R v Selby

[2022] NSWDC 583

District Court

New South Wales

Medium Neutral Citation:

R v Selby [2022] NSWDC 583

Hearing dates:

26 September 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [164].

Catchwords:

CRIME – sentence – possess or control child abuse material – use carriage service to access child abuse material – use carriage service to transmit child pornography material – use carriage service to produce child abuse material with intention that the material by used by another person to commit an offence against 474.22 – s16BA schedule offence

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code 1995 (Cth)

Cases Cited:

DPP v Smith [2010] VSCA 215

Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140

R v Burton [2020] NSWCCA 127

R v Cahyadi [2007] NSWCCA 1

R v Edwards [2019] QCA 15

R v Fuller [2010] NSWCCA 192

R v Hutchinson [2018] NSWCCA 152

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
James Ronald Selby

Representation:

Counsel:
P. McEniery (Crown)
M. McAuliffe (Offender)

File Number(s):

2021/266233

Publication restriction:

1. Pursuant to ss 7(a), 8(1)(c)(d) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), (“the Act”) the publication of information tending to reveal the identity of James Ronald SELBY’s (the Offender) nephew, or that there is any allegation of offending involving the Offender’s nephew (who is under the age of 18 years), including but not limited to, the matters at paragraphs [5(xi)], [5(xii)], [5(xiii)] and [24] of the Agreed Statement of Facts tendered by the Crown at the sentence hearing, is prohibited. The order includes paragraphs [6(x)-(xiii)], [11], [55], [76] and [136].

2. Order 1 does not prohibit or restrict the disclosure of the information to the following:
a. The Offender or his legal representatives;
b. An officer or legal representative from the Commonwealth DPP;
c. The Australian Federal Police; or
d. Any other Commonwealth Government agency.

3. Order 1 does not apply to any oral or written submissions made by legal representatives for the Crown or the Offender in this or any further proceedings in relation to the matter 2021/00266233.

4. This Order is to operate throughout the Commonwealth of Australia.

5. This Order is to apply until further order of the Court.

REMARKS ON SENTENCE

1. The offender was born in 1979 and he is to be sentenced in respect of the following eight offences, to which he has pleaded guilty.

Seq	Offence	Description	Date	Maximum penalty
1	Section 474.22A Criminal Code 1995 (Cth)	Possess or control child abuse material obtained or accessed using a carriage service	17 September 2021	15 years imprisonment
2	Section 474.22(1) Criminal Code 1995 (Cth)	Use carriage service to access child abuse material	3 September 2021	15 years imprisonment
5	Section 474.19(1) Criminal Code 1995 (Cth)	Use carriage service to transmit child pornography material	5 May 2014 to 19 December 2015	15 years imprisonment
9	Section 474.19(1) Criminal Code 1995 (Cth)	Use carriage service to transmit child pornography material	11 August 2017	15 years imprisonment
11	Section 474.22(1) Criminal Code 1995, (Cth)	Use carriage service to solicit child abuse material	2 April 2021	15 years imprisonment
12	Section 474.23(1) Criminal Code 1995 (Cth)	Use carriage service to produce child abuse material, with the intention that the material be used by another person to commit an offence against 474.22 Criminal Code (Cth)	31 May 2021	15 years imprisonment
13	Section 474.22(1) Criminal Code 1995 (Cth)	Use carriage service to transmit child abuse material to self	31 May 2021	15 years imprisonment
14	Section 474.22(1) Criminal Code 1995 (Cth)	Use carriage service to transmit child abuse material	3 September 2021	15 years imprisonment

2. In addition in accordance with s16BA of the Crimes Act 1914 (Cth) (“The Crimes Act”) the offender admits his guilt for the following offence and asks that it be taken into account on sentence in relation to Sequence 12 above:-

Sequence 10 s474.22(1) of the Criminal Code 1995 (Cth) – use carriage service to transmit child abuse material. 28 February 2020. The maximum penalty is 15 years imprisonment.

3. On 21 September 2019 the definition of “child abuse material” as defined in s473.1 of the Criminal Code 1995 (Cth) (“the Code”) was expanded to include what was previously defined as “child pornography material”. Thus, the offending in Counts 5 and 9, which occurred before 20 September 2019 concerned child pornography material whilst all other counts and the scheduled offence concern child abuse material.

4. The offender was arrested on 17 September 2021 and spent 42 days in custody before being granted Supreme Court bail. That bail was subject to onerous conditions including home detention, the offender only being allowed to depart his place of residence in the company of his husband and an enforcement condition which was regularly exercised by police.

The Sentence Hearing

5. A sentence hearing took place on 26 September 2022. The Crown sentence summary became Exhibit A and it included a lengthy statement of agreed facts which set out the evidence supporting each of the offences. It may be summarised as follows.

6. On 17 September 2021 Australian Federal Police (‘AFP’) attended the accused’s residence at Surry Hills and executed a search warrant. The offender’s iPhone and computer were seized and he provided the AFP with the password to his iPhone. The offender participated in a recorded interview in which he told police the following:-

1. He is the only person that uses his mobile phone and knows the password. He said someone else may have grabbed his phone once while he was out, but he is not sure;

2. He uses Facebook, Instagram, Twitter, Wickr, WhatsApp, Telegram, Grindr, Scruff and Snapchat to communicate with other people;

3. He said his sexual preference and kinks is not 1930s vanilla;

4. He agreed his Wickr handle is ‘sydneypervfun’, which he said was representative of his kinks as he likes to ‘perv’ on people. He said it adds to the excitement if he gets to pay them. He started paying people about one year ago, and says he has only paid three or four people;

5. He knows MEGA to be a file sharing platform;

6. He uses Snapchat for conversations that are sexual in nature;

7. He said he used Omegle for sexual interests because you can search different things. One of the things he has searched is ‘dad son’. He said he has spoken to children on Omegle before, but didn’t want to elaborate more. He said he may have exposed his penis by accident on Omegle to a child before, but couldn’t recall any further information;

8. He said he is a people pleaser and likes to satisfy people, so participates in their kinks and fantasies;

9. When asked about Skype, he said he talks to people about sexual interests, including video chatting;

10. [redacted]

11. [redacted]

12. [redacted]

13. [redacted]

14. He declined to answer questions about his sexual interest in child abuse material;

15. He understood that having child abuse material on your phone is an offence;

16. He denied knowing that engaging in conversations regarding sexual fantasies involving children was an offence;

17. He agreed that fantasy chat about daddy and son is different from fantasy conversations about babies; and

18. He feels sick and sad about conversations he has had in the past.

7. A review of the accused’s iPhone revealed a Wickr account. Wickr is an instant messaging application which allows users to exchange end-to-end encrypted and content-expiring messages includes photos, videos and file attachments. A video file was located which constituted child abuse material. Such material is classified into categories as per the Australian Child Abuse Categorisation Schema (“ACACS”). Category 1 is the most serious classification.

8. Sequence 1 was the offence comprising a video file located within a chat with another user of Wickr, which had been received by the offender on 12 September 2021. It was of 1 minute and 13 seconds duration and depicted a naked child aged between 4 and 6 years being abused by an adult male digitally penetrating the child’s anus repeatedly while the child screams and tries to resist. It was classified as Category 1 child abuse material.

9. Sequence 2 was an offence arising from another application on the offender’s iPhone known as Telegram. It is a cloud based instant messaging application that provides end-to-end encrypted video calling and file sharing. The video that was the subject of sequence 2, was located in a chat between the accused and another user Brendan Baldock wherein the rape of children is discussed (Sequence 14). The offender used the handle “@sam_smith80”. For the purposes of sentencing the whole of the chat between the accused and Baldock will not be reproduced, although it is clearly descriptive of the offender and Baldock raping a baby together during which Baldock asks, “Do you want a bad grandpa video? [horns emoticon]”, to which the accused replied “Omfg!!”.

10. On 3 September 2021 Baldock sent the offender a Mega.nz link. MEGA is a cloud storage and file hosting service. The MEGA application installed on the offender’s device revealed a video with the file name “Bad Grandpa” of 5 minutes and 38 seconds duration. It was classified as Category 1 and depicted an adult performing oral sex on a naked infant boy, inserting his erect penis into the baby’s mouth while the baby screamed, an adult male manipulating a naked infant baby and attempting to have anal intercourse with the baby and other images of adult males inserting erect penises into a distressed infant baby’s mouth together with a depiction of an adult male repeatedly having anal sex with a pre-pubescent toddler boy aged between 2 and 4 years. The video was the subject of Sequence 2.

