R v Reynolds

Case •

[2023] NSWDC 152

•

11 May 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Reynolds [2023] NSWDC 152
Hearing dates: 6 April 2023
Date of orders: 11 May 2023
Decision date: 11 May 2023
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Fulltime custodial order. For orders see [136].

Catchwords:

CRIME – sentence – use carriage service to transmit/publish/promote child abuse – possess/control child abuse material.

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

DPP (Cth) v CCQ [2021] QCA 4

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Kearsley v R [2017] NSWCCA 28

Pavlic v The Queen (1995) 5 TASR 186; 83 A Crim R 13

R v Booth [2009] NSWCCA 89

R v Clarkson (2011) 32 VR 361

R v Ellis (1986) 6 NSWLR 603

R v Hutchinson [2018] NSWCCA 152

R v Porte [2015] NSWCCA 174

Totaan v R [2022] NSWCCA 75

Category:Sentence
Parties:

Commonwealth Director of Public Prosecutions (Crown)

Cody Michael Reynolds (offender)
Representation:

Counsel:
R Coffey (Offender)
G Lewer (Crown)

Solicitors:
C Strati (Crown)
B Scard (Crown)
File Number(s): 2022/68151
Publication restriction: Non-publication order as follows:-
1 Pursuant to ss 7(a), 8(1)(c)(d) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), (the Act) the publication of information tending to reveal the details about alleged abuse contained in the following exhibits or material is prohibited:
(a) Exhibit 1.1 – Affidavit of Cody Reynolds: paragraphs [33]-[81];
(b) Exhibit 1.2 – Forensic Psychological report of Florence Gray-Weale: [7], [16]–[18];
(c) Exhibit B – Sentence Assessment Report: second bullet point on page 3;
(d) Exhibit B – Annexure A – Case Note: second paragraph, under the sub heading “Dynamic Risk Factors” on page 1;
(e) Written submissions filed on behalf of the Offender: paragraphs [62], [65], [96], [98], [102].
(f) [REDACTED].
2 Order 1 does not prohibit or restrict the disclosure of the information to the following:
(a) The Offender or his legal representatives;
(b) An officer or legal representative from the Commonwealth DPP;
(c) The Australian Federal Police; or
(d) Any other Commonwealth Government agency.
3 Order 1 does not apply to any oral or written submissions made by legal representatives for the Crown or the Offender in this or any further proceedings in relation to the matter 2022/00068151.
4 This Order is to operate throughout the Commonwealth of Australia.
5 The order is to operate for the term of the sentence ie until 8 March 2026.

REMARKS ON SENTENCE

  1. The offender is to be sentenced in respect of the following two offences for which he entered pleas of guilty in the Local Court on 20 December 2022:-

  1. Sequence 1 – offence of use a carriage service to transmit child abuse material pursuant to s474.22(1)(a)(iii) of the Criminal Code Act 1995 (Cth) (‘the Code”). The maximum penalty for this offence is 15 years imprisonment.

  2. Sequence 3 – offence of possess or control child abuse material obtained or accessed using a carriage service pursuant to s474.22A of the Code. The maximum penalty prescribed is 15 years imprisonment.

  1. The offence in Sequence 1 occurred on 9 March 2022 and the offending in Sequence 3 occurred between 18 November 2021 and 25 February 2022. The offender was arrested on 9 March 2022 and spent two days in custody. He has been on bail since 10 March 2022.

The sentence hearing

  1. The sentence hearing took place on 6 April 2023. The Commonwealth Crown Sentence Summary became Exhibit A and it included an agreed statement of facts which may be summarised as follows.

  2. On 9 March 2022 police executed a search warrant at the home of the offender and seized the following devices:-

  1. The offender’s iPhone;

  2. A silver Nokia TA-1211 phone; and

  3. An Apple MacBook laptop which was a work laptop used by the offender in his employment as a teacher.

  1. The offender participated in a record of interview in which he told police that he owned an iPhone 13 Pro, the number for that phone and that it was password protected. He also gave police his email address and work details. He told police that his phone was used for email, text and social media, including Instagram, Facebook and LinkedIn and that no one else had access to his passcode. He told police that he did not use WhatsApp.

  2. On examination of the offender’s iPhone a WhatsApp application was found with a username “Cody Reynolds” and his own phone number. Between 18 and 19 November 2021 a chat conversation occurred with another user, “Xavier” which included both sexually explicit conversation about “playing with” young boys and the transmission of a video file depicting child abuse material by the offender. An extract of the conversation was set out in the agreed facts, and is annexed to these remarks in Schedule 1 hereto.

  3. On 25 February 2022 in another WhatsApp chat conversation with an unidentified user, the offender sent various videos of adults to that user but then transmitted to that user a video depicting child abuse material. An extract of that conversation was included in the agreed facts and is attached as Schedule 2 hereto.

  4. The offending in Sequence 3 of possess or control child abuse material obtained or accessed using a carriage service concerned child abuse material found on the offender’s iPhone, his Nokia phone and on his Apple MacBook laptop.

  5. The offender’s iPhone was found to contain 111 image files and 6 video files identified as child abuse material. All of the child abuse material files were located in the “hidden” folder of the camera roll on the offender’s phone. Samples of the child abuse material image files and child abuse material video files were included in the agreed facts and those summaries are contained in Schedule 3 annexed to these remarks. The offender’s iPhone also had several files containing child abuse material located in the “Mega” cloud storage application. The mega application had a username, “forfilth” with an email address and investigation demonstrated that the storage facility was 62% used.

  6. The offender subsequently provided the AFP with consent to assume his online identity in relation to four other accounts. When accessed, those accounts held approximately 1.24TB of data. A review of the Mega content downloaded from the offender’s account with the username “forfilth” ceased once 1000 images and 50 videos of child abuse material were identified by the AFP. The files were predominately of pre-pubescent and pubescent males performing self masturbation, and oral and anal penetration with adults. The agreed facts contained a sample of the image and video files which are set out in Schedule 4 attached to these remarks.

  7. The offender’s Nokia phone contained one image file containing child abuse material which was described as an image of two pubescent males aged about 15 years, posing for the camera with penises exposed.

  8. A review of the offender’s Apple laptop identified 9 image files containing child abuse material and two video files. The agreed facts contained a sample of both types of file which are set out in Schedule 5.

  9. Exhibit A enclosed the NSW Police Force criminal history which demonstrated that the offender had no prior offences.

  10. Exhibit B was a Sentencing Assessment Report (“SAR”) under the hand of Ms A Lawson dated 3 April 2023. The report noted that the offender identifies as an Indigenous man who was working in the English Department at a private High School and completing his PHD at the time he was arrested. Under the heading “Attitudes” the author noted:-

  • The offender reported his partner controlled him socially, financially, through food restriction and sexual violence, and stated his mental health and judgment were compromised and his decision making was impaired due to this.

