R v PG

[2020] NSWDC 144

District Court

New South Wales

Medium Neutral Citation:	R v PG [2020] NSWDC 144
Hearing dates:	17 April 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [74]
Catchwords:	CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Child sex offences — Sexually Touch child <10
Legislation Cited:	Crimes Act 1900 (NSW) Commonwealth Criminal Code Act 1995 (Cth) Commonwealth Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	AH v R [2015] NSWCCA 51 Minehan v R [2010] NSWCCA 140 Turner v R [2017] NSWCCA Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Muldrock v The Queen [2011] HCA 39 Xiao v R [2018] NSWCCA 4 R v PGM [2008] 172 Taylor v R [2020] NSWCCA 46 R v Gavel [2014] NSWCCA 56 R v Porte [2015] NSWCCA 174 R v Holder [1983] 3 NSWLR 245 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Category:	Sentence
Parties:	Regina (Crown) PG (Accused)
Representation:	Solicitors: Ms Collins Solicitor for the DPP Mr Behan Solicitor for the Accused
File Number(s):	2019/00033784

Contents

Judgment

Introduction

Charges and maximum penalties and standard non parole periods

The Facts and objective seriousness of each offence

Sequence 1

Form 1 matters

Sequence 3 and 8

Sequence 3

Sequence 5

Sequence 8

Sequence 7 and Commonwealth Crimes Act.

Form 1 procedure

Standard non-parole period

Section 21A

Subjective case

Psychological report

Guilty plea

Good character

Likelihood of reoffending

Remorse and contrition

Testimonial

Victim impact statement

Sentencing assessment report

Comparable cases

Totality

Special circumstances

Sentencing considerations

Indicative sentences

Orders

Judgment

Introduction

1. The offender appears for sentence in respect of 4 State offences and one Commonwealth offence. Additionally in relation to the sexual touching charge (sequence 1) there are 2 further offences to be dealt with on a Form 1. The remaining 4 offences are all in relation to child abuse material and in relation to those 4 offences two involved the victim of the sexual touching, one was using a carriage service to access child abuse material and the last was to possess child abuse material. The 2 matters on the form 1 were respectively sequence 6 and sequence 2, to produce and to possess child abuse material and respectively involving the victim of the sexual touching and a second victim apparently under the age of 10. Each of these charges has a lengthy maximum penalty.

Charges and maximum penalties and standard non parole periods

2. The charges and relevant penalties are:

1. S66DA(a), sexual touching: 16 years and a standard non parole period of 8 years;

2. S91H(2) (2 counts), possess child abuse material: 10 years and no standard non parole period. The two form 1 matters are charges under this same section, and relate to the sexual touching charge.

3. S91G(1)(a), use child to make child abuse material: 14 years and 6 year standard non parole period;

4. S474.22 of Criminal Code (Cth): 15 years and no standard non parole period.

3. I have taken these legislative guideposts into account in determining the appropriate sentences.

The Facts and objective seriousness of each offence

4. The offender was born on 21 November 1951. The offending occurred between 24 November 2018 and 31 January 2019 so the offender was approximately 67 at the time of the offending.The victim was the 8-year-old daughter of a friend of the offender. The offending occurred predominantly at a Seventh-day Adventists church where the victim’s father had invited the offender to attend.

5. This factor raised a debate concerning the extent to which the offending was made more serious by reason of an abuse of a position of trust or authority in relation to the victim (section 21A(2)(k)) and sub section (l) where the victim is vulnerable because of their age. My view is that there is little work for subsection (l) to do in circumstances where the element of the s66DA offence is the child to be under 10. It is more relevant to the other offending involving the victim as that element is not present, and so it adds to the seriousness of the offence than if, say the child was 12. It is a matter I take into account as adding to the seriousness of the offending.

6. As to the authority/trust argument, in my view the offending is made more serious by the offender being a friend of the victim’s father, having been invited into the church by the victim’s father, and then in a place of worship where a child would be unsuspecting to an even greater extent than her young age may otherwise dictate, to be subject to these acts is clearly a breach of trust. I have taken this into account. I do not consider the offender was relevantly in a position of authority.