11. The offender also had a Facebook Messenger application and in 2014 engaged in communications between another user “Luuk Melisse”. Sequence 5 concerned communications in which the offender described sexual activity with a 15-year-old and, on another occasion between 18 and 19 December 2015 [redacted].

12. The Facebook messenger communications also included child abuse material in communications from 2017 between the offender and Jayson Case. Sequence 9 concerned communications with Case.

13. In a conversation on 11 August 2017 the offender wrote to Case about his sexual experience with his cousins which began when he was 8 or 9 years old and his cousins were 14 to 20 years old. He said that he just “wanked and sucked them” when they told him to.

14. Case responded to the offender that he was forced to have sex with his 15-year-old brother when he was 16 and the offender replied that “he would have loved that teen cock” and that he would “easily” have sex with a 15 year old boy.

15. The offender’s iPhone also had a Grindr application in which child abuse material was identified.

16. Sequence 11 concerned a conversation that occurred on 2 April 2021 when another user told the offender that when he was 11 he had been sexually abused by an uncle who had drugged him, choked him and raped him. The offender asked for the user to tell him the story on Snapchat, a social media application which allows users to exchange pictures, videos and direct messages which are designed to disappear after they have been viewed but can be saved in each chat conversation.

17. The offender also had a Whatsapp account on his iPhone and a review of that account revealed communications between the offender and another user known as “Deniz”. Sequences 12 and 13 concerned communications between the offender and Deniz. The offender requested Deniz to send him a photo of a sleeping child with Deniz’s penis in front of the child’s face.

18. On 31 May 2021 a conversation took place between the offender and Deniz in which images of a pre-pubescent male child aged between 6 and 8 years of age sleeping clothed on a bed are sent within the chat. During the conversation Deniz had requested the offender to “send me a gift”.

19. On the offender’s phone was a Facebook profile in the name “Deniz Bozoglu” with a matching profile picture to the above-mentioned Whatsapp user profile. A number of video chats occurred between the offender and that person between 26 March 2021 and 17 April 2021 which constituted child abuse material.

20. The offender’s bank records showed that at 9:06am on 31 May 2021 the offender sent AUD175.75 via PayPal to the username of Deniz Bozoglu. This transaction occurred at the same time as the conversation referred to above in which the accused had offered to send “100” to Deniz for a photo of Deniz with his penis exposed in front the child with the light turned on.

21. The agreed facts outline that since 28 January 2021 the offender had sent PayPal user Deniz Bozoglu a total of $1578.91 via 29 transactions. However, the Crown cannot establish beyond reasonable doubt that such payments were for the provision of child abuse material.

22. The offence on the schedule pursuant to s16BA, sequence 10, concerned communications in a Skype application located on the accused’s computer between the offender and ‘Deniz iMentta”. The agreed facts outlined conversations on 28 February 2021, 31 May 2021, 5 June 2021 and 27 June 2021. During the communications the offender requests images of Deniz’s 13-year-old nephew. The conversations constitute child abuse material.

23. Exhibit A also included a NSW police force record which establishes that the offender has no prior criminal convictions.

24. Exhibit B is a Sentencing Assessment Report (“SAR”) under the hand of Ms K Sucur dated 23 September 2022. Under the heading “Attitudes” the author reported that the offender indicated that he was in an “ever tightening downward spiral” leading up to the offences and attributed his offending behaviour towards his mental health concerns and substance use issues. He verbalised feelings of regret for the offences stating that he was remorseful and ashamed of his offending behaviour.

25. Under the heading “Substance use” the offender reported a history of alcohol and illicit substance use since the age of 16. At the time of the offences his alcohol consumption was excessive, and he would consume 1-3 bottles of wine per night and was using Amal Nitrite daily. He verbalised this as a coping mechanism.

26. The author took a history of poor mental health inclusive of depression, anxiety, suicidal ideations, self-harm and complex trauma. He had been, in the lead up to the offences, suffering severe depression and anxiety due to his homophobic work environment. The author opined that the offender had demonstrated insight into his offending by identifying how his actions have caused significant harm to members of the community. He expressed a willingness to undertake intervention to address his offending behaviour.

27. The offender was assessed as a medium-low risk of reoffending and as suitable to undertake community service work.

The Offender’s Evidence

28. Exhibit 1 was a report from Mr J Borkowski forensic psychologist dated 12 September 2022. The offender was initially assessed on 9 December 2021 and he had attended 8 subsequent appointments. During his initial assessment the offender presented as quite distressed stating that he felt extremely ashamed and embarrassed in relation to the charges.

29. Mr Borkowski set out a family history. He described a strained relationship with his father and did not have a close relationship with his mother. He was the eldest of three children but had minimal in common with his siblings.

30. The offender had been in his current relationship for approximately 11 years and described it as a stable and respectful relationship.

31. The offender reported tertiary qualifications following which he progressed into a career in sports management and administration with various sporting bodies. He acknowledged the impact of the current offences on his ability to engage in ongoing employment in that field.

32. Under the heading ‘Mental Health History’ the author noted long-term and prominent depressive episodes and significant anxiety since the offender was 16 years of age. Since late adolescence he had engaged in maladaptive coping strategies which included alcohol abuse. He had first engaged with mental health services at approximately 34 years of age for anxiety and depression.

33. Under the heading ‘Psychosexual Development’ the author outlined the offender’s struggle with his sexuality during his life. As an adult he reported that he had continually been confronted with homophobic attitudes and rhetoric within his workplaces in sporting organisations. The offender acknowledged that he had developed an unhealthy and dysfunctional relationship with sex and sexual activity, and developed a pattern of engaging in such activity as a way of getting others to “like” or “accept” him. He described increasing alcohol consumption as a maladaptive coping strategy which had become problematic over many years.

34. The offender expressed genuine remorse for his offending conduct and described feelings of “extreme embarrassment, abhorrence, disgust, shame and guilt for his behaviour”. He had experienced extreme anxiety, depression, and suicidal ideation since being charged. He did however express willingness to gain an understanding of his actions through treatment to address any relevant factors to reduce the risk of future recidivism.

35. Psychometric assessment demonstrated a pattern of broad base social anxiety and symptoms characteristic of a major depressive disorder. Mr Borkowski also conducted a risk assessment which, taking into account dynamic risk factors, led to his opinion that the offender was considered to pose a low risk of recidivism. He further opined that the offender presents with a Major Depressive Disorder, Generalised Anxiety Disorder and an Alcohol Use Disorder which was severe but in remission. He then set out a treatment plan to address the offender’s criminogenic needs.

36. The author noted that in spite of these long-term diagnoses, the offender was able to adhere to prosocial conventions and maintain his educational, vocational, social and financial responsibilities. However, over the course of a number of years he engaged in increasingly dysfunctional and destructive behaviours such as alcohol abuse and various forms of sexual activity as maladaptive means of trying to escape the pervasive negative affectivity he was experiencing. Part of his dysfunctional and maladaptive coping responses included seeking out people via online chat or social media sites. On such sites he would engage in explicit conversations as a way of increasing the likelihood that others would continue to interact with him and to avoid any risk of rejection. It was in that context that he came to offend. The author noted that the offender denied having any sexual interest in children but maintained he was motivated by “the opportunity to have someone’s attention” and for those people to “like” him.

37. The author noted that the offender had engaged well in all treatment sessions to date and presented as being highly motivated to address all of his presenting treatment needs and had demonstrated a willingness to gain an understanding of the factors that contributed to his offending conduct.

38. The author went on to make recommendations for community-based treatment, and also recommendations for his rehabilitation if placed in custody.

39. Exhibit 2 was the chapter from the Bar Book Project entitled ‘Childhood Sexual Abuse’.

40. Exhibit 3 was a testimonial from Ms A Ferguson dated 21 September 2022 in which she noted that she had known the offender since 1994. She described him as being a supportive person who had assisted her in a high-performance environment. She further expressed her opinion that he would never commit such an offence again.

