R v Watson (No 2)

[2020] NSWDC 582

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Watson (No 2) [2020] NSWDC 582

Hearing dates:

27 August 2020

Decision date:

02 October 2020

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence backdated on re‑sentence. For orders see [69].

Catchwords:

Access and transmit child pornography material. Re‑sentence after quashing of convictions for related offences.

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Crimes Act 1914 (Cth)

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912

Cases Cited:

Bugmy v R [2013] HCA 37; [2013] 249 CLR 571

Refaieh v R [2018] NSWCCA 72

Watson v R [2020] NSWCCA 215

Category:

Sentence

Parties:

Director of Public Prosecutions (Cth Crown)
Jessica Watson (Offender)

Representation:

Counsel:
Ms G Lewer (Crown)
Ms A Healey

Solicitors:
S Simmonds
K Bolas

File Number(s):

19/288805

Publication restriction:

Order made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 as to the identity of any victim referred to herein.
S 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication of the name of a person if the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed. The publication of the offender’s name in connection with any offence of which she was committed as a child is therefore prohibited by S 15A.

remarks on RE-sentence

Introduction

1. On 18 December 2019, I sentenced the offender in respect of four counts on an Indictment. Counts 1 and 2 were State offences involving contravention of a Child Protection Prohibition Order (“CPPO”) contrary to provisions of the Child Protection (Offender’s Prohibition Orders) Act 2004 (NSW).

2. Following sentence, the Crown advised the offender that the CPPO upon which Counts 1 and 2 were based, had been invalidly made. On 14 July 2020, four convictions of contravene CPPO dating back to October 2017 and the CPPO dated 7 March 2016 were annulled by direction of the NSW Attorney General. However, as the convictions for Counts 1 and 2 were made in the District Court on Indictment, an order of the Court of Criminal Appeal was required to set aside the convictions and sentence.

3. Count 3 charged that between 2 November 2015 and about 14 December 2017, the offender had used three carriage services to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) (“the Code”). Count 4 charged that between 2 October 2016 and about 15 March 2017 the offender caused child pornographic material to be transmitted using a carriage service contrary to s 474.19(1)(a)(iii) of the Code.

4. On 18 December 2019, I imposed an aggregate sentence for Counts 1 and 2 of 2 years and 3 months to commence on 13 June 2018 and expire on 12 September 2020, with a non-parole period of 1 year and 3 months to commence on 13 June 2018 and expire on 12 September 2019. The indicative sentences were as follows:

Count 1 – 1 year 9 months

Count 2 – 1 year 6 months

5. In respect of Counts 3 and 4, I imposed an aggregate sentence of 2 years and 9 months to commence on 13 September 2018 with a recognisance release order for the release of the offender after 1 year and 6 months. The indicative sentences were:

Count 3 – 2 years and 3 months

Count 4 – 2 years

6. The effect of the two aggregate sentences imposed was that the overall sentence commenced on 13 June 2018 and expired on 12 June 2021. The offender was released pursuant to the recognisance release order made in respect of Counts 3 and 4 on 12 March 2020. On 8 July 2020 the State Parole Authority revoked the offender’s parole, and she was returned to custody until 14 August 2020.

7. On 24 August 2020, the Court of Criminal Appeal made orders which included the following:

“(3) Quash the convictions for Counts 1 and 2 and set aside the aggregate sentence imposed for those offences.

(4) Grant leave to appeal against the aggregate sentence for Counts 3 and 4.

(5) Allow the appeal against sentence for Counts 3 and 4.

(6) Quash the aggregate sentence for Counts 3 and 4.

(7) Pursuant to s 12(2) of the Criminal Appeal Act 1912, remit Counts 3 and 4 to the District Court of New South Wales for sentence.”

8. The appeal was upheld in respect of the sentence imposed for Counts 3 and 4 because although two aggregate sentences were imposed, they could not be treated independently because I was taken to have determined an appropriate sentence for each offence before considering accumulation and concurrence as questions of totality – see Watson v R [2020] NSWCCA 215 at [23].

The re-sentence hearing

9. The re-sentence hearing took place on 27 August 2020. The Commonwealth Crown Sentence Summary became Ex A. It set out the offences for which the offender had entered an early plea of guilty and was to be sentenced on as follows:

Count 3 – access child pornography material between about 2 November 2015 and 14 December 2017, pursuant to s 474.19(1) of the Code.

