R v Niezner

[2022] NSWDC 668

District Court

New South Wales

Medium Neutral Citation:

R v Niezner [2022] NSWDC 668

Hearing dates:

12 October & 11 November 2022

Date of orders:

02 December 2022

Decision date:

02 December 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) Specify a term of imprisonment of 2 years 6 months to commence from today

(2) Pursuant to s 20(1)(b)(ii) Crimes Act 1914 (Cth) order the offender’s immediate release upon entering a recognizance release order himself in the sum of $3000 without security, to be of good behaviour for 5 years and including additional conditions

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service to make available child abuse material

SENTENCING — Penalties — Recognizance Release Order

Legislation Cited:

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act1995 (Cth)

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWLR 1

Imbornone v R [2017] NSWCCA 144

MinehanvR [2010] NSWCCA 140

RvBurton [2020] NSWCCA 127

RvEdwards [2019] QCA 15

R v Finch [2022] NSWDC 578

RvHutchinson [2018] NSWCCA 152

R vLozinski [2022] NSWDC 487

Category:

Sentence

Parties:

Rex (Commonwealth)
Henri Niezner (Offender)

Representation:

Hayley Grey (Solicitor for the CDPP)
Paul Ye (Counsel for the Offender)

C’th Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/00317678

Publication restriction:

Note there is a non-publication order extant for the name of the offender arrested and sentenced in Victoria with whom this offender (Niezner) had been communicating with on Fastmeet

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Henri Niezner is before the Court to be sentenced in respect of one charge contrary to s 474.22(1) Criminal Code Act1995 (Cth).

2. The offence charged is that he on or about 1 December 2020 at Petersham in the State of New South Wales made available material using a carriage service, the material being child abuse material.

The Proceedings

3. The matter came before me on 07 October 2022 and from that date an application was made to adjourn proceedings after documents were tendered and marked.

4. The application to adjourn was on behalf of the offender. The reasons for the application were his age, that he is diabetic, and that he experienced blurry vision whilst waiting for his matter to be called.

5. I granted the application but before doing so had the offender acknowledge his plea of guilty to the charge in the Local Court and that he adhered to that plea of guilty in this Court. The matter was adjourned to 11 November 2022 for the continuation of the hearing part heard before me.

6. On 11 November 2022 Mr Niezner gave evidence. I noted that he had confirmed his plea of guilty on the last occasion; he gave evidence and faced cross-examination, explaining why he embarked upon misconduct that brought him before the Court. Thereafter, I heard submissions from the parties with reference to those that had been earlier provided in writing and the matter was adjourned to 25 November 2022 and then ultimately to today.

Pre-Sentence Constraint

7. He spent no time in custody for this offence. He has however been subject to bail conditions that involve a measure of constraint that I should bring to account in the determination of the punishment that he must face.

8. He was first given bail on 9 November 2021, granted by the police officers who were obliged to make those decisions. The conditions imposed by the police were to report to the police station daily between 8am and 8pm.

9. The JusticeLink entry is rather confusing. It specifies daily between those hours and then qualifies that with Monday, Wednesday, and Friday. He was obliged to live at the address specified. He was not to have any internet connected to any address where he normally resided. He was not to access any social networking site, including telephone chat services by any means or through a third party. He was not to seek or to actively remain in the company of any person under the age of 16 years other than immediate family members, in which case the contact was to be supervised by an acceptable person above the age of 18 years. He was not to actively communicate or attempt to communicate directly or indirectly with any person under the age of 16 years other than family members. He was not to seek or undertake paid or voluntary work or social activities that will bring him into contact with any person under the age of 16 years. He was not to attend or be in the vicinity of premises known to be frequented by children including but not limited to video arcades, playgrounds, schools and preschools, premises being used for childcare, concerts or shows or sporting venues intended for the specific use or entertainment of persons under the age of 16.

10. On 30 November 2021 Magistrate Bartley made orders in respect of bail. The reporting condition was reduced to Friday between the hours of 8am and 8pm otherwise the conditions remained intact.

11. On 22 February 2022 Magistrate Horan made orders in respect of bail. These included the introduction of a curfew; it required that he not be absent between the hours of 8pm and 8am from his specified address and that he present at the front door as requested by the police during those curfew hours. The other conditions remained intact save for the reporting condition which was removed. As I understand the JusticeLink records those conditions have remained intact until the present time.

12. He was arrested for the offence on 9 November 2021. The date of the offence as specified was on or about 1 December 2020, a significant period of time before the date upon which he was taken into custody as part of the investigation.

