R v RZ

Case •

[2023] NSWDC 181

•

02 June 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v RZ [2023] NSWDC 181
Hearing dates: 3 May 2023
Date of orders: 2 June 2023
Decision date: 02 June 2023
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Fulltime imprisonment. For orders see [134].

Catchwords:

CRIME – use carriage service to access child abuse material – use carriage service to transmit child abuse material – possess or control child abuse material using a carriage service – produce child abuse material.

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Court Suppression and Non-Publication Orders Act 2010

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code Act 1995 (Cth)

Cases Cited:

BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159

CDPP v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170

CW v R [2022] NSWCCA 50

KT v R (2008) A Crim R 51; [2008] NSWCCA 51

R v Burton [2020] NSWCCA 127

R v Cahyadi [2007] NSWCCA 1

R v Clarkson (2011) 32 VR 361

R v Edwards [2019] QCA 15

R v Hutchinson [2018] NSWCCA 152

R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174

Category:Sentence
Parties: The Commonwealth Director of Public Prosecutions (The Crown)
RZ (The offender)
Representation:

Counsel:
Ms D New (The Crown)
Mr R Steward (The offender)

Solicitors:
Mr B Lovely (The Crown)
Ms P Boyle (The Crown)
Mr S O’Toole (The offender)
File Number(s): 22/382127 & 22/39658
Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 the name of the offender is not to be published in respect of Counts 1, 2 and 6 thereof. Further I have made a non-publication order in respect of the offender’s name for all offences pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010. For more abundant caution the offender’s name has been anonymised and he will be referred to as RZ in these remarks on the sentence.

Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of any child victim in the proceedings.

REMARKS ON SENTENCE

  1. On 3 May 2023 upon arraignment the offender pleaded guilty to the following counts on an Indictment:-

  1. Count 1, that between about 29 April 2020 and about 1 June 2020, at Peakhurst and elsewhere in the State of New South Wales, he did access material using a carriage service, the material being child abuse material.

This offence is contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) (“the Code”).

  1. Count 2, that on about 6 June 2020 at Peakhurst and elsewhere in the State of New South Wales, he did transmit material to ‘1182708196’ using a carriage service, the material being child abuse material.

This offence is contrary to s 474.22(1) of the Code.

  1. Count 3, that between about 25 July 2020 and about 4 February 2022 at Peakhurst and elsewhere in the State of New South Wales, he did transmit material to ‘1007673022’; “Brailee Bob’ and ‘Sean Eeglesiak’ using a carriage service, the material being child abuse material.

This offence is contrary to s 474.22(1) of the Code.

  1. Count 4, that between about 28 March 2021 and about 2 February 2022 at Peakhurst and elsewhere in the State of New South Wales, he did transmit material to ‘Alex John’, ‘Kimberly Casaada’ and ‘Ginus Nuus’ using a carriage service, the material being child abuse material

This offence is contrary to s 474.22(1) of the Code.

  1. Count 5, that on about 10 February 2022 at Peakhurst and elsewhere in the State of New South Wales, he did possess or control material, being child abuse material, in the form of data held in a computer or contained in a data storage device and he did use a carriage service to obtain or access the material.

This offence is contrary to s 474.22A(1) of the Code.

  1. Count 6, that on or about 29 April 2020 at Peakhurst and elsewhere in the State of New South Wales, he did produce child abuse material.

This offence is contrary to s 91H(2) of the Crimes Act 1900 (NSW).

  1. Count 7, that between about 22 May 2020 and 23 May 2020 at Peakhurst and elsewhere in the State of New South Wales, he did produce child abuse material.

This offence is contrary to s 91H(2) of the Crimes Act 1900 (NSW).

  1. The maximum penalty prescribed by Parliament is 15 years imprisonment for Counts 1 to 5 (the Commonwealth offences). The maximum penalty prescribed by Parliament in respect of Counts 6 and 7 is 10 years imprisonment (the State offences).

  2. The offender had been arrested on 10 February 2022 and at the time of the sentence hearing had spent 243 days in custody.

  3. The offender was born on 12 June 2002 and therefore was a minor at the time of the offending in Counts 1, 2, 6 and 7, and was a minor during part of the offending in Count 5. There was therefore a statutory prohibition on publication of his name in respect of those counts. An application was made by the offender for a suppression order, and for his name to be anonymised pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (“CSPOA”). The application was made pursuant to s 8(1)(a) on the basis that it was necessary to prevent prejudice to the proper administration of justice, to protect the safety of the offender whilst he was in custody (s 8(1)(c)) and on the basis that it was necessary in the public interest to so order (s 8(1)(e)).

  4. The Crown “completely embraced” the making of an order and formally consented to the order being made in respect of Counts 1, 2, 6 and 7 but was otherwise instructed to oppose the order in respect of the remaining counts on the Indictment. For practical considerations and in order to avoid any inadvertent breach of s 15A of the Children (Criminal Proceedings) Act 1987, I made an interim order pursuant to s 8(1)(a) of the CSPOA to suppress the name of the offender and for more abundant caution to anonymise his name to “RZ”. That order will now be confirmed and will apply in the State of New South Wales until further order.

The sentence hearing

  1. The Commonwealth Crown sentence summary became Exhibit A on the sentence hearing. It included a statement of agreed facts which may be summarised as follows.

  2. On 25 May 2020 Luxembourg Police received a report of online sexual exploitation of a 10 year old female, KB, by an individual in Australia using an Instagram account that was owned and operated by the offender. This information was passed on to Australian authorities who executed a search warrant at the offender’s residence. Several devices were seized and forensically examined, and the offender was found to be in possession of a large volume of child abuse material as well as communications between the offender and unknown persons on various applications involving the transmission and receipt of child abuse material.

  3. The offending spanned the period 29 April 2020 to 10 February 2022 during which time the offender was aged between 17 and 19 years.

  4. On 29 April 2020 the offender created two videos of conversations on Instagram between himself and another user, “K…spam”. In the first video the offender typed “are you going to lick his dick?”; “or suck it?”. The unidentified user then sent the offender a 1-minute video file depicting a pubescent male child approximately 12 to 14 years of age with his pants down exposing his penis. The male child positioned himself behind the female child who was naked from the waist down and appeared to simulate sexual intercourse. The female child then turned to the male child, placed her hand on his penis and positioned it towards her vagina. The children are then seen to simulate sexual intercourse.

  5. The second video involved the other user typing a message similar to that referred to above, following which that other user sent a file depicting the same male and female children. The male child was naked from the waist down and his penis was exposed. The female child bent over and performed fellatio on the male child’s penis.

  6. The creation of the two videos is the conduct that comprises Count 6 on the Indictment – produce child abuse material.

  7. On the offender’s iPad four videos were discovered that were created by the offender. They comprised Instagram conversations between the offender and the child KB. The first video created on 22 May 2020 was of 27 seconds duration. It commenced with typed chat in which KB said, “its sending” following which two video links appeared. The video depicted the first video being selected and played. It depicted a naked prepubescent female child aged between 8 and 10 years seated on the floor of what appears to be a bedroom. Her naked breasts were visible and her legs were spread apart exposing her vagina. The child then rubbed and used her hands to spread her labia apart before repositioning herself on her hands and knees facing away from the camera, exposing her vagina and anus. She then “twerked”, meaning that she shook her buttock/crotch region.

