R v SB

[2020] NSWDC 860

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SB [2020] NSWDC 860

Hearing dates:

6 November 2020; 18 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Orders at [39] – [43]

Legislation Cited:

Crimes Act 1900 (NSW) 91H(2)

Crimes (Sentencing Procedure) Act ss 5, 21A

Criminal Code (Cth) 474.19(1)

Category:

Sentence

Parties:

Regina (ODPP)
SB (Offender)

Representation:

Counsel:
Mr Stevens (ODPP)
Mr Clarke (Offender)

Solicitors:
Ms Sathanapally (ODPP)
Mr Macaulay (Offender)

File Number(s):

2018/294802

Publication restriction:

None

Judgment

1. SB (hereafter referred to as ‘the Offender’) appears today to be sentenced in respect of 2 charges, in relation to which he has previously pleaded guilty.

2. Those charges are set out in the Commonwealth Crown Summary, comprising a breach of s 91H(2) of the Crimes Act 1900 (NSW), in that on or about 26 September 2018, at Ramsgate in New South Wales, the Offender did possess material, that material being child abuse material. That offence carries a maximum penalty of 10 years’ imprisonment.

3. The second charge related to a breach of s 474.19(1) of the Criminal Code (Cth), in that between 15 August 2018 and 30 August 2018 at Ramsgate, New South Wales, the Offender did access material using a carriage service, the material being child pornography material. That charge carries a maximum sentence of 15 years’ imprisonment and/or 900 penalty units.

4. The maximum penalties attaching to both charges are guideposts for sentencing judges, representing the community’s view, through parliament, of the seriousness of the offending. There is no doubt that this offending is serious.

5. The Offender was born 31 December 1956 and is almost 64 years of age. He was arrested 26 September 2018 and released 27 September 2018. I take that as being 2 days in custody and, accordingly, any sentence I impose will be backdated by 2 days. The facts upon which the Offender is to be sentenced are set out in the Crown bundle.

6. Between 15 August and 30 August 2018, the Australian Federal Police (AFP) investigators detected the Offender using online file-sharing software from an IP address ending 135, in relation to child pornography or child abuse material as defined. On 26 September 2018, following the identification of the subscriber and the location of the IP address, search warrants were executed at the Offender’s residential premises and business premises. A number of electronic devices containing child pornography or child abuse material were seized, and the Offender made admissions in a record of interview to accessing and possessing the material shortly thereafter. As stated, the Offender was arrested on 26 September 2018, granted conditional bail on 27 September 2018.

7. Peer to Peer or p2p file sharing networks allow people using that software to download and share files with other users. It is available on the internet and is free to download. It can be used on computer tablets or smart phones. The ‘BitTorrent’ file sharing protocol is an example of a p2p file sharing network. For a user to become part of the network the user must first download BitTorrent client software and install it on a device. The applications ‘uTorrent’ and ‘Vuze’ are two examples of client software that are compatible with BitTorrent. When client software is running and the device is connected to the internet, the user will be able to download files from other users on the network and share files from their devices with other users.

8. During the offending period the Offender used the uTorrent program, which he had installed onto his Toshiba laptop, serial number ending 20H, to access the BitTorrent network and download child pornography material.

9. In the process of downloading and retaining files, the subject of Count 2, the Offender:

1. did not appreciate that those files became available to other uTorrent user; and

2. was reckless as to this occurring as a consequence of his actions in accessing the files through peer sharing software, although it is accepted by the Crown that he did not intentionally make this material available.

10. I pause to note that it was plain from his evidence that was the case.

11. The following facts relate to Count 1. On 26 September 2018, the AFP executed a search warrant at both the business and residential premises already referred to. The AFP seized a Toshiba Protege laptop and a black Toshiba 2 gigabyte hard drive. Forensic analysis of the Protege laptop identified that it contained child abuse material. It comprised a total of 134 images or video files falling within INTERPOL Categories 1 through to 5. The vast majority were in Category 1, being 102 files. There was just one item in Category 5. It is plain from looking at the files which appear in the Agreed Facts, that a number of the files contain child abuse material and refer to children in the age range of 7 to 12 years.

12. The black hard drive was also analysed. In total there were 263,000 files, and of those, 23,921 files fell within the Categories 1 through 5. Category 1, again, represented the vast majority of files, being 23,540 files. Again, the files were organised on the black hard drive, in subfolders as depicted in figures (d) to (g) set out in para 16 of the Agreed Facts. It is apparent from some of the titles that the material contained child abuse material with children of varying ages.