Penalty

13. He is exposed to a maximum penalty of imprisonment for 15 years. He is entitled to a discount to the sentence that would have otherwise been imposed for the demonstrated utility in his plea of guilty at an early point in time. The plea of guilty is also relevant to the assessment of his contrition and remorse.

The Significance of the Offence

14. It is conceded by the Crown in submissions provided in writing at the beginning of the matter before me that his conduct should be seen to be at the lower end of objective seriousness for this misconduct by reason of its very nature. Even so it is reprehensible behaviour, and notwithstanding the evidence given by the offender denying any proclivity that might be indicated in the communications to which I am about to come, I find that upon the material before me I could not come to any other conclusion other than it was motivated by a sexual interest in children. He has not, upon the material before me however, sought to pursue that interest or proclivity in more serious misconduct or on other occasions. I simply have no evidence before me that he has done so sufficient to come to a view that this was other than an isolated sequence of misconduct.

15. The agreed statement of facts provides the investigative background, which includes that in November 2020 Victoria Police identified and arrested a person of the name [REDACTED], a convicted child sex offender, in relation to the use of “Fastmeet” to exchange abuse material with others. As a result of the [REDACTED] investigation further users of this service who had engaged in the exchange of child abuse material were identified and referred to the relevant State police across the Commonwealth of Australia.

16. In October 2021 the New South Wales Police Child Exploitation Internet Unit established a strike force to investigate the activities of individuals within New South Wales identified as communicating with [REDACTED] on the “Fastmeet” platform about the sexual abuse of children, including by the offender.

17. “Fastmeet” is a chat and voice service that operates on multiple platforms including a website, phone, and mobile device application. The live chatroom function allows users to engage in four ways, prompts, greetings, messages, and one‑to‑one chats. The service informs users as they enter the live chatroom, “for your safety, this service is monitored and may be recorded.” The website notes, “all live connections and messages are handled through out system, so your personal details are always kept private. We have monitors regularly checking the system to ensure that all users comply with our chatroom guidelines. Please note for the protection of users calls may be recorded.”

18. The offender was identified using a telephone service to communicate with [REDACTED] between 1.14pm and 1.24pm on 1 December 2020. He exchanged two recorded voice messages with [REDACTED] on “Fastmeet” as set out below. I should interpolate that the particulars of the phone service are included in the facts; there is no need for me to repeat them in this judgement.

19. In this communication [REDACTED] said, “Not quite up to the old man stage yet, but I am certainly dirty. Yeah, fucking love taboo, love smooth hairless, love teaching my son how to do the right thing and be a big boy. Yeah, loving hearing about other dads breaking‑in their kids.”

20. The first voice recording has the following:

THE OFFENDER: “I want you to tell me about your boys, I’m stoking my prick. I had a woman friend, but she’s gone interstate. She used to love to watch me work on her son and daughter, she was a total fucking perverted childlover like me. Uh, she had a young son and two-year-old daughter which I absolutely loved working on them while she watched. Fucking heaven, God the boy loved sucking me off while his sister watched and worked on her bald little cunt. I’d love watching the mother ream out her daughter, ass and cunt, mmm, beautiful heaven.”

[REDACTED]: “Yeah. I love sucking on my son’s cock, having him suck on mine. Fingering his very tight pink hole. Yeah, rub my cock up and down in his ass crack, slowly starting to work the head in, but uh haven’t been able to get it all in yet. Did you ever get to sink your cock into the boy or girl? How old were they? Yeah, fucking, was the boy cut or uncut?”

21. The second voice recording:

OFFENDER: “Yes, I have had a few experiences, especially with the mother who used to love me working on her son while she watched, he was eight. Uh, my age preference is eight onwards, I’m not really into the real, real young. I love boy cock, I don’t care if it’s cut or not, but uh, he had a cut little cock which I used to love sucking on. Absolutely delicious, loved having my tongue up his bum while mother watched on worked on the cunt. Tell me the ages of, uh, that you prefer and the age of your son. I’d love to know the girls age too, while I’m working on this fucking piece of meat between my legs.”

[REDACTED]: “I like all boys under the age of 12, age of 13, girls’ preteen. Yeah my son is six years old, about to turn seven. Did you ever get to sink your cock into the boy. I love boys, fucking yeah, love life’s tightly, little, circumcised cock, nice shiny little head. Love sucking on the little acorn.”

22. On 9 November 2021 the offender was arrested and cautioned at his home address. He co-operated with police confirming his telephone number and that he had accessed the telephone chat service. He told the police that he had been talking about taboo subjects as in underage, father, son, and talking fantasy: “let’s say fantasies, not actually doing it, cos, I didn’t think that was illegal” and that he had never engaged in any sexual activity with a child.

