Ms Cragg: Well did Ms Godbee relay to you her opinion that Mr Middleton did not appear to meet the criteria for autism spectrum disorder because he did not report or present with the main symptoms associated with that condition?

Mr Randall: She noted that she didn't see severity of symptoms to suggest the need to do further in-depth assessment at that point.

Ms Cragg: Did you agree with that view?

Mr Randall: As I had not done any assessments to determine ASD myself, I would agree that

at that point in time there were some traits. Whether or not it was worthy to – for me as a

treating psychologist to pursue a diagnosis was irrelevant.

There was crossexamination by the prosecution regarding Mr Randall’s change in

opinion between the initial report of August 2022 and the Update Letter of 2023 advising

that he defers to Ms Frew’s diagnosis of ASD. In my view this was a sensible and

appropriate concession by Mr Randall as Ms Frew specialises in ASD and sexual

offending.

The witness was further cross examined regarding the causal link between (if

established) the offender’s ASD and the offending behaviour. He also emphasised that

the ASD diagnosis would provide context for offending but not explain the offending. I

did not understand Mr Randall’s evidence to necessarily contradict Ms Frew’s evidence

in this area of causal linkage. The question to be answered with close scrutiny to the

evidence is the following: did the offender’s condition contribute to the commission of

the offences in a material way? The answer on the evidence in this case is yes. The

forensic question for the court is not “context” or “explanation” but rather contribution in

a material way.

Of course, it cannot be said that ASD leads inexorably to such offending. It does not.

That is consistent with the evidence of Mr Randall and Ms Frew. Nevertheless, the

evidence in the case of this individual offender is clear. It is as set out earlier in this

judgment in dealing with the evidence of Ms Frew. The offender’s symptoms of ASD

contributed to the offence in a material way (see Director of Public Prosecutions (Cth)

v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa) at [177]-[178]).

Psychological Assessment Report of Ms Megan Godbee

A Psychological Assessment Report of Ms Megan Godbee dated 5 August 2022 was

tendered into evidence. The report was produced following a semi-structured clinical

interview with the offender for the purpose of providing a Psychological Assessment

Report for the court.

Ms Godbee reported that, in his late teens, the offender began engaging in

hypersexualised behaviour (excessive masturbation) which contributed to him

becoming desensitised to mainstream pornography. The offender began to develop

interests in deviant material, and his emotional suppression may have reduced his

feelings of guilt and shame at the time.

Ms Godbee reports the offender’s index offending was precipitated by his sexual

interest in deviant material, a lack of meaningful social connections, accessing deviant

chat forums on the internet, the use of sexual release as emotional coping, as well as

an increased need for coping and social connections due to boredom and loneliness

under COVID restrictions.

In her report, Ms Godbee indicated the offender presents with reasonable insight,

however appears to have some difficulties with self-awareness related to his own

emotions as he tends to intellectualise rather than experience his feelings. Ms Godbee

indicated that the offender’s self-report and his offending are both indicative of a deviant

sexual interest in young girls, as well as other deviant material such as pornography

featuring violence.

As to the discussion of ASD, I prefer the evidence of Ms Frew and Mr Randall, as Ms

Godbee only had one interview with the offender via Audio Visual Link on 2 August

2022.

Ms Godbee reported the offender presents as an inherently prosocial young man with

specific issues related to sexual offending and his socio-emotional difficulties. Ms

Godbee reported the offender demonstrated appropriate insight into these issues and

is already engaging in the treatment that would be recommended for him. Ms Godbee

noted the disruption to the offender’s treatment that would occur if the offender were to

receive a custodial sentence.

Remorse

The PSR authors described the offender having acknowledged his actions had been

unlawful. The offender verbalised feelings of embarrassment regarding the index

offences, and stated “I hate that I got to the stage I did”.

Ms Godbee’s report notes that the offender stated that he regrets his behaviour

because of the consequences for himself and the hardship he has put his family

through. The offender reportedly expressed the hope that this experience is “character

building for him”. The offender was asked by Ms Godbee about the wrongness of his

offending, and he identified that “it’s illegal because it’s horrible”. With prompting, the

offender identified that “the person involved can’t consent, it’s a video of a rape

basically”. The offender presented with a sound understanding of the way that

accessing the material creates a demand for it.

Ms Godbee’s report suggested the offender’s responses (to questions about consent

and about his offending) gave the impression that he has an intellectual understanding

of the wrongness of his behaviour but the negative consequences for the victims are

not the first thing that he considers. The offender’s treating psychologist identified that

building the offender’s empathy skills are a target of treatment.

There is evidence before me that the offender’s ASD affects his ability to express

remorse.

Ms Frew notes the following in her initial report:

[The offender’s] capacity to express remorse for the offences is directly influenced by the

Autism Spectrum Disorder. If he was diagnosed with a neurodevelopmental condition in childhood and he had the appropriate professional treatments earlier, he would have greater capacity now to express remorse for the offences and to comprehend the true impact on the victims. However, his emotional age of approximately 15 years old, and neurocognitive deficits in Theory of Mind skills and empathy expression, means he only has capacity to

show remorse for the effect of his offending in settings in which he is familiar…’

The impairment caused by [the offender’s] Autism Spectrum Disorder is such that he does

not have the skills to express remorse in settings such as a Court room, or to people he is not familiar with, unless he has prepared social scripts to cope in these environments. His deficits in Theory of Mind skills and empathy expression does not mean that he does not feel regret, emotional pain, or empathy for the victims in the child abuse material. Rather, I have observed his physiological responses of discomfort and sadness in response to the emotional pain of his parents, and I have also observed him to become visibly emotionally and physiologically distressed when I asked him to describe the sounds he heard of a child being terrorised in a child abuse video.