  • The offender stated he felt isolated as he had limited connection with family and friends at the time of the offences.

  • He reported he reached out to a previous associate for connection and was introduced to the images and videos.

  • The offender stated that although he knew the images were illegal, he felt gravitated towards watching the images and videos as he was a victim of sexual assault as a child.

  1. The author noted that if sentenced to custody the offender would be ineligible for custody-based sex offender programs due to his risk rating. He would instead be eligible for Alternative Intervention Pathways to address his criminogenic needs.

  2. If sentenced to a community-based sentence, the author recommended he be referred to a CSNSW Psychologist for further risk assessment and treatment recommendations. The author noted the offender was currently engaging with a psychologist for treatment however attempts to contact the psychologist to verify this were unsuccessful.

  3. The author noted that the offender demonstrated significant insight into his offending and identified the impact on the victims. He also reflected having been a victim of sexual assault as a child that he was aware in hindsight of the emotional and physical damage on the victims. He was willing to partake in intervention.

  4. The offender was assessed as a low-medium risk of reoffending and as suitable to undertake community service work. Annexed to the SAR was a Case Note Report in which he was assessed as being at a below-average risk of sexual reoffending as he has no prior sex offences and there was no identifiable victim. The author opined, “Social isolation, impaired problem solving and sexual deviancy are potential dynamic risk factors.”

  5. [REDACTED].

  6. The Crown also sought a forfeiture order pursuant to s23ZD of the Crimes Act 1914 (Cth).

The offender’s evidence

  1. The offender tendered a bundle of documents which became Exhibit 1.1 to 1.5. Exhibit 1.1 was a detailed affidavit of the offender comprising 135 paragraphs. He was born on 8 February 1986 and is now 37 years of age. He set out his family history and outlined having a loving and supportive family. Both his parents worked and his younger sister is now a doctor. He was a good student and a competitive swimmer however he struggled with his sexuality in high school and reported being sexually assaulted as a child. He qualified for university and studied English and history with a postgraduate degree in creative writing. While at university he coached swimming and qualified as a fitness trainer. The offender had a successful career as a teacher and continued research-based study, first in creative writing and then in trauma theory. In 2020 he was awarded the Ikara Flinders Scholarship as recognition for his work in the communication structures of chronic racial violence. He presented his trauma work in conferences both in Australia and overseas.

  2. The offender included detailed apologies to his parents, friends, students and to the community. In those apologies he was at pains to not minimise his offending or offer excuses for it but rather he accepted responsibility for his criminal conduct and set out his remorse for it. There was no issue that the offender has expressed overwhelmingly genuine remorse for his criminal conduct.

  3. The offender set out in great detail his history of sexual abuse both as a child and as an adult, and his various dysfunctional relationships. [REDACTED]. In recent therapy with Dr Dilati, psychologist, he had started to reconcile seven incidents of adult sexual assault, the details of which are only relevant in providing context to the emotional trauma carried by the offender but never reported. That extended into his marriage to a man who exercised coercive control in all respects of the offender’s life including ongoing sexual assault and abuse.

  4. The offender deposed that he spoke to a psychologist when he was 21 years and was diagnosed with Obsessive Compulsive Disorder (“OCD”) and Body Dysmorphia. He made no disclosure of childhood abuse and therefore no cause was identified. The offender was treated by Dr J Guirgis who prescribed Sertraline however he made no disclosure to her. Following his arrest and release on bail he was informed that she could no longer treat him. He is now under the care of Dr Dilati and a GP and has been diagnosed with Complex Post Traumatic Stress Disorder with dissociative episodes.

  5. Under the heading “Context related to the offending” the offender stated that at the time of his first offence he was in an abusive marriage and was holding on to decades of trauma. An acquaintance sent him a folder of illegal material which he deleted straight away because he was disgusted however, he kept the message. He described his compulsion to view the material as overwhelming and selfish and he knew it was wrong.

  6. The offender deposed that he offered his “most important apology to the children in that material”. He stated that he will always regret his part in their suffering and that he “can’t make it better”.

  7. The offender asserted that whilst he was aware of the volume of material in his possession most of it was never opened, however he acknowledged that he was in possession of the material. He denied having ever produced, edited or sold material. In relation to the conversations contained in the schedules hereto. The offender acknowledged that they were “despicable”. He asserted that he had never committed a contact offence.

  8. The offender deposed that he was appalled by his offences and accepted the repercussions for them. He set out in detail the immediate impact of his arrest and stringent bail conditions. He also annexed a number of newspaper articles and Google Image search results concerning media coverage following his arrest. He acknowledged the public interest in that coverage and the part it played in general deterrence. However it also impacted adversely on his family and in particular his parents who had left their home in a country town to support him.

  9. The offender deposed that he was terrified of the prospect of being sentenced to imprisonment and acknowledged that prison was not his best chance at rehabilitation, although he stated “but I’ve lost my place in that decision”.

  10. The offender deposed to the progress he had made in his rehabilitation which he described as “a period of transformative change”. His arrest had saved him from an abusive marriage and he had worked to fix the broken trust between his family members who had supported him since his arrest. He had also enrolled in a postgraduate psychology course and through his treatment with Dr Dilati had built insight into his past and the connections therein with his offending. He deposed that he was certain that he would not reoffend and prayed for the opportunity to serve his sentence in the community to give him the best chance at life.

  11. Exhibit 1.2 is a report from Ms F Gray-Weale, psychologist, dated 30 March 2023. The author interviewed the offender on 7 March 2023 for a total of 3 hours and had been qualified with the statement of agreed facts together with a number of risk assessment reports. She had also consulted with Dr Dilati on 7 March 2023.

  12. Ms Gray-Weale set out the offender’s family and developmental history. [REDACTED]. He never received professional help relating to these events.

  13. The author set out the offender’s educational history noting that he experienced some discrimination due to his sexuality in early High School. After school he completed a Bachelor of Arts degree as well as a Masters in Creative Writing and a teaching degree. She set out his stable employment history.

  14. The author also set out the offender’s relationship history. She took a history of his last partner being “controlling, sexually abusive, manipulative and psychologically and financially abusive”. [REDACTED].

