R v Roy (No 4)
[2025] ACTSC 449
•2 October 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Roy (No 4) |
Citation: | [2025] ACTSC 449 |
Hearing Date: | 22 August 2025 |
Decision Date: | 2 October 2025 |
Before: | McCallum CJ |
Decision: | (1) I convict you of each of the offences to which you have pleaded guilty. (2) For the offence in count 1 of possessing child abuse material via a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth), I sentence you to a term of imprisonment for two years and six months commencing on 9 March 2025 and expiring on 8 September 2027. (3) For the offence in count 2 of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 September 2027 and expiring on 8 March 2030. (4) For the offence in count 3 of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 March 2030 and expiring on 8 September 2032. (5) For the offence in count 4 of producing child exploitation material contrary to s 64A of the Crimes Act 1900 (ACT), I sentence you to a term of imprisonment for one year and eight months commencing on 9 March 2030 and expiring on 8 November 2031. (6) For the offence in count 5 of accessing child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 September 2032 and expiring on 8 March 2035. (7) I fix a non-parole period of seven years commencing on 9 March 2025 and expiring on 8 March 2032. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of possession of child abuse material – offence of using a carriage service for sexual activity with a person under 16 years – offence of producing child exploitation material – offence of accessing child abuse material – where the material is in the upper range of seriousness for offences of this kind – where forensic psychologist had the opinion the offender experienced denial – where proceedings experienced delay – where plea of guilty came after an adverse ruling on pre-trial application |
Legislation Cited: | Crimes Act 1900 (ACT), ss 10, 64A Crimes Act 1914 (Cth), Pt 1B, ss 16A, 16BA, 17A, 19AB, 20 Crimes (Sentencing) Act 2005 (ACT), Ch 4, ss 10, 33 Criminal Code (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.25A(1) |
Cases Cited: | Adamson v The Queen [2015] VSCA 194; 47 VR 268 Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; 79 NSWLR 1 Director of Public Prosecutions v Meharry [2017] VSCA 387 DPP v Mortimer [2025] ACTSC 168 Kannis v The Queen [2020] NSWCCA 79 Lazarus v The King [2023] NSWCCA 214; 380 FLR 228 Lloyd v R [2022] NSWCCA 18 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 R v Booth [2009] NSWCCA 89 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Roy (No 3) [2025] ACTSC 5 R v Verdins [2007] VSCA 102; 169 A Crim R 581 Tector v The Queen [2008] NSWCCA 181; 186 A Crim R 133 |
Parties: | Commonwealth Director of Public Prosecutions ( Crown) Richard James Roy ( Offender) |
Representation: | Counsel J White SC ( Crown) S Howell ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Number: | SCC 117 of 2022 |
McCALLUM CJ:
CONTENT WARNING: This judgment concerns offences involving child abuse material and sexual activity with children. Of necessity, it contains offensive material.
1․Richard James Roy stands to be sentenced after pleading guilty to five offences involving the possession, production and accessing of child abuse material, and the use of a carriage service for sexual activity with persons under 16 years.
2․Before turning to the circumstances of the individual offences, it will be helpful to explain the legal framework within which the sentencing task is to be undertaken. It is settled that the proper approach to sentencing in Australia is the process of “instinctive synthesis” described by the High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357. This approach requires the sentencing judge to identify all of the relevant factors, make an assessment of their significance and reach a conclusion as to the penalty that is to be imposed. It is an approach that recognises a broad sentencing discretion.
3․However, as explained by Beech-Jones CJ at CL (as his Honour then was) in the decision of the New South Wales Court of Criminal Appeal in Lazarus v The King [2023] NSWCCA 214; 380 FLR 228 at [4], it is not inconsistent with that approach for appellate courts to develop general principles concerning the approach to sentencing for particular offences or classes of offenders. There are three such principles of particular importance in the present case. The first concerns the weight generally to be attached to the purposes of punishment and general deterrence in cases involving child exploitation material and online sexual activity: R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at [60] per Johnson J (Leeming JA and Beech-Jones J agreeing). The second concerns the weight to be attached to competing objects of sentencing in the class of cases where an offender is mentally unwell: Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; 79 NSWLR 1; R v Verdins [2007] VSCA 102; 169 A Crim R 581.
4․Both principles are relatively well established. For the reasons explained by Beech-Jones CJ at CL in Lazarus at [2] to [5], neither unduly fetters the sentencing discretion. I will return to consider their application in the particular circumstances of this case and any other relevant principles in the discussion of each individual offence.