7. In a similar vein there was argument concerning the application of section 21A(5A). The question here is whether the good character of the offender assisted in the commission of the offending.

8. In support of his argument Mr Behan for the offender relied upon AH v R [2015] NSWCCA 51. In that case the offender was the de facto partner of the mother of the victim. It was not a case of the standing in the community of the offender that had aided in enabling the offending. The argument here for the offender is that for reasons not detailed in any way in the facts the offender was a friend of the victim’s father and invited to the church. The reasons for the friendship and the invitation to the church are not known. In my view they could plainly be reasons unassociated with the character of the offender and indeed in a church situation it may be a person’s lack of good character that forms part of the motivation for the invitation. It is not necessary to take the hypothesising that far. It suffices to say that there is nothing on the facts that supports the view that the offending of the offender was assisted by his good character. I accept the submission of the offender in this regard.

Sequence 1

9. Sequence 1 is a charge of sexual touching a child aged under 10 under section 66 DA of the crimes act. The maximum penalty is 16 years and there is a standard non-parole period of 8 years. On 26 January 2019 the offender, a friend of the victim’s father, was attending a religious gathering. The offender traced his left hand on the victims groin over her clothes and was digging, pressing and caressing the victim’s vagina on the outside of her clothes. The offender was seen to have his fingers deep in between the victim’s legs directly over her vagina. This is described as moving his fingers in a repetitive slow and deliberate sexual caressing motion in contact with the child’s genitals through her clothing and continued for about 5 seconds until the victim pulled away a little bit and the offender stopped. This was done opposite another member of the congregation who very soon after this disclosed it happening.

10. The offender in fact had placed his hand over the victim’s vagina over her clothes in an inappropriate manner shortly before what I just described. On this first occasion a Bible was used in an attempt to shield what was happening.

11. A feature of this offending is its brazenness. The description is also one of quite rough handling of the child victim. The first sexual touching which forms part of the overall facts seems to have been bordering on fleeting and it is not clear from material whether that is in fact part of the offence charged. The second sexual touching is quite abrupt and direct. The fact that it is not skin on skin contact and was brief, being described as 5 seconds, means in my view its objective seriousness must be assessed as below the mid range but the nature of it and location in my view place it high in the low range.

Form 1 matters

12. In determining the sentence for this offence it is necessary to take into account sequence 6 and sequence 2 which are respectively produce child abuse material and possess child abuse material. Each such offence has a maximum penalty of 10 years with no standard non-parole period. Sequence 6 is a close-up image of the victim at the beach focusing on her buttocks while she is bending over. It is not stated as to whether she is wearing clothing or swimming bathers and I would have to therefore assess it on the basis that clothes were worn, as to take something into account adverse to the offender requires it to be demonstrated beyond reasonable doubt. I would assess this as in the low range of objective seriousness. The second matter of possess child abuse material relates to 10 naked images of a second victim (the offender’s niece) apparently under the age of 10 on the offender’s phone some of which expose the child’s genitals. Some of these photos were taken in a normal family holiday context which were then provided to the offender on a USB stick. The victim’s mother, the daughter of the offender says there would be no need for the accused to have the images on his phone and their presence is entirely inappropriate. There was one image she considered inappropriate which she had not given to her father. On this count I find it difficult to see why it is appropriate to have a photograph on a USB stick obviously for keeping and viewing but not appropriate to have it on a phone where many people store photographs, yet it is also said these photos are of genitals. If allowance is made for the fact that, despite the apparent intimate nature of some of the photos, they were provided “innocently” by way of a USB stick, there is left only one photograph it is said to be inappropriate and not provided by the child’s mother. Given the agreed facts are as to the 10 images which apparently include the one not given by the daughter the matter needs to be assessed considering all of those images and I do so. My view is that it is in the low range. Bearing in mind the Form 1 procedure set out below I will take these matters into account when determining the sentence for the sexual touching charge. On the basis of these facts there would not be much greater penalty imposed in respect of the sexual touching.

