R v RJ

Case

[2014] ACTSC 226

29 August 2014


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v RJ

Citation:

[2014] ACTSC 226

Hearing Date:

25 August 2014

DecisionDate:

29 August 2014

Before:

Penfold J

Decision:

See [49] to [57] below

Category:

Sentence

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for offences of production and possession of child pornography and using a carriage service to access, transmit and solicit child pornography -  production involved offender’s then six-year-old daughter – offender otherwise of good character – offender displayed little remorse – total sentence of four years and 10 months imprisonment – ACT non-parole period of two years and 10 months – Commonwealth sentences subject to recognizance release order at end of ACT non-parole period.

Legislation Cited:

Crimes Act 1914 (Cth), s 23ZD

Criminal Code 1995 (Cth), s 474.19

Crimes Act 1900 (ACT), ss 64(1), 65

Crimes (Sentencing) Act 2005 (ACT), s 37

Cases Cited:

R v Dummett [2013] ACTSC, Burns J, 30 October 2013

R v BJW (2000) 112 A Crim R 1

Doushav R [2008] NSWCCA 263
Hutchins v The State of Western Australia [2006] WASCA 258

R v Kanawaza [2013] ACTSC, Murrell CJ, 2 December 2013
Minehan v R [2010] NSWCCA 140
R v Morosi [2013] ACTSC, Burns J, 28 August 2013

R v TW [2011] ACTCA 25

Parties:

The Queen (Crown)

RJ (Offender)

Representation:

Counsel

Mr A Webb (Crown)

Mr S Gill (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Capon & Hubert Lawyers and Mediators (Offender)

File Numbers:

SCC 18 of 2014; SCC 19 of 2014

Publication Restriction:

Identifying information (including offender’s and victim’s names)

  1. RJ has pleaded guilty to one charge of using a child for the production of child pornography, one charge of possessing child pornography, and three charges of using a carriage service in relation to child pornography material. 

  1. The first two offences arise under ss 64(1) and 65 of the Crimes Act 1900 (ACT), and the other three under s 474.19 of the Commonwealth Criminal Code 1995.  All except the possession offence carry maximum penalties including 15 years imprisonment, while the possession offence carries a maximum penalty including seven years imprisonment.

  1. Before describing the individual offences, it is necessary to explain briefly the scheme that has been used for the purpose of classifying the child pornography to which the various offences apply.  The scheme uses a scale known as CETS (Child Exploitation Tracking System), which recognises six different kinds of child pornography, five by reference to their subject matter and the sixth by reference to the nature of the descriptions, as follows:

Category 1: sexually suggestive posing with no sexual activity.

Category 2: non-penetrative sexual activity between children or solo masturbation by a child.

Category 3: non-penetrative sexual activity between adult(s) and child(ren).

Category 4: penetrative sexual activity between children or adult(s) and child(ren).

Category 5: sadism, humiliation or bestiality.

Category 6: animated or virtual depictions of children engaged in activity covered by Categories 1 to 5.

  1. The first offence is described in the statement of facts as follows:

At about 9.38am on Monday, 30 January 2012, [RJ] was at home with his daughter, ... (then six years old) and made her get undressed and lie naked on his bed.  [RJ] took four photos of her posing.  He then made her lie on her back with her legs apart.  [RJ] used his camera to film her while he touched her genitalia with his thumb and index finger spreading her labia open.  [RJ] said, “Look at that lovely pussy all nice and open.”  [RJ] then panned up to the camera and filmed [his daughter]’s face.  He said, “smile.”  [The child] winked at the camera and [RJ] laughed.  The video lasted 16 seconds.  The photos were later categorised as CETS 1 and the video categorised as CETS 3. 

  1. The first of the carriage service offences relates to using a carriage service to access child pornography.  It is described as a “rolled-up” charge because it covers 10 separate instances of accessing child pornography from the Internet, which took place between 7 and 15 March 2013.  The Internet searches were apparently for images of naked young girls and RJ accessed, by my count, a total of 189 images all classified as level 1 CETS, and 136 images later classified as including images at both levels 1 and 2 on the CETS scale.