5․The third principle is not settled and is perhaps more a matter of practice or procedure than principle. It is the vexed question of whether, in cases of this kind, it is necessary for the sentencing judge to view at least a sample of the child abuse material in question in order to obtain a full appreciation of its nature, which is a significant factor in the assessment of the objective seriousness of the offence. The decision in Porte favours that approach. However, that was qualified in R v Hutchinson [2018] NSWCCA 152 where R A Hulme J said at [49]:
I do not understand there to be binding authority that viewing a sample of such material is essential in every such case. I take the view that it is incumbent upon the prosecuting authorities to provide an adequate written description of the material. In the vast majority of cases that should suffice for there to be a sufficient appreciation of the “relative perversion and debauchery of the pornographic material” (as it has been put in one of the cases to which Johnson J referred). I do not see the need to view an image or a video of, for example, an adult committing some dreadfully depraved act towards a child when it is possible to understand how terrible such a thing is by reading a description of it. Moreover, I would doubt there would be any comfort for the child victim to know that in addition to offenders poring over such images there will be lawyers and judges examining them as well.
6․R A Hulme J’s point about sparing the child is one thing. There is also something to be said for minimising the extent of the vicarious trauma that is known to be a risk for all persons involved in the prosecution process. The arresting officer in the present case has had to view the material multiple times, as have the Crown’s legal advisors. I was spared that task as the material was not tendered by the Crown at the proceedings on sentence. It was, properly, the subject of detailed description and I have studied those descriptions carefully. If any general principle on this issue can be stated, it is that sentencing judges, if they do not view a sample of the material in question, must be astute to make a real assessment of the objective seriousness of the offences by reference to the descriptions provided, giving real meaning to what it is that they are reading.
7․As noted in the Crown’s written submissions, the amendments to the Commonwealth sentencing regime introduced in 2020 were intended to address “inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders”. The need for such amendments suggests that there is a risk, particularly in the case of offences committed using the internet, of sentencing judges becoming immune to the depravity of the material described, wearied by the sheer volume of such offences, or the repetitive familiarity of their description, or the numbing effect of acronyms such as “pthc” (pre-teen hardcore) that mask the description of unspeakable acts of sexual violence against vulnerable children. This phenomenon, reminiscent of that described in a different context as “the banality of evil”, must not be permitted to blunten the assessment of the objective seriousness of offences of this kind.
8․The exercise of the sentencing discretion is also governed by statute. The offender has pleaded guilty to four Commonwealth offences and a Territory offence. While different statutory regimes apply to each, there is considerable overlap in the statutory principles and mandatory relevant factors. I will identify those in my discussion of the individual offences.
9․Finally, the Court is required to have regard to comparable decisions and current sentencing practices, primarily for the purpose of achieving consistent application of principle while acknowledging that every case is unique. In the present case, aside from a brief reference to a particular decision on a table of decisions provided by the Crown, the parties did not seek to draw any great assistance from the comparable decisions. I have, nonetheless, considered those that were provided to me and attempted to synthesise them with my own synthesis of the relevant factors in the present case.
10․The particular offences to which Mr Roy has pleaded guilty are:
(a)one count of possession of child abuse material via a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth) (which carries a maximum penalty of imprisonment for 15 years);
(b)two counts of using a carriage service for sexual activity with a person under 16 years of age, contrary to s 474.25A(1) of the Criminal Code (which carries a maximum penalty of imprisonment for 15 years);
(c)one count of producing child exploitation material contrary to s 64A of the Crimes Act 1900 (ACT) (which carries a maximum penalty of imprisonment for 12 years); and
(d)one count of accessing child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code (which carries a maximum penalty of imprisonment for 15 years).
11․Mr Roy has also agreed to have an offence of using a carriage service for accessing child pornography material, contrary to s 474.19(1) of the Criminal Code taken into account pursuant to a s 16BA schedule. That offence also carries a maximum penalty of imprisonment for 15 years.
12․The Commonwealth offences are governed by Part 1B of the Crimes Act 1914 (Cth), while the Territory offence is governed by Ch 4 of the Crimes (Sentencing) Act 2005 (ACT).
13․For each of the Commonwealth offences, s 16A(1) of the Crimes Act 1914 requires the court to impose a sentence of a severity appropriate in all the circumstances of the offence. That is a statutory reflection of the Commonwealth principle of proportionality, which also applies to the Territory offence. Under each applicable statutory regime, imprisonment is a sentence of last resort: s 17A of the Crimes Act 1914 and s 10 of the Crimes (Sentencing) Act.
Nature and circumstances of the offences
14․It is necessary to have regard to the nature and circumstances of the offences and to make an assessment of their objective seriousness: s 16A Crimes Act 1914 and s 33 of the Crimes (Sentencing) Act. During the proceedings on sentence, the parties agreed that, having regard to the nature of the material set out in the statement of agreed facts in the present case, it would be sufficient if I annex that statement to this judgment[1] rather than reading the facts aloud today, as is the convention in sentencing offenders. I have, instead, taken the approach of identifying the factors relevant to objective seriousness in the discussion of each offence.
[1] The annexure will not be published on the Internet but is held on the Court file.
Count 1 – possession of child abuse material
15․Count 1 is an offence of possession of child abuse material via a carriage service contrary to s 474.22A(1) of the Criminal Code. As already noted, that offence carries a maximum penalty of imprisonment for 15 years.