  15. The author noted that the offender told her that he never actively searched for child sexual abuse material online but instead “viewed and shared material that was sent to him by other people via WhatsApp”. His use and interest in child sexual abuse material developed during his most recent highly abusive relationship. Initially he viewed the material twice per week but his use escalated to daily use which he described as “an emotion regulation strategy”. He would avoid going home to his partner and further abuse by sitting in a storeroom in his apartment building each day after work drinking and viewing child abuse material before returning home. He acknowledged that he was aware at the time that the child abuse material was both abusive and harmful but at the time he minimised the harm caused by via objectification and dehumanisation of the victims depicted. He denied having a deviant sexual interest in young people or children and described a cycle of “experiencing sexual arousal when viewing child abuse material, and then shame, disgust and remorse afterwards”.

  16. The author noted that the offender had been diagnosed with OCD when he was 21 years old, symptoms which typically worsen during times of stress. He had been prescribed with Zoloft to manage this condition.

  17. Following psychometric assessment the offender scored in the markedly elevated range on the measurement for potential for self-harm or suicidal ideations. He also scored in the elevated ranges measuring anxiety related difficulties.

  18. On an assessment for risk of sexual recidivism he was assessed as being at the lower end of the scale. Further on the Risk Metrics 2000 Assessment he was placed at the low risk category for sexual or violent offending. On assessment by the Risk for Sexual Violence Protocol (RSVP) the offender was assessed within a moderate risk category due to the presence of a number of dynamic risk factors.

  19. The author opined that the offender currently suffers from a mental health impairment and displays symptoms of Post Traumatic Stress Disorder (“PTSD”). She further opined that he did not meet the criteria for paedophilic disorder “as there is no evidence to suggest that he has acted on sexual urges or fantasies with a child or children”. However it was important to note that research has suggested that possession of child sexual abuse material is a valid diagnostic indicator of paedophilia or a sexual interest in children.

  20. The author noted that the offender indicated that he was aware of the harm caused by the child sexual abuse material at the time of the offences but engaged “in a level of dehumanisation and objectification of the victims, so that he could utilise the material for the purpose of emotion regulation. He stated that he feels deeply ashamed by the offending behaviour”.

  21. Ms Gray-Weale opined that the offender used the child sexual abuse material to cope with negative emotions and mental health symptoms in the context of an abusive relationship, instead of developing healthy coping strategies or seeking professional support. At the time of the offences he was suffering from untreated PTSD and had not fully come to terms with his own experiences of sexual abuse. She opined that he may have engaged in a level of normalisation of the child sexual abuse material he viewed in order to accommodate his own traumatic past.

  22. She further opined that overall he was a statistically low to moderate likelihood of reoffending although he presented with a number of dynamic risk factors that required addressing in order to manage his risk. She stated that he would benefit from treatment to address the following:-

  1. “Attitudes and cognitive distortions relating to offences;

  2. Ongoing assessment and treatment for any sexual deviance;

  3. Developing insight into mental health and other offending behaviours;

  4. Development of healthy coping strategies;

  5. Treatment for symptoms of PTSD;

  6. Ongoing management of OCD symptoms;

  7. Victim awareness and empathy; and

  8. Relapse prevention planning.”

  1. Ms Gray-Weale opined that the offender’s symptoms of PTSD will likely be exacerbated in a custodial environment and that he was more likely to benefit from continued therapy in the community. She recommended that he continue treatment with Dr Dilati.

  1. Exhibit 1.3 was a testimonial from the offender’s parents who described their son as “a very smart (intelligent) young man”. They also described him as “very dumb to think that what he was doing was going to be acceptable at any level”.

  2. Mr and Mrs Reynolds described the offender as genuinely remorseful. They had relocated to Sydney to support him and expressed their desire for him to have the opportunity to prove himself to be a good man.

  3. Exhibit 1.4 was a testimonial from Mrs PE Fisher, OAM, who had known the offender since birth as part of her extended family. She described his offending as “incomprehensible” and set out his history as being from a loving and caring home and that he had achieved highly in his education and as a teacher. She stated that she believed that the offender was truly sorry for the very serious wrong choices he has made and that he “has always owned was he has done”.

  4. Exhibit 1.5 was a testimonial from Ms SE Porter, who has the known the offender since 1992 when they were both 7 years of age. They were educated together and following school moved to Sydney to university where they remained in close and regular contact. She was aware of the charges and described the offender as having been open and honest with her regarding his offending conduct. She stated that he has been “clearly and unmistakably remorseful” and that he was deeply ashamed and accepted full responsibility for his actions.

  5. Ms Porter stated that he now had insight into his past traumas and risk factors and she considered him to be “a principled and fundamentally decent person”. She further stated that he had taken responsibility for the consequences of his criminal conduct and had recognised that he would never be able to teach children again in the future.

  6. Exhibit 2 was a testimonial from Ms J McKelvey, barrister, dated 30 March 2023. She first the met the offender socially in 2011 and they became close friends. She stated she was “completely blindsided” when informed of his offending but notwithstanding the serious nature of the charges she offered for him to live with her if he was granted bail as she wanted him to be safe. She had witnessed the impact of his arrest on his parents and sister which she described as devastating. She had also had the opportunity to observe him closely over the last 12 months and spoke of his advancement in his rehabilitation. His arrest had caused him to face some difficult realities, to reflect on his life choices and to accept responsibility for those choices.

  7. Ms McKelvey requested the court to be fair “in light of the circumstances of the offending, the publicity associated with his arrest and the steps he has taken to adjust to his new life”. She expressed confidence that he will use any chance that he is given to him to make a constructive contribution to the community in the future.

  8. Exhibit 3 was the Bar Book Project chapter on childhood sexual abuse. The import of that material is that the research shows that although most victims of child sexual abuse do not go onto offend, the risks of subsequent offending are higher than for the general population. In particular children who have been the victim of sexual assaults were at a higher risk of perpetrating sexual abuse in later life.

The Crown’s submissions

  1. The Crown relied on a thorough and detailed outline of written submissions in which it ultimately submitted that no sentence other than a term of fulltime imprisonment on each charge was appropriate in all of the circumstances. The Crown noted that each offence carried a maximum penalty of 15 years imprisonment which provided an unequivocal indication that the offending was viewed by Parliament as being of the upmost seriousness. The Crown set out well established sentencing principles involving child abuse material which were not in dispute as follows:-

  1. A sentence involving an immediate term of imprisonment is ordinarily required.

  2. General deterrence is the primary sentencing consideration for offending involving child abuse material, given the prevalence and ready availability of child abuse material involving children on the internet.

  3. Where general deterrence is the primary sentencing principle, an offender’s personal mitigatory factors such as good character, age and prospects of rehabilitation must therefore be given less weight than they might otherwise be given.