Mr Randall states in his report that the offender ‘…Expressed that he is deeply

ashamed of his behaviour, and that he feels sick, recognising what he has done.’

A letter from the offender dated 19 August 2022 was tendered and includes the

following:

I am deeply ashamed of the charges against me. Many people will judge what I have done extremely harshly (rightfully so) as I do myself. I sincerely doubt that there is anyone who is more upset about my actions than me. I will openly accept any punishment that the Court deems appropriate as well as continuing to seek treatment to ensure that nothing like this will ever happen again.

I have many regrets and can’t begin to adequately display their severity in this letter. I detest

the hurt that I have inflicted upon my family. I see them trying to hide it every day and it only makes me feel worse about my actions. I am beginning, through the treatment with [Ms] Tabitha Frew and [Mr] Graeme Randall to appreciate the full impact that my actions have had on the lives of the victims and I feel sick thinking about what I have done.

In a way I am glad I was arrested as it stopped me engaging that behaviour further and has led to a diagnosis of autism.

The aim of this letter is not to make excuses for my behaviour as none exist. It is also not to

say that the psychological treatments I have been undergoing have ‘cured’ me, and I don’t

deserve any punishment, that is not true. I do want to express sincere remorse for my actions and while I cannot take them back, I hope I will not be defined by them. I also hope that this experience ultimately serves to make me a better person.

The offender’s remorse is further expressed in the letter of the offender’s mother and

father who state that:

Christopher has expressed unequivocally that he is both remorseful and highly ashamed of his actions. He is ashamed because he now clearly understands how wrong his actions were and that they served to promote the continuation of wrongful material being made available online.

A letter of support from a family friend states:

I have spoken to Christopher and it is clear that he sorry and remorseful for his actions and any harm that it might have caused.

Counsel for the offender submitted that the offender’s remorse is expressed in his letter

to the Court, set out above.

The Courts have stated on many occasions that statements made by an offender which

are not supported by the offender giving sworn evidence should be treated with caution:

see Butters v The Queen [2010] NSWCCA 1 (R v Butters) at [18], Fusimalohi v The

Queen [2012] ACTCA 49 at [8], Alvares v The Queen [2011] NSWCCA 33; 209 A Crim

R 297, Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 at [44], Mun v

The Queen [2015] NSWCCA 234 (Mun v The Queen) at [36], and R v Mumberson

[2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the

offender does not go into the witness box and give evidence. It is, however, relevant to

the weight of the evidence: R v Butters at [18], Mun v The Queen at [37], and Van

Zwam v The Queen [2017] NSWCCA 127 at [6], [110].

Accordingly, I ascribe appropriate weight to the remorse expressed in accordance with

the authorities.

References

As referred to above in discussing remorse, two references were tendered in support

of the offender.

A reference under the hand of the father and mother of the offender is dated 18 August

2022 and includes the following:

As parents we could not have been more shocked or devastated about the charges laid against Christopher. This is not the Christopher we know, and love, and feel that this situation is totally out of character for him. He has never been one to defy the rules, in fact and in contrast, he has always been a responsible and reliable young person who hated getting in

trouble. We have consulted with Christopher’s Psychologist, [Ms] Tabitha Frew and agree

with her diagnosis of Autism Spectrum Disorder. Reflecting on this from Chris’ childhood, we

can now see how Christopher was socially isolated and found it hard to communicate and

interact with his peers as she has mentioned in her report.

…In addition, he is ashamed that his actions have caused a significant amount of upset and

devastation for his immediate and extended family.

A reference under the hand of a family friend was tendered and includes the following:

Christopher has a loving and supportive family and an extended family which he is very close to. With their help and continued support I know that Christopher is capable of doing whatever is necessary to make up for his mistakes and any harm that he may have caused and work to restore the place and trust in the community that he once had.

I take these references into account on sentence.

Intensive Correction Order Assessment Report

When this matter came before me on 23 August 2022, I determined that I should give

serious consideration to the sentence being served by way of Intensive Correction

Order (ICO). To that end, I referred the offender for assessment.

The ICO assessment report concludes that the offender is suitable for an ICO and

includes the following.

Mr Middleton is a 21-year-old man who has been assessed as a low risk of general

reoffending based on the Level of Service Inventory-Revised (LSI-R). His primary risk

factors appear to be social isolation, use of spare time, and mental health. Mr

Middleton’s offences were entirely committed online. However, it is noted that his bail

conditions have prevented him from accessing the internet since the charges were laid

in November 2021. These conditions have limited Mr Middleton’s exposure to online

communities, which may have otherwise presented a risk for his reoffending. Mr

Middleton has made active efforts to reduce his risk by obtaining full-time employment

and engaging in mental health treatment. Should he continue engaging in interventions,

he will likely remain at low risk of reoffending

Mr Middleton has continued to engage regularly with two independent psychologists.

