R v West

[2023] NSWDC 614

District Court

New South Wales

Medium Neutral Citation:

R v West [2023] NSWDC 614

Hearing dates:

11/8/23, 18/8/23

Date of orders:

18/9/23

Decision date:

18 September 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

For the Commonwealth offences, I impose an aggregate head sentence of 3 years imprisonment (30/9/21-29/9/24). I decline to set a Recognisance Release Order as the offender will remain in custody by reason of the sentence imposed for the State offences.

The indicative sentences are (25 percent discount taken into account)

Seq 1 (Possess child abuse material) – 2 years 3 months

Seq 7 (Access child abuse material) – 1 year 6 months

Seq 9 (Transmit child abuse material) – 1 year 6 months

Seq 16 (Transmit child abuse material) – 1 year 7 months

For the State offences, I impose an aggregate term of imprisonment of 7 years 9 months (30/9/22-29/6/30) with a NPP of 5 years 4 months (30/9/22-29/1/28). I find special circumstances.

The indicative sentences are:

Seq 8-14 (Sexual intercourse with child under 10 years) – 3 years 9 months with NPP 2 years 8 months (50 percent discount taken into account).

Seq 15 (Incite child under 10 to do sexual act) – 9 months (50 percent discount taken into account)

Seq 11 (Use child to produce child abuse material) – 1 year 6 months with NPP 13 months (25 percent discount taken into account)

Seq 12 (Use child to produce child abuse material) – 1 year 8 months with NPP 14 months (25 percent discount taken into account)

Seq 15 (Use child to produce child abuse material) – 1 year 7 months with NPP 14 months (25 percent discount taken into account).

Therefore, the total effective head sentence is 8 years 9 months (30/9/21-29/6/30) and the total effective non-parole period is 6 years 4 months (30/9/21-29/1/28).

Catchwords:

Crime – Sentence – State and Commonwealth offences - Sexual intercourse with child under 10 years – Use child under the age of 14 years to produce child abuse material – Possess child abuse material obtained using a carriage service – Use carriage service to access child abuse material – Use carriage service to transmit child abuse material

Legislation Cited:

Crimes Act 1900

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 302 ALR 192

Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194

DPP v Burton [2020] NSWCCA 54

R v Hutchinson [2018] NSWCCA 152

Category:

Sentence

Parties:

NSW DPP – Crown
Zack West - Offender

Representation:

Ms J Kelton for Crown
Ms B Epstein for Offender

File Number(s):

21/279011
22/73106

Publication restriction:

Statutory non-publication of the identities of the victims

remarks on sentence

1. The offender, Mr Zack West, is for sentence in relation to a number of offences. Firstly, some State offences, those being 7 counts under s 66A of the Crimes Act 1900, being offences of sexual intercourse with a child under the age of ten, sequences 8 through to 14. The maximum penalty for those offences is life imprisonment and a standard non-parole period of 15 years is specified. Also, the sequence 15 offence which is an offence under s 66DC(b) of inciting a child under ten years to do a sexual act, that carrying a maximum penalty of seven years imprisonment.

2. Also, the sequence 11, 12 and 15 offences which are each offences under s 91G of the Crimes Act of using a child under the age of 14 years to produce child abuse material. The maximum penalty for those offences is 14 years imprisonment and a standard non-parole period of six years is specified.

3. He is also for sentence in relation to some Commonwealth offences, firstly a sequence 1 offence under s 474.22A(1) of the Crimes Act 1914 of possessing child abuse material obtained or accessed using a carriage service. The offence carries a maximum penalty of 15 years imprisonment.

4. Also, the sequence 7 offence which is one of using a carriage service to access child abuse material which carries a maximum penalty of 15 years imprisonment and also the sequence 9 and sequence 16 offences which are each offences of using a carriage service to transmit child abuse material. The maximum penalty for those is 15 years imprisonment.

5. The maximum penalties and where applicable, standard non-parole periods, are of course important guideposts in the sentencing exercise to which I have had regard.

6. The offender pleaded guilty at the earliest stage and I intend to allow a 25 percent discount on account of the utilitarian value of the pleas of guilty. That of course is a matter of statutory provision under New South Wales legislation. In relation to Commonwealth matters of course there is no set percentage of discount for such a plea, however I intend to allow a 25% discount in relation to the plea of guilty in relation to both the Commonwealth and the State offences.

FACTS

7. Turning to factual matters, the offender resided with his parents in Shortland. The offender had a niece who I will refer to in these remarks as Y, that is the letter Y, or Victim Y, who was born in April 2012, and who lived in Tamworth with her mother, younger sister who I will refer to as Z or Victim Z, and her younger brother. In 2017 and 2018 the offender would visit Tamworth during the music festival and would stay in the house with the victims, where he would sleep in the loungeroom. Also, on occasions, the victims and their family would visit the offender’s home, where they would stay a few nights.

