R v Roberts

[2019] NSWDC 282

District Court

New South Wales

Medium Neutral Citation:	R v Roberts [2019] NSWDC 282
Hearing dates:	29 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	see paragraph [98]
Catchwords:	Sentence – possess / transmit / access child abuse materials
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1914 (Cth) Commonwealth Criminal Code
Cases Cited:	Fitzgerald v R [2015] NSWCCA 266 Lyons v R [2017] NSWCCA 204 Markarian v The Queen (2005) 228 CLR 357 Minehan v R [2010] NSWCCA 140 Mouscas v R [2008] NSWCCA 181 R v Gent (2005) 162 A Crim R 29 R v Linardon [2014] NSWCCA 247 R v Martin [2014] NSWCCA 283 R v Thomson and Houlton (2000) 49 NSWLR 383 Weininger v The Queen (2003) 112 CLR 629 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) Gavin James Roberts
Representation:	Solicitors: Mr McCaw for the Commonwealth Mr Randle for the offender
File Number(s):	2018/33295
Publication restriction:	Nil

Judgment

INTRODUCTION

1. HIS HONOUR: The offender has pleaded guilty to three Federal offences and one State offence being:

1. use carriage service to transmit child pornography in breach of s 474.19(1) of the Criminal Code (Cth);

2. use carriage service to access child pornography in breach of s 474.19(1) of the Criminal Code (Cth);

3. possess child abuse material in breach of s 91H(2) of the Crimes Act 1900 (NSW); and

4. commit an offence under s 474.19 on three or more occasions involving two or more people in breach of s 474.24A(1) of the Criminal Code (Cth).

AGREED FACTS

2. The agreed statement of facts runs to some 12 pages. Part of its length is due to its recitation of text messages involving the offender as well as descriptions of the images the subject of the offences. In the course of the sentencing hearing an objection by the offender to a sample of the material being viewed by the Court was upheld. Part of the reasoning for that decision was that the material was adequately described in writing, as well as the concession by the offender that the material was of the most depraved and degenerate kind.

THE FIRST OFFENCE

3. The first offence, the transmit charge, occurred between 17 November 2017 and 31 January 2018 and carries a maximum penalty of 15 years imprisonment and/or 900 penalty units. The details of this offence are that the offender used a Messenger application, known as “Kik” on his phone to transmit child pornography to other Kik users. This material was classified using the Child Exploitation Tracking System (“CETS”). The images that were transmitted by the offender included images in categories 1, 3 and 4. A category 1 image is an image that is sexually suggestive posing with no sexual activity. A category 3 image is non-penetrative sexual activity between adults and children. A category 4 image is of penetrative sexual activity between children or between adults and children.

4. The evidence shows conversations between the offender and other people. The facts set out parts of these conversations which include a conversation on 4 December where the offender had a conversation with a person who had told the offender he was 15 years old. That conversation was as follows:

Offender: So what age porn do you have?

AH: I got a video of a two year old getting face fucked. Vids up to 12.

Offender: That’s hot.

5. The offender then sent two category 4 images. Each image showed a pre-pubescent child with an adult male penis inside their buttocks and then were the words “like that?”.

6. On 2 January 2018 the offender, who told those he was messaging that he had a young son, had a conversation on Kik to the following effect:

MN: Do you have a picture of your son? I would like to see you both.

Offender: He could deep throat, I don’t show that. Sorry for obvious reasons.

MN: I know, it’s fine. LOL

Offender: Thanks.

MN: Anything else he’s done?

Offender: Just suck and kiss and swallow.

7. The offender then sent a category 1 image of a pre-pubescent naked male doing a handstand in the shower. There was then this conversation between MN and the offender,

MN: LOL so cute.

Offender: He has a cute arse, smooth and round.

8. On 4 January 2018 the offender sent a category 4 image to a Kik user showing a pre-pubescent male performing fellatio on an adult male. On 18 January 2018 the offender transmitted a category 1 image and category 4 image to a user of Kik, and the conversation in relation to that included the offender saying, “yeah good thanks, you like baby getting mouth fucked?”.

9. On 29 January 2018 the offender sent category 1 images to a Kik user with whom there was a conversation in which the offender said, “and yes the baby vid was the craziest I had ever seen. Didn’t even know it was possible to get seven or so inches in a baby ass balls deep”, and “maybe well he succeeded and he was pumping hard I felt dirty watching it but I couldn’t stop”, and, “yeah I love seeing pics of a dad and his son knowing the mum is taking them!”

THE SECOND OFFENCE

10. This offence occurred between 4 December 2017 and 31 January 2018. In this offence the offender received a category 4 video over the Kik app and a category 1 image on 27 January 2018. On 30 January 2018 a category 1 image and a category 4 image was accessed. Throughout the whole of the offence period the offender accessed 43 images and eight videos with one image and three videos being category 4 and 41 images and three videos being category 1. The style of the text messages were similar to that with offence 1 with its reference to “fucking a baby”, including this from the offender:

“Better if you can’t talk yet. A newborn what could we do though. Ready to serve his master.”

