R v Pollard

[2023] NSWDC 36

District Court

New South Wales

Medium Neutral Citation:

R v Pollard [2023] NSWDC 36

Hearing dates:

2 February 2023

Date of orders:

24 February 2023

Decision date:

24 February 2023

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial order. For orders see [76]

Catchwords:

CRIME – sentence - possess/control child abuse material – use carriage service to transmit/publish/promote child abuse material – fail to comply with reporting obligations.

Legislation Cited:

Child Protection (Offender’s Registration) Act 2000 (NSW)

Criminal Code 1995 (Cth)

Crimes Act 1914 (Cth)

Category:

Sentence

Parties:

Graham Edward Pollard (Offender)
Commonwealth Director of Public Prosecutions (Crown)

Representation:

Counsel:
S. Dayeian (Offender)

Solicitors:
R. Ogden (Crown)

File Number(s):

2021/158473

Remarks on sentence

1. The offender is to be sentenced in respect of the following two offences to which he has pleaded guilty:-

1. Count 1 - an offence pursuant to s474.22(1) of the Criminal Code 1995 (Cth) (“the Criminal Code”) that he on 6 May 2020 at Malabar in the State of NSW transmitted material, using a carriage service, the material being child abuse material.

The maximum penalty for this offence is 15 years imprisonment.

2. Count 2 - an offence pursuant to s474.22A(1) of the Criminal Code that he on 7 May 2020 at Malabar in the state of NSW possessed or controlled material, being child abuse material, in the form of data held in a computer or contained in a data storage device and he used a carriage service to obtain or access the material.

The maximum penalty for this offence is 15 years imprisonment.

The sentence hearing

2. The sentence hearing took place on 2 February 2023. The Crown sentence summary became Exhibit A. It contained an agreed statement of facts which may be summarised as follows.

3. The offender had been a registerable person on the Child Protection Register since approximately 1 March 2010. On 7 May 2020 police attended the offender’s home at Malabar for the purpose of conducting a home inspection pursuant to s16C of the Child Protection (Offender’s Registration) Act 2000 (NSW) (“CPORA”).

4. Whilst inspecting the offender’s mobile phone police noted a secure folder which was locked and password protected. The offender stated that he did not use the folder, that it was part of the phone’s operating system and that he did not know how to access it.

5. Police returned to the station to conduct further inquiries about a suspected breach of the CPORA, in relation to other material identified on the mobile phone. They then returned to the premises and arrested the offender as a result of that breach and seized the mobile phone.

6. A Cellebrite examination subsequently conducted on the offender’s phone identified the presence of child abuse material within the secure folder. The police located the application Wickr, a messaging service which provides for end-to-end encrypted and content-expiring messages. The offender was using the username “grz56”, and on 6 May 2020 the offender had sent a Wickr user “[email protected]” two video files that constituted child abuse material.

7. The first video file depicted a real prepubescent female child with an adult male engaged in sexual intercourse with her. The child was using her thumb as a pacifier during the act of sexual intercourse. The length of the video was 2 minutes and 23 seconds. The video was classified as Category 1 in accordance with the Interpol Baseline categorisation system.

8. The second video file also depicted a real prepubescent female child, with an adult male engaged in sexual intercourse with her. The child’s face is clearly depicted in the video. The length of the video is 51 seconds and it was classified as Category 1 as well. The videos which were sent were also located in the secure folder.

9. That is the conduct that constituted Count 1.

10. Count 2 arose from the content of the secure folder. It contained 20,850 images and 1,637 video files. Police identified child abuse material amongst the images and video files within the secure folder. Of the 20,850 images, 1,429 were sampled of which 307 were classified as Category 1 images whilst 203 were classified as Category 2 images.

11. Police also sampled 177 of the 1,637 video files from within the secure folder. 146 videos were classified as Category 1 whilst 30 videos were classified as Category 2. The two videos that are the subject of Count 1 were included in the dip sample.