  8. The second video sent the same day by KB was of 1 minute and 13 seconds duration. It depicted the same prepubescent female wearing a short playsuit standing in a bedroom. She stripped naked whilst rubbing her breast and touching her buttocks and completed various poses to the camera with her breasts, vagina and anus clearly visible.

  9. A third video sent by KB on 22 May 2020 with a duration of 43 seconds depicted her kneeling naked in front of the camera exposing her vagina and anus. She then rubbed her breasts and gyrated on the floor of the room.

  10. The next day, 23 May 2020 a video of 1 minute and 16 seconds duration which commenced with the following typed chat from the offender was produced:

“if ur parents call me ill leave and show people you naked.

So whats ur choice?”

  1. Below that chat were four video links and a finger visible on the screen selecting the first video, which depicted a prepubescent female aged between 8 to 10 years standing in a bathroom in front of the camera wearing the same playsuit as KB wore in the previous video. The female removed her clothing exposing her vagina, squats down and rubbed her vagina and gyrated on a plush toy before urinating onto the tile floor.

  2. This conduct constituted the offence in Count 7 – produce child abuse material.

  3. Count 1 on the Indictment related to the offender’s use of his various devices comprising an iPhone and iPads to access child abuse material between 29 April 2020 and 1 June 2020. Count 1 relates to the child abuse material accessed by the offender on or about 29 April and 22 May 2022 which is subject of Counts 6 and 7 referred to above (namely the recording by the offender of that material). In addition, Count 1 relates to a further video file located on the offender’s iPad Mini comprising a 10 second video depicting a female aged between 7 and 10 years facing away from the camera, wearing a grey coloured hooded jumper but naked from the waist down. The child is “twerking” with the camera focused on her exposed vagina and anus. In the top lefthand corner of the screen is a profile image of a young female with the words “Natalia to you 41s”.

  4. Count 2, use carriage service to transmit child abuse material, relates to a Telegram app conversation on 6 June 2020 between the offender and an unidentified individual using the moniker “118…196”. On that day the offender received a message from that user following which a conversation ensured in which the offender confirmed his sexual interest in young girls. The offender and the unidentified user then took turns sending files to each other, several at a time. The offender received a total of 8 files and sent a total of 13 files. The files comprised predominantly prepubescent females engaging in sexual acts including exposing and penetrating their own vaginas, urinating, or being subjected to vaginal penetration by adult males. On three further occasions in June 2020 the offender tried to start a chat with the same user but there was no response.

  5. Count 3, use carriage service to transmit child abuse material concerned a conversation on the Telegram app and three unknown individuals using the monikers, “100…022”, “Brailee Bob” and “Sean Eegleksiak” between 25 July 2020 and 4 February 2022.

  6. The offender had communications with the first of those users requesting trade of sexually explicit videos and on 27 July 2020 he received 2 video files and sent one file comprising child abuse material. The videos concerned prepubescent males and females engaging in sexual acts.

  7. The communications with “Brailee Bob” occurred between 16 August 2020 and 10 February 2022. So as not to further disseminate child abuse material I do not intend to set out those communications in these remarks but rather attach them as Annexure 1 to these remarks. They will not be published. They evidence 31 occasions during that period where the offender and the other user communicated about their sexual proclivities and contained a great deal of child abuse material.

  8. Between 6 September 2020 and 14 April 2021 the offender sent child abuse material as well as links to MEGA identified as child abuse material, to the Telegram user Sean Eegleksiak. Between 21 May 2021 and 29 January 2022 the offender messaged the same user a total of 22 times and child abuse material was sent to the offender subsequent to the offender’s request for same.

  9. Count 4, use carriage service to transmit child abuse material, concerned conversations between the offender and three unknown individuals using the monikers, “Kimberly Casaada”, “Alex John” and “Ginus Nuus” between 28 March 2021 and 2 February 2022.

  10. From 28 March 2021 the offender engaged in conversation with the user “Alex John” via Telegram. They sent each other files identified as child abuse material as well as numerous MEGA links. A total of 328 files were identified as child abuse material comprising a mixture of prepubescent females with some pubescent females engaging in sexual acts. Conversations that occurred between the offender and “Alex John” on 10 September 2021 and between 3 January 2022 and 7 January 2022 are annexed hereto as Annexure 2, and will not be published.

  11. Between 1 June 2021 and 9 February 2022 the offender engaged in conversation with the user “Kimberly Casaada” using the Snapchat application. On 13 November 2021 the offender sent that user a screenshot of a TikTok account which provided details; “13single/Snapchat:kimberlycasaada”. There followed a number of chat communications that occurred on 20 November 2021, 24 November 2021, 8 December 2021 and 4 February 2022 which are annexed hereto as Annexure 3, and also will not be published.

  12. On 8 December 2021 the offender sent four image files depicting a prepubescent female child approximately 8 to 10 years of age. She was naked with the image focused on her torso. A second image depicted a prepubescent female child standing naked with her hands behind her bed. The top of the image has the text “KB to you”. The child depicted is the same victim identified in Count 7 above.

  13. On 21 January 2022 the offender communicated with the user “Ginus Nuus” on Telegram and received videos identified as child abuse material. He then received three further child abuse material videos on 29 January 2022 and on 2 February 2022 the offender sent eight video files all identified as child abuse material. It depicted prepubescent females exposing, penetrating their own vaginas, or being subjected to penile-vaginal intercourse with adult males.

  14. Count 5, posses/control child abuse material in the form of data accessed using a carriage service, involved between 4 February 2020 and 10 February 2022 the offender having possession and control of child abuse material saved on a number of his devices as follows:-

Device

Child Abuse Material Located

Modified Date

iPad Mini

Video described above at [9] in respect of user ‘Natalia’.

1 June 2020

HP Laptop

A 4 minute 57 second video depicting a prepubescent female child approximately 10-13 years of age. The child undresses to expose her genitals to the camera saved in C:\\Users\61459\Downloads.

10 September 2021

An image of a prepubescent female child approximately 8-10 years of age. The child is depicted naked from the torso up and is exposing her breasts saved in C:\\61459\OneDrive\Pictures.

10 September 2021

iPad

134 videos and 60 images identified as child abuse material.

Various

  1. The child abuse material located on the offender’s iPad included the videos referred to above depicting KB and also the videos identified in Count 6. Also located on the iPad were numerous videos of a depraved nature comprising child abuse material.

  2. A review of the offender’s iPhone located a MEGA application with an alias username “Jack Rob” in which numerous files containing child abuse material were located within the cloud storage application.

  3. Upon execution of the search warrant at the offender’s home on 10 February 2022 the offender provided passwords for his electronic devices which were subsequently forensically analysed. In an ERISP interview following his arrest the offender declined to answer questions but stated:-

“a. He owns the silver iPhone seized with associated phone number ending in 2052;

b. No one else ever owned that phone.

c. No one else knows the password to his phone or to his knowledge has access to the phone.

d. He owns the HP Laptop, no one else has the password; and

e: He owns the iPad seized, no one else has the password.”

  1. Exhibit A also included the NSW Police Report confirming the offender had no prior convictions and his custodial record.