23. He made frank admissions to the police at the scene. He was conveyed to Newtown Police Station where he was taken into custody. His rights were explained to him. He participated in an electronically recorded interview. He confirmed the admissions made and the information provided at the time of the arrest. He provided this following further information: that he left a recorded message on the chat service but had not spoken to the co‑accused directly; nor had he provided his details to speak with the co‑accused or anyone else online outside the chat service; that he introduced himself on “Fastmeet” as a dirty old perverted bisexual deviant. He said, “I talked the most absurd disgusting stuff, disgusting I know, it’s something I got off on.” He listened to some of the recorded messages and mimicked what was there.

24. He has a sexual interest in children but he has never and would not ever actually engage in sexual activity with a child. He said, “as sick as it sounds it’s total fantasy and as perverse as the fantasies are it’s not reality.”

25. A search warrant was executed as his home. An electronic item was seized, his Apple iPhone. Nothing of interest was found on it.

The Offender

26. He was born in 1950 and this year reached 72 years of age.

27. He has no antecedent record of comparable offending, however in 1997 he was given conditional liberty for offences of fraudulent misappropriation and making a false instrument and using a false instrument.

28. In April 2012 he was given the benefit of s 19B Crimes Act 1914 for an offence of using a carriage service to menace, harass, or offend.

29. It does him no service that he has these matters on his record but they are of little consequence in the assessment of the punishment to which he is exposed in the commission of this offence.

30. He gave evidence before me as I said, on November 11, 2022.

31. He acknowledged that he had seen a healthcare professional and confirmed the accuracy of the report provided. He confirmed the accuracy of other documents that were prepared for the purposes of this prosecution. These were from a neuropsychologist and a psychologist respectively. The content of the documents was correct. He continues at least at the time of the evidence to see the psychologist and was next to see him the following day.

32. He spoke of his troubles as a child. His parents divorced when he was 12 or 13. His mother was admitted to psychiatric care when he was six and his father took him and his brother to the United Kingdom. He spent six years in the British Army. He returned to Australia and engaged upon clerical work. In 1989 he underwent major surgery in respect of a pulmonary embolism. He suffers mobility problems since then. He is diabetic. He gave up work to care for his mother until her death. He has experienced depression, problems with alcohol, he is unable to work. His general practitioner, he identified, provided material for my consideration including a list of ailments.

33. When dealing with the circumstances of the offence he spoke of consuming beer at the Canterbury RSL, getting onto the chat line, he accepted the agreed facts and his responses in the communications, he accepted the disgusting nature of the subject matter and asserted that he never acted upon thoughts; it was all in his head. He said it was a mystery to him why he did this.

34. He spoke of an attendance by a journalist some three months later speaking about another person of the name Finch who had engaged on similar conduct. I note that between the date of this evidence and today the proceedings against Finch were concluded in the District Court in this State.

35. He allowed the journalist in and spoke with her; he did not know now why he did so, or why he bothered even speaking to the media.

36. He spoke of having an ongoing problem with alcohol and problems with impulsivity. He said he is continuing to consult with the psychologist to address his alcohol use which was to medicate for his emotional problems. He spoke of being disgusted that he would communicate these thoughts as he did and does not know why. I quote him. He said, “He said something, I said something.” This was his explanation for the communications to which I have referred.

37. He was cross‑examined. He denied being technically savvy, to use his word. He spoke of his level of intoxication. He responded to my questions in terms, “I don’t know why I said these things”. He confirmed that he communicated using voice messages; it was not an ongoing exchange with the other person.

38. He said at one point that he did not know, he just made it up as he went along. He said this in respect of para eight in the agreed facts and in respect of para ten as to his preference for the age of eight onwards. He said he does not know why he said that. He said, “I don’t think I was sexually aroused in these conversations.”

39. There was a non-publication order in respect of [REDACTED] revealed in re‑examination. [REDACTED] had been charged and the proceedings against the person Finch were pending as I noted.

40. Mr Ye on behalf of the offender asked the Court to consider a Community Corrections order. He resorted to a backup position. If the Court were to impose a term of imprisonment he submitted that the appropriate order would be that the offender be released forthwith subject to a recognizance release order. I was sympathetic to that view in the circumstances and upon the material I had before me and I indicated that would be my course.

41. The Crown did not oppose that course but, as was brought to my attention this morning to remind me, the submissions from the Crown identify the need for the Court to come to a view that there must be exceptional circumstances to justify the offender being released immediately upon a recognizance release order: s 20(1)(b)(ii) Crimes Act1914.