8. At the beginning of 2019, the victim’s family moved to Tea Gardens, and during this time they would visit the offender’s home for Christmas. On 30 September 2021, members of the Australian Federal Police attended the offender’s home in Shortland with the intention of executing a search warrant. Upon police arrival, the offender immediately said “I know what you’re going to find on there. I’ve been doing these things to help you guys. I am so sorry. I hate children”. Police located three Samsung phones which they designated A, B and C. The offender was arrested and voluntarily provided the passcodes to phones A and B but refused to do so for phone C. An examination of the three phones revealed the presence of child abuse material relating to the period January 2018 to September 2021.

9. The agreed facts hereafter are somewhat lengthy but in essence they are as follows. The sequence 1 Commonwealth offence relates to a total of 2078 images and 167 videos of child abuse material that were found on the offender’s three mobile phones. A large amount of the child abuse material involved candid and posed images of female and male children ranging in age from one to 15 years. Some of the material showed vaginal, anal and or oral rape of male and or female children by adult males as well as sexual conduct between children and children masturbating or urinating.

10. The agreed facts from paragraphs 22 and following include descriptions of samples of images and videos which I do not consider appropriate to read out in Court. It suffices to note that they included many items of an extremely explicit and perverse nature, some of them involving very young children either posing so as to expose their genitalia or performing or having performed on them various sexual acts. A small number of the samples involved a child as young as three to five years being penetrated vaginally or anally; and in the worst category, some items depicting the penetration of infants as young as one to two years.

11. In relation to the sequence 7 offence, I note that this Commonwealth offence occurred on 15 July 2020 and involved the offender using an internet platform called Discord to access a video of child abuse material which was sent to him by another person. The video was just under two minutes duration and showed a pre-pubescent girl aged ten to 12, naked from the waist down, licking her fingers and masturbating. The offender in his chat with the other user described the video as “hot” and when told that the girl was nine to ten years old said “I’d fuck that. What else you got?”.

12. The sequence 9 Commonwealth offence occurred on 29 June 2021 and involved the offender transmitting child abuse material to another person who was using the name “Princess Sophie”. The child abuse material involved two images. One of a girl aged four to six years sitting on the floor playing with a toy set with her legs slightly apart exposing her vagina. The other image was of a girl aged eight to ten years standing outdoors wearing a jacket, shoes and socks but no pants, and exposing her vagina. During the exchange with the other user, the offender made comments describing one of the images as “yummy”.

13. The sequence 11, 12 and 15 New South Wales offences involved the production by the offender of images of the offender’s niece, Y, which amounted to child abuse material. The sequence 11 offence involved an image captured on 26 January 2018 when Y was about five years of age and shows her lying on a mattress wearing only underpants. The sequence 12 offence relates to three images made on 13 January 2019. The first image shows Y who was then aged about six, standing and wearing only underpants. The second image shows her buttocks and anus and the third image shows her vagina exposed with her underpants pulled to one side.

14. The sequence 15 offence involved an image made on 22 January 2020 when Y was seven years old and shows her lying naked on a bed with legs spread exposing her vagina. In relation to this offence, police found in the offender’s bedroom a blanket which matched the appearance of the blanket seen in the image.

15. The sequence 16 Commonwealth offence relates to a series of occasions on which the offender transmitted child abuse material to other people. On the first occasion which was 8 November 2019, the offender engaged in an exchange with “Joshua” during which he transmitted one image of a naked boy aged six to eight years standing by a swimming pool. The conversation during which this image was transmitted included the offender describing sexual acts that he claimed to be performing with the young male including oral and anal sex. As the agreed facts do not suggest that the offender had any actual contact with the young male however, I have assumed for the purposes of sentence that these comments were in the nature of some type of fantasy.

16. The second series of communications in which the offender transmitted child abuse material for the purposes of this sequence 16 offence, occurred during six online conversations with a person using the name “Celine”. In the first conversation which was on 4 December 2019, the offender wrote “Do any of our kids do this?” before sending an image of two prepubescent boys urinating. In a conversation on 25 January, the offender sent an image of the offender’s niece, Y, that is also the subject of sequence 15, together with an unintelligible sentence referring to wanting her “in the family”.

17. On 27 February 2020, the offender transmitted a further three images to Celine saying, “Save them then watch them”. The first image showed a boy aged eight to ten years holding his penis. The second showed a boy aged nine to ten being penetrated anally by an adult male’s penis and the third showed a girl aged five to six sitting on the ground with an adult male’s erect penis held at her face. After sending this last image, the offender referred to wanting to teach his niece to “do that”.