THE THIRD OFFENCE

11. The third offence dealt with in the facts is the third of the Commonwealth offences, namely an offence under s 474.24A(1) of the Criminal Code (Cth) which is the offence of committing an offence against s 474.19 of the Criminal Code on three or more occasions involving two or more people. This carries a maximum 25 year prison term and/or 1500 penalty units. The facts are that on the Kik application the offender was a member of two group conversations, one called “Baby and Toddlers” and the other “Boy Links 0-15”. Each group had 50 members. In respect of the group conversation “Baby and Toddlers” the offender both accessed and transmitted images including on 30 January 2018 accessing ten images and six videos including three images of a category 4 type and four videos of a category 4 type. That same day the offender transmitted 11 files to the chat group including four videos of a category 4 type. The chat that accompanies these activities includes on the occasion of sending a category 4 video the offending asking, “Too much?”, with the responses of “no”, and “more please”, being responded to by the offender with, “I love how the mother is just serving that little arse up to be destroyed”. On 31 January 2018 the offender accessed a category 4 video from this chat group showing an adult male having sexual intercourse with a pre-pubescent child.

12. In respect of the chat group “Boy links 0-15” on 30 January 2018 the offender transmitted four category 1 images and later that day accessed a total of 39 images and four videos.

THE FOURTH OFFENCE

13. The fourth of the offences with which the offender is charged and has pleaded guilty to is under the State legislation, specifically s 91H(2) of the Crimes Act 1900 (NSW) of possess child abuse material, which carries a maximum sentence of ten years imprisonment. The accused had a number of electronic devices including an iPod touch, iMac computer, a Samsung S6 mobile phone, a Samsung 8+, a Samsung note and an Apple iPhone. Child abuse material was found stored on each of these devices. On the iPod touch was stored 26 images and five videos depicting children from six months of age to 12 years of age approximately. The facts state the files contained images of boys but it is not stated whether that was exclusively so. There are over 13 different victims in the material.

14. On the iMac was stored a total of 15 images and 246 videos including 175 of the category 4 type and 27 of the category 5. The images were of children from ages of about three months to 15 years of both boys and girls, predominantly boys, and over 100 victims.

15. On the Samsung S6 were 289 video images and 146 videos including 94 videos of the category 4 type and four of the category 5 type as well as 18 category 4 images and 22 category 5 images. This offence also records a category 6 which is not defined by the agreed facts and presumably means something more extreme than bestiality, and in respect of which there were 20 images. However not knowing what a category 6 is, it is difficulty to utilise that categorisation. There has been a concession on the part of the offender that the offending material is of the most depraved kind, and for that reason not knowing what a category 6 is does not prevent determining sentence. There are over 175 different victims in the material on the Samsung S6.

16. The Samsung 8+ stored 374 images in total, including 206 of category 4 type, and 93 videos including 69 of a category 4 type, stored in an encrypted folder. One video of the category 5 type described in the facts is of an infant child aged between three and six months having an adult male forcefully insert his penis into the infant’s mouth with the infant then screaming and crying and with the adult male continuing to slide his penis into the infant child’s mouth until it appeared the child could not breath and the child’s face turned a red and purple colour. This material on the Samsung 8+ shows over 500 different victims.

17. On the Samsung Note was a total of 472 images and 81 videos including 235 category 4 images and 67 category 4 videos. As well as one category 5 image and seven category 5 videos. The children are aged from 12 months to about 15 years.

18. The iPhone had stored on it a total of a total of 1,348 images and 181 videos including 464 category 4 images and 127 category 4 videos and 79 category 5 images and 23 category 5 videos.

19. In total the offender possessed 2,546 images and 752 videos including 1,038 images of a category 4 type and 537 videos of a category 4 type and 129 images of a category 5 type and 62 videos of a category 5 type. On a quick calculation in respect of that charge, that would mean slightly less than 50% of the images would be category 4 and more than 50% of the videos were category 4.

ARREST AND RECORD OF INTERVIEW

20. The offender was arrested on 31 January 2018. In summary, in the course of his record of interview the offender said he felt sick and disgusted and ashamed, consented to the Australian Federal Police using his online identity, and claimed he did not physically do or carry out any of “this”. The offender began using his Kik user name “Naughty D for you” sometime in 2015 or 2016. The offender knew that viewing child exploitation material was an offence, claimed he was not invested in actually doing it and stated that he told other users he was the father of a 10 year old son and that he was “assuming this fake life to impress them”. Access to the images was gained, including by accessing Dropbox accounts. The offender claimed not to have paid for the images and not to be sexually attracted to children, and that he never had sexual contact with a child.

21. Paragraph 67 of the agreed facts conveniently summarises the record of interview. In particular, I note the offender claimed a morbid curiosity, said he deleted items (which was not his evidence orally), he made use of an anonymous email account and Dropbox accounts (not said to be anonymous). The subject material was only on his two mobile phones (later determined not to be so) and he did not pay for any images.