42. The material tendered in the offender’s case included the neuropsychological report from Dr Sally McSwiggan written on 30 August 2020. As I noted the offender accepts the accuracy of the report both in terms of the representation attributed to him and the observations made of him by the author. The report provides some detail of his background. He is he younger of two boys born to his parents, divorced when he was around 15 years of age, after which he relocated to the United Kingdom with his father. His mother had mental health issues such that she could not care for the children. His belief is that she suffered a major depressive disorder. He failed to adapt in the United Kingdom. He was excluded from high school. He joined the British Army where he served for six years. He studied commerce at university but did not complete his degree. He returned to Australia in 1982 working in administration in “temp‑work,” including at a bank. He had a female partner for several years but never married and has no children. His last relationship was over 20 years ago. He described a history of using free telephone chatlines to speak with women. He has never had a driver’s licence and he has predominantly lived in the inner‑west of the city.

43. In 1998 he stopped work so he could care for his mother. A year later she accidently set herself alight and died from her injuries. He received a disability pension in 2003 because of mental health and his unfitness to work. His mental decline he said was because of psychological injury sustained upon his mother’s death.

44. He spoke of a history of depression after his mother died, and persistent low mood. He denied a history of psychiatric hospitalisation or medication. Services to which he had access included grief counselling following the death of his mother and to address his misuse of alcohol. He consulted a psychiatrist in 2021 and is regularly seeing his clinical psychologist who is aware of the proceedings.

45. He has been a heavy drinker over 50 years. He developed an irregular sleep pattern. He is intoxicated early in the day, rising at 3am to begin drinking at 9am. He described himself as an emotional alcoholic. He has a longstanding diagnosis of non‑insulin dependent diabetes controlled by tablets. He is overweight and has raised cholesterol for which he is medicated.

46. His forensic history is noted in terms as I have discussed it. He was assessed by way of examination for his mental health. He exhibited no indication of impaired mental health upon that examination although he appeared in low mood but was not especially depressed. He described anxiety, sadness, and worry about the proceedings.

47. He was administered tests. He appeared to understand the instructions and appeared to try to complete them appropriately. His premorbid intellectual functioning was said to lie in the low‑average range. His cognitive functioning was assessed. He demonstrated an awareness and interest in current events. He is independent with travel and activities and living, and he had a knowledge of current politics and news events, his budgeting, and his commitments. His immediate attention was intact, he could hold information to process it and his speed of thinking was intact.

26. Generally there was nothing remarkable in the results of these tests. His executive functioning was variable but not grossly disturbed. He could comprehend and reason with simple abstract concepts and generate novel ideas and reason sensibly. His verbal fluency was said to be very limited. His reasoning showed grossly intact judgement, motivation, and effort. The neuropsychologist undertook cognitive screening all of which did not reveal anything significant.

27. He was diagnosed with a substance misuse disorder, alcohol. He was diagnosed with cognitive impairment, with no dementia.

28. I will read the paragraph that expresses this opinion because it is of some complexity. It is at para 39 of the report:

“The diagnosis of cognitive impairment, no dementia (VCIND) the preferred diagnostic criteria in the clinical verses non‑amnestic mild cognitive impairment (NA-MCI) or mild cognitive impairment (MCI) or the DSM-5 term of mild neurocognitive disorder due to alcohol related impairment and (query) vascular disease was based upon Mr Niezner’s mild executive function impairments and mild visuospatial disturbance on a background of normal intellect, largely intact remote memory, sparing of new learning and lack of rapid forgetting.”

51. A brain scan would have been of assistance but that was not performed.

52. His presentation did not rise to meet the criteria of a dementing disorder and his lack of sexual offending history would defer any diagnosis of paraphilic disorder at the present time.

53. The report deals with the circumstances of the offence and a risk formulation was provided which identified the misuse of alcohol as a factor together with his related low mood and some motivation towards paedophilic deviant thoughts.

54. In the formulation section of this report there is reference to his increasing alcohol use and isolation, particularly within the context of the COVID lockdown, precipitating increasingly sexually driven thoughts. His ability to consider negative consequences of actions was less developed than his intellectual capacity would predict, perhaps reflecting the toxic process of alcohol misuse on higher order cognition.

55. He is attributed with an appreciation of the seriousness of his actions in hindsight and his representation that his intention is not to act upon his intoxicated thoughts into the future. He accepts that he will be listed on the Child Protection Register for a period of years.