18. In a third conversation with Celine which occurred on 9 March 2020, the offender sent an image of a naked prepubescent girl holding her knees towards her face exposing her genital area and an image of a boy aged five to six, sitting in a car holding his penis. There was also an exchange of words between the offender and Celine, the meaning of which I am unable to determine other than to note the offender’s comment that he wanted “both in the family”.

19. On 18 March 2020, the offender sent an image to Celine of a naked girl aged five to seven years wearing knee high boots and on 5 April 2020 he sent another image of a naked girl with legs spread and the words “Ghost wants her, she’s six and make sure Giarna calls early tonight”. The exact meaning of that sentence is, I might note, unclear to me but it is of some significance that it refers to somebody being six which presumably is a reference to the girl’s age.

20. The third series of communications that are the subject of this sequence 16 offence occurred between the offender and someone calling themselves “Chloe”. These communications occurred on 14 and 15 April 2020. As part of this transmission, the offender asked Chloe whether he, that is the offender, should “cum on Giarna’s belly”. After Chloe answered “Sure”, the offender sent an image of a naked girl aged four or five lying on her back with legs up and a white substance on her vagina and stomach. After this, the offender sent another image of child abuse material and made reference to his niece and to his being “horny”.

21. On 8 March 2022, police attended at a correctional centre where the offender was being held, bail refused, to speak to him about unrelated matters. The offender then began to tell police about incidents which had occurred between himself and his niece, Y. The offender was cautioned by police and asked if he wanted a lawyer present but he declined saying, “No, I just want to get this out of my head. I’ve been feeling sick from what I’ve done and couldn’t sleep last night.” The offender then told police of an occasion when he was staying at the victim’s house and that she was his friend and he was like a father. He told police that while the victim was watching YouTube Kids on his phone, he began rubbing her vagina, put his fingers inside her vagina and that he was “turned on”, but could not do anything else as his sister was in the other room.

22. The offender said that he knows the victim will not forgive him for what he has done, but he cannot forgive himself and wants to apologise to her. When asked by police why he did it, the offender said “I don’t know, it just happened. I was just feeling good inside when I was doing it. I went into the bathroom and finished myself off. That was the first time it happened.” When asked by police, “What do you mean the first time?” the offender replied, “I put my fingers insider her five or six times” and “She must have liked it because she kept coming back. If she didn’t like it she would have told someone and they would have stopped her coming.”

23. Police also asked, “You mentioned that (the victim) was between six and nine years old, did she tell you how she was feeling about it?” to which the offender replied “I don’t want to talk about them times, I am too ashamed and it makes me too upset, I just want to have a good night sleep and not think about this anymore. I just want to apologise to her.”

24. Police asked, “Is there anything else you want to tell us?”, to which the offender replied, “I also asked Z,”- that, of course, being the younger sister of Y - “do you want to be a big girl?” And, “I then made her pull her pants down so I could get a good look at her vagina. Then I went to my room and touched myself. But I never touched her. I never touched her like that, only Y.”

25. Police subsequently passed this information to the Child Abuse Squad in Tamworth, and on 9 March 2022, Victim Y, who was then 9 years old, was interviewed by police. Upon being interviewed, Y said that she knew what police were talking about, but that it was embarrassing and too hard to talk about. She said that things had happened with the offender at her house, and at her grandparents’ house as well as in the offender’s bedroom at Shortland. She agreed that the offender had used his fingers to touch the inside of her vagina; that this happened “quite a lot”, and that it made her feel scared.

26. The offender was re interviewed by police on 14 March 2022, at a remand centre, and asked about the earlier conversation of 8 March 2022. He told police, “I, well, fingered my niece”, and “I only rubbed her down there, no insertion, nothing like that”. He confirmed to the police that he had touched the victim, Y, inside her clothing on the vagina, and that this had occurred three or four years prior; and that he would say to her “Do you like it?”, and “I’m not going to hurt you”. He also said that he told Y, “It would be best if this was between us, because I can get in a lot of trouble.” The offender told police that by this he meant that he could spend years in gaol and have his life destroyed, and he knew what he was doing was wrong at the time, but that at the time, “I just did not give a shit.”

27. The offender told police that he wanted to admit everything, to be honest, and say exactly what had occurred; to apologise to the victims and their mother, and “Make things right.” He said he deserved to be hated, and deserved to die.

28. The first incident, which is the subject of the sequence 8 New South Wales offence, occurred when Victim Y was four to six years old, and the offender was staying at the house in Tamworth. The offender was woken up by Y, and he told her to get in bed with him. The offender then put his hand on her belly, which he then slipped into her underwear, and touched her vagina. The offender said he may have rubbed between the victim’s labia, but denied that his fingers went inside her vagina. He said he was “slightly” enjoying it, and that it continued for about ten minutes, before the victim became bored watching a YouTube program on the offender’s phone, and she left the bed.