The maximum penalty proscribed was 15 years imprisonment and/or 900 penalty units ($162,000).

Count 4 – transmit child pornography material between about 2 October 2016 and about 15 March 2017, pursuant to s 474.19(1) of the Code.

The maximum penalty proscribed was 15 years imprisonment and/or 900 penalty units ($162,000).

10. The cover sheet for Ex A included a notation that the offences were committed whilst the offender was on parole. Counsel for the Crown made it clear that that parole related to the offences in Counts 1 and 2 which had been annulled and therefore the offender was to be sentenced on the basis that she was not on conditional liberty at the time of the offending. Further, the Crown informed the court that the Crimes Act 1914 (Cth) had been amended by the insertion of s 16A(2AAA), which required the court to have regard to certain rehabilitation considerations when sentencing for certain Commonwealth offences.

11. Exhibit A also included an interim prohibition order made pursuant to s 7 of the Child Protection (Offender’s Prohibition Orders) Act 2004 on 5 August 2020, which was varied on 19 August 2020. That matter was listed for mention at Parramatta Local Court on 28 August 2020.

12. Exhibit A also included a notice from the State Parole Authority pursuant to the Crimes (Administration of Sentences) Act 1999, that on 14 August 2020 the decision made to revoke the offender’s parole on 8 July 2020 be rescinded on the basis inter alia of the likelihood of the sentence being quashed.

13. Exhibit A also included the offender’s custodial record, together with numerous Queanbeyan Local Court documents tracing the earlier history of the proceedings.

14. The offender tendered a Justice Link printout of the interim CPPO which became Ex 1 on the re-sentence hearing. That order has been made as a consequence of the offending in Counts 3 and 4, as outlined above.

15. Learned counsel for the offender also indicated that, at the conclusion of the re-sentence hearing, she would be making an application for the offender to be referred to by way of pseudonym, and a further order that bail be dispensed with.

16. The Agreed Facts on re-sentence are as set out in my remarks on sentence dated 18 December 2019 ((2019) NSWDC 767)) at [18] and following, as follows.

COUNT 3 – Access child pornography material contrary to section 474.19(1) of the Criminal Code (Cth) 1995

17. Between about 2 November 2015 and about 14 December 2017, the offender engaged in an ongoing course of conduct to access child pornography material on the following devices.

HP Laptop

18. On 27 January 2016, Detective Sergeant Christopher Putt collected the HP Laptop (Exhibit X0001635332) from Queanbeyan Police Station and commenced an examination of the device using the ADF Triage Examiner. He continued this examination on 28 January 2016 and prepared an extraction of that device, which he recorded on the NSW Police Force exhibit system as exhibit X0001556569 and provided to the Informant.

19. On 28 January 2016 a Cellbrite examination was conducted of the HP Laptop. As a result of this examination, police identified a video titled "37162-full.mp4" in the laptop "Downloads" folder. This file was accessed and created on 13 December 2015.

20. This video file was 28 minutes' in length. The video depicted two teenage girls aged between 14 and 17 engaged in sexual acts. The video contains masturbation and mutual masturbation, including brief digital penetration. The Informant categorised the video as CETS category 4 material.

21. Also located on the HP Laptop device were three (3) images located in the "cache" of the device as follows:

• Image 1 was accessed by the offender on 2 November 2015. The image depicted an adult male and a child under the age of 18 and over the age of 14 engaged in sexual acts. The male is in an upright position and engaged in penetrative sex with the child. The Informant has categorised the image as category 4 on the CETS scale.

• Image 2 was accessed by the offender on 8 January 2016. The image depicted an Asian child with pigtails aged under 18 and over the age of 12 engaged in fellatio with an unknown aged male. The Informant has categorised the image as category 4 on the CETS scale.

• Image 3 was accessed by the offender on 8 January 2016. The image depicted a girl engaged in fellatio. The Informant has categorised the image as category 4 on the CETS scale.

Alcatel mobile phone with cracked screen

22. On 1 August 2017, Detective Sergeant Putt commenced an examination of the Alcatel mobile phone with cracked screen (Exhibit X0002528571) that was seized during a search warrant at the offender's residence on 8 June 2017. Putt used the Cellbrite Forensic Examination tool.