ORAL EVIDENCE OF OFFENDER AND PSYCHOLOGIST REPORT

22. The offender gave evidence at the sentencing hearing. The offender was not a particularly impressive witness. He seemed to suggest in this evidence that he had not deleted the Kik material previously to try and detach himself from what he was doing, which was contrary to what he had told police in his record of interview (see point “f” at page 20 of the agreed facts). He was also keen to put forward the view that what he was doing was fake and that he was assuming an identity to gain popularity and become friends. The suggestion therefore is that the offender, as some kind of explanation for his offending, is suggesting that as his personal life was in an unhappy state, he wished to make new friends and sought to gain their favour by seeking approval for pretending to be a father of a 10 year old son he would sexually abuse. I fail to see how that could be something to be taken into account favourably to the offender in considering the appropriate sentence. The height of it must surely be that he was acting in a way that, he would maintain, he does not ordinarily act.

23. This evidence goes to a number of issues. As just noted, it goes to the question of why the offender acted as he did. It also goes to issues of remorse, contrition and insight. Further in this regard the offender relied on a report of Dr Jeremy O’Dea dated 1 March 2019, and which became exhibit A. That report sets out the offender’s background, which will be referred to below. The most significant aspect of the report in my view is the conclusion that the offender has a “likely homosexual paedophilic component of his sexuality”; see at paragraph 48.

24. At paragraph 41 Dr O’Dea states that the offender struggles to acknowledge any such component. In his oral evidence at the sentencing hearing the offender steadfastly maintained there was no element of sexual gratification in relation to his conduct, yet in the report of Dr O’Dea the evidence is that the offender would “rarely masturbate” while chatting online or accessing the images or videos. That is, on occasion, he would masturbate to the material. That is clearly consistent with the conclusion reached by Dr O’Dea at paragraph 48 just referred to.

25. In his oral evidence the offender expressed great remorse and shame at his conduct. I have no doubt that the offender regrets his conduct but the exact cause of that regret is not, in my view, an appreciation of why it has occurred. My view is that the remorse stems from the embarrassment and humiliation of having been found out. It is to be hoped those emotions, together with the punishment he will receive, will act as deterrents. The offender’s own oral evidence however does not persuade me to the view that the offender has a clear insight into why he has conducted himself as he has, and what it is he needs to do to prevent it happening again. Contrary to the offender’s personal position, the evidence of his psychiatrist shows there are matters which the offender needs to recognise, but does not yet recognise.

26. The result of this material is to raise real concerns as to the likelihood of reoffending, with the interests of the community thus being at risk to that extent.

DISCOUNT FOR GUILTY PLEA

27. The offender pleaded guilty to the offences at the earliest possible opportunity; see Crown submissions at [33]. My view is the offender is therefore entitled to the 25% discount in respect of the State offence for the utilitarian value of the plea, in line with the reasoning of R v Thomson and Houlton (2000) 49 NSWLR 383 and noting that the provisions of Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) do not apply to these proceedings as they were commenced before 30 April 2018.

28. In respect of the Commonwealth offence, I apply the same discount for the reasons set out in Xiao v R [2018] NSWCCA 4 at [268]-[280]. The fact of a guilty plea is a matter to be taken into account pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) and Xiao makes plain that this extends to its utilitarian value.

OBJECTIVE SERIOUSNESS OF THE OFFENCES

29. The offender concedes at [43] of his written submissions that the objective seriousness of the subject offending warrants a sentence of fulltime imprisonment. The submission did not address the objective seriousness of each of the offences separately, and I take the concession as being a reference to each of the offences.

30. In my view that concession is properly made. It is consistent with each of the offences as being at least (as detailed below) towards the middle of the range of objective seriousness.

31. The Crown dealt with each of the offences in turn and made submissions as to each in terms of their objective seriousness. I am conscious of the need to assess the objective seriousness of each offence; see, for example, Lyons v R [2017] NSWCCA 204 at [54].

32. The maximum sentence for each offence is a lengthy term of imprisonment, specifically being 15 years imprisonment or 900 penalty units or both for the s 474.19(1) offences, 10 years imprisonment for the s 91H offence and 25 years imprisonment or 1,500 penalty units or both for the s 474.24A(1) offence. As the Crown’s submissions soberingly point out, the 25 year imprisonment sentence is the most severe sentence other than life imprisonment. These sentences are of course “a yardstick”(see Markarian v The Queen (2005) 228 CLR 357) and other factors will need to be taken into account to determine sentence, but they clearly indicate the seriousness of the offences.

33. In respect of each offence, the videos and images are of real children. These are not some kind of animation (in passing I note reference in R v Linardon [2014] NSWCCA 247 to a category 6 of the CETS scale which includes animation. Although a class 6 is referred to in the agreed facts in this case, it is not defined. This observation is made to avoid any confusion. The point in the present case is simply, but significantly, that people being abused in the images and the videos are real people). In order for these videos and images to be created, children were abused. This case involves images not just of pre-pubescent children, but of babies. It involves, in relation to the s 474.19(1) transmit offence, images of adult males having anal sex “balls deep” with two‑year‑ olds. The concession that the material in this case was of the most depraved and degenerate kind was properly made, and was an inescapable conclusion. The offender knew of this, that is that the children were real and included babies and that they were being abused. Knowing this he on occasion masturbated.