16․This count is governed by the new sentencing regime introduced into the Crimes Act 1914 in 2020 which (among other things) constrains the conditional release of offenders convicted of Commonwealth child sex offences. Section 20(1)(b)(ii) prohibits the conditional release of such an offender until after the person has served a specified period of imprisonment unless the court is satisfied that there are exceptional circumstances that justify the offender being released immediately on a conditional release order. I am not persuaded that there are exceptional circumstances in the present case. Accordingly, there must be a period of full-time imprisonment for that offence.
17․Both parties drew my attention to the decision of the New South Wales Court of Criminal Appeal in R v Hutchinson in which, at [45], R A Hulme J (with whom Meagher JA and Button J agreed) provided a helpful list of potentially relevant matters that may bear upon the assessment of the objective seriousness of offences concerning the possession, dissemination or transmission of child pornography and child abuse material. That list was, in turn, drawn from the Court’s earlier decision in Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 and supplemented in Hutchinson in response to submissions from the Crown. It is expressed to be a non-exhaustive list. I have considered the relevant factors from that list in the discussion that follows.
18․Mr Roy’s offences were discovered when a search warrant was executed at his home on 14 January 2021. The circumstances of the search are discussed in an earlier decision I have published in these proceedings: R v Roy (No 3) [2025] ACTSC 5.
19․Count 1 is a rolled-up charge based on the discovery of 524 video files stored over two devices found during the execution of the search warrant. A rolled-up charge is inherently more serious and involves a greater degree of criminality: DPP v Mortimer [2025] ACTSC 168 at [72] (Christensen AJ).
20․The first device, a Western digital storage device, had 171,771 image files and 6,333 video files. 10% of these files were reviewed by police and six videos of a cumulative three hours’ runtime were found to contain child abuse material. The second device, a Seagate device, had 52,890 image files and 5,481 video files. 50% of those files were reviewed and 518 video files of child abuse material running for a duration of 4.85 days were identified.
21․Actual children were used in the creation of the material described. The videos on the first device included both pubescent and prepubescent children in varying stages of undress exposing their chest and genitals. The videos depict children engaging in solo sex acts such as masturbation and penetrative activity through the insertion of objects in the girls’ vaginas.
22․The Seagate device was retrieved during the execution of the search warrant next to a green notebook which contained numerous terms and phrases related to child abuse material such as “jailbaits”, “kidcam” and “p3do”. The offender admitted during the execution of the search warrant that those terms were used by him to search for child abuse material. On the device itself, the material was meticulously organised. The material on the Seagate device is more extensive and depraved than that found on the Western device. The sample of files reviewed by police included the forced oral, vaginal and anal rape of male and female children by adults, incest, child bestiality and erotic posing. The children depicted are both pubescent and prepubescent with the majority being female. Some of the children depicted are as young as four years old.
23․It is clear from those descriptions that the material on both devices must be extremely disturbing. As already noted, a number of real unknown children are depicted. The videos are degrading, perverse and involve sexual violence. The presence of the notebook demonstrates a degree of planning, sophistication and forethought. Some of the material depicts extreme cruelty and degradation, particularly the material recording acts of rape and bestiality.
24․The offender submitted that for count 1, the number of files possessed, being 524, was relatively small for instances of this type of offending. The number of files, however, is not determinative of the seriousness of this type of offence. It has been recognised that, in a case of possession of child pornography for personal use only, the gravity of the material and the number of real child victims involved is a more significant factor in assessing the objective seriousness of a possession offence: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [99] (Johnson J; McClellan CJ at CL and Adams J agreeing).
25․Some of the videos on the Seagate device appear to be captures of livestreams where prepubescent and pubescent girls were depicted naked and performing solo sex acts such as masturbation and penetrative vaginal insertions. The recordings contain a log of the comments posted by users as well as the number of viewers at various times. The stream viewership for that material ranged from no fewer than four to no fewer than 1,860 viewers, suggesting the existence of a kind of virtual stadium for child sexual abuse as a spectator sport. This reveals the extent to which this kind of offending has become normalised. It indicates that significant weight must be given to general deterrence, a matter to which I will return.
26․Returning to the factors set out in Hutchinson, it may be accepted that the offender did not possess the material for sale or dissemination. The absence of an intention to sell or distribute child abuse material does not mitigate the offence but its absence is a factor relevant in the assessment of objective seriousness. It is not known, and in cases of this kind often cannot be known, whether any payment or any other material benefit including the exchange of child pornographic material was made, provided or received for the acquisition of the material.
27․The offender submitted that the offence of possession was not committed in proximity to those responsible for bringing the material into existence (to the extent that the material did not involve the offender recording himself). So much may be accepted and that is also relevant in the assessment of objective seriousness.
28․Finally, I accept that there was, in the circumstances of possession, no risk of the material being seen or acquired by vulnerable persons such as other children.