23. As a result of the Cellbrite examination, the Informant identified that the offender accessed 25 CETS category 1 images on the device (3 of which were duplicates) between 5 October 2016 (date the phone was activated) and 8 June 2017 (date the phone was seized under search warrant).

24. In particular, of these 22 images the Informant identified an image titled "teen-little-girl-bath.jpg" in the web history of the device. Police identified this image as having been accessed by the Offender on 21 November 2016. The image depicts one female child under the age of 18 years engaged in a sexual pose in an empty bath tub.

Telstra ZTE GSM- T81 Telstra Tempo

25. On 29 March 2018 a Cellbrite examination was conducted on the Telstra ZTE GSM -T81 Telstra Tempo mobile device (Exhibit X0000290462) and the results of that examination were exhibited as exhibit X0000290470.

26. The Informant observed that there were 9060 images, of which 1435 were recovered deleted images, on the device. Of those 1435, the Informant located 6 images that contained child pornography material that were accessed between 19 September 2017 and 14 December 2017:

27. These images included and were categorised as follows:

1. Image 1 of 6 (336 of 9060) - depicts a female child under the age of 18 without makeup (who appears to be aged approximately 16) wearing a yellow beaded necklace holding a silver packet laying on a bed naked with legs raised and parted (CETS category 1).

2. Image 2 of 6 depicts two topless female pubescent children without makeup (who appear aged approximately 16) from the waist up in a hugging position. A child with brown hair is hugging a child with red hair and pig tails from behind
   in a naked pose (CETS category 1).

3. Image 3 depicts a naked female pubescent in a bedroom with children's storage boxes in the background on a shelf. The child is faced down on the bed on her knees in an act of penetrative sexual activity with an adult (CETS category 4).

4. Image 4 depicts a naked female pubescent child wearing a hair clip and beaded necklace and no makeup, on a bed facing the camera with legs apart in an act of penetrative sexual activity with an adult (CETS category 4).

5. Image 5 is the same female pubescent child as Image l, lying face down on the bed in the same naked pose (CETS category 1).

6. Image 6 depicts a female pubescent child who is naked and lying on her front on a bed in a pose (CETS category 1).

COUNT 4 – Transmit child pornography material contrary to Section 474.19(1) of the Criminal Code (Cth) 1995

28. On 8 October 2016, the Informant was advised that a friend request had been received from the Facebook profile "Jess Watson", and a copy of an image was attached to the profile to the Informant.

29. Attached to the profile "Jess Watson" was an image of a girl aged under 10 years of age sitting on a balance beam in a purple gymnastics leotard. This image appeared to have been uploaded as the profile image for the profile "Jess Watson" on 30 September 2016.

30. On 2 October 2016 the profile "Jess Watson" commented on the image, "can you rape me”.

31. On 18 December 2016, JY saw the offender at Riverside Plaza and identified her as possibly transgender. JY was involved in the local transgender community and had been supplying transgender persons with makeovers. JY approached the Offender and explained her role. She provided the Offender with her business card.

32. On 19 December 2016, JY began receiving text messages the Offender, who identified herself as "Jessica", using mobile number ending in 563. A subscriber check was ordered on that mobile number which showed that this number was subscribed to the offender.

33. A number of the text messages caused JY to fear that the Offender had a young female child with her and was planning on sexually assaulting her. In particular, there were the following conversations:

“JY: What would you like to talk about?

Offender: I see girls body parts cool

Offender: About my baby sitting and my feelings and girls shopping

JY: Ok I will be home then

Offender: should I put same clothes on her

JY: Goodnight

JY: Why is she naked?

Offender: We are teaching our body ... OK goodnight

Offender: she always sleeps in that way

Offender I do to

JY: Don't touch her Jessica that is not ok

JY: Go and put your pj's on or a nightie

Offender: Why

Offender: I don't have any

JY: Because it is not safe you are young and should be safe

JY: Ok well keep her safe

JY: That is your job and no breastfeeding that is not ok

Offender: My friend is getting undress now and she is getting me undress

JY: Why are you telling me this?

