R v Stopps

[2024] NSWDC 582

District Court

New South Wales

Medium Neutral Citation:	R v STOPPS [2024] NSWDC 582
Hearing dates:	10 December 2024
Decision date:	10 December 2024
Jurisdiction:	Criminal
Before:	Noman SC DCJ
Decision:	Aggregate sentence of imprisonment of 3 years and 2 months imprisonment to date from 16 January 2024 with a non-parole period of 1 year and 10 months. The offender will be eligible for release to parole on 15 November 2025. Indicative sentences: access offence (3 years) and possession offence (18 months).
Catchwords:	SENTENCING – Commonwealth offences – accessing child abuse material – possessing child abuse material using a carriage service - imprisonment – remorse- forfeiture order
Legislation Cited:	ss 474.22A(1) and 474.22(1) of the Criminal Code Act 1995 (Cth)
Category:	Sentence
Parties:	Rex; Jye Stopps
Representation:	Solicitors: Crown: C Niagos Defence: A Tiedt
File Number(s):	2024/18351

JUDGMENT

1. The offender, Jye STOPPS, entered pleas of guilty in the Local Court to two Commonwealth offences.

2. The offences are for possessing child abuse material using a carriage service and accessing child abuse material using a carriage service contrary to s 474.22A(1) and s.474.22(1) of the Criminal Code respectively and each has a maximum penalty of 15 years imprisonment.

3. I must sentence in accordance with Commonwealth sentencing principles.

4. The maximum penalty for an offence provides relevant guidance. In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

5. There is a utilitarian benefit that flows from a plea of guilty. The pleas are to be regarded as early pleas. I intend to reduce each sentence by 25% to recognise the pleas. The pleas demonstrate an acceptance of responsibility and a willingness to facilitate the course of justice. I do not determine that they do reflect remorse for reasons documented.

6. ‘Agreed’ facts were tendered. This is the title of the document and this is the document provided on behalf of the offender to the psychologist and a redacted version to the authors of letters of support. The offender also tendered the ERISP, being the document from which portions of the agreed facts were derived. I propose to utilise this document in addressing the facts. I note there are portions of the psychological report that are contrary to the agreed facts. Where the versions differ, I am proceeding on what was agreed between the parties.

7. I have read the full facts and will sentence on that document. I recite only some facts in summary.

8. The offender’s conduct was discovered as part of an investigation into a New Zealand based cloud storage service, Mega.nz. It was ascertained that the offender’s account was used to access child abuse material.

9. On 16 January 2024 the offender was stopped by police. He was informed of the requirement to provide assistance to access his accounts. He provided passwords to access his phone and the two accounts he held with the cloud service. He participated in an interview wherein after advancing an interest in legal teenagers aged 18 and 19, and although he also accepted he was looking for those aged over 17 he ultimately accepted he had a sexual interest in child abuse material involving much younger children. He settled on describing it to involve pre-pubescent children aged over 10. He used the encrypted application Telegram to access the material, and then stored it on the cloud using his phone. He also engaged in chats using Telegram. He had both a ‘parked’ account and an active account on the cloud. Both accounts operated under ‘sloan’, his biological father’s surname although one was registered in a different name. He deleted applications periodically to prevent his partner locating them. He reinstalled them as required.

10. The accessing offence relies upon the two ‘sloan’ accounts and the Telegram account.

11. Samples from each of the accounts included sexual acts involving real children aged between about 6 months and 17 years with other children, adults and animals. Images included those of deceased children.

12. In the ERISP the offender indicated participation in a chat title in part “cp”. He accepted he knew that cp referred to child pornography. He endorsed this in his evidence.

13. Under the Sloan account, police located in the trash folder 7710 files depicting child abuse material. The account had been active for only about a week. Although ‘parked’ the account could be reactivated. The facts describe four video files. The ages range from toddler to possibly 16, there are both genders, and there are various penetrative acts. The older child is penetrating a horse. Another involves a child fellating an adult and a dog. The duration of the four sampled ranged from 23 seconds to over 16 minutes. One child is deceased suffering genital trauma.

14. Under the Sloan account, with a suffix, police located 1833 files stored in seven folders. A sampling of the images detected 319 child abuse material files. This account was created on 1 May 2023 and last accessed on 8 January 2024. 1388 files had been added on 13 December 2023. Seven video files are described. They capture children from about 6 months up to about 8 years. There are various penetrative acts. Some include the use of restraints.

15. Located on the Telegram account were 21 downloaded images and 55 videos. 23 items of child abuse material were identified as were eight cache files of child abuse material. Two videos are described each entailed sexual acts with very young children.

16. The Telegram account on the offender’s phone had seven child abuse material video files. Three are described. Each involves sexual acts with very young children.

