R v Turnbull

[2025] NSWDC 137

District Court

New South Wales

Medium Neutral Citation:

R v Turnbull [2025] NSWDC 137

Hearing dates:

14 April 2025

Date of orders:

24 April 2025

Decision date:

24 April 2025

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

(1)   Of the offenses under s474.22(1) and s474.22A(1), and being sequences 1 and 4, the offender is convicted.

(2)   Noting the indicative sentences after taking into account the schedule matter in relation to sequence 1 and after a 25% discount, the offender is sentenced to an aggregate term of imprisonment of 27 months, to date from 26 December 2024 and expiring on 25 March 2027, to be released after 51 weeks on 18 December 2025 on recognisance of $1 for a period of 18 months (expiring 25 June 2027) with the following conditions:

a. To be of good behaviour

b. Be subject to the supervision of a probation officer appointed in accordance with 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 programs that the probation officer reasonably directs.

3)   Note forfeiture order made in accordance with separate short minute of order.

Catchwords:

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

Legislation Cited:

Commonwealth Criminal Code

Cases Cited:

Bredal [2024] NSWCCA 25

Chantler [2024] NSWDC 164

Nafarette [2022] NSWDC 225

Nasrallah [2021] NSWCCA 207

Pedersen [2021] NSWDC 535

R v Hutchinson [2018] NSWCCA 152

R v TBE [2024] QCA 204

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Corey Andrew Ty Turnbull (Offender)

Representation:

Counsel:
Mr McGuiness for the Crown

Solicitors:
Commonwealth Director of Public Prosecutions for the Crown
Aboriginal Legal Service for the Offender

File Number(s):

2023/00213300

JUDGMENT

Introduction

1. Corey Turnbull, the offender, is to be sentenced in respect of one offence in contravention of section 474.22 (1) of the Commonwealth Criminal Code (CCC), which is the offence of accessing child abuse material using a carriage service (sequence 1, hereafter count 1). He is also to be sentenced for one offence in contravention of section 474.22A(1) CCC of possessing child abuse material in the form of data on a data storage device in circumstances where he had used a carriage service to obtain or access the material (sequence 4, hereafter count 2). There is a further offence under section 474.22A CCC placed on a section 16BA schedule which is to be taken into account when sentencing for the accessing charge (sequence 3, hereafter the Schedule matter). The maximum term of imprisonment for each of these offences is 15 years imprisonment and/or a pecuniary penalty. I take those maximum sentences into account as a legislative guide as to the seriousness of the offence to assist in arriving at the appropriate sentence. In regard to the Schedule matter it is important that the focus remains on the principal offence (count 1) for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. Importantly the sentence for count 1 must remain proportionate to the seriousness of the offending of count 1.

2. The facts relied on for count 1 occurred between 7 May 2022 and 3 May 2023 and in respect of count 2 between 22 March 2023 and 4 July 2023. The offender was arrested on 4 July 2023 and remained in custody until released on bail on 30 October 2023. Any term of imprisonment will therefore be backdated by a period of 119 days.

The facts

3. The facts of this case involve a cloud-based storage website known as Mega.nz. The offending conduct is the offender accessed (count 1) the child abuse material stored online at that cloud-based storage website and also possessed or controlled child abuse material in circumstances where he had used a carriage service to access that material (count 2). Relevantly here the material was possessed by being stored on two Samsung phones, and a snapchat account was used to both access child abuse material and, in respect of 3 video files, store it.

4. On 4 July 2023 police executed a search warrant at the offender's residence. Police asked if the accused wanted a support person, and he stated “I don’t know of anybody that’s going to want to be involved in anything with shit like this. This has just fucking fucked my life”.

5. The police seized three mobile phones including the two Samsung phones on which was stored material relevant for count 2.

6. The offender complied with an order requiring him to provide the PIN number and passcode for the two Samsung phones.

7. The application Mega was found on what is referred to as Samsung phone 2, the cloud-based storage website. It follows that had been downloaded and installed on the phone. It had been used in connection with the username [email protected]. Also on the phone was the Snapchat application with an associated account [email protected] on both phones. The two email addresses just referred to were admitted by the accused to have been used by him. Samsung phone number 1 contained child-abuse material.