34. The explanation for engaging in this conduct to make friends is in my view unhelpful to the offender. It shows a willingness to engage with people in illegal activity in order to make friends. Without being trite, no explanation is offered as to why the offender chose not to make friends by engaging in legal activities. On the offender’s view of the world, which is one where he does not obtain sexual gratification from this conduct, there seems no more reason to seek friendship in this way than in joining a tennis or chess club. I find that his motivation for engaging in this behaviour was not simply to make friends or because he was lonely, but because he gained some type of satisfaction from this conduct. This finding, coupled with the evidence of Dr O’Dea touched on above, supports a view of the offender as a person who has engaged most willingly and freely in the prohibited activity.

35. It is relevant to consider the number of images and videos. In relation to the s 474.19 transmit offence, 42 images and no videos were accessed (the Crown’s submissions assert 42, though by my count of the facts it appears to be 35; my view is nothing turns on any discrepancy - I might add as an aside I suspect the Crown’s figure is probably more accurate). In relation to the s 474.19 access offence, 43 images and eight videos were involved. In the aggravated s 474.24A offence the total was 79, which included 16 videos. It is an element of the offence that two or more people be involved in respect of the s 474.24A matter. Here the offender was a member of two different chat groups, each of which had 50 members, including the offender. In relation to the State charge mentioned below, the number of images and videos was 3,298.

29. These numbers relating to the Commonwealth offences, whilst not large, nevertheless show a degree of involvement beyond the peripheral. The conversations that accompany the conduct promote the activity and support this view. Such conversations occurred in respect of each of the three Commonwealth offences and were of the same nature. The offender is actively engaged in the support and promotion of the use of the internet in a manner that harms society. It is harmful in the way it clearly engenders a lack of respect for the rights of others, and more bluntly it is harmful in supporting the physical abuse of children. This is not an offender “testing the waters” on his own or with somebody known to him. It is an offender repeatedly accessing this material and repeatedly transmitting it to apparently like-minded people. Dealing specifically with the aggravated offence, the offender is a member of two groups of 50 who collectively engage in this conduct. The membership of these two groups and the evidence also of the offender being asked to be involved in the administration of a third group (“Telegram”), shows a level of involvement of the offender consistent with the level of seriousness of the offences as stated above.

30. The number of images possessed by the offender in respect of the s 91A charge was 2,546 images and 752 videos. By any measure that is a large number. Reference may be made to cases of the number being much greater than that amount, but that does not reduce the number possessed by the offender. I take this number of images and videos in the offender’s possession into account.

31. Also adding to the objective seriousness of each of the offences is the categorisation of the material relevant to each offence. Each charge involved at least one category 4 image or video. In the case of the aggravated charge there were 11 category 4 images or videos. As noted above, category 4 denotes that the imagery is of penetrative sex between children or between children and adults.

32. The Crown’s submissions at paragraph 9 helpfully refer to factors that the authorities have established may assist in determining the objective seriousness of the offending, with reference being made to R v Gent (2005) 162 A Crim R 29, and I would note also the reference to Minehan v R [2010] NSWCCA 140 and R v Martin [2014] NSWCCA 283 at [34]-[35]. The factors identified by the authorities and relevant to this case have been referred to above. This includes the nature and content of the material, the gravity of the sexual activity depicted, the number of images and videos, and the number of people to whom the material was distributed.

33. My findings as to the objective seriousness of each of the offences, by reference to the matters set out above and the factors contained in the Crown’s submissions, and in R v Martin are as follows.

34. Firstly, the s 474.19 transmit offence. My view is that this offence is towards but not at the middle of the range of objective seriousness. The Crown submitted this offence was towards the middle of the range. In addition to the above matters I note adverse to the offender that it included a recipient the offender believed to be only 15 years old. On the other hand there was no suggestion of the offender profiting from the transmissions. The number of images was relatively small, and there were ten images of the 42 in category 4, and none in category 5. Most were in category 1. The transmissions occurred over a period of two and a half months, a relatively brief period. I have commented below on the relevance of the offender’s evidence of having an online identity since 2015.

35. The second offence is the s 474.19 access offence. The Crown submits this offence is objectively serious. My view is that it is of slightly lesser seriousness than the transmit offence. This is because the offending occurred over a slightly lesser time period, less than two months compared to two and a half months, and occurred on fewer occasions (3 compared to 12). It would also seem that the offence can be viewed as being less serious than a transmit offence because the offence of transmit would necessarily seem to involve accessing the material in order to then be able to transmit it. Even if that be wrong, for the reasons just stated I consider this an offence lower in the range of seriousness than the transmit offence.

36. The third Commonwealth offence is the 474.24A aggravated offence. The Crown submits this is a serious example of this offence. There were nine breaches of s 474.19 relied upon over a period of three days. The material involved again extended category 4 material and that material was about 18% of what was involved. What is most serious regarding this offence is the organised chat rooms of 50 members involved in the offending. It adds to the offence an element of organisation not present to that extent in the other offences. For that reason I consider this offence to be the most objectively serious of the Commonwealth offences and, for all the reasons discussed here and above, I would assess it as just below the mid-range of objective seriousness.