  2. Exhibit A also included a Sentencing Assessment Report (“SAR”) under the hand of Mr D Kasunic dated 18 April 2023.

  3. The author confirmed the offender intended to return to his mother’s home following his release to the community. Under the heading “Attitudes” the author noted that the offender reported seeking out pornographic material which was age appropriate for his own benefit which resulted in online contacts being established. He reported that these contacts had asked him to procure child abuse material and he denied that the content of the material was for his own sexual pleasure and was not related to his sexual preferences. He further denied any personal contact with any of the individuals other than online. He attributed the underage nature of the material to the peer group he was involved in.

  4. The author referred to an attached psychologist report which indicated that the offender was well above average risk of sexual recidivism according to the Static-99R model. That Case Note was admitted over objection and became Exhibit C.

  5. The offender contended that in hindsight he was most likely suffering depressive symptoms at the time of the offending. Under the heading “Insight into impact of offending” the author noted that the offender was aware that the victims were underaged and that he went to “great lengths” to please his online associates to make himself “feel useful”. The offender reported feeling ashamed and disgusted in his actions and expressed a willingness to participate in interventions for his sexual offending. The author assessed him as at a low to medium risk of reoffending however Community Corrections had raised that risk to high because of his Static-99R score of above average. The author then set out a supervision plan and recommended that the offender be directed to enter into any sex offender specific assessments and treatment recommendations deemed suitable by Community Corrections. He was further assessed as being suitable to undertake community service work.

  6. Exhibit B was a Victim Impact Statement (“VIS”) read in court by Mr P B, the father of the child KB. The VIS is referred to below.

  7. Exhibit C was the Case Note dated 17 April 2023 referred to by the author of the SAR. The author of the report is not identified and the report states that there was no direct contact with the offender for the preparation of his report. The offender had denied any sexual interest in children. Following assessment on the Static-99R Actuarial Risk Assessment Instrument the offender was assessed as being well above average risk of sexual recidivism. The author noted that the assessments tool did have limitations. The Case Note then set out recommendations for intervention including referral to the High Intensity Sex Offender Program (“HISOP”) in the event that he receives a custodial sentence. If he received a community-based order a recommendation was made that he be referred to the Forensic Psychology Services for assessment for participation in community-based treatment.

The offender’s evidence

  1. Exhibit 1 is a report from Dr S-J Spencer dated 23 April 2023. Dr Spencer is a forensic psychiatrist who assessed the offender via audio-visual link on 17 April 2023 for just over an hour. She was qualified with the agreed statement of facts.

  2. The report set out the offender’s personal history. He was born with achondroplasia, or dwarfism, which both his mother and younger brother also suffer. The offender left school at the start of Year 12 due to concerns about contracting COVID-19 but was unable thereafter to obtain work because of his physical disability. He had previously worked as a casual assistant butcher in a local shop from age 15 to 18 as his family knew the owner. He did not receive Centrelink payments and spent his time at home playing games and watching movies.

  3. The offender admitted to smoking cannabis on a regular basis prior to his incarceration. He had never been in a sexual relationship and denied using child pornography for sexual gratification and denied fantasising or being aroused by either male or female children or prepubescent boys or girls.

  4. Dr Spencer noted that the offender described being “really depressed” during the period prior to his incarceration and said, “none of it was out of my own sexual gains”. He explained “people were asking me to get this for them and I wanted to feel useful”. He did not know any of the people involved. The offender told Dr Spencer that although he realised what he was doing was wrong he did not realise the extent of the “higher criminal state”. On reflection the offender commented, “I just would never want… any young person… of any age… to be put through that… someday I want to grow up and have my own kids”.

  5. The offender described onerous conditions of his incarceration due to his physical disability. He gave away his buy-ups because he could not protect himself physically and had been smoking and sniffing buprenorphine illicitly approximately three times a week. His motivation for doing that was in part personal and to some degree because of peer pressure.

  6. Dr Spencer opined that the offender fulfills the diagnostic criteria for a diagnosis of paedophilic disorder despite his denial of being sexual attracted to prepubertal children. Despite his denial Dr Spender opined that at least part of his motivation for his criminal conduct was sexual gratification. The offender also fulfilled the criteria for a diagnosis of adjustment disorder with mixed anxiety and depressed mood in the context of his incarceration and current circumstances.

  7. Dr Spencer further opined that the offender’s achondroplasia is likely to have contributed to, but not caused, his offending whereas his paedophilic disorder did have a causal connection to it.

  8. Having assessed the offender on the Static-99R tool for sexual recidivism Dr Spencer opined that he was above average risk for being charged or convicted of another sexual offence. She also noted the moderate accuracy of the assessment.

  9. Dr Spencer noted the offender’s commitment to engage in any recommended treatment, his remorse for his actions and his desire to make amends and not return to custody. She opined that the offender shows good insight into the severity of the offences, and he had acknowledged the harm to the victims and expressed remorse for his actions.

Oral evidence of the offender

  1. The offender gave evidence that he was aware of the contents of the SAR and the report of Dr Spencer. He acknowledged that his denials to both authors of a sexual interest in children was not true. Both interviews had taken place whilst he was in custody and when asked to explain why he did not tell the truth, the offender stated that he was embarrassed because of the nature of the charges and was concerned about the consequences of the information getting into the wrong hands, namely, that if certain prisoners became aware of the nature of his charges he would be unable to protect himself from physical attacks because of his dwarfism. He explained that he was scared on a constant basis whilst in custody and feared any physical altercation because of his physical disability. During his time in custody threats had been made to both himself and his family but he had not been subject to physical assaults.

  2. He further explained that he exchanged his buy-ups with other prisoners for buprenorphine because of his fear of not knowing how those prisoners would react. He was not aware that buprenorphine was an opiate replacement drug.

  3. The offender gave evidence that he told Dr Spencer, as set out above, that no “young person should be put through that” meaning being put in situation were they were uncomfortable for the wrong reasons and for someone else’s pleasure. He gave evidence that he felt ashamed and disgraced himself for conduct he engaged in for his own personal gain whilst putting other young people in an uncomfortable position. He described it as “unhuman” and regretted his actions.

  4. The offender gave evidence that he was willing to do whatever it takes by engaging in rehabilitation programs so that he would be a better and safer person in the community.

  5. The offender gave further evidence explaining that he had been unable to obtain employment after school notwithstanding that he had tried but he had always been told that his physical disability would make him unsafe in the work environment. He had never been given any government assistance but would accept it. On his re-entering the community he wanted to get a job to support himself and his family. He explained that he wanted to do good in the community in the best way possible. His mother and brother also have dwarfism and face similar challenges. Whilst in custody he had had no visits however he spoke to his mother by phone every second day.

  6. The offender gave further evidence that whilst at Parklea Correctional Centre he had worked in ration packing and was now working in ground maintenance but otherwise was in protection, whilst on remand.

  7. In cross-examination the offender frankly agreed that he came to understand the need for him to express insight, contrition and remorse for his offending after a discussion with his lawyers. He thereafter spoke to the author of the SAR and Dr Spencer. He also agreed that he had denied to Dr Spencer having any particular issues with “others in the yard” whilst in custody. He gave evidence that he was aware of HISOP and was willing to engage in that program.

