R v Mt

Case •

[2021] NSWDC 129

•

21 January 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v MT [2021] NSWDC 129
Hearing dates: 14/12/20, 21/1/21
Date of orders: 21/1/21
Decision date: 21 January 2021
Jurisdiction:Criminal
Before: Bourke SC DCJ
Decision:

Re the Commonwealth offence of Transmit Child Pornography (Seq 4) –

Convicted and sentenced to imprisonment for 2 years (18/7/19-17/7/21). I decline to impose a recognisance release order as the sentence for the State offences will continue to be served after the expiry of the Commonwealth sentence.

In relation to the State offences, convicted and sentenced to an aggregate term of imprisonment of 7 years 6 months with a NPP of 4 years 6 months (18/1/20-17/7/24). I find special circumstances.

The indicative sentences are:

Seq 6 Indecent Assault – 4 years 6 months with NPP 2 years 9 months (Form 1 taken into account).

Seq 7 Indecent Assault – 3 years 3 months with NPP 2 years.

Seq 9 Indecent Assault – 3 years with NPP 1 year 10 months.

Seq 11 Indecent Assault – 3 years 9 months with NPP 2 years 3 months.

Seq 13 Indecent Assault – 3 years 9 months with NPP 2 years 3 months.

Seq 2 Produce Child Abuse Material – 2 years 6 months.

Seq 3 Possess Child Abuse Material – 3 years (Form 1 taken into account).

Therefore, the total effective sentence is 8 years (18/7/19-17/7/27) with a NPP of 5 years (18/7/19-17/7/24).

I recommend that a copy of report of Dr Furst dated 25/10/20 (Exh A on sentence) be forwarded to Corrective Services, Justice Health, and Community Corrections.

Catchwords:

Crime – Sentence – Indecent assault of child under 16 – Produce child abuse material – Possess child abuse material – Use carriage service to transmit child pornography – Commonwealth and State offences

Legislation Cited:

Crimes Act (NSW) 1900

Crimes Act (Cth) 1914

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Hutchinson [2018] NSWCCA 152

Category:Sentence
Parties: NSW DPP – Crown
MT - Offender
Representation: Mr Triscari for Crown
Mr Nematalla for Offender
File Number(s): 2019/223666
Publication restriction: Non-publication order in relation to the identity of the victim, her family and the accused.
A pseudonym order in relation the offender. The offender is to be known as “MT”

sentence

  1. The offender is for sentence today in relation to eight offences which are as follows: five offences of indecent assault of a child under the age of 16, those being offences under s 61M(2) of the Crimes Act (NSW) 1900, the maximum penalty for which is ten years’ imprisonment and a standard non-parole period is specified of eight years. Next, one offence of producing child abuse material, an offence under s 91H(2) of the Crimes Act (NSW) 1900, the maximum penalty for which is ten years. Next, one offence of possessing child abuse material, an offence under the same provision, the maximum penalty being ten years, and, furthermore, one offence under the Criminal Code (Cth) 1995, s 474.19, of using a carriage service to transmit child pornography, the maximum penalty for which is 15 years’ imprisonment.   

  2. The offender has pleaded guilty to all of those offences and he is entitled under the New South Wales provisions to a discount of 25% on the basis of the utilitarian value of the plea of guilty, and I intend to allow an identical discount in relation to his plea of guilty for the Commonwealth matter.

FACTS

  1. The facts are agreed and have been put before the Court in a written document. Reordered as to form, but not substance, they are as follows:

  2. Some of the offences involve the offender’s granddaughter, who was born in November 2007. In these remarks, I will call her Laura, although that is not her real name.

  3. Laura and members of her family used to visit the offender and his wife at their house in Western Sydney on a weekly basis. When she was about four years old, Laura commenced on occasion to stay overnight at the offender’s home. Between 13 May and 12 July 2019, an undercover police officer of the Yorkshire and the Humber Regional Organised Crime Unit in the United Kingdom was using an online covert identity and, as part of that officer’s duties, he or she communicated with the offender on three messaging applications, those being known as Kik, Wikr, and another one known as IMGSCR.

  4. On 14 June 2019, the offender messaged the undercover officer, stating that he had a daughter aged “six going on seven”. Using the Kik application, the offender sent a message to the officer with a photograph of Laura lying on a lounge and stating that this was a photo of “his girl”. He also sent a message which said:

“My young one used to come into bed with us that’s when I started getting excited and did a little touchy feely… Now I just tell the wife I’m going to settle her down and as soon as she’s asleep I’m all over her … Did you get a chance to take movies I have bits and pieces locked away in a hard drive.”

