R v Tomlinson

[2022] NSWDC 220

District Court

New South Wales

Medium Neutral Citation:

R v Tomlinson [2022] NSWDC 220

Hearing dates:

29 March 2022

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

At [126]-[127].

Catchwords:

CRIME – Sentence – Commonwealth offence - s 474.22(1) of the Criminal Code (Cth) – Using a carriage service to access child abuse material – Previous offence – Registrable person – Mandatory minimum sentence – Bugmy principles

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Migration Act 1858 (Cth)

Cases Cited:

Bahar v R (2011) 45 WAR 100

Bugmy v The Queen (2013) 249 CLR 571

DPP v D’Alessandro [2010] VSCA 60

Dui Kol v R [2015] NSWCCA 150

Heathcote (a pseudonym) v The Queen [2014] VSCA 35

Hong v R [2017] NSWCCA 238

Ingrey v R [2016] NSWCCA 31

Magaming v The Queen [2013] 252 CLR 381

Minehan v The Queen [2010] NSWCCA 140

R v Callaghan [2006] NSWCCA 58

R v Delzotto [2021] NSWDC 325

R v Gent [2005] NSWCCA 370

R v Glasheen [2021] NSWDC 544

R v Hurt (No 2) [2021] ACTSC 241

R v Hutchinson [2018] NSWCCA 152

R v Large [2021] NSWDC 429

R v McCall [2022] NSWDC 78

Texts Cited:

Bugmy Bar Book

Category:

Sentence

Parties:

Crown
Kyle Tomlinson

Representation:

D Berents
N Breward

Solicitors:
Commonwealth Solicitor for Public Prosecutions
Aboriginal Legal Service NSW

File Number(s):

2020/00225790

Publication restriction:

Nil

Judgment

1. Kyle Tomlinson appears for sentence with respect to one count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth). That offence carries a maximum penalty of 15 years’ imprisonment and, because the offender has a previous conviction for a child abuse offence, a minimum penalty of 4 years’ imprisonment is mandated. I will return to the specifics of that requirement later in these Remarks.

2. The offender was committed for sentence on 6 July 2021 from Grafton Local Court and was due to be sentenced in the February/ March 2022 Grafton sittings before me. The flood situation during those sittings meant that the matter ultimately was adjourned and came before me for a sentence hearing on 29 March 2022, while I was sitting in the Sydney District Court.

AGREED FACTS

3. Agreed Facts have been tendered. The offender was born on 12 December 1990 and was 29 years of age at the time of the offending.

4. The Agreed Facts indicate that by reason of prior convictions in 2019 for indecent assault on a person under the age of 16 years and an aggravated act of indecency, the offender accordingly was a “registrable person” as per the Child Protection (Offenders Registration) Act 2000 (NSW).

5. The registration requirements include ongoing reporting obligations whereby a registrable person is required to provide to police relevant personal information including the identification of telephone and internet service providers, email addresses, and details of social network and messaging services which are accessed as well as the provision of usernames utilised by the registrable person. The obligations are continuing and impose a requirement that any change in relevant personal information is to be reported to the Crime Manager or relevant delegated person.

6. On 3 August 2020 at approximately 11:40am, police attended the offender’s residence at 13 Bacon St, Grafton for the purpose of conducting an authorised inspection pursuant to s 16C of the Child Protection (Offenders Registration) Act 2000 (NSW). That provision allows police officers, without prior notice, to enter and inspect the residential premises of a registrable person for the purpose of verifying any relevant personal information reported by the registrable person pursuant to section 9 of the Act.

7. The Agreed Facts recite that an unidentified male answered the door. DSC McLeod introduced himself and asked, “Is Kyle about?” The offender presented himself to the door shortly thereafter. DSC McLeod introduced himself and explained the purpose of the visit. The offender came out of the house and sat on a chair on the veranda. DSC McLeod began to read and explain the relevant form to the offender. PCSC Waddell observed the offender to activate and begin using his mobile phone, holding it against his chest to block the view of the police officers. DSC McLeod also observed the offender’s demeanour change and noticed the offender starting to fidget and play with his mobile phone.

8. DSC McLeod asked the offender for his consent to inspect the phone saying, “If you’re happy for us to look at your phone, just give it to my offsider here and he will have a quick look.” The offender handed the mobile phone to PCSC Waddell. The phone was unlocked. PCSC Waddell opened the Google application for the purpose of verifying the offender’s email address on the Form 4 which had been given as [email protected].

9. When the officer opened the Google application, he saw an image of a pre-pubescent female with an adult male penis inserted into her mouth. PCSC Waddell estimated the age of the girl depicted in the image as between 6 and 9 years old. PCSC Waddell observed this image to be amongst a stream of similar images from the website XXXPUKKA.COM.

10. PCSC Waddell showed the images to DSC McLeod who arrested and cautioned the offender. The offender was conveyed to Grafton Police Station. The offender declined to participate in a record of interview.

11. PCSC Waddell took a series of photographs of images depicted on the offender’s mobile phone. The mobile phone was, in due course, entered into the NSW Police EFIMS with the exhibit number X000364886 and conveyed to Coffs Harbour Police Station for examination.

12. The following day, on 4 August 2020, the offender’s mobile phone was examined by a relevant qualified expert, and a Cellebrite extraction report, being a download of the memory contained on the mobile phone, was placed onto a USB.

13. On 6 April 2021, a further Cellebrite Exaction report was produced which identified relevant file paths, web history, and search terms which had been entered into the smart phone.

14. A subscriber check was conducted on mobile service ending 274, which was the nominated service on the offender’s form 4. This confirmed that the subscriber was, indeed, the offender’s sister-in-law, who in due course, confirmed that she had obtained the mobile phone for him.

15. Material of the type found on the offender’s phone is categorised by police, pursuant to the Interpol Baseline Categorisation System. It was categorised as belonging to either Baseline Category 1 or Baseline Category 2.