8. Investigation and examination of the devices and user accounts showed that the offender was the subscriber of the Mega account. The Mega account had a number of folders with titles such as “daughter Dads” “full teen” “girls” and "adolescent 14-18 years”.

9. There were 16,977 files within the Mega account. 6140 files were reviewed. Of those, 2365 comprised child-abuse material. The agreed facts disclose only three examples of those 2365 files. One is of a 50 second video of a prepubescent female child with an adult male attempting to penetrate her vagina with his penis through his own underwear and then removing his penis from his underwear and penetrating the child’s vagina. There is then an attempt to penetrate the child’s anus with his penis.

10. The second example is of a one minute 23 second video of a prepubescent female child being sexually assaulted by an adult male using his penis to penetrate her mouth. The third example is of a one minute 19 second video depicting a prepubescent female child, a toddler in a bathtub being forced to touch an adult male's penis. The male then masturbates while standing over the child and then holds his penis and attempts to penetrate the toddlers vagina.

11. No submission was made that this was not representative of the 2365 files. That said there is no breakdown as to whether they were all videos or some were still images. I take these examples to be representative of the nature of the imagery stored on the mega site.

12. The facts just set out appear under the heading relating to the Schedule matter, so the agreed fact is of the offender possessing the material referred to by way of storing it on the Mega site.

13. In relation to count 1, accessing CAM, the offender participated in 77 sessions on the Mega site between 7 May 2022 and 3 May 2023, which would be an average of about six times per month.

14. In relation to count 2, on Samsung phone number 1 there were 56,681 files. 8191 files were reviewed and of those 1398 were identified to comprise child abuse material. On Samsung phone number 2 there were 34,504 files of which 5310 were reviewed and of which 592 comprised child abuse material. Also relevant to this charge is a Snapchat account, referred to below. It is not clear on the facts as to whether all of these files come from the Mega cloud based site, or whether the material found on the phones may have been accessed elsewhere. Samsung phone number 2 had the Mega app installed, allowing for the inference that some of the files on that phone came from the Mega site. An unanswered query is just where those files came from in the first place. Ultimately, the crucial fact is the existence of the files themselves. It is important for the purpose of sentencing that consideration is limited to those files which were found to comprise child abuse material. In respect of count 1 the number of files is 2365, and in respect of count 2 the sum of 1398 and 592 in respect of the telephones and three video files from the Snapchat data, so a total of 1993. The facts of the Snapchat involvement extend beyond the simple number of videos.

15. Examples were also given of the material located on the Samsung phones. They are of the same nature and character as has already been described with the emphasis on an adult male engaging in penetrative sex with a prepubescent child with all the examples being of female children and including both anal and vaginal penetration. All examples of videos ranged in length from 25 seconds to 3 minutes 32 seconds.

16. The relevance of the Snapchat account activity is not only the possession of the material but the involvement of the offender with others negotiating for the purchase of such material. It shows that the offender is not aimlessly or misguidedly surfing the Internet, but is actively engaged in transactions for money to obtain this type of material from people who plainly have access to it. The types of negotiations talk of teen rapes, teen brutal, “mega children”, in an age range from three years to 17 years and with the person to whom the offender was communicating talking of “super hot baby videos”.

17. The three videos found on the Snapchat data were of 20 seconds, nine seconds and seven seconds duration with one being the abuse of a male infant with a adult female putting his penis in her mouth, the second video where an adult female tries to put a child’s penis in her vagina and lastly a female child with her wrists duct taped to her shins with her vagina exposed to the camera and an adult male rubbing the head of his penis on the outside of her vagina.

Objective seriousness

18. Both parties have made reference to R v Hutchinson [2018] NSWCCA 152 which set out a series of relevant considerations when assessing the objective seriousness of offending of this type. In this case the evidence shows that actual children were used to create the material. The nature and content of the material is grave. That it is not more depraved and is not expressly said to extend to torture type activity or activity in which a child is hurt beyond the obvious damage of being sexually assaulted is obviously something that limits the assessment of objective seriousness but in no way can be considered mitigatory. The facts show adult men having penetrative sex with prepubescent children and in one example a toddler.