37. Section 91H Crimes Act New South Wales, the possess offence. The number of the images and videos possessed by the offender is concerning. So too is the fact of their storage on multiple devices. The Crown submits this offence should be viewed as objectively very serious. At the same time the Crown acknowledges cases where the number of images and videos is not as high as in some other cases (for example, in Mouscas cited below, the number was over 40,000). Notably about half of this material in the present case was category 4, 191 images and videos being category 5, and 29 falling within category 6. The material shows about 1,263 victims of abuse involved in their creation. On one of the devices the material was stored in an encrypted folder, although this and the use of multiple devices appears to be the height of the degree of sophistication and organisation involved in this offence. The material was possessed for a period of two and a half months as stated in the agreed facts. It is not suggested by the agreed facts that the offender engaged in selling or profiting from this material. Taking all of this into account I assess the objective seriousness of this offence as approaching the mid-range.

Section 16A Crimes Act 1914 (Cth)

45. The paragraphs under this heading deal with the three Commonwealth offences.

46. Section 16A sets out the matters to which the court must have regard when passing sentence. It is convenient to deal seriatim with each of the subsections I consider relevant.

47. Section 16A(2)(a): I have considered the nature and the circumstances of the offences above.

48. Section 16A(2)(b): In determining the sentence I propose taking all three of the Commonwealth offences into account. The Crown’s submissions have appropriately dealt with the issue of totality. These three offences occurred in the same time period and can fairly be said to be one course of conduct, save to recognise that it is a different thing to access the subject pornography than to transmit it. The mere fact of transmitting something requires that it also be available to the transmitter so that arguably there is a greater degree of criminality involved in the transmission as opposed to the singularity of accessing. Viewed in this way all other things being equal the transmission offence could be viewed more seriously.

49. Section 16A(2)(c): There was a course of conduct in this case, as just alluded to. This course of conduct on the facts of this case could be said to both help and hinder the offender. It hinders because the course of conduct enlarges the acts of offending; it assists, as it feeds into the concept of totality. My view is that the overall sentence should be in excess of the sentence that would be appropriate for just one of the offences in question but should not be multiples thereof.

50. Section 16A(2)(d): The personal circumstances of the victims of these offences, namely the children being abused, is not known beyond the fact they have been abused. The harm caused by this offending in promoting such abuse by providing a market for it, is self-evident.

51. Section 16A(2)(e): There is significant injury resulting from this offending in a sense just discussed. That is, whilst this offending itself does not cause the abuse of the particular children, the subject of the imagery directly, the offending, along with offending by others in the same way, perpetuates that abuse and harm by providing the market for it.

52. Section 16A(2)(f): There is no doubt the offender has expressed contrition. However my concern is that contrition is borne more of fear of the punishment and the shame of the offending rather than any real insight into the situation. The extended period of treatment with Dr O’Dea must be acknowledged, being approximately 12 months or 13 months at the date of the evidence in this matter, but the report of Dr O’Dea is not one of fulsome support for the offender. It does however show a willingness to seek assistance. Further, the frank admissions made by the offender and his conduct since arrest are consistent with an acknowledgement of wrongdoing. I take this into account, but in a perhaps more guarded way, that is to a lesser extent, than if the evidence of contrition was of a nature to better support a conclusion that there is little likelihood of reoffending. My view is that the contrition in this case only supports a finding of little likelihood of reoffending to a limited degree. Put simply, I am not convinced that as matters presently stand the offender is unlikely to reoffend. The lack of insight discussed above and the likelihood of paedophiliac tendencies, which are not acknowledged, support this view.

53. Section 16A(2)(g): The fact of the guilty plea has been dealt with above.

54. Section 16A(2)(h): The degree of co-operation by the offender with authorities post arrest. In this case the offender permitted the use of his online identity by the authorities (see statement of facts at paragraph 67B). It is not stated as to what resulted from this. There was a suggestion this assistance may have been provided compulsorily pursuant to s 3LA of the Crimes Act 1914 (Cth) though the terms of any such order were not provided to the court. The submission of the offender was that the assistance went beyond what may have been required. In any event it does show a degree of co‑operation which I do take into account in assessing the appropriate sentence and I would note it is also consistent with remorse and contrition.

55. Section 16A(2(j) and (ja) directs attention to both general and specific deterrence. The need for general deterrence is clear. The offender does not suffer from any disadvantage or disability that renders him inappropriate to bear the punishment for that purpose. As to specific deterrence, the concerns already expressed as to a lack of insight and the likelihood of unacknowledged paedophiliac tendencies requires specific deterrence.

56. As to the offender’s character and other circumstances, s 16A(2)(m) and rehabilitation prospects relevant to s 16A(2)(n), I deal with that below.