16. Material falling into Baseline Category 1 involves images depicting a real pubescent child, and the child is involved in a sex act, witnessing a sex act, or the material is focused or concentrated on the anal or genital region of the child.

17. Material falling into Baseline Category 2 is described as:

“Other child abuse material that is illegal within New South Wales but do not fit within the Interpol Baseline Category One. That is material that is not including within category one and such material includes a person who is, appears to be, or is implied to be a child and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive who:

- Is a victim of torture, cruelty or physical abuse, or

- Is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or

- Is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or

- Is exposing the genital area or anal area or breasts of a female child.”

18. 539 images were found on the offender’s phone constituting child abuse material. 419 of those images were categorised as falling into Category 1. 120 images were categorised as falling into Category 2.

19. Descriptions of a sample of those images was provided as Annexure A to the Agreed Facts. It suffices to observe that the images involve children as young as one or even less and the depiction of adult males committing sex acts with or upon both male and female children were included in those images.

20. The file paths in which the images were located and the offender’s web history were provided, which indicated that the offender accessed webpages from the website xxxpukka.com between 11pm and 11:30pm on 2 August 2020.

21. An analysis of the offender’s web history also indicated that between 2 August and 3 August 2020, the offender searched for or selected a range of search terms including “kids fucking”, “nudist kids”, “youngest kids”, “9yo little girl naked” and “11yrs old pussy fucking.” The offender also accessed websites with titles that included “Little Teen Cock: Free Gay Teens Porn Video 2a”, “Toddler Girl Sex Education”, “Teeny Fucks Her Pussy With A Lollypop” and “Junior Young 12 Year Girl Boy Sex”.

CRIMINAL HISTORY

22. I turn now to the offender’s past criminal history. The offender’s first interaction with the courts was at Grafton Children’s Court in 2007 where he was fined for a damage/destroy property committed in October 2006.

23. On 9 March 2009, he was fined at Grafton Local Court for refusing or failing to comply with a direction under Part 14.

24. On 4 May 2009, he was sentenced to three 12-month section 9 bonds with supervision for two offences of common assault and a destroy/ damage property committed in February 2009. He also received a section 10A conviction with no other penalty for a behave in an offensive manner in/near a public place or school. Also on that date, 4 May 2009, he was fined for a destroy/damage property, which had been committed in April 2009.

25. On 18 January 2010, the three s 9 bonds which had been imposed for a period of 12 months on 4 May 2009 were called up at Grafton Local Court. The offender was before the court in relation to a common assault, which had been committed on 27 July 2009. With respect to that offence, he was sentenced to six months imprisonment to date from 23 September 2009. With respect to the breach of the bonds, he was sentenced to ten months imprisonment, with a non-parole period of five months, to date from the same date, 23 September 2009. The terms of imprisonment were to expire on 22 July 2010, and the non-parole period was to expire on 22 February 2010.

26. A further series of four offences of two common assaults, possess prohibited drug, and assault occasioning actual bodily harm were also dealt with that day, that is 18 January 2010 at Grafton Local Court. With respect to those offences, he was sentenced to six months imprisonment, with respect to the two counts of common assault, also to date from 23 September 2009. He was fined in relation to the possession of prohibited drugs, and he was given 12 months with a non-parole period of six months with respect to the assault occasioning actual bodily harm. That sentence was backdated to 23 June 2009, and was to expire, that is, the head sentence was to expire on 22 June 2010.

27. On 21 January 2013, the offender was fined at Grafton Local Court for a destroy/damage property offence committed in October 2012. Also on this date, the offender was fined for a never licensed person drive vehicle on road, described as a first offence, committed in November 2012.

28. The offender’s first appearance in the District Court was on 3 September 2015 at Grafton District Court where he was dealt with for one count of aggravated break and enter and commit serious indictable offence with a charge of assault occasioning actual bodily harm placed on a Form 1. The offences took place on 4 August 2013 and he had been charged the following day. The offender was sentenced to 14 months imprisonment, which was suspended pursuant to section 12. That sentence was to date from 3 September 2015, and the bond was to expire on 2 November 2016.

29. On 7 August 2017, he was sentenced at Grafton Local Court to a s 10A conviction with no further penalty for a yet further offence of destroy or damage property, which had been committed in April 2017. On the same date, he was sentenced to a fixed term of six months imprisonment for stalking or intimidating, and a further offence of destroy or damage property, which had been committed on 7 June 2017. Those fixed terms commenced on 12 June 2017. A severity appeal against those terms of imprisonment was dismissed on 17 November 2017 at Grafton District Court.

30. On 7 August 2017, that is, the same day at Grafton Local Court, there were further offences of common assault related to domestic violence, and stalk or intimidate, also domestic violence related, which had been committed on the same day as the earlier offences to which I referred, namely 12 June 2017. He was sentenced to 15 months with a non-parole period of eight months with respect to those offences, and in due course, a severity appeal was similarly dismissed in November 2017.

31. Between 1 June 2018 and 17 June 2018, the offender committed offences of indecent assault on a person under 16 years of age, and an aggravated act of indecency where the victim was under 16 and under the authority of the offender. He was charged in July 2018, and in due course, sentenced on 16 April 2019 at Grafton Local Court to two years imprisonment with a non-parole period of 12 months for the indecent assault, and a fixed term of eight months for the aggravated act of indecency. Both terms dates from 16 April 2019, that is, the date that they were imposed, with the non-parole period for the indecent assault to expire on 15 April 2020, and the balance of term to expire on 15 April 2021.

32. An all grounds appeal was pursued in relation to those matters, and on 31 May 2019, the appeals were dismissed and the orders for the sentences were confirmed at Grafton District Court.

33. The offence before me was committed on 2 and 3 August, and the offender accordingly was on parole with respect to those earlier offences of indecent assault on a person under 16, at the time that he committed the present offence.

34. The Crown Bundle on sentence includes the remarks on sentence of Magistrate Stafford at Grafton Local Court with respect to these prior offences of indecent assault on a person under 16 and an act of aggravated indecency. Those remarks note that the offender’s natural son was the victim of the offences and that the victim was aged 11 at the time of the offences. It is to be noted in passing that the offender was also on parole at the time that he committed those offences.