29. The second incident is the subject of the sequence 9 New South Wales charge. It occurred when Y was, again, according to the facts, aged between four and six years, and the offender was staying at the house at Tamworth, during the music festival. The incident was similar to the previous one, where the victim got into bed with the offender, and he touched her on the inside and outside of her vagina for about ten minutes, after which he went to the bathroom and masturbated.

30. Incidents 3, 4 and 5, which are the subject of, respectively, sequences 10, 11 and 12 of the state offences, involve the digital penetration of Y’s vagina on three further occasions. The offender on each occasion would afterwards go to the bathroom and masturbate.

31. Incidents 6 and 7, involving victim Y, are the subject of sequences 13 and 14. Each of these offences occurred on Christmas Day 2020, when the victim was aged about eight years, and was staying at the home of the offender and his parents in Shortland. During the visit, Y was with the offender in his bedroom when the offender penetrated her vagina using his finger, this being the sequence 14 offence. At about 8pm that night, the offender went into the bedroom where Y was sleeping with her sister Z, and carried Y into the offender’s bedroom. After this he placed her on his bed, undressed her, and penetrated her vagina with a finger, then carried her back to her own bed, after telling her, “Don’t tell no one.” This is the sequence 13 offence.

32. The sequence 15 offence was committed against Y’s younger sister, who I have referred to as Z. It also occurred on Christmas night 2020. The offender said to Z, “Do you want to be a big girl?” and when Z nodded, he said to her, “Well, show me.” Victim Z then pulled down her pants and showed the offender her genital area, in response to which the offender said it was “cute”. The victim had turned six years of age that day.

OBJECTIVE SERIOUSNESS

33. Turning then to an assessment of the objective seriousness of the various offences. The seriousness of the State offences, those being sequences 8 through to 15, to which I have just made reference, is marked firstly by the maximum penalties, and, in the case of the section 66A offences, the specification of the ultimate maximum of life imprisonment, and of a standard non parole period. Also, in relation to the section 66DC offence involving Z, there is a significant period of imprisonment, namely seven years, specified, which, although much less than the section 66A offence, is nonetheless an acknowledgement of the serious nature of such an offence.

33. There have been many pronouncements by the Courts as to the disgust and extreme seriousness which is attached to the commission of sexual offences against children. This has, in recent decades, received even greater emphasis by reason of the prevalence of such offences, and the acceptance of the damage that such offences must ordinarily be expected to involve. It is for this reason that Courts must impose significant penalties, which acknowledge the harm done to victims and which also act as a deterrent to such behaviour.

34. There are seven offences under s 66A, involving victim Y. While they are each similar, there are some differences which need to be considered. The first section 66A offence, namely sequence 8, involved penetration of the labia, although not of the vagina. The offending was not brief, but continued for about ten minutes. The victim was very young, being around six years, and so, towards the lower end of the age range for this type of offence. The Crown argued that because of her age, the victim was highly vulnerable. While I accept that this is so, I do not see this an aggravating feature, but rather an aspect that is inherent in the offence itself, and already encompassed in the finding about her very young age. The offender, on the other hand, was in his early twenties, and so there was a significant age and power differential. The offence took place in the victim’s home, where she was entitled to feel safe from predatory conduct like this.

35. I also accept that the offence involved a breach of trust. While a position of trust is not a precise term (see DPP v Burton [2020] NSWCCA 54 at para 31) it seems to me that in this case the offence was committed in a situation of trust within a family. The offender was not only trusted by his niece but also by her mother. I also find that there was a degree of calculation by the offender in taking advantage of the fact that the victim was, on this occasion, distracted in watching a video on his mobile phone which served to increase the time presumably over which the offending could continue. In my view, this offence sits around the mid range of objective seriousness.

36. The next four offences under s 66A are sequences 9, 10, 11 and 12. The factual circumstances were in each case fairly similar to the first incident except that in these four offences there was penetration not only of the labia but of the vagina. Again, they involved a breach of trust. I again assess these four offences as being around the mid range of objective seriousness.

37. The last two s 66A offences, those being sequences 13 and 14, committed against Y, occurred on Christmas day, 2020. Although these offences did not occur in the victim’s ordinary home, they did occur in the home of her grandparents which was also the home of the offender, which was at that time the temporary home of Victim Y as she was staying there over Christmas. The victim was at that time eight years old and therefore closer to but still comfortably under the threshold age element for this offence. The offender was aged 23 and therefore the age differential was considerable.