17. The actions of the offender were for personal benefit and from which the offender derived sexual gratification. The offender indicated to police in his interview that he ‘hated’ masturbating using the images. He however admitted doing so ‘more than once or twice’. I disregard the offender’s claim to the psychologist that he was not sexually aroused by the material. I disregard the offender’s claim to the psychologist that he was attracted to older teenagers and not kids. Both are inconsistent with his clear responses to police. I do not consider he was in any sense cajoled into making false admissions. The manner in which it unfolded represents his denial and then ultimate acceptance of his depraved conduct with fear of being regarded as a monster.

18. I do acknowledge and accept the offender’s evidence that he initially discovered the material unintentionally although he then accessed it suspecting it would be child abuse material. He accepted he viewed some but not all of the files. He deleted some as he had no interest in those parts. That reflects he must have viewed what he chose to delete. I accept there was no sophistication to the storage.

19. The individual images that are described are not suggested to be representative. Some of the images described capture the physical pain and emotional trauma occasioned in obtaining the product. The relevant factors in assessing the seriousness of the offences include a consideration of the number of images, the period of time involved, the description of the images as to the nature of the act and the age of the child. In this case there is no indication of the number of victims although the descriptions reflect multiple victims and the volume infers a large number of discrete victims. I accept that generally possession or accessing for personal use is less serious than other explanations for possession, or access.

20. It is not possible to discern which files were viewed. The offences are based on accessing and possessing. As detailed in the facts, the images contained various sexual acts or sexualised conduct. Not all is as serious as some of those described. Those described in the facts represent what is seen in individual files. It is agreed between the parties that those described are within the worst images. They are not suggested to be representative. As there has been no classification of the child abuse material there can be no definitive assessment of the bulk of the files.

21. The possession offence is limited to the date of discovery. The accessing offence covers almost 2 years, from March 2022 until discovery in January 2024. Each offence is to be reviewed as occurring in the context of the other offending and with an understanding that the involvement in illicit images was not brief.

22. The access offence is based on 8067 separate files. The possess offence is based on 326 child abuse material videos, involving only some of the material accessed, being the 7 videos located on the phone and accessed via Telegram and the 319 videos associated with the ‘sloan and suffix’ cloud account.

23. The Crown submitted the access offence fell towards the mid-range of objective seriousness and the possess offence fell in the low-medium level of objective seriousness. It was submitted on behalf of the offender in written submissions that each offence fell towards the low end of the mid-range of objective seriousness. In oral submissions the possess offence was described as falling in the lower category than the access offence.

24. I consider each offence is a serious example of the offence provision. Given the volume of material and the circumstances of the offence, the accessing offence is more serious. Given the different submissions advanced, for transparency rather than necessity, I shall adopt the same terminology. I accept the offender’s description.

25. The offender is now aged 26. He started accessing child abuse material in March 2022, when he was aged 23. I accept that given his age rehabilitation is to be regarded as a matter of some significance. I do not consider that this offending reflects immaturity. He is described as socially awkward with few friends. He saw a psychiatrist prior to this offending after a relationship ended. He was diagnosed with a social anxiety disorder and depression. He was prescribed medication which he unilaterally ceased.

26. He commenced a relationship with his current partner after this time. There is no indication as to whether he manifested the condition during this period or whether it abated upon starting a new relationship, and one which resulted in a pregnancy soon after. I appreciate the psychologist opines it is still evident. Although there is some imprecision, the relationship appears to have commenced prior to the start of accessing child abuse material. At the least, the two are temporally close.

27. The offender was a person of prior good character. Although good character is held to have limited significance in this type of offending, this record entitles him to some leniency. He also has a good work ethic with only limited periods of unemployment. I note he is working as a sweeper in custody.

28. The offender has undertaken programs in custody. None are specific to the index offending.

29. The offender is supported by letters from his grandfather, his stepfather, a family friend, his uncle, his great-aunt and his mother. There are views expressed that this offending is uncharacteristic and it is believed the offender has learnt his lesson from being arrested. Some relatives attended court to demonstrate their support. The offender gave evidence he was concerned this support may not continue upon release. It may be difficult to predict but the terms of the correspondence do suggest enduring support.

30. The offender has provided direct and hearsay expressions of his remorse.

31. When asked about remorse, the offender gave evidence that he was disgusted in himself. He referred to the shame brought upon his family and the negative impact to them. He did not address the harm occasioned to the untold number of victims used to make the images he accessed and possessed. This should be the focus of his remorse for his offending. I do not accept the offender has insight into the consequences of his conduct.

32. The psychologist stated the offender expressed guilt, remorse and contrition. It is not documented what was said so it is impossible to evaluate these sentiments. Significantly, these expressed sentiments are in the context of the offender seeking to resile from both the facts and his acceptance of a sexual interest in young children.

33. The offender’s step-father indicated he believed the offender to be ashamed and remorseful. He based this on not what was said but how it was said. It is not indicated what was said. The offender’s mother reported the offender was sorry for the pain he caused. This is not clearly referrable to the pain to the victims of the child abuse material as opposed to the impact on his family.