28. Exhibit 4 was a letter from Mr B Skjellerup dated 5 September 2022. He had known the offender since February 2012 and they had remained close over a period of 10 years. He described the offender as a person who is “extremely kind and caring” who had expressed remorse for the harm that he had caused by his offending conduct. He expressed a belief that the offender would never commit such an offence again, that the offender was looking positively towards the future and was on the road to recovery with a strong support system around him to support his rehabilitation.

The Offender’s Oral Evidence

42. The offender gave evidence that he had been truthful and accurate in the history he had given Mr Borkowski. At the time of his arrest on 17 December 2021 he was employed by Rugby Australia as the General Manager of Community Rugby and Rugby Strategy. He tendered his resignation on the day of his arrest but subsequently received a letter of termination dated the 17^th of December 2021. The offender outlined his work history since 2000. He had been employed by Soccer Australia as General Manager of Participation and had a number of notable achievements involving both First Nations People and the education of female coaches. From 2004 to 2007 he had been employed by the Australian Sports Commission as a senior consultant with a focus on improving First Nations People’s participation and developing resources to increase the participation in sport of people with disabilities.

43. From 2007 to 2009 the offender had been employed by Culture and Sport Glasgow developing a new program entitled “Sport Scotland” to address youth gang violence. In 2009 he was employed by the Oceania Football Confederation and from 2010 to 2014 he was employed by Sport Australia to support education programs.

44. From 2015-2017 the offender was employed by Athletics Australia with a focus on increasing participation in sport and in particular developing the psychological and physical wellbeing of young athletes. From 2017 until the time of his arrest the offender was employed by Rugby Australia and was involved in programs to address violence against women and children and to develop strategies of diversity and inclusiveness.

45. The offender had also been a volunteer on a number of local sporting committees and had been invited to be a board member of the AIDS Council of NSW.

46. The offender described his mistreatment in custody, first at Surry Hills Police Station when he was abused by custodial officers including being told that he should kill himself and being strip-searched. He was also abused by other prisoners and for a period of six nights did not leave his cell and was not provided with a shower or toothbrush. Upon admission to Silverwater Correction Complex, he was placed in a solitary cell for three days and then under the COVID-19 protocols he spent two weeks in isolation with another prisoner. He was subsequently diagnosed with COVID-19 and was moved to the COVID-19 cellblock for two weeks in a cell by himself. It was unclean, there was mould on the walls and a flood from an upstairs cell. He had no change of clothes for two weeks. After 4-5 days in the general population he was transferred to Parklea Correctional Centre on 28 October 2021 where he was released on bail with strict conditions which included daily reporting, a condition that he leave the house only with his husband and police would monitor his compliance which occurred on two or three occasions per week with 70% of police visits occurring between 9pm and 5am.

47. The offender described his mental health at the time of his arrest as “an ever-tightening downward spiral” involving self-loathing, depression and anxiety. He regularly suffered suicidal ideation however his arrest had led to a positive improvement in his mental health.

48. His treatment with Mr Borkowski gave him tools that he implemented to address his mental health issues. He was now in a better headspace and had dramatically diminished his abuse of alcohol and was adopting a healthy lifestyle.

49. The offender gave evidence that he had been really fortunate for the support, first of his husband who had been outstanding, and a small close group of friends.

50. The offender gave evidence that he acknowledged his past issues including his offending conduct but knew there was a potential for him in the future. He hoped to be a better person and to repay the kindness and support he had been given. He also had to find meaningful employment which he accepted would not involve use of the skills he had applied in his previous employment. It would probably involve unskilled work such as stacking shelves or driving a forklift. He was still however motivated to make a positive difference upon his return to the community, for example by volunteering in a soup kitchen.

51. When asked to explain why he had told Mr Borkowski that he did not have a sexual interest in children his explanation for the content of his communications was that it provided a conduit for him to be “a currency of value to people I was talking to”. He gave evidence that he was searching for a sense of value which involved self-destructive behaviour that was harmful to his sense of self-worth. The offender gave evidence that the agreed facts really disturbed him. He was searching for value, to be desired and wanted people to be interested in him to give him a sense of value.

52. The offender gave evidence that whilst in Melbourne from 2013 to 2017 he had seen a psychologist and had a mental health plan implemented. This followed intervention by his husband to address an unhealthy work environment.

53. Since his arrest he had learnt from his treatment by Mr Borkowski who had helped him understand the impact of trauma he had suffered as a child which had been cumulative and compounding. He had also struggled with his identification as a gay man and now understood how the effect of this stress had manifested itself physically. He had now learnt to replace negative aspects with positive factors in his life, to the extent that he is now in better physical condition and what he described as the “best mental state”.

54. The offender was asked about the offending outlined in sequences 12 and 13 which included 29 payments totalling $1578.91. He gave evidence that those payments were made during online webcam sessions involving erotic talk in which the other person was abusing him whilst they engaged in mutual masturbation. The conduct had nothing to do with children. When asked about the financial transactions the offender gave evidence that he was “looking for value”, which he explained that he felt that he had money to give in exchange for the abuse. He gave evidence that at the time he was at a pretty low place.

55. [redacted]

56. The offender gave evidence that he had disclosed his sexual abuse as a child to his husband some 10 years ago and that he had also disclosed that abuse to friends. His husband and he have now been together for 12 years, although his husband did not know about his offending conduct he is now supportive of him. The offender had been the predominant income earner but his husband is now the sole income earner and they have moved to a one-bedroom apartment.

57. The offender gave evidence that he was genuinely remorseful for his offending conduct. He now had insight into the impact of child abuse material and found the potential danger and risk of harm caused by it was very distressing. In respect of the treatment plan outlined by Mr Borkowski the offender gave evidence that he would embrace being engaged in that plan.

58. In cross-examination the offender confirmed that in the three years he had been employed by Rugby Australia due to a restructure he had been removed from the executive. He understood Rugby Australia had a child-safe framework policy that was a term of his contract of employment and that his offending behaviour constituted a breach of the code of conduct. The offender acknowledged that his offending had commenced in May 2014 whilst he had been employed by another sporting organisation with a strict protocol in relation to the abuse of children. He was aware that the offending was also a breach of that code of conduct. He acknowledged that the termination of his employment was the natural consequence of his serious offending.

59. The offender gave evidence that he believed his work for Rugby Australia was not greatly supported by the organisation. In relation to his offending on 3 December 2021 involving his conversation with Brendan Baldock (sequence 14) he understood the gravity of those actions. He also acknowledged that he had enthusiastically agreed to be sent the video entitled “Bad Grandpa” by Baldock and that 3 December 2021 was a Friday and therefore a workday and he had received that video at 10:15am.

60. In relation to the offending involving him forwarding money overseas to the user known as “Deniz” (sequences 12 and 13) the offender acknowledged that he was paying for child abuse material while it was happening. He was asked his reasons for doing so and he said that at the time he “wanted to be desired”. He agreed that the discussion with Deniz was about children in a sexual context but did not recall or know what was funny when he had replied “haha”. The offender accepted that the content and tone of the conversation with Deniz between 28 February 2021 and 27 June 2021 indicated that he had a sexual interest in children at that time and that the context was for his sexual gratification and not to develop a relationship with Deniz. He denied that the image of sleeping with children gave him sexual gratification. When asked “What did they give you?” he replied, “the gratification of engaging with these people. I don’t accept I have a sexual interest in children”.

61. The offender gave evidence that following his arrest he realised the harm caused by his conduct. He accepted that he accessed the videos and that he watched them. It was put to him that he engaged in that conduct for his own sexual gratification, he replied “no”. He conceded that the material was highly degrading, illegal and abhorrent material.

62. In relation to sequence 5 which occurred between 5 May 2014 and 19 December 2015 it was put to the offender that by viewing the videos he enthusiastically supported viewing child abuse material. He denied that, saying, “I was either supporting a sexual encounter with the user via abhorrent child abuse material”. He again denied having a sexual interest with children at the time.

63. In respect of the evidence given that he was remorseful for his conduct, the offender was questioned about the videos accessed on 1 December 2021 and 3 September 2021. He accepted they depicted extreme harm done to children and that he had watched them. The offender gave evidence that he was disgusted by his involvement, that it was vile and that the trauma caused could endure for a lifetime with an impact on the children’s families.