12. The agreed facts listed the file names of the material identified as child abuse material in the dip sample and included names which were clearly reflective of child abuse material.

13. On 2 June 2021 police executed a search warrant at the offender’s home. A number of electronic devices belonging to the offender were seized and examined but did not disclose offending content.

14. Exhibit A also included the criminal antecedents of the offender who was born on 1 October 1962 and is now 60 years of age. That history is lamentable, commencing in the Children’s Court and containing numerous offences of dishonesty, violence, damage to property, assault and resist police, firearms, domestic violence and breach of parole offences. In 2004 the offender was convicted of an aggravated indecent assault for which he was sentenced to 2 years imprisonment with a non-parole period of 18 months commencing on 14 December 2004. In 2008 the offender was convicted of indecent assault on a victim under the age of 10 years and sentenced to imprisonment for 3 years and 4 months with a non-parole period of 2 years and 6 months commencing on 18 January 2007. He was subsequently charged with a number of offences of failing to comply with his reporting obligations.

15. Exhibit A also included the offender’s custodial records and a Sentencing Assessment Report (“SAR”) under the hand of Ms H Tibos dated 30 January 2023. In that report she noted that he was convicted of the previous child sex offences in 2004 and 2006 and noted “despite the seriousness of the current offences they appear to be a de-escalation of his offending. His previous offending involved contact with children.”

16. Under the heading “Attitudes”, the author stated that the offender “appeared to have a lack of regard for the severity of his behaviour, instead justifying his actions as a way of managing his stress levels that were partly related to his partner’s illness and hospitalisation.” He did however throughout interviews express that he had developed an acceptance towards viewing this material.

17. The author also opined that the offender expressed insight into the impact of his offending by way of speaking about the victimisation of the children featured in the child abuse material. He expressed his willingness to undertake intervention with particular interest in addressing his sex offending behaviour and establishing healthy coping mechanisms through psychological intervention.

18. It was noted that during previous supervision in 2014 the offender had completed the sex offending treatment offered to him. Overall his response to supervision had been positive. The offender was assessed as a medium risk of reoffending and at an above-average risk of sexual recidivism.

19. Exhibit A also included the agreed facts on sentence for his prior offending in 2003 for which he was sentenced in 2004, the remarks on sentence of Judge Sides at Campbelltown District Court on 16 December 2004, the Crown facts in respect of the offending that took place in 2006 and the orders imposed by Garling DCJ on 17 June 2008 in respect of that matter.

20. Exhibit B was a USB which contained a sample of the child abuse material comprising images and videos. The sample was viewed in closed court in the presence of Crown and Counsel for the offender following which Exhibit B was returned to the Crown.

The offender’s evidence

21. The offender gave evidence that he had been honest in his interview with Ms Tibos. He gave further evidence that he intended to rely on a homeless service to find accommodation upon his release. He had lost his Department of Housing residence at Malabar six months after being in custody.

22. The offender gave evidence that he had continuing support from his partner, his sister and his 18 year old son. His partner was presently in Mildura but intended to return to Sydney and upon his release he will be living with her. She was also on a disability pension.

23. His sister lived remotely, some 200kms from Bourke NSW and his son lived in metropolitan Sydney. He had received letters from his son and phone contact from his partner ensuring they would continue their support.

24. The offender gave evidence that his partner’s illness at the time of the offending involved a brain seizure which led to her being hospitalised and in a coma for 14 days. He gave evidence that that increased his stress levels and when asked why he did not seek treatment he gave evidence that he did not know how to. To avoid future reoffending he gave evidence that he would reach out to a counsellor and the Probation Parole Service. The offender gave evidence of abuse he endured as a child at the Daruk Boys Home from a staff member. It consisted of both physical and sexual trauma for a period of 12 months but it was never reported to police. He had not received counselling for the trauma and the memories had come back to him in the last 6 months. He was awaiting advice from a solicitor about a claim for compensation and gave evidence that he will obtain counselling.