  1. The undercover operative asked if the movies were of the offender’s daughter and the offender replied, “Yes, not very good, but I can’t keep doing what I do with the wife around so I need them for a bit of relief.” To this, the undercover operative replied, “What age you like then?” to which the offender replied, “My preference is 4 to 6, even as low as 3.” The undercover operative asked, “You got anything of ur,” that is the letters U-R, then the word “D-A-U”, “on IMGSCR.” In response, the offender replied, “No, haven’t put anything of her on IMGSCR. Trying to keep it low key as possible.”

  2. On 13 June 2019, the UK authorities passed information about these messages to Australian Federal Police. As a result, on 18 July 2019, police executed a search warrant at the offender’s house. At the time, the offender, his wife, and Laura, who by then was 12 years old, were present at the house. When police explained the reason for their attendance, the offender said to his wife, “I have pornography on the computer … it’s about child pornography.” Later, he also said to his wife, “I’ll be going away for a few years.”

  3. Police, in executing the search warrant, found in the offender’s bedroom a number of electronic storage devices, including an Apple iMac desktop computer, a Toshiba brand hard drive, and a Fujitsu brand hard drive.

  4. Turning to the first possession offence, that being the sequence 3 offence of possessing child abuse material, this offence involved possession of a Toshiba hard drive containing a very large number of images and video files. An examination of a sample of those files showed that 45,848 images and 8970 videos were child abuse material falling into one or other of the six categories of the Child Exploitation Tracking System scale. I will refer to this scale hereafter as the CETS, that is, C-E-T-S, scale.

  5. The CETS scale is an internationally developed method of categorising child abuse material which is divided into six categories. Those categories, as set out in the Agreed Facts, are as follows: category 1 is sexually suggestive posing with no sexual activity; category 2 is non-penetrative sexual activity between children or solo masturbation by a child; category 3 is non penetrative sexual activity between adults and children; category 4 is penetrative sexual activity between children or adults and children; category 5 is sadism, humiliation or bestiality; and category 6 is animated or virtual depictions of children engaged in sexual poses or activity.

  6. An examination of a sample of the contents from the Toshiba hard drive showed the following child abuse material. Within category 1, there were 38,731 files comprising 36,675 images and 2056 videos. Within category 2, there were 2450 files comprising 907 images and 1543 videos. Within category 3, there were 5086 files, comprising 3812 images and 1774 videos. Within category 4, there were 6928 files comprising 3583 images and 345 videos. Within category 5 there were 639 files comprising 404 images and 235 videos and within category 6 there were 484 files consisting of 467 images and 17 videos.

  7. In sentencing for this sequence 3 possession offence, the offender asks that I take into account on a Form 1 document two additional offences of possessing child abuse material. The facts of those two matters are as follows.

  8. The first of those matters is the sequence 1 charge. On a Fujitsu brand hard drive, police found a number of images and videos involving child abuse material. The name for one of the files included in the title the words “eight and ten-year-old brother and sister having sex”, which depicted male and female children performing penetrative sexual intercourse.

  9. The second offence on the Form 1 is the sequence 5 offence, in that case, the Apple iMac computer was found to contain a folder with three videos. The first was entitled “8 yo Daddy’s little girl”, which was a video of three minutes 25 seconds, showing penile-vaginal penetration by an adult male of a prepubescent female, which was found to be within CETS category 4. The second file that was found on the iMac was entitled, “AN dreams 01 (anal 7 yo)”, which was a four minute 20 seconds video showing a prepubescent female lying face down on a bed with her pants pulled down while an adult’s hands were touching her buttocks and anus area, this being a file within CETS category 3. A third video, which was of seven seconds duration, showed a prepubescent female masturbating and was in CETS category 2.

  10. The Apple iMac also contained 11 other files of child abuse material. One of them was an image in category 1, five were videos within category 2, and another five were videos within category 4. Those are the facts with respect to the possess offence and the matters on the Form 1.

  11. I turn then to the sequence 2 offence, which is one of producing child abuse material. This offence relates to material found on the offender’s Toshiba hard drive, which involved 531 image or video files depicting his granddaughter, Laura. Of those files, 498 were child abuse material within categories of the CETS scale as follows.