  4. There is a paramount public interest in promoting the protection of children as offences involving activities such as the transmission or possession of child abuse material are not victimless crimes - children are sexually abused in order to supply the market.

  5. Specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations.

  6. Offending involving child abuse material is difficult to detect given the anonymity provided by the internet, occurs on an international level and is becoming increasingly prevalent with the advent of the internet as an accessible means of allowing people to access and obtain child abuse material.

  7. The fact that an offender does not pay to access a child abuse material website or was not involved in the distribution or sale of child abuse material, does not mitigate the offending.

  8. The nature of the internet and the evolution of remote storage devices using internet networks, means that images may be published and stored around the world for many years. The longevity of such materials is akin to re-victimising the abused children. The victims not only have to endure the abuse that occurs in producing such material but must live with the consequences of their images being swapped, traded and accessed potentially indefinitely.

  1. The Crown further set out the following relevant factors in assessing the objective seriousness of the child abuse material offences:-

  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 abuse material 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.

  1. The Crown also relied on the following additional factors:-

  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.

  1. The Crown submitted that the objective seriousness of the offending in Sequence 1 fell just below the midrange of objective seriousness for offending of this type for the following reasons:-

  1. the videos depicted real victims who appear to be aged 12-14 years;

  2. the videos were depraved, depicting penetration by a pubescent male and fellatio being performed by a pubescent male;

  3. the Offender transmitted the video files to a like-minded user, encouraging their sexual interest in children and gratifying his own; and

  4. the Offender deliberately used a sophisticated method to transmit the child abuse material, using end-to-end encryption to minimise the risk of detection. This demonstrates deception and concealment on the Offender’s behalf. Had the Police not been able to seize the Offender’s phone, the messages would not have been detected.

  1. The Crown submitted that the objective seriousness of the offending in Sequence 3 fell above the midrange of objective seriousness for an offence of its type for the following reasons:-

  1. 111 image files and 6 video files were identified as child abuse material on the Apple iPhone 13 Pro Max. All of the child abuse material files were located in the ‘hidden’ folder of the camera roll on the Offender’s phone. To ‘hide’ a file, the user must select the file and actively choose to use the ‘hide’ feature;

  2. Of the 1.24TB of data located in the “Mega” cloud storage application on the Offender’s iPhone, at least 1,000 images and 50 videos of child abuse material were identified. AFP review policy is to cease review of the material once 1,000 images and 50 videos are identified. Some of the folders had naming conventions which indicated a sexual interest in children. A reasonable inference can be made that almost all of the videos on the Offender’s “Mega” cloud storage application on the Offender’s phone depicted child abuse;

  3. The Offender used a variety of names for his email accounts, including aliases and names revealing his awareness and enjoyment of the depravity of his interest ([email protected]; [email protected]);

  4. One 1 image file was located on the Offender’s Google Drive account logged into on his Nokia phone;

  5. Nine image files and 2 video files were identified as child abuse material on his Apple Air Laptop, which laptop had been provided to him by the school for school purposes;

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

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

  8. The child abuse material included sadistic material, with a child being anally penetrated with a lint roller and sounding to be in pain, and material where children undress and engage in sexual activity under gunpoint.

  1. The Crown characterised the offence of possession of child abuse material across three devices as sophisticated and noted that both offences occurred at a time when the offender was employed as a head teacher of adolescents at a high school.

  2. In respect of relevant matters pursuant to s16A(2) of the Crimes Act 1914 (Cth) the Crown submitted as follows:-

S16A(2)(e) Any injury, loss or damage resulting from the offences and s16A(2)(d) The personal circumstances of any victim

  1. The Crown submitted that the offending in both Sequences 1 and 3 record real children being sexually abused, and the fact that the children have not been identified is not a mitigating factor. The Crown submitted there is intrinsic harm caused by the creation of child abuse material relying on R v Clarkson (2011) 32 VR 361. The Crown also relied on R v Booth [2009] NSWCCA 89 per Simpson J at [41] where her Honour referred to the exploitation and abuse of children, often in underdeveloped or disadvantaged countries and characterised that damage done to children as being undoubtedly profound. The Crown submitted that it was an inescapable conclusion here that immense physical, emotional and psychological harm was inflicted upon the children depicted in the material. Further harm may result from the fact that the material may remain in circulation, heightening the shame and distress for victims who were exploited when they were young and vulnerable, relying on R v Porte [2015] NSWCCA 174 at [69].

S16A(2)(f) and s16A(2)(g) Contrition and plea of guilty

  1. The Crown set out relevant factors to any discount for the offender’s contrition and plea of guilty which may be relevant to genuine contrition, acceptance of responsibility and a willingness to facilitate the course of justice. The Crown conceded that the guilty pleas which were entered in the Local Court entitled the offender to a full discount for the utilitarian value of his pleas. The Crown accepted the offender had expressed some remorse in his affidavit and to others as outlined in the testimonial evidence above.

  2. The Crown noted that the offender seeks to explain his offending by reference to his personal history, including a history of childhood sexual abuse. The Crown submitted that the offender had minimised his own conduct by asserting that he had no specific sexual interest in violent acts, despite keeping such materials, and that he did not view much of the material.

S16A(2)(ja) and s16A(2)(j) General and specific deterrence

  1. The Crown noted that general deterrence is the paramount factor in sentencing for offences of this nature. Specific deterrence was also of particular significance for this offending which was demonstrative of the offender’s sexual interest in children. Emphasis should be placed on sentencing principles of retribution, deterrence and the protection of the community. Further the offender should be adequately punished pursuant to s16A(2)(k) and a failure to do so undermines “society’s moral rebuke of the online exploitation of children in general”.

S16A(2)(m) Character, antecedents, age, physical or mental condition of the offender

  1. The offender is presently aged 37 and at the time of the offending was aged between 35 and 36. The Crown accepted that he had, since his arrest, taken steps to begin receiving professional assistance which reflected on his prospects of rehabilitation. Although the offender is of prior good character, given the nature of the offending, prior good character should be given lesser significance in the sentencing process relying, inter alia, on DPP (Cth) v CCQ [2021] QCA 4.

  2. The Crown noted the offender’s diagnoses of PTSD and OCD and outlined the impact those conditions may have on his sentencing pursuant to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 per McClellan CJ at CL at [177].

  3. The Crown noted that the nexus between the offender’s prior history and mental impairment and his offending may point to a reduction in moral culpability. However the duration of his mental impairment had a coinciding negative impact on his prospects of rehabilitation and his future risk of reoffending. The Crown submitted that the offender remains a vehicle for general deterrence and there clearly remained a need for specific deterrence.