29․The Crown submitted that the offending in count 1 had a consistent theme of rape of child victims by adults. That is clear from the descriptions in the statement of facts. I consider the offending constituting count 1 to be objectively in the upper range of seriousness for offences of this kind, having regard to the fact that the offence is a rolled-up charge, the very serious nature of the material and the number of apparent real victims involved.
Count 2 – using a carriage service for sexual activity
30․Count 2 is an offence of using a carriage service for sexual activity with a person under 16 years of age, contrary to s 474.25A(1) of the Criminal Code, carrying a maximum penalty of 15 years’ imprisonment.
31․This count is also a rolled-up charge based on the offender’s use of a carriage service on five occasions for sexual activity with seven unidentified children, one of the videos involving three children together.
32․In determining the objective seriousness of an offence of this kind, many of the factors identified in Hutchinson are also relevant. The parties’ submissions pointed to the following additional factors:
(a)the number, length and type of interaction between the offender and the child;
(b)the nature of the sexual material communicated by either the offender or the child;
(c)the persistence of the messaging by the offender;
(d)whether the offender displays an intention to engage in the activity in the future;
(e)the abuse of power over and manipulation of the child;
(f)whether the offender induced or threatened the child;
(g)the prior relationship (if any) between the offender and the child;
(h)whether the child was susceptible to act in the manner described or requested by the offender;
(i)the sophistication of the offender’s actions, including attempts to retain their anonymity; and
(j)the impact of the conduct on the victim’s health and development, including the distortion of sexual boundaries and sexual development.
33․As submitted by the Crown, it is not relevant that any child with whom sexual activity online was engaged might be seeking to explore their own sexuality or might appear to enjoy the attention of the offender via the internet. Harm is always presumed from such interaction with a child: Adamson v The Queen [2015] VSCA 194; 47 VR 268 at [29] (Warren CJ, Redlich and Weinberg JJA). Furthermore, the apparent consent or acquiescence of a child victim does not mitigate the objective seriousness of the offence.
34․The conduct in count 2 spans a number of years with file timestamps ranging from May 2014 to July 2017. The content of the videos is described in the statement of facts annexed to this judgment. It was submitted on behalf of the offender that, while those timestamps indicate a range of some years, the offending was sporadic. The offender’s counsel submitted that this might be seen to be consistent with periods during which the offender was suffering from particular stress and depression, a topic to which I will return.
35․The unidentified child victims recorded are both prepubescent and pubescent females. As submitted by the prosecution, the offender appears to have taken a considered approach to the commission of these offences, often wearing a mask or hiding his face from the camera when interacting with the children.
36․Although there are fewer videos in this offence than for the possession offence, the fact that seven unidentified child victims are involved is a significant factor in assessing the seriousness of the offence. Although this count is not governed by the new sentencing regime, in my assessment, it plainly warrants a sentence of fulltime imprisonment. I would assess the objective seriousness to be in the higher end of the range.
Count 3 – using a carriage service for sexual activity
37․Count 3 is a further offence of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code. This count has been carved out from count 2 because it includes all of the videos based on the offender’s sexual activity with a particular girl. It is also a rolled-up count because it involves nine videos of sexual activity with that girl. The Crown tendered a transcript of the videos and I have read the entirety of that document. It makes for unpleasant reading, to say the least.
38․Over a period of months, the accused encouraged the child, who has an appearance of being about 15, to engage in sexual communications, with him enquiring about her life and prompting explicit responses from her. The transcripts reveal a graduation in the explicitness of the communications, commencing with apparent tender concern for the child, her schooling and the like and culminating in the offender making explicit statements as to his desire to have both vaginal and anal sex with her. The expressed intention to engage in sexual intercourse makes the offences more serious than for a lesser form of sexual activity: Tector v The Queen [2008] NSWCCA 151; 186 A Crim R 133 at [96] (Hall J, Giles JA and Barr J agreeing at [1] and [2]).
39․As submitted by the prosecution, it is not relevant to consider whether the child appeared to be seeking to explore her own sexuality: Adamson at [29]. The transcripts of the material which I have read reveal that this is an offence of significant seriousness involving the deliberate corruption and sexualisation of a young girl.
40․Although this count is not governed by the new regime, in my assessment, it plainly warrants a sentence of fulltime imprisonment and is of objective seriousness towards the upper end of the range.
Count 4 – producing child exploitation material (Territory offence)
41․Count 4 also concerns the same child but is a Territory offence of using a child for the production of child exploitation material contrary to s 64A(1) of the Crimes Act 1900. The maximum penalty for this offence is 12 years’ imprisonment. It is based on the creation of two further recordings with the girl the subject of count 3.