35. While those matters were pending, the offender had been dealt with at Grafton Local Court on 21 January 2019 by way of fines for offences of drive never licensed and also driving with an illicit drug present in blood committed on 29 September 2018.

36. On 19 July 2021, the offender was sentenced with respect to two charges of possess or use a prohibited weapon without permit committed on 5 August 2020. He was sentenced to community corrections orders with supervision for 18 months commencing 19 July 2021 and expiring on 18 July 2023. These offences were committed days after the offence presently before the court and accordingly do not aggravate the present offending.

APPLICABLE SENTENCING PRINCIPLES

37. I turn to applicable sentencing principles. The Court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) and the non-exhaustive list of matters set out in s 16A(2). A sentence must be imposed which is of a severity appropriate in all the circumstances of the offence: s 16A(1).

38. It is well-established, as set out in the Crown’s written submissions and the authorities referred to therein, that general deterrence is the primary sentencing consideration for offending involving child abuse given the prevalence of child abuse material on the internet and the need to protect children from such abuse.

39. Offending involving child abuse material has become increasingly prevalent as the internet allows persons to access and obtain such material. In R v Gent [2005] NSWCCA 370, the Court held at [66] that the ready availability of child pornography was “a further factor pointing to the significance of general deterrence on sentence.” Such offending is difficult to detect (R v Mouscas [2008] NSWCCA 181 at [31]) and creates a market for the continued exploitation of children (Heathcote (a pseudonym) v The Queen [2014] VSCA 35 at [40] quoting DPP v D’Alessandro [2010] VSCA 60 at [21]).

40. OBJECTIVE SERIOUSNESS

41. The court is required in determining objective seriousness to consider the nature and circumstances of the offending: s 16A(2)(a) Crimes Act (Cth). In an assessment of objective seriousness, the court is to consider the well-established factors set out in Minehan v The Queen [2010] NSWCCA 140. Those factors are set out at [94] 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.

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 or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

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

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

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

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

42. These principles were affirmed in R v Hutchinson [2018] NSWCCA 152 at [45].

43. In the present matter, the offender accessed 539 images of child abuse material. While offending pursuant to this provision can, and often does, involve thousands of images, this is a significant number of images.

44. The Crown notes in its written submissions that this sequence is a “rolled up” count involving more than one separate instance of offending, each of which could constitute separate offences. The defence concedes that this increases the criminality but notes that the separate instances of access span only a comparatively short time. It is accepted that the two instances of access were less than an hour apart.

45. I agree with the Crown submission that the nature and content of the material is highly depraved. It involved children as young, or younger than, one year old. The material includes images of children engaged in sex acts with adults including penetrative and oral sex. Actual children were used in the creation of the material and there are multiple child victims depicted. The Crown correctly points to the search terms used by the offender as indicating that he intentionally accessed material of such a level of depravity with search terms such as “kids fucking” and accessing websites with “toddler” in the title.

46. The defence argues that whilst the material was accessed intentionally, there was little sophistication or organisation involved. So much so is correct.

42. The defence notes that the material was not accessed for further dissemination or sale and that the offender did not stand to profit from the offence. There is no evidence to contradict this submission.

43. The defence ultimately submitted that the offending falls “in the low range but is heading toward the mid-range of objective seriousness.” In my view, it does fall within the mid-range of objective seriousness, albeit, towards the lower end.

APPLICABLE PRINCIPLES – MANDATORY MINIMUMS

49. I turn to applicable principles relating to mandatory minimums, or mandatory minimum sentences. In its written submissions, the Crown points to the maximum penalty of 15 years imprisonment as indicating Parliament’s view as to the seriousness of such offending. The Crown also referred to the mandatory minimum sentence of 4 years that applies by virtue of this being a second child sexual abuse offence. The amendment to the sentencing regime introducing mandatory minimum penalties was introduced in June 2020. The explanatory memorandum accompanying the proposed legislation stated (at Clause 40):

“The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the Courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of the offences and ensure that the community is protected from child sex offences. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further sexual abuse of children.”

50. The newly introduced amendments specifying the minimum penalty specifically provided for reduction of that minimum penalty of a period of up to 25% following a plea of guilty from the relevant minimum period specified, in the present case 4 years: s 16AAC(2)(a) Crimes Act (Cth).

51. There is disagreement, both judicially and between the parties in these proceedings, as to when a sentencing judge can go below the floor said to be established by the specified minimum term. The Crown in the present matter argues that the minimum penalty is for offences in the least serious category of offending, and in doing so, urges the Court to apply the principles set out by the Western Australian Supreme Court in Bahar v R (2011) 45 WAR 100.

52. The defence disagrees, and argues that the Court should adopt the position that his Honour Judge Grant of the District Court in New South Wales adopted in R v Delzotto [2021] NSWDC 325.

53. The case of Bahar v R involved three persons appealing their convictions for facilitating the bringing of a group of 50 Afghani and Iranian people into Australia, contrary to the provisions of s 232(a) of the Migration Act 1858. The Crown appealed against the sentence of five years with a non-parole period of three years imposed by the sentencing judge, on the basis that the sentencing judge had erred in the application of the mandatory penalty provision, contained in s 233(c) of the Migration Act. Section 233(c) relevantly provided that a Court must impose a sentence of imprisonment of at least eight years for a repeat offence, and five years in any other case, and a non-parole period of five years for a repeat offence, and three years in any other case. At para 55, the Court rejected the Crown’s suggestion that, “The mandatory minimum is for a low-level offence, in which all mitigating factors are present.” The Court held at [55]:

“First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise 'category' of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the 'bottom line') is not dictated by the presence or absence of one or more mitigating factors.”

54. At [58], the court held:

“Where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate.”