  4. The Crown accepted however that his mental condition may make custody more onerous for the offender.

S16A(2)(n) and s16A(2AAA) Prospects of rehabilitation

  1. The Crown acknowledged that the offender had taken some positive steps in rehabilitating himself however the reality was that he had demonstrated a significant sexual interest in children and had committed sophisticated and extensive offending in pursuit of that interest. The assessment of that risk, which is outlined in the report of Ms Gray-Weale, demonstrated the complicated and predictive nature of the exercise.

  2. Pursuant to s16A(2AAA) the court must have regard to the objective of rehabilitating the offender, including considering whether it is appropriate to impose conditions about rehabilitation or treatment options (when making an order) and in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake rehabilitation programs.

  3. It was submitted that the 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” pursuant to s16A(1). The principal purpose of rehabilitation is to protect the community by ensuring offenders are required to undertake treatment both in custody and upon release into the community to prevent reoffending.

Extra-curial punishment

  1. The Crown anticipated the offender would make submissions concerning extra-curial punishment suffered by him resulting from his loss of profession and also because of media attention to his case.

  2. The Crown referred to well established principles relating to extra-curial punishments. Professional ramifications may be a mitigating factor but may be of limited effect because an offender must anticipate that loss of employment was the inevitable consequence of his offending. That was a direct and inevitable consequence of the sexual offending here which involved children. Thus extra-curial punishment ought be given little weight in the sentencing exercise. Similarly the media coverage could only be given very limited weight. Other factors such as the loss of support of friends is the direct result of the opprobrium shown to the offender for committing offences of this nature and were the inevitable consequence of such offending and did not operate to mitigate the sentence to be imposed.

  3. The Crown noted that any sentence should be back-dated by 2 days and pursuant to s19AB of the Crimes Act, where an offender is sentenced to a period of imprisonment exceeding three years the court must fix a single non-parole period. If the offender is sentenced to a term of imprisonment of three years or less the court is required to impose a recognizance release order pursuant to s19AC(1).

  4. In relation to the issue of totality in sentence, the Crown referred to the presumption that a sentence for a Commonwealth child sex offence committed on or after 23 June 2020 must be wholly cumulative upon a sentence for another child sex offence pursuant to s19(5)-(7) of the Crimes Act. The Crown submitted that a partial degree of cumulation was required as the two offences were separate and distinct offending and the sentence for each individual offence could not comprehend and reflect the total criminality for the overall offending.

  5. The Crown also provided a schedule of comparative sentences.

  6. In her oral submissions the Crown referred to the slight difference in approach between the parties to the assessment of objective seriousness. Whereas the Crown categorised Sequence 1 as being just below midrange the offender submitted that it was at the lower end of the range. For Sequence 3 the Crown submitted the offending was above midrange whereas the offender endeavoured to characterise the content of each of the three devices separately, the most serious being the content on the offender’s iPhone which it was submitted fell in the midrange.

  7. The Crown referred to the subjective case relied on by the offender as engaging the principles in De La Rosa. It was conceded the offender was, in accordance with those principles, not an appropriate vehicle for general deterrence. His background was also relevant in reducing to a certain extent, his moral culpability for the offending and the Crown conceded that he would find a custodial sentence more onerous than the balance of the prison population.

  8. The Crown did not accept that ultimately the offender had positive prospects of rehabilitation given his history of sexual deviance and the fact that he continued to suffer symptoms of PTSD and OCD. There was insufficient evidence to base a finding that he had good prospects of rehabilitation, particularly as he had viewed the child abuse material for sexual gratification.

  9. The Crown rehearsed her submissions relating to extra-curial punishment and media coverage of the offender’s arrest. In relation to the offender’s submission that he had been subject to onerous bail conditions for a lengthy period, the Crown submitted that he was not under house arrest and that whilst it was clear the offender was doing his best to comply with his bail conditions, no significant weight should be placed on that. The Crown submitted that the offending was so serious as to only warrant a sentence of fulltime custody given the volume of the material in his possession, and the sophistication involved in the offending.

  1. [REDACTED].

The offender’s submissions

  1. The offender also relied on a thorough and detailed written outline of submissions in which he also set out well established general principles in sentencing for child abuse material offences. It was conceded that offences of this kind are very serious and that general deterrence is the primary sentencing consideration and that denunciation is also a paramount consideration given the characterisation by Simpson J in R v Booth [2019] NSWCCA 89 of such offending as being both “callous and predatory”. Counsel also set out the non-exhaustive list of relevant matters that bear upon the assessment of objective seriousness for such offences identified by RA Hulme J in R v Hutchinson [2018] NSWCCA 152 at [45].

  2. In assessing the objective seriousness of the offence in Sequence 1, transmit child abuse material pursuant to s474.22(1)(a)(iii), the offender submitted that the offending involved two single events, the first occurred between 18 and 19 November 2021 and the second on 25 February 2022. The offender engaged in “chat” communications using telephone instant messaging services and, on each occasion, a single file was transmitted by the offender. It was submitted that the chat involved discussion of “sexual fantasy” and there was no risk that the material could be seen or acquired by vulnerable persons. The offending could not be regarded as sophisticated, and the messaging occurred on the telephone service in the name of the offender. It was submitted that the objective seriousness of the offending fell at the lower end of the scale for such offences and that the particular offending did not require the imposition of a fulltime custodial sentence.

  3. In assessing the objective seriousness of the offending in Sequence 3, possession or control of child abuse material accessed using a carriage service pursuant to s474.22(1)(a)(iii) the offender’s submissions related to each of the three devices from which child abuse material was contained. On the offender’s iPhone 110 images files and 6 video files were found and it is accepted that the samples referred to in the agreed facts involved:-

  1. “Acts of penetrative sexual intercourse with male and female children aged between 9 and 16 years of age;

  2. Acts of a sexual nature performed by children aged between 14 and 16 years of age;

  3. Acts of a sexual nature where a male child aged approximately 4 years of age is forced to place his hand on the penis of an older boy in a masturbation movement”

  1. A sample of the images and video files located on the “Mega” application involved penetrative sexual acts of female children between 2 and 14 years of age and male children between 11 to 13 years of age. The offender submitted that the material located on the offender’s iPhone would fall at the midrange of objective seriousness for an offence of this nature “on the basis that notwithstanding they involve abhorrent sexual acts involving vulnerable children, they do not involve acts of violence or torture”.

  2. In respect of the single image located on the offender’s Nokia mobile phone it was submitted that would be held to be at the lower end of the objective scale.