13. The AFP also seized a Toshiba laptop and a Toshiba hard drive from the Offender’s residence. The laptop contained 156 videos or files which were classed as Category 1. The hard drive contained a total of 98,470 files which fell across all 6 categories under the set INTERPOL categorisation system. Again, of those the vast majority, 98,076, fell in Category 1, that being the least serious category. Again, the files were organised on the Toshiba hard drive. Some of the titles in the folders make it plain that they contain child abuse material including children of varying ages.

14. Between 15 August and 30 August 2018, the Offender accessed child pornography by downloading files using BitTorrent and uTorrent on his electronic devices. The pornography access overlaps to some degree with the child abuse material set out at paras 11 to 20 in the Agreed Facts, the subject of Count 1.

15. During his record of interview, the Offender stated:

1. he used uTorrent to download child pornography, and the majority of the material would be children 10 to 15 years of age;

2. he probably downloads child pornography on a daily basis, and some of the files take weeks to download;

3. he searches the child pornography at least a few times per week;

4. when shown 3 child pornography videos he agreed that they were downloaded from the internet; and

5. he has used the key word such as 10-year-old and 12-year-old.

16. Also comprised on the Crown bundle is the criminal record of the Offender, which contains no offences other than the present.

17. Having regard to the period over which the offending occurred and the number of images or videos referred to, I find the objective seriousness of Count 1, that is the State offence under s 91H(2) of the Crimes Act, to fall at the midrange. In respect of the Commonwealth offence, under s 474.19(1), I find the objective seriousness, having regard to the number of files and the period of offending, to fall just below the midrange.

18. The Offender has what I consider what I consider to be a relatively strong subjective case. As part of Exhibit 1, he relied upon the following:

1. a report by Dr Allnutt, psychiatrist;

2. a report by Carmel Tuma, psychologist;

3. a report by Sam Borenstein, psychologist;

4. a letter from his wife; and

5. 2 letters of reference, both dated 5 November 2020.

19. In his report Dr Allnutt noted that, at the time of the offending, the Offender was working about 45 hours a week and taking Zestril and Losec, however, was not taking psychiatric medication, nor seeing a mental health professional. He self-reported that he drank infrequently, and usually within family environments. There had been a long, protracted legal battle involving his sister and brother-in-law. His wife has also suffered a number of major medical conditions throughout their relationship. She has relied upon him for transport, physical assistance and emotional support.

20. The Offender told Dr Allnutt that his head was ‘all over the place’, up to and including 2018, and that he believes that he was quite depressed, suffering from terrible motivation, poor concentration and becoming overwhelmed easily. The Offender further reported to Dr Allnutt that he looked at all types of pornography generally. That is consistent with his evidence given in Court. I should pause to observe that I considered him to be an impressive witness, whose evidence I accept without reservation. He said that he told Dr Allnutt that he would put in key words and leave it to download automatically, and he would often be unaware of the contents or the amount of the download. He then arranged the material into subfolders, which was explained in the course of his evidence as being due to an Obsessive Compulsive Disorder.

21. He estimated some 5% of his entire collection involved individuals under the age of 18. That would appear to accord in general terms with the material contained in the agreed facts. He admitted to Dr Allnutt that he masturbated to material involving children under 13, though he could not explain his arousal to pre-pubescent children. He said that his arrest felt like a weight had been lifted off him, now that it was exposed, and he was relieved to have the ongoing support of his wife. In that regard, he is extremely fortunate and, and this speaks highly as to his prospects of rehabilitation and the minimal risk of reoffending. Nevertheless, his self-esteem has been damaged by his offending and he says that he has been shamed in his family. He spoke to Dr Allnutt about the feeling of letting them down. He said that he could not explain how embarrassed he is. There is some reference to suicidal ideation, however, it does not appear to be particularly significant, but rather more characteristic of general feelings of depression.

22. The Offender’s upbringing was generally unremarkable, not experiencing any significant difficulties at school or at home, aside from maintaining a difficulty relationship with his sister. Dr Allnutt noted that the Offender endorsed some depressive and anxiety symptoms, however there was no mania, hypomania or psychosis, and the Offender appeared to be cognitively intact. Dr Allnutt noted that diagnosing the Offender as suffering a paedophilic disorder was a difficult determination to make, having regard to the various diagnostic tests that would inform such a diagnosis. In considering the risk of recidivism, Dr Allnutt opined that the Offender would likely fall in a group of individuals who would be regarded as a low risk of future offending at this time. I accept that opinion.