25. The offender gave further evidence that he could only imagine how he felt about the damage caused to “everybody”, and the children subject to the child abuse material in particular. When asked how he would avoid reoffending if he had access to a mobile phone, he gave evidence that he would not have access to any mobile phone or computer following his release.

26. In cross-examination the offender gave evidence that at the time of the offending he did not have the support of his sister and son. He gave further evidence that following his sentencing in 2004 and 2007 he had rehabilitation assistance by way of the Cubit Program and counselling. He was asked why he did not utilise the skills he had learnt and he gave evidence that it was because of the stress levels he suffered. He stated, “I wasn’t thinking about that. More about my partner’s health.” He conceded that he will have stressors in his life upon his release from custody but said that he wanted to cease offending. He did not obtain help from the Probation and Parole Service because he was no longer entitled to it at the time of the offending. He said he did not look for assistance because he was too stressed and he offended as a way of coping. It was put to him that he could have watched TV instead, he answered, “Point taken”.

27. When asked why he did not seek assistance from his GP he gave evidence that he only saw his GP for medical problems. It was put to the offender that he was using stress as an excuse for his conduct. He denied that it was an excuse saying that he realised that it was wrong. When asked whether he paused to think whether it was wrong at the time he said, “I was not thinking of much. I don’t know what I was thinking.”

28. In respect of Count 1, the offence of transmit child abuse material the offender admitted that he had sent the video to one person and accepted that he did it.

The Crown’s submissions

29. The Crown relied on a detailed written outline of submissions which set out well established sentencing principles for offending involving child abuse material which are not controversial. General deterrence is the primary sentencing principle and there is a paramount public interest in promoting the protection of children given such offending is not a victimless crime.

30. The Crown submitted that the following are relevant factors in assessing the objective seriousness of child abuse material:-

1. The nature and content of the material, the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm occasioned to the child or children involved in the material. The essence of moral culpability is that the production of child pornography requires the exploitation of children who are unable to protect themselves; generally it cannot matter in the slightest whether an image is a still image or a moving one

2. The number of items or images possessed;

3. Whether the material was for the purpose of sale or further distribution, and if so the number of persons to whom the material was transmitted;

4. Whether the offender profited from the offence;

5. Whether actual children were used in the creation of the material and if so, the number of children depicted and thereby victimised; and

6. The length of time over which the offending occurred.

31. The Crown submitted the following additional factors are also relevant:-

1. The proximity of the offender’s activities to those responsible for bringing the material into existence;

2. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating, or transmitting the material;

3. Whether the offender acted alone or in a collaborative network of like‐minded persons;

4. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender;

5. Any risk of the material being seen or acquired by vulnerable persons, particularly children; and

6. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

32. The Crown noted that any sentence must be of a severity appropriate in all of the circumstances of the offence pursuant to s16A(1) of the Crimes Act.

33. The Crown made the following submissions in respect of the factors to be taken into account pursuant to s16A(2):-

Nature and circumstances of the offending: s16A(2)(a)

34. The Crown relied upon the agreed statement of facts and in respect of Count 1 submitted that the offence fell just below the midrange of objective seriousness having regard to the following matters:-

1. The videos depicted real victims who appear to be aged 4 to 7 years;

2. The videos were highly depraved, depicting vaginal penetration of the prepubescent victims;

3. The offender transmitted the video files to a like minded user, encouraging their sexual interest in children; and

4. The offender used a sophisticated method to transmit the child abuse material, using end-to‐end encryption and content‐expiring messages. This demonstrates deception and concealment on the offender’s behalf. Had the Police not been able to seize the offender’s phone just one day after the videos were transmitted, the messages would not have been detected or preserved.