He advised that one psychologist provides offence-specific treatment while the other

provides more general counselling. Mr Middleton reported that one of his psychologists

told him he might have PTSD from exposure to child abuse material during the

commission of the offences. Mr Middleton felt he could not comment on any diagnoses

but acknowledged that his mental health had deteriorated after the offences. However,

he reported that receiving mental health treatment had been beneficial, including

helping him “reframing” his perspective. Overall, Mr Middleton presented insight into

the link between his mental health and the offences. Mr Middleton’s father verified this

information and reported having recognised positive changes in his son since he began

attending the above psychological treatments.

Mr Middleton agreed with the statement of facts and appeared to accept responsibility

for his offending. He did not attempt to minimise the offending and made statements

elaborating on the negative consequences of his charges on his family. Mr Middleton

reported that he did not believe he had any risk of re-offending. He stated that he would

be "stupid" if he committed further offences and would “deserve to go to jail. “

Mr Middleton’s family home has been assessed as suitable should the offender receive

a community based order.

Mr Middleton would be assessed for the Sexual Offending Program if the Court granted

him community supervision

A number of factors associated with the offending may be targeted if an Intensive

Correction Order is made. The factors include:

(a)	Leisure/recreation (use of spare time);
(b)	Companions (social isolation);
(c)	Internet use; and
(d)	Community service.

If an Intensive Correction Order is made it is recommended that the order contain the

following additional conditions:

(a) Assessment for suitability for programs or counselling to address offending

behaviour, including the Sex Offender Program.

(b) That the offender attend educational, vocational, psychological, psychiatric or

other programs or counselling specifically in relation to sexual offending and

mental health.

Criminal History

The offender has no prior criminal history.

It is well established that an offender’s good character must be given less weight in

relation to sentencing for offences of this kind (DDP v Smith [2010] VSCA 215 (DPP v

Smith) at [23]).

Further, the Victorian Court of Appeal approached this question in the following manner

in DPP (Cth) v Garside at [88]-[92], concluding at [92]:

In my opinion, the better view as to the relevance of good character to be applied in cases of child pornography is as expressed by McHugh J in Ryan, and by this Court in SD. In Ryan, a case involving multiple sexual assaults on young boys over a long period, McHugh J said:

Counsel for the offender submitted that in considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.

In R v Maruskanic [2019] ACTSC 337, Burns J said at [26]:

It has been said that evidence of prior good character may not carry as much weight when determining an appropriate sentence for offences of this kind as might otherwise be the case. However, that does not mean that prior good character is to be ignored.

I accept that the offender is a person of prior good character. I ascribe the relevant

weight in accordance with the authorities discussed above.

Pleas of Guilty

The offender entered pleas of guilty on 2 June 2022 in the ACT Magistrates Court.

The prosecution conceded that the offender’s pleas were entered at the earliest

available opportunity and have resulted in a benefit to both the community and

witnesses in avoiding the need for a trial.

In 2020, s 16A of the Crimes Act was amended with effect for any sentence imposed

on or after 20 July 2020. As a result of this amendment, the court is now required to

take into account, if an offender has pleaded guilty to a charge, the degree to which

that fact and the timing of the plea resulted in any benefit to the community, or any

victim of, or witness to, the offence: s 16A(2)(g)(iii). Consideration of this sentencing

factor may result in the court providing a ‘discount’ to the sentence (see R v Duncan

[1998] 3 VR 208 at [214]-[215]). Previously, ACT authority in R v Harrington [2016]

ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian

value of a plea.

In sentencing for Commonwealth matters, the Court is not required to specify a discount

(see Xiao v The Queen [2018] NSWCCA 4 at [280]), although it is desirable to do so in

the interests of transparency.

Taking into account the above matters, in my view, a discount of approximately 25% is

appropriate for the pleas of guilty.

Time in Custody

The offender has spent no time in custody referable to these offences.

Comparable Cases

Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256

CLR 550. Statistics do not provide information about why sentences were fixed as they

were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili v The Queen).

There are a number of decisions of this court relating to offenders who committed

similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR

428 at [4]:

[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied

mechanically … given that the factors that must be taken into account are incommensurable,

and … in many respects, inconsistent.

The following cases from this jurisdiction provide a “yardstick” as referred to by the High

Court in relation to this sentencing exercise: Hili v The Queen at [53]-[54].

I was referred to the following cases by the prosecution:

(a) Burton v R [2020] NSWCCA 127

The offender was charged with one count of use carriage service to access child

pornography material, with a Schedule offence of use carriage service to

transmit indecent material to person under the age of 16 years, and one count

of possess child abuse material. The offender was sentenced to total head

sentence of 21 months’ imprisonment, to be released with recognizance after

12 months.

The offending concerned Skype communications with numerous adults over a

period of two years in which the offender transmitted graphic written

descriptions of sexual activities he would perform with children, and four images

of child abuse material in offender’s possession. The Schedule offence involved

similar communications with police officers who had assumed identities of

children online. The offences were in the mid and lower range of objective

seriousness.

The offender was aged between 24 and 26, with no criminal antecedents. The

offender was employed by the Australian Defence Force at the time of his arrest,

presented with some prospects of rehabilitation but little insight into his

offending and limited remorse. The offender had an unspecified psychiatric

condition and it was deemed his ‘offending behaviour was a function of his

personality structure’.

