R v Tham

[2017] NSWDC 40

District Court

New South Wales

Medium Neutral Citation:

R v Tham [2017] NSWDC 40

Hearing dates:

27 January 2017

Date of orders:

27 January 2017

Decision date:

27 January 2017

Jurisdiction:

Criminal

Before:

Berman SC DCJ

Decision:

For the Commonwealth offence of using a carriage service to access child pornography I impose a fixed term of imprisonment of 18 months.

 

For the State offence of possessing child abuse material I impose a non-parole period of 18 months with a head sentence of three years.

 I order that the various items referred to in the forfeiture order are to be forfeited to the Commonwealth.

Catchwords:

CRIMINAL LAW – Sentence – Commonwealth and state offences – Use carriage service to access child pornography – Possess child abuse material – Offender a victim of sexual assault

Category:

Sentence

Parties:

The Crown
Nicholas Tham

Representation:

Counsel:
Mr J Tyler-Stott - The offender

  Solicitors:
Director of Public Prosecutions (Cth) – The Crown

File Number(s):

2015/28044

SENTENCE

1. HIS HONOUR: One of the puzzling features that offences involving child pornography present is this:, how can a person gain sexual gratification whilst what he or she is watching a child being harmed?. Yet, as is distressingly commonly the case, that is precisely what many people, usually men, in the community experience as they see children engaged in sexual activity, even sexual activity involving bestiality and sadism.

2. In the present case the offender Nicholas Tham accessed and possessed and viewed child pornography for at least two years, fooling himself that the children involved in the production of the material were not real people but were merely two dimensional objects. Through this means he says he was able to reconcile what he clearly understood to be his illegal activities. He himself was the victim of sexual abuse as a child. One of the harms that sexual abuse causes to children comes from the fact that children often gain physical enjoyment from the abuse perpetrated upon them. That appears to have happened in Mr Tham’s case, something which has caused him guilt and confusion in his later years. Thus the offender had a greater difficulty than most in appreciating the harm which was being caused to the children depicted in child pornography he was accessing, possessing and viewing. That is a significant matter in determining the appropriate sentence which I will impose in the present case.

3. The offender’s IP address was identified by investigators as being used to access a particular form of peer-to-peer file sharing software used for the sharing and trading of child pornography. Thus on 29 January 2015 both Commonwealth and State police officers went to the offender’s address. They searched his premises and discovered a large number of storage media as well as four bottles of steroids. An investigation of the various storage media revealed that there were more than 100,000 files and articles of child pornography material. It is the unfortunate task of many police officers to have to view such material and categorise it for…