Sequence 3 and 8

13. Sequences 3 and 8, like the two Form 1 offences are charges under section 91H (2) of the Crimes Act. That section provides as follows:

14. A person who produces, disseminates or possesses child abuse material is guilty of an offence.

15. “Child abuse material” is defined by section 91FB and includes in broad terms, material that reasonable people would regard as offensive and that depicts a child as a victim of abuse, engaged in sexual activity or the private parts of a person who appears to be a child. The section uses the words “implied to be” which captures material in animated form.

16. The maximum penalty for a section 91H (2) offence is 10 years imprisonment and there is no standard non-parole period.

17. Minehan v R [2010] NSWCCA 140 gives guidance to assessing offences of this type. Factors considered relevant to assess their seriousness include the age of the children, whether the images are of real children, the acts being depicted in the images and the amount of the material. In Minehan there were over 10,000 images.

Sequence 3

18. In respect of sequence 3 the charge is possessing child abuse material. After the offender was arrested he agreed to his mobile phone being examined which revealed images of the victim of the sexual touching apparently taken in a disabled toilet. Four of these images were classified as child abuse material and were created on 29 December 2018. A further 2 such images were created on 12 January 2019 so 2 weeks later. On both occasions the contact was with the victim at the church. The offender denies being aware of these photos and suggested the victim took the photos of her own accord. These photographs are not in evidence and there is nothing in the agreed facts that suggest that the offender later admitted to taking the photographs. In those circumstances this offending must be considered in the low range.

Sequence 5

19. Sequence 5 is a charge under section 91G(1)(a) of using a child under the age of 14 years for the production of child abuse material. The maximum penalty is 14 years imprisonment and there is a 6 year standard non-parole period. The facts here are of the offender prevailing upon the victim to take photographs of herself during church using the disabled toilet, telling her they were for his niece and further saying that if she did not do what he asked something would happen. The victim said she knew what sort of photos to take because the offender had shown her on Google. The offender gave her some gum afterwards. Again what these photos are is not disclosed on the agreed facts but the conduct is reprehensible. There is the reward of gum as well as the threat of something to happen and the obvious lie that it was for the niece. Based on the agreed facts however I would classify this also in the low range.

20. In respect of this matter and also sequence 6 there was an argument in submissions as to what weight I should give to the fact that there is no suggestion that this material created or produced was disseminated by the offender. The argument for the offender was that I should consider the matter less serious. I was referred to Turner v R [2017] NSWCCA where Basten JA said that production for dissemination will involve conduct of greater seriousness than production solely for personal possession. The argument for the Crown was that the absence of the material being either intended for or actually disseminated meant that the matter was not more serious but did not amount to a mitigating feature. In my view the submission for the Crown must be correct. The offence is made up by the creation or production; the fact that there is not more does not make it less serious it simply means it is not more serious. I have taken these arguments into account in my assessment.

Sequence 8

21. Sequence 8 is the last of the state offences and is a further section 91H(2) offence of possessing child abuse material and so has a maximum sentence of 10 years with no standard non-parole period. The search warrant was executed on the offender’s home and a number of sexualised images of children were located. The images were discovered on CDs as well as on a laptop computer. The CDs contained cartoon images as well as naked human females under the age of 16. One CD had more than 20 pictures of naked children posing sexually. Another CD had more cartoon child abuse material as well as children involved in sexual activity. Another CD had more than 20 images of pose photographs of naked human children in sexual poses. Another CD had 200 cartoon child abuse images and yet another CD had more than 200 such images.

22. On the laptop the images were mostly in fact almost entirely cartoon drawings but included showing infants and children engaged in sexual intercourse, drawings of babies being vaginally and anally penetrated by adults, and children and babies engaged in group sex. These images exceeded 10,000. In addition there were thumbnail images of the victims naked genitals.

23. I accept the submission for the offender that the objective seriousness would be greater if there images were not so predominantly cartoons. That said, there is with this charge some description of what the images show and they depict child abuse material of what I consider to be a very serious kind particularly those of babies being vaginally and anally penetrated by adults which made up some of the 115 images in one particular folder. I would assess this as just below the mid range.