(b) Clarke-Jeffries v R [2019] NSWCCA 56 (Clarke-Jeffries v R)

The offender was charged with one count of using a carriage service to solicit

child pornography material, one count of using a carriage service to procure a

person under the age of 16 years to engage in sexual activity, and one count of

unwarranted demand with menaces. The offender was sentenced to seven

months’ imprisonment, two years’ imprisonment, and seven months’

imprisonment respectively, to be released after nine months with recognizance.

The offending consisted of the exchanging of messages in which the offender

pressured the victim to either meet with him to engage in sexual intercourse, or

to send photographs of her naked breasts. The offender then used these

images to demand money from the victim. The victim was 15 years of age.

The offender was 18 years of age at the time of offending. The offender

expressed ‘unequivocal contrition and remorse’, cooperated with police and was

deemed unlikely to reoffend. The offender had no prior criminal record. The

offender was found to be both emotionally and physically immature, which

materially contributed to the offending. The offender reported having

experienced childhood sexual assault, and continued to suffer from mental

illness including a suicide attempt following the offending charges. Specific

deterrence was not a significant factor on sentencing.

(c) DPP v D’Alessandro [2010] VSCA 60

The offender was charged with two counts of use carriage service to access

child pornography material, two counts of use carriage service to transmit child

pornography material, and two counts of possess child pornography material.

The total head sentence imposed was three years’ imprisonment, reduced from

four years and six months’ imprisonment by virtue of a guilty plea, before being

eligible for release on recognizance after two years.

The possession offences concerned 1094 child pornography images, three child

pornography videos and nine child abuse images; the access offences involved

8,009 child pornography images and 34 child abuse images; and the transmit

offences related to 8,211 child pornography images and 34 child abuse images.

The material was described by the first instance judge as being ‘equated with

the very worst’.

The offender was 25 years of age at the time of the offending, and was indicated

to have demonstrated shallow remorse. The offender had no prior criminal

history. The offender identified sexual fantasies regarding children, had

paedophilic tendencies, and was at risk of further offending without treatment.

(d) R v De Leeuw [2015] NSWCCA 183

The offender was charged with one count of possess child abuse material and

three counts of use carriage service to access child pornography material. The

offender was sentenced to imprisonment for a period of two years’ six months’

imprisonment for possession, and 15 months, 18 months, and 21 months’

imprisonment for the access charges. A non-parole period of 15 months was

imposed, it was deemed inappropriate to make a recognizance release order

for the Commonwealth offences.

The material was in excess of 30,000 images including significant number of

images in the higher categories of the CETS scale. The offending occurred over

extended period between 2005 and 2013.

The offender was aged between 54 and 61 at the time of the offending, with no

prior criminal history. The offender reported he was the victim of childhood

sexual abuse and had a previous suicide attempt with ongoing mental illness.

The offender was diagnosed with paraphilia. Progress towards rehabilitation

was demonstrated, with marked improvement in insight into offending.

(e) R v Porte [2015] NSWCCA 174; 252 A Crim R 294

The offender was charged with one count of use carriage service to access child

pornography material, one count of possess child abuse material and one count

of possess prohibited weapon. The offender was charged with both

Commonwealth and State offences. The offender was sentenced to 12 months’

imprisonment for the access offence and two years six months’ imprisonment

for the possession offence, with a non-parole period of 15 months.

The offending involved possession of 34,143 items of child abuse material, of

which 27,729 were classified as Category 1 (nudity or sexually suggestive

posing with no sexual activity). The offending occurred between October 2011

and January 2013.

The offender was 47 years of age at the time of the offending. The offender’s

criminal history involved a single offence in 1986 of malicious injury. The

offender suffered from depression and a hoarding disorder, however, was not

thought to have a disorder of abnormal sexual interest. The offender suffered

from spinal degeneration requiring surgery.

I was referred to the following cases by counsel for the offender:

(a) R v Armstrong [2020] ACTSC 298

The offender was charged with one count of using a carriage service to possess

child abuse material and two counts of accessing child abuse material. The

offender was sentenced to 13 months imprisonment, reduced from 16 months due to his guilty plea. The period of imprisonment was suspended after six

months upon the offender entering into a recognizance release order.

The possession offence related to 66 videos of child abuse material. The further

offences related to the transmission of 29 and 37 videos respectively. Of the 66

videos, 22 were assessed as category 1, 11 in Category 2, one in category 3,

31 in Category 4 and one in Category 5. An estimated total of 75 victims were

depicted in the material.

The offender was 43 years old, had no prior criminal record and was diagnosed

with a Social Anxiety Disorder. The offender had no problems with drugs or

alcohol and began regular engagement with a psychologist subsequent to his

arrest in relation to these offences.

(b) R v Arnould [2020] ACTSC 345

The offender was charged with one count of possessing child abuse material,

and one count of using a carriage service for child abuse material. The offender

was sentenced to 9 months’ imprisonment, reduced from 12 months on account

of pleas of guilty. The period of imprisonment was suspended after three months

upon entering a recognizance release order.

The offending related to 370 images and videos. Most videos were assessed

as Category 1, however some were assessed as Category 4 on the CETS scale.

The offender indicated he viewed the material for sexual gratification.

The offender was 50 years of age and had no prior criminal history. The offender

had taken positive rehabilitative steps to address his offending by attending a

psychologist on a weekly basis and completing a sex offender program. The

offender is medicated for depression. The offender’s insight into his offending,

impact on victims and on his family and friends was considered an indicator of

low risk of reoffending.