  3. In respect of the offender’s Apple laptop which contained 9 images and 2 video files which showed penetrative sexual acts and non-penetrative sexual acts of female and male children, the offender submitted that material would fall at the lower end of the midrange for an offence of this nature. Again on the basis that they did not involve acts of violence or torture and there was a limited number of files involved.

  4. Counsel submitted that the offender had reported to the forensic psychologist that he received links to download unknown and large volumes of material which he did not sort or delete. The offender identifies as homosexual and it was submitted that in respect of the material involving female children it was open to the court to accept his evidence that he received this material as part of the file downloads, as opposed to actively seeking out the material. It was conceded that the offender was in possession of this material however “it does provide some context to understand the volume of material, so as not to accept it as aggravating”. Collectively, it was submitted that the offending fell into the middle of the midrange for an offence of this type. It was further submitted that it was important that it was not contended that the material involved acts of torture or violence and further the court could comfortably consider an alternative to fulltime imprisonment.

  5. Counsel summarised the lengthy affidavit of the offender in support of his plea in mitigation consistent with my summary of that material outlined above. The offender had recognised that no analysis can properly account for the conscious decision he made on each occasion to offend. He described this compulsion as overwhelming and selfish. It was conceded that he knew what he was doing was wrong.

  6. Counsel also summarised the report of Ms Gray-Weale and relies on the opinion set out by the psychologist that at the time of the offending the offender was suffering from untreated PTSD and “had not fully come to terms with his own experiences of sexual abuse. He may have engaged in a level of normalisation of the child sexual abuse material he viewed in order to accommodate his own traumatic past.”

  7. Counsel also made relevant submissions in respect of the matters set out in s16A(2) of the Crimes Act 1914. It was accepted that harm to the actual child victims depicted in the material could be inferred and that general deterrence is a primary consideration in sentencing. However it was submitted that general deterrence is not a factor that should dominate the exercise of the sentencing discretion to the exclusion of all other factors, relying on Pavlic v The Queen (1995) 5 TASR 186; 83 A Crim R 13.

  8. It was submitted that whilst the offender had disclosed accessing child abuse material for a number of years, the offences for which he is to be sentenced occurred over a relatively short period of time. It was accepted that any sentence warrants a degree of specific deterrence.

  9. It was submitted that the offender’s early plea of guilty warranted a significant discount for each utilitarian benefit but also was relevant when considering the offender’s remorse and contrition. It was however accepted that there was a strong prosecution case. However the court would comfortably be satisfied that the offender has demonstrated contrition and remorse, both in his affidavit and to those who have provided testimonials on his behalf.

  10. [REDACTED].

  11. Counsel submitted that the offender’s prior good character could only be given limited weight in the sentencing process. It was submitted however that the offender has good prospects of rehabilitation and that that should be fairly balanced against other considerations such as deterrence and denunciation. Consideration should also be given to s16A(2AAA) which requires the court to take into account the objective of rehabilitating the offender by considering whether it is appropriate to impose conditions about rehabilitation and treatment and in determining the length of any sentence or non-parole period to include sufficient time for the person to undergo a rehabilitation program.

  12. Under the heading “Background and profound deprivation” the offender reported positively in respect of his family and support networks [REDACTED].

  13. It was further submitted that the court should take into account the onerous bail conditions imposed on the offender and his compliance over a lengthy period of time. There was also some delay in prosecuting this matter given the time in which the AFP completed its investigation, [REDACTED]. It was however accepted that only very limited weight could be afforded to this delay.

  14. In relation to extra-curial punishment, it was submitted that the weight to be given to any extra-curial punishment will depend on the circumstances of the case. Here, the offender had been subject to wide and continuous media coverage which had impacted upon him and his family. The offender also referred to the character references which speak highly of him and establish that he has a support network around him in the community.

  15. In his oral submissions, counsel for the offender rehearsed his submission that the offender has a good support network around him as demonstrated by those present in court during the sentence hearing. Counsel rehearsed his submissions relating to the objective seriousness of the offending in Sequence 1 and 3. He accepted on behalf of the offender that there was some torture or violence in the offending by reference to the firearm referred to in the agreed facts.

  16. Counsel submitted that the Crown could not prove beyond reasonable doubt that the offender saw all of the material. Whilst this was not a defence it provided context for the offending.

  17. In respect of the affidavit of the offender, it was submitted that there was no attempt to excuse his behaviour and the offender had taken full responsibility for his criminal conduct. The court would find demonstrative remorse and contrition and that since he was charged, he has done everything possible to rehabilitate himself. It was noted that the offender’s apology was very broad, and the historical matters set out gave context to the offending and the impact on him. His employment as a teacher had been terminated and there was no suggestion that the offending occurred whilst he was at school and therefore the fact that he was a teacher was a neutral matter in the sentencing process.

  18. Counsel submitted that the offender’s diagnoses of OCD and PTSD which have been untreated since 1997 provided a causal nexus to the offending. Whilst these diagnoses did not amount to psychosis so as to diminish general deterrence it did diminish his moral culpability for the offending and the need for specific deterrence.

  19. It was submitted that the court would accept that the offender has positive prospects of rehabilitation. He was now seeking treatment on a weekly basis from his psychologist and GP. His treatment by the psychiatrist Dr Guirgis prior to the offending was relevant to the assessment. All of the reports concluded that he was at low to medium risk of reoffending. He had since his arrest for the first time received treatment for PTSD and the court would reject the Crown submission that there is a prospect of mental health problems going forward.

  20. Counsel rehearsed his submissions relating to the offender’s early plea of guilty and his cooperation with authorities in respect of both of which substantial weight should be given in the sentencing process. Counsel rehearsed his submissions in respect of the offender’s onerous bail conditions being taken into account and the personal difficulties suffered as a result of him being unable to access his various devices. It was conceded that the delay in prosecution was slight and would be given very limited weight.

  21. Counsel rehearsed his submissions in relation to extra-curial punishment by way of media reporting and the impact that has had on the offender and his family. It was conceded that this was of limited weight because of his occupation.

  22. Counsel noted that the report of the psychologist and the author of the SAR made it clear that the offender would not be eligible for treatment programs in custody. Also, whilst in custody he will not have the support and networks that he has in the community. It was submitted that there was next to no risk of this offender reoffending and that he had done all that could be done to limit that risk.

  23. In answer to the Crown’s submission relating to the length of any term of imprisonment, counsel submitted that any non-parole period should be short so as to allow him to continue his ongoing treatment with Dr Dilati and not to adversely impact that continuing treatment.

Crown’s submissions in reply

  1. In reply the Crown submitted that this was not a case where the Bugmy principles applied. The traumatic life events suffered by the offender leading to his diagnosis of untreated PTSD should be taken into account through the prism of De La Rosa.