34. The fulsomeness of the expressions of remorse is likely informed by the limited insight into the real harm occasioned by his conduct.

35. The offender's subjective case is supported by his evidence, references and psychological opinion. The offender experienced no particular disadvantage as a child. He was raised in a pro-social environment. He had and still has considerable support in the community. Residing with his partner did not prevent the offending.

36. The psychologist administered tests from which it is opined the offender has ‘potential’ at a moderate level for emotional or behavioural problems of clinical significance and also for impulsivity and compulsivity consistent with ADHD. I observe the offender was engaged in accessing the material for close to two years, reflecting more engagement than would be described as impulsive. Nor is it suggested his access was compulsive. His elevated emotional responses whilst in custody and with sentencing pending is not at all surprising. The psychologist based his opinion on the material before him. This included a denial of sexual attraction to children. The continued interest exhibited in child abuse material by the offender compellingly supports the sexual interest.

37. The offender maintains he retains the support of his partner. She did not write to the Court or attend the Court to demonstrate this continuing support. It is not suggested that there is anything other than anticipated impact occasioned to her based on the offender’s incarceration. She made a personal choice to avoid being a single parent to two children. I take into account that both his partner and his daughter will be deprived of his financial and emotional support whilst he remains incarcerated. The offender is supported by numerous letters of support from family members. Most regard the offending as a ‘surprise’ and inconsistent with what they know of the offender. There is continued support for him in custody and upon release.

38. I do not determine there to be a causal connection between the offender’s mental health and the offending. Although there is evidence that the offender was of limited intellect, he was educated in mainstream schooling and completed part of a trade qualification. There has been no formal testing and nor is there a suggestion of other than mild limitation. There is nothing that supports a lessening of moral culpability.

39. The psychologist’s opinion is that ‘conceptually, the offender falls in the moderate - low risk of reoffending.’ His opinion is that this assessment is overstated as the offending was conducted online. The ultimate opinion offered is that the offender falls to be described as ‘positioned in the non-recidivist proportion of the low-risk category’. The psychologist also suggested treatment was required but only for his social anxiety disorder and depression. There is no proposed treatment to target causative factors informing the offending. No doubt the low risk assessment informs this attitude. The comment of exploring the offender’s psychosexual makeup is not amplified.

40. Given the attempt to downplay the sexual interest, and the manner in which that sexual interest was demonstrated, I am concerned whether the offender has truly gained insight into the offences and the causes of the offending. Personal deterrence has a continuing role to play. There should be some endeavour to explore the motivations for his offending to limit any reoffending. I do not share the psychologist’s optimistic opinion. I do accept the discovery of his offending and the shame he has experienced, compounded by incarceration, should serve to scare him from reoffending. The offender gave evidence he has learnt his lesson and has no plans to reoffend. He indicated he hoped to better himself. At this stage, his prospects of not reoffending are reasonable. True rehabilitation would be fostered by grappling with his offence motivations.

41. I am mindful of the need to ensure adequate punishment. General deterrence and denunciation are important sentencing considerations in these types of offences. These offences are committed in private and are difficult to detect. I do not regard the offender’s mental health issues to lessen the significance.

42. The offences inherently exploit and harm children. The offender, through accessing the material, performed a role in sustaining this insidious industry.

43. Treatment is suggested and the offender is committed to undertaking what is suggested. This treatment is in relation to issues pre-existing the offending and not causally connected to it. What would best address rehabilitation is an important consideration on sentence. Treatment focussed on criminogenic factors may commence in custody but is more likely to be addressed once released into the community and guided by a condition of release.

44. There is no challenge that a full-time term of imprisonment was required. Having considered all other available options, I am satisfied that no sentence other than full-time imprisonment is appropriate. Sentence will commence from the date of arrest, 16 January 2024.

45. I am assisted by suggested comparable cases provided by both parties. They reflect a range of sentencing outcomes informed by findings on objective seriousness and the strength of subjective material.

46. The offender submitted there was considerable overlap in the offending supporting concurrency or minimal accumulation. The Crown submitted on the different elements of each offence and there being discrete criminality reflected by those elements. This supported the submission for slight accumulation. There is a requirement for a very limited degree of accumulation between the two offences given the additional and separate criminality. The sentence for one offence would not encapsulate the criminality of the other offence.

47. The offender is convicted on both offences.

48. I propose to impose an aggregate sentence. The indicative sentences are:

1. on the access offence - 3 years imprisonment; and

2. on the possession offence - 18 months imprisonment.

49. The sentence imposed is one of 3 years and 2 months imprisonment to date from 16 January 2024 with a non-parole period of 1 year and 10 months. The offender will be eligible for release to parole on 15 November 2025.

50. The Crown made an application for forfeiture of the seized phone. The offender consented to the making of the order. I make the order set out in the forfeiture documentation.

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Decision last updated: 10 December 2024