Offender: She is touching the I don't know what to do

Offender: And she ask for my breast milk her mummy does not want her

Offender: She will not stop asking me to breastfeed her

Offender: Can we talk please

JY: I am at work this is very concerning where are you?

Offender: Breastfeed my friend's little girl

Offender: She has taken off her clothes and mine to

Offender: She is on top of me

JY: I am worried you are sexually active with her she is 9 years old that is not ok it is breaking the law and fucking terrible

JY: If you are touching her inappropriately I will fucking find you

Offender: I have said no to her

Offender: I will go down town and found a little girl

Offender: Do you want me to go found a little girl

JY: What do you mean?

Offender: I have a little girl

Offender: To go and get her same clothes and try them on and see her body parts

Offender: and see her nude

Offender: Are you they

Offender: Are you there

JY: Yes

Offender: I have the girl with me nude

Offender: The little girl is with me

Offender: I want to go and get a young little girl

Offender: I want to go and get a little girl

Offender: What should I do to her

Offender: I want to have little girl love to her

Offender: What should I do to her after I had little girl love to her

Offender: Why do I feel this way

Offender: I have the girls now.”

34. In March 2017, JY received a message from the mobile number ending in 003 belonging to the offender. JY asked who the sender of the message was, and the person identified themselves as "Jessica". JY identified the person as the "Jessica" who had previously contacted her from mobile number ending in 563. The following messages occurred:

“Offender: I have done something very bad

Offender: Please say something

JY: What did you do?

JY: Are you getting support with your transition? It is very important to have people to talk to?

Offender: I am in the girls change room and they ask me to feel the girl's Boob's and on the girls leg's and no I don't have people to talk to about it

Offender: But I said no to them

Offender: What can I do about the 2 girls

JY: I don't know what you're referring to. Go to your parents or the police if you need help.

Offender: They got undress in the girls change room and they ask me to feel them on the pussy and the Boob's.

JY: I don't care. Why are you telling me this?

Offender: I have them at my home and its great.”

35. The offender's communications constituted child pornography material.

36. The offender participated in a recorded interview on 6 June 2017 in which she made a number of relevant admissions. She was charged with the current matters on 2 November 2017 whilst in custody on other matters. Her custodial history is referred to below.

37. She made a second record of interview on 16 December 2018 and made a number of relevant admissions.

38. It was common ground on the re-sentence hearing that documents relevant on the original sentence, including a Sentencing Assessment Report of Ms A Cremer dated 6 November 2019, a report of Dr A Ellis, forensic psychiatrist, dated 10 November 2018, a report of Ms M Godbee, forensic psychologist, dated 7 November 2019, a report of Dr J Q Le dated 27 March 2019, a report of Dr A Ellis dated 10 November 2018, a report of Dr Sally McSwiggan dated 5 August 2018, and reports of Dr D Boer dated 8 September 2017 and 8 May 2016 respectively, were of limited utility, given that the opinions expressed therein relating to the offender’s prospects of rehabilitation and risk of re‑offending were informed on a criminal history which included the contraventions of the CPPO in Counts 1 and 2.

39. Given the fact that the offender was not on conditional liberty at the time of the offending and had no relevant criminal history, it was common ground that any sentence imposed should be less than the aggregate sentence imposed in respect of Counts 3 and 4 by me on 18 December 2019 of 2 years and 9 months.

The Crown submissions

40. In a written outline of submissions, the Crown submitted that there were a number of matters in the offender’s favour to arise for consideration on re‑sentence. First, disregarding the CPPO and the resulting convictions, the offender is to be re-sentenced as a person with no admissible prior criminal history. The Crown conceded that this is a matter that would entitle the offender to a measure of leniency. Similarly, when one disregards the breaches of the CPPO and associated breaches of bail and parole, associated with contraventions of the CPPO, which are now annulled, the offender has no history of non-compliance with court orders. The Crown further accepted that in respect of Counts 3 and 4, the conduct was not aggravated by being committed during the duration of the CPPO and while the offender had reporting obligations under the CP Act.

41. In respect of the offender’s time in custody and the backdating of any sentence, the Crown noted that s 16E of the Crimes Act 1914 (Cth) provides that the commencement date of the sentence is as per the law of the relevant State. Thus, pursuant to s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), the court must take into account any time for which the offender has been held in custody in relation to the offence. This means that the sentence should be backdated to take into account this time.