64. When asked about the potential for perpetuating that harm and increasing criminal conduct the offender stated that “I don’t have words to describe the impact on the individuals”. He further stated that he had to accept for the rest of his life that “it happened” and he now understood the gravity of the harm caused at the time.

65. When asked whether he accepted that he was an intelligent man the offender stated, “I have skills and mental health problems” and when it was put to the offender that he understood the gravity of his actions he replied “respectfully I was not applying awareness to it. I wasn’t in an aware state of mind”.

66. In re-examination the offender clarified that on 3 December 2021 whilst the offending took place on a workday, he was working from home. When asked about the nature of his relationship with Deniz the offender gave evidence that it was a purely financial one and that he would pay to have Deniz’s attention.

The Crown Submissions

67. The Crown relied on a detailed written outline of submissions. The Crown’s ultimate submission is that the only appropriate sentence is an immediate term of full-time imprisonment with a non-parole period having regard to the gravity of the eight offences, the objective seriousness of the offender’s conduct, the need for general and specific deterrence and the maximum penalty prescribed of 15 years imprisonment in respect of each offence.

68. The Crown noted that the offending conduct spanned a period of 6 years and 4 months and comprised a range of offences involving use of a carriage service to solicit, transmit, produce, access and possess child abuse material. A significant feature of the offending was the brutality and degradation either discussed or inflicted upon extremely young victims in some of the child abuse material and the offender’s articulated enthusiasm for such brutality and violence.

69. The Crown noted that the offender’s presentence custody of 42 days is to be taken into account on sentence. General sentencing principles for Commonwealth offences, which were not in issue, were set out in annexure A to the submissions. The Crown noted that the court must impose a sentence pursuant to s16A(1) of the Crimes Act “that is of a severity appropriate in all the circumstances of the offence”. An intensive correction order pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”) is unavailable.

70. The Crown submitted that the following principles apply in sentencing for child abuse material offences:-

1. (a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.

2. …

3. (c) General deterrence is the primary sentencing consideration, as there is paramount public interest in promoting the protection of children.

4. ….

5. (e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;

6. (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet.

7. (g) The harm done to children exploited has been described as profound, exacerbated by the continued circulation of images on the internet indefinitely.

8. (h) The possession of child pornography material creates a market for the continued corruption and exploitation of children.

9. (i) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market.

10. (j) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.

71. In assessing the objective seriousness of child abuse material offences the following non-exhaustive list of factors identified by RA Hulme J in R v Hutchinson [2018] NSWCCA 152 at [44]-[45] was relied on by the Crown 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 s16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

72. The Crown made the following submissions in relation to specific matters relevant pursuant to s16A(2) of the Crimes Act:-

(i) Nature and circumstance of the offence – s16A(2)(a) Crimes Act

73. Sequence 1 involved possession of a video over a minute in duration located on the offender’s phone on 17 September 2021. The content of the video was characterised as being “highly depraved”. Given the nature of the material involving cruelty and infliction of physical pain on a very young child, causing visible distress the Crown submitted the offence is above the mid-range of objective seriousness for an offence of its type.

74. Sequences 2 and 14, as described above, involved the offender using an alias, discussing at length and then accessing child abuse material provided by another user of the Telegram encrypted message application. Sequence 14 involved the offender’s contributions to the online chat. During the course of that chat a link was received by the offender to a video containing child abuse material which was then accessed by the offender (sequence 2). Sequence 14 involved a discussion about sexual intercourse with babies and again was characterised by the Crown as “highly depraved”. Further, the offender expressed delight in both the depravity of the described conduct and the idea of causing extreme pain to a baby through sexual abuse. The online chat was clearly intended to give the offender sexual gratification and the objective seriousness of the offending in sequence 14 was above mid-range.

75. Sequence 2 involved the offender accessing the video after being sent a link to it and being told it showed “that old filthy perv fucking a newborn”. The video was a compilation of 5 minutes and 38 seconds duration which recorded a number of highly depraved sexual assaults of actual babies and very young children aged between 2 and 4 years. The sexual acts performed included the anal penetration of a young toddler and the attempted anal penetration of a baby. The Crown submitted the objective seriousness was within the high-range for an offence pursuant to s474.22(1).

76. The Crown submitted the offending in sequence 5, use carriage service to transmit child pornography material, occurred on three separate days, on 5 May 2014, 18 and 19 December 2015. During the chats the offender describes in detail sexually abusing a 15-year-old boy, [redacted]. The Crown submitted that the offending was within the mid-range of objective seriousness for an offence pursuant to s474.19(1) of the Code.

77. Sequence 9 involved an offence on 11 August 2017, of use carriage service to transmit child pornography material. This offence involved an online chat on Facebook during which the offender described the sexual abuse of himself when he was 8 or 9 and discusses the sexual abuse of a 15-year-old boy. The Crown submitted the offending fell towards the low-range of objective seriousness for an offence pursuant to s474.19(1) of the Code.

78. Sequence 11 occurred on 2 April 2021, and was an offence of use carriage service to solicit child abuse material. It involved the offender engaging in communications on Grindr, an online dating application, during which he solicited child abuse material by requesting another user to tell him the story about his molestation and rape as an 11-year-old on the application Snapchat, which was designed for content to disappear after it has been viewed. The Crown submitted this offence fell towards the low-range of objective seriousness for an offence pursuant to s474.22(1) of the Code.

73. The Crown relied on R v Edwards [2019] QCA 15 at [38] to submit that because the offending conduct in sequences 5, 9, 11, 14 and the s16BA schedule offence were text based and there were no actual “victims”, such communications were used to normalise sexual activity involving children and it was wrong to categorise it is as a victimless crime. It may also be used to encourage reciprocal communications or even victim participation. Relying on R v Burton [2020] NSWCCA 127 the Crown noted the possibility of the dissemination of written material to vulnerable recipients or those susceptible to act in the ways described. The Crown submitted the offender’s communications with others in these counts was clearly intended to promote and encourage child abuse material and to normalise the sexual abuse of children. In circumstances were the offender did not know those who he was communicating with, there was a significant risk that those users may be stimulated to engage in sexual activity involving real children.

74. Sequence 12 was committed on 31 May 2021 during an online chat with Deniz about a sleeping prepubescent male child. The offender initially directed Deniz to film a video of the sleeping child however when he was advised that a video would be too dark the offender advised that he would be happy with a photograph of the sleeping child with Deniz’s penis in front of the young male child’s face. The offender said he would send money to Deniz for him doing it. Those directions were made with the intention that Deniz would then transmit the child abuse material produced to the offender contrary to s474.22 of the Code. The arrangement to pay money and the fact that the offender did so by transferring $175 that day was submitted to be a factor that increases the objective seriousness of this offence which fell below the mid-range for an offence pursuant to 474.23(1) of the Code.

75. In sentencing for sequence 12 the court is required to take into account the transmit child abuse material offence on the s16BA schedule. That offence, being sequence 10, involved the accused engaging in communications with Deniz via Skype on four separate occasions between 28 February 2021 and 27 June 2021. The four conversations included the offender telling Deniz to show “kids” a video of the offender masturbating so they could watch him. In a second conversation the offender requested Deniz to take footage of a 13-year-old sleeping boy to satisfy the offender’s sexual urges. In the last two conversations the offender asked if there is “anyone to perv on today” and “any young today”. There was a further reference to payments with the accused asking in the 31 May conversation, “how much?”. The Crown submitted the practical effect of taking the offence into account is that a more severe sentence is usually imposed. The nature and seriousness of the schedule offence is relevant to determining the appropriate sentence although there is no requirement to quantify the effect or specify the sentence that may otherwise have been imposed had there been no scheduled offence. The Crown submitted that here the s16BA offence is significant additional criminality that is relevant in terms of specific deterrence and retribution in determining the appropriate sentence for sequence 12.

76. Sequence 13 involved the transmission of the child abuse material by Deniz to the offender. It concerned the photograph taken by Deniz of his penis in front of the sleeping child’s face. The Crown submitted this offence was below the mid-range of objective seriousness for offending pursuant to s474.22(1) of the Code.