55. This approach to mandatory minimum sentences has been followed in a number of cases referred to in the Crown’s written submissions at [16]. Indeed the Crown relies on the observation of the majority in Magaming v The Queen [2013] 252 CLR 381 at [48] that “the prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.”

56. The approach taken in Bahar was expressly disagreed with in obiter by Justices Adams and McCallum, in separate judgments that they delivered in Dui Kol v R [2015] NSWCCA 150, however despite their Honours disagreement with the reasoning in Bahar, their Honours consider themselves bound to adopt the Bahar approach in that particular matter, see paragraphs 11 and 27. I note, of course, that Dui Kol was a case involving s 233(c) of the Migration Act.

57. The approach which had been taken in Bahar was expressly not followed, and indeed, distinguished on the basis of a detailed statutory construction by his Honour Judge Grant of the NSWDC in R v Delzotto [2021] NSWDC 235.

58. His Honour Judge Grant distinguished s 233C of the Migration Act, which of course was the provision dealt with in Bahar, from s 16AAA and 16AAB of the Crimes Act 1914 (Cth). His Honour held at [33]-[34]:

“…The legislation does not relevantly provide that the statutory minimum sentences create a predetermined basepoint from which sentences are to be imposed, nor does it provide that the minimum sentence is to apply only to cases falling at the lowest end of the spectrum of seriousness.

[34] Section 16AAB must be read as far as possible consistently and harmoniously with a requirement under s 16A(1) to impose a sentence that is of severity appropriate to all the circumstances, having regard to the mandatory considerations set out in s 16A(2). There is no logical imperative that requires the minimum penalty to be imposed for cases falling at the bottom end of the spectrum. There is nothing in the text of the legislation that says so, nor does it find any support in the explanatory memorandum.”

59. I note that the reasoning of his Honour Judge Grant was followed by Judge Montgomery SC in R v Large [2021] NSWDC 429, and was said to have been followed by her Honour Judge Robinson in R v Glasheen [2021] NSWDC 544. Her Honour Judge Robinson, however, did not allow the full discount that she thought applicable, because she commenced with a head sentence slightly above the minimum floor of four years.

60. I note that in R v Hurt (No 2) [2021] ACTSC 241, Justice Mossop in the Supreme Court of the ACT following a detailed and careful analysis of the competing positions, was not satisfied that the approach identified in Bahar was correct. His Honour, however, describing it as an unsatisfactory position considered that he was obliged to follow that decision. His Honour explained that such an unsatisfactory position had been reached for eight reasons which he set out at length at [77]-[91] of that judgment.

61. The Crown in these present proceedings drew the Court’s attention to the case of R v McCall [2022] NSWDC 78. That is a decision of his Honour Judge Haesler SC, on 24 March this year. Judge Haesler agreed in turns with the analysis by Justice Mossop, but came to the view that he, as Justice Mossop has found, was obliged to follow the determination of an intermediate appellate court, namely the decision of the Western Australian Supreme Court in Bahar, notwithstanding his Honour’s view that the reasoning of his Honour Judge Grant was correct, his Honour Judge Haesler said the mandatory minimum dictated the seriousness of the offence for the purposes of s 16(a) of the Crimes Act1900, and “set the floor and ceiling respectively, within which the judge has a sentencing discretion to which the general principles are to be applied: Bahar at [55].”

62. Haesler SC DCJ stated at [50]:

“If Parliament chooses to place a duty on the court to impose a specific punishment, the court must obey the relevant statute, assuming it is valid: Magaming. The High Court in Magaming rejected the submission mandatory minimums were “arbitrary and non-judicial” punishments:

“It is also well-established that legislation does not impermissibly interfere with the exercise of Chapter III power simply because it curtails, or even removes entirely the Court’s sentencing discretion”: Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49.”

63. Haesler SC DCJ stated at [53]-[55]:

“[53] Judge Grant was also correct to note that as the new Crime Act (Cth) provisions differ from those in the Migration Act and that where two alternative constructions of legislation are open that which is consonant with the common law is preferred: Delozotto at [31] to [33]; Balog v ICAC (1990) 169 CLR 625 at 635 to 636. That is obvious but, respectfully, the import of both Acts is the same. I cannot accept His Honour’s proposition that the construction of the provisions of the Migration Act by intermediate appellant courts is not binding on this Court.

[54] Bahar is authoritative in relation to the operation of the mandatory sentencing provisions of the Migration Act (Cth). It is abundantly clear that the new Crimes Act (Cth) provisions came after and were drafted in response to what fell from the Western Australian Court of Appeal in Bahar. A process of reasoning accepted by the NSW CCA in Karim and others. The legislature accordingly must be taken to have understood that the provisions of ss 16AAA-16AAC would need to be read with s 16A Crimes Act(Cth) so as to create a coherent whole, rather than having the mandatory minimum sentence provisions read in a manner which was not consistent with the unqualified terms of s 16A: Hurt at [71].

[55] While obviously the legislation is different, the relevant statutory command; that is, to impose a sentence of “at least” a specified number of years, is the same in the Crimes Act (Cth) as it is in the Migration Act (Cth): Hurt at [94].”

64. In a decision I handed down on 3 December 2021 in the matter of Andrew Pendlebury, which involved a charge of using a carriage service to groom a child, I indicated in my remarks in those proceedings the following:

“For the reasons which result in my determination that the present offending falls within the least serious category of offences relating to grooming, it is not strictly necessary that I determine the different statutory interpretations in the competing authorities, that is because I have found that the offending fell to the lowest end.”

65. I commenced with a sentence of four years, which I then applied a 25% discount to. I went on to say that although it was not necessary for me to do so, that if required, I would follow the decision of Judge Grant for the reasons which his Honour set out in Delzotto. I had analysed the reasoning of Justice Mossop in Hurt, and I had, in my consideration in the matter of Pendlebury declined to follow the sentencing judge in the Supreme Court of the ACT.   