Sequence 7 and Commonwealth Crimes Act.

24. Sequences 7 is a charge under the Commonwealth criminal code act section 474.22. By that section it is an offence to access child abuse material by using a carriage service which includes a telephone or Internet service. In this case a review of the offender’s mobile phone revealed a history of the offender accessing sexualised literature involving children and sexualised images involving children. There was again content in the form of cartoons but also literature containing descriptions and stories of mothers engaging in sexual relationships with their own daughters where the children were about 12 years of age. The offender said he did this not for sexual purposes but out of interest. Whilst that is an agreed fact or a statement found in the agreed facts in all the circumstances of this case that does shows a lack of acceptance of wrongdoing by the offender, or at least a lack of insight into his offending. Again however there is no detail of what this imagery is and for that reason I would assess it in the low range.

25. Being a Commonwealth offence I need to consider s16A of the Commonwealth Crimes Act. I note I have considered the nature and circumstances of the offence as required by subs (2)(a), and the personal matters of the offender are considered below; subs (2)(d) together with other subjective features referred to in the section. I note also the considerations of punishment and both general and specific deterrence.

26. The Crown made a submission as to the offending, including this offence, being a course of conduct, and I have addressed this above. The Crown made a submission that it was necessary to deal with the sentence for the Commonwealth matter separately with which I agree and with the result that there will be a sentence for the Commonwealth matter followed by an aggregate sentence for the state matters.

Form 1 procedure

27. In relation to the s66DA offence there are two matters to be dealt with by way of the Form 1 procedure. They are the two s91H matters considered above. In regards to the Form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Standard non-parole period

28. In respect of the state offences under section 66DA and section 91G there are standard non-parole periods of 8 years and 6 years respectively. By section 54A(2) the standard non-parole period represents the non-parole period for an offence that taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness.

29. I have assessed both sequence 1 and sequence 5, being the offences just mentioned, as being in the low range so that by the above provision this standard non-parole period is not applicable. Nevertheless in line with the High Court decision in Muldrock I consider it necessary to take into account the standard non-parole period as a guidepost for offending that is in the mid range as being a factor indicative of the seriousness with which the legislation views this offending

30. At [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences”. The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.

28. In complying with the obligations of Division 1A as I am attempting to do here there will be noted the fact of the early guilty plea. The reasons for a variance from the standard non-parole period will include that fact as well as the obvious fact that the period does not apply to the offending as assessed by me. There is also the other subjective factors that may be relevant as discussed below.

Section 21A

32. The aggravating factors the subject of argument on behalf of the Crown and the offender were predominantly sub sections (2) (k) and (l), discussed above.

33. Reference was also made to subsection (n), that the offence was part of a planned or organised criminal activity. I place little weight on this feature given the relatively short period of time in which the offending occurred, the fact that on the evidence it seems to have been the first time it had occurred involving the offender, and that the offending although occurring on numerous occasions was at least in some instances plainly opportunistic such as the sexual touching occurring in circumstances of a church congregation.

34. As to mitigating factors under subsection (3) I take into account below the factors of good character, the lack of a criminal record, the likelihood of reoffending and the prospects of rehabilitation.

Subjective case

Psychological report

35. The background of the offender was set out in a psychological report of Patrick Sheehan dated 17 December 2019. He is of French origin and his family circumstances were positive. He reported an occasion of non-penetrative sexual abuse upon him at the age of 10 by an older male and denied any other trauma in his early development. He came to Australia as a 19-year-old. He worked throughout his adult life in various occupations and retired 4 years ago and reports financial hardship since that time. He described himself as a bit of a loner and since the offending has had no social supports.

36. He has been married twice with one daughter to the first marriage and two to the second marriage. The younger daughters continue to support him. The second marriage ended in circumstances of some stress.