The Crown’s submissions

  1. The Crown relied on a thorough and detailed written outline of submissions in which it set out the 7 offences and a summary of the offending reflected in the agreed facts. The Crown also set out well established principles for sentencing for both the Commonwealth offences and the State offences. The Crown submitted that each count is a rolled-up charge where “more than one contravention of the relevant offence provision, or more than one episode of criminality, is particularised as part of the charge”, referring to CDPP v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170 at [269]. At [270] Wigney J set out the following applicable principles when sentencing for a rolled-up offence:-

“In sentencing a rolled-up charge, the Court is required to assess the criminality of an offender’s conduct as particularised. The issue for the Court on sentence is the criminality disclosed by the offence, not the number of charges. The more contraventions or episodes of criminality that form part of the rolled-up charge, the more objectively serious the offence is likely to be. That said, the maximum penalty for the rolled-up charge is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences.”

  1. The Crown also set out well-established principles in sentencing for sexual offending against children emphasising that general deterrence is the primary sentencing principle and that specific deterrence, denunciation, punishment and protection of the community are also very important sentencing considerations. The Crown referred to the list of factors relevant to the assessment of objective seriousness of child pornography offences set out by RA Hulme J in R v Hutchinson [2018] NSWCCA 152 at [45]. Notwithstanding the index offences are different to the provisions being considered by his Honour, the offending is similar in nature here and thus the factors referred to are equally applicable. The Crown noted that here, the offender did not cease the communications of his own accord which was also relevant to the assessment.

  2. The Crown set out in detail matters relevant to the nature and circumstances of the offending as required by s16A(2)(a) of the Crimes Act 1914 (Cth) and s21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). The Crown noted that the offending spanned a period between 29 April 2020 and 10 February 2022 at which time the offender was aged between 17 and 19 years. Child abuse material was stored across a range of electronic devices and transmitted used Instagram, Telegram and Snapchat social media applications. The child abuse material was in a form that displayed highly graphic representations of prepubescent females recorded whilst naked or engaging in sexual acts as follows:-

“a. Video files of the child abuse material primarily depict prepubescent females between the ages of 7 and 12 engaging in acts such a simulated sexual intercourse, masturbation, graphic exposure of the genital and anal region, urination, and vaginal penetration by adult males; and

b. The chat messages sent by the offender involved requests for videos of young girls between 6 and 14 years of age, including a focus on videos depicting rape, forced sex, and incest. The offender made repeated requests for specific videos of prepubescent females engaged in sexual acts. The offender also recounted detailed stories of sexual intercourse and rape of female children approximately between the ages of 7 and 8.”

  1. The Crown set out the following factors to be taken into account for all of the counts:-

“a. Actual children were used;

b. The nature of the communications was sexually explicit, sexually violent and at times obscene. The Offender repeatedly communicated acts of sexual violence on young females (some aged between 7 and 8);

c. The sexual activity in the videos involved prepubescent females between the ages of 7 and 12 showing their naked breasts, vaginas, bottoms, urinating and simulating sexual intercourse and masturbation. The videos also included vaginal penetration by adult males;

d. The Offender engaged in each conduct for sexual gratification;

e. Though crudely undertaken, and unsophisticated in his modus operandi, the Offender put thought into concealing his identity, and commitment to the conduct of collecting and disseminating child abuse material.”

  1. In respect of Count 1 the Crown submitted the offence fell slightly below the midrange of objective seriousness for an offence pursuant to s474.22(1) of the Code because the videos accessed by the offender involved real children, male and female, aged between 8 and 14 years, and whilst the offence related to seven videos it was aggravated by the fact that those videos were directly sourced from the children involved (as opposed to downloading from the internet) thereby corrupting those children directly. One of those children, KB, was 10 years of age. Further the offender was able to access one of the fellatio videos by specifically requesting the child to engage in such conduct and accessed another video by threatening or blackmailing KB.

  2. The Crown submitted the related offending in Count 6 (two videos produced on 29 April 2020) and Count 7 (four videos produced on 22 and 23 May 2020) were at the low end of objective seriousness having regard to the fact that the offender produced copies of the child abuse material he accessed which are the subject of Count 1, by recording the videos as he watched them. However, the conduct was nevertheless still serious as it is an available inference from the agreed facts that he intended to disseminate those videos.

  3. The Crown submitted that the objective seriousness in relation to Count 2 an offence pursuant to s474.22(1) of the Code was below the midrange of objective seriousness because the thirteen child abuse material files transmitted involved real children and the material was transmitted to a user who had shown a willingness to transmit child abuse material to the offender. They shared files with each other after the offender had set out a list of his desired preferences. An inference was available that this material would have been further disseminated. By asserting his intention to receive more of such material the offender was adding to the market of online abuse of children.

  4. The Crown submitted that the offending in Count 3, the offence pursuant to s474.22(1) of the Code, was within the midrange of objective seriousness because the offender transmitted child abuse material to three different users over a period of 18 months. Whilst the total number of videos transmitted by the offender could not be quantified, the offender’s transmission of child abuse material was motivated by a desire to receive same, including highly depraved and sexually violent material. Whilst the text based child abuse material transmitted to “Brailee Bob” did not involve real child victims, such communications normalise exploitive sexual activity involving children and encourage reciprocal communications or can “stimulate a susceptible recipient to engage in sexual activity involving real children”, relying on R v Edwards [2019] QCA 15 at [38] and other authorities including R v Burton [2020] NSWCCA 127.

  5. The Crown submitted the offending in Count 4, an offence pursuant to s474.22(1) was slightly above the midrange of objective seriousness for such an offence. The offender transmitted child abuse material to three different users over a period of 10 months, the last transmission to “Ginus Nuus” occurring only 8 days before the execution of the search warrant, demonstrating persistent conduct that had not ceased of his own accord. A total of 328 child abuse materials were exchanged with “Alex John”. The offender transmitted the child abuse material to receive the same from “Kimberly” by offering to pay her $8 and encouraged the further sexual exploitation of “Kimberly” by providing other users with her contact details. The content of the images sent to “Kimberly Casaada” was highly depraved, added to the market of child abuse material and encouraged the exploitation of children.

  6. The Crown submitted that the offending in Count 5, an offence pursuant to s 474.22A(1) of the Code, was slightly below the midrange of objective seriousness as it involved the offender possessing child abuse material depicting real children aged between 8 and 14 years old across three devices and one cloud storage application which he controlled under a fake username “Jack Rob”. 134 videos and 460 images were identified in one device alone and the images and videos revealed prepubescent children in naked poses exposing their genitals and engaged in solo masturbation. The offender also retained possession of child abuse material videos he had created in early 2020.

  7. The Crown submitted that the court would take judicial notice of the harm the offending causes to children, relying on R v Clarkson (2011) 32 VR 361.

  8. The Crown acknowledged that the offender had entered pleas of guilty to the offences on 20 December 2022 and for the State offences he was entitled to a discount of 25% for the early pleas. For the Commonwealth offences the fact of the plea, its timing and the degree to which is resulted in benefit to the community could be taken into account pursuant to s16A(2)(g) of the Crimes Act 1914 (Cth). Here it was relevant that the pleas were entered against a strong Crown case.

  9. The Crown conceded that the offender, by providing his passwords to the various electronic devices, assisted police in investigating the offences. Whilst this could be taken into account on sentence it would not amount to a quantifiable discount.