66. I have subsequently, of course, been provided with the remarks of his Honour Judge Haesler, to which I have made considerable reference in the matter of McCall. I am ultimately persuaded by the reasoning of his Honour Judge Haesler, who did follow Justice Mossop, that although there is persuasive force in the dictum of Justices Adams and McCallum in Dui Kol, and also in Judge Grant’s reasoning in Delzotto, as his Honour Judge Haesler set out at paragraph 58 in his remarks in McCall, I respectfully agree with his Honour’s conclusion at paragraph 59 in McCall, where Judge Haesler said this, commencing at the end of paragraph 58, “The new sections create ambiguities, and they are inconsistent with other sentencing practices such as aggregate sentences.” His Honour continued, and I specifically agree with this:

“I can only trust that appellate courts will recognise the force of the criticism of the present approach, and reverse it. Until then, I must apply law and principle, and the most important principle is obedience to precedent and the decisions of courts higher in the hierarchy. Judges at first instance must however, apply a certain principle, and should do so consistently.”

67. Accordingly, I have come to a contrary view to that, which I expressed in Pendlebury, and I have come to the view that should Bahar not be followed in relation to provisions such as those with which I am presently dealing, it is a matter for the Court of Criminal Appeal, and not for a judge at first instance in this jurisdiction to so determine.

SUBJECTIVE MATERIAL

68. I turn to the question of subjective material. A Defence Tender Bundle was tendered on sentence which included a report from Mr Patrick Sheehan, psychologist, dated 20 December 2021.

69. Under the heading “Behavioural Observations”, Mr Sheehan described Mr Tomlinson as a 31-year-old Aboriginal Australian man who was “not an expansive communicator.” Mr Sheehan noted the offender’s flat and depressed affect, noting that the offender was tearful throughout the interview and reported persistent suicidal ideation with the intent to take his life upon release from custody.

70. The following family and developmental history was taken. The offender was born in Grafton and raised in various locations along the north-east coast of NSW. His father is an Aboriginal man of the Bundjalung people while his mother is Anglo-Australian. He was born to a “one-night-stand” between his parents and was raised by his mother. He did not meet his biological father until the age of 14 years. He had a stepfather in his life until the age of 10 years with whom he had a favourable relationship but who was violent towards the offender’s mother. He recalls early memories of hearing his mother suffering abuse at the hands of his stepfather. He is the fifth of six boys who are half-brothers. His mother and stepfather separated when he was aged 10, and he was raised by his mother thereafter.

71. The offender was described, along with three of his brothers, as having serious behavioural disturbances from a young age. His older brother was incarcerated for attempted murder when the offender was 10 years of age and the offender recalls visiting his brother in gaol as a child.

72. The offender recounted being diagnosed with childhood Attention Deficit Hyperactivity Disorder (ADHD). He said his mother struggled to discipline the offender and set boundaries and “gave up” when the offender was 13-14 years old. The offender denied experiencing childhood sexual abuse and denied being neglected saying that his mother “did her best.”

73. The offender described moving from the family at the age of 14 and living on the streets for an extended period before finding stable accommodation. He described distancing himself from his family because he feels his behaviour is too erratic, saying “I just thought it was the right thing to do.” Mr Sheehan describes the offender as being tearful and distressed when he relayed this. The offender speaks with his mother once a week on the telephone but refuses visits, saying he is unable to cope with the emotion of close visits.

74. As mentioned earlier, the offender met his birth father at the age of 14. They did not develop the close relationship that the offender had hoped for, and his father, in due course, reportedly sought an apprehended violence order against Mr Tomlinson in 2018, after Mr Tomlinson had “pulled a gun” during a methylamphetamine induced state.

75. The offender’s older brother is described and reportedly the head figure of a violent gang in custody, which the offender stated has complicated his placement in custody, due to this deemed association.

76. In terms of the offender’s educational history, the offender reported a difficult experience of education. The offender attended mainstream schools but struggled and was expelled in the fourth grade due to violence and destruction of property. At this juncture, he was diagnosed with ADHD and prescribed medication. The offender reported suffering a reaction from the medication and his mother being reticent to accept the diagnosis. The offender then attended a behavioural school in Ballina but was suspended several times. He commenced home schooling with his mother but this was unsuccessful. The offender described having given up after commencing Year 7.

77. Mr Sheehan reported that the offender’s literacy remains poor and he struggles to comprehend written material. The offender has never obtained a drivers’ license.

78. The offender reported what was described as a “negligible employment history.” He apparently worked for State Forestry from the age of 16 which he enjoyed but resigned after assaulting another worker at age 18. He has not had legitimate employment since that time. The offender had held some institutional employment but became overwhelmed and unable to continue. With respect to future plans, the offender stated “I don’t really see a future. What’s the point?”

79. With respect to social relationships, the offender reported a history of behavioural problems predisposing him to finding antisocial peers. The offender described himself as a negative influence saying, “Any of my good friends, I corrupted them.”

80. The offender has never married but has a history of committed long term relationships with intimate partners. The offender denied to Mr Sheehan a history of violence towards his partners, although his criminal record, and in particular, the apprehended violence orders, destruction of property and various assaults would suggest otherwise.

81. The offender has a son who is now aged 14 years, from a six-year relationship during his teens. As noted earlier, that son was the victim of his prior recorded sexual offences, and they now have no contact.

82. A subsequent relationship lasted for 12 years and ended in 2018 or 2019. The offender reported having seven children from this relationship aged between 2 and 11 years. That relationship apparently ended when the offender entered custody in 2018 and the offender reported remaining on positive terms with his former partner, including having AVL visits with his former partner and children. The offender reported now finding this upsetting and limiting himself to two phone calls per week.

83. The offender said he commenced seeing another person prior to going into custody and stated that they speak by phone fortnightly. The offender was apparently equivocal as to whether this was a relationship saying, “It’s complicated.”

84. Mr Sheehan then indicates that he did not take a history of the offender’s sexual development “as my instructions were not to discuss his sexual offence convictions.”