56. There is discussion of his likelihood of acceptance into a sex offender’s program in custody and that he would benefit from ongoing engagement with his psychologist, which should include monitoring of compliance with the Child Protection Register obligations where applicable, the development of a self‑management plan including links with an alcohol service, and ongoing support in relation to his mood regulation and alcohol misuse and isolation.

57. He is attributed with regret, remorse, and shame. He has no unmet treatment needs for a major mental illness or a severe dementing disorder, and he is said to be likely to be compliant with any community orders and would follow all directions.

58. The psychologist, Geoffrey Francis, provided a report on 4 October 2022. The offender’s circumstances discussed are comparable to those to which I have already referred, including his history of anxiety and low mood. The psychologist suggests he meets the criteria for persistent depressive disorder and alcohol use disorder. There might also be available a diagnosis of attention‑deficit/hyperactivity disorder. Therapy is discussed. His health issues are discussed impacting upon his functionality.

59. It is noted that he does not drive, that he has few current relationships, and his current supports are limited to his general practitioner. His ongoing consultation with the psychologist is noted. His represented history of depression is noted. The assessments completed since May 2022 are discussed.

60. He is said to have issues with impulsivity, significant mood swings, and inhibitory control issues which, combined with boredom, loss of libido, and binge drinking and social isolation may be related to some of the driving factors in his using a carriage service to promote child abuse.

61. It is said that he did report a history of using sex chat lines to meet women and talk about sexual fantasies and it is the impulse of fantasies that drove him to the current conduct. He is attributed with a sense of disgust.

62. It is of concern though that at the police station he admitted to things that never occurred, whatever that might mean, and that he said he did not have any interest in children and could not masturbate. This appears to be the topic to which the admission relates.

63. There is discussion as to why he told the police that he was interested in children when he is not. The psychologist cannot explain why he told the police this. An explanation which I would find upon the material I have is that he has at least to some degree an interest in children. I do not believe that any finding otherwise could be made when one considers the utterances he was captured making in these communications.

64. There is a document from his general practitioner, Dr Patricia Mohr‑Bell, with his medical issues. The passing of his parents is noted with what caused their demise. His misuse of alcohol of five to six standard drinks four or more times a week is noted. He has never smoked. A list of his medications is provided. He suffers from conditions that have been diagnosed from 1989 to date. These are, varicose veins, alcohol dependence, gout, obesity, non-insulin dependent diabetes, hypercholesterolemia, and anxiety.

65. His past medical history includes blood transfusion, Greenfield filter insertion, pulmonary embolism, cholecystectomy by laparoscope, shingles and depression.

66. There is a report from My Aged Care, an agency from the Australian Government, speaking of his situation, his daily functioning, and his health. It is recommended that his health issues that impact upon his ability to manage some aspects of daily life are a difficulty. He would like to remain independent but he has limited informal supports and would benefit from a daily welfare check. He has already had discussions with the Red Cross in relation to this. There are supporting documents accompanying that assessment.

67. There is a document from the Australian Red Cross regarding the need for ongoing facility.

68. There is a reference speaking to what the person believes of the offender. He describes him of a personable and generous person well‑liked by all who know him. He was astounded and shocked to learn that the offender had been charged with the very crime he had previously denounced as abhorrent and unacceptable. He has not displayed any child predatory tendencies to this person.

69. There is some material drawn from the Daily Telegraph dealing with the person Finch to whom I referred and in respect of whom the journalist interviewed the offender. The consequence of that interaction was to have his image published in the newspaper together with commentary upon the fact of his arrest and the prosecution and bail status at that time. This is offered as extracurial punishment. I do not take it as such. The fact that the media chose to report that he was the subject of this prosecution is not of such magnitude in my assessment of the matter that it requires him to suffer lesser punishment.

70. Submissions on behalf of the offender were provided, to which counsel spoke when the matter was before me previously.

71. I am reminded of the offender’s age, the absence of any comparable offences in his antecedent record, and the insignificance of the charges that he has accumulated in his past life. I am reminded of the effect of a Community Correction Order pursuant to s 20KB Crimes Act 2014 upon the application of s 8 Crimes (Sentencing Procedure) Act 1999 urged upon the following factors: his advanced age, his mental health and medical issues, his lack of prior convictions, and the objective seriousness of the offence toward the very bottom end of the range, his demonstrated remorse and contrition, and his low risk of reoffending.

72. Alternatively it is put, and I agree, that if a term of imprisonment is required, which I find it is, that the Court would find exceptional circumstances and make a recognizance release order immediately pursuant to s 20(1)(b)(ii) Crimes Act 2014.