(ii) S16A(2)(d) and (e) of the Crimes Act – Circumstances of any victims of the offences and any injury, loss, damage or harm caused

83. The Crown submitted the harm to the actual child victims depicted in the videos and accessed by the offender can be inferred to be considerable, given the nature of the sexual activity and the cruelty displayed therein.

(iii) S16A(2)(ja) and s16A(2)(j) of the Crimes Act – General and specific deterrence

84. The Crown submitted that general deterrence is the primary consideration when sentencing for child abuse offences relying on R v Fuller [2010] NSWCCA 192 at [26] per McClellan CJ at CL. The Crown submitted the current offending involved persistent conduct over a number of years, the nature of which demonstrated a sexual interest in children and an awareness of the wrongfulness of the conduct. General deterrence is the paramount factor in sentencing because of the paramount public interest in promoting the protection of children.

85. The Crown submitted that specific deterrence is also an important factor in sentencing for child abuse material offences. Therefore, any sentence imposed must be of such a severity so as to act as a specific personal deterrent from further offending.

(iv) S16A(2)(g) of the Crimes Act – Guilty plea

86. The court would take into account the timing of the plea and consider the utilitarian benefit of the offender’s early plea of guilty. The plea may also be relevant on a subjective basis in considering remorse and contrition. The strength of the prosecution case may also be taken into account, including whether the offender’s plea was a “recognition of the inevitable”. Here the Crown conceded that the plea was entered at the first reasonable opportunity however, it was entered in the face of a strong prosecution case.

(v) S16A(2)(f) of the Crimes Act – Contrition

87. The Crown submitted that contrition must be established by proper evidence and the court is not bound to accept hearsay evidence of what the offender said to third parties.

(vi) S16A(2)(k) of the Crimes Act – Need for adequate punishment

88. The Crown submitted that the court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. Offences of this nature require the imposition of sentences that will both deter others from committing similar offences and which will punish and denounce the conduct of the offender.

(vii) S16A(2)(m) of the Crimes Act – Character, antecedents, age, means and physical and mental condition

89. The Crown noted the offender is currently 43 years of age and was aged between 34 and 40 at the time of the offending. The offender has no prior convictions and is otherwise of good character. However, this character is of limited weight, relying on DPP v Smith [2010] VSCA 215 at [23] per Nettle JA.

(viii) S16A(2)(n) and s16A(2AAA) of the Crimes Act – Prospects of Rehabilitation

90. The Crown submitted that the mitigating factors such as prospects of rehabilitation must be given less weight than they would ordinarily be given as deterrence and denunciation are primary considerations in sentencing for these types of offences. It was submitted that even a finding of good prospects of rehabilitation cannot preclude the imposition of a stern sentence.

91. S16A(2AAA) provides that a court sentencing an offender for Commonwealth child sex offences must take into account the objective of rehabilitating the person by considering whether it is appropriate to impose conditions about rehabilitation and treatment and in determining the length of any sentence or non-parole period to include sufficient time for the person to undergo the rehabilitation program. The Crown submitted the subsection does not permit the court to impose a sentence which is either disproportionately severe or lenient in pursuit of the objective of rehabilitating the offender. Nor does it displace or override the requirement that the sentence must be of a severity appropriate in all of the circumstances of the offence.

92. The Crown submitted that pursuant to s19(5) of the Crimes Act there is a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences. The Crown acknowledged that the Court may impose an aggregate sentence pursuant to s53A of the CSPA.

93. The Crown also annexed a schedule of comparative cases noting that they provided guidance as to the identification and application of relevant sentencing principles. The comparative cases also may yield discernible sentencing practices and a possible range of sentences. The Crown submitted that consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellant courts. Generally, the comparative cases are to be approached with care.

94. Finally, the Crown submitted that pursuant to s23ZD of the Crimes Act the Crown seeks a forfeiture order with respect to the offender’s iPhone and laptop which were used in connection with the commission of the offences.

95. In her oral submissions the Crown rehearsed her submissions concerning the objective seriousness of the offending in respect of each offence.

96. The Crown also addressed a submission made on behalf of the offender that some of the offences in sequences 5, 9, 11, 14 and 10 were offences where an ICO was available in NSW pursuant to s67 of the CSPA. The Crown submitted that an ICO was not available in respect of those offences because s20AB(1)(b) creates a limitation. The Crown was given leave to file and serve a further submission. In it, the Crown submitted that the “corresponding case” in respect of each charge was s91H of the Crimes Act 1900 (NSW), which was a prescribed sexual offence pursuant to s67(2)(b) of the CSPA. Further there was a presumption of cumulation pursuant to s19 of the Crimes Act for offences after 23 June 2020 following amendment to the Crimes Act.

97. The Crown submitted that the report of Mr Borkowski in Exhibit 1 and the evidence of the offender should be approached with some caution here. For example, the evidence of the offender that he had no sexual interest in children was evidence that the court was not bound to accept. Further, the court would not accept his explanation for his offending and would find that the offender received sexual gratification for discussing, accessing and transmitting child abuse material.

The offender’s submissions

98. The offender also relied on a written outline of submissions which referred to the well-established principles of sentencing for federal offenders as set out in s16A and s17A of the Crimes Act.

99. The offender submitted that an ICO is an available sentencing option in respect of sequences 1,5,9,11 and 14. S67(1)(b) of the CSPA provides that an ICO must not be made in respect of a sentence of imprisonment for a prescribed sexual offence which was relevantly defined in subsection (2)(3). That definition includes offences under s474.19(1), s474.22 and s474.23(1). The definition concludes with the words, “being an offence the victim of which was a person under the age of 16 years”. In respect of sequences 5,9,11 and 14 the child abuse material or child pornography did not depict an actual child. Consequently, it was submitted an ICO is available for those offences. In respect of sequence 1 an offence pursuant to s474.22A, that was not included in the definition. In response to the further submission filed by the Crown, the offender submitted sequences 5, 9, 11 and 14 are “corresponding cases” for the purpose of s20AB(1)(b) of the Crimes Act.

100. It was acknowledged that in respect of sequences 2,12 and 13 an ICO was not available by operation of s67 of the CSPA.

101. The written submissions outlined well known authorities for the proposition that general deterrence is a paramount consideration in sentencing for offences of child pornography and that general deterrence ordinarily warranted the imposition of full-time custodial sentences.

102. The offender referred to Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 where the court outlined relevant matters affecting the objective seriousness of offending for offences involving the possession, dissemination or transmission of child pornography. These principles were later adopted and expanded upon by RA Hulme J in R v Hutchinson [2018] NSWCCA 152 at [45]-[46]. In relation to the individual offences the offender made the following submissions as to the objective seriousness of the offending therein.

(i) Sequence 1 – Possess child abuse material – s474.22A

103. The offender submitted this was an objectively serious offence relating to a 1 minute and 13 second video which was classified as category 1 in which an actual child was depicted. It was submitted that there was a single video only and no evidence that the material was paid for or that the offender had any proximity to those responsible for bringing the material into existence. There was also no evidence as to whether the video was requested by the offender or that it had been provided unprompted.

104. The file was located in a “chat” on an encrypted messaging service. It was submitted that the offending was unsophisticated and unplanned and that the offender did not come to possess the video by deception. It was submitted there was no risk that the material could be seen or acquired by vulnerable persons. It was submitted that the offending fell between the low and mid-range for an offence of this type and it was open to the court to impose an ICO for this offence.

(ii) Sequence 14 – Transmit child abuse material – s474.22(1)

105. The offender submitted that sequence 14 relates to a messaging conversation with Baldock on the Telegram messaging service. It was submitted to be of considerable significance that the material was not photographic and therefore did not depict an actual child. The definition of child abuse material in s473.1 of the Code was wide. It was submitted the primary factors responsible for the seriousness of this type of offending were absent here. Material came into question without the abuse of a child and consequently no harm was occasioned to a child. In addition it was submitted there was no ongoing degradation of a child each time the material is viewed.

106. It was submitted that it was also of significance that the material was not in the form of a drawing or story that was produced to be repeatedly shared. The nature of the material was private messaging between two adults. Whilst there is a clear public interest to deter the transmission of such material it was submitted that the objective seriousness of the offending fell towards the very bottom of offending of this type.