42. The offender’s custodial history is not uncomplicated and the Crown relied on a table, a copy of which is annexed as Annexure A to these remarks. It concluded that the total for all periods in custody amounted to 881 days or 2 years and 5 months, however, the total for periods when apparently on remand or serving a sentence for these offences, was 844 days or 2 years and 4 months.

40. The Crown submitted that the court must take into account 844 days for the purposes of s 47(3) of the CSPA. As to the other periods in custody, this unrelated curial punishment is a background fact that may be relevant to the exercise of the sentencing discretion, given that any further custody is effectively being served on top of prior custody (some of which may not have been warranted), relying on Refaieh v R [2018] NSWCCA 72.

41. The Crown submitted that the following findings made by me on sentence remain open:

1. The maximum penalties for the offences.

2. The factors relevant to the exercise of the sentencing discretion pursuant to s 16A(2) of the Crimes Act 1914 (Cth), and the fact that imprisonment is a sentence of last resort pursuant to s 17A of the Crimes Act 1914 (Cth).

3. The objective seriousness of the offending for Counts 3 and 4 is unchanged, and the Crown accepts my prior characterisation of the offending for both counts.

4. The offender is being sentenced for two similar offences committed in the same time period and therefore principles of totality are engaged.

5. The offender is entitled to a discount for an early plea of guilty.

6. A significant factor in the sentencing exercise is that the offender continues to have significant intellectual disability and other mental health conditions. These are relevant to the assessment of her moral culpability, her appropriateness as a vehicle for deterrence and the fact that any sentence imposed will be onerous for her.

7. There is also evidence that the offender had a disadvantageous and traumatic background which may engage principles as explained in Bugmy v R [2013] HCA 37; [2013] 249 CLR 571; s 16A(2)(m) of the Crimes Act 1914 (Cth).

8. The offender’s disability means, however, that the court may not have confidence that she will be able to comply with conditional release orders.

9. For these reasons the sentence must effect some specific deterrence.

10. The offender continues to present with ongoing risk factors relating to sexual re-offending against children. There is evidence that on a statistical tool she presents as “well above average risk of re‑offending”. Whilst the various reports before the court, referred to above, all identify some risk, and even in the event of disaggregating the matters relating to the CPPO, my previous assessment that the risk of re‑offending was “medium to high” remains apposite. The Crown submitted the court could not conclude that the offender has good prospects of rehabilitation or that she is not likely to re-offend. It is submitted that she presents with a level of dangerousness that needs to be managed.

11. Subsequent to the convictions in this matter, more recently a valid but interim CPPO has been made which may be a mechanism to manage the offender’s risk in the future.

45. The Crown concluded that it accepts that clearly some lesser sentence than previously imposed is warranted and that the structure of the sentence may well be different to that previously imposed. Any sentence will need to take into account the fact that the offender has now served a significant period in custody, some of which may not have been justified.

46. In her oral submissions, the Crown rehearsed the salient features of those written submissions by way of explanation of the Crown’s position. It was submitted that the principle of totality should be applied, however, given that there are two counts, it may not require an aggregate sentence, however, there must be some accumulation in sentence. The Crown agreed that a 25% discount for the offender’s early plea of guilty was appropriate.

47. In respect of the determination of the offender’s risk of re-offending, the Crown rehearsed its submission that all of the report writers had regard to the previous contraventions of the CPPO and that therefore informed their assessment of the risk of the offender re-offending. Notwithstanding that, the criminal conduct involved in Counts 3 and 4 itself, which took place over a period of two years, together with the offender’s personal circumstances, were sufficient for the court to determine that the offender does present with a significant risk of re-offending. The interim CPPO, however, may provide some measure of protection to the community. Given the time spent in custody, there was some measure of artifice involved in what was an important sentencing process.