85. The offender described a long history of substance abuse commencing from drinking and smoking cannabis at the age of 13 to 14 years. He described developing a tolerance that meant he smoked up to 15 grams of cannabis per day, smoking upon waking, and then all day. At age 20, in 2010, he started using MDMA on a daily basis, along with other stimulants on occasion. He commenced smoking methylamphetamine in 2015 to 2016, smoking quantities of up to 2 grams per day. He described that, while the state of mind drugs gave him was appealing, it worsened his impulsive and erratic behaviour. Upon smoking methylamphetamine, he described staying awake for extended periods, becoming agitated and “blacking out” and then “often returning to lucidity in the middle of aggressive acts.”

86. The offender also used non-prescribed buprenorphine in custody, and then relapsed to methylamphetamine upon release. The offender apparently did this during his most recent sentence and release, having been in the community for only four months before his arrest for the present offence.

68. The offender described that he made a conscious decision not to use drugs in custody since his admission in August 2020. The offender reportedly admitted to occasional use of non-prescribed methadone but denied the use of any substance for the seven months prior to the consultation with Mr Sheehan. The offender reported having never undertaken any drug or alcohol interventions and expressed reluctance to pursue such programs.

69. The offender reported a history of physical injuries sustained by reason of fighting, motor vehicle accidents and recklessness. The offender reported experiencing strong pain when he has a head knock saying “It feels a lot different than it used to.” The offender reported having otherwise stable health.

70. As mentioned earlier, the offender reported a childhood diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) which was treated with Ritalin. The offender described hair loss in reaction to the medication and said his mother ensured he did not continue with the medication.

71. Mr Sheehan reported that the offender described behaviour consistent with severe conduct disorder that was “likely comorbid with his ADHD.” The offender was prone to explosive and disinhibited anger. The offender was prescribed the antidepressant Mirtazapine at age 19 following the death of two friends in a short period and he took this medication throughout his twenties.

72. The offender described the onset of psychotic symptoms in his early to mid-20s which was described as being “associated with stimulant abuse and extended wakefulness.” The offender described hearing voices giving commands, seeing shadows, overwhelming social anxiety, and becoming extremely agitated and unable to settle himself.

73. The offender was prescribed the antipsychotic Quetiapine from his mid-20s. The offender reported being diagnosed with schizophrenia by a general practitioner.

74. The offender reported attempting suicide by medication overdose in 2017 and consequently requiring resuscitation. The offender said he was kept in a locked ward overnight but “trashed the room and demanded to be taken to gaol.” The offender denied any other history of psychiatric admission.

75. Mr Sheehan recorded the offender telling him that he was prescribed Mirtazapine and Quetiapine during his period of release in 2020 but that the medications were not continued upon his admission to custody. The offender reported that he approached Justice Health but felt dismissed and has not followed up.

76. The offender denied any psychotic symptoms in the year leading up to the interview with Mr Sheehan but did report a low mood with feelings of dread, hopelessness, pointlessness, worthlessness, excessive tearfulness, low motivation, anhedonia, poor sleep, and persistent suicidal ideation. The offender reported feeling this way for several years, feelings which were aggravated by his convictions for offences of a sexual nature. The offender reported that his plan was to end his life upon release to the community.

77. Mr Sheehan expressed the view that the evidence supports a diagnosis of Drug Induced Psychosis (in remission) and Major Depressive Disorder (moderate, unresolved). Mr Sheehan reported an urgent need for the offender to obtain help from Justice Health and Correctional psychology and reported that the offender assured him he would follow up those referrals after the interview. Mr Sheehan also reported that the offender’s history is consistent with a severe polysubstance use disorder that is in remission in a controlled environment, and that there are clear indicators of an Antisocial Personality Disorder having developed from severe early Conduct Disorder.

78. Mr Sheehan, however, could not comment on the presence of paraphilia as Mr Tomlinson’s sexual offending was not discussed. He again reported his instructions not to directly discuss the offences with Mr Tomlinson.

79. Mr Sheehan ultimately opined that:

“Mr Tomlinson presents with a history of early severe conduct disorder and ADHD, which undermined his learning and predisposed him to the company of other troubled peers. Through these problems he followed a trajectory into an adult antisocial profile, characterised by impulsivity, recklessness, aggressiveness and an inability to learn through consequences. His problems have been amplified by a serious polysubstance use disorder, which added to his lifestyle instability and created a platform for crime. He reports a long history of emotional dysregulation, being quick to emotional collapse or explosive and irrational outbursts. His psychological stability has also suffered through his substance abuse, particularly with stimulant abuse (including methylamphetamine), which would appear associated with onset of psychotic symptoms. There remains some ambiguity as to whether Mr Tomlinson’s symptoms have been purely an artefact of his stimulant abuse or whether there is a discreet psychotic disorder such has schizophrenia. However, the absence of psychosis whilst not using stimulants suggests the latter.”

99. With respect to drawing a link between the mental disorders and the offending conduct, Mr Sheehan observed:

“By definition, Mr Tomlinson’s constellation of disorders would certainly contribute to disordered behaviour and impaired decision making, leaving open the possibility of a nexus between his mental disorder and his offending behaviour. However, I am unable to draw a specific link, having not explored the offence dynamic with Mr Tomlinson.”

100. Mr Sheehan concluded:

“Mr Tomlinson presents as clinically depressed, with firm suicidal plans post release. The stigma of being convicted of child sex offences is part of what underpins his current depression, contributing to his feelings of humiliation and worthlessness. His condition is untreated. He requires timely assessment by Justice Health and a further layer of support through contact with corrections psychology. It will be important to stabilise his mental health both to arrest the potential for further decline and to prepare Mr Tomlinson to engage in a productive program pathway whilst in custody. He would benefit from engaging in adult education, with a view to improving his literacy. On a related point, formal assessment of Mr Tomlinson’s intellectual functioning would be helpful in determining whether any diagnosable disability is present. Mr Tomlinson will also require AOD program intervention to assist him with maintaining abstinence from drug use on release. Given this is Mr Tomlinson’s second conviction for sex offence matters, he should also be considered for suitability to participate in sex offender treatment programs, although his literacy deficits may be a barrier to this.”