  2. Secondly, in assessing the offender’s prospects of rehabilitation the court should take into account the fact that his offending was motivated by a deviant sexual interest and also that the offender continued to suffer symptoms of his PTSD which had gone untreated for a significant period of time. The offender therefore continued to be at risk and at best could be regarded as a low to moderate risk of reoffending, depending on his risk of relapse prevention.

Determination

  1. The non-exhaustive list of relevant matters identified by RA Hulme J in R v Hutchinson, supra, at [45] that bear upon the assessment of objective seriousness of offences relating to the possession, dissemination or transmission of child abuse material is as follows:-

“1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

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

9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. 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.

11. Whether the offender acted alone or in a collaborative network of like-minded persons.

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

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

14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.”

  1. The offending in both Sequence 1 and 3 is objectively serious offending, 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. People like the offender who access and possess child abuse material encourage the criminal acts of those who abuse children to produce such material to feed an abhorrent market. The courts have long recognised the significant, and possibly lifelong, physical and psychological harm resulting from that exploitation. Further harm may result from the very fact that the material may remain in circulation exacerbating the harm for victims who were exploited when they were young and vulnerable.

  2. In assessing the objective seriousness of the offending in Sequence 1 I take into account that the two videos depicted actual children who appeared to be aged between 12 and 14 years. The content of the videos was depraved content depicting penetration by a pubescent male and fellatio being performed by a pubescent male. Further the offender deliberately used a sophisticated method to transmit the child abuse material, using end-to-end encryption to minimise the risk of detection. I accept the Crown’s submission that this demonstrated deception and concealment on the offender’s behalf. I accept that on each occasion a single file was transmitted by the offender, however I do not accept the submission made on behalf of the offender that the chat involved discussion of sexual fantasy and there was no risk that the material could be seen or acquired by vulnerable persons. Rather I accept the Crown submission that the offender transmitted the video files to a likeminded user, encouraging their sexual interest in children whilst gratifying his own. Once sent the offender had no control over further use of the child abuse material which, given the nature of the internet may be circulated in perpetuity. The one factor that leads to a finding that the offending fell below the midrange for an offence pursuant to s474.22(1)(a)(iii) of the Code is that the offence is confined to the two videos only. It was however objectively serious offending towards the middle of the low range of an offence pursuant to that section.

  3. In assessing the objective seriousness of the offending in Sequence 3, the offence of possess or control child abuse material obtained or accessed using a carriage service pursuant to s474.22A of the Code the totality of the material stored on the three devices owned by the offender must be taken into account. That included 111 images and 6 video files identified as child abuse material on the offender’s iPhone. They were located in a hidden folder of the camera roll. A further 1.24TB of data was located in the Mega cloud storage application on that phone, and review of the material was ceased once 1000 images and 50 videos were identified. I accept the Crown submission that some of the folders had naming conventions which indicated a sexual interest in children and that a reasonable inference can be made that almost all of the videos on the Mega cloud storage application depicted child abuse material.

  4. One image file was located on the offender’s Google drive account logged into his Nokia phone and 9 image files and 2 video files were identified as child abuse material on his Apple Air laptop. Further, the offending took place over a period of three months.

  5. I further take into account that there was some sophistication to the offending demonstrated by the offender’s concealment of the material on his iPhone in a secure storage area. Of greater importance in the assessment of the objective seriousness of the offending is that the child abuse material depicted many prepubescent and young pubescent victims being sexually abused in highly depraved ways. The material included sadistic material, with a child being anally penetrated with a lint roller and sounding to be in pain and material where children were engaged in sexual activity under gunpoint.

  6. I find that the objective seriousness of the offending in Sequence 3 falls within the midrange of objective seriousness for an offence pursuant to s474.22A(1) of the Code and towards the upper end of that midrange. In coming to that finding I reject the submission made on behalf of the offender that “notwithstanding they involve abhorrent sexual acts involving vulnerable children they do not involve acts of violence or torture”. Further, the offender has conceded that he was in possession of all of the material and having downloaded such large volumes of child abuse material and it is unnecessary to determine whether he actively sought out the material, sorted it or otherwise dealt with it. These are not mitigating factors as the very possession of child abuse material creates a market for the continued exploitation of children to supply the market and the intentional possession of such material is the culpable element that lies at the heart of the offence. Another factor that elevates the objective seriousness of the offending is that the offender possessed the child abuse material for his own sexual gratification.

  1. S16A of the Crimes Act 1914 (Cth) provides that a court must impose a sentence that is of the 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

  1. The nature and circumstances of the offences, and their seriousness, are outlined above.

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

  1. The images and videos subject to both Sequences 1 and 3 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 the most vulnerable children. The courts have long recognised that such harm can be lifelong in its duration.

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

  1. The offender entered his pleas of guilty in the Local Court and in what must have been a recognition of the inevitable outcome of the proceedings given the strength of the Crown case. He has demonstrated insight into his offending, genuine remorse and contrition, accepted responsibility for his offending and acknowledged the immense harm caused by him. His plea meant a saving of court time and public resources for which he is entitled to a utilitarian discount which I assess at 25% in respect of each count.

[REDACTED]

  1. [REDACTED]

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

  1. It is well established that general deterrence and denunciation are of paramount importance in sentencing for offences of this type. It is callous and 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.

  2. Specific deterrence is also of significance in the sentencing process here, as the offending clearly demonstrates a sexual interest in children and the offender 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

  1. The offender is 37 years of age and the offending occurred when he was aged between 33 and 35 years of age. He has a loving and supportive family and has achieved highly academically and has had a successful career as an educator. [REDACTED]. He also struggled in early High School with his own sexuality and as an adult suffered numerous sexual assaults which he never disclosed to his family or police. Whilst he sought therapeutic treatment at times during his adult life before his arrest that treatment was undermined by his failure to disclose his childhood sexual trauma. For approximately five years before his arrest he was involved in a dysfunctional and abusive relationship during which the index offending occurred.

  2. In his lengthy and detailed affidavit the offender has provided much detail regarding his background and the impact of his arrest including media coverage of it on his family, friends, profession and ultimately his gaining of insight therapeutically by way of his counselling with Dr Dilati. It is not in dispute that he had been diagnosed with OCD and PTSD which have been untreated since 1997. I do not find a direct causal nexus with those mental health diagnoses and the offending here. Rather they provide context by way of background and explanation for the offender being in an abusive relationship in which he was isolated from his support network and during which he made conscious and deliberate decisions to offend on each occasion in respect of Sequence 1 and to possess the child abuse material subject to Sequence 3. He conceded that he knew what he was doing was wrong at the time, I accept his description of his compulsion to do so as being overwhelming, and I find that he did so for his own sexual gratification.