The offender’s submissions

48. Learned Counsel for the offender also relied on a written outline of submissions, which agreed in large part with the Crown submissions. The offender was to be sentenced in respect of Counts 3 and 4 as a person with no criminal convictions and would therefore be entitled to leniency in the sentencing process. It was accepted that no penalty other than imprisonment was appropriate in all of the circumstances, however, the commencement date remained an exercise of discretion. On the previous sentence, it had been submitted on behalf of the offender that her sentence should commence on 14 December 2017, when her parole had been revoked. The previous aggregate sentence in respect of Counts 1 and 2 commenced on 13 June 2018, and the previous sentence in respect of Counts 3 and 4 commenced on 13 September 2018. In imposing that sentence, I had not taken into account the period in custody for the breach of the offender’s parole. It was submitted that the first mention in the Local Court of Counts 3 and 4 was on 15 January 2018, which gave rise to a discretion to backdate the sentence in respect of Counts 3 and 4 to that date.

49. In oral submissions, the court was informed that the offender was served with court attendance notices in respect of Counts 3 and 4 on 2 November 2017 whilst she was in custody in respect of Counts 1 and 2.

50. With respect to the assessment of the risk of the offender re-offending, counsel submitted that the reports referred to should be tempered because the opinions of the report writers took into account irrelevant material, namely, the offender’s prior criminal history, as a significant factor. Notwithstanding that, the offender did not seek an adjournment to update those opinions.

51. Counsel submitted that the court must take into account the 844 days the offender spent in custody as outlined above, but may as a matter of discretion, take into account the additional 29 days when the offender was technically bail refused. It was submitted that on re-sentence, there was no need for a recognisance release order, given the time served.

52. Counsel also renewed her application made in the Court of Criminal Appeal for a pseudonym to be used for the applicant’s name as there had been reference to offences committed when the applicant was a child.

Subjective factors to be taken into account

53. I have taken the following subjective matters into account on sentence:

1. The offender has a mild intellectual disability with symptoms of a Borderline Personality Disorder.

2. Earlier mental health diagnoses were uncertain, however, complex issues arose in the offender’s background and I accept that she has suffered some deprivation in her formative years, given her disadvantageous and traumatic background.

3. The offender’s mental health contributed to the offending and she has limited insight and self-regulation skills.

4. The offender has expressed some remorse in her apology to the court and her acknowledgement that she needed help. This must be tempered by her lack of insight into her offending conduct.

5. The offender has complex treatment needs which are currently being met by the NDIS.

Determination

54. The parties do not dispute my previous characterisation of the objective seriousness of the offending in Counts 3 and 4 as follows.

55. The objective seriousness of the offending in Count 3 involved the offender accessing child pornography material over a period of just over two years. The material was accessed on three different devices and comprised one video and 34 images. The video was 28 minutes in length and contained CETS Category 4 material, as outlined above. The images contained one categorised as CETS Category 4 and 25 categorised as CETS Category 1. Whilst the offending conduct was not an aberration or isolated incident, the number of images was not great by comparison to other cases dealt with pursuant to s 474.19(1)(a) (i) of the Criminal Code (Cth) 1995.

56. What elevates the seriousness of the offending here was the nature and content of the material, and in particular, the age of the children and the gravity of the sexual activity depicted. Also relevant was that the offending took place over a period of just over two years. I accept the Crown’s submission that it constituted pernicious offending. Whilst it constituted serious offending, given the relatively small number of images involved, it was below the mid-range for an offence pursuant to that section, and in the upper part of the low range of objective seriousness.

57. Count 4 related to the transmission of the child pornography material, being the image contained in Ex E with the comment “can you rape me”, and the communications with Ms JY set out above. This occurred on two separate occasions.

58. That the material subject to the transmission constituted fantasies of the offender is irrelevant to the assessment of the objective seriousness of the offending. The communications with JY were extensive and graphic, and understandably caused her to fear that the offender was sexually abusing children. Section 474.19 (1)(a)(iii) of the Criminal Code (Cth) covers a wide range of offences concerning transmission of child pornography material and given the extent of the offending here, the objective seriousness fell below the mid-range for an offence under that section, and in the middle of the low range.

59. In sentencing the offender for these Commonwealth offences I must have regard to the matters set out s 16A of the Crimes Act 1914 (Cth). I therefore take into account the following matters:

1. (a) The nature and circumstances of the offences

2. The offending in Counts 3 and 4 have been set out in detail above, as have my findings as to the objective seriousness of the offending for each offence. I do not accept the Crown submission on the first sentence hearing that the offending, when viewed together, may be a precursor to physical (as opposed to online) contact offending, as a relevant factor in sentencing here.