(c) R v Burch [2020] ACTSC 192

The offender was charged with one count of using a carriage service to possess

or control child abuse material and one count of using a carriage service to

transmit child pornography material. For the possession offence, the offender

was sentenced to a two year good behaviour order, including a 100 hour

community service condition. For the transmission offence, the offender was

sentenced to 12 months’ imprisonment to be served by way of an ICO including

a 200 hour community service condition.
The possession offence involved five images: one in Category 1, three in

Category 3, and one in Category 4. The further offences related to sexualised

communications relating to child sexual abuse between the offender and four

other persons, assessed as Category 6.

The offender was 34 years of age, with no prior criminal record. The offender

reported an abusive upbringing related to his father’s alcohol consumption. The

offender had been engaging with psychologists prior to his convictions due to

anxiety and depression.

The sentence judge expressed reservations regarding the imposition of the ICO

due to the objective seriousness of the offence and the offender’s lack of insight

into his offending. The ICO was imposed due to considerations related to the

COVID-19 pandemic.

(d) R v Johnston [2020] ACTSC 46

The offender was charged with two counts of using a carriage service to transmit

an indecent communication to a person under 16 years of age and one count

of possessing child abuse material. The offender was sentenced to six months

and 15 days imprisonment for the transmission offences and 11 months’

imprisonment for the possession offence, to be released after serving four

months’ imprisonment on recognizance.

The possession charge related to 291 images contained on three devices

belonging to the offender. A sample comprising 33 of those images was

reviewed with nine classified as Category 1, five as Category 2, nine as

Category 4 and one as Category 5.

The offender was 44 years of age at the time of the offending and had no prior

criminal history. The offender accepted responsibility for his actions, although

was unwilling or unable to explain the motivations for his offending behaviour.

The offender was assessed as medium to low risk of reoffending and expressed

willingness to undertake treatment and intervention.

(e) R v Kanawaza (unreported, Murrell CJ, 2 December 2013)

The offender was charged with one count of offensive use of a carriage service,

one count of using a carriage service to transmit child pornography, and one

count of intentionally possessing child pornography. The offender was

sentenced to seven months imprisonment for offensive use of carriage service,

22 months fully suspended sentence for the transmission offence (with a recognizance release order for 25 months), and seven months imprisonment

fully suspended with a seven month good behaviour order for the possession

charge.

The offender possessed 225 images, most of which were categorised as

towards the lower end of the CETS categories. The offender had no criminal

history and pleaded guilty to the charges at the earliest opportunity, with a 25%

discount afforded for the guilty pleas.

(f) R v KB [2019] ACTSC 136

The offender was charged with one count of using a carriage service to access

child pornography and one count of using a carriage service to transmit child

pornography. The offender was sentenced to 24 months reduced to 18 months

imprisonment and 28 months reduced to 21 months, respectively. The

sentenced was to be served by way of ICO, including 200 hours of community

service within three years, attendance of the Adult Sex Offender Program, and

offence-specific counselling.

The offences involved accessing a total of 490 images that were of a high level

of depravity, including 84 images in Categories 4 and 5 of the CETS scale.

The offender was 31 years old at the time of the offending. The offender reports

he had previous engagement with a psychologist. The offender had a positive

childhood and positive relationships with his family. The offender demonstrated

motivation to change, evidenced by engagement with treatment and focus on

maintaining marriage and family life. The offender had no criminal history.

The court notes that the following cases were determined subsequent to the Crimes

Legislation Amendment (Sexual Crimes Against Children and Community Protection

Measures) Act 2020 (Cth) however were not referred to by either of the parties.

(a) Director of Public Prosecutions (Cth) v Barnes [2023] VCC 147

The offender was charged with 15 counts of use a carriage service to solicit

child abuse material, two counts of use a carriage service to transmit child abuse

material and one count of possess or control child abuse material. The offender

was sentenced to a total effective sentence of 14 months imprisonment, with

immediate release on recognizance.

The offending involved communication with individuals aged predominately

between 14 and 17 years online through the platform ‘Kik’. The offending was

considered low to mid range involving no targeting of children and no attempts

to meet children in person.

The offender was a 35 year old male who demonstrated ‘deep and profound’

remorse for his offending; he had no prior criminal history. The offender was

diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) which

significantly impacted his life, and was a source of his social isolation and

loneliness. The medication prescribed for treating the offender’s ADHD had the

effect of causing hypersexuality and was likely a significant contributory factor

in offending behaviour. ‘Exceptional circumstances’ were established.

(b) Director of Public Prosecutions (Cth) v Bremner [2023] VCC 51

The offender was charged with one count of use carriage service to transmit

child abuse material and one count of possess child abuse material obtained or

accessed using a carriage service. The offender was sentenced to 19 months’

imprisonment.

The amount of offending material was considered ‘moderate when compared to

other cases’, however a significant part of the material in the case was deemed

to be particularly depraved. The material involved a very serious level of

depravity.

The offender was a 38 year old man at the time of sentencing who reported

serious health issues including vascular disease and hypercholesterolemia. The

offender was described as a ‘sad, socially detached, directionless man… with

deficits in identity, intimacy and empathy’. The offender had ADHD, persistent

depressive disorder, avoidant personality disorders and a paedophilic disorder.