  3. I also take into account that the offender was previously a man of good character and who had a successful career as a teacher and writer. Given the nature of the offending and its objective seriousness, little weight can be given to his prior good character in the sentencing synthesis.

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

  1. Given the chronic nature of the offender’s diagnoses arising from childhood sexual trauma and adult sexual trauma the offender’s prospects of rehabilitation could only be characterised as guarded. I accept that he has made progress with his rehabilitation under the treatment regime of Dr Dilati. S16(2AAA) of the Crimes Act 1914 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 offender will require ongoing rehabilitation as outlined by Ms Gray-Weale. I accept that statistically he is at a low to medium risk of reoffending and although he presented with a number of dynamic risk factors, including sexual deviance, I accept that the risk of him sexually reoffending is below average.

  2. In applying the principles in DPP (Cth) v De La Rosa, supra, I find that having regard to his mental health diagnoses which have contributed to the commission of the offence in a material way, the offender’s moral culpability is diminished somewhat. However I do not find that he is an inappropriate vehicle for general deterrence given the importance of general deterrence in sentencing for child abuse material offences. I accept however that it does mean that a custodial sentence will weigh more heavily on this offender and given the progress he has made with his rehabilitation it has reduced the significance of specific deterrence in the sentencing process.

(2)(p) The probable effect of any sentence on the offender’s family

  1. I find that the offender’s arrest has had a significant impact on the offender’s parents, family and close friends. His parents have left their hometown of many years to move to Sydney to support the offender but were unable to attend court at the sentence hearing given the widespread publicity and nature of his offending. In Totaan v R [2022] NSWCCA 75 the Court of Criminal Appeal held that this was a relevant factor in the sentencing synthesis and it was not necessary to find that such hardship was exceptional. I accept that it is a matter to be taken into account here.

  2. I do not accept that the media reports on the offender’s arrest and charging amounts to extra-curial punishment in this case. The offender has accepted that open justice is a paramount consideration and the fact that media coverage has impacted the offender and his family is a matter of little weight in the sentencing process. Further, loss of professional employment is a natural consequence of a conviction for offending involving child abuse material. I accept the Crown submission that it was a direct and inevitable consequence that sexual offending involving children would lead the offender who was a person trusted with the care of children on behalf of the community to lose such a position of trust and authority.

  3. I accept the research outlined in the Bar Book Project chapter “Child Sexual Abuse” including, inter alia, the finding that although most victims of child sexual abuse do not go on to offend, the risks of subsequent offending are higher than for the general population. The basis for this is multifactorial but here, notwithstanding both childhood and adult sexual trauma, the offender consistently failed to disclose such trauma or obtain treatment in respect of it and, notwithstanding the physical and psychological impact of it, went on to achieve academically and in his employment. These are compelling subjective factors to be taken into account in his favour. However, such subjective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the case – see Kearsley v R [2017] NSWCCA 28 per Macfarlan JA at [14].

  4. I have had regard to the maximum penalty of 15 years imprisonment for each offence in Sequence 1 and 3. The maximum penalties indicate the seriousness of the offending as viewed by Parliament and are a guidepost in the sentencing process for each offence.

  5. S17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. I have had regard to the comparative cases referred to by the Crown which are relevant to the distillation of relevant sentencing principles, and consistency in the application of those principles rather than numerical equivalence.

  6. Having regard to the objective seriousness of the offending, the mitigating factors set out above including a total utilitarian discount of 30%, and having regard to the subjective factors outlined above, after having considered all other available sentences I am satisfied that no other sentence other than imprisonment is appropriate in all of the circumstances of the case. I therefore intend to sentence the offender in respect of Sequence 1 to a term of imprisonment of 4 months and in respect of Sequence 3 a term of imprisonment of 2 years and 8 months.

  7. S19(5) and s19(6) of the Crimes Act provide as follows:-

“(5) An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for:

(a) another Commonwealth child sex offence;

…

(6) Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.”

  1. Because the offences occurred close in time and arose in the same circumstances, I intend to make the sentences partially concurrent and impose a total term of imprisonment of 2 years and 10 months.

  2. I intend to make a recognizance release order pursuant to s19AC of the Crimes Act 1914 for your release after a period of 1 year and 6 months and the sentence is to be backdated to take effect from 9 May 2023. The recognizance release order will therefore take effect on 8 November 2024. The balance of term will be a period of 1 year and 4 months and will expire on 8 March 2026.

Orders

  1. I order as follows:-

  1. You are convicted of the following offences:-

  1. Sequence 1, an offence pursuant to s474.22(1) of the Criminal Code Act 1995 (Cth) of transmitting child abuse material using a carriage service; and

  2. Sequence 3, an offence pursuant to s474.22A(1) of the Criminal Code Act 1995 (Cth) of possessing or controlling child abuse material obtained or accessed using a carriage service.

  1. In respect of Sequence 1 I impose a sentence of imprisonment of 4 months.

  2. In respect of Sequence 3 I impose a term of imprisonment of 2 years and 8 months.

  3. The sentences are to be served partially concurrently and the sentence in Sequence 1 will commence on 9 May 2023 with the sentence in Sequence 3 to commence on 9 July 2023.

  4. The total effective sentence will be a term of imprisonment for 2 years and 10 months commencing on 9 May 2023 and terminating on 8 March 2026.

  5. I make a recognizance release order pursuant to s19AC of the Crimes Act 1914 (Cth) for your release after a period of 1 year and 6 months imprisonment that is on 8 November 2024, upon entering into a recognizance self in the sum of $1000 on the following conditions that he:-

  1. Be of good behaviour for a period of 16 months; and

  2. Be subject to the supervision of Community Corrections; and

  3. Obey all reasonable directions of his probation officer; and

  4. Undertake such treatment and rehabilitation programs that his probation officer directs; and

  5. Not travel interstate or overseas without the written permission of his probation officer.

  1. Your release order will terminate on 8 March 2026.

  2. Pursuant to s23ZD of the Crimes Act 1914 (Cth) I order that the following items be forfeited to the Commonwealth:-

  1. Apple iPhone 13 Pro Max

  2. Silver Nokia TA-1211 Mobile Phone

  3. Apple Air Laptop.

**********

Decision last updated: 12 May 2023

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Cases Cited

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Statutory Material Cited

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Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4
R v Hoar [1981] HCA 67
Kearsley v R [2017] NSWCCA 28