73. Regarding objective seriousness I am reminded of R v Hutchinson [2018] NSWCCA 152 and the judgement of R A Hulme J revising at paragraph [45] the factors identified in Minehan v R [2010] NSWCCA 140. It is acknowledged that the recordings were explicit and graphic in nature but notwithstanding the objective seriousness of the offence does fall toward the bottom end of the range of offences captured by this provision. There were no children involved in the creation of the material. The material was purely fictional. There is no suggestion of cruelty or physical harm discernible, although I would question that proposition considering the content of what was said and the penetrative nature of the sexual activity advanced on children so young. There are only two recordings, they were in response to one person and not intended for further dissemination. There was no material benefit derived. There is no risk that the material would be found by vulnerable persons. The recordings were of short duration and they were in the form of voicemails on a chat line and therefore to be contrasted with the publication of images or videos or sound recorded representations more generally.

74. I am reminded of the contents of the report by Ms McSwiggan and the psychologist Mr Francis, his background as advanced, so too his medical issues.

75. The mental health disorders I have identified and I am invited to consider the guidance given by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWLR 1 at para [177]. Relevant statements there given by his Honour are: the offender’s mental disorders “rendering him an inappropriate vehicle for general deterrence”, and his time in custody will inevitably be more onerous, I would accept that; the significance of specific deterrence is moderated, I do not accept that; his moral culpability is reduced because of the causal connection between his mental health and the offending, I am not persuaded that moral culpability should be reduced for that reason.

76. I am referred to what Dr McSwiggan said regarding his increased alcohol use in the context of isolation by reason of COVID precipitating increasingly sexual driven thoughts and the use of alcohol to self‑medicate.

77. It is suggested that his ability to consider negative consequences seem less developed than his intellectual capacity would predict, reflecting upon the toxic process of alcohol misuse on high order cognition. Sympathetic though I am to the offender and his circumstances of misuse of alcohol I do not find that his conduct on this occasion is mitigated by reason of what is suggested by Dr McSwiggan. The content of the communications speaks against any such finding.

78. I have had the opportunity to see the offender give evidence and hear him. He presents with sufficient capacity to communicate and justify his circumstance, going as far as to deny any sexual interest in children notwithstanding the content of his communications.

79. I accept though that he does suffer from low moods and mood swings and perhaps a measure of impulsivity, bearing in mind his past life and experiences and the circumstances that pertained until the time of the commission of this offence. This is relevant to the assessment of the punishment he must suffer and to the assessment of the objective gravity and moral culpability engaging as he did in this activity.

80. I accept his plea of guilty. I accept he has demonstrated remorse, although it is to some extent qualified by his failure to recognise that there must be some abhorrent interest in children considering the content of what he had to say in these communications.

81. I accept that there are good prospects of rehabilitation bearing in mind his age and the consequence of these proceedings which will include appropriate supervision to ensure that he continues in circumstances where he might not be tempted to embark upon any such misconduct in the future.

82. I accept, although I would not put it as high as extracurial punishment, that publication of his identity in a daily newspaper, including an image of him, is a further factor that would render it unlikely that the offender would expose himself to such consequences in the future.

83. I have been referred to authorities, including examples of sentences imposed by other courts, I have reviewed those for the assistance that they might provide. I do not propose to undertake a comparative analysis of all those judgements. Each case must be viewed according to its own facts and circumstances and the circumstances of the individual offender.

84. The Crown submissions are comprehensive and helpful, as I have come to expect from prosecutions brought on behalf of the Commonwealth. The submissions put forth initially were that the only appropriate sentence is a custodial one with a period of full-time imprisonment to serve. I am reminded of the contents of Part 1B Crimes Act 1914 and the requirement that the offender be sentenced in accordance with those provisions. I am mandated to consider the matter specified under 16A(2) Crimes Act 1914. A sentence must be of a severity appropriate in all the circumstances of the offence. The matters listed in s 16A(2) are non‑exhaustive. I have brought to account the maximum penalty and the extent to which the offender has contravened the legislative objectives relating to the eradication of child abuse material in the community.

85. I have not had difficulty coming to the view that this behaviour, even though at the low end of objective seriousness, is abhorrent. I just cannot understand why an adult person of mature years could so behave toward or in respect of children of such tender ages. It is criminal misconduct. It is deserving of punishment subject of course to the synthesis of the subjective matters that an offender might wish to advance in the interests of mitigation of penalty.

86. The principles relating to child abuse material are now well-known. The objective seriousness is measured against various factors, to some of which I have already referred with the regard to the submissions made on behalf of the offender.

87. I have considered that there are no actual children involved in this material which came from the mind of the accused.

88. I have considered the nature and content of the material, including the ages of the children to which the comments were directed.