19. The offender accepts the volume of material is not insignificant, in other words it is significant. As noted above for the purposes of this sentence it is based on 1993 images in respect of count 2 and 2365 in respect of count 1. The evidence does not disclose the number of children involved though there is reference to children of different ages and of different sex. There are plainly numerous children involved but it cannot be said just how many. I note the approximate 12 month period relevant to count 1 and the 77 times that he accessed the site in that period which suggests a regularity of access over a significant period.

20. There is a degree of organisation about this offending that is concerning. In respect of count 1 it endured for approximately one year and involves cloud-based storage, not simply access over a phone perhaps downloading some photographs. Rather he has obtained the material, had control of it, located on a cloud-based site.

21. In respect of count 2 the offender has sought out this material in a commercial fashion, and has negotiated to acquire it. This conduct plainly promotes the commercial exploitation of children. At the same time the offender was acting on his own behalf in isolated circumstances.

22. I accept that there is no evidence of the offender himself disseminating material.

23. The Crown argues that count 2 is more serious than count 1. The Crown also argues that there should be a meaningful increase in respect of the sentence for count 1 in light of the seriousness of the Schedule matter.

24. A point of difference between counts 1 and 2, aside from their nature of “access” and “possess” respectively, is the Snapchat communications. I consider those communications elevate this offending beyond offending of this type that is carried out by way of accessing various locations on the Internet for this material; to actively engage in the marketplace as it were for this material and to negotiate the content and the price adds to the seriousness of the matter. Further count 2 involves two devices.

25. I accept the submission of the Crown for the reasons just given that Count 2 is the more serious matter, but only modestly so. I do not wholly accept the Crown submission relating to the impact of the Schedule matter on count 1 for whilst the schedule matter is plainly significant and serious the overlapping nature of the offending tempers its impact.

Subjective case

26. The accused was immediately compliant with police; he made admissions and provided his PIN. Consistent with this he entered his plea at an early time. There was no dispute that a 25% discount on sentence due to the early plea was appropriate.

27. The offender has a background of some disadvantage as set out below. Despite that his first offending as a child occurred when he was almost 18 with offences of assault. The record does not indicate whether or not a conviction was recorded. Approximately one year later in 2011 as an adult he again committed assault and was also convicted of possessing a prohibited drug. I do not take that children's record into account adversely to the offender; on the contrary it would seem to his credit that the offending occurred so late in his childhood.

28. In 2013 there was a further offence of assault occasioning and possessing drugs and then a five year break before a further assault occasioning which was domestic violence related. In 2020 and 2021 there were drug offences and in 2023 motor vehicle offences.

29. It follows that the leniency an offender may benefit from by a lack of a record is not available here. That said there has really only been one concerning offence between 2013 and the present which was the assault occasioning in 2018. The offender has in that same period a good work record. The first occasion the offender was sentenced to a custodial period was in 2011 however that was a suspended sentence and the record indicates that it did not result in custody. His custody record shows he spent 17 days in custody in 2014 before receiving bail. He then spent some four months on remand for the present offence so that should he be sentenced to custody for the present matter it will be the offender’s first occasion of a full-time custodial sentence.

30. The sentence assessment report dated 9 September 2024 was in evidence along with a structured case note from Corrective Services New South Wales. The sentencing assessment report notes the offender to be a 31 year old Aboriginal man who is single and with a five-year-old daughter living in Western Australia with an aunt. He has not had contact for two years but seeks for that to change. He is employed full-time as a steel fixer and had been employed for the past three years.

31. When asked about his offending he initially denied knowing the details but then admitted he had been looking for teen images and was not interested in anything else. He claimed to have no idea of what images he had purchased. He further claimed he was under the influence of “ice” at the time of offending and linked his substance abuse to his offending.