37. His interest in child pornography started about 2008 with the interest in cartoon images developing from his long interest in comic books. Reluctantly he acknowledged some interest in female children sexually. The psychologist views his insight into his sexual history as being undeveloped. There is no significant substance use issues. He has an unremarkable health history. His mental health has been stable apart from the period of the breakdown of his secondmarriage. About this time and leading up to the offending he would appear to have been suffering from depression.

38. The view expressed by the psychologist is that the offender suffers a form of relapsing adjustment disorder and also would technically meet the criteria for paedophilic disorder.

39. In terms of the actual offending the offender protested that he had no idea why he did it and said he was awfully sorry and so remorseful. He gave some reasons for the offending (not the sexual touching offence) such as not knowing it was a crime and that he did not think that it would be harmful as no actual victim was involved. He says he will never do it again.

40. The conclusion of the psychologist is to consider the offender in the low or below-average risk category for sexual reoffending.

Guilty plea

41. I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

42. The decision of a five judge bench of the Court of appeal, dealing with a Commonwealth offence in the case of Xiao v R [2018] NSWCCA 4, held that that the sentencing judge had erred in declining to give a discount in sentence for the “utilitarian value” of the applicant’s guilty plea. It held that, on its proper interpretation, section 16A(2)(g) of the Crimes Act 1914 (Cth) requires a sentencing judge to take into account the “utilitarian value” of a guilty plea. In doing so, the Court overruled one of its earlier decisions which held that the “utilitarian value” of a guilty plea could not be taken into account in sentencing for federal offences.

Good character

43. I have referred to section 21A(5A) above. I consider it relevant to take into account the good character of the offender. Furthermore this is not a case like R v PGM [2008] 172 where less weight is given to good character because the length of the course of offending diminishes a finding of good character for the obvious reason that the lack of good character in performing the offending has extended for some time. In that case the offending was over a period of 7 months and our present case it is 2 months.

Likelihood of reoffending

44. I accept the opinion of the psychologist that the likelihood of reoffending is low or below-average, albeit not without some hesitation, in light of the ambiguous comments made by the offender set out in the sentencing assessment report, which could colour the assessment of insight and acceptance of responsibility.

Remorse and contrition

45. The offender has made statements of remorse to the psychologist which are unchallenged and which appear to me to be genuine albeit there is some lack of insight. Additionally the fact of the early guilty plea assists the offender in demonstrating his contrition.

Testimonial

46. A testimonial was provided by his youngest daughter. She speaks very fondly of her father and the support that he has given her. This testimonial is certainly consistent with a man of good character and no criminal record and who has dutifully cared for his daughter.

Victim impact statement

47. A victim impact statement formed part of exhibit A. The said she was scared annoyed and angry by the things the offender made her do. She said that the offender pretended to be her dad’s friend so he could do sexual things to her. Her short statement reflects the helplessness that would be expected of a young person being subjected to this abuse. This young girl states that she thought it was her fault and of course nothing could be further from the truth. She says she does not trust many people now and is scared the offender might hurt her. She thinks about it all the time. In accordance with section 30E of the CSPA I have considered this statement. It reflects the harm caused by this style of offending.

Sentencing assessment report

48. This report states there was conflicting information as to the offender’s illicit drug use, something not referred to in the psychologist report. There must be some doubt about this and it is difficult to take it into account one way or the other. The report suggests that there was some contradictory statements as to the offender accepting and denying committing the offending which suggests a lack of insight and perhaps the lack of taking responsibility for his actions. Consistent with this the report notes that the offender minimised his offending though he does express remorse and says he should not have done it, though he added “is that a good enough answer for you”. It is difficult to know just how to interpret that answer; at first blush it suggests a lack of being genuine but it could also be despair and I find I should not take it into account adverse to him. This report gave a higher risk assessment of medium than what had been stated in the psychologist report which in my view is well based given the number of times of either denying or not acknowledging his wrongdoing recorded in this report.