35. In respect of Count 2 the Crown submitted that the offending fell at the mid to high range of objective seriousness for offences of its type having regard to the following matters:-

1. Of the 20,850 images, 1,429 were ‘dip sampled’ by Police, and 510 were classified as child abuse material (Interpol categories 1 or 2). This equates to approximately 35% of the images dip sampled being child abuse material. A reasonable inference can be made that thousands of images on the offender’s mobile phone depicted child abuse;

2. Of the 1,637 videos, 177 were ‘dip sampled’ by Police, and 176 were found to be child abuse material (Interpol categories 1 or 2). This equates to approximately 99% of the videos dip sampled being child abuse material. A reasonable inference can be made that almost all of the videos on the offender’s mobile phone depicted child abuse;

3. The offender’s awareness of the illegality of the child abuse material is demonstrated by the concealment of that material in a secure storage area in his mobile phone;

4. The child abuse material possessed by the offender depicted many prepubescent and young pubescent victims being sexually abused in highly depraved ways; and

5. There is no doubt that the offender intentionally acquired child abuse material given many of the file names made clear the depraved nature of the material including the age of the children involved and the sexual activity captured.

Any injury, loss or damage resulting from the offences: s16A(2)(e)

36. The Crown noted that the images and videos the subject of both counts recorded real children being sexually abused. Further, the material involved intrinsic harm being caused by the creation of the material and in this case given the young age of some of the victims it gave an inescapable conclusion that immense physical, emotional and psychological harm had been inflicted upon them.

Contrition and plea of guilty: ss16A(2)(f) and 16A(2)(g)

37. The Crown submitted that the court would take into account the fact and timing of the plea, and whether it was simply a recognition of the inevitable. The court would however have regard to the utilitarian value of the pleas of guilty which were entered on 21 October 2022, five days after the matter was listed for trial. The Crown submitted the offender was entitled to a modest discount of some utilitarian value given the late entry of the plea.

General and specific deterrence: ss16A(2)(ja) and 16A(2)(j)

Need to ensure adequate punishment: s16A(2)(k)

38. The Crown submitted that general deterrence was of paramount importance in sentencing for offences of this type. Specific deterrence is also of particular significance as the offending was demonstrative of his ongoing sexual interest in children. He had been registered on the Child Protection Register since approximately 1 March 2010. As a registered person, he had breached his reporting obligations on three occasions, in 2011, 2020 and 2021. The Crown submitted his record demonstrated a continuing disregard for the law and his obligations under supervision.

Character, antecedents, age, physical or mental condition of the offender: s16A(2)(m)

39. The Crown noted the offender is presently aged 60 and at the time of the offending he was 57 years. His criminal record disentitles him to any leniency.

Prospects of rehabilitation: ss16A(2)(n) and 16A(2AAA)

40. Having regard to the offender’s long standing sexual interest in children the Crown submitted his prospects of rehabilitation should be characterised as guarded. Pursuant to s16A(2AAA) it was appropriate to impose conditions about rehabilitation or treatment options, and in determining the length of any non-parole period, to include sufficient time for the offender to undertake a rehabilitation program. This objective of rehabilitation does not displace the requirement that the sentence must be of a severity appropriate in all of the circumstances of the offence.

41. The Crown submitted that it would be appropriate to backdate any sentence to the offender’s date of arrest on 2 June 2021. Further, if any aggregate sentence exceeded 3 years, the court must fix a single non-parole period pursuant to s19AB(1).

42. The Crown submitted that the principle of totality required a partial degree of accumulation given the possession of the child abuse material and transmission of two of those videos are separate and distinct criminal offences, and the sentence for each individual offence cannot comprehend and reflect the total criminality of the overall offending.

43. The Crown also provided a schedule of comparative cases for consideration by the court. It was submitted that the only appropriate sentence was a sentence of fulltime imprisonment.

44. In her oral submissions the Crown referred to the comment in the SAR where the author noted that “despite the seriousness of the current offences, they appear to be a de-escalation of his offending”. The Crown submitted that the court would give no weight to that commentary given that it was outside the qualification of the author and demonstrated a continuing disregard for the law.

45. The Crown submitted that there was substantial agreement between the parties as to the objective seriousness of Count 1 which involved transmitting two video files comprising child abuse material. The parties diverted in respect of Count 2 which the Crown characterised as being very serious offending. The Crown rehearsed her written submissions outlined above as to the voluminous amount of child abuse material of which a high proportion constituted child abuse material.