23. A report by Dr Tuma, dated 21 October, is also relied upon. It sets out information as to the upbringing of the Offender. Since commencing therapy on 17 January 2019, the Offender’s desire to view pornographic materials and, in particular, child pornography, have gradually decreased to the point of having completely disappeared. He denied urges to do so. The author, Dr Tuma, stated that he believes the Offender. She thought that the offending was caused by an immature developmental background, rather than a psychopathic one, and that it would be very unlikely for the Offender to re-offend.

24. In a report by Sam Borenstein, the Offender’s background was again set out. It was generally unremarkable in the sense that there weren’t any episodes of trauma which marred his upbringing. His demeanour was referred to as being private and shy. Mr Borenstein observed that during the interview the Offender endorsed symptoms of depression and anxiety, and impressed as an open and honest historian. I formed the view that when he gave evidence before me at the sentence hearing, he was extremely open and honest in the evidence which he gave.

25. Mr Borenstein considered that the Offender suffered symptoms of depression, moderate symptoms of anxiety and moderate symptoms of stress. He thought that the Offender continues to suffer symptoms of major depression, and agreed with other reporters that he was assessed as being a low risk of reoffending. Mr Borenstein opined that the Offender is highly unlikely to reoffend.

26. A letter from his spouse describes her husband as “the most compassionate, selfless person she has ever met”, highlighting his ongoing support for her during her various medical battles. It is a great credit to her that she has stood by her husband, notwithstanding his offending. As I have observed, it is perhaps that relationship which permits a very positive finding concerning the minimal risk of reoffending.

27. There were also 2 character references, both of which spoke highly of the Offender. The Offender’s considerable charity work for multiple organisations was referenced.

28. As previously mentioned, the Offender gave evidence in the course of the sentence hearing. I have reviewed the transcript of that evidence, and it reminds me of the fact that I did have no hesitation in believing him at the time that he gave his evidence. He referred to himself as suffering from OCD. In my view, he expressed remorse through expressions such as being ashamed of his conduct. He also displayed insight into his offending, acknowledging that he became obsessed with the collection of pornography. He also displayed the honesty which I have previously referred to, agreeing that he had masturbated to child pornographic images. These are difficult things for a man of his reputation and age to admit. He said that he had a sexual attraction to everything and he became obsessed. He was not particularly focused on images of children, but he also was obsessed by adult pornography. He gave some useful evidence about the system of filing which he adopted, which demonstrates that he suffered from a compulsive disorder.

29. Helpful submissions were provided on his behalf, marked MFI 1. It was submitted that Count 1 represented a serious offence. That is agreed. The submission in relation to objective seriousness was that it would not fall above the midrange. I accept that submission, acknowledging my previous finding. In respect of Count 2, it was submitted that the Court would not assess his offending as falling into a category of the most serious example. I agree, and I repeat my finding that in relation to Count 2 the objective seriousness is just below the midrange.

30. The ultimate submission advanced on behalf of the Offender is that the Court might consider imposing a Community Corrections Order. The difficulty with approaching the sentence in that fashion is that I could only impose a community-based order if I found that the threshold under s 5 of the State Act and s 17A of the Commonwealth Act were not crossed. Given the seriousness of the offending, the nature of the offending, and the need for strong general deterrence, I cannot make that finding. In fact, I find that no sentence other than one of imprisonment is appropriate for both Counts. I do, however, find special circumstances based upon the need for rehabilitation demonstrated by the subjective material to which I have made reference.

31. I have also had regard to the Crown’s submissions upon sentence and, in particular, the reference to the need for strong general deterrence in relation to offending of this type. The Crown referenced the decision of Hutchinson, which sets out a number of factors which the Court may have regard to in determining the objective seriousness of child pornography offences. I have taken those matters into account in reaching the finding that I have made. The Crown also, at para 13(b) of the submissions, set out the definition of each of the categories of the sentencing scale. In terms of the more serious matters, the Crown submitted that in relation to Category 4, for example, the Offender was in position of 183 items, while in relation to Category 5, the number of items totalled just 19. The Crown submitted the material can only be described as abhorrent and highly depraved. Frankly, having regard to the description of Categories 4 and 5, that goes without saying, but it is a submission which I accept.

32. The Crown conceded that the Offender pleaded guilty at an early stage, entitling him to a discount on sentence which represents the value of the guilty plea both, in the sense of its utilitarian value and also the value in assisting in the administration of justice.

33. I must observe the Crown case, however, was reasonably strong, as the Offender was found in possession of the material in respect of the sentence. He did, however, cooperate with the authorities after being arrested, and has never made any denial of his offending, nor has he sought to mitigate or in any other way reduce the seriousness of his offending by any of the statements that he has made either in Court or to the authorities.