  12. Within category 1 (sexually suggestive posing), there were 299 files, including 56 images and 243 videos. Within category 2 (non-penetrative sexual activity between children or solo masturbation by a child), there were seven videos. Within category 3 (non-penetrative sexual activity between adults and children), there were 192 videos. Each of the 498 items had been created between 26 January 2012 and 26 October 2017, during which time Laura was aged between four and nine years. The total duration of the 442 videos was in excess of 24 hours, although a number of them were duplicates.

  13. Of the total of 498 items, there were, however, 259 unique files depicting Laura. A number of the files contained data showing that they had been created at two different homes where the offender had lived during that period. In executing the search warrant, police found two items which were depicted in some of the recordings, those being a blue and grey coloured bed cover and an infrared massage device.

  14. Turning then to the facts of the indecent assault offences, firstly, the sequence 6 indecent assault offence. This offence occurred on 14 September 2012 when Laura was aged four years. It is depicted on a video of about 44 minutes duration, which was found on the Toshiba hard drive and had the title “the Fully Monty”. The video shows the offender lying on a bed with the blue and grey bedcover, wearing shorts and no shirt with Laura in a T shirt and shorts. In the video, the offender pulled Laura towards his chest and rubbed her buttocks with both hands over her shorts. He then rubbed her anal area with his hand over her shorts and put his hand under her shorts and rubbed her genital area.

  15. After this, the offender used his hand to pull Laura’s shorts to one side, exposing her anus and vagina to the camera. He then rubbed Laura’s vagina and anus with his fingers. At that time, a shadow appeared on the bed and the offender stopped. However, when the shadow disappeared, the offender put his hand down the back of Laura’s shorts and fondled her genital area again. After this, he removed his hand and pulled her shorts to the side, again exposing her anus and vagina, which he rubbed with his fingers.

  16. The offender then used his phone camera to focus a close view of the area below Laura’s waist and again pulled her shorts to one side, exposing her anus and vagina. He then spread Laura’s buttocks to expose her vagina and anus more clearly and, again, rubbed her anus and vagina with his fingers. In sentencing for this sequence 6 offence, the offender asks that I take into account three other offences on a Form 1 document, those being sequences 8, 10, and 12, each of them also being offences of indecent assault of a child aged under 16.

  17. These are also based on events depicted in video files found on the Toshiba hard drive. The sequence 8 offence on the Form 1 occurred apparently on 21 September 2012 when Laura was four years old. The offence is depicted in a video with a duration of about one hour and 21 minutes. It shows the offender and Laura lying on a bed with Laura wearing a white top and pink underpants and the offender wearing shorts and no shirt. The offender put his arm around Laura’s back and his right hand over her leg. He then rubbed her leg and genital area with his right hand over her underpants. While doing this, he used a phone camera to focus a close view towards Laura’s genital area.

  18. The sequence 10 offence on the Form 1 occurred on 2 November 2012, when Laura was still aged four. This offence is depicted in a video on the Toshiba hard drive with a duration of just over four minutes. It again shows the offender and Laura on a bed with the blue and grey cover, which was found by police when executing the search warrant. Laura was wearing a pink dress and underpants with the offender wearing shorts and no shirt. The offender can be seen to lift Laura onto his stomach area, pulling her towards his chest and then pulling up her dress, exposing her underpants. He then rubbed Laura’s anal area over her underpants with his right hand while he rubbed her buttocks with his left hand.

  19. The third offence on the Form 1 is the sequence 12 offence, which occurred on 9 October 2013 when Laura was five years old. This offence was also depicted on a video found on the Toshiba hard drive with a duration of just over two minutes. In the video, the offender can be seen sitting at his computer desk with Laura. A camera was located below the level of the offender’s knees and depicted the offender wearing shorts, but no shirt, and Laura wearing a dress and pink underpants. The offender lifted Laura towards his chest, facing away from him and towards the camera. He then held her buttocks in his left hand and lifted her dress, exposing her underpants. He then spread her legs and turned Laura so she was lying face down on his lap. He then tapped her on the genital area with his hand and then turned Laura over so that she was lying face up on his lap, again, holding her legs apart and facing towards the camera. Laura then rolled off the offender’s lap and he held his left hand on her vagina area over her underpants. The offender then pulled down Laura’s dress, lifted her onto a chair in front of the computer screen, and patted her genital area with his left hand.