  10. The Crown conceded that the offender’s youth was relevant in the sentencing exercise. Counts 1, 2, 6 and 7 were committed whilst the offender was 17 years of age, Counts 3 and 4 were committed after he turned 18 and Count 5 straddled these two ages. The Crown submitted that the offender’s youth was relevant in diminishing the significance of general deterrence, placing an emphasis on rehabilitation and recognising that psychological immaturity may have contributed to the offending. The fact that the offending continued until the offender was 19 years of age may not diminish the impact of the significance of the offender’s youth due to mental immaturity, referring to CW v R [2022] NSWCCA 50 per Hamill J at [65]. The Crown conceded that the offender’s youth may also reduce the objective seriousness in terms of the reduced age disparity and may also reduce the moral culpability of the offender in that naivety and immaturity may be a factor that underpinned this offending, however that could not cause the court to arrive at a sentence that is disproportionate to the criminality involved.

  11. The Crown submitted that an inescapable conclusion was that the offender has a sexual interest in children and that this motivated his offending. The Court could not find the offender was unlikely to reoffend in the absence of evidence that he has sought or will seek treatment.

  12. The Crown set out relevant sentencing principles for structuring a sentence involving both Commonwealth and State offences and as to the application of the principle of totality of any aggregate sentences imposed. For the Commonwealth offences (Counts 1 to 5) there is a presumption in favour of accumulation pursuant to s19(5) of the Crimes Act 1914 (Cth). The Crown conceded that any sentence should be backdated to include 243 days of presentence custody. The Crown also provided a schedule of comparative cases conceding that they were not comparable in the sense that they were not factually similar.

  13. In her oral submissions the Crown noted the overlap in Count 1 with the offending in Counts 6 and 7. At the time of the offending, the offender was 17 years old and Count 1 involved accessing the same videos as in Count 6 and 7 together with one additional video involving a female aged between 7 and 10 years.

  14. Count 2 occurred when the offender was just shy of his 18th birthday and involved offending where he transmitted child abuse material to another user who he had come into contact with on the same day. He was quick to disclose and offer child abuse material and sent 13 videos and received 8 in return from that user. Further, in discussion he had stated his personal preference for young lesbian girls. The Crown submitted it was a reasonable inference that the other user was a seasoned collector of child abuse material because of the haste of the exchange and the fact that the user did not respond to further requests from the offender. That inference arose because of the use of the codename and the fact that this occurred on one occasion only because of the high risk of detection.

  15. The Crown rehearsed its submissions in respect of Count 3 which offending took place between 25 July 2020 and 4 February 2022 and involved 3 other users. The offending demonstrated (a) the offender’s sexual interest in young girls; (b) that the collecting and trading of child abuse material was ongoing, and it fed a repugnant market; and (c) the offender was referring the other users to each other for the purpose of collecting and disseminating child abuse material.

  16. The Crown rehearsed her submissions in relation to Count 4 which offending took place between 28 March 2021 and 2 February 2022. It involved three different users and in respect of “Alex John” there were 328 files, although it was unclear as to who sent what to whom. The Crown contended that the offender had sent “more than a handful”. In respect of the offending involving “Kimberly Casaada” the Crown submitted the inference was that that user was a child, relying on what was said in the communications with the offender, for example the fact that she was asked to exchange child abuse material for $8 and the nature of the conversation generally. The Crown submitted that in relation to Count 4 when the evidence is viewed holistically the only reasonable inference is that “Kimberly Casaada” was a child.

  1. In relation the assessment of the offender using the Static-99R assessment tool the Crown noted that the author of the Case Note in Exhibit C and Dr Spencer arrived at different scores, however both assessments revealed that the offender fell in the above average risk category for sexual reoffending and therefore qualified him for the HISOP whilst in custody.

  2. It was agreed that taking into account 243 days of presentence custody any sentence should commence on 3 September 2022.

  3. The Crown rehearsed her submissions as to judicial notice being taken as to the harm caused to the victims of the offending as evidenced by the VIS of Mr Balla and his description of the impact on his daughter’s “self-value”. The Crown rehearsed her submission that general deterrence was paramount in the sentencing process and that whilst the transmission of child abuse material may be intentional or reckless it was more serious offending if intentional as was the case here. This offender was quick to create, record and disseminate such material to other unknown users.

The submissions on behalf of the offender

  1. Counsel for the offender also relied on a thorough and detailed written outline of submissions in which he submitted the objective seriousness of the offending in Count 6 which occurred on 29 April 2020, when the offender was 17 years of age, was at the lower end of the scale of objective seriousness. This was because the offender contributed only additional words to the videos, the two original videos were not produced by the offender and the child abuse material involved was relatively limited.

  2. Count 7 involved four videos of child abuse material involving the child KB with whom the offender was communicating via social media. The offender was 17 years old at the time and the victim was described as being 8 to 10 years however the VIS by the child’s father stated that she was 11 years old.

  3. It was submitted that the videos did not involve sexual activity with another person and were restricted to sexual posing and some sexual touching. It was conceded that the third video contained a conversation suggestive of some coercion or manipulation of the child by the offender.

  4. Counsel submitted that the offence involved direct online contact between the offender and the child with some coercion evident in the fourth video however it was submitted that the offence lies below the midrange of an offence pursuant to s91H(2) of the Crimes Act 1900 (NSW).

  5. In assessing the objective seriousness of the offending in Count 1 it was submitted that most of the child abuse material in respect of that offence was the same relied on for the offences in Count 6 and 7. Counsel conceded that the offence is a separate and discrete offence with the element of use of a carriage service to access the material. In addition there is one additional 10 second video depicting a child engaging in sexual posing for the camera. It was submitted that the objective seriousness of the offence was below midrange because the amount of material was limited, the nature of the sexual activity is predominantly sexual posing, the ages of the children were somewhere in the middle of the range, and the offender was a child at the time of the offence.

  6. Count 2 was a charge of use a carriage service to transmit child abuse material which occurred on 6 June 2020 when the offender was 17 years of age. This offending was also below midrange for an offence pursuant to s474.22(1) of the Code as the material was limited in volume (13 videos), the nature of the activity varies considerably in seriousness and the offender was operating by way of collaboration with other likeminded individuals. He was also a child at the time.

  7. The offending in Count 3 was also below midrange. It commenced shortly after the offender’s 18th birthday and continued until the date of his arrest on 4 February 2022. It involved the use of a carriage service to transmit child abuse material as outlined above. Relevant features to be taken into account were as follows:-

  1. The conduct occurred over a significant period of time

  2. The offending by way of conversations is less serious in terms of child abuse material, than material showing actual depictions of children engaged in sexual activity.

  3. The child abuse material involved in the charge has one video file on the 27th of July and some child abuse material which is not particularised further.

  4. The offender was collaborating with other likeminded individuals.

  1. Count 4 also related to the transmission of child abuse material to the three individuals referred to above. The volume of material involved was far less than other cases which come before the courts involving thousands of images and videos. It was submitted that the main aggravating factor is the lengthy period of time over which the conduct occurred, namely, from 28 March 2021 to 2 February 2022. Also relevant was the offender’s collaboration with other persons.