32. He claims to have developed anxiety and depression since the offending. He is not presently being treated.

33. He demonstrated insight into the effect of the offending on the victims and their families. He was willing to undergo intervention and to undertake community service work

34. He was assessed as a medium low risk of reoffending and was considered suitable for community service work.

35. The structured case note seeks to make a risk assessment and acknowledges its limitations in that there was no interview with the offender and the assessment is not comprehensive. A major deficit in the report is that it does not consider dynamic risk factors, that is factors particular to the offender as opposed to a generic or actuarial risk assessment. On the limited assessment carried out the offender was considered to be above the average for risk. Due to the report’s limitations I do not give it any weight in terms of a risk assessment. More helpfully it does indicate that if a custodial sentence was imposed the offender would be considered ineligible for sex offender specific treatment programs. The report notes that a further assessment is required of the dynamic risk factors.

36. The offender relied on a report of Dr Thea Gumbert dated 17 September 2024. The report notes that the offender is currently working casually as a steel fixer. He was in a number of ways fairly vague as to his mental health history. For example he says he had been diagnosed with mental health conditions in the past but could not recall when nor what he was diagnosed with. And had been prescribed medication but did not know what.

37. His family background is that of being the second of six brothers and being raised in the Tweed Heads area. His father was violent including physically to his mother and the children. His father would have the eldest son punish the younger children. The father kicked the offender so hard on the buttocks on one occasion that he could not go to the toilet for days. At some point the parents separated and then when the offender was 16 the father died which affected the offender emotionally and placed pressure on him to help his mother and grandmother financially. His mother’s mental health declined and she made two suicide attempts and it was the offender who relocated the family to Sydney when he was 19 for a change of environment, I infer to assist his mother with her mental health. A year later he returned to Tweed Heads but his mother and siblings remained in Sydney

38. Since 2020 he has lived with his grandparents in Kingscliff. About six months before the offending he moved out but then needed to return but his room had been taken by another family member which led to him living in his car. At the time of arrest he had been sleeping in his grandparents back shed without them knowing. The relationship with his grandparents is said to be positive.

39. The offender had difficulties at school but would not appear to have had any significant intervention whilst there. He was suspended numerous times. He completed year 10 and sought an apprenticeship which did not materialise and completed year 11 at TAFE and then certificates in construction and hospitality at TAFE. The work history of the offender assists him. He appears to have been in almost constant employment but for one year of unemployment in either construction, an abattoir, a restaurant and most recently steel fixing.

40. The offender has abused substances since the age of 15. He began with cannabis and then extended to using MDMA and cocaine. He sought to rehabilitate about age 21 including attending Narcotics Anonymous and was abstinent for two years. His time at the abattoir appears to have been detrimental in numerous ways not only the way he was treated there by the employer but also engaging in social methamphetamine use which then ultimately spiraled and led to the year of unemployment. He has been abstinent whilst in custody and there was no suggestion that he had returned to drugs in the time on remand.

41. There was a history of three incidents which may have caused some head injury but that has not been investigated.

26. As to his mental health he described feeling as if he is “head is out of control" and that his head was racing all the time. He reported distress arising from being separated from his daughter. He claims to have wanted treatment for many years but has had limited contact with any services or clinicians. He engaged in self harm when on remand by hitting his head against a wall in his cell but denies any suicidal intent.

27. Under the heading sexual history the report notes that his father and grandfather whilst he was a child were bootlegging pornographic videos. His grandfather would openly watch pornography at home in the afternoons. He was therefore exposed to pornography from an early age.

28. He says that over time he came across and then began looking up more extreme and fetishist material such as incest pornography. About two years ago he saw a link to teen porn which he initially thought meant 18 or 19-year-olds but discovered it featured people under age and children. He frankly reported he became interested in it and began to seek out child abuse material. By the time of his arrest he was looking up child abuse material about once a week along with pornography featuring adults.

29. The impression I gained from the report is that the offender was frank in discussing his offending. He expressed confusion as to why he was interested in the child abuse material and says he is no longer interested in it. He considers the drugs made his sexuality “hyper” though he could not understand how it turned him from normal porn to child porn. He is motivated to rehabilitate and states that jail is no life.

30. Psychometric testing showed that he was within the severe range for depression and the moderate range for anxiety and stress. The testing suggested a likely ADHD diagnosis.

31. The psychologist administered the risk of sexual violence protocol to assess the risk of sexual violence. The testing concluded that there was no indication the offender is at imminent risk of another online sexual offence. This is in part based on the fact that he is prohibited from accessing the Internet. There is no indication that he is at significant risk to progress to a contact or violent offence. It notes the risk may increase once access is regained to the Internet and it would also increase should he relapse into drug use. On the other hand should he establish a relationship the risk decreases.