42․I am satisfied that the s 10 threshold is crossed in respect of that offence when it is considered standing alone. The nature of the offending is set out in the statement of facts attached to this judgment. However, the Crown very fairly conceded, appropriately in my view, that this offence should see a penalty with a significant level of concurrence with count 3 involving as it does the same victim. I propose to impose a lesser sentence for that offence (than for count 3) and to make that sentence wholly concurrent with the sentence for count 3.
Count 5 – accessing child abuse material
43․Count 5 is a count of accessing child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code, carrying a maximum penalty of 15 years' imprisonment. This count is charged based on the offender’s accessing and downloading of 36 videos of child abuse material via the website aMule between July 2017 and September 2019. That material was accessed by the use of a peer-to-peer network, a technology discussed in detail in my previous judgement: R v Roy (No 3). As explained in that judgment, the use of peer-to-peer software necessarily means that a person downloading material is prepared to share it with other participants in the peer-to-peer network.
44․It was again submitted in respect of this count that the number of videos was relatively small, the submission being that there were “only 36 videos”. It must be recalled having regard to the nature of the material that each of those videos potentially represents the sexually violent rape of a child captured on video for eternity on the internet. Although this count is not governed by the new regime, in my assessment it plainly warrants a sentence of fulltime imprisonment and is of relative seriousness.
Schedule offence – access child pornography material
45․In sentencing the offender for count 5, I am to take into account the offence on the s 16BA(2) schedule, which is an offence of accessing child pornography material using a carriage service contrary to s 474.19 of the Criminal Code. That offence is based on the downloading of a further 25 videos via aMule between 27 July 2017 and 15 September 2019. The separation of the two offences is intended to capture a different legislative regime.
46․The offender is not to be punished for the scheduled offence, but it is relevant to my assessment of the whole course of conduct constituting count 5. For the reasons already explained, the nature of the material in the videos downloaded indicates a high need for general deterrence. Furthermore, the existence of a course of conduct consisting of a series of criminal acts of the same or similar character to which I am required to have regard in accordance with s 16A(2)(c) of the Crimes Act 1914 indicates a need for some weight to be given to specific deterrence in this case.
47․The Crown submitted that this offending also had a consistent theme of rape of child victims by adults. The same theme is evident in the language used by the offender in respect of the chid the subject of counts 3 and 4. The Crown submitted that the totality of the offending occurred over 11 years and only ceased upon the offender’s arrest. It was submitted on that basis that the Court should find that the offending was planned and premeditated, systemic and persistent. It involved the sophisticated use of electronic equipment to access, catalogue and store the material. It also involved the offender’s attempts to disguise himself with dealing with children, which is to be contrasted with other material found by police where he made no attempt to disguise himself when accessing or participating in sexual activity online with adult females (indicating knowledge of wrongdoing in the case of children).
48․The offender acknowledged that the offending took place over some years but submitted that it cannot be understood without an appreciation of the stress and isolation the offender experienced for many years. I will return to consider the offender’s subjective circumstances.
49․I accept, as submitted on behalf of the offender, that the range of years of the offending is not truly reflective of the concertedness of the offending, which does appear in some respects to have been sporadic. I cannot discount the reasonable possibility that this may reflect the offender’s mental state at various times. However, I am satisfied that all of the offences sit towards the high end of objective seriousness because of the seriousness of the conduct, the fact that the charges are rolled up, reflecting many individual offences, and the level of planning and sophistication. As explained further below, there is plainly a significant need for both specific and general deterrence in this case.
Personal circumstances of any victim
50․Sections 16A(2)(d) and (e) of the Crimes Act 1914 require me to have regard to the personal circumstances of any victim of the offence and any injury, loss or damage resulting from the offence. It is accepted that offences of this nature are not victimless and that, even where the victims are unidentified, the court can infer harm. The Crown relied in this context on the decision of the NSW Court of Criminal Appeal in Kannis v The Queen [2020] NSWCCA 79 at [126] where the Court said:
… Courts have recognised that the implicit, persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than it does to (in person) sexual offences committed against young persons
General deterrence
51․I am required to consider the weight to be given to general deterrence. In that context, I respectfully adopt the remarks of Simpson J in R v Booth [2009] NSWCCA 89 at [40]-[44]. Her Honour said:
40 I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.
42 What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
44 It is for that reason that this is a crime in respect of which general deterrence is of particular significance.
52․I note that, in the present case, it should not necessarily be inferred that all of the unidentified victims were in underdeveloped or disadvantaged countries. I say that because, in the transcripts concerning the individual victim the subject of counts 3 and 4, the offender referred to the unidentified victims in respect of one of the video the subject of count 2 as “rich bitches”. Notwithstanding that qualification, general deterrence must be regarded as a factor of particular significance in this case.
Subjective circumstances
53․I turn to the subjective circumstances of the offender. I am required to have regard to his character, antecedents, age, means and physical or mental condition: s 16A(m) Crimes Act 1914 and ss 33(1)(m) and (n) Crimes (Sentencing) Act.