38. The offending in each case involved digital penetration of the vagina. The sequence 14 offence occurred earlier in the day when the victim was with the offender in his bedroom. The sequence 13 offence occurred later during the night when the offender deliberately took the victim to his bedroom where he penetrated her vagina with his finger and then told her not to tell anyone. Each of the offences again involved a breach of trust.

39. I regard each of these offences as being around the mid range of objective seriousness, although the offence that occurred on Christmas night is slightly more serious because of the offender’s very deliberate actions in carrying the victim to his own bedroom and then telling her not to tell anybody.

40. The sequence 15 offence involves the second victim, Z and the offender’s actions in inciting her, on Christmas day 2020, to expose her genitalia to him. The victim was then aged about six and so well under the threshold element age of ten years while the offender was aged 23 and therefore much older than the victim. Again, this offence occurred in what was at the relevant time the home of the victim. The act was relatively brief in time. The offence also involved a breach of trust.

41. I agree with the Crown’s assessment that this offence falls towards the lower end of objective seriousness. It was argued by the Crown that the offences against both Y and Z to which I’ve just referred are “representative” in the sense that these were or may not have been the only times that such offending occurred. In my view, however, the evidence is not sufficiently clear for me to reach any conclusion about this and so I have not taken this suggestion into account in assessing the above offences.

42. Turning then to the offences relating to child abuse material, these involve a mixture of State and Commonwealth offences. A non-exhaustive list of factors relevant to the assessment of such offences and in sentencing for them was set out by R A Hulme J in R v Hutchinson [2018] NSWCCA 152 at para 45 to which I have had regard. I make the following observations by reference to those factors insofar as they are relevant.

43. The sequence 11, 12 and 15 offences are all State offences, that is, offences under s 91G(1)(a) of the Crimes Act 1900. They all involve a real child, namely the offender’s niece, Y, when she was aged between about five and seven years. The offences were committed over a period of some years and so none of them can be seen as a temporary aberration. The child on each occasion was well under the 14 year threshold for this type of offence.

44. The offences involved a breach of trust. The offences did not however involve any gratuitous cruelty or physical harm and the number of images in each offence was small. They did not involve any apparent planning or sophistication and I am satisfied that the offender acted alone and essentially for his own sexual gratification and not with the intention of receiving payment or other material benefit. There was no apparent risk of the material being seen or acquired by vulnerable persons or by persons susceptible to act in the manner depicted. I regard the sequence 11 offence as being towards the lower range of seriousness but the sequence 12 and 15 offences as being more serious, although below the mid range.

45. In sentencing for the Commonwealth criminal offences to which I will come in a moment, I have had regard to the provisions of s 16A of the Crimes Act 1914 insofar as they are relevant to the offences and the offender and specifically I am referring to s 16A(2).

46. Firstly, in relation to the sequence 1 Commonwealth offence which is one of possessing child abuse material obtained or accessed using a carriage service, I make the following observations and findings.

47. Firstly, the images all involved actual children.

48. Secondly, the material was focussed on pre-pubescent children in a wide range of ages. A small percentage of the images and or videos involved very young children and babies.

49. Thirdly, while the majority of the material involved posed photographs of both female and male children, a small percentage involved much more depraved material showing the vaginal, anal or oral rape of children including some very young children. Fourthly, the number of items was fairly large and involved a significant number of different children. Fifthly, the material was essentially for the offender’s own use. Sixthly, while the offender was responsible for the production of five of the images, these being of Victim Y, there is no evidence as to the proximity of the offender’s activities to those of the persons who created the other material. As the five images of Y to which I have just referred are also the subject of sequences 11, 12 and 15, I have taken care not to double count them.

50. Seventhly, there is no real evidence of any planning, organisation, sophistication or deception being used by the offender other than his having bookmarked a few web pages. I accept that the offender acted alone in possessing the material and that there was no material risk of it being seen or acquired by vulnerable persons or persons susceptible to acting in a similar manner. I assess this as being a relatively serious example of this type of offence and towards the middle of the range.

51. In relation to sequence 7, the Commonwealth offence, being one of using a carriage service to access child abuse material, I make the following observations: This offence involved the offender using the internet to access a video which was sent to him by an other person. The video was just under two minutes duration and showed a prepubescent girl aged about ten to 12 naked from the waist down licking her fingers and masturbating. The offender, in his chat with the other user, described the video as “hot” and when told that the girl was nine to ten years old said, “I’d fuck that what else you got?”    The offence involved a real child who was quite young and it was very explicit. It was of a single victim and did not involve any gratuitous cruelty or degradation apart from that inherent in the creation of the video. The video was accessed for the offender’s own use and not for sale or other dissemination. I assess this offence as being below the mid range and towards the lower range of objective seriousness.