  1. The second carriage service offence involved transmitting child pornography.  In March 2013, RJ, using hushmail.com (apparently a service which encrypts emails for greater security), engaged in an exchange of emails with a user of a particular child pornography web site who, unbeknownst to him, was a police officer operating on behalf of the Queensland police. To one of those emails RJ attached three images of his daughter, lying naked on a bed with her bottom and back exposed.  It is fair to say that these particular photographs had no obvious sexual connotations and could in other contexts have had an innocent place in a family photo album.  However, these photographs had been taken shortly before they were sent, while he stayed with the child, then aged seven, at a hotel in Wollongong, and other more revealing photographs of the child were also taken on the same weekend.  The accompanying email made it clear that the photographs were intended to be titillating, and included disturbing comments implying that RJ’s daughter was enthusiastic about his photographic activities, and possibly about activities with men other than her father.

  1. The third carriage service offence relates to soliciting child pornography.  Also in March 2013, RJ sent emails to users of the website already mentioned about the possibility of trading photographs.  These included an email to one user who claimed to be engaged in sexual activity with an 11‑year-old and a 13‑year-old girl (and who, I was advised after the sentence hearing, was also an undercover police officer).  RJ’s email asked the other user whether he had any pictures of the 11- or 13‑year-old, using the expression SC which the prosecutor said, without challenge, is a reference to “soft core” pornography, and implying that RJ would like to see such pictures.  One of these emails also contained a disturbing suggestion that RJ’s daughter was interested in sexual activity as follows:

I have a 7y (g) soon 2 be 8 who loves me ‘heaps’ and we were discussing participation by others too ..  She was interested.

  1. Finally, the possession offence was committed over the period from January 2012 until March 2013.  It involved 176 images.  RJ saved 90 child pornography images to his black Antech computer.  He saved four pornographic images of his daughter and the pornographic video the subject of the first charge to an SD card which he kept in his camera bag.  He saved 22 pornographic images of his daughter taken in March 2013 to a different SD card, also kept in his camera bag.  He saved more than 60 child pornography images to his HP EliteBook laptop computer. He also possessed the images attached to emails that he sent using his hushmail.com account. 

  1. The images possessed were mainly prepubescent females aged between four and 15 years including, as already indicated, RJ’s daughter.  The images ranged from girls posing naked up to non-penetrative sexual activity between two children and between a child and an adult.  I am told that these images were all assessed as at CETS level 1. 

10.  The parties agreed that the number of different children shown in the material the subject of the possession charge was about 50. 

11.  As well as the video to which the first charge relates, and the three images of RJ’s daughter sent in the transmission offence, I have viewed what is agreed between the parties to be a representative sample of the other child pornography.  I am satisfied that the CETS classifications indicated in the statement of facts are appropriate.

12.  On 13 March 2013 the Queensland police referred RJ’s user name to the AFP, who linked it to an IP address assigned to RJ.  A search warrant was executed at his home early on the following Saturday morning.  RJ’s family was at home but he was in Adelaide.  Police searched the computers in the house and found some child pornography.  They identified RJ’s daughter, who was present, as the child shown in some of the pornographic images.  Later that day police interviewed the daughter, who said that RJ had often taken photographs of her naked, and was often naked himself when he did so.

13.  RJ was arrested in Adelaide and admitted looking for child pornography on the Internet and communicating with other users of child pornography.  RJ claimed that he was running a “sting” operation looking for paedophiles so he could report them to police, but conceded that he had not reported anyone to police.  He denied that he had any photographs of his daughter, but when told that police had recognised both his daughter and the bed linen from his house, he declined to answer any further questions. 

14.  Sometime later, RJ gave police passwords for some of the devices they had seized from him and his home, and for the email account he used to pursue child pornography.  I note this as some assistance to the authorities. 

15.  RJ spent seven days in custody before being released on bail. 

16.  RJ pleaded guilty to the production charge in October 2013 at a case management hearing – this is the charge about which his daughter would have been required to give evidence if the matter had gone to trial, and I accept that as some indication of remorse as well as noting its utilitarian value.  He pleaded guilty to the remaining charges in January 2014, still before the matters had been committed to the Supreme Court. 

17.  The use of a carriage service to access child pornography is a relatively low-level example of the offence concerned, given that the images concerned were classified as CETS 1, except for one group of CETS level 2 images, and that the total number of images was not large. 

18.  The transmission offence involved the transmission of photographs of RJ’s daughter (albeit not particularly revealing photographs) which, as far as RJ knew, would quite likely be disseminated widely around the Internet.  This is a dramatic indication of how readily RJ took advantage of his own daughter in pursuit of whatever perverse gratification he obtained from communicating his abuse of her to what he thought was a like‑minded person.  RJ’s comment to the Pre-Sentence Report author that, because he in fact sent the images to a police officer, they would not finish up on the Internet is his daughter’s good luck, but I cannot see that it reduces his culpability in relation to this offence.