  20. The offender is to be sentenced for an additional four discrete offences of indecent assault, each of them, again, involving Laura. Those offences are sequences 7, 9, 11, and 13. The sequence 7 offence apparently took place on 21 September 2012, when Laura was four years old. The offence was recorded on a video found by police on the Toshiba hard drive. The video, with a duration of about 20 minutes, shows the following. The offender and Laura were lying on a bed, the offender wearing shorts and no shirt, with Laura wearing purple pants and a red shirt. The video shows that the offender rubbed Laura’s lower stomach on her skin and then put his hand on her genital area over her clothes. At that time, Laura moved and the offender positioned her so that her buttocks were near the camera. He then rubbed her genital area over her clothes with his left hand and thumb, then knelt on the floor and again placed his left hand on Laura’s genital area over her clothes. He then moved her legs apart, put his head between her legs, and repeatedly used his mouth to blow on, nibble, and kiss her vagina through her underwear. He continued to do this to her inner legs and right buttock, and rubbed her vagina with both thumbs over her underwear.

  21. The sequence nine offence occurred on 2 November 2012, when Laura was still four years of age. Again, this offence is depicted on a video found on the Toshiba hard drive with a duration of seven minutes 41 seconds. The offence, as depicted in the video, shows the offender lying on a bed with the blue and grey striped cover. The offender rubbed a massage device on Laura’s back while he rubbed her buttocks and vagina over her underwear.

  22. The sequence 11 offence occurred on 23 November 2012 when Laura was aged five. This offence was also detected by an examination of a video of one hour 11 minutes, which was found on the Toshiba hard drive. It shows the offender and Laura lying on a bed with the blue and grey cover underneath them, the offender wearing shorts and a shirt, and Laura wearing a white top and purple shorts. The offender rubbed the genital area of Laura with his right hand over her clothes and, while doing so, pushed a finger under her shorts. The offender then rubbed the buttocks and anus of Laura with his right hand. Later in the recording, with Laura lying face down on the bed, the offender rubbed her legs and buttocks while pointing the camera at her buttocks, and also rubbed her inner right leg.

  23. The sequence 13 indecent assault offence occurred on 9 October 2013 when Laura was five years old. It is depicted on a video of just over seven minutes, which was found on the Toshiba hard drive. The offender can be seen sitting next to a computer desk with Laura, wearing shorts and no shirt with Laura wearing a dress and underpants. The offender lifted Laura and placed her on his lap, lying face down. He then positioned her so that her buttocks were towards the camera and lifted up her dress, exposing her underpants.

  24. He spread Laura’s legs apart and blew through his lips onto her stomach and pubic bone. He then lifted Laura and rubbed her genital area with his thumb, over her underpants, and rubbed and patted her genital area and buttocks. The offender positioned Laura so that she was lying face down on her lap and then pulled her dress up so that her underpants were exposed while he rubbed and patted her buttocks over her underwear. In the video, the offender also placed Laura standing on the floor and, when she tried to move away, the offender lifted her onto his lap, again, placing her face up. He then pulled up her dress, pushed her legs apart, and used his hands to pull her underpants to the side, exposing her vagina. The offender touched the outside of Laura’s vagina with his index finger. The offender also lifted Laura onto a chair so that her back was towards him and then patted her buttocks with his right hand.

  25. I turn then to the facts of the sequence 4 Commonwealth offence of using a carriage service to transmit child pornography. This Commonwealth offence occurred on 15 July 2019. On that day, the offender sent an email to another email account, the subject title of the email being, “Re: IMGSCR.” This email contained a link to a website address, which opened a folder entitled, “Much more vids,” and inside that folder there were two videos which were child pornography.

  26. The first video was entitled “nice_action” and showed an adult male engaged in penetrative sexual intercourse with two prepubescent Asian females. The second video had a title, which included the words “14 yo skinny Russ,” “teen blow and fuck, cum in face,” and showed a prepubescent Caucasian female engaged in oral and vaginal penetrative intercourse with an adult male. Those are the facts of the various offences that are before the Court.

OBJECTIVE SERIOUSNESS

  1. In any sentencing exercise, including this one, it is important for the Court to make an assessment of the objective seriousness of the individual offences. I turn then to that issue. The maximum penalties applicable to the offences in this matter and the standard non-parole period, where applicable, firstly are a clear statement by Parliament that each of the offences are serious. As is well accepted, the maximum penalties - and where applicable, standard non parole periods - are important guideposts in the sentencing exercise to which I have had regard.