40. The Crown conceded that the offender was entitled to some discount in respect of his pleas of guilty and that his moral culpability was diminished by virtue of his own childhood trauma and social deprivation. Otherwise the matters of personal history recorded in the SAR were self-reporting and the court would approach them with some caution.

The offender’s submissions

47. Counsel for the offender in a thorough outline of written submissions noted that the offender had been in custody since 2 June 2021 and any sentence should be backdated to commence on that date. Notwithstanding, his late pleas of guilty, he was entitled to an appropriate sentencing discount. The court could not be satisfied that the pleas were entered as a recognition of the inevitable as submitted by the Crown. Such a conclusion would require access to the entire brief and the offender’s instructions to his lawyers.

48. In respect of Count 1 counsel for the offender agreed with the Crown submission that the objective seriousness of this offence fell just below the midrange for an offence pursuant to s474.22(1) of the Criminal Code. Only two child abuse material video files were sent to a single user by means of the Wickr application.

49. In respect of Count 2, relevant to the assessment of the objective seriousness of the offending was that the password to the secure folder was the same password for the offender’s mobile phone. It was submitted that this reduced the overall sophistication of the offending. All of the material was confined to the offender’s mobile phone and there was no child abuse material located on the offender’s other electronic devices. Counsel submitted that the offending fell around the midrange of objective seriousness for an offence pursuant to s474.22A(1) of the Code.

50. The offender submitted that he now had the support of his partner, sister and 18-year-old son which was relevant to his prospects of rehabilitation. He had been on a disability support pension following a workplace injury in 2007. Notwithstanding that the offender had engaged in intensive treatment in 2010 in relation to his sexual offending. By reason of his explanation that the current offences were committed as a way of him “coping with stress” there was a need for further rehabilitation treatment.

51. It was submitted that the offender had shown insight into his offending by being able to articulate the wider harm caused by child abuse material. His insight was relevant to his prospects of rehabilitation.

52. Counsel noted that the offender had been assessed as a medium risk of reoffending and an average risk of sexual recidivism.

53. Annexed to the SAR was a case report by a senior psychologist, Ms F Innis who referred to the offender’s experience of being sexually abused whilst a ward of the state at Daruk Boys Home. Ms Innis noted that he would be ineligible for sex offender programs as he has previously completed a treatment program in 2010. Accordingly the offender would need to be considered for an alternative pathways case plan to be developed with the RUSH Program in custody, that is likely to take 12 months. Alternatively she referred to a community-based program.

54. Counsel referred to the offender’s criminal record as “unenviable”. Prior to 2003 that record was largely for property offences and violence. He was then sentenced for sexual offences in 2003 and again in 2006. In addition he had a history of failing to comply with reporting obligations. He did however have no entries on his criminal record relating to offences involving child abuse material. Hence the notation by the author of the SAR that the current offending showed a “de-escalation” of his offending. It was submitted that the current offending did not occur in breach of any Good Behaviour Bonds or Conditional Release Orders. His last offence had occurred nine years earlier on 5 July 2011 and he was last released from custody on 13 July 2011 and had demonstrated some capacity to live an extended law-abiding life.

55. Counsel noted that the offender’s time in custody on remand had been entirely during the COVID-19 Pandemic which had made his time in custody more onerous when restrictions on visitations and programs, lockdowns and mandatory quarantine measures had been introduced to protect the whole of the prison population.

56. In his oral submissions counsel for the offender relied on Bugmy principles to submit that the child sexual abuse the offender suffered at 14 years of age as a state ward diminishes moral culpability for the offending “somewhat”. There was some support for his prospects of rehabilitation in the SAR and the fact that it had been eleven years since his last offending. Counsel noted that his previous offending had included actual abuse.