54․The offender is a person of prior good character. There are before me two character references, one of which describes the offending as being “out of character” and another which describes the offending as “not in keeping with his normal character”. It is, however, not clear from either of those character references whether their authors were informed of the full extent of the offender’s offending. The terms of the references suggest that they were not.
55․Prior good character is of less weight in matters of this kind. Where an offender has, in effect, lived a double life, respected by day, traumatising unknown children by night, the discovery of the offences, rather than being dismissed as being out of character, tends to indicate that the esteem in which the person has been held was misplaced. In my assessment, that must be the case here. The offender had occasion during the course of his employment to disclose the offending and seek assistance. Instead, he maintained the lie that his life had become. As submitted by the Crown, his good character was whittled away over time as he committed more and more offences. Accordingly, while I do have regard to his prior good character, it is of limited weight in the present sentencing exercise.
56․I am also required to have regard to the offender’s antecedents, his age, his means and his physical and mental health. He has a solid work history. He is a middle-aged man and is financially comfortable. He is in good physical health.
57․His mental health is of greater significance as a mitigating factor. Before the Court are two reports, one from a treating psychologist, Dr Nomchong, and one from a forensic psychologist. There is a suggestion in the latter of a diagnosis of post-traumatic stress disorder but that was not pressed at the proceedings on sentence, essentially because the premises on which the opinion was based could not be proved without calling the offender to give evidence. A forensic choice was made not to do that. As submitted by Mr White SC, that tells greatly against the offender, indicating that the diagnosis for post-traumatic stress disorder was obtained on the strength of lies or manipulation about the circumstances said to have been experienced by the offender in previous years. In the circumstances, I can place little weight on that report.
58․Of more significance is the report of Dr Nomchong, who was cross-examined at the proceedings on sentence. I note that he gave evidence that he had avoided seeking details of the offender’s offending because, at the time he prepared his report, he was told by the offender’s lawyers that the offender’s position was “defensible”. Furthermore, although the issue is not as significant as in the case of the other expert report, there is some doubt about the truthfulness of the hearsay statements on which the report relied.
59․There are authorities dealing with the caution the courts must apply in relying on hearsay statements made to psychologists and then relied upon as the basis for opinions in sentencing proceedings. I have previously expressed my reservations about applying such decisions as if they stated matters of immutable principle: Lloyd v R [2022] NSWCCA 18 at [43]-[45] (Hamill and Cavanagh JJ agreeing at [59] and [60] respectively). Every case must be assessed according to its own facts.
60․In the present case, careful scrutiny of the assumptions made by Dr Nomchong is required. His opinion was supported by a history put before the Court, as I have indicated, not by the offender himself but in the form of an affidavit sworn by the offender’s solicitor. That included assertions as to the premises of the expert material. The objective evidence before me tended to disprove those assertions. For example, the offender claims to have suffered from stress and depression as a result of being bullied at work. However, the bullying appears from the objective material to have amounted to his being required to work for a female manager for whom he had no respect. I do not doubt that there may have been stressors involved in that experience but it does not appear to reach the heights suggested in the assumptions relied upon by Dr Nomchong.
61․Separately, the offender claimed to have been exposed to trauma in the course of his employment but that was not borne out by the objective evidence before me.
62․Dr Nomchong’s report made different kinds of assumptions based primarily on the offender’s reporting of suffering from boredom and isolation in his employment and seeking comfort in his access to pornography, ultimately including child pornography. Dr Nomchong was cross-examined at the hearing in respect of that aspect of his opinion. He said:
My report addresses the psychology of Mr Roy when he was engaged in those processes, [that is, of accessing child pornography]. And in that particular instance he directly engaged with a person, that is correct, but in the context of psychology and his awareness and realisation of his behaviour and its impact and its effect upon others was not there.
63․I pressed him on that answer. He continued:
There’s a psychological phenomenon, I haven’t used it in this report but there’s a psychological phenomenon which we call denial. This is where a person can be doing something, actively participating in a process or action such as harming themselves with cigarette smoke or taking drugs, fully aware in one regard that it’s not good for them but in another regard, denying that thought process and that realisation, that insight that comes from that realisation. And so we have people who literally engage in behaviour, be made aware of their behaviour, “this is going to hurt you or harm you. Of course you have cancer”, et cetera, and say, “yes” and understand that, and then simply forget that thought, ignore that.
64․When I pressed him again about that answer, he continued:
No, sorry. I need to explain denial again. This is a very difficult concept to get across. The person is aware of something but in their mind they are denying it. So, it’s almost like an amnesic barrier but it’s not an amnesic barrier. It’s a denial of something that is obvious or apparent or a truth or a reality.
65․Aspects of the objective evidence in the present case contradict the proposition that the offender did not appreciate, or was able in some way to deny, the wrongfulness of his conduct or its consequences for the children with whom he engaged. I have already referred to the evidence of the detective that the offender was seen in some videos to wear a mask, but only when he was engaging with children, not adults, on the internet. His understanding of the nature of his activity is also apparent in his language in his conversation with the child the subject of counts 3 and 4. It is also apparent in his lies to his employer as to whether he was engaging in this kind of activity.