19.  The use of a carriage service to solicit pornographic images was in my view more serious in that it involved a request for photographs of 11- and 13‑year-old girls with whom RJ’s Internet correspondent claimed to be having sex.  That is, as far as RJ knew, he was potentially inviting further degradation of the children concerned by the production of new child pornography images of them.  As with the transmission offence, the fact that this offence involved a police officer and that there were no 11- and 13‑year-old girls at risk does not reduce the gravity of RJ’s behaviour.

20.  The possession offence would not be a particularly serious offence, again because of the low classification of the images possessed, except for the fact that those images included images of RJ’s own daughter, and that although the number of images was relatively low, a lot of different children were affected.

21.  Clearly, the most serious of the offences is the production offence.  RJ’s attitude to his daughter, as also indicated by some of his email comments about her to which I have already referred, displays a sickening absence of a normal father’s determination to protect his child from any harm and especially to protect her from exploitation by sexual predators; instead, RJ has breached his position of trust, and abused his authority over his daughter, by becoming a sexual exploiter and predator himself. Having regard to the range of more serious child pornography that regularly comes before the courts, and to the far more serious degradation and cruelty to which some children are subjected in the production of that more serious pornography, I hesitate to classify this offence as of mid-range seriousness, but it is certainly not a low-range offence.

22.  RJ’s wife read her Victim Impact Statement to the court.  She described the disturbance caused by the early morning execution of the search warrant in RJ’s absence, at which point she was caring for their two children and was six months pregnant with their third child.  She described the shock of realising in the course of the activities of the police officers that some of the child pornography found by the police actually involved her own daughter, and the distress caused by her sense that she had not been able to protect her daughter from abuse:

Suddenly my whole world came crashing down around me.  How could this man I thought I knew, do this to my child.  I trusted this man to be my partner in protecting our children, the one person in the world that I could expect to protect my children and love them as much as I do, had violated my daughter.  In that moment my heart broke and I wonder if it will ever be healed again.  I wonder if I will ever fully recover from this.

I feel incredible guilt over this situation.  I trusted this man with my children.  I thought they would be safe with him while I went out with friends, or went shopping or for whatever reason he was left alone with my daughter.  I did not believe he was capable of doing something like this and I wonder if I will ever truly forgive myself for not seeing what had been happening for a while. This situation has affected my relationship with my daughter as I wonder if she trusts me.  I wonder if she understands that I didn’t know what her father had been doing to her and if I had known I would have done everything in my power to put a stop to it.  I wonder how confused and afraid she must have felt while he was abusing her.  I wonder how hard it was for her to disclose this information to police when she has never spoken a word of it to me or anyone in my family. Yet at the same time I admire her bravery for speaking to police.

At the beginning it was very difficult trying to explain to the children why they couldn’t see their father again.  It was heartbreaking explaining to my son what had happened.  My daughter was aware of what had happened and at first I think she blamed herself.  They took it hard.  Both of the kids now hate their father and want nothing to do with him.

Everyone wants their children to be happy and have a good relationship with their father, but because of what he has done this just cannot happen.  My baby has never met her father and won’t ever meet him.  ... That makes me sad knowing that she is growing up without a father.  I feel immense sadness and grief for the fact my children will have no relationship with their father, but there is nothing I can do about it.  This was not my choice, the choice has been made for me by him. 

I do not trust people with my children, especially my daughters.  This has a huge impact on future relationships as I do not like to leave my daughters unsupervised with a man. ...

One of the most traumatic aspects of this experience for me has been a feeling as though personal parts of my private life and marriage have been put out there for the world to see.  I am sick to death of counselling sessions, half of my life seems to be taken up by counselling appointments either for me or my children.  I know that at this point they are very much needed due to my depression and anxiety. ... there have also been Family Court sessions, meetings with my lawyer, applying for a DVO in two states, dealing with Legal Aid and dealing with child support and Centrelink.  I have also had to tell the schools about our situation as well as continuing conversations with police, prosecution and witness assistants at a time I would rather just bury my head in the sand and forget it’s happening. ... I have also considered suicide more than once since this happened.  It’s not just the trauma of discovering what the man I once loved and thought the world of has done to my child, it’s the fact that I am now a single mother of three children.  I did not choose this as my life, it is what my children and I have to live with. ... It’s an uphill battle some days getting out of bed and continuing to study and care for my children, but somehow I find the strength to keep moving forward one day at a time.