  2. Count 5 related to the possession of child abuse material from 4 January 2020 to 10 February 2022. That material included the same child abuse material involved in Counts 6 and 7 and a sample of material indicates that it involved children from the ages of 10 to 14 engaging in sexual posing and sexual acts. For some of the period of the offending the offender was 17 years of age.

  3. Counsel for the offender submitted that some general common features of the overall offending include:-

“(a) The offender was either a juvenile or a young adult at the time;

(b) The offences were relatively unsophisticated and did not involve any use of encryption methods, secret file sharing platforms or the “dark web” to obtain the material; and

(c) While the child abuse material involved is not to be either trivialised nor is it minimal in volume it is nevertheless far less than the volume seen in many other cases.”

  1. In respect of the nature of circumstances of the offence which the court was to consider pursuant to s16A(2)(a) the following were relevant factors:-

  1. The period of time over which the offending occurred;

  2. Where the charges are rolled-up counts;

  3. The quantity of material involved;

  4. The following relevant matters i.e.:-

  1. “Whether actual children are used in the creation of the material (to the extent that the transmission offences rely on words spoken objective gravity is diminished insofar as this factor is concerned);

  2. The ages of the children and the type of sexual activity portrayed;

  3. The number of different children depicted;

  4. In a case of transmission, the limited number of persons to whom the material was transmitted;

  5. The absence of a commercial aspect to the offending;

  6. The absence of planning or sophistication;

  7. Whether the offender acted alone or collaborated with other individuals.”

  1. Counsel conceded that the nature of the offences was serious however the circumstances of the particular offences would place them below the midrange.

  2. Pursuant to s16A(2)(c) all counts except Counts 2 and 6 consist of a course of conduct and are properly described as “rolled-up” counts.

  3. In respect of s16A(2)(ea) it was submitted that the harm asserted in the VIS of Mr Balla is within the type of harm ordinarily contemplated for this offence and that the statement does not give rise to a matter of aggravation.

  4. Counsel submitted that evidence of the offender’s contrition (s16A(2)(f)) can be drawn from his plea of guilty, his partial admissions to police in his interview and his subjective evidence before the court. It was further submitted that the offender would receive a significant discount for the utility of his plea of guilty and his willingness to facilitate the course of justice by providing the passwords to his various devices.

  5. Counsel conceded the need for general deterrence pursuant to s16A(2)(ja) but submitted that the need for specific deterrence pursuant to s16A(2)(j) may be ameliorated in circumstances where the offender here had suffered a difficult custodial experience. It was conceded that the threshold in s17A had been crossed.

  6. Counsel set out the relevant subjective factors pursuant to s16A(2)(m) and (n) supported by the report of Dr Spencer, notwithstanding Dr Spencer’s assessment that the offender’s risk of committing another sexual offence was above average, the test was noted to have moderate accuracy. Counsel also relied on the opinions of Dr Spencer to the following effect:-

“(a) The offender has good insight into his offending conduct;

(b) He showed remorse for the effects of his behaviour on the victims;

(c) With further work and treatment this will serve to reduce the risk of reoffending;

(d) Dr Spencer also recommends that the offender receives support in the community from NDIS and Short Statured People Australia upon release from custody.”

  1. His time in custody has been both onerous and counterproductive as evidenced by his constant fear and his use of buprenorphine. Counsel set out relevant principles applicable in respect of the youth and immaturity of the offender, relying on KT v R (2008) A Crim R 51; [2008] NSWCCA 51 at [22] per McClellan CJ at CL.

  2. Counsel conceded that it was open to the court to impose a sentence of imprisonment however the court should consider releasing the offender forthwith given that exceptional circumstances arise from the combination of the following factors:-

“(a) The matters where the offender was a child at the time;

(b) The lack of any criminal history;

(c) This is the offender’s first time in custody;

(d) The onerous nature of the offender’s custody; and

(e) The objective seriousness of the matters that lie below the midrange.”

  1. Counsel submitted that such a sentence would give effect to s16A(2AAA) and would impose relevant conditions for rehabilitation and treatment and would also allow sufficient time on parole to undertake any relevant rehabilitation. Counsel referred to the comparative cases relied upon by the Crown which indicated that most of the cases involving young offenders resulted either in the offender’s being released forthwith or subjected to longer head sentences with relatively short non-parole periods.

  2. In his oral submissions counsel submitted that the court would prefer the opinion evidence of Dr Spencer over that of the author of the Case Note in Exhibit C given Dr Spencer’s extensive experience with Corrective Services and impressive Curriculum Vitae.

  3. Counsel submitted that there was a requirement for the court to structure the sentence to promote the rehabilitation of the offender and noting the 243 days of presentence custody submitted that there should be a lengthy period of parole here.

  4. Counsel rehearsed his submissions in respect of the objective seriousness of the offending and the harm caused to the victims of the offending.

  5. In respect of Count 4 it was submitted that the agreed facts identified three unknown individuals with no known details as to their ages or gender. A distinction had to be drawn between what the offender believed was their age and gender and the fact thereof. This led to a difficulty in proof beyond a reasonable doubt as the offending was internet based where the use of aliases and the prosecution of fantasies was common. The court would therefore be unable to find beyond reasonable doubt anything as to the identity of Kimberly Casaada although counsel conceded that the offender believed that she was either 14 or 17 years of age. Nor could the court be satisfied of proof beyond reasonable doubt as to the identity of the person behind other internet addresses.

  6. Counsel referred to the oral evidence of the offender in which he accepted he lied to the author of the SAR and Dr Spencer about his sexual interest in children. His explanation for doing so was compelling, namely, his fear for his safety, whilst in custody.

  7. Whilst the court would also take into account the repugnant nature of the offending, the subjective matters relied on by the offender weighed heavily on his moral culpability. He was very young and immature and the offending to the extent that it involved social media platforms, was very unsophisticated offending. The court could find based on Dr Spencer’s report that the offender now had good insight and some remorse, notwithstanding expressions in the SAR to the contrary. The court should also find that whilst his prospects of rehabilitation were guarded, he certainly had potential for rehabilitation based on his age, his lack of criminal antecedents and in any event there should be an emphasis in his sentencing so as to facilitate his rehabilitation.

Determination

  1. As the conduct constituted in Count 6 and 7, produce child abuse material pursuant to s91H(2) of the Crimes Act 1900 (NSW), are also relevant to the criminal conduct in Count 1, access child abuse material using a carriage service pursuant to s474.22(1) of the Code, it is convenient to first assess the objective seriousness of the offending for the two State offences.

  2. Count 6 involved the production of two videos of short duration depicting actual children in sexual poses, simulating sexual intercourse and in respect of the second video engaging in sexual intercourse. Given the nature of the material it is clearly serious offending however having regard to the breadth of criminal activity covered by s91H(2) it is at the low end of objective seriousness for an offence pursuant to that section.