THE STATE OFFENCE

57. In relation to the State offence, it is necessary to consider the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

58. The purposes of sentencing are set out at s 3A. Subsections (a) and (b) refer to punishment of the offender and both general and specific deterrence. The significance of deterrence has been discussed. In train with that purpose is subsection (c), being to protect the community. The section further provides for holding the offender accountable, denouncing his actions and to recognise the harm to the community. A purpose of sentencing is also to rehabilitate the offender.

59. In cases of the type under consideration, there is a greater emphasis on deterrence. There must be a query as to how beneficial a prison sentence will be to the offender’s rehabilitation but that concern does not outweigh either the need for deterrence and punishment. It is for these same reasons that I am satisfied relevantly to s 5 of the CSPA, that no other punishment but a sentence of imprisonment is appropriate. Consideration of the alternatives such as an ICO (an Intensive Correction Order) leaves unsatisfied the purposes of sentencing just outlined and in particular leaves the community vulnerable to further offending.

60. In terms of s 21A of the CSPA and aggravating factors the issue of harm caused by this behaviour has been dealt with and taken into consideration as has the vulnerability of the children involved. There is also the limited degree of the organisation of the criminal conduct.

61. The mitigating factor of good character is addressed below.

SUBJECTIVE MATTERS

62. From Dr O’Dea’s report we know that the offender was born in 1972, and so is presently 47 and was 45 at the time of the offending.

63. The offender was raised by his grandparents. His mother was 18 at the time he was born and they lived together with the grandparents until the offender’s mother moved out with her then partner; just when this was is not clear. There was little if any contact with his mother from then until Year 10. The offender has never met his father. The offender did not report any developmental difficulties and seems to have formed positive relationships with other family members.

64. The offender’s relationship with his partner broke down in the aftermath of the current offences. They had been together 18 years. He is presently gainfully employed and appears to have been so throughout his adult life.

65. The offender has no criminal history.

66. The offender reported to Dr O’Dea as having first accessed child pornography in 2014 and did not know why he “fell into it”. The agreed facts refer to an online identity in 2015.

67. For 12 months since February 2018 Dr O’Dea has treated the offender on average every two weeks. Dr O’Dea recommends this continue if possible.

68. The offender relied on two testimonials. Exhibit B was a testimonial from the offender’s uncle, but with whom the offender grew up treating as a brother. He speaks highly of the offender, says the offending is out of character and that he and his wife and children continue to, and will continue to, support the offender. He recounts some difficult times the family has faced prior to the offending. Exhibit C is a testimonial of the former partner of the offender. Like the offender’s uncle, she attested to the offender’s good character and states that she and her family will support him and keep an open door for him to remain a part of her and her family’s lives.

69. The subjective matters in this case of most significance are the lack of any criminal record of the offender and the offender’s stated remorse. There is nothing in the offender’s background that lessens the culpability of his conduct.

70. I have touched on concerns I have as to the likelihood of reoffending. Those views are based on the offender’s own evidence, the inconsistencies noted above with the record of interview, and the contents of the report of Dr O’Dea. To a meaningful extent, though not entirely, those concerns counterbalance the benefit the offender may otherwise receive from his other subjective matters.

THE SUBMISSIONS OF THE OFFENDER AND THE CROWN

71. The written submissions of both the offender and the Crown are impressive in their valuable reference to relevant principles and relevant cases. Additionally, both sets of submissions take realistic standpoints. As a result they are very helpful, and I express my gratitude for their assistance.

72. The following discussion deals with those submissions in a somewhat summary way and no disrespect for them is intended thereby.

73. The offender’s main points are:

1. In relation to the aggravated offence under s 474.24A, to emphasise the limited timeframe of the offending, and that the provision captures offending of a far worse kind, extending to virtually unlimited dissemination of the material of the type in question and may involve organised crime syndicates. This is plainly correct. The offending is not assessed as being of the worst type.

2. In relation to the State possession offence under s 98H, emphasis was placed on the fact of precedent cases involving tens of thousands of such images. Reference was made to Mouscas v R [2008] NSWCCA 181. That case involved some 42,000 images and 251 videos. The case was one of possession, not accessing and transmitting. It was held to be a case at the upper end of objective seriousness. The content of the images was described at [19] as involving “the abuse, violation and degradation of children of a most serious kind”. That is the conceded position in our present case. The distinction in the case therefore in respect of the possession charge is the number of images.

3. The sentence in Mouscas was two and a half years with an 18 month non-parole period. The offender in that case had no prior convictions. At [37] it was held that in cases of child pornography, due to the importance of general deterrence, prior good character may be given less weight as a mitigating factor.

4. At [10] of the offender’s submissions various other possession cases are referred to. All of them are cases of larger numbers of images. The sentences imposed vary from 18 months to five years. The latter case, R v Martin [2014] NSWCCA 283, involved five charges, being a possession charge, two counts under s 474.19 for accessing child pornography and a third for transmitting such material, and one count of producing child abuse material. Relevant to the submission of the offender, is that charge 5 in this case, being a charge under s 474.19(1)(a)(iii), - this is a reference to R v Martin - namely making available child pornography material using a carriage service, received at first instance a sentence of three years imprisonment. The Court of Criminal Appeal considered this to be manifestly inadequate and re‑sentenced the offender to four years and six months, taking into account a 25% discount for an early guilty plea. The maximum sentence available is 15 years.