89. I have considered that there is a measure of cruelty or physical harm that one might anticipate should any such behaviour have been perpetrated but I note that there was none and that it is really the deplorable thought process of the offender only with which the Court is concerned. There are no images that the offender possessed but there is the transmission of what was in his mind and the receipt by him of information from the other base individual who communicated with him.

90. Care must be taken of course not to punish the offender for conduct upon which he has not engaged, in accordance with the De Simoni principle. There is no indication of commercial reward or other consideration coming to the offender for his activity. He is proximate to his other participant only to the extent of access through the application. I accept that the degree of planning, organisation, and sophistication on the part of the offender is limited. I have noted the individuals with whom he was communicating. He was part of a collaborative network of likeminded persons but it is more in the nature of a spoked wheel arrangement. Some of these individuals would not have knowledge of each other but would be connected one way or another indirectly.

91. There is no risk from what I have of any of this material being acquired by a vulnerable person, or that it might be seen by some person susceptible to act in the manner described, other than that the communications might encourage someone who is receiving them and responding to them to engage. However, I cannot conclude that this in fact occurred in this case. It has I would suggest no more than potential for such. I do not bring it to account as a matter of concern or consideration in the assessment of the punishment of this offender.

92. General deterrence is, I accept, the primary sentencing consideration. The Court must do what it can to stop the people I describe as base individuals who engage upon this misconduct. His mitigating factors lose some of their impact where general deterrence has such a significant role. I accept the importance of specific deterrence, the need to denounce the conduct, and impose punishment upon the offender and do what one can to provide by way of this judgement some protection to the community from likeminded individuals. I note that detecting this misconduct is not easy. Indeed this is reflected in the very nature of the investigation which I have summarised from the agreed statement of facts. It provides a sound basis in my view for the delay between the misconduct and when the police came and confronted the offender.

93. There is a market created by such behaviour although it is limited according to the material I have in this context, which facilitates at least in the minds of the participants continued corruption and exploitation of children.

94. There is, I agree, the paramount interest in promoting protection of children from online exploitation and offences and activities such as the production and possession of child exploitation material.

95. It is said by the Crown that the offending is not mitigated by the fact that the offender did not profit from the offending, but the absence of any material gain to him from this is not to be overlooked when assessing where the conduct is to be placed on the scale of objective seriousness. I am reminded of the nature of the internet and the evolution of remote storage devices using it in networks. It is the fact not only in this context but more generally that the internet and the various devices now available put us all at risk from those who want to engage in criminal misconduct making use of those facilities. This is but a specific example of criminal misconduct by use of such a facility.

96. I am given some details regarding “Fastmeet” described as a gay chatline service, how one can embark upon the use of that service for their purposes, and how the communication occurs.

97. The offending in this matter involved leaving audio messages which were child abuse material. The Crown correctly observes that the messages included highly sexualised and graphic descriptions of the offender engaging in sexual activity with siblings, an eight-year-old and a two-year-old while their mother watched, and the messages were published to the other person [REDACTED].

98. The offender did not know that [REDACTED] was a convicted child sex offender and this is a significant factor. As the Crown correctly points it highlights the risk taken by the offender making available child abuse material to someone who might be susceptible to act in the manner described, normalising for that person sexual activity between adults and children. The Crown concedes the conduct is at the lower end of the spectrum but nevertheless points to the nature of the material as child abuse material with highly graphic, depraved, and explicit descriptions of the conduct.

99. The evil in this misconduct as the Crown points out includes the normalisation of sexual activity involving children, encouraging reciprocal communications. I am reminded of what was said in R v Edwards [2019] QCA 15 at para [38] quoted in the submissions and what was said by the New South Wales Court of Criminal Appeal in R v Burton [2020] NSWCCA 127 in the judgement delivered by Harrison J. As his Honour there pointed out, the seriousness of the offence of transmission is necessarily informed by the nature and content of the material itself. His Honour referred to the use of “explicit language to describe sexual acts” between the perpetrator and the children, including in that case the use of physical violence toward a 13-year-old girl. His Honour noted that the Court must consider such matters and the importance attaching to the possibility of dissemination to vulnerable recipients, although I note in this case these were audio recordings.

51. The Crown concedes as far as it is aware there were no actual children victimised. The importance of general deterrence, specific deterrence and the need for adequate punishment is noted in accordance with s 16A(2)(j), (ja) and (k) of the Crimes Act. The importance of the guilty plea is noted in accordance with s 16A(2)(g) of the Act. Co-operation with law enforcement agencies is noted in accordance with s 16A(2)(h).