34. The Crown provided a number of comparative cases, to which I have had regard. No case is truly comparable to the present or any other. Each individual authority imparts varying differences in terms of objective factors and also, more particularly, subjective factors.

35. In relation to the State legislation matter, there are no statutory aggravating factors that arise for consideration. In terms of statutory mitigating factors, I find the following to exist under s 21A(3):

1. the Offender does not have any record of previous convictions. I make that finding;

2. I further find that the Offender was a person of good character. I acknowledge that good character is a matter which is moderated in cases such as this in preference for sentences being directed towards deterrence;

3. I further find that the Offender is unlikely to reoffend;

4. I find, for the reasons already referred to, that the Offender has good prospects of rehabilitation, by reason of his commitments to rehabilitation and also the support he has from his wife;

5. I accept that the Offender is remorseful. He has accepted responsibility for his actions and he has also acknowledged the inappropriate, shameful behaviour, and therefore the loss caused by his offending. Whilst child pornography possession can be distinguished from the creation of such material, it must be borne in mind that even its possession has behind it victims. These victims are the children who were first victimised by the person who caused them to engage in the sexualised behaviour. It is through the interests which people like the Offender display in that material that such victimisation continues in the community; and

6. I acknowledge the guilty plea, and find that to be a mitigating factor.

36. In terms of Count 2, being the Commonwealth matter, I turn my mind to s 16A of the Crimes Act 1914 (Cth). There is no doubt that the nature and circumstances of the offence are serious, and warrant a strong and deterrent sentence. I accept that the Offender has shown contrition. I acknowledge the need, in accordance with s 2(k), that the Offender be adequately punished for the offending. I have taken into account the Offender’s character, antecedence, age, means and physical and mental condition previously referred to. I have also had regard to his prospects of rehabilitation. There is no evidence before me that would satisfy the Court to the requisite degree that any person would be adversely impacted by the sentence, although plainly his wife will be significantly inconvenienced and compromised by the fact that her husband will be serving a sentence as a consequence of this offending.

37. Returning to the State Act, I take into account the purposes of sentencing, as set out in s 3A. Again, in this case, general deterrence, and to a lesser extent specific deterrence, are matters requiring paramount consideration. I also acknowledge the need for rehabilitation, in order to reduce the risk of reoffending, and protecting the community as being important in this sentencing exercise.

36. In determining the sentence, I have had regard to the fact that the 2 Counts overlap to a large degree, and for that reason there ought to be a high degree of concurrency in relation to the sentences. I acknowledge an aggregate sentence is not available, as Count 1 relates to a State offence and Count 2 a Commonwealth offence. The Commonwealth offence requires a commencement date and an end date. Nevertheless, I intend to impose sentences which substantially overlap, to reflect the commonality of the offending relating to each of the Counts.

37. [SB], you are convicted of two criminal offences. The first is a breach of s 91H(2) of the Crimes Act 1900 (NSW), and that is possessing material being child abuse material. Secondly, you are convicted of the Commonwealth offence under s 474.19(1) of the Criminal Code (Cth). That is, you accessed material using a carriage service, the material being child pornography material.

38. In relation to Count 1, I sentence you to a period of imprisonment, to be served by way of fulltime custody commencing on 16 December, 2 days prior to today, reflecting the 2 days spent in custody. The non-parole period is for a period of 9 months, which will expire on 15 September 2021. In respect of Count 1, I impose a head sentence of 18 months, after the discount of 25% for the guilty plea, which will expire on 15 June 2022.

39. In relation to Count 2, the commencement date shall be 3 months into the State sentence; that is 16 March 2021. In respect of that Count, I sentence you to a term of imprisonment of 18 months, which will expire on 15 September 2022.

40. I order a Recognisance Release Order to come into effect 9 months after 16 March 2021, which is 15 December 2021.

41. I further order, pursuant to s 23ZD of the Crimes Act 1914 (Cth) that the following items be forfeited to the Crown:

1. Toshiba Protege laptop with serial number 9E230020H;

2. Toshiba hard drive with serial number 77KFC6B4TM9E;

3. Toshiba laptop serial number 2837475Q; and

4. Toshiba hard drive serial number 137CTC9MTT58.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 43 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Amendments

16 March 2021 - Removal of party name in [18].

16 March 2021 - Removal of suburb names in [6] and replacement of offender's name with initials.

Decision last updated: 16 March 2021