101. The Defence Tender Bundle also included a number of summaries from the Bugmy Bar Book Project covering the topics of Exposure to Family Violence, Interrupted School Attendance and Multiple Suspensions, Unemployment, Homelessness, Social Exclusion, and COVID-19 Risks and Impacts for Prisoners and Communities. I should note, without detailing them that I have had regard to those summaries.

S 16A FACTORS – SUBJECTIVE MATERIAL

102. I turn now to s 16A factors of subjective material. A plea of guilty is a relevant consideration, pursuant to s 16A(2)(g). The offender pleaded guilty at the first reasonable opportunity in the Local Court. The Crown contends that this plea was made in the face of a strong Crown case while the defence points to the significant utilitarian value of the plea. For the reasons that I will turn to in due course, I propose to allow a 20% discount for the early plea of guilty.

103. The defence points to Mr Tomlinson providing his mobile phone to the officer in charge as an indication of some co-operation with law enforcement agencies: s 16A(2)(h). I should observe that I do not find this to be a particularly significant factor, given that the offender was a registrable person at the time, and was required to provide access to his phone and other electronic items, pursuant to the provisions of that legislation.

104. With respect to the offender’s family background, the defence submits that the matters raised in Mr Sheehan’s report, which I have gone into in some detail, constitute a deprived background for the purposes of Bugmy v The Queen (2013) 249 CLR 571 and Ingrey v R [2016] NSWCCA 31. I remind myself of the decision of the plurality in Bugmy that an offender’s deprived background may mitigate an otherwise appropriate sentence and that the “effects of profound childhood deprivation do not diminish with the passage of time and repeated offending” (Bugmy at [44]). In the present matter, I note the offender’s witnessing of domestic violence against his mother when he was a child and his experience of homelessness at age 14. I do find that Bugmy principles have some role to play in the instinctive synthesis which leads to a consideration of an overall sentence, and the fixing of an appropriate non‑parole period.

105. With respect to the impact of the diagnoses made by Mr Sheehan, I note that Mr Sheehan could not draw a concrete link between these diagnoses and the offending, because he did not explore the offence dynamic with the offender. Whilst he considered it may have been a possibility, while it does not mitigate the offender’s moral culpability, I do take the offender’s mental health history and his need for assistance into account in the instinctive synthesis which I am required to undertake.

106. The offender has a not inconsiderable criminal history, which I have detailed earlier in these remarks. This history, which includes, of course, offences of a similar nature, disentitles him to leniency and of course, brings into play the amendments to which I have made reference earlier in these remarks.

107. The Court must take into account the object of rehabilitating the offender when sentencing for a Commonwealth child sex offence: s 16A(2AAA). The Crown submits that this criminal history must necessarily lead the Court to conclude that the offender has poor prospects of rehabilitation. It is submitted that the offender has prior convictions for contact child sexual abuse offences, which demonstrate a clear sexual interest in children, and that there is nothing to suggest that he does not remain sexually attracted to child abuse material, and hence, would not reoffend. I agree with these submissions, and I observe that it is unfortunate that the offender did not discuss the offences with Mr Sheehan, as this may have provided the court with some further and additional relevant information in this regard.

108. Both general and specific deterrence loom large in the present matter. General deterrence is, of course, a paramount factor in sentencing for offences of this type. Considerations of specific deterrence are enlivened by the offender’s prior record, and in particular, his record of prior offending involving children. As I noted earlier, the offender was on parole for this earlier offending which had involved his son, when he committed the present offences.

COMPARATIVE CASES

109. I turn to the question of comparative sentences. As the Crown submissions identify, this is one of few cases that has proceeded since the introduction of mandatory minimum sentences and there are, as yet, no appellate judgments dealing with sentences under this regime. As discussed in the course of oral submissions, the case of Delzotto is before the NSW Court of Criminal Appeal for hearing at the end of May. The matter of Hurt is listed for hearing before the ACT Court of Appeal several days before that. There is no application for these proceedings to be further adjourned, or for my judgment to be further reserved, pending those outcomes.

110. Counsel for the Crown in oral submissions, drew my attention to the matter of Hong v R [2017] NSWCCA 238, that was a severity appeal with respect to a sentence passed by her Honour Judge Culver, of the New South Wales District Court in August 2016. Judge Culver had sentenced the offender with respect to three child pornography offences, one of which was using a carriage service to access child pornography, contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code. The offender had received an indicative term of two years for the offence, which carried a maximum penalty of fifteen years imprisonment. There was no mandatory minimum penalty applicable at the time. The other two offences were contraventions of New South Wales state legislation, regarding the possession of child abuse material. The effective overall sentence was a non-parole period of 29 months, with an additional term of 15 months.

111. With respect to the Commonwealth offence, the offender had used a filesharing program to download 1806 files from 15 March 2012 to 24 March 2015, a period of just over three years. The videos depicted victims aged between five and fifteen years of age, depicted penetrative sexual activity and over 80 different child victims.   

112. As in the present matter, an analysis of search terms revealed targeted searches for child pornography material. The state offences involved respectively 301 images and 170 video files for the first state offence, and 57 videos for the second state offence. Again, the victims were aged between five and fifteen years of age.

113. Judge Culver found that the criminality fell well above the low range, and up around the mid-range of the level of seriousness. A 25% discount was applied for an early plea of guilty. The sole ground of appeal was that the sentence was unreasonably and plainly unjust, and the sentences were manifestly excessive. Justice Beech Jones, with whom Justice of Appeal Basten, and his Honour Justice Fagan both agreed, stated that, “Whilst the sentence imposed by her Honour could be categorised as a stern one, the Court was not satisfied that it was unreasonable or plainly unjust.”