(iii) Sequence 2 – Access child abuse material – s474.22(1)

107. In the course of messaging Baldock, a video, which is the subject of sequence 2 was sent to the offender. It was entirely unplanned conduct as the video was not requested by the offender rather Baldock spontaneously offered to send him the video. It was a single video of 5 minutes and 38 seconds duration and was classified as category 1. It appeared to depict more than one child. It was submitted that there was no evidence that the material was paid for or that the offender had any proximity to those responsible for bringing the material into existence. The file was located within a “chat” of an encrypted messaging service. It was submitted the offending was unsophisticated, unplanned and involved no deception. It was further submitted that there was no risk that the material could be seen or acquired by vulnerable persons. Counsel submitted that the offending fell between the low and mid-range for an offence of this type.

(iv) Sequence 5 – Transmit child pornography material – s474.19(1)

108. Sequence 5 relates to messages sent by the offender to the user named “Luuk”. The offender’s descriptions constituted child pornography material and it was submitted that the objective gravity of the offending was significantly reduced as the conduct does not involve actual children or photographs or videos. It was submitted it was descriptive in the nature of fantasy. It was not suggested the messages were encrypted and the account details displayed the offender’s full name and email address. It was submitted there was no risk that the material could be seen or acquired by vulnerable persons. It was respectfully submitted that the offending did not require the imposition of a full-time custodial sentence.

(v) Sequence 9 - Transmit child pornography material – s474.19(1)

109. Sequence 9 relates to messages sent by the offender to a user “Jayson Case”. This offending involved no actual children or photographs or videos. The offending commenced with the offender describing his own childhood abuse. Further, the messaging application displayed the offender’s full name and email address. It was submitted the offending was unsophisticated and unplanned and involved no deception. It was not suggested that the messaging was encrypted or that the offender took any steps to conceal the offending. Again, it was submitted that there was no risk that the material could be seen or acquired by vulnerable persons. It was also respectfully submitted that this offending does not require the imposition of a full-time custodial sentence.

(vi) Sequences 12 & 13 – Offences pursuant to s474.23(1) and s474.22(1)

110. It was submitted that sequences 12 and 13 related to a conversation between the offender and another user “Deniz” during which 5 images were sent by Deniz. One of those images constituted child abuse material. It was acknowledged that this conduct was serious as an actual child was used in the creation of the material and the offender was proximate to the child through his conversation with Deniz.

111. It was submitted that it was an element of the offence that the offender “produced” the material. When considered on a scale for like offending, the offender’s conduct fell towards the lower-end of the range. It was submitted that it was of significance that the child remained fully clothed in the image which does not depict a child being assaulted. The child is asleep in the photograph and there was no cruelty or physical harm occasioned to the child.

112. It was respectfully submitted that the court would be unable to prove beyond reasonable doubt that the payment was made for the photograph given that the offender offered to pay “100” for a photograph with the light on which Deniz denied. The facts refer to payment of $175.75 on 31 May 2021 which is an amount that does not accord with any of the material before the court. The offender submitted that the offending fell towards the lower-end of the range for offending of this type.

(vii) Sequence 11 – Solicit child abuse material – s474.22(1)

113. It was submitted that sequence 11 related to messages exchanged between the offender and another user “User 1” during which the offender requested a photo of User 1 as a child however this was not sent, and it was submitted that it would not have amounted to child abuse material. It was submitted that the nature of the offending significantly ameliorates the gravity of the offending which could be appropriately characterised as fictional role playing. It was conduct that did not require the imposition of a full time custodial sentence.

Personal Circumstances of the Offender

114. The offender submitted in relation to the personal circumstances of the offender that he was a person of good character having never been convicted of any criminal offences prior to the current offences. He is now 43 years of age and up until his arrest he had built a successful career in sports management and administration. Following his arrest, his employment with Rugby Australia was terminated.

115. The offender made the following submissions relevant to s16A(2) of the Crimes Act:-

Contrition and pleas of guilty: s16A(2)(f) and s16A(2)(g)

116. The offenders pleas of guilty were entered at the earliest opportunity. The court should take into account the utilitarian benefit of the guilty plea in addition to the extent to which the guilty plea demonstrated remorse, contrition, acceptance of responsibility and a willingness to facilitate a course of justice.

117. It was submitted that the offender had expressed his sincere remorse and in doing so had demonstrated deep insight into his offending as outlined in the report of Mr Borkowski.

The offender’s childhood sexual abuse: s16A(2)(m)

118. Mr Borkowski had recorded that the offender was abused on multiple occasions between the ages of 8 and 11 by three extended family members. The offender relied on the ‘Bar Book Project’ chapter on childhood sexual abuse to refer to research which clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences. The Bar Book chapter revealed the following important findings:-

“a. Both male and female survivors of child sexual abuse may also be at greater risk of engaging in risky behaviours, particularly risky sexual behaviours, both during adolescence and adulthood.

b. There is increasing evidence suggesting that children who have been sexually abused “have greater difficulties with interpersonal relationships and especially trust compared with non-abused individuals”.

c. The risk of subsequent offending is higher than for the general population.

d. Self-report studies of child sex offenders indicate that possibly as many as 75% of offenders were sexually abused as children, with rates generally reported in the range of 41–43%.”

119. The offender submitted that his history of child sexual assault was a relevant matter to be taken into account on sentencing as a factor in mitigation on penalty as it reduced the offender’s moral culpability for his acts. It was respectfully submitted that the offender’s childhood abuse causally contributed to his offending, relying on Mr Borkowski’s opinion that the offender developed long-term patterns of trying to please others, seeking acceptance and avoiding rejection by engaging in various patterns of behaviour that included sexual activity so that he would be liked or to obtain attention. It was submitted that the opinions submitted by Mr Borkowski were based on not only an initial assessment but eight subsequence appointments and that his treatment was ongoing. It was further submitted that the offender’s moral culpability was reduced owing to his history of sexual abuse which had contributed to his own criminality. The offender’s history also distinguishing him as an inappropriate vehicle for both general and specific deterrence.

Mental health: s16A(2)(m)

120. The offender had been diagnosed by Mr Borkowski with a Major Depressive Disorder, Generalised Anxiety Disorder and Alcohol Use Disorder. It was submitted that the causal relationship between the offender’s depression and anxiety and his offending behaviour is established by Mr Borkowski’s opinions. These circumstances operated to ameliorate the offender’s moral culpability and also distinguished him as an inappropriate vehicle for general deterrence.

Prospects of rehabilitation: s16A(2)(n)

121. The offender submitted that his treatment by Mr Borkowski demonstrated progress towards rehabilitation. He had been assessed at a low-risk category for reoffending.

122. It was further submitted that the COVID-19 pandemic made conditions of incarceration more onerous which should be taken into account on sentence.

123. It was further submitted that the offender had provided investigators with access to his phone and participated in a voluntary recorded interview in which he made admissions as to being the sole user of his mobile phone and that he uses Facebook, Wickr, Telegram and Grinder. It was further submitted that given the level of insight expressed by the offender and his demonstrated progress towards rehabilitation, the deterrent effect on him of any sentence is not positively correlated to the length of sentence. Rather, the charges and the period he spent in custody have had a profound deterrent effect upon him. It was further submitted that the offender’s standing in the community was not used to aid in the commission of the offences and he used freely available messaging apps to engage in his offending conduct (s16A(2)(ma)).

124. It was finally submitted that in the event of a full-time sentence of imprisonment being imposed a significant term on parole will assist both the offender and the community by continuing to promote the offender’s rehabilitation and by recognising that this will be his first time in custody.

125. In his oral submissions Counsel for the offender rehearsed his submissions concerning the objective seriousness of each of the offences, and the offence on the s16BA schedule. He also rehearsed his submissions concerning the onerous conditions of the offender’s bail which amounted to quasi-custody.

126. In relation to the Crown submission about the ongoing financial arrangement between the offender and Deniz the offender submitted that the evidence did not support an ongoing financial relationship for the supply of child abuse material.