32. The opinions offered by the psychologist are that the offender suffered a traumatic upbringing having witnessed family violence, blaming himself for his parents separation and then struggling with grief when his father died when he was 16. The history suggests to me a somewhat destabilised upbringing which is reflected in his performance at school which may also be due to some learning difficulties inherent to the offender.

33. I do not find that the offender comes from a background of profound social disadvantage. Rather the facts of this case should be treated in line with what was said in Nasrallah [2021] NSWCCA 207, namely that the offender has suffered from disadvantage to a degree but not to the extent where it was considered to be profound disadvantage. Nevertheless, the background of the offender is something that is taken into account in the overall sentencing exercise.

34. As to the offender’s mental health the psychologist considered and I accept that the offender meets the diagnosis for major depressive disorder and substance use disorder. The suggestion seems to be that he was not coping at the time of the offending and was in a disinhibited state though the extent to which this is attributed to depression is not clear and I would note that in the sentencing assessment report the depression seems to have occurred after the offences. The drug use was of course occurring at the time and would have contributed to a disinhibited state. The legislation prohibits that being taken into account in mitigation and so I do not do so though it is a relevant factor to take into account in terms of his prospects of rehabilitation and likelihood of reoffending.

35. I accept that the offender shows some insight into his risk factors. I also agree with the psychologist that it is notable that pornography was somewhat normalised in his upbringing due to the conduct of his father and grandfather.

36. The psychologist notes that the risk assessment placed him in the moderate risk category with the risk factors relating to his mental health substance use and psychological adjustment. Contrary to the sentencing assessment report she considers he may be eligible for some sex offender programs offered by corrective services.

37. The ultimate prognosis is to say the offender shows a realistic prognosis for change and rehabilitation if engaged with appropriate supports. This was based on his progress whilst on bail, his ongoing abstinence from substance use and his expressed attitudes and motivations. I accept that opinion.

38. Lastly the psychologist expresses the view that from the point of view of the offender a non-custodial outcome is preferred. She says a return to custody would destabilise him and undermine the progress he has made. She notes the possibility of community-based programs and that the offender would benefit from further assessments as to his mental health generally and his ADHD symptoms.

Consideration

55. The ultimate competing positions of the parties are that on the one hand the Crown says there is no alternative but for a full-time custodial sentence, whereas the offender argues that there are factors in this case justifying a finding of exceptional circumstances, so that there should be a term of imprisonment imposed but with the offender being released immediately on a release recognisance order.

56. The Crown helpfully notes that under the Commonwealth legislation the sentence must be of a severity appropriate in all circumstances of the offence, that the term of imprisonment should not be imposed unless it is the only appropriate sentence, and that the factors listed at section 16A must be taken into account to the extent that they are relevant. Both parties have approached the matter by reference to those provisions.

57. The nature and circumstances of the offending have been considered above. So too has the acceptance by the Crown that a 25% discount for the early plea is appropriate.

58. In considering the personal circumstances of the victim is obvious that whilst there is no identification of who the children are that they will have been severely damaged by this behaviour. The offender urges caution against double counting. The point really is that this consideration highlights the need for deterrence in matters of this type.

59. In my view the evidence makes out that the offender has shown contrition. The evidence shows and I accept that his life was at the time of the offending in disarray. The 119 days in custody would appear to have had a marked impact on the offender bearing in mind that that was his first significant period in custody despite his background of having engaged in antisocial conduct over a period of time. There are prosocial protective factors evident with his work history and some support from his grandparents. He has demonstrated insight into the impact on the victims. At the same time, I do note that in the sentencing assessment report he was somewhat qualified in embracing his wrongdoing and that he denied the details of the offending claiming he was under the influence of drugs and that he had only been interested in teen images though there is also an acknowledgement of seeking out the offending material.

