R v Oswald

[2012] NSWDC 256

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Oswald [2012] NSWDC 256
Hearing dates:	13 December 2012
Decision date:	13 December 2012
Jurisdiction:	Civil
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for an overall term consisting of a non-parole period of 2 years and period of eligibility for parole of 2½ years
Catchwords:	CRIMINAL LAW - Sentence - possess child pornography - repeat offender
Category:	Sentence
Parties:	The Crown Brendan paul Oswald
Representation:	Director of Public Prosecutions (Cth) Armstrong Legal - Offender
File Number(s):	2012/6954 -2012/6956 - 2012/200850

SENTENCE

1. HIS HONOUR: Brendan Oswald was convicted of possessing child pornography in 2004. He served a sentence of periodic detention and for some years after completion of that sentence he appears to have been able to refrain from committing further offences of that kind. But in 2009 things changed. Why that was has been difficult to determine. All I know is that in that year he began once again to access child pornography using the internet. Also in that year he began to realise that the victims, as I will describe the children involved in the production of that material for obvious reasons were not participating in the production of the material because they enjoyed it but because they were being exploited. Another thing happened in 2009 as well. The offender began to pay for child pornography. Indeed in that year he spent almost four and a half thousand dollars to get child pornography delivered to his computer.

1. One of the reasons that he gave for not accessing treatment in 2009 was because of financial pressures. He said he could not afford to pay a psychologist, for example, but he did choose to spend money on accessing child pornography. One of the important aspects of determining a person's moral culpability is to examine to what level that person has made the choice to do the wrong thing. It has to be recognised that in 2009 the offender chose to spend money on accessing child pornography rather than receiving treatment to deal with his desires to commit that very offence.

1. From 2009 until his later arrest the offender began downloading, storing and making available for dissemination a significant quantity of child pornography. There was so much material stored on seven separate storage devices owned by the offender that it was not reasonably possible for investigators to examine all of it. They therefore examined about ten per cent of the storage capacity possessed by the offender and discovered a significant quantity of pornography, about 160,000 images for example.

1. The prosecution does not ask me to conclude that in the remaining ninety per cent there was further child pornography material and I will therefore proceed on the basis that the images and videos viewed by investigators represent the extent of the images and videos downloaded and stored by the offender. But there must come a time when a different approach has to be taken. With the introduction of faster and faster internet speeds and larger and larger storage devices it is impractical for every image and video stored by an offender to be viewed by an investigator, to say nothing of the occupational, health and safety risks that that would present to those investigators.

1. Suggestions have been made, including by me, as to how this matter could be dealt with. I wish to suggest that we have now reached the stage where a different approach needs to be taken to the way in which cases of this kind are dealt with. But I repeat what I have just said is for the future. In the present proceedings I will proceed on the basis that the prosecution has asked me to that the extent of the offender's criminality is to be determined by taking into account those images and videos which the investigators were able to view and categorise as child pornography.

1. The offender's activities on this occasion came to the attention of the authorities after a child pornographer in the Philippines was arrested. He was selling pornography and the offender was one of those who purchased it. This led to the investigators identifying the offender as possibly being a person who might have committed offences of this type. They therefore went to his premises on 30 November last year and searched those premises. The offender was at work but voluntarily attended at the police station that afternoon and was arrested. He was then released on bail. He participated in a record of interview with police and as far as can be told was honest with them. He explained what he had done and how he had done it and allowed police to use his log-in details to what appeared to be a file-sharing program, although there is no evidence that anything useful came of that.

1. The images and videos are apparently primarily in the less serious categories, but simply because there is a significant number of images and videos of child pornography in this matter, even the fact that a small proportion of those images and videos were in the most serious categories, means that a large number of images and videos in those categories was found by the authorities. Thus there are over 800 images and videos showing bestiality and sadism involving children, and 17,000 images and videos involving things such as penetrative sex. The offender's focus seems to have been on pre-pubescent females and he gave evidence that the more serious forms of child pornography did not really interest him, but he nevertheless continued to possess those after downloading them.

1. The offender was born in the Newcastle area. He has had an unremarkable upbringing except in what is described as the psycho sexual area. He had a good upbringing and indeed is supported in court by his parents today. Also in court to support him is the offender's wife. She married him before the first of his offences in 2004 but has remained supportive of him and their relationship continues to this day.

1. The offender had trouble meeting and socialising, at least in a sexual way, with females of his age as he was growing up. His first sexual experience was an unusual one and thereafter he discovered the services of prostitutes and that they could provide him with the enjoyment that he sought. Indeed his first marriage was to a prostitute that he met in a brothel. Not surprisingly that marriage did not last long. (I suppose I should say the obvious that there is no suggestion that his current wife performed that occupation).