52. The question of contrition is addressed in accordance with s 16A(2)(f). It is noted that the Court has hearsay evidence of what the offender said to third parties, however the offender repeated in evidence before me his remorse and disgust at his misconduct, although that was qualified with his denial of any sexual interest in children. I have noted his character, antecedents, age, means and physical and mental condition as required by s 16A(2)(m) of the Act. I have reviewed the authorities to which the Crown has referred.

53. I am reminded of what Wilson J in Imbornone v R [2017] NSWCCA 144 beginning at para [57] and the caution required when there is no evidence given by an offender. This has been addressed because the offender did give evidence in this case. Prospects of rehabilitation to which are relevant s 16A(2)(n) and s 16A(2AAA) are brought to my attention.

54. Steps toward rehabilitation should be considered and I have done so, and I note that rehabilitation is an important factor in this case. I note that he has ongoing treatment with his psychologist. Although having read the psychologist’s report the impression I have is that the psychologist is sympathetic to the position of the offender which is to be expected. In the circumstances. What is important is that whatever underlying motivation there might have been is properly addressed and its impact ameliorated in the assistance provided. I agree with the submission that the Court accept that the conduct was motivated by sexual gratification.

55. Section 16A(2AAA) of the Crimes Act provides that the Court must have regard to the object of rehabilitation including whether an order should include a condition about rehabilitation of treatment options. It does not, the Crown correctly submits, displace the requirement that the sentence must be of a severity appropriate in all the circumstances. I am reminded of the processes by which the Court may determine and impose a sentence and I am reminded that there are mandatory conditions to attach to a recognizance release order which I shall employ.

56. The Crown in supplementary submissions brought to my attention the outcome of sentence proceedings involving offenders connected with this behaviour, one Michael Lozinski, Brett Simonet and Brett Finch, the person the subject of the newspaper article and in respect of whom the journalist approached the offender.

57. The Crown submits correctly in my view that parity does not arise in this case, though the Crown concedes that these decisions are matters I should not ignore when coming to the decision which I am required to make in this case. I have reviewed those decisions. R v Finch [2022] NSWDC 578 a decision of Mahony SC DCJ, the decision of R v Lozinski [2022] NSWDC 487 again by Mahony SC DCJ and then finally R v Brett Allan Simonet the judgement of Herbert DCJ. In the case of Lozinski his Honour discharged the offender pursuant to s 19B(2)(d) Crimes Act 1914 without conviction upon security with conditions. In Finch his Honour convicted the offender and sentenced him to two years imprisonment to be released pursuant to s 20(1)(b)(ii) Crimes Act 1914 upon entering a recognizance with appropriate conditions, and in Simonet her Honour convicted the offender and imposed imprisonment of 13 months with a recognizance release order to take effect on 6 November 2022 upon giving appropriate security. The offender accordingly was in custody for a period of some five months, that sentence having been imposed on 7 July 2022.

The Sentence

107. I must come to the task of determining the sentence:

108. The offender is convicted of the offence.

109. I sentence him to a term of imprisonment of 2 years and 6 months.

110. Pursuant to s 20(1)(b)(ii) Crimes Act 1914 I order that the offender be released upon him entering a recognizance release order, himself in the sum of $3,000 without security.

111. He is required to be of good behaviour for a period of five years.

112. The recognizance release order is subject to mandatory conditions as required by s 20(1B) Crimes Act 2014.

113. The offender is to be subject to the supervision of a probation officer.

114. He is to obey all reasonable directions of the probation officer.

115. He is not to travel interstate or overseas without the relevant permission of the probation officer, and he is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs. In that regard I note his continuing attendances upon his psychologist Geoffrey Francis.

116. The offender is to contact the Community Corrections office at Leichhardt by the close of business today. It may be by telephone, to organise the supervision that is required. A copy of the reports by the psychologist and the neuropsychologist should be provided to assist in the assessment of what is required.

117. Regarding my decision to order his immediate release I am satisfied that there are exceptional circumstances in this case. I find this upon the combination of his age, his state of physical health as articulated in the document provided by his general practitioner, which includes his diabetic condition, his obesity, the vulnerability of people of his age and with his compromised health have from the COVID‑19 virus, especially in a correctional facility.

118. I have considered the seriousness of the offence, I have considered his expressions of remorse and the co-operation he has provided to the police, and I have considered that at 72 years of age he has effectively no relevant criminal history and there is reduced moral culpability. Predominantly I rely upon the evidence dealing with his compromised health and the need for ongoing care by way of the psychologist.

119. The orders were explained to the offender.

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Decision last updated: 30 January 2023