60. On the issue of deterrence, the argument for the offender is that he is not the most suitable vehicle for general deterrence due to his depression. One difficulty with that submission is that the sentence assessment report is very clear at page 2 to say that the history of the offender was that the depression and anxiety developed since the offence. I also note he was not under any treatment or medication for depression at any time prior to the offending. The psychologist report is far more considered and detailed and does state at page 12 that the offender identified coping deficits and drug addiction as contributing to the index offences which I take to be a reference to his depression. I consider there were some difficulties for the offender in coping with life prior to the offending whether that be described as depression or otherwise. I do not consider however that it renders him not a suitable vehicle for general deterrence. The offender relies also on the lack of any evidence of any paraphilic condition. In other words, a person struggling to cope and engaging in what is sometimes referred to as normative pornographic use is argued not to be suitable for general deterrence. In my view there is a good argument for general deterrence in such a case when the facts are as they are here; if there is no paraphilic tendency, so no inherent interest in observing the child abuse material, then all the more reason to encourage such a person not to do so.

61. The offender also relies on what are described as onerous bail conditions. Those conditions were in evidence and required him to reside in his own room at his grandparent’s property and prohibited from any use of the Internet or any smart mobile phone or of contact with anybody under 16. I note however there is not a curfew condition and whilst there are prohibitions on attending places such as playgrounds and video arcades where young people might be, the conditions really are a residence condition, a reporting condition and the prohibition of use of the Internet.

62. The background antecedents age and physical and mental condition of the offender have been outlined above. The Crown notes that at the time of the offending the offender was in fact on a conditional release order for an offence of driving whilst an illicit drug was present in his blood.

63. The Crown also refers to 2 matters of fighting in custody. Without any facts it is difficult to take that into account adversely to the offender and they will not be.

64. The argument for the offender is that a combination of his disadvantaged background and his mental health result in him being less morally culpable for his actions and a less suitable vehicle for general deterrence. Those matters have been addressed above. In short, I do take into account the background of the offender in the way discussed in Nasrallah. As to his mental health whilst the evidence is conflicting, I am prepared to accept that there were issues of mental health active at the time of the offending, but I do not consider that they were causative of the offence to any significant extent.

65. The Crown argued the prospects of rehabilitation are diminished due to his lack of full acceptance of his conduct. The offender argued that his prospects are closely tied to his ability to remain abstinent. I favor the view of the offender in this regard. That is although there was some reluctance or qualification by the offender in accepting his wrongdoing when being interviewed for the sentencing assessment report, on the basis of the evidence overall I find that he does acknowledge his wrongdoing and seeks to prevent it happening again. He will need to engage in the treatment of the type suggested by the psychologist but fundamentally and overarchingly he needs to remain abstinent. He has abused drugs for more than half his life but would appear to now have been abstinent since entering custody in July 2023 so almost 2 years. That gives a basis for some optimism despite the long term drug use. His prospects of rehabilitation should be seen in that light. Both parties refer to section 16A(2AAA) which provides that the court must have regard to the objective of rehabilitating the offender by considering treatment options. The offender has helpfully set out passages from the explanatory memorandum introducing this section including that the amendment “recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety”. The passage quoted goes on to note that state and territory correctional facilities advise that typically a non-parole period of 18 months to 2 years is required for offenders to be able to complete a relevant custodial sex offender treatment program. That is not to say that whatever may have been achieved in custody could not be sought to be continued in a community-based program but that course would obviously be somewhat disjointed.

66. The Crown argued that count 2 was the more serious offence because the quantity and depravity of the images and the conduct of paying for such material demonstrating this was no isolated act. It endured for some time. The Crown has also allowed for some positives in the subjective case. In answer to the offender's argument that this is a case of exceptional circumstances the Crown relied on R v TBE [2024] QCA 204. That case discussed the meaning of the expression “exceptional circumstances” and quoted with seeming approval from the judgment of Dhanji J in Bredal [2024] NSWCCA 25. At [28] of TBE it was said by reference to the earlier authority that the adjective exceptional describes “a circumstance which is such as to form an exception which is out of the ordinary course or unusual or special or uncommon… but… cannot be one that is regularly or routinely or normally encountered”. The position of the Crown is that the range of factors relied upon to establish exceptional circumstances here by the accused are of the type commonly seen in sentencing proceedings.