The offender presented with limited insight into offending behaviour and

required treatment aimed at developing insight into behaviour. The threshold of

‘exceptional circumstances’ was not met.

(c) Mertell v The King [2022] ACTCA 69

The offender was charged with nine counts of accessing and/or possessing

child abuse material. The offender, on appeal, was sentenced to 30 months’

imprisonment with a recognizance release order after 12 months.

The offending involved an estimated 50-75 separate child victims and the

offender was in possession of the offending material for a substantial period.

The offending was described as objectively serious.
The offender was a 68 year old male who was estranged from his family and

reported limited social networks or romantic relationships. The offender had

been diagnosed with ADHD and ASD, however no direct causal link was

established between the offending and the offender’s ADHD and ASD. The

offender had no prior criminal history. ‘Exceptional circumstances’ were not

established.

(d) R v Coker [2021] NSWDC 805

The offender was charged with one count of possess or control child abuse

material obtained or accessed using a carriage service, two counts of using a

carriage service to transmit/publish/promote child abuse material, and one

count of use carriage service to access child abuse material. The offender

received an aggregate sentence of two years and three months’ imprisonment,

to be released on recognizance after nine months.

The offending was describes as involving a relatively low number of, albeit high

disturbing, videos and images and over a relatively short period of time.

The offender was a 51 year old male with no criminal antecedents. The offender

was a drug user and indicated he was under the influence when he ultimately

possessed and transmitted child abuse material. The offender has abstained

…engaged well in treatment and is diligent in completing his set homework tasks to a high

level. He is open to exploring different perspectives regarding his behaviour and thought patterns, which appears to be slowly building his insight into his behaviour, as is noted in his recognition of the importance of connecting with his emotions. Given that [the offender] is in the very early stages of his treatment program, his developing insight into the importance of emotional connections and relationships is very positive.

The offender has also engaged in psychological treatment with Ms Frew since 22

November 2021 and, as of 21 February 2023, the offender will have attended 24

treatment sessions with Ms Frew. Counsel for the offender correctly submitted the

offender now has the benefit of psychological intervention, and a diagnosis – with

specific and targeted treatment – which he did not previously have.

Counsel for the offender correctly submitted that the offender’s rehabilitation is aided

by the fact that the offender now also has a significant support network that he can rely

upon, being his mother, father, brother, and extended family. The offender’s parents

state:

Christopher is part of a loving family, and he is close with both sets of grandparents, aunts/uncles, and his cousins, who he sees regularly and who are all available and willing to support him going forward.

A family friend stated as referred to earlier at [117]:

Christopher has a loving and supportive family and an extended family which he is very close to. With their help and continued support I know that Christopher is capable of doing whatever is necessary to make up for his mistakes and any harm that he may have caused and work to restore the place and trust in the community that he once had.

Overall, the offender has made significant attempts towards rehabilitating himself and

has good prospects for rehabilitation.

Evidence of rehabilitation may mitigate the need for personal deterrence and does so

in this case: Stanford v The Queen [2007] NSWCCA 73 at [19].

Exceptional Circumstances

As referred to earlier, for Commonwealth child sex offences committed after 23 June

2020, there is a statutory presumption that offenders will serve some period of actual

imprisonment unless there are “exceptional circumstances” that justify the offender

being released immediately on a Recognizance Release Order or ICO.

The amendment to the Crimes Act intended to reflect the exceptionally serious nature

of these crimes, consistent with the position of intermediate appellate courts in

recognising that a term of imprisonment will usually be expected for offending of this

type: see R v Padberg [2010] SASC 189; 107 SASR 386.

Section 20(1)(b) of the Crimes Act relevantly provides that where a person is convicted

of federal offences, the court may, “if it thinks fit”:

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind

referred to in paragraph (a): …

(ii) if at least one of the offences is a Commonwealth child sex offence and

the court is not satisfied that there are exceptional circumstances—after

the person has served a specified period of imprisonment that is
calculated in accordance with subsection 19AF(1);

(iii)     if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances-- immediately.

In other words, it is only if the court is satisfied that there are “exceptional

circumstances” within the meaning of s 20(1)(b)(ii) of the Crimes Act that the court may

release the offender without requiring the offender to serve an actual period of

imprisonment.

What constitutes “exceptional circumstances” is deliberately not defined. In the case of

R v GAW [2015] QCA 166 at [54], the court observed that there is no one clear

proscription for exceptional circumstances:

What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the

ordinary may in combination constitute an exceptional case. … The mitigating circumstances

must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind.

Having regard to the Explanatory Memorandum, the lack of a definition for “exceptional

circumstances” is deliberate. The Explanatory Memorandum goes on to state, at [295],

that:

The phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold.

In the decision of R v Tootell ex parte AG [2012] QCA 273, concerning the construction

of a like provision within the Penalties and Sentences Act 1992 (Qld), the Queensland

Court of Appeal observed at [18]:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term

of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

I note the comments of Buscombe DCJ in R v Nafarette at [89]:

In my opinion, the word, “exceptional”, in the statutory context means out of the ordinary

course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances.

Further, I note the comments of Berman SC ADCJ in R v Pedersen [2021] NSWDC

535. His Honour referred to a combination of matters which pointed to the conclusion

that “exceptional circumstances” were satisfied which included the hardship that would

effectively flow to the offender’s family, the medical needs of the daughter, the risks

associated with COVID-19, and the nature of the offending.