3. (c) The course of conduct of the offending

4. The offending took place for a period in excess of 2 years. The offending conduct consisted of a series of criminal acts both in Count 3 and Count 4, which were not isolated.

5. (d) The personal circumstances of any victim of the offence

6. The Victim Impact Statement of the victim JY has been taken into account and is referred to below. She clearly suffered harm as a result of the offending conduct.

7. The offender’s Facebook communications with a number of known and unknown victims clearly was a matter of concern to those victims and their parents.

8. (f) The degree to which the person has shown contrition for the offence

9. Whilst the offender has expressed remorse in her letter to the court and has pleaded guilty at an early opportunity to the offences, she has failed to demonstrate insight into her offending conduct and acknowledge her responsibility for it.

10. (g) The offender has pleaded guilty

11. The parties agree that the offender is entitled to a 25% utilitarian discount on sentence for her early plea of guilty.

12. (h) The degree of cooperation with law enforcement agencies

13. The offender has cooperated with law enforcement agencies to the extent of making admissions in her records of interview.

14. (j) Specific deterrence

15. As outlined above, specific deterrence does have a role to play here, as the offender must understand that if she engages in similar criminal conduct in the future, she will face increasingly lengthy periods of imprisonment.

16. (ja) General deterrence

17. For the reasons outlined above, based on the offender’s mental health issues and diagnoses, together with her disadvantageous background, she is not a vehicle for general deterrence as a significant factor in the sentencing process here.

18. (m) Subjective factors

19. These have been set out in detail above and are taken into account.

20. (n) The prospects of rehabilitation of the person

21. The offender has a complex medical and psychological background which will require a great deal of support to enable her achieve any rehabilitation. That support is available through the NDIS, but probably not to the extent that it is required for this offender. Her prospects of rehabilitation are therefore somewhat guarded.

60. The offender’s risk of re-offending is difficult to assess on an evidentiary basis, given the qualification to the opinions expressed by the various report writers as outlined above. Notwithstanding that, the nature of the offender’s background and the fact of her criminal conduct over a period of 2 years, suggests there is a relatively high risk of this offender re-offending in the absence of adequate support systems in place. The interim CPPO may be sufficient to address these concerns, and lower the risk to the community.

61. I have also had regard to the maximum penalties proscribed in respect of both Count 3 and 4 of 15 years imprisonment and/or 900 penalty units (a fine of $162,000). The maximum penalties are guideposts in the sentencing process.

62. I have also had regard to the Victim Impact Statement tendered by the Crown on behalf of JY. It is clear that harm was done to the victim both psychologically and practically to her life. I note that there is no medical evidence against which to assess the Victim Impact Statement, however, I find that such harm was reasonably foreseeable in the circumstances and I have therefore taken the Victim Impact Statement of JY into account, but I make it clear that I have done so not to aggravate the offender’s moral culpability.

63. I have also taken into account the factors of deprivation in accordance with the principle in Bugmy v R, supra. I take into account the time the offender has spent in custody in respect of these matters, namely 844 days.

64. I intend to sentence the offender in respect of Count 3, the offence pursuant to s 474.19(1)(a)(i) to a term of imprisonment of 1 year and 9 months. In respect of Count 4, the offence pursuant to s 474.19(1)(a)(iii), I intend to sentence the offender to a term of imprisonment of 1 years and 6 months.

65. In structuring the sentence, I have had regard to the principle of totality as stated by Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27], as set out in my previous remarks on sentence.

66. As a matter of discretion, I intend to backdate the sentence to commence on 14 December 2017. The offender was served with future court attendance notices in respect of Counts 3 and 4 prior to that date when she was in custody in relation to Counts 1 and 2. Disregarding that custody, and any further custody brought about by revocation of any parole previously imposed, 14 December 2017 was the first court date, following which, the offender was in custody in relation to the offences in Counts 3 and 4 – see s 47(3) of the CSPA. In so exercising my discretion in this way, I am mindful that there were subsequent periods of time when the offender was at liberty on bail, and that the sentence that I intend to impose is for a shorter period than the period for which the offender has been in custody, whether that be 881 days or 844 days, calculated in accordance with Attachment A.