57. Counsel submitted that he had plans for his rehabilitation and accommodation upon release into the community. At the time of the offending he had been subject to no supervision and now has a “better clue” on how to ask for assistance.

58. Counsel conceded that the threshold in s5 of the CSPA had been crossed but submitted that he should not have “too much more time to go in custody”. He was now aged 60 years and on a disability pension. Notwithstanding, that his offending was explained by the stress caused by his partner’s illness, he now had insight into his offending and the relevance of his own child abuse. He will continue to be on the register upon release and any probation order will have additional conditions.

59. There was no opposition to the forfeiture order sought by the Crown in respect of the offender’s mobile phone.

Determination

60. The objective seriousness of the offending in relation to both Counts 1 and 2 is high, as is the moral culpability of the offender in committing these child abuse material offences. It is pernicious offending involving exploitation of children who are unable to protect themselves and for whom the courts have long recognised suffer significant, and possibly lifelong, physical and psychological harm resulting from that exploitation.

61. I accept the Crown’s submission that the offending in Count 1 fell just below the midrange of objective seriousness for an offence pursuant to s474.22(1) of the Criminal Code. I accept the characterisation of the two young victims being involved in sexual activity which was highly depraved, involving vaginal penetration. The offender used a sophisticated method to transmit the child abuse material, using end-to-end encryption and content-expiring messages. One factor which leads to my finding that the offending fell below the midrange is that the offence is confined to two video files only.

62. The objective seriousness of the offence in Count 2 of possess or control child abuse material obtained or accessed using a carriage service pursuant to s474.22A(1) of the Code falls in the high range of objective seriousness for such an offence. 20,850 images and 1,637 video files were in the possession of the offender. According to the samples examined and assessed by police, 35% of the images and 99% of the video files constituted child abuse material. I accept the Crown description that much of the material depicted many prepubescent and young pubescent victims being sexually abused in highly depraved ways. Given the depraved nature of the material, the age of the children involved and the sexual activity I find that the offender intentionally acquired the child abuse material knowing it was illegal given his concealment of that material in a secure file on his mobile phone, given his past history of offending and his registration on the Child Protection Register. It is of little moment that the password for the secure folder was the same password for the offender’s mobile phone as submitted by the offender so as to reduce the overall sophistication of the offending.

63. S16A of the Crimes Act 1914 (Cth) provides that a court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. S16A(2) prescribes that the court must take into account the following relevant matters known to the court.

(2)(a) The nature and circumstances of the offences

64. The nature and circumstances of the offences are outlined above.

(2)(e) Any injury, loss or damage resulting from the offences

65. The images and videos subject of both Counts 1 and 2 recorded real children being sexually abused. The material involved intrinsic harm being caused by the creation of such material leading to significant physical, emotional and psychological harm being inflicted upon them which the courts have long recognised can be lifelong in its duration.

(2)(f) and (2)g) Contrition and the offender’s pleas of guilty

66. The offender entered his pleas five days after the matter was listed for trial in what must have been a recognition of the inevitable outcome of the proceedings given the Crown case. He has demonstrated some insight into his offending by articulating the harm caused by child abuse material but little in the way of remorse or contrition. His plea meant a saving of court time and public resources for which he is entitled to a modest utilitarian discount which I assess at 10% in respect of each count.

(2)(ja), (2)(j) and (2)(k) General and specific deterrence; the need to ensure adequate punishment

67. I accept the Crown’s submission that general deterrence is of paramount importance in sentencing for offences of this type. It is pernicious offending which involves the most vulnerable children, often in third world countries, to feed a world market for the dissemination of such material between likeminded persons on the internet. The maximum penalty for each offence indicates the serious nature of the offending as viewed by parliament, and a clear message must be sent to like minded persons that the courts will impose condign punishment for such offences.

68. Specific deterrence is also of significance in the sentencing process here, as the offending demonstrates the offender’s ongoing sexual interest in children notwithstanding, that he has been registered on the Child Protection Register since 2010. Further he had breached his reporting obligations on three previous occasions in 2011, 2020 and 2021. This demonstrates a continuing disregard for the law and his obligations under supervision, and he must understand that if he were to continue to offend in this manner he would be subject to increasingly lengthy terms of imprisonment.