66․With great respect to Dr Nomchong, he revealed his own species of denial. As already noted, he avoided seeking details of the offender’s activities because the lawyers had told him that the offender’s position was defensible. Leaving aside the fact that this was a curious approach to the preparation of an expert report, when confronted in cross examination by Mr White SC about that fact, he appeared to minimise the seriousness of the offending in the following exchange:
J White SC: So, knowing as you now know the extent of the offending, the addiction was not simply an addiction to pornography of a particular nature, the addiction was to the exploitation of children, the ability to bend children to his will for his sexual gratification. That’s the addiction we are talking about?
L Nomchong: I’ve only read the statement of facts which purported that it only went to 10% of the material, so I can only comment in that context.
67․I confess I found that answer extraordinary in light of the full extent of the offending that is before the Court in the material before me. I do not accept that the offender’s capacity for “denial”, which might alternatively be termed self-delusion, lessens the seriousness of his offending. As I indicated during the hearing, there is in my assessment no difference in moral culpability between a person who suppresses the wrongness by creating a kind of amnesic-adjacent protective layer around themselves and a person who fully appreciates the wrongness of their conduct and does it anyway.
68․That which Dr Nomchong calls the psychological phenomenon of “denial” is also a well-known criminological phenomenon. The offender is, of course, not to be punished for pleading not guilty (when first charged) but I do not accept that the objective seriousness of his offending is lessened by his capacity to compartmentalise or sanitise the wrongness of his actions or to push those matters deep into his psyche. I repeat the remarks of Simpson J, which I have already quoted:
What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
Contrition
69․I am required to consider the offender's contrition: s 16A(2)(f) of the Crimes Act 1914. Dr Nomchong described the offender as having had a kind of epiphany when he pleaded guilty. I do not accept that this reflects any real reckoning with the gravity of his conduct. The course of the proceedings belies any real acceptance of responsibility. He initially pleaded not guilty and entered his plea of guilty only at the point literally minutes before I was about to start watching videos of his now admitted online sexual activity to determine whether different videos showed the same penis, the same Belconnen Magpies shirt and the same style of masturbation.
70․On sentence, he has sought to justify his participation in these offences by falling back on his own alleged trauma. But, as I have explained, there is little to support it. The complaint of bullying is not supported by the objective material, which records only the stress and difficulty he experienced when required to report to a manager for whom he had no respect.
71․I do however accept that, for many years, the offender has been lonely and isolated and that he suffers from and has suffered from relatively severe depression. That was not said to be relevant to an assessment of the offender’s moral culpability and plainly it does not meet that threshold. However, contrary to the Crown’s submission, I do accept that the offender’s depression is relevant to the hardship he will experience in serving a term of imprisonment. I have taken that into account in fixing the non-parole period for the offences.
Cooperation with law enforcement and delay
72․I am required to consider two factors which in this case are interrelated: the extent to which the offender has cooperated with law enforcement agencies in the investigation of the offence and the question of delay.
73․I accept that the offender cooperated with law enforcement agencies at the time of the execution of the search warrant, permitting police to search his home and access his devices. It could be thought that that cooperation was somewhat tempered by later interlocutory applications which have caused significant delay in the proceedings and taken up considerable court time. However, there is a suggestion in Dr Nomchong’s report, and it accords with my own impression at the time, that the offender may have been led down that path by legal advice. Accordingly, I propose to give him the full benefit of his early attitude of cooperation with law enforcement authorities.
74․Separately, the offender pointed to delay in bringing these matters to finality. That was partly due to the time it took to investigate the offences against him and partly due to his own interlocutory applications. The question of delay cannot be a mitigating factor where it is caused by difficulties in detecting, investigating and proving offences. The sheer volume of the material seized from the offender’s home, to the extent that it had to be inspected by police, was bound to take a considerable amount of time having regard to the occupational work health and safety practices that must be put in place around police who are required, in the course of their employment, to watch such material.
75․An example of the complexity and interrelatedness of the issue of delay and the question of assistance to authorities in these proceedings is that, in the pre-trial application which did not proceed, it was proposed to argue that the existence of various items found during the execution of the search warrant, including a Belconnen Magpies shirt, did not prove coincidence or similar fact as between different offences, whereas by the time of the proceedings on sentence, with different counsel briefed, it was argued that the wearing of the Belconnen Magpies shirt indicated that the offender was not trying to conceal his identity. That backflip or re-imagining of an argument indicates the complexity of weighing these mandatory considerations under the Crimes Act 1914.
76․I do not propose to mitigate the penalty for any delay. However, as I have indicated, I do propose to allow the offender the full benefit of his apparent attitude of assistance to authorities in the early stages of the investigation.