Comparable cases

49. In Taylor v R [2020] NSWCCA 46 the Court of Criminal Appeal found error with a sentencing judge’s reasons but not with the ultimate sentence arrived at. The difficulty with comparable cases as is well recognised is that no case is the same as another with each case having its own particular characteristics. With that reservation this case does provide some assistance. For an indecent assault charge similar to sequence 1 in the present case there was touching of breasts over the clothing and an indicative sentence of 2 years with a non-parole period of 16 months was suggested. There were however no section 91H offences.

50. In R v Gavel [2014] NSWCCA 56 considered a number of offences including under section 91H. At [92] the court noted the increase in the maximum penalty in 2009 from 5 years to 10 years imprisonment and noted the sentencing council’s statement that the increase would serve to emphasise the need for denunciation and general deterrence. In Gavel an indicative sentence of 4 years with 3 years non-parole period was stated. The appeal judgement does not give great detail as to the types of images but indicates there were a substantial number of them with some involving animals. Furthermore there were 2 further 91H matters taken into account on a Form 1 the details of which are not set out.

51. R v Porte [2015] NSWCCA 174 considered offences of accessing child pornography contrary to section 474.19 of the Commonwealth criminal code and of possessing child abuse material contrary to section 91H of the crimes act. I note the Commonwealth offence is similar in terms to the present section 474.22 charge.

52. In relation to the possession charge there were a total of more than 34,000 images. They fell into each of the 6 categories on the CETS scale of objective seriousness with the vast majority of them being in category 1, the lower or lowest category. The facts in relation to the access charge were that some 48 child pornography videos had been accessed and some 17 images.

53. The court noted that offences for child pornography warrant substantial penalties with general deterrence and denunciation being paramount considerations. The Court went on to observe that possession of child pornography material creates a market for the continued corruption and exploitation of children; at [67]. The Court also noted that courts have stressed that that possession of child pornography is not a victimless crime: at [68].

54. A helpful table of sentencing decisions concerning possession and accessing charges is found at [152]. What is notable about those cases is that they each contain a great many more images and as far as is disclosed would appear to be of a more serious degree of image. I have borne those comments and sentences in mind in seeking to impose the appropriate sentence in this case.

Totality

55. In R v Holder [1983] 3 NSWLR 245 the approach was to evaluate in a broad sense the overall criminality involved in all of the offending and then determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

56. In this case all of the offending occurred within approximately 2 months.

57. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

58. “[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

59. In the present case the offending is on one view a series of discrete offences, but they also largely relate to the one victim and if not relate to the separate possess and access charges which reveals a common nature or characteristic as to the offending.

Special circumstances

60. The Crown accepted that being the offender’s first time in custody that there were grounds for special circumstances and I so find.

Sentencing considerations

61. There is no argument but that there is no appropriate sentence other than a full-time custodial sentence; section 5 of the CSPA and s17A of the Commonwealth Crimes Act.

62. Section 3A sets out the purposes of sentencing. They are in short:

1. to ensure the offender is adequately punished;

2. both general and specific deterrence;

3. to protect the community;

4. to promote rehabilitation of the offender;

5. to make the offender accountable for his actions;

6. to denounce the conduct;

7. to recognise the harm done to the victim and community.

63. The Commonwealth legislation does not contain an express statutory statement of the purposes of sentencing in the same manner as section 3A. I have nevertheless adopted the same principles which can be found in the common law.

64. In relation to the child abuse material offences as noted above the purposes of sentencing which are most applicable are those of denunciation and general deterrence. In this case the subjective case of the offender was not of great persuasion however given there is a conceded justification for special circumstances due to it being the first time in custody for the offender that will allow him an additional period of supervision which may aid in his rehabilitation and minimising the prospects of reoffending.

65. In this case each of the offenses is serious as indicated by the maximum sentences and where relevant, the statutory non parole period. So much goes without saying. Yet objectively the offences themselves are below the mid range of objective seriousness. That does not mean they are trivial; the sexual touching seems quite aggressive, and as to the images, albeit predominantly cartoons, they are clearly abusive and numbered more than 10,000. It is this type of behaviour that needs to be deterred and denounced, and there is also the need for punishment and specific deterrence given the questionable insight of the offender.