74. R v Martin is instructive also because of the finding by the Court of Criminal Appeal that the trial judge had erred in making all of the sentences concurrent. At [68] it was found that the trial judge erred in failing to partially accumulate the sentences imposed. This was because the conduct involved in counts 4 and 5 was of a significantly different nature to the criminality involved in counts 1, 2 and 3. It will be necessary to take this into consideration in determination of sentence for the present four offences.

75. The offender’s submissions noted the lack of commerciality involved with the offences, the guilty plea and the use of the offender’s online identity in Dr O’Dea’s report. I have taken these matters into account. The arguments of the Crown have been alluded to above in the conclusion I have reached as to the objective seriousness of the offences.

FURTHER SUBMISSIONS

76. Weininger v The Queen (2003) 112 CLR 629 is authority for the proposition that a sentencing court may take into account uncharged criminal conduct in a manner adverse to the offender if the Court is satisfied beyond reasonable doubt that the conduct occurred. It was this issue that was the subject of further submissions, owing to evidence given by the offender at the sentencing hearing of his involvement with an application known as “Telegram” in accessing and transmitting child pornography. The association with Telegram was disclosed in the agreed facts. The new evidence in oral evidence was that the offender had been approached to be involved in the administration of Telegram in relation to the accessing and transmitting of the child abuse material.

77. Mostly, but not wholly, I accept the submission of the offender in this regard, namely that great caution should be exercised in taking into account matters not the subject of the offending. Whilst the evidence comes from the offender himself, to the extent anything emerged from cross-examination, that is material about which there has not been a full investigation, and my view is it adds little to the position as otherwise established.

76. I note also that the matters disclosed at the hearing had largely been disclosed in the record of interview (see paragraph 67T of the agreed facts). What was new was that he had been asked to become some kind of administrator of “Telegram”.

77. The extent to which I accept the Crown’s position on this point is referred to at paragraph 37 above, that is, the paragraph where I conclude that the offender was a most willing participant in the illegal activities. It shows the willingness of the offender to be involved in the illegal conduct of the type alleged. It confirms the view expressed at paragraph 37 above that this is not an offender “testing the waters”.

COMPARABLE CASES

80. Both the Crown and the offender by their submissions made reference to comparable cases. The two matters referred to above already give some guidance in this regard. Additionally, the offender made reference to R v Linarden [2014] NSWCCA 247, R v Lyons [2017] NSWCCA 204 and R v Howe [2017] QCA 7. The offender accurately distinguishes those cases on the basis of the period in which the offending occurred being significantly longer (though it does appear the offender in the present case was accessing child pornography from at least 2014 and not 2017) and the number of images was greater.

81. Perhaps the most useful guide is the comment of Hoeben CJ at CL in Fitzgerald v R [2015] NSWCCA 266 where he indicated at [50] that a pattern of head sentences in such matters as these shows a range in head sentences of 18 months to five years after a discount for a guilty plea. In Fitzgerald the offender was charged with two counts of breaching 474.19 of the Commonwealth Criminal Code and four counts of possessing child abuse material under s 91H Crimes Act (NSW). The sentence of the sentencing judge, which was not disturbed on appeal, was three years and nine months for the possession offences with a non-parole period of two years and three months, and for the Commonwealth offences, two years and three months commencing three months before the State sentences, and thereafter a good behaviour bond of nine months.

82. R v Linardon is instructive. It involved one charge under s 91H for possession of child abuse material, one charge under s 474.19 for accessing child pornography, one charge under s 474.19 for transmitting child pornography, one charge under the aggravated offence provision of s 474.24A and one charge of indecent communication to a person under 16 years in breach of s 474.27A. The State possession offence involved 4,530 images and 40 videos. Approximately 600 were a category 4, and 3,107 were category 1. A total of 256 images and videos, were the subject of the transmission charge, with 128 being category 4 and 39 being category 5. In relation to the access charge, there were 130 images/videos of which 41 were category 4 and nine were category 5. The similarities with the present case can be seen. Linardon on its facts involved a greater number of images and videos, and significant numbers of category 4 and 5 material. That said, it must be acknowledged that the offender in Linardon was assisted by not being a member of a “network”, in contrast to the offender in the present case, with connection with the chatrooms being something akin to a network.

83. At [64] of Linardon, Bathurst CJ concluded as to the objective seriousness, that in his view, the offence under s 474.24A, was “toward the lower end of the range of offences of this nature”. This view was influenced by the absence of any profit and the absence of a network (see at [63]). It was also influenced by only 19% of the material being in the worst two categories (see at [62]). This view could be seen to differ from the view that I have expressed in our present case. That has occurred due to the fact that each case needs to be determined in accordance with its own individual set of facts.

DISCUSSION AND APPROPRIATE SENTENCES

84. I have assessed the seriousness of the offending, by reference to each of the offences, as approaching the middle range of seriousness.