52. Turning then to the sequence 9 Commonwealth offence, which is one of using a carriage service to transmit child abuse material, this offence involved the offender transmitting two images, one of a girl aged four to six exposing her vagina and the other of a girl aged eight to ten wearing no pants and exposing her vagina. During the exchange with the other user, the offender made comments describing one of the images as “yummy.” Having had regard to Hutchinson v R factors, I assess this offence as also being below the mid range and towards the lower range of objective seriousness.

53. In regard to the sequence 16 Commonwealth offence, which is another offence of using a carriage service to transmit child abuse material, I make the following observations: This offence involved the transmission of child abuse material to three different people on different occasions. In my view, it is somewhat more serious than the sequence 9 offence although still below the mid range.

VICTIM IMPACT STATEMENT

55. A Victim Impact Statement was tendered at the hearing of this sentence proceeding which was read on behalf of the mother of Y and Z which sets out the very significant impact that the offences involving Y have had and continue to have. While I do not treat the contents of that statement as aggravating in any of the offences committed against Y and I was not asked to, the contents of the document confirm the usual understanding and expectation that such offences must be expected to have significant and usually long term consequences for victims and their families.

SUBJECTIVE MATTERS

56. Turning then to subjective matters relating to the offender or as it is described in the Commonwealth legislation, his character, antecedents, age and physical and mental condition. The offender is now age 26 years; he has no prior criminal history. His personal circumstances have been placed before the Court largely by means of the psychiatric report of Dr Bench. The offender was born and raised in the Newcastle area. He has a partly Indigenous racial background, but has had little acculturation into his Aboriginality. He has an older half sister, who is the mother of victims Y and Z, but he now has no contact with her due to his offending against her daughters.

57. The offender attended high school until Year 12, although he was suspended on numerous occasions for rudeness and bullying. He denied to Dr Bench any history of family domestic violence or any form of abuse as a child. Since leaving school, he has had some supported employment but in the period prior to his arrest, he was on a disability support pension due to conditions which included ADHD, oppositional defiance disorder, autism spectrum disorder and anxiety.

58. Dr Bench’s own assessment was that the offender met the diagnoses for autism spectrum disorder and possible ADHD, but concluded that it was not possible to delineate any particular mental health disturbances as specifically contributing to the offending. However, Dr Bench concluded that the offender also met the diagnostic criteria for paedophilic disorder, and that it is possible that the rigidity associated with his autism disorder has contributed to his paedophilic interests and inability to refrain from indulging those interests. It is the offender’s paedophilic interests, according to Dr Bench, that are likely to have been the most significant causal factor behind the offences.

DISCOUNT FOR DISCLOSING UNKNOWN OFFENCES

59. Another matter that, in this sentencing exercise, needs to be taken into account is the fact that the offender made voluntary and unsolicited admissions to police in relation to seven offences under s 66A that he committed against Y and the single offence under s 66DC in relation to Z. I am satisfied that in the absence of these admissions there would have been considerable doubt that the offences against Y would have come to light or been capable of proof and very little chance of the offence against Z coming to light or of being proved.

60. The offender is entitled to have these admissions taken into account as a form of assistance and facilitating justice in relation to those particular offences.

61. In assessing the appropriate discount, I have taken care to avoid reducing the sentences for these offences to a level where they are disproportionate to the seriousness of the offences. Having done so, I consider it appropriate to allow a further discount of 25% in relation to these eight State offences.

REMORSE

62. Dr Bench noted that the offender had expressed some significant remorse both in relation to his offences against his nieces and also in relation to the impact generally on children of child abuse material. The existence of remorse is also supported by the offender’s actions in having volunteered to police the fact of his offending in a physical way in relation to the State offences relating to Y and Z. I accept, therefore, that there is some genuine remorse. However, the significance of this is to be balanced against the offender’s future risk and prospects of rehabilitation to which I now turn.

PROSPECTS OF REHABILITATION

63. It is positive that the offender has expressed some remorse and disgust at his actions. However, in assessing his prospects of rehabilitation and of remaining offence-free, this has to be balanced against the history indicated by the offences before the Court and the conclusions of Dr Bench. In this regard, it is significant that the offender acknowledged a sexual interest in children both male and female, which interest he has had since at least 20 years of age. It is significant also that he has been diagnosed as having a paedophilic disorder. I also note that the offender knew that it was wrong to pursue this sexual interest but that he found the urge irresistible. While the offender appears keen to avoid similar offending in the future he has yet to receive any treatment. In the circumstances, and despite the offender’s assertions to Dr Bench that he is of no risk of recidivism, in my view he continues to present a material risk of similar offending in the future.