There are, in my view, a combination of factors which, taken cumulatively, amount to

exceptional circumstances. These matters operate to rebut the presumption of actual

imprisonment.

Specifically, the following matters in combination amount to exceptional circumstances

such that the statutory presumption of immediate imprisonment is overcome:

(a) The offender’s diagnosis of ASD Level 2 (per the Psychological Assessment

Report of Ms Frew dated 15 August 2022 (PAR) p 8 at 300);

(b) That there is a causal relationship between the offender’s ASD and the

offending (PAR p 11 at 410). In my view, there is a material contribution to the

offending to a significant degree as discussed at [56] of this judgment;

(c) That there were subclinical features of PTSD following the viewing of a child

abuse video (PAR p 9 at 326);

(d) That the offender does not meet the DMS-5 paedophilic disorder and is not

sexually attracted to children (PAR p 9 at 335). He therefore cannot accurately

be described as a paedophile;

(e) That the offender requires a significant period of ongoing treatment to target his

neurocognitive deficits (PAR at p 10 at 384);

(f) That the offender has neurocognitive impairment which has significantly

reduced his capacity for empathy (PAR p 13 at 483);

(g) That the offender’s ASD caused him to retain child abuse material for the sake

of the collection rather than only for consumption of the material itself (PAR p

13 at line 497, and in Ms Frew’s oral evidence);

(h) The fact of the long-term rehabilitation path the offender is undertaking. The

offender has had over 19 sessions with Mr Randall and 24 counselling sessions

with Ms Frew. The offender would benefit from a two year period of

psychological treatment using cognitive therapy which is not available in

custody (PAR p 16 at line 596);

(i)       The evidence of low risk of reoffending (PAR p 16 at 625);

(j) The evidence that imprisonment would weigh more heavily on the offender

(PAR p 18 at 680, p 19 at 725);

(k) The evidence that the offender’s emotional age at the time of committing these

offences was 15 years of age (PAR p 18 at line 689); and

(l) The fact that the offender has been assessed as suitable for an ICO.

Based on my assessment of the evidence before me, there are exceptional

circumstances in this case as outlined above.

Concurrency or cumulation

Pursuant to section 19(5) of the Crimes Act, the legislature has imposed a presumption

in favour of cumulative sentences when sentencing an offender for multiple

Commonwealth child sex offences. The presumption in favour of cumulation applies

in this matter as the offender is to be sentenced in respect of two counts.

It is appropriate that the sentences imposed in this matter be served to a significant

extent cumulatively as each count is directed at separate and distinct aspects of the

offender’s offending. Pursuant to section 19(6) of the Crimes Act, if the Court is of the

view, having regard to totality and the overall severity of the offending involved in this

matter, that it is appropriate to impose partially concurrent sentences, it is required by

section 19(7) of the Crimes Act to state the reasons (see Mertell v The King [2022]

ACTCA 69). There will therefore be a degree of concurrency.

In conclusion, it is appropriate that the sentences imposed in this matter be served

predominantly cumulatively as each count is directed at separate and distinct aspects

of the offender’s offending. Nevertheless, on the basis of totality principles there must

be a level of concurrency.

Section 16BA offence

Section 16BA of the Crimes Act enables other federal offences to be taken into account

when sentencing a federal offender. The power to take an offence into account in

sentencing a federal offender is discretionary (s 16BA(2)) and the power is invoked by

the consent of the prosecutor coupled with an admission of guilt by the defendant (ss

16BA(1) and 16BA(2)).

The offender is not to be punished for the admitted offence, being the offence of failing

to comply with an order concerning the password, nor is the offence to be regarded as

one for which the person has been convicted (s 16BA(10)). The focus of the Court is to

be on imposing a sentence on the principal offending.

The nature and seriousness of the offence to be taken into account is a relevant

consideration in the assessment of the gravity of the whole course of conduct, the need

for personal deterrence, and the community’s entitlement to exact retribution for a

serious offence.

Counsel for the offender submitted that this is not a serious offence of this type. The

offender was forthcoming and compliant with police to the extent he was able to. The

prosecution took issue with this submission at the oral hearing, submitting that the

offender, in admitting to the offence, is admitting that he deliberately lied to police when

he claimed that he did not know the password to his Mega account. This, in the

prosecution’s submission, is clearly reflected in the agreed statement of facts. The

prosecution submit that it is misleading to characterise the offender as being compliant

and forthcoming to the extent he was able to. I accept the prosecution submissions on

the facts.

In written submissions the prosecution submitted that the offender’s actions, in initially

lying about the existence of his Mega account, and then not complying with the s 3LA

order by failing to provide police with the password to his Mega account when it was

stored in his phone, increase the gravity of the primary offence. It is submitted that the

Court would assess that the circumstances of the offending warrant a significantly

higher penalty in respect of the primary offence. As above, I accept that prosecution

submissions in this regard as it accords with the agreed facts.

Sentence

In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised

that the guideposts that are the purposes of sentencing sometimes point in different

directions. The following paragraph is often quoted because it usefully summarises the

nature of the sentencing discretion:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

As Mahoney ACJ stated in R v Lattouf (unreported, NSW Court of Criminal Appeal,

Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996), “if justice is not individual,

it is nothing”. In this case as a matter of individualised justice, exceptional

circumstances are established on the evidence.