  2. As is also well accepted, the prevalence of sexual offences against children and child abuse material involving children has become more and more apparent in recent decades and, partly in recognition of this fact, the courts have repeatedly stated that those who engage in such evil conduct must receive severe punishments. In this matter, a Victim Impact Statement prepared by Laura’s mother was read out in court by her. That statement speaks eloquently of the shock, disbelief, anger, hurt, confusion and other consequences that have arisen from the offences involving Laura.

  3. It is clear from that statement, and consistent with the experience of this court, that the consequences to Laura and her family have been very significant and will likely endure for some time. Some of those consequences may be lifelong. It was not argued by the Crown that the contents of that Victim Impact Statement aggravate the offences and I do not treat it that way. However, much of the statement confirms the direct experience of criminal courts that offences of the kind involving Laura inevitably involve very serious suffering for victims and their families, and that those effects may persevere for many years.

  4. I turn to consider the objective seriousness of the offences of possess and produce child abuse material. As the courts of this state have said many times, offences involving the possession of child abuse material are not victimless. The possession of such material creates a market for the continued corruption and exploitation of children. It has been said that the possession of child pornography is a callous and predatory crime, not just because it exploits and abuses children, but also because each time the material is viewed the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse and the degradation that it causes.

  5. In sentencing for the offence of possessing child abuse material, I bear in mind that this material cannot come into existence without the exploitation and abuse of children somewhere in the world, often in underdeveloped or disadvantaged countries. Those who make use of this material feed on that exploitation and abuse and the poverty of the children involved. It is for these reasons that general deterrence is of particular significance. These observations are also relevant, to some extent, to the material that is the subject of the production offence, which involved the offender himself directly exploiting and abusing a vulnerable child, namely, his granddaughter.

  6. It is notable that the penalty for the offence under s 91H(2) was increased in 2008 from five years’ to ten years’ imprisonment. In explaining this, the then New South Wales Attorney-General stated that persons who possess child pornography material perpetuate the abuse of children and provide a continuing market for the material and that the criminality involved in the possession of this sort of material should be regarded as being the same as if the offender had produced the material themselves.

  7. In R v Hutchinson [2018] NSWCCA 152, R A Hulme J set out a list of matters designed to assist sentencing judges in determining the seriousness of offences involving child abuse material. I make the following observations by reference to those matters and the possession and production offences committed by this offender. Firstly, in relation to the possession offence, the vast majority of the photographic and video material involved images or videos of real children. In relation to the production offence, these all involved a real child, namely, the offender’s granddaughter.

  8. Secondly, there is the nature and content of the material, including the age of the children and the gravity of the sexual activity. In relation to the possession offence, the majority of the sampled images and videos were in category 1, which is the least serious category. However, a total of more than 14,000 of the sampled items fell within the more explicit categories 2, 3 and 4, and a further 639 items fell within category 5, depicting sadism, humiliation, or bestiality involving children. In relation to the production offence, which all involved the offender’s granddaughter, there were 259 unique files, most of them being category 1, but with a substantial percentage in category 3.

  9. Thirdly, the extent of any cruelty or physical harm discernible in the material. In regard to the possession offence, the agreed facts note that a total of over 7000 fell within categories four or five involving either penetrative activity or sadism, humiliation, or bestiality. As to the production offence involving Laura, while this involved graphic images of her genital and anal area, it did not involve any overt cruelty or physical harm.

  10. Fourthly, the number of images or items and, in the case of possession, the number of different children depicted. The possession offence in this matter involved tens of thousands of images or videos. Although I am unaware of how many children were involved, it is reasonable to assume that it was a large number. The production offence, which relates solely to Laura, involved a much lesser number of items, although still a substantial number.

  11. Fifthly of the Hutchinson matters, in a case of possession, the offender’s purpose, whether for his own use or for sale or dissemination. The primary purpose in this case, both for the possession offence and the production offence, appears to have been for the offender’s own sexual gratification.

  12. Sixthly, in the case of dissemination, the number of persons to whom the material was disseminated. This factor is not relevant to the possession or the production offences, but it is relevant to the Commonwealth “transmit child pornography material” and is a matter I will comment upon when dealing with that offence.

  13. Seventh, whether any payment or other material benefit was received, including the exchange of pornographic material. There is no evidence that the offender sought or received any financial or other benefit for any of his offending behaviour.

  14. Eighthly, the proximity of the offender’s activities to those responsible for bringing the material into existence. There is no evidence as to the proximity of the offender to those responsible for bringing into existence the material that is the subject of the possession offence. As to the production offence, as already noted, the offender himself was directly responsible.