23.  RJ’s wife noted that her problems trusting men with her children caused a variety of problems in their daily lives, such as with male teachers.  She has lost contact with mutual friends who she believes may still be in contact with RJ, she knows that some people who knew the family have guessed what has happened, and she has difficulty in explaining her situation to new people she meets.  Her children have lost contact with cousins on RJ’s side of the family, which has been hard for them.

24.  The family left Canberra and have started a new life in a town some distance away.  RJ’s wife had to leave her job, and has depended on her family for accommodation and support.  She struggles financially, and notes her limited career options resulting from her choice to stay at home and raise her family.  She found the first year after her third child was born particularly stressful, and the baby appears to have suffered from that.

25.  She concluded:

I do not know if I will ever get over this.  Some days are great, and I don’t think about it.  The kids don’t talk about it, but that doesn’t mean they don’t think about it.  I have not felt safe knowing he is able to do what he wants while I have had to pick up the pieces and clean up the mess he made. My life has changed.  I’lll never be the same person I was.  I find myself wishing I had never met him and that’s very hard to deal with because I have three children with him.  I wish I had never met him but at the same time I love my children with everything I am.  I just want to feel normal again.  I don’t know if I ever will.

26.  Attached to the Victim Impact Statement was a drawing done by RJ’s daughter, which reflected the child’s sense that her father was not a safe person for her to be with. 

27.  RJ is now 38.  He has no prior criminal record, and seems to be otherwise of good character. 

28.  RJ has expressed little remorse apart from such as can be inferred from his pleas of guilty, particularly the plea to the production offence.  Although telling the Pre-Sentence Report author that he was responsible for his own actions, he has made comments that suggested a desire to minimise his culpability.  These include claiming:

(a)that stress related to his business and a dysfunctional marriage had distorted his judgment;

(b)that he could not remember filming his daughter and might have been drunk; and

(c)that the carriage service offences were committed in the hope of getting a job with the ACT Police by demonstrating his skills at detecting sex offences over the Internet.

29.  RJ told the Pre-Sentence Report author that he took the photographs of his daughter in Wollongong when he was bored, and he claimed to have deleted the more risqué photos among them.  According to the Pre-Sentence Report author, RJ does not appear to have any significant insight into the effect of his actions on his daughter, and blames his wife for cutting off any contact between him and his children. 

30.  The Pre-Sentence Report records little in the way of personal information about RJ, despite the fact that the preparation of the report involved extensive interviews with him. However, the report notes:

RJ ... was raised in a single parent household by his mother after his parents divorced when he was six months old.  He stated his family were involved in a Christian Missionary throughout his childhood and his mother was not involved in any subsequent relationships. 

RJ ... met his wife in 1999 when he was 21 years of age through a Christian organisation and they married in 2001 after his wife became pregnant with their first child.  The couple have two other children aged nine and one. 

RJ stated the couple continued to have a significant affiliation with the Christian organisation until 2008. ...

RJ described his marriage of 14 years as unhappy and dysfunctional.  He stated he and his partner were mostly at odds with decision making and he constantly felt pressure to support the family financially and emotionally.  RJ reported several extra marital affairs which he justified occurred as a result of an unhappy and unemotional union with his wife.

RJ stated he and his wife separated as a result of the current charges and there is a current protection order in place preventing him from having any contact with his wife or children. 

RJ stated he currently resides with two friends he met through his church several years ago.  He stated he would like to relocate to New South Wales or Queensland once the current court matters are finalised as he reported he will be unable to gain regular employment in the ACT due to his tarnished reputation as a result of the charges.

RJ .,.. completed his high school education by way of home schooling and his college education at the Canberra Institute of Technology.  Since that time he had completed some formal training in Information Technology. 

RJ spent most of his career in the area of Information Technology, and he had owned various businesses and held various positions both in government and the private sector. RJ’s ... longest running IT business was from 2007-2013.  He reported the business was challenging and as it was wavering financially, it placed consistent strain on his marriage.  ... this business went into liquidation in 2013. 

RJ ... recently began trading as a sole trader in IT, however, due to the Bail Order conditions restricting his access to the Internet, claimed he had a friend who undertook work that required Internet access.  This information was verified by RJ’s friend who stated he is aware of the offences.

