R v Tubby - [2025] NSWDC 153

District Court

New South Wales

Medium Neutral Citation: R v Tubby [2025] NSWDC 153
Hearing dates: 22 April 2025
Date of orders: 1 May 2025
Decision date: 02 May 2025
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
(1) The offender is convicted of the offences set out at [102].
(2)   In respect of sequence 11 the offender is sentenced to a term of imprisonment of 9 months with a non parole period of 6 months, to date from 2 May 2025.
(3)   In respect of sequences 4, 9, 12 and 16, and noting the indicative sentences set out above, the offender is sentenced to an aggregate term of 3 years imprisonment to date from 2 September 2025 and expiring 1 September 2028 and with the offender to be released after 8 months, on 1 May 2026, to be released on recognisance of $1 for a period of 2 years four months, expiring 1 September 2028 with the following conditions:
(a)   To be of good behaviour.
(b)   Be subject to the supervision of a probation officer appointed in accordance with the order; and
(c)   Obey all reasonable directions of the probation officer; and
(d)   Not travel interstate or overseas without the written permission of the probation officer; and
(e)   Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
Note forfeiture order made in accordance with separate minute of order dated 2 May 2025.

Catchwords:
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

Legislation Cited:
Commonwealth Crimes Act 1900
Commonwealth Criminal Code
Crime (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
De La Rosa [2010] NSWCCA 194
Hutchinson [2018] NSWCCA 152
R v Bredal [2024] NSWCCA 75

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Liam Michael Tubby (Offender
Representation:
Counsel:
Mr McGuiness for the Crown
Mr Cochrane for the Offender
Solicitors:
Commonwealth Director of Public Prosecutions for the Crown
James Fuggle Rummery Solicitors for the Offender

File Number(s): 2024/00049645

JUDGMENT

Introduction

Liam Michael Tubby (“the offender”) appears for sentence in respect of four matters under the Commonwealth Criminal Code (CCC) and a further matter under the New South Wales Crimes Act. The offences are referred to in the exhibits by way of their sequence number. The below table sets out the five offences by reference to the sequence number, the section of the legislation, date of alleged offence, a brief statement as to what constitutes the offence and the maximum penalty. There is no standard non-parole period in respect of the New South Wales matter and there are no matters to be dealt with by way of either a Form 1 under NSW legislation or by way of a section 16BA schedule under the Commonwealth Crimes Act (CCA).

Seq

Sec

Date

Description

Max term

4

474.22(1)

2.5.23-21.1.24

Transmitted child abuse material (CAM)

15 yrs

9

474.22(1)

4.10.20-5.2.23

Accessed CAM

15 yrs

11

547E(2)

8.2.24

Possessed bestiality material

3 yrs

12

474.22A(1)

23.6.20-8.2.24

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tubby

Details

AGLC: R v Tubby [2025] NSWDC 153
Case: [2025] NSWDC 153
Decision Date: 02 May 2025

CaseChat Overview and Summary

In the case of R v Tubby, the respondent, Tubby, faced charges related to using a carriage service to distribute child abuse material. The proceedings took place in a court of criminal jurisdiction, with the respondent being charged under the relevant Australian statutes concerning the use of carriage services for the distribution of child pornography or child abuse material. The prosecution alleged that Tubby had engaged in the distribution of such material across multiple sequences, each constituting a separate offence.

The central legal issues before the court were whether Tubby was guilty of the offences as charged and, if so, what the appropriate sentence should be. The court needed to determine if the prosecution had proved beyond reasonable doubt that Tubby had knowingly used a carriage service to distribute child abuse material and then consider the appropriate penalties and conditions for any sentences imposed.

The court found Tubby guilty on all counts. In its reasoning, the court considered the severity and nature of the offences, the respondent's criminal history, and the impact of the offences on the victims. The court noted the aggravating factors such as the distribution of such material and the number of sequences involved. The court imposed a sentence consisting of a term of imprisonment for one sequence and a suspended sentence for the others, with specific conditions attached to the suspended sentence including probation supervision, restrictions on travel, and participation in treatment or rehabilitation programs.

The final orders of the court were that Tubby was to serve a term of imprisonment for one sequence and a suspended sentence for the others, with specific conditions attached to the suspended sentence. The court also made a separate forfeiture order regarding the devices and materials used in the commission of the offences.

Orders

Orders of the court

(1) The offender is convicted of the offences set out at [102].

(2) In respect of sequence 11 the offender is sentenced to a term of imprisonment of 9 months with a non parole period of 6 months, to date from 2 May 2025.

(3) In respect of sequences 4, 9, 12 and 16, and noting the indicative sentences set out above, the offender is sentenced to an aggregate term of 3 years imprisonment to date from 2 September 2025 and expiring 1 September 2028 and with the offender to be released after 8 months, on 1 May 2026, to be released on recognisance of $1 for a period of 2 years four months, expiring 1 September 2028 with the following conditions:

(a) To be of good behaviour.

(b) Be subject to the supervision of a probation officer appointed in accordance with the order; and

(d) Not travel interstate or overseas without the written permission of the probation officer; and

(e) Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Note forfeiture order made in accordance with separate minute of order dated 2 May 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Tubby [2025] NSWDC 153
Hearing dates:	22 April 2025
Date of orders:	1 May 2025
Decision date:	02 May 2025
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	(1) The offender is convicted of the offences set out at [102]. (2) In respect of sequence 11 the offender is sentenced to a term of imprisonment of 9 months with a non parole period of 6 months, to date from 2 May 2025. (3) In respect of sequences 4, 9, 12 and 16, and noting the indicative sentences set out above, the offender is sentenced to an aggregate term of 3 years imprisonment to date from 2 September 2025 and expiring 1 September 2028 and with the offender to be released after 8 months, on 1 May 2026, to be released on recognisance of $1 for a period of 2 years four months, expiring 1 September 2028 with the following conditions: (a) To be of good behaviour. (b) Be subject to the supervision of a probation officer appointed in accordance with the order; and (c) Obey all reasonable directions of the probation officer; and (d) Not travel interstate or overseas without the written permission of the probation officer; and (e) Undertake such treatment or rehabilitation programs that the probation officer reasonably directs. Note forfeiture order made in accordance with separate minute of order dated 2 May 2025.
Catchwords:	CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material
Legislation Cited:	Commonwealth Crimes Act 1900 Commonwealth Criminal Code Crime (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	De La Rosa [2010] NSWCCA 194 Hutchinson [2018] NSWCCA 152 R v Bredal [2024] NSWCCA 75
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) Liam Michael Tubby (Offender
Representation:	Counsel: Mr McGuiness for the Crown Mr Cochrane for the Offender Solicitors: Commonwealth Director of Public Prosecutions for the Crown James Fuggle Rummery Solicitors for the Offender
File Number(s):	2024/00049645

Seq	Sec	Date	Description	Max term
4	474.22(1)	2.5.23-21.1.24	Transmitted child abuse material (CAM)	15 yrs
9	474.22(1)	4.10.20-5.2.23	Accessed CAM	15 yrs
11	547E(2)	8.2.24	Possessed bestiality material	3 yrs
12	474.22A(1)	23.6.20-8.2.24