  15. Ninthly, the degree of planning, organisation, sophistication, and/or deception employed. The possession offence involved little or no planning or sophistication. As to the production offence, this was to a degree planned and organised although it was not sophisticated. Clearly, the victim was intentionally targeted due to the offender’s apparent sexual attraction to her and there was some level of deception by reason of the offender’s attempts to disguise what he was doing as “normal play”.

  16. Tenthly, the age of any person with whom the offender was in communication. This factor is not relevant to the possession or production offences.

  17. The eleventh of the Hutchinson matters is whether the offender acted alone or in a collaborative network of like-minded persons. While there is evidence that the offender made contact with the undercover police operative, I do not treat this as relevant and I approach the possession and production offences on the basis that the offender was acting alone.

  18. The twelfth matter is any risk of the material being seen or acquired by vulnerable persons such as children. There is no evidence of any such risk in this case.

  19. The thirteenth matter is any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. There is no evidence of any such risk in relation to the possession offence. However, such a risk does apply in connection with the production offence, given the offender’s actions in sending an image of Laura to the undercover police officer in the United Kingdom.

  20. The fourteenth matter is any other matter bearing upon the objective seriousness of the offence. It is relevant to note in relation to the production offence that it was not a temporary lapse of judgment, but a course of conduct from when Laura was aged four until she was aged nine years of age. There is also the fact, in relation to the production offence, that it involved a gross breach of trust.

  21. Having had regard to all of the facts, the matters considered above, and the submissions of the parties, I assess the objective seriousness of the possession offence as being around the mid-range and I assess the production offence as being just below the mid-range.

  22. Turning then to the Commonwealth offence of using a carriage service to transmit child pornography. The objective seriousness of this offence is marked firstly by the significant maximum penalty of 15 years’ imprisonment. This offence involved the transmission of a single communication, which provided a link to two videos, each of which depicted penetrative sexual offences by an adult male on prepubescent females. As I have already observed, material of this kind represents a serious evil, and transmitting such material feeds a market for the exploitation and degradation of children.

  23. The material involved real children and serious depravity, given the age of the children and the penetrative activity to which they were subjected, which in itself involves cruelty and a real risk of physical harm. There were, however, only two videos involving three children and so the quantity of material is not large and it was transmitted to only one person. There is no evidence that the offender was directly involved in or proximate to the production of this material and no evidence that he received any reward nor did the offence involve any real planning or sophistication.

  24. There is no evidence of the age of the person to whom the material was sent or whether that person was part of a network, nor any evidence that there was a risk that the material might be seen by vulnerable persons.

  25. Having regard to all of the facts and the submissions by the Crown and the offender, I assess the objective seriousness of this Commonwealth offence as somewhat below the mid-range and towards the lower range, although not at the low range.

  26. In assessing the objective seriousness of this offence and also in determining the appropriate sentence, I have had regard to Part 1B of the Crimes Act (Cth) 1914 and, in particular, the checklist of matters of relevance in s 16A(2), some of which relate to objective matters and some to subjective matters. Of course, I have not had regard to subjective matters in determining the objective seriousness of the offence. My consideration of all relevant matters, including the nature and circumstances of the offence, any contrition, guilty plea, any cooperation with police, deterrence, both personal and general, adequate punishment, the prospects of rehabilitation, and the subjective circumstances of the offender are contained in these reasons either above or in other remarks that appear hereafter.

  27. Turning then to the objective seriousness of the indecent assault offences. Again, the objective seriousness of the indecent assault offences is marked by the maximum penalty of ten years and the standard non-parole period of eight years, each of which, as I have said, are important guideposts in the sentencing exercise. Of course, the seriousness of an indecent assault offence will depend heavily upon the factual circumstances. The younger the child and the greater the age differential between the victim and the offender, the more serious will an offence be.

  28. In this case, the offences occurred when Laura was only four or five years old. That is very significantly under the threshold age of 16 years for this type of offence. Also, there was a very significant age differential, in that the offender was about 68 years older than Laura. In addition, the offences involved a gross breach of trust. None of the offences were fleeting, but involved activity extending over some minutes and, in some cases, much longer. Having regard to these matters and the fact that the sequence 6, sequence 11, and sequence 13 offences each involved skin-on-skin contact with Laura’s anal and/or vaginal areas, I assess those three offences as being in the mid-range. I assess the remaining two offences as being slightly below the mid-range.