Prospects of rehabilitation
77․I am required to assess and have regard to the offender’s prospects of rehabilitation. The psychological evidence suggests that he has good prospects. I accept that, ultimately, he has had some kind of epiphany in acknowledging his commission of the offences. That tempers the weight to be given to specific deterrence. The Crown submitted that the Court should be cautious in determining the offender’s prospects of rehabilitation and that Dr Nomchong’s “airy optimism” should be viewed with scepticism. There is some force in that submission. However, if scepticism is to be brought to the expression of opinion that the offender has good prospects of rehabilitation, that only reinforces the need for opportunities for rehabilitation to be made available. As I will be imposing a non-parole period for the sentences of imprisonment I propose to impose, the question of rehabilitation and any risk posed by the offender in the future will be matters for the Sentence Administration Board. I record my recommendation that any parole granted to the offender might include a condition requiring him to undertake rehabilitation if that has not already been addressed whilst he is in custody.
78․I note that s 16A(2AAA) requires the Court, in fixing the non-parole period, to have regard to the objective of rehabilitation in respect of any person charged with a Commonwealth child sex offence.
Punishment and deterrence
79․I turn finally to the question of the significance of the sentencing purposes of punishment and deterrence. For the reasons I have explained at length in this judgment, those factors must be given significant weight in the present sentencing exercise.
80․The offender’s pleas of guilty mean that he is entitled to some discount to reflect the fact of the plea and its timing and the degree to which that fact and the timing of the plea resulted in any benefit to the community or any victim of or witness to the offences: s 16A(2)(g) of the Crimes Act 1914.
81․Although the pleas of guilty were not early, they were of significant benefit to the community in obviating the need for a four-week hearing that had been listed for trial at the time the pleas were entered.[2] The Crown case was strong and that is a factor to be taken into account.
[2] During the editing of this judgment, it has been identified that this last statement was wrong. The matter had not been listed for hearing at the time the pleas were entered.
82․The offender entered his pleas of guilty on 31 January 2025. That was after I had ruled against him in respect of a pre-trial application which sought to exclude the entirety of the prosecution case but, as already indicated, before I was required to consider and hear the evidence in respect of the Crown’s tendency and coincidence application. I accept that there is a significant benefit to the community in not requiring a jury to view and consider the confronting material I have described and not re-traumatising any victims who might become aware of the replaying of the material in which they are depicted. I propose to allow a discount in the order of 15% for the pleas.
Comparative cases
83․I have already explained that the comparative cases and current sentencing practices are not of particular assistance in this case. The Crown identified a number of decisions in a table but submitted that all of those would be distinguishable from the present case bar one, the matter of Director of Public Prosecutions v Meharry [2017] VSCA 387. As already noted, the consistency that is sought from comparative cases is in the application of the relevant principles rather than any consistency in outcomes, which are necessarily as different as the cases that come before the court.
Sentence
84․As the sentences I propose to impose exceed three years, I am required by s 19AB of the Crimes Act 1914 to fix a non-parole period. The legislation creates a presumption of accumulation between the offences. As already noted, the Crown submitted that the degree of accumulation should be significant except for counts 3 and 4.
85․In my assessment, each of the counts which I have described is effectively entirely discrete offending. For that reason, I propose to make each sentence entirely cumulative upon the others, apart from counts 3 and 4 which, as already indicated, will be entirely concurrent. In taking that approach, I have had regard to the principle of totality. I have concluded that that is an appropriate course in the circumstances of the present case.
86․The offences are to be backdated by 50 days prior to the date on which Mossop J revoked the offender’s bail, which was 28 April 2025. That gives a starting point for the sentences I am about to impose of 9 March 2025.
87․For each of the Commonwealth counts on the indictment, the starting point for the sentence will be a period of imprisonment for three years. After applying a discount of 15%, that gives a term of imprisonment for two years and six months (rounding down). For the Territory offence, the starting point is a period of imprisonment for two years, giving a term of one year and eight months (rounding down), wholly concurrent with the sentence for count 3. The total sentence is a period of imprisonment for ten years.
Orders
88․Richard James Roy please stand:
(1)I convict you of each of the offences to which you have pleaded guilty.
(2)For the offence in count 1 of possessing child abuse material via a carriage service contrary to s 474.22A(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 March 2025 and expiring on 8 September 2027.
(3)For the offence in count 2 of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 September 2027 and expiring on 8 March 2030.
(4)For the offence in count 3 of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 March 2030 and expiring on 8 September 2032.
(5)For the offence in count 4 of producing child exploitation material contrary to s 64A of the Crimes Act 1900, I sentence you to a term of imprisonment for one year and eight months commencing on 9 March 2030 and expiring on 8 November 2031.
(6)For the offence in count 5 of accessing child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and six months commencing on 9 September 2032 and expiring on 8 March 2035.
(7)I fix a non-parole period of seven years commencing on 9 March 2025 and expiring on 8 March 2032.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 2 October 2025 |
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