MENTAL HEALTH

64. Turning to matters relating to the offender’s mental health and its significance in the sentencing exercise: the relevance in sentencing where a person has a mental illness or other relevant mental condition were discussed in Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 where a number of broad principles were noted.

65. Firstly, where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced and the need to denounce the crime may be reduced with a reduction in the sentence.

66. In this case the offences were essentially the product of the offender’s paedophilia and his inability to control these sexual urges. Dr Bench’s view is that the offender’s inability to control this sexual interest in children is likely to have been contributed to by the rigidity associated with his autism spectrum disorder, although this needs to be considered against the fact that the offender knew his conduct was wrong. On balance, I accept that the evidence supports a finding that the offender’s moral culpability is reduced to some limited degree by reason of the difficulties associated with his autism spectrum disorder.

67. Secondly, by reference to some of the principles discussed in De La Rosa, an offender’s mental condition might be said to also have the consequence that he is an inappropriate vehicle for the reflection of general deterrence and specific deterrence. In this regard, while I accept that this offender’s mental conditions reduce to some limited degree the importance of general deterrence, I am of the view that there remains a need for the sentence to operate as a real personal deterrent to the offender committing similar crimes in the future.

68. Another of the principles discussed in De La Rosa was that a person’s mental health condition may mean that a custodial sentence may weigh more heavily on them and will therefore be a more onerous punishment. I accept that this principle is enlivened in this case, especially considering the offender’s autism spectrum disorder and his resultant vulnerability as noted by Dr Bench. Conversely, and as also noted in De La Rosa it may be that a person’s mental illness may lead to the conclusion that they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence. Again it seems to me that this principle is of importance in this case given the offender’s inability to control his sexual impulses over a long period and even though he knew they were wrong.

BUGMY

69. There were some submissions made on behalf of the offender to the effect that his background was one of disadvantage. This was based on the history in Dr Bench’s report of there being some learning difficulties, school suspensions and the offender’s father’s depression and abuse of drugs. While I have taken this history into account in a general way, it does not, in my view, amount to the sort of profound or serious deprivation or abuse that should result in a significant reduction in the otherwise appropriate sentence. In making those observations I am, of course, making reference to the well known principles discussed by the High Court of Australia in Bugmy v The Queen (2013) 302 ALR 192.

THE COVID PANDEMIC

70. The offender has been in custody since 30 September 2021 which in part coincides with some of the more difficult aspects associated with the COVID pandemic. I am well aware of the significant impact that the pandemic has had and certainly did have during that relevant period upon persons being held in custody in terms of lack of access to various services including visits by family and friends and access to other services and also frequent lockdowns and confinement to cells and I have taken those impacts into account in determining the overall sentence.

71. I am satisfied in relation to all of the offences that no penalty other than full time imprisonment is appropriate. In sentencing for the State offences I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and in sentencing for the Commonwealth offences I have had regard to the relevant provisions of pt 1B of the Crimes Act 1914 and particularly the relevant provisions of s 16A(2) of that Act.

TOTALITY AND ACCUMULATION

72. Given that I am imposing sentence for multiple offences I have had regard to totality principles, being the importance of imposing an overall sentence that acknowledges the seriousness of the offending and the various purposes of sentencing but which is not inappropriately crushing.

73. In relation to the offences under s 66A of the New South Wales Crimes Act against Y and the s 66DC against Z, there should in my view be some degree of notional accumulation so as to acknowledge the fact that each involved a separate criminal act. Similarly, there needs to be some degree of notional accumulation with respect to the three State offences of using a child, that is Y, to produce child abuse material, so as to acknowledge that these were produced on three separate occasions over a period of about three years.

74. In respect of the Commonwealth offences involving the possession, accessing and transmission of child abuse material, again it seems to me that there is a need for some degree of notional accumulation to acknowledge the separate acts that these offences involved. In reaching this determination I note the presumption set out in s 19(5) of the Commonwealth Crimes Act which applies to Commonwealth child sex offences committed after 23 June 2020 and therefore applies to the sequence 1, 7 and 9 Commonwealth offences. However, I am satisfied that it is not appropriate in this matter to order that the various Commonwealth sentences be served cumulatively, given the totality principles to which I have referred and given also the significant aggregate sentence that I will be imposing for the New South Wales offences.

75. Furthermore, there needs to be, in my opinion, some degree of notional accumulation between the aggregate sentence for the Commonwealth offences and that for the New South Wales offences given the separate criminality involved.

76. I intend to make some adjustment in relation to the non parole period to be imposed for the New South Wales offences based on a finding of special circumstances. I make that finding of special circumstances based on the fact that this is the offender’s first period in custody, secondly, the impact of custody on his mental health and thirdly the need for monitoring and possible treatment upon his release.