The balance struck by a Court as an ‘instinctive synthesis’ is not used to “cloak the task

of the sentencer in some mystery, but to make plain that the sentencer is called on to

reach a single sentence which … balances many different and conflicting features”:

Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v Western

Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian v The Queen at [37]. I

have balanced many different and conflicting features in this case, as discussed at

length above, and have come to the conclusion that exceptional circumstances are

clearly established.

In coming to a sentence by way of instinctive synthesis, I have taken into account all

the matters discussed above, including the objective seriousness of the offences and

subjective matters concerning the offender. As discussed above, after extensive

consideration, in what must be said to be a difficult case, I have come to the conclusion

that exceptional circumstances have been demonstrated.

Before I pronounce sentence, it is appropriate that I refer to two matters.

First, as I am a judge who regrettably must deal with many of these cases one cannot

but wonder why the internet cannot be better regulated and policed so this degrading

material cannot be found. Surely technology can stay ahead of the depraved people

who manufacture this appalling child exploitation material for this depraved black hole

of the internet.

Second, the words of Nettle JA (as he then was) in DPP v Smith at [26]:

Offences of this kind frequently appear as manifestations of the depraved voyeurism of socially mature adults. Such offenders have the insight to comprehend the effects of child pornography on its victims, but they offend nonetheless. But in this case, as the judge found, the respondent's offending was the addictive consequence of curiosity on the part of a socially very immature human being living an extraordinarily lonely existence, and he lacked insight into effect of the victims until after he was arrested.

In this regard, I note that the offender was not a socially mature adult, he was a socially

immature human being.

The appropriate sentence for Count 2 is two years of imprisonment, reduced to 18

months on account of the plea of guilty. The appropriate sentence for Count 1 is two

years’ and four months, reduced to 21 months. These will be concurrent to the extent

of three months.

As I noted in R v Elson [2020] ACTSC 264 at [85] and R v Paredes Valdez [2022]

ACTSC 126, it must be remembered that although the imposition of an ICO involves a

degree of leniency, it is not a lenient sentence and is considered to be a ‘significant

punishment, coming second only to a term of full-time imprisonment’: R v Srna [2018]

ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed

may result in a period of full-time custody.

Orders

I make the following orders:

(a)	I record convictions for each of the offences.
(b)	For the offence of using a carriage service to transmit child abuse material

(CC2021/11244), the offender is sentenced to 21 months’ imprisonment to

commence 17 March 2023 and expire on 16 December 2024.

(c) For the offence of possessing, controlling, producing, supplying or obtaining

child abuse material for use through a carriage service (CC2021/11243), the

offender is sentenced to 18 months’ imprisonment to commence 17 September

2024 and expire on 16 March 2026.

(d) The offence on the s 16BA of the Crimes Act Schedule (CC2022/3063) has

been taken into account on the sentence imposed for Count 1.

(e) I direct that the terms of imprisonment are to be served by way of an Intensive

Correction Order for the period commencing today 17 March 2023 and ending

on 16 March 2026.

(f)	The conditions of the intensive correction order will be:
(i) The core conditions in s 42 of the Crimes (Sentence Administration) Act

2005 (ACT);

(ii)          A community service condition requiring you to complete 100 hours of

service within 24 months from today;

(iii)          Not to access the internet, except for the following reasons:

i.	To obtain legal advice from his legal representatives; or
ii.	To engage in psychological, psychiatric or medical treatment,

including booking treatment and completing homework tasks; or

iii.          To undertake personal finance related tasks (online banking,

online share trading, online share price analysis, access

superannuation account); or

iv.          To access MyGov and all other government services; or

v.          To access COVID check-in apps; or

vi.          For the purpose of employment; or

vii.          To access an email address, provided the nominated email

address is disclosed to ACT Corrective Services;

viii.          To access free to air television services provided by registered

media broadcasters and the following music and video

streaming services:

i.          Netflix;

ii.          Stan;

iii.          Disney+;

iv.          Apple TV;

v.          Amazon Prime;

vi.          ABC iView;

vii.          Spotify;

viii.          Apple Music.

ix.          For contact with ACT Corrective Services or ACT Child Sex

Offender Registry Team; or

x.          As permitted in writing by ACT Corrective Services.

(g) The offender is to accept treatment as directed by Corrective Services with my

recommendation that such treatment should include ongoing treatment from Mr Randall and/or Ms Frew (or a clinical psychologist of similar experience) for two

years with intervals of at least monthly consultations.

(h) To present and provide passcodes to any electronic device capable of

accessing the internet to ACT Corrective Services or the ACT Child Sex

Offender Registry Team, if requested to do so.

(i) I make a forfeiture order pursuant to s 23ZD of the Crimes Act 1914 (Cth) and

upon the application of the Commonwealth Director of Public Prosecutions that

the following items are forfeited to the Commonwealth:

(i)	Samsung Galaxy S10 (IMEI 351912105879317); and
(ii)	Google Pixel 2 XL (IMEI 358036081051833).

I certify that the preceding two-hundred and nine [209]

numbered paragraphs are a true copy of the Reasons

for Sentence of her Honour Justice Loukas-Karlsson.

Associate: Lara Parmenter

Date: 17 March 2023