114. In R v Large [2021] NSWDC 429, Judge Montgomery SC sentences an offender for two charges Commonwealth to the Criminal Code. The first charge, sequence 4, using a carriage service to make child abuse material available via Telegram, contrary to s 474.221, where Telegram was a cloud-based instant messaging service, and the offender had relevantly transmitted a link to child abuse material to a person using the name, or the handle, “Larry Boyle,” via that service. The link contained two videos. The second charge was an offence of possessing child abuse material, which was obtained or accessed using a carriage service, contrary to s 474.22A of the Commonwealth Criminal Code. Both offences had a maximum penalty of fifteen years imprisonment, and a minimum penalty of four years imprisonment. The child abuse material was found on four USB’s, three smart phones and a MEGA account.

115. As Montgomery DCJ summarised, a total of 868 items were located on 7 devices. 867 depicted real victims and there was one artistic representation of a female toddler. There was a prevalence of victims of 4 years or younger, including 2 images of one-year olds.

116. His Honour viewed a sample of the child abuse material. His Honour concluded that the possession offence involved “a high level of criminality because the possession and control included particularly cruel and depraved CAM victimising young children and, in particular, extremely young children.” His Honour found at [21] that the objective seriousness of the possession offence fell in the low range but toward the middle range.

117. His Honour indicated a sentence of 5 years for the possession offence which was reduced to 3 years 6 months after a discount for plea and assistance. An aggregate sentence of 4 years 6 months with a non-parole period of 3 years 3 months 10 days was imposed.

118. In R v Glasheen [2021] NSWDC 544, Robinson DCJ sentenced an offender for an offence of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code. That offence was, as I indicated earlier, subject to a maximum penalty of fifteen years imprisonment, and a minimum term of 4 years. 64 images of child abuse material were accessed between 12 and 19 July 2020. As in the present matter, it involved a rolled up count, involving more than one instance of offending, and an analysis offender’s web history revealed targeted searches. Her Honour found the objective seriousness to be below mid-range, but not in the least serious category. Her Honour ultimately reached a determined sentence of 4 years, with a non-parole period of 2 years 8 months.

119. In R v Delzotto, to which I have made earlier reference, Judge Grant sentenced the offender for two offences, one of which was possessing or controlling child abuse material, obtained using a carriage service, contrary to s 474.22(a)(1) of the Criminal Code, and of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Code. Two additional offences were taken into account in accordance with the schedule for one of the sequences. A maximum penalty of fifteen years with a minimum of four years was specified while one of the other sequences had a maximum penalty of fifteen years.

120. Ultimately, his Honour Judge Grant found the offending fell within the mid-range of objective seriousness for the sequence carrying the minimum term, and a maximum of fifteen years, and his Honour reduced by 30% from a four year minimum term, taking into account his plea and cooperation, and imposed an aggregate sentence of three years, two months, with a non-parole period of two years and two months. Of course, his Honour did not follow the reasoning in Bahar.

121. I have also had regard to the determination that his Honour Judge Haesler reached in R v McCall, which I will not set out in detail, and I have also adverted to the various comparatives to which I make reference in R v Pendlebury on 3 December 2021.

TIME SPENT IN CUSTODY

122. The offender has been in custody since his arrest on 3 August 2020.

123. I note that his parole was revoked, and the balance of term of eight months, one week and six days was required to be served from the date of his arrest. The effect of that revocation was that he was serving the balance of parole until 15 April 2021. The time served since 15 April is solely referable to the present offence.

124. On the question of backdating the present sentence into the period of time during which he was serving the balance of parole, I note that there is no clear rule that governs all cases: see, in particular, the observations of Simpson J (James and Hall JJ agreeing) in R v Callaghan [2006] NSWCCA 58 at [21].

125. I propose to allow the offender approximately half of the time that he was serving the revocation of parole, which revocation was brought about by the commission of the current offences, and accordingly the sentence which I will now pass, will commence on 15 January 2021.

DETERMINATION

126. I should indicate, while I have not set out the detail of it, I have taken into account the difficult impact which COVID-19 and the ongoing effects of the pandemic have had on the experience of prisoners placed in a custodial institution and setting during the past period of time. This includes the increased risk of infection, the undoubted increased and not insubstantial period of lockdowns, and the further increased periods of isolation that ultimately make the experience of custody more onerous. I find that there is no sentence other than an immediate term of imprisonment appropriate, in all of the circumstances. In the interest of transparency and bearing in mind where I have formed the view that this falls to the low end of the mid-range, I have commenced with a sentence for a period of five years.

127. I allow a discount, pursuant to the relevant provisions, which permit up to 25%, but taking into account the view which I hold as to the specified minimum term, the discount of 20% will reduce the term of imprisonment to a period of 4 years. Taking into account the subjective circumstances and the detail of the undoubted need for supervision that this man will need upon his release, I fix a non-parole period of 2 years. That means that the non-parole period will commence on 15 January 2021, and expire on 14 January 2023, and the balance of term will expire on 14 January 2025.

126. Mr Tomlinson, I’m required to explain to you that pursuant to the relevant provisions of the Commonwealth Crimes Act, you will be released, pursuant to order of the relevant officer, on 14 January 2023, and you will be required to be subject to the supervision of the relevant administrators of that parole period. Just excuse me for one moment.

127. Alright, are there any other formal orders in relation to the sentence, Madam Crown?

128. RANSON: Not with respect to the sentence, no, your Honour, just the Crown is seeking a forfeiture order, I understand your Honour’s associate will have a copy of that.

129. HIS HONOUR: Yes, I have that and I was going to - I turn to that now. There’s no opposition to that, I take it?

130. BREWARD: No, your Honour.

131. HIS HONOUR: Alright, thank you. Pursuant to the provisions of s 23(z)(d) of the Crimes Act 1914, and upon application of the Director of Public Prosecution for the Commonwealth, I order that the following item is forfeited to the Commonwealth: XTE Optus X Wave with Optus USim, which was entered as exhibit number X0003648286. I will date and sign that order.

132. Alright, if there are no other orders, I will adjourn.

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Decision last updated: 21 June 2022