RJ declared bankruptcy in April 2014.  He was in receipt of a Centrelink allowance until July 2014 however, ceased the payments as he found it difficult to maintain the expectations of Centrelink and now supports himself with the profits from his business. 

31.  RJ does not use recreational drugs, but has been a regular although moderate drinker of alcohol.  He appears to have no other recreational activities except computer use, from which he is now largely excluded by his current bail conditions.

32.  Since April 2013, about a month after RJ was charged, he has been seeing a counsellor, an ordained Uniting Church minister currently working as a counsellor in private practice; the counsellor made it clear to the court that he is not a qualified psychologist and could not offer any clinical diagnosis at all. 

33.  He described RJ as making significant progress in the last 16 months.

34.  In the first few months, the counsellor said, RJ suffered extreme stress and pain about his circumstances and that of his family.  Those circumstances included that neither RJ nor his extended family have been able to see RJ’s wife or children or to find out about their welfare, that there are problems between RJ and other members of his extended family, that he has lost friends and other social supports, and that he has lost his business and because of his bail conditions cannot find work as an IT analyst. The counsellor understands that RJ has been diagnosed with depression and has contemplated suicide, and saw his primary role as keeping RJ safe until he was emotionally strong enough to examine his own contribution to his parlous circumstances. 

35.  The counsellor reported that in the last few months RJ has begun to face up to his own actions.  Having previously described his behaviour as naïve and extremely stupid, RJ has recently been able to articulate to his counsellor that his behaviour was wrong and harmful to his daughter.  He has told the counsellor that he is disgusted and sickened by his behaviour and remorseful about it, and would beg his children’s forgiveness.  Furthermore, the counsellor says, RJ now concedes that his behaviour cannot be blamed on stress or alcohol but was a matter of personal choice. 

36.  I agree with the counsellor that such a concession, if it is genuine, is a major breakthrough. However, I note that RJ gave no direct evidence of his current attitude to his offences, and nor did he seem to have expressed anything of the kind reported by the counsellor in his quite recent dealings with the Pre‑Sentence Report author.  There was no suggestion that RJ had sought help from anyone in dealing with his sexual interest in children, or even that he had conceded that he had such an interest.

37.  I accept that RJ has already suffered major consequences as a direct result of his actions, the most significant being the loss of his family, his other relationships, and his livelihood. 

38.  These offences, especially the production offence, are offences for which general deterrence is both important and potentially effective.  It is important to deter such behaviour not just because of its damaging impact on children but because it is behaviour that despite its damaging effects may not come to light, either for a long time or at all.  Deterrence may be effective because such offences are not often committed in the heat of the moment. 

39.  The evidence I have heard about RJ’s reaction to these offences has not convinced me that he does not need personal deterrence. 

40.  The Pre-Sentence Report author gave evidence that the Adult Sex Offender Program could be completed in custody or in the community, or partly in each.  She noted that an offender needs to accept full responsibility for his actions before he can join the Adult Sex Offender Program.  Alternatively, Corrective Services may be able to provide a psychologist in private practice who could see RJ. 

41.  She also advised that:

A preliminary risk assessment in relation to sexual offending was carried out by staff of the ACT Corrective Services Corrections Programs Unit which resulted in RJ being assessed as a low risk of further sexual offending.  It is noted the risk assessment was based on static facts in the offender’s life and did not take into account the offender’s attitude towards his offending behaviour.  Further assessment would be undertaken upon the offender being sentenced.

42.  I note that that assessment was done, as described, on the basis of static factors, and those static factors meant that he would also have been assessed as at low risk of re-offending before the commission of these offences.

43.  Counsel drew my attention to the case of Minehan v R [2010] NSWCCA 140 at [94] which lists relevant factors in assessing the seriousness of possession of child pornography, Doushav R [2008] NSWCCA 263 (at [49]) to the effect that good character is less significant in child sex cases, and Hutchins v The State of Western Australia [2006] WASCA 258 at [26] for the proposition that an absence of payment for child pornography images or access is not a mitigating factor. As well, they referred me to several sentencing decisions in cases that were to some extent comparable to this one.

44.  R v Dummett [2013] ACTSC, Burns J, 30 October 2013; R v Kanawaza [2013] ACTSC, Murrell CJ, 2 December 2013; and R v Morosi [2013] ACTSC, Burns J, 28 August 2013, involved child pornography possession, access or transmission offences. I take from those sentences, and from others I am aware of, that such offences are almost always met with prison sentences, but that for offences at the lower end of the scale, in particular those involving a relatively small volume of images and images consisting of fairly low-level child pornography, those sentences are often suspended.