SUBJECTIVE MATTERS

  1. I turn then to consider subjective matters relating to the offender. The offender’s background and current circumstances have been placed before the Court in part by means of the psychiatric report of Dr Furst. The offender did not give evidence, however, I do accept the following matters. The offender is 80 years of age currently. He was previously married and has three grown up children, but since his arrest for these offences his wife has divorced him. He was born in Glasgow and served in the RAF for nine years, where he met his former wife, who he married, in 1965.

  2. In 1972, they migrated to Australia. The offender has a strong work history in a variety of jobs, with the majority of his working life in the IT industry. He is now retired and on a pension. He has no history of alcohol or drug abuse, or any mental disorder, and has no prior convictions or charges of a criminal nature. The psychiatrist, Dr Furst, notes in his report that the offender is relatively healthy for his age. Although the affidavit of Ms Hitchin dated 11 December 2020 indicates that the offender has had some recent health issues, none of them are suggested to be serious.

  3. That same affidavit also notes that the offender has engaged in some self-harm while in custody. I accept that his age, his likely isolation in gaol, and his health issues are such that the term of imprisonment he must receive will involve serious hardship. While I have taken these matters into account in a general way, none of them can remove the need for a term of imprisonment or reduce to any great degree the duration of that term. No submission to the contrary was made on the offender’s behalf.

  4. The offender told Dr Furst in relation to his offending that he had become involved in looking at pornography and that this led him to viewing child pornography. He, according to Dr Furst, accepted responsibility for his offending and did not seek to excuse his behaviour. He apparently told Dr Furst, “I knew it was wrong,” and, “I am taking responsibility. There is no excuse. I can’t make any sense of it.” Dr Furst concluded, based on comments such as these, that the offender was “refreshingly open” about his guilt, taking responsibility for his offending actions, making no excuses for his offending, and commenting that his actions were wrong at the time.

  5. Dr Furst reached the conclusion that the offender has the capacity to be transparent, engaging, and open when he engageS in treatment in the future. It is, however, concerning that the offender told Dr Furst in relation to his granddaughter that, “Everything was under the cover of play acting. She had no idea.” This is similar to the version given to the author of the sentencing assessment report, who concluded that:

“MT failed to see his actions as abusive or violent, suggesting that the victim was unaware of his sexual offending being abusive. He stated that a lot of it was general play and was never violent.”

  1. The sentencing Assessment Report also notes that:

“Although the offender verbalised that his wife and children were directly impacted by his actions, he appeared to have little insight into why and when challenged as to why he considered his granddaughter was not a victim he said, ‘When I would take photos or video of her I made it a game. I never asked her to do anything as what I did was surreptitiously done. I feel it was just normal play.’”

  1. These comments are, in my opinion, inconsistent with Dr Furst’s conclusion that the offender took responsibility for the offending involving Laura.

  2. The submissions on behalf of the offender also relied in part on comments made to police when they executed the search warrant at his home. At that time, he candidly said to his wife in the presence of police, “I have pornography on the computer - it’s about child pornography,” and, “I’ll be going away for a few years.” The offender also relies on a conversation in which he told his wife, “Get yourself as far away from me as you can. I’ll be going away for a few years,” and that his wife said that she would not be leaving the house, the offender replied, “No, you don’t have to leave. I will. I am the one who has done this.”

  3. Having considered all of this evidence, I am satisfied that the offender has expressed from the outset an acceptance, in a practical sense, of his guilt of the various offences. However, the offender’s comments as reported in the Sentencing Assessment Report and to Dr Furst that the offences involving his granddaughter were “play” and that she had no idea what was going on are contrary to any acceptance of the true nature of those offences and of their likely impact on the child and her family.

  4. Some of the offences committed in relation to Laura occurred when she was between about four and nine years of age. The indecent assault offences were committed when Laura was four and five years of age and involved the offender moving her clothing and underwear so as to expose her genital or anal area while using a camera to record the process. Some of the offences involved the offender touching or rubbing Laura’s vaginal or anal area either over or under her clothing.

  5. In my view, it is naïve in the extreme to suggest, as the offender’s comments appear to do, that a child of that age would be unaware of or unaffected by such gross breaches of her personal privacy and integrity and by the gross breach of trust that she should have been entitled to expect at the hands of her grandfather. My view about this is confirmed by the contents of the Victim Impact Statement, which, not surprisingly, records that Laura eventually developed panic attacks in response to any suggestion that she should stay at the offender’s house and eventually refused to do so. The offender’s inability to recognise the probable effect on Laura does not persuade me that he has any genuine acceptance of the seriousness and consequences of his offending and its likely impact on Laura and her family. In my view, therefore, any contrition in this case is relatively minimal.