(2)(m) The character, antecedents, age, physical or mental condition of the offender

69. The offender is currently 60 years and was 57 years at the time of the offending. His criminal record disentitles him to any leniency, having been characterised as “unenviable” by his counsel.

(2)(n) and (2AAA) Prospects of rehabilitation

70. Given his history and longstanding sexual interest in children I find that the offender’s prospects for rehabilitation could only be characterised as guarded. S16A(2AAA) of the Crimes Act 1914 (Cth) provides that the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate to impose any conditions about rehabilitation or treatment options and to include sufficient time in any sentence for the person to undertake a rehabilitation program. The fact of the offender’s reliance on an explanation for his offending as stress caused by his partner’s illness is an explanation which I find somewhat disingenuous and entirely exculpatory. I find that he is a medium risk of reoffending generally and at an above average risk of sexual recidivism given the failure of the offender to benefit from his earlier rehabilitative programs.

71. S16A of the Crimes Act 1914 (Cth) provides that the court shall not pass a sentence of imprisonment unless, “after having considered all other available sentences, it is satisfied that no other sentence is appropriate in all of the circumstances of the case.” Given the serious nature of the offending and having considered all other available sentences I find that the only appropriate sentence here is one of imprisonment. I have taken into account the maximum penalty prescribed by Parliament of 15 years imprisonment is respect of each of offence as a guidepost in the sentencing process.

72. I take into account that the case report annexed to the SAR referred to the offender’s experience of being sexually abused when he was 14 and a ward of the state. I accept the submission made on behalf of the offender that this diminishes his moral culpability for the offending “somewhat”, however any reduction in sentence would be moderate given the history outlined above.

73. I intend to proceed by way of an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the purposes of transparency in the sentencing process I am required to provide indicative sentences for each count in arriving at an aggregate sentence. In doing so I take into account the objective seriousness of the offending, the subjective factors outlined above and the 10% utilitarian discount for his late plea of guilty to each count. The indicative sentences are as follows:-

1. Count 1 – an offence pursuant to s474.22(1) of the Criminal Code of transmitting child abuse material using a carriage service – 2 years and 8 months imprisonment.

2. Count 2 - an offence pursuant to s474.22A(1) of the Criminal Code of possessing or controlling child abuse material in a data storage device and using a carriage service to obtain or access the material – 4 years and 6 months imprisonment.

74. In arriving at an appropriate sentence the principle of totality applies. Whilst there was some overlap in the offending in that the two video files the subject of Count 1 were also the subject of the possession charge in Count 2, they are separate criminal acts for which there must be some accumulation on sentence.

75. I intended to impose an aggregate sentence of 5 years and 6 months imprisonment and a single non-parole period of 3 years and 6 months imprisonment to commence on 2 June 2021 and to terminate on 1 December 2024.

Orders

76. I order as follows:-   

1. You are hereby convicted of the following offences:-

1. Count 1 – an offence pursuant to s474.22(1) of the Criminal Code of transmitting child abuse material using a carriage service; and

2. Count 2 - an offence pursuant to s474.22A(1) of the Criminal Code of possessing or controlling child abuse material in a data storage device and using a carriage service to obtain or access the material.

2. I impose an aggregate sentence of 5 years and 6 months imprisonment.

3. I impose a non-parole period of 3 years and 6 months to commence on 2 June 2021 and to terminate on 1 December 2024.

4. The balance of the term will be a period of 2 years commencing on 2 December 2024 and terminating on 1 December 2026.

5. I recommend that you undergo rehabilitation for child sex offending if available in custody and upon your release in the community.

6. Pursuant to s23ZD of the Crimes Act 1914 (Cth) I order the offender’s mobile phone (ExX0003523751) be forfeited to the Commonwealth.

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Decision last updated: 24 February 2023