1. A great deal of evidence concerned the future. Since being arrested on this occasion the offender has belatedly, it must be said, sought out treatment for what is clearly a disorder of paedophilia. That treatment will apparently take some time but has been relatively successful so far. There is thus hope that in the future the offender might, with the assistance of ongoing treatment, be able to resist the temptations to commit further offences of this kind in the future. If that happens of course not only does the offender benefit but so does the community and so I will make an adjustment between the head sentence and non parole periods in the offender's favour to allow an extended period of supervision on parole.

1. But it remains the case that he must serve a significant time in custody. There are many reasons for that. At one stage I perhaps unfairly thought that Mr Sutton who appears for the offender today was going to suggest that a diagnosis of paedophilia would suggest that general deterrence needed to play less of a part in the sentence to be imposed upon Mr Oswald. Quite clearly that would not be the case. Indeed if that were the case then the law would soon cease to have an effective deterrent effect.

1. It has to be recognised that it was the offender's personal choice to resume downloading child pornography in 2009. His decision to do so and his decision to make available child pornography and his decision to keep what he downloaded in his possession were all matters of personal choice. He may have been less able to make the right choice because of his disorder but it is still a choice he made.

1. During the course of today's proceedings it has been suggested that similarities can be drawn with gambling and drinking, as both of those can lead to addictions. But I would prefer to draw the analogy with drug addiction. The authorities make it clear that where a person voluntarily commences to use drugs then ensuing addiction can have little mitigating effect. So it is with an addiction to child pornography, after all, no one could begin to commit offences of this kind thinking that what they were doing was not illegal. The offender's decision to commence downloading pornography in 2005 and then to resume his illegal activities in 2009 were all personal choices that he made. I repeat, for emphasis, that having made that choice he had the further decision as to whether he would spend money getting treatment for what he was doing or spend money obtaining more child pornography, and he chose the latter.

1. The offender is, apart from his problems with child pornography, a man of apparently otherwise good character at least at the present point of time. He has a good work history and is well regarded by his friends and family. The fact that they still support him is of course testament to that. But that does not effect the circumstance that he in a significant way has committed very serious offences, each of which is capable of causing harm to the victims of such offences.

1. As the Crown rightly points out there is one particular circumstance which makes the offender's conduct worse than ordinarily is the case and that is that he paid for some of this material. Part of the problem with downloading child pornography is that a market is created. Well, that is even more so the case when the person who produces the pornography can make money out of it by selling to people such as Mr Oswald. That evil person then has the incentive to abuse more and more children so that more and more child pornography can be produced and more and more money can be made from people like Mr Oswald. He has, as the Crown said, contributed to the market for child pornography and that does make his offending more serious than would otherwise have been the case.

1. The offender pleaded guilty at the earliest opportunity. That is consistent with his attitude towards police when they interviewed him and his evidence in court today when he said that in a strange way he was happy when the police arrived. I accept that he is remorseful for what he has done and is now struggling to come to terms with that and explain to himself and others why he continued to commit these offences for such a lengthy period of time knowing each time he did commit an individual aspect of the offence that he was causing harm as he did so.

1. Because the offender pleaded guilty at an early stage there was a utilitarian benefit to the criminal justice system too. His willingness to facilitate the course of justice in the Commonwealth matters and the utilitarian benefit in the State matter will lead to sentences which are twenty-five per cent than they would otherwise have been.

1. I have decided to structure the sentences this way. There are five offences but if the law had not changed there would have only been three. Counts 1 and 2 concern similar conduct as do counts 3 and 4 but multiple charges needed to be laid because of the increase in the maximum penalty which occurred in April 2010. I will impose concurrent sentences on counts 1 and 2, and concurrent sentences on counts 3 and 4. But apart from that there will be partial accumulation to reflect the separate criminality involved in the separate aspects of what the offender did over those many years.

1. I have decided to impose fixed terms on the Commonwealth matters because of the sentence that I will impose upon the State matter. As I mentioned earlier there will be an adjustment as far as the State matter is concerned in the offender's favour as far as the ratio between non parole period and head sentence is concerned. The overall ratio is more consistent with what use to happen before various bits of legislation suggested standard ratios between non parole period and head sentence.

1. On count 1 on the indictment the offender is sentenced to imprisonment. I set a fixed term of imprisonment of twelve months to date from 13 December 2012, that is today. On count 2 on the indictment I set a fixed term of imprisonment of eighteen months to date from 13 December 2012. On count 3 on the indictment I set a fixed term of imprisonment of twelve months to date from 13 June 2013, that is six months hence. On count 4 on the indictment I set a fixed term of imprisonment of eighteen months to date from 13 June 2013. On count 5 on the indictment I set a non parole period of twelve months to date from 13 December 2013 and a head sentence of three and a half years. That means the offender will be eligible to be released to parole on 12 December 2014. The overall sentence I have imposed consists of a non parole period of two years and period of eligibility for parole of two and a half years, making a total overall sentence of four and a half years.

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Amendments

16 February 2016 - Paragraph 20 - Sentence date on count 5 amended to reflect his Honour's remarks

Decision last updated: 16 February 2016