  3. Count 7 involved the production of four videos of short duration involving the child KB. The nature of the content was explicit material involving sexual posing and actions by a naked prepubescent female child who appeared to be between the ages of 8 and 10, however I accept the evidence of her father that she was 11 years of age at the time. The offending was aggravated by the offender’s threat on the last occasion to show others the pictures of her naked if her parents called him. This constituted serious offending towards the middle of the low range for an offence pursuant to s91H(2) given the relatively small number of videos produced, their content and nature.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Turning to the Commonwealth offences, Count 1 related to the child abuse material accessed by the offender on or about 21 April and 22 May 2020 which is subject to Counts 6 and 7, as well as a further video file of 10 seconds duration depicting a female aged between 7 and 10 years, naked from the waist down and engaging in sexual posing. Given the small number of videos accessed, the nature of the content and short duration of the video, whilst this was serious offending it fell below the midrange for an offence pursuant to s474.22(1) of the Code and in the middle of the low range for such an offence.

  2. Count 2, an offence of use carriage service to transmit child abuse material involved a Telegram app conversation on 6 June 2020 between the offender and an unidentified individual, following which the offender received a total of eight files containing child abuse material and sent a total of 13 files to the unidentified individual. Those files comprised predominantly prepubescent females engaging in sexual acts, exposing and penetrating their own vaginas, urinating or being subjected to vaginal penetration by adult males. Given the depraved content of that material and the larger number of files involved, this also constituted serious offending below the midrange but in the upper part of the low range for an offence pursuant to s474.22(1).

  3. Count 3 was the offence of use carriage service to transmit child abuse material and concerned the transmission of material between the offender and three unknown individuals. From the first of the unidentified users, the offender received two video files and sent one file comprising child abuse material involving prepubescent males and females engaging in sexual acts. The communications between the offender and “Brailee Bob” occurred between 16 August 2021 and 10 February 2022 during which period on 31 occasions they communicated with each other about their sexual proclivities and those communications contained a great deal of child abuse material. The offender also communicated with a third individual between 6 September 2020 and 29 January 2022, sending child abuse material as well as links to such material, and communicating a total of 22 times which included extensive child abuse material. This constituted serious offending and when taken together fell within the midrange for an offence pursuant to s474.22(1) of the Code.

  4. Count 4 involved the use of a carriage service to transmit child abuse material to three named but unknown individuals between 28 March 2021 and 2 February 2022. With the first individual, a total of 328 files were identified as child abuse material comprising a number of prepubescent females, some of whom were engaging in sexual acts together with conversations contained in Annexure 2. The conduct relating to the person described as “Kimberly Casaada” occurred between 1 June 2021 and 9 February 2022 and included the chat communications that occurred on four occasions contained in Annexure 3 as well as four image files depicting a prepubescent female child approximately 8 to 10 years of age in naked sexual poses.

  5. The offender communicated with the third person in January and February 2022 during which he received videos identified as child abuse material and sent 8 videos files depicting prepubescent females exposing themselves, penetrating their own vaginas or being subjected to penile-vaginal intercourse with adult males. Given the volume of child abuse material, it’s nature and the duration of the criminal conduct, this offending fell within the midrange for an offence pursuant to s474.22(1) of the Code and towards the high end of that midrange.

  1. Count 5 was the offence of possess or control child abuse material pursuant to s474.22A(1) of the Code. It involved the offender having between 4 February 2020 and 10 February 2020 possession and control of the material set out in the table in [29] hereof on three separate devices totalling over 135 videos and 60 images containing child abuse material. Included in much of that material were videos of a depraved nature involving prepubescent children and on the offender’s iPhone a MEGA application with an alias username was found containing numerous files comprising child abuse material which were located within the cloud storage application. Given the volume of material, the depraved nature of it and the extent to which the offender concealed his possession of the material this was objectively very serious offending just below the midrange for an offence pursuant to s474.22A(1).

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

S16A(2)(a) The nature and circumstances of the offences

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

S16A(2)(e) Any injury, loss or damage resulting from the offences

  1. The images and videos subject of the index offences record actual children being sexually abused. The courts have long recognised that such material involves intrinsic harm being caused to such children, not only by the creation of such material but by its perpetual transmission facilitated by the internet. The courts have also recognised that this leads to significant physical, emotional and psychological harm being inflicted upon the most vulnerable children and that such harm can be lifelong in its duration. Further harm results from the fact that the material may remain in circulation on the internet, heightening the shame and distress for victims who were exploited when they were young and vulnerable – see R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174 at [69].

  2. I have also taken into account the VIS read by the father of the victim KB. It was a poignant example of the impact of online child sexual offending on young and vulnerable children who are unable to defend themselves, as well as the wider impact on their families. It highlighted the difficulties for responsible parents to protect their children against such evil, and the ongoing impact on victims of such criminal conduct. To the great credit of the author, the VIS also highlighted the need for an emphasis on rehabilitation of the offender.

S16A(2)(f) and (g) Contrition and the offender’s pleas of guilty

  1. The offender has entered his pleas of guilty at an early stage in what must have been a recognition of the inevitable outcome of these proceedings given the strength of the Crown case. Despite his denial of the offending being motivated by his own desire for sexual gratification, which he explained in his sworn evidence and which I accept, he has demonstrated some insight into his offending and I find that he has expressed remorse and contrition and accepted responsibility for his offending conduct. He has also acknowledged the harm caused by him and I find that he is entitled to a utilitarian discount which I assess at 25% in respect of each count.

S16A(2)(h) The degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences

  1. I accept that during his ERISP interview the offender provided passwords for his electronic devices which were subsequently forensically analysed. He has therefore provided some limited assistance to law enforcement authorities in prosecuting the index charges which, because of their very nature, may be difficult to investigate.

S16A(2)(ja), (j) and (k) General and specific deterrence; the need to ensure adequate punishment

  1. It is well established that general deterrence and denunciation are of paramount importance in sentencing for offences involving the production and transmission of child abuse material. It is callous and pernicious offending which involves the most vulnerable children to feed a world market for the dissemination of such material between likeminded persons on the internet. The maximum penalty for each offence indicates the serious nature of the offending as viewed by Parliament and a clear message must be sent to likeminded persons that the courts will impose condign punishment for such offences.

  2. Specific deterrence is also of significance in the sentencing process here as the offending clearly demonstrates a sexual interest in young children and the offender must understand that if he were to continue to offend in this manner he would be subject to increasingly lengthy terms of imprisonment.

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

  1. The offender was aged between 17 and 19 years of age at the time of the offences and is now 20 years of age. He was born with achondroplasia or dwarfism and his schooling was interrupted by the COVID-19 pandemic. He had been unable to obtain employment because of his physical disability and received no government or community support for his condition. The evidence established that he has a supportive family however his mother and brother also suffer the same physical disability. Prior to his arrest he spent his time at home playing video games or watching movies and described himself as a “strong cannabis smoker”, something he did every two or three days.

  2. The offending took place over a period of time when the offender was 17 to 19 years of age. It is well established that in sentencing young offenders emphasis must be given to rehabilitation rather than general deterrence, denunciation and retribution – see KT v R (2008) A Crim R 51; [2008] NSWCCA 51 per McClellan CJ at CL. In BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows:

“4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6 Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …”

  1. Here, the offending was relatively unsophisticated notwithstanding the difficulty in discovering such offences on the internet. Each of the offences however demonstrated a large degree of emotional immaturity and a complete absence of impulse control in a youthful offender. This has the effect of both diminishing the offender’s moral culpability for the offending and the need to emphasise general deterrence, denunciation and retribution in sentencing.