127. On the question of accumulation pursuant to s19A of the Crimes Act it was submitted that most of the offending constituted a low objective gravity of offending. Sequences 12 and 13 were a single course of offending and most of the offending had occurred between May and October 2021 (namely sequences 1,2,11,12,13,14 and 10). It was submitted that all of the offending was linked to the offender’s underlying motive to engage in destructive behaviour.

128. It was submitted that the court would accept the evidence of the offender, albeit with a degree of circumspection. It was a rare case compared to offences which routinely involved hundreds or thousands of images constituting child abuse material.

129. It was further submitted that whilst the offending dated back to 2014 there had been no serious attempt to conceal his offending behaviour. Whilst some of the communications were encrypted, they still used his own name, photo and phone number, particularly in respect of the offending on Whatsapp and Facebook.

130. Counsel accepted that the court would have difficulty in accepting the offender’s evidence that he had no sexual interest in children, the court would also take into account the frequency of the offending. The court would also have regard to the description by Mr Borkowski that the offender’s dysfunctional patterns of behaviour often occurred in response to various stressors that were, for the most part, associated with workplace pressures and work-related situations that activated his insecurities, self-doubts and negative self-perception.

131. It was submitted that the offences occurred as one single offence in 2014, offending in December 2015 and August 2017 and then in the six-month period in 2021. As such it did not constitute ongoing offending.

132. Counsel submitted that the offender presented as a truthful witness which was supported by the underlying evidence as to his mental health.

133. It was submitted on behalf of the offender that the gravity of the offending here was substantially less than that in R v Burton, supra. Whilst it was accepted that general deterrence is important in sentencing for child abuse material offences, it should not be given the usual weight here given that there were no real children involved and the court would take into account the offender’s own childhood abuse and his mental health struggles.

Determination

134. The offending in sequence 1 of possess or control child abuse material obtained or accessed using a carriage service pursuant to s474.22A of the Code involved one video file of 1 minute and 13 seconds duration which was classified as category 1 child abuse material. The content of the video was highly depraved, involving cruelty and infliction of physical pain on a very young child causing that child visible distress. The objective seriousness of the offending fell just below the mid-range for an offence pursuant to s474.22A but only because it involved one file of relatively short duration. It still constituted serious offending.

135. Sequence 2 was an offence of use carriage service to access child abuse material pursuant to s474.22(1) of the Code. It involved a video with a file name “Bad grandpa” on the offender’s device. The video was five minutes and 38 seconds duration and was classified as category 1. It depicted a number of highly depraved sexual assaults on actual babies and very young children aged between 2 and 4 years. The sexual acts performed included anal penetration of a young toddler and the attempted anal penetration of a baby. The objective seriousness of the offending fell in the high range for an offence pursuant to s474.22(1) of the Code and was clearly very serious offending.

136. Sequence 5 was an offence of use carriage service to transmit child pornography material pursuant to s474.19(1) of the Code. It involved the transmission of child pornography material over three days during which the offender described in detail the sexual abuse of a 15-year-old boy as well as discussing his plans to, [redacted]. The objective seriousness of the offence fell within the middle of the low-range for an offence pursuant to s474.19(1) of the Code. It still constituted serious offending.

137. Sequence 9 was an offence of use carriage service to transmit child pornography material pursuant to s474.19(1) of the Code. The offence involved online chat on Facebook during which the offender described the sexual abuse of himself when he was eight or nine years of age and discusses the sexual abuse of a 15-year-old boy. The objective seriousness of this offence fell within the middle of the low-range for an offence pursuant to s474.19(1) of the Code.

138. Sequence 11 was an offence of use carriage service to solicit child abuse material pursuant to s474.22(1) of the Code. The offender solicited child abuse material by requesting another user on Grindr to tell him the story about his molestation and rape as an 11-year-old on Snapchat, a social media application that allowed the exchange of such material but which was designed for the material to disappear after it was viewed. The objective seriousness of the offending fell in the low range for an offence pursuant to s474.22(1) of the Code.

139. Sequence 12 was an offence of use carriage service to produce child abuse material, with the intention that the material be used by another person to commit an offence against s474.22 of the Code, pursuant to s474.23(1). The offender requested that the user Deniz take a photograph of a sleeping child with Deniz’s penis in front of the young male child’s face. The objective seriousness of the offending fell in the middle of the low-range for an offence pursuant to s474.23(1) of the Code.

140. Sequence 13 was an offence of use carriage service to transmit child abuse material to self, pursuant to s474.22(1) of the Code. It involved the transmission of the photo in return for payment and given that the offender’s bank records revealed a payment of $175.75 via PayPal to Deniz Bozoglu on the same day it may be inferred that that payment was made for the said photo. The objective seriousness of the offending fell in the middle of the low-range for an offence pursuant to s474.22(1) of the Code.

141. Sequence 14 was an offence of use carriage service to transmit child abuse material pursuant to s474.22(1) of the Code. This was the offence related to sequence 2 as that video file was located in the chat on Telegram between the offender and Baldock wherein the rape of children, including a baby, was discussed. Having read the communications I accept the characterisation of it by the Crown as being highly depraved. I further accept the Crown’s submission that the offender expressed delight in both the depravity of the described conduct and the idea of causing extreme pain to a baby through sexual abuse. I find the communication was clearly intended to give the offender sexual gratification and the objective seriousness of the offending was in the mid-range for an offence pursuant to s474.22(1) and towards the upper-end of the mid-range.

142. Sequence 10, the offence on the s16BA schedule, an offence of use carriage service to transmit child abuse material pursuant to s474.22(1) of the Code is to be taken into account in sentencing for sequence 12. It involved four separate communications with Deniz between 28 February 2021 and 27 June 2021. The communications included the offender telling Deniz to show “kids” a video of the offender masturbating so they could watch him and the offender requesting Deniz to take images of the 13-year-old sleeping boy to satisfy the offender’s sexual urges. The conversations constituted child abuse material, the objective seriousness of which fell in the low range for an offence pursuant to s474.22(1) of the Code.

143. S17A of the Crimes Act 1914 provides that the court shall not pass a sentence of imprisonment for a federal offence unless, after having considered all of the other available sentences, the court is satisfied that no other sentence is appropriate in all of the circumstances of the case. S16A of the Crimes Act 1914 provides that in determining the sentence for a federal offence a court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. S16A(2) prescribes a number of matters the court must take into account. In the sentencing exercise here the following are relevant matters pursuant to s16A(2):-

(a) The nature and circumstances of the offence

144. The nature and circumstances of the offending conduct is described above together with my assessment of the objective seriousness of each offence. Possessing, accessing, transmitting, soliciting and producing child abuse material is pernicious offending exploiting the most vulnerable members of the community and feeds a worldwide market for such material. I do not accept the offender’s submission that the offending in sequence 1 was unsophisticated in that it involved the use of an encrypted messaging application. All of the offending exhibited a high degree of moral culpability, and was morally reprehensible conduct.

(b) Other offences that are required to be taken into account

145. Sequence 10 on the s16BA schedule is to be taken into account on sentence in relation to sequence 12. The nature of the offending in sequence 10 as outlined above requires some accumulation on sentence in relation to sequence 12.

(c) If the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct

146. The offending conduct spanned a period of 6 years and 4 months and involved a range of offences involving the use of a carriage service to possess, solicit, transmit, produce and access child abuse material. A significant feature of much of the offending was the brutality and degradation either discussed or inflicted upon extremely young victims and the offender’s articulated enthusiasm for the brutality and violence involved. Although it comprised one offence in 2014, then offending in December 2015 and August 2017, followed by a 6-month period of offending in 2021, I reject the submission made on behalf of the offender that it did not, as such, constitute ongoing offending. It clearly did, and escalated over time to the six month period of offending in 2021.

(d) The personal circumstances of any victim of the offence

(e) Any injury loss or damage resulting from the offence

147. The victims in the videos subject of sequences 1 and 2 were subjected to depraved activity and cruelty and the harm caused to them may be inferred to be considerable. The courts have long recognised that the harm caused by illegal sexual activity to young persons, both physical and psychological, may endure for a lifetime.

(f) The degree to which the offender has shown contrition

148. I accept that the offender has expressed sincere remorse and contrition for his offending and further has demonstrated insight into it as reported by Mr Borkowski.