45.  Only the case of the R v TW [2011] ACTCA 25 (TW) included an offence of using a child for the production of child pornography.  In TW, the ACT Court of Appeal by a majority upheld a Crown appeal against 13 sentences, including five for production offences. However, the appeal had been run on the basis that the sentencing judge had misapplied the totality principle.  There was no challenge to the individual sentences for the production offences, which were in each case 26 months imprisonment, reduced from three years by a 30% discount for a guilty plea and assistance to the authorities, and no change was made to those sentences by the Court of Appeal.

46.  TW’s production offences included photographing his one-year-old son playing with TW’s erect penis, and photographing the genitals of several children of friends during social occasions.  RJ’s production offence seems to me to be a more serious example of the offence, in particular because his daughter’s face is included in the video and because his daughter was required to display some enjoyment of the process. 

47.  Despite the often-quoted proposition that sexual abuse of children is worse the younger the child (see for instance R v BJW (2000) 112 A Crim R 1 at [20] – [21]), it seems to me that RJ’s treatment of his six‑year-old daughter was in fact more wicked, and more likely to do long term damage, than TW’s invitation to his baby to play with an erect penis. 

48. I have noted RJ’s relatively early guilty pleas and have provided sentencing discounts – the somewhat larger discount for the production sentence reflects both the earlier plea and RJ’s assistance to the authorities by way of providing passwords to police. For strict compliance with s 37 of the Crimes (Sentencing) Act 2005 (ACT), I note that the reduction from the starting sentence was 5% for that assistance to authorities, with the remainder of the discount attributable to the guilty plea.

49.  RJ, please stand.  I record convictions on one charge each of using a child for the production of child pornography, possessing child pornography, using a carriage service to access child pornography, using a carriage service to transmit child pornography, and using a carriage service to solicit child pornography. 

50.  I now sentence you to imprisonment as follows:

(a)for the production offence – three years and two months, reduced from four and a half years for your guilty plea;

(b)for the possession offence – seven months imprisonment reduced from nine months;

(c)for the access offence – 18 months reduced from 24 months;

(d)for the transmit offence – 18 months reduced from 24 months; and

(e)for the solicit offence –  two years reduced from two years and eight months. 

51.  Those sentences will be served as follows:

(a)the production sentence will start on 22 August this year and end on 21 October 2017;

(b)the possession sentence will run from 22 September 2017 to 21 April 2018;

(c)the access sentence will run from 22 February 2017 to 21 August 2018;

(d)the transmission sentence will run from 22 June 2017 to 21 December 2018; and

(e)the solicit sentence will run from 22 June 2017 to 21 June 2019. 

52.  That gives a total term of four years and 10 months, made up of a total ACT term of three years and eight months, and a total federal term of two years and four months, with a total of 14 months concurrency between those two terms.

53.  For the ACT offences I set a non-parole period of two years and 10 months.  One of the Commonwealth sentences will have run for four months by then, and the other two will start at that point.  For the three Commonwealth offences, I direct that on 22 June 2017, immediately after the ACT non-parole period has expired, you are to be released upon giving security in the amount of $500 on your own recognizance that you will be of good behaviour for a further two years (the recognisance release order runs from 22 June 2017 to 21 June 2019).

54.  Since you will at that stage either still be serving the ACT sentences in custody, or be subject to parole supervision for a further 10 months, I see no need to attach a separate supervision condition to the recognizance release order. 

55.  The total sentence will be backdated, as I indicated earlier, to 22 August 2014 to take account of your seven days in custody already, and so it will run until 21 June 2019. 

  1. The effect of the backdating and the non-parole period is that you will be eligible for release on parole at the earliest in just under 34 months, namely 22 June 2017. 

57. I make a forfeiture order under s 23ZD of the Crimes Act 1914 (Cth) in relation to the following items of property seized by members of the AFP during the execution of a search warrant and search of RJ on 16 March 2013:

(a)an SD card located in the bottom pocket of the camera bag;

(b)an SD card located in the top pocket of the camera bag;

(c)an HP EliteBook laptop;

(d)a black Antech 1 of 2 hard drive; and

(e)a RAID 2 of 2 hard drive. 

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

Associate:

Date:

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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R v BJW [2000] NSWCCA 60
Dousha v R [2008] NSWCCA 263