66. As indicated earlier in these reasons I propose setting a sentence for the Commonwealth offence, and to then proceed by way of an aggregate sentence in respect of the state offences.

Indicative sentences

67. It remains to set a sentence for the Commonwealth offence and then to set out indicative sentences for the state offending and where appropriate what the non-parole period would have been if the charge is 1 with a standard non-parole period.

68. In respect of all of the offences the sentence stated takes into account the 25% discount for the guilty plea.

69. In respect of the Commonwealth offence which is sequences 7 there will be a 12 month sentence with no non-parole period. I do not set a non-parole period as I consider that suggestion made by the Crown to be appropriate when there is to be following that 12 month term the state offending sentences which will carry a non-parole period which will in turn take into account the fact of the 12 month sentence of the Commonwealth offence having predated that sentence. I note that in the scheme of things this is a low sentence however where the facts do not reveal the extent of the accessing of the material and the fact that they are largely if not exclusively of cartoons was a significant factor in coming to this conclusion. Whilst this conduct is to be condemned for promoting abuse, it does not create victims in its production.

70. I note that the offender has been in custody since 31 January 2019 and the term of this sentence will therefore be to date from 31 January 2019 and expiring on 30 January 2020.

71. In relation to the sexual touching offence there will be a indicative sentence of 2 ½ years imprisonment. This takes into account the 2 Form 1 offences. As there is a standard non-parole period I indicate that the non-parole period would have been 20 months. This is at variance with the standard non-parole period because the offence is in the low range of objective seriousness and there is also the 25% discount for a guilty plea to take into account.

72. In respect of sequence 3 possessing child abuse material I note there were 6 images. On the facts these were not images that the offender had created but were taken by the victim on, it is suggested without contradiction, her own accord. It seems obvious that that would have occurred either directly or indirectly at the encouragement of the offender however the case was not presented in that way so I do not make that finding adverse to the offender. The sentence will also be impacted by the fact the images are not described, beyond being classified as child abuse material. There will be a 6 month sentence.

73. In respect of the s91G charge, sequence 5, as noted above the matter is difficult to assess due to the brief description of it on the facts. The number of photos is not known, and seems likely not to be great, and there is one victim. There is of course the need for general deterrence and denunciation. For these reasons there will be a 9 month indicative sentence. Being a standard non-parole period matter I indicate the non-parole period would have been 6 months for the same reasons as in relation to the sexual touching charge.

74. In relation to the possess child abuse material charge (sequence 8) I note on the one hand the significant number namely more than 10,000 images but also that the vast majority of them were cartoons. This does not prevent the promotion of an industry founded on the idea of children being abused. Whilst I found the offending to be in the low range of objective seriousness that was a fine judgement. Bearing in mind all of the above considerations there will be an indicative sentence of 2 years.

75. Bearing in mind the one-year imprisonment in respect of the Commonwealth offending and bearing in mind also the principles of totality I propose that there be an aggregate sentence of 4 years and a non-parole period of 2 years. These sentences will commence from 31 January 2020. The structure of this sentence will therefore mean there will be a minimum period of 3 years imprisonment and an overall effective head sentence of 5 years reflecting the acceptance of the argument for special circumstances, an argument which is added to by the lack of a non parole period for the Commonwealth offence.

Orders

76. I make the following orders, having taken into account the form 1 matters in respect of the s66DA charge and the 25% discount for a plea of guilty for all matters, and based on the foregoing reasoning:

1. In respect of all the charges set out in the Crown sentence summary the offender is convicted.

2. In respect of the Commonwealth offence I impose a one-year term of imprisonment to date from 31 January 2019 and expiring on 30 January 2020.

3. In respect of the state offences I note I have set out the indicative sentences above and I impose an aggregate sentence of 4 years to date from 31 January 2020 and expiring on 30 January 2024. There will be a non-parole period of 2 years to date from 31 January 2020 expiring on 30 January 2022.

4. The earliest date the offender is eligible for release is 30 January 2022.

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Decision last updated: 27 April 2020