85. The offender relies on his good character. The authorities are clear that factor is accorded less weight in cases such as this, due to the significant weight to be given to general deterrence: see Fitzgerald v R at [34], citing R v Lee [2013] WASC 216, and at [35] citing R v Gent.

86. I have concerns as to the level of insight shown by the offender into his wrongdoing. This is due to his own stated position of a lack of sexual gratification being at odds with the view of Dr O’Dea who considers it likely that the offender has a paedophiliac tendency. I accept that opinion of Dr O’Dea which is, of course, the evidence tendered on behalf of the offender.

87. The offender has the support of his family. The offender has, despite his lack of insight, undergone counselling for over 12 months on a regular, almost fortnightly basis.

88. Despite the lack of insight, the commitment to that course of treatment and the support of his family, and the shame and embarrassment of being caught, which may have a deterrent effect, are matters to be taken into account.

89. The Crown rightly raises the issue of totality and that it applies to the offences for which the offender is being sentenced. The Crown submits the sentences should be partly cumulative. I accept both these submissions which are line with the reasoning and sentencing in Linardon.

90. Whilst the offences are each separate offences, they all occurred in almost exactly the same time period. Further, although there is no express connection stated in the agreed facts between the images and videos in the offender’s possession, and those that were accessed and transmitted, the overall criminality of this activity can seem to be largely one, albeit multi‑faceted, course of criminal conduct. That is not to say the offences do not each require their own consequence, but it is a case that some significant degree of accumulation is appropriate. In support of this view, I note that Bathurst CJ in Linardon accepted that a total term of five years imprisonment is an appropriate sentence to reflect the overall criminality in that case.

SENTENCES

91. Taking all of the above matters into account, I have reached the conclusion that, allowing for the 25% discount for the guilty pleas and acknowledgment of the principal of totality, the appropriate term of imprisonment is four and a half years and with a non‑parole period in respect of the Commonwealth offences of two years and 3 months. I will set out each of the terms of imprisonment for each of the offences below and the dates they commence. The result is that the offender will spend two years and nine months in prison before the non‑parole period expires.

92. I will now just indicate before giving the formal orders, the term of imprisonment that I have determined for each of the offences.

93. In respect of the s 474.19, transmitting child pornography offence, above I assessed the objective seriousness of this offence as to towards but not at the middle of the range. There will be a sentence of two years in respect of this offence.

94. In respect of the s 474.19, accessing child pornography offence, above I assessed this offence as being less objectively serious than the transmit offence. There will be a sentence of 18 months in respect of this offence.

95. In respect of the s 474.24A aggravated offence, I consider the offence to be just below the midrange of objective seriousness. There will be a sentence of two years in respect of this offence.

96. In respect of s 91H, possess child pornography offence under the State legislation, I consider this to be approaching the midrange of objective seriousness. There will be a sentence of 18 months for this offence.

97. As noted above, these sentences allow for the discount for the guilty plea. They also take into account the subjective matters discussed above. To be clear, the foregoing paragraph seeks to state my conclusions as to sentences, and are arrived at having taken into account all of the matters discussed throughout these reasons.

ORDERS

98. In respect of the s 91H Crimes Act charge of possessing child pornography, the offender is convicted and sentenced to a fixed term of imprisonment of 18 months, to commence on 29 April 2019 and expiring on 28 October 2020.

99. In respect of s 474.19(1) charge under the Commonwealth Criminal Code of accessing child pornography, the offender is convicted and sentenced to a term of 18 months, commencing on 29 October 2019 and expiring on 28 April 2021. I note that with each successive sentence, there is a factor of accumulation.

100. In respect of s 474.19(1) charge under the Commonwealth Criminal Code of transmitting child pornography, the offender is convicted and sentenced to a term of imprisonment of two years, commencing 29 October 2020 and expiring on 28 October 2022.

101. In respect of s 474.24A charge under the Commonwealth Criminal Code, the aggravated offence, the offender is convicted and sentenced to a term of imprisonment of two years commencing on 29 October 2021 and expiring on 28 October 2023.

102. With respect to the offences under the Commonwealth Criminal Code, there will be imposed a single non‑parole period of two years and three months, commencing 29 October 2019, which is the commencement date of the first of the sentences for the Commonwealth offences, and expiring on 28 January 2022.

103. The Court orders that pursuant to s 23ZD of the Crimes Act 1914, and upon the application of the Director of Public Prosecutions, the following items are forfeited to the Commonwealth:

1. Apple iPod touch, serial number CCQTF0ZU

2. iMac computer, serial number C02FIC0689HJQ

3. Samsung S6 mobile phone with an IMEI identification of 3590930551165080/06

4. Samsung A‑plus with an IMEI identification of 3543586868361515

5. Samsung Note 3 mobile phone with an IMEI identification of 659093/05/516508/0

6. Apple iPhone with an IMEI identification of 35698106142522

104. There is a copy of the order that has been handed up. It is dated today’s date, 29 April 2019 and I have signed that and it will be placed with the papers. As a caveat, the serial numbers of the first two items, to the extent that they contain, what I called a zero, it is possible that they are actually a capital, “O”, but the written record will speak for itself.

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Decision last updated: 26 June 2019