DETERMINATION

77. As I said, I intend to impose aggregate sentences. As there are both Commonwealth and State offences, it is not possible to impose a single aggregate sentence for all matters. Before imposing the final aggregate sentences, I also must nominate the indicative sentences that would have been imposed if an aggregate sentence had not been applied. The indicative sentences for the Commonwealth offences are as follows. I note, of course, that these indicative sentences are not the final sentence that I will impose; that will be made clear in a few moments.

78. The indicative sentences for the Commonwealth matters after a discount of 25% in each case are as follows. For the sequence 1 offence of possessing child abuse material, two years and three months imprisonment. For the sequence 7 offence of using a carriage service to access child abuse material, one year six months. For the sequence 9 transmit child abuse material offence, one year six months. For the sequence 16 transmit child abuse material, one year seven months.

79. Turning then to the indicative sentences for the New South Wales offences which after taking into account the applicable discounts are as follows. For sequences 8, 9, 10, 11, 12, 13 and 14, those being the s 66A offences against Y, after applying a discount of 50% arising from the plea of guilty and the assistance discount to which I have earlier referred, the indicative sentences in each of those cases is three years nine months with a non-parole period of two years eight months. For the sequence 15 offence under s 66DC against victim Z and after a 50% discount, the indicative sentence is nine months.

80. In relation to the sequence 11 offence, State offence of using a child under 14 years for the production of child abuse material, after a 25% discount, the indicative sentence is one year six months and I nominate a non-parole period of 13 months. For the sequence 12 offence which is the same type of offence and after a 25% discount, the indicative sentence is one year eight months and I nominate a 14 month non-parole period. For the sequence 15 similar offence and after a 25% discount, the indicative sentence is one year seven months and I nominate a non-parole period of 14 months.

81. In determining the indicative sentences and the overall aggregate and effective sentence, I have had regard to Judicial Commission statistics as well as to various decisions of the Court of Criminal Appeal of both of this State and other states of Australia, some of which were drawn to my attention by the parties.

82. For the Commonwealth offences, I impose an aggregate head sentence of three years imprisonment. I decline to set a recognisance release order for that sentence given that the offender will remain in custody until the expiry of that sentence of three years by reason off the aggregate sentence that I will impose for the State offences. I order that the sentence for the Commonwealth offences commence on 30 September 2021 being the date on which the offender was arrested on those matters. That sentence will therefore expire on 29 September 2024.

83. For the New South Wales offences, I impose an aggregate sentence of seven years nine months. I order that that seven years nine months sentence for the State offences commence on 30 September 2022 being one year after the commencement of the Commonwealth sentence. That State head sentence will therefore expire on 29 June 2030. The total effective head sentence therefore is eight years nine months when both the Commonwealth and State sentences are considered. That total effective head sentence as I have said will commence on 30 September 2021 and will expire on 29 June 2030.

84. I impose a non-parole period in relation to the State offences of five years four months which will expire on 29 January 2028. In setting that non-parole period for the State sentence, I am conscious of the fact that this differs somewhat from the ratios of non-parole period to head sentence which I nominated when announcing the indicative head sentences and indicative non parole periods for those New South Wales offences where a standard non-parole period is specified. However, I have adjusted the non-parole period for the New South Wales matters so as to take into account the accumulation involved in my having ordered that the State sentence commence 12 months after the commencement of the Commonwealth sentence.

85. Finally, I direct that a copy of the report of Dr Bench be sent to Corrective Services and to Justice Health.

86. One further matter, I note that a forfeiture order was handed up at the hearing in relation to the forfeiture of the three mobile telephones and I signed that order on 11 August 2023. A copy of that will be provided to the parties by my Associate.

87. Ms Crown, Ms O’Brien, anything to raise about any of those orders that I have made?

88. O’BRIEN: No, your Honour.

89. KELTON: No, your Honour.

90. HIS HONOUR: Mr West, can you hear me? Is Mr West still on the system? We will just wait till we get him back. Ms O’Brien, you no doubt will speak to your client and explain the sentence to him.

91. O’BRIEN: I certainly will.

92. HIS HONOUR: I think it was made sufficiently clear in any event given that I spoke fairly slowly but we might just see if we can get him back on the system. Mr West, you can hear me clearly, can you?

93. OFFENDER: I can, your Honour.

94. HIS HONOUR: Your lawyer will speak to you just to make sure you understand the nature of the sentence that I have imposed but in effect it is a total effective head sentence when looking at all of the offences which will cease on 29 June 2030 but you will be eligible for parole on 29 January 2028. Right, thank you, the Court will adjourn.

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Decision last updated: 22 March 2024