S16A(2)(n) The prospect of rehabilitation of the person

  1. I accept the opinion of Dr Spencer that the offender is at an above average risk of recidivism for further sexual offending and I further accept her opinion that he has a paedophilic disorder requiring intervention. The offender has expressed a willingness to undergo treatment both in custody and in the community and his prospects of rehabilitation must remain guarded until he has undergone treatment and proved that he can lead a safe and productive life in the community. For that reason it is clear that any sentence must be structured to enable an extended period of supervision upon his return to the community. S16A(2AAA) of the Crimes Act 1914 (Cth) provides that the court must have regard to the objective of rehabilitating the offender in determining a sentence to be passed, including imposing rehabilitation or treatment conditions as well as determining the length of any sentence or non-parole period to enable sufficient time for the offender to undertake a relevant rehabilitation program.

S16A(2)(p) The probable effect that any sentence or order under consideration would have on any of the person’s family or dependants

  1. There is no evidence before me of the effect that the inevitable sentence will have on the offender’s family, however I note that he has the support of his family, that he speaks to his mother regularly by phone and that he is able to return to the family home upon his discharge into the community.

  2. I have taken into account the maximum penalties prescribed by Parliament for each of the Commonwealth offences of 15 years imprisonment (Counts 1 to 5) and I have also taken into account the maximum penalties prescribed by Parliament for the State offences of 10 years imprisonment (Count 6 and 7). The maximum penalties indicate the serious nature of the offending as viewed by Parliament and they are a guideline in the sentencing process. I have also taken into account that each of the Commonwealth offences are rolled-up offences and applying the principles set out in [56] above, that fact has contributed to the offences being more objectively serious than would otherwise be the case however the maximum penalty is taken into account for one offence only.

  3. I intend to sentence the offender by way of an aggregate sentence pursuant to s53A of the CSPA both in respect of the State and Commonwealth offences. After applying the principle of totality to both aggregate sentences I intend to partially accumulate the sentence for the State offences with the sentence for the Commonwealth offences.

  4. In order to provide transparency in the imposition of an aggregate sentence I am required to provide indicative sentences for each of the counts on the Indictment. Having regard to the objective seriousness of the offending, the utilitarian discount of 25% in relation to each charge, the various relevant matters set out above including the offender’s subjective case, his youth and immaturity, the indicative sentences are as follows:-

  1. Count 6 – produce child abuse material pursuant to s91H(2) of the Crimes Act 1900 (NSW) - 3 months imprisonment

  2. Count 7 - produce child abuse material pursuant to s91H(2) of the Crimes Act 1900 (NSW) - 4 months imprisonment

  3. Count 1 – access child abuse material using a carriage service pursuant to s4747.22(1) of the Criminal Code Act 1995 (Cth) – 6 months imprisonment

  4. Count 2 – transmit child abuse material pursuant to s4747.22(1) of the Criminal Code Act 1995 (Cth) – 6 months imprisonment

  5. Count 3 - transmit child abuse material pursuant to s4747.22(1) of the Criminal Code Act 1995 (Cth) – 18 months imprisonment

  6. Count 4 - transmit child abuse material pursuant to s4747.22(1) of the Criminal Code Act 1995 (Cth) – 2 years and 3 months imprisonment

  7. Count 5 – possess child abuse material pursuant to s474.22A(1) of the Criminal Code act 1995 (Cth) – 18 months imprisonment

  1. In arriving at an appropriate aggregate sentence principles of totality and proportionality must be applied. The principle of totality was described by Howie J in R v Cahyadi [2007] NSWCCA 1 at [27] as follows:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

  1. In respect of the State offences, having regard to the totality of the criminality involved there must be some accumulation in sentence and I intend to sentence the offender to a non-parole period of 3 months with a head sentence of 6 months. That sentence will commence on 3 September 2022.

  2. Having regard to the principle of totality in respect of the Commonwealth offending, there must be some accumulation in sentence in respect of the 5 charges, and I intend to impose a head sentence of 2 years and 9 months with a non-parole period of 18 months to commence on 3 December 2022 and expire on 2 June 2024. The balance of term will be for a period of 15 months expiring on 2 September 2025. The total effective sentence will be a head sentence of 3 years and a non-parole period of 21 months.

Orders

  1. I hereby order as follows:-

  1. You are convicted of the following offences:-

  1. Count 1, that between about 29 April 2020 and about 1 June 2020, at Peakhurst and elsewhere in the State of New South Wales, you did access material using a carriage service, the material being child abuse material, an offence pursuant to s 474.22(1) of the Criminal Code Act 1995 (Cth).

  2. Count 2, that on about 6 June 2020 at Peakhurst and elsewhere in the State of New South Wales, you did transmit material to ‘1182708196’ using a carriage service, the material being child abuse material. This offence is contrary to s 474.22(1) of the Code.

  3. Count 3, that between about 25 July 2020 and about 4 February 2022 at Peakhurst and elsewhere in the State of New South Wales, you did transmit material to ‘1007673022’; “Brailee Bob’ and ‘Sean Eeglesiak’ using a carriage service, the material being child abuse material. This offence is contrary to s 474.22(1) of the Code.

  4. Count 4, that between about 28 March 2021 and about 2 February 2022 at Peakhurst and elsewhere in the State of New South Wales, you did transmit material to ‘Alex John’, ‘Kimberly Casaada’ and ‘Ginus Nuus’ using a carriage service, the material being child abuse material. This offence is contrary to s 474.22(1) of the Code.

  5. Count 5, that on about 10 February 2022 at Peakhurst and elsewhere in the State of New South Wales, you did possess or control material, being child abuse material, in the form of data held in a computer or contained in a data storage device and you did use a carriage service to obtain or access the material. This offence is contrary to s 474.22A(1) of the Code.

  6. Count 6, that on or about 29 April 2020 at Peakhurst and elsewhere in the State of New South Wales, you did produce child abuse material. This offence is contrary to s 91H(2) of the Crimes Act 1900 (NSW).

  7. Count 7, that between about 22 May 2020 and 23 May 2020 at Peakhurst and elsewhere in the State of New South Wales, you did produce child abuse material. This offence is contrary to s 91H(2) of the Crimes Act 1900 (NSW).

  1. In respect of Count 6 and 7 you are sentenced to an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to a non-parole period of 3 months commencing on 3 September 2022 and expiring on 2 December 2022. The balance of the term will be for a period of 3 months.

  2. In respect of Counts 1 to 5 I sentence you to an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 2 years and 9 months commencing on 3 December 2022. I make a recognizance release order to take effect from 2 June 2024 and expiring on 2 September 2025 upon you entering into a recognizance self in the sum of $100.00 without surety on the following conditions that you:

  1. Be of good behaviour; and

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

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

  4. Not to travel interstate or overseas without the written permission of your probation officer; and 

  5. Undertake such treatment and rehabilitation programs that your probation officer directs.

  1. The total effective sentence will be a sentence of 3 years imprisonment with a non-parole period of 21 months imprisonment. You will be eligible for release on 2 June 2024.

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

  1. iPad Mini

  2. HP Laptop

  3. iPad

  4. Apple iPhone

in accordance with the short minutes of order signed by me dated today’s date.

Decision last updated: 02 June 2023

Cases Citing This Decision

0

Cases Cited

14

Statutory Material Cited

6

BP v R [2010] NSWCCA 159
Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170
Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170