(g) The timing of the offender’s plea of guilty

149. The offender pleaded guilty at the earliest opportunity and is entitled to a utilitarian discount on sentence in respect of his plea. Notwithstanding that it was a plea made in the face of a strong Crown case, the plea has obviated the need for a trial and the offender is entitled to a discount of 25% on sentence.

(h) The degree to which the offender has cooperated with law enforcement agencies

150. The offender had provided investigators with access to his phone and participated in a voluntary recorded interview in which he made admissions in relation to being the sole user of his mobile phone and the various social media apps thereon.

(j)&(ja) General and specific deterrence

151. General deterrence is a primary consideration in sentencing for child abuse material offences. There is a paramount public interest in promoting the protection of children and a clear message must be sent to like-minded members of the population that Parliament has legislated heavy maximum penalties of imprisonment for such offences and that the courts will impose condign punishment in appropriate cases.

152. Specific deterrence is also important in sentencing for child abuse material offences. The offender must understand that the nature of the offences, the number of them, and his moral culpability for them requires a sentence of significant severity so as to deter him from further offending.

(m) The character, antecedents, age, means and physical or mental condition of the person

153. The offender is currently 43 years of age and was aged between 34 and 40 years at the time of the offending. I accept that the offender was himself abused on multiple occasions between the ages of 8 and 11 years by members of his extended family and accept that as a survivor of child sexual abuse himself he was at a greater risk of engaging in risky sexual behaviours. I further accept Mr Borkowski’s opinion which was not challenged by the Crown, that the offender developed long-term patterns of trying to please others, seeking acceptance and avoiding rejection by engaging in patterns of behaviour that included deviant sexual activity.

154. I further accept Mr Borkowski’s opinion that the offender suffers symptoms of a Major Depressive Order, Generalised Anxiety Disorder and Alcohol Use Disorder and that there is a causal relationship between the offender’s depression and anxiety and his offending behaviour.

155. I was impressed generally with the offender’s evidence. He has had a productive working life as an adult in sports management programs as well as being a volunteer on a number of local sporting committees and a board member of the AIDS Council of NSW. I do not however accept his evidence that he had no sexual interest in children and there is no evidence to support the submission made on his behalf that his dysfunctional patterns of behaviour often occurred in response to various stressors associated with his workplace. Rather, notwithstanding that he was in a stable relationship I find that his conduct was motivated by his interest in and sexual attraction to children for his own sexual gratification. His evidence that his communications provided “a currency of value to people” and that he was searching for “a sense of value” was both disingenuous and exculpatory.

(n) Prospects of rehabilitation of the offender

156. The offender has responded well to treatment by Mr Borkowski who has seen him on nine occasions. He has expressed a willingness to embrace the treatment plan outlined by Mr Borkowski and had amended his lifestyle so as to diminish his criminogenic risk factors.

(p) The probable effect that any sentence would have on the offender’s family

157. There is no evidence as to the impact of the sentence to be imposed on the offender on his family, and he has no dependants.

158. S16A(2AAA) provides that a court sentencing an offender for Commonwealth child sex offences must have regard to the objective of rehabilitating the offender by considering whether it is appropriate to impose conditions about rehabilitation and in determining the length of any sentence or non-parole period to include sufficient time for the person to undergo a rehabilitation program.

157. I take into account the fact that in respect of each of the offences, and the offence in sequence 10 on the schedule pursuant to s16BA of the Crimes Act, the maximum penalty prescribed is 15 years imprisonment. The maximum penalty reflects the serious nature of the criminal conduct involved, and I take it into account as a guidepost in the sentencing process.

158. I propose to proceed by way of an aggregate sentence pursuant to s53A of the CSPA. In doing so I take into account the objective seriousness of each of the offences as outlined above, the factors outlined pursuant to s16A(2) of the Crimes Act outlined above, including the offender’s subjective factors which impact upon his moral culpability for his offending together with the utilitarian discount of 25% by way of his early plea of guilty. For the purposes of transparency in imposing an aggregate sentence I am required to set out my indicative sentences for each offence as follows:

1. Sequence 1 – possess or control child abuse material obtained or accessed using a carriage service pursuant to s474.22A of the Code - 14 months imprisonment

2. Sequence 2 – use carriage service to access child abuse material pursuant to s474.22(1) of the Code – 18 months imprisonment

3. Sequence 5 – use carriage service to transmit child pornography material pursuant to s474.19(1) of the Code – 14 months imprisonment

4. Sequence 9 – use carriage service to transmit child pornography material pursuant to s474.19(1) of the Code – 6 months imprisonment

5. Sequence 11 – use carriage service to solicit child abuse material pursuant to s474.22(1) of the Code – 6 months imprisonment

6. Sequence 12 – use carriage service to produce child abuse material, with intention that the material be used by another person to commit an offence against s474.22 of the Code – 15 months imprisonment

7. Sequence 13 – use carriage service to transmit child abuse material to self pursuant to s474.22(1) of the Code – 12 months imprisonment

8. Sequence 14 – use carriage service to transmit child abuse material pursuant to s474.22(1) of the Code – 18 months imprisonment

161. Before aggregating the sentence to be imposed I would not consider whether the sentences for sequences 1, 5, 9, 11 and 14 should be served by way of an Intensive Correction Order if it were available because of the objective seriousness of the offending, the length of time over the which the offending occurred and the number of offences involved. I therefore do not need to determine the issue as to whether such order was available in respect of those offences. If required to do so, I would accept the Crown submissions that an Intensive Correction Order would not be available for these offences.

162. In arriving at an aggregate sentence it is important to apply principles of proportionality and totality. The principle of totality was explained 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.”

163. Having regard to the totality of the criminality involved here I intend to impose a head sentence of 4 years imprisonment. Having regard to the fact that this is the first term of imprisonment imposed in an otherwise blameless life and given the onerous conditions imposed on the prison population as a result of the COIVD-19 pandemic I make a finding pursuant to s44(2) of the CSPA of special circumstances, and I intend to vary the statutory ratio between head sentence and non-parole period, and impose a non-parole period of 2 years imprisonment to be back-dated by 42 days.

Orders

164. I hereby order as follows:-

1. You are convicted of the following offences:

1. Sequence 1 - Pursuant to s474.22A of the Criminal Code that on 17 September 2021 you did possess or control child abuse material obtained or accessed using a carriage service.

2. Sequence 2 - Pursuant to s474.22A of the Criminal Code that on 3 September 2021 you did use a carriage service to access child abuse material.

3. Sequence 5 - Pursuant to s474.19(1) of the Criminal Code that between 5 May 2014 to 19 December 2015 you did use a carriage service to transmit child pornography material.

4. Sequence 9 - Pursuant to s474.19(1) of the Criminal Code that on 11 August 2017 you did use a carriage service to transmit child pornography material.

5. Sequence 11 - Pursuant s474.22(1) of the Criminal Code that on 2 April 2021 you did use a carriage service to solicit child abuse material.

6. Sequence 12 - Pursuant to s474.23(1) of the Criminal Code that on 31 May 2021 you did use a carriage service to produce child abuse material, with the intention that the material be used by another person to commit an offence against s474.22 Criminal Code (Cth).

7. Sequence 13 - Pursuant to s474.22(1) of the Criminal Code that on 31 May 2021 you did use a carriage service to transmit child abuse material to self.

8. Sequence 14 - Pursuant to s474.22(1) of the Criminal Code that on 3 September 2021 you did use a carriage service to transmit child abuse material.

2. I impose an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of a term of imprisonment of 4 years with a non-parole period of 2 years to commence on 13 October 2022 and to expire on 12 October 2024.

3. The balance of term will be for a period of 2 years, terminating on 12 October 2026.

4. I have certified that I have taken into account in respect of the sentence in sequence 12 the offence on the schedule pursuant to s16BA of the Crimes Act 1914 (Cth) being sequence 10 – use carriage service to transmit child abuse material against s474.22(1) of the Criminal Code 1995 (Cth).

5. I make a forfeiture order pursuant to s23ZD of the Crimes Act 1914 (Cth) in respect of the offender’s iPhone and Laptop Computer used in connection with the commission of the index offences.

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Decision last updated: 30 January 2023