67. In contrast the point of the offender is to adopt the logic of Bredal and to say that it is those factors which in isolation might be viewed as ordinary or usual but to say that in combination they create the exceptional circumstances. In support of the accused’s argument reference was placed on a number of cases. Without exhausting what can be gleaned from those cases it is notable that in Chantler [2024] NSWDC 164 the case involved low objective seriousness which contributed to a finding of exceptional circumstances, and that in Pedersen [2021] NSWDC 535 the offender was 61 and of good character. The case of Nafarette [2022] NSWDC 225 is of assistance to the offender as there a combination of otherwise usual factors constituted exceptional circumstances and included a low level of objective seriousness, a difficult early life, relative youth, the conduct of the offender’s father and exposure to sexualised conduct and pornography and also having suffered sexual abuse. Some of these factors are present here; some are not.

68. In this case the offender relies on nine factors to make out exceptional circumstances. The first is reduced moral culpability due to his background and mental health. As indicated above whilst I accept his background is a relevant matter to take into account it does not have the effect of reducing his moral culpability in a marked way and nor does his mental health. Secondly, his lack of similar prior convictions and that is noted. Thirdly his remorse and fourthly his plea of guilty, both very common matters. Fifthly the absence of a paraphilic disorder which as commented above as much heightens the need for deterrence as lessens it. Sixthly, the offender’s prospects of rehabilitation, which are said to be, and I accept to be, guarded albeit there are promising signs. Seventhly, compliance with strict bail conditions which to my mind were not that strict. Eighthly, onerous conditions of custody. In that regard due to his presently untreated depression there may be some increase in the onerous nature of custody but again not to a marked degree in my view. Ninthly that to go back to prison would be destabilising of his rehabilitation so far.

69. The argument of the offender does have some substance. That said the Crown is quite right to indicate that all those features are quite commonly present in sentencing proceedings. Overall, however I come to the view that when you consider the weight to give to each of those nine factors they do not in combination amount to exceptional circumstances. The argument about reduced moral culpability has not been wholly or even largely successful, and of the remaining factors none of them are such that either in isolation or in combination would give rise to an exceptional or unusual situation. I accept that a return to custody could result in a destabilising position or effect on the offender however it seems to me that is an almost unavoidable consequence of the very stern legislative provisions that can only be assumed to have taken into consideration in their drafting the fact that a person may be on bail but then ultimately returns to custody absent exceptional circumstances. It is perhaps a reflection of the emphasis the legislation places on protection of children.

70. The result is that there are not exceptional circumstances. It remains to set the sentence. I will proceed by way of an aggregate sentence.

71. The result I come to is that in respect of each count and taking into account the Schedule matter in sentencing for count 1, the indicative term is two years before the discount so 18 months after the discount. As noted above, the principle of totality applies, not only due to the conduct being a course of conduct, but also because of the overlapping nature of the offenses of accessing child abuse material and possessing child abuse material. There will be an aggregate term of 27 months, with the offender to be released on recognisance after a period of 51 weeks, such recognisance to be on the conditions set out in the below orders and to be for a term of 18 months. There will therefore be a 18 month recognisance period to provide a lengthy period of supervision to assist the offender to obtain, or further, appropriate treatment and to assist him in remaining abstinent, and also recognising the more onerous nature of custody for him given his current state of mental health. The sentence will be backdated by the time spent in custody of 119 days. The initial period of custody is set at 51 weeks rather than 1 year to avoid the release date being on Christmas day.

Orders

1. Of the offenses under s474.22(1) and s474.22A(1), and being sequences 1 and 4, the offender is convicted.

2. Noting the indicative sentences above after taking into account the schedule matter in relation to sequence 1 and after a 25% discount, the offender is sentenced to an aggregate term of imprisonment of 27 months, to date from 26 December 2024 and expiring on 25 March 2027, to be released after 51 weeks on 18 December 2025 on recognisance of $1 for a period of 18 months (expiring 25 June 2027) with the following conditions:

   a. To be of good behaviour

   b. Be subject to the supervision of a probation officer appointed in accordance with 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 programs that the probation officer reasonably directs.

3. Note forfeiture order made in accordance with separate short minute of order.

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Decision last updated: 28 May 2025