67. Having regard to the nature and circumstances of the re‑sentencing here, and the fact that the offender has already served a term of imprisonment longer than the sentence to be imposed, pursuant to s 19AC(4) of the Crimes Act 1914 (Cth), I decline to impose a recognisance release order.

68. I intend to structure the sentence as follows. In respect of Count 4, there will be a sentence of 1 year and 6 months imprisonment commencing on 14 December 2017 and expiring on 13 June 2019. In respect of Count 3, the sentence will be 1 year and 9 months imprisonment which will commence on 14 June 2018 and expire on 13 March 2020. The total effective sentence will be therefore be a sentence of 2 years and 3 months imprisonment.

Orders

69. I make the following orders:

1. You are convicted of the following offences:

Count 3- Between about 2 November 2015 and about 14 December 2017 used three carriage services namely a HP Laptop, Alcatel Mobile Phone with cracked screen and a Telstra ZTE GSM – & 81 Telstra Tempo device, to access child pornography material contrary to Section 474.19 (1)(a)(i) of the Criminal Code (Cth) 1995.

Count 4 – Between about 2 October 2016 and about 15 March 2017 caused material to be transmitted using a carriage service, the material being child pornography material contrary to Section 474.19(1)(a)(iii) of the Criminal Code (Cth) 1995.

2. In respect of Count 4, I sentence you to a term of imprisonment of 1 years and 6 months to commence on 14 December 2017 and to terminate on 13 June 2019.

3. In respect of Count 3, I sentence you to a term of imprisonment of 1 year and 9 months to commence on 14 June 2018 and to terminate on 13 March 2020.

4. Bail is dispensed with.

70. I decline to make an order for a pseudonym here. The offender is sufficiently protected by the circumstance that her former name has not been referred to and also by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) which prohibits the publication of the name of the person if the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed.

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ATTACHMENT ‘A’

DATES	CUSTODIAL STATUS	TOTAL DAYS
2 November 2017 – 4 December 2017 Time between charge date (while in custody) and release to parole	Offender in custody The Crown’s submissions were that a future Court Attendance Notice (Future CAN) was served while she was in custody and so there was no bail: AB 337 This appears to reflect the Local Court bench papers.	33 days
5 December 2017 – 13 December 2017	The applicant at liberty on parole
14 December 2017 – 14 January 2018 Time between entry to custody and first court appearance	Likely no bail or remand during this period because the offences were proceeding by way of Future CAN, see above	32 days
15 January 2018 – 5 June 2018 Time between first court appearance and apparent release on bail	The Local Court papers show that the offender was bail refused.	142 days
6 June 2018 – 15 June 2018 Applicant released on bail	Applicant at liberty
16 June 2018 – 16 September 2019 Time from first court appearance to committal	The Local Court papers show “breach bail” then thereafter that the offender was bail refused. During this period there may have been committal to the District Court then remittal for a fitness inquiry	458 days
17 Septembet 2019 – 18 December 2019 Committal date to sentence date	After committal, the offender would have been in custody for this offence because of the operation of s 109 of the Criminal Procedure Act 1986 (no bail order having been made)	93 days
18 December 2019 – 12 March 2020 In custody serving this sentence until parole order	Serving this sentence	86 days
13 March 2020 – 8 July 2020	Offender at liberty on parole for Counts 1 and 2 Recognisance entered and serving this sentence on Counts 3 and 4
9 July 2020 – 14 August 2020 From revocation of parole to release to parole	This is a period when her parole was revoked on Counts 1 and 2 Technically she was on a recognisance on Counts at this time, so it is not strictly referrable to this offending	37 days
15 August 2020 – Present On parole	Applicant at liberty on parole on Counts 1 and 2 Serving this sentence
Total for all periods Total for periods when apparently on remand or serving		881 days = 28 months (approx. or 2 years and 4 months
		Total for periods when apparently on remand or serving a sentence for these offences		844 days = 28 months (approx.) or 2 years and 4 months

Amendments

06 October 2020 - Paragraph 68, Line 3, May 2019 changed to June 2019. Line 5, May 2018 changed to June 2018; Line 5, February 2020 changed to March 2020.

Paragraph 69 (3) Line 2 May 2018 changed to June 2018. Line 3, February 2020 changed to March 2020.

Decision last updated: 06 October 2020