  6. As to the offender’s future risk, Dr Furst formed the view that the offending is indicative of a Paedophilic Disorder, but that there were no other mental issues that contributed to the offending. Although Dr Furst and the Sentencing Assessment Report suggest that the offender is a low to medium risk of future sexual offending, Dr Furst observes that the offender’s opportunity for reoffending is likely to be significantly reduced because of his age and estrangement from his family. In my view, the offender does, given his untreated paedophilic tendencies, present a potential risk of further offending. However, the actual risk is limited given his age and his likely limited future access to children.

  7. In mitigation, the offender is, I accept, entitled to consideration for his prior good character, his cooperation with searching and arresting police, and his early pleas of guilty. Also, I accept that in general terms the offences do not involve any real planning, although there was some basic level of planning in the production offences involving Laura. I am satisfied in relation to each of the offences before the Court that sentences of imprisonment are required and no submission to the contrary has been made.

  1. In determining the appropriate sentences for the state offences, I have had regard, of course, to s 3A of the Crimes (Sentencing Procedure) Act 1999 and the various purposes of sentencing set out in that section and I have also had regard in relation to the Commonwealth sentence to the relevant provisions of Part 1B of the Crimes Act 1914 (Cth).

  2. In determining the sentences, I have also had regard to the principle of totality and attempted to ensure that the overall result does not involve a sentence that is overwhelming or crushing. In addition, I have taken into account the fact that there is a degree of overlap between the indecent assault offences involving Laura and some of the production offences, which also involved Laura, in which those indecent assaults are depicted.

  3. In relation to all of the offences, I have given consideration to the extent that they should be served cumulatively or concurrently. In order to avoid a crushing sentence, I consider that there should be a considerable degree of concurrency, although some accumulation.

  4. On the sequence 4 Commonwealth offence of transmit child pornography, after taking into account a discount of 25% for the plea of guilty, I impose a sentence of two years’ imprisonment. That will date from 18 July 2019 and will expire on 17 July 2021. I decline to set a recognisance release order having regard to the fact that the sentence to be imposed for the state offences will continue to be served after expiry of the federal sentence, see s 19AC(4) of Crimes Act 1914 (Cth).

  5. In relation to the state offences, I will impose an aggregate sentence. In relation to those state matters, I find special circumstances for varying the ratio between head sentence and non-parole period based on this being the offender’s first period in custody, his age, unlikelihood of reoffending, and the need for treatment. The indicative sentences, after taking into account the 25% discount for the plea of guilty, are as follows. MT, the sentences that I am about to now specify are not the actual sentence that you will serve for the state offences. These are what are called indicative sentences, which I am required to specify before actually setting the aggregate sentence and I will make the actual sentence clear at the end of these remarks.

  6. The indicative sentences, as I have said, after the 25% discount are as follows. For the sequence 6 indecent assault matter and taking into account the Form 1 offences, a term of imprisonment of four years and six months and a non parole period of two years and nine months. For the sequence 7 indecent assault offence, a term of imprisonment of three years, three months and a non parole period of two years. For the sequence 9 indecent assault offence, a term of imprisonment of three years and a non-parole period of one year, ten months.

  7. For the sequence 11 indecent assault offence, a term of imprisonment of three years and nine months and a non-parole period of two years and three months. For the sequence 13 indecent assault offence, a term of imprisonment of three years, nine months and a non-parole period of two years, three months. For the sequence 2 produce child abuse material, a head sentence of two years and six months. For the sequence 3 possess child abuse material, taking into account the Form 1 matters, a head sentence of three years’ imprisonment.

  8. In lieu of those indicative sentences, I impose for the state matters an aggregate sentence of seven years, six months head sentence with a non parole period of four years and six months. Those will date from 18 January 2020, that is to say, six months after the commencement of the Commonwealth sentence. The state head sentence, therefore, will expire on 17 July 2027 and the non-parole period on 17 July 2024. The total effective sentence, taking into account the sentence imposed on the Commonwealth matter and the State matters, is, therefore, one of eight years’ imprisonment and the offender will be eligible for release on parole after serving five years, namely, on 17 July 2024. I direct that a copy of the report of Dr Furst be sent to Corrective Services New South Wales and also to Justice Health and Community Corrections.

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Decision last updated: 20 April 2021

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R v Hutchinson [2018] NSWCCA 152