R v White

[2022] NSWDC 769

District Court

New South Wales

Medium Neutral Citation:

R v White [2022] NSWDC 769

Hearing dates:

24 November 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment of 2 years 4 months with a non-parole period of 1 year and 2 months

Catchwords:

CRIME — Child sex offences — Child abuse material — Possession

SENTENCING — Mitigating factors — Prior good character — No record of previous convictions — Late plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis — Mental illness — Alcohol abuse

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Minehan v R [2010] NSWCCA 140

Rv Booth [2009] NSWCCA 89

Category:

Sentence

Parties:

Karl Edward White (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
M Valentin (for the accused)

Solicitors:
Astor Legal (for the accused)
S Knox solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2021/31140

JUDGMENT – ex tempore revised

Introduction

1. On the morning of the date fixed for his trial Karl White pleaded guilty to a charge of possess child abuse material: Crimes Act 1900 (NSW), s 91H(2). That plea had some modest utilitarian value. It requires I reduce the otherwise appropriate sentence by 5%. White, as was his right, adhered to the assertion he was not guilty until the last minute. He is not to be punished for that, but it means he does not get the benefit that would have accrued had he offered a guilty plea at an earlier opportunity.

2. The offender attended Wollongong Police Station on 3 February 2021. He was arrested. He has been on bail ever since. That bail has been relatively strict. He has kept to the conditions of his bail and not reoffended.    

3. I am sure he regrets what he did. His arrest has had a salutary impact on him. He has been on strict bail ever since, but more importantly his arrest and offending were the ‘final straws’, in a marriage that was ‘teetering on the brink’. Importantly, it led to some extra curial punishment – separation from his daughter. That will continue for some time. Trust was broken with his family and that may never be restored.

Victim impact

4. I received a Victim Impact Statement from his partner who discovered the items on a computer in the family home which was also their family work premises. I ruled over an objection that she was a primary victim (see separate judgment). She witnessed his possession of child abuse material – she saw some of the items. I recognise the impact that discovery had on her, as she saw things she should not have had to see. That recognition is as much as I intend to take into account, so far as that statement is concerned.

5. Given its unusual nature and given that the history of the relationship is revealed in it, and the facts before me, it is impossible for me to disentangle matters unrelated to this matter from the specific harm suffered by witnessing the possession, as opposed to what would ordinarily occur in such situations. The distress and disquiet that a partner would suffer if she found that a person she was with, and had a child to, who professed to love her, was accessing such material.

Agreed Facts

6. The facts before the Court contain a number of technical details that were included as they had been prepared for the purposes of the trial. They do not need to be repeated.

7. In short compass, the offender’s partner was accessing a work computer and came across a file that she did not recognise, or thought might refer to her. She came across images of children aged around 14 years posed in various stages of undress with a focus on their genitalia. Shocked and horrified, she recorded some of the folders and contacted family members and the police.

8. Police attended the White premises and seized computers, including an Apple Mac. The police applied various extraction techniques to data stored on that device; including what they describe as taking a ‘dip sample’ and ‘scans’. The scan result showed many thousands of JPEG images and video files. Their analytical system indicated that at least 5,000 images indicated child abuse and over 200 video files held possible child abuse material. Further statistical measures were carried out and samples of the video files were obtained.

9. Details are set out in the Agreed Facts. While a court has to be open to public and reveal material that explains why a sentence was imposed, courts also have to be very careful about repeating what is set out in the Agreed Facts. To do so would publish child abuse material. I have no intention of doing that. I have read the descriptions. I thank the officers who had to view that material and provide those descriptions. They should not otherwise be published. Summaries of the other images were also provided.

10. They also show the offender’s browser history on certain private networks associated with the production of and the dissemination of child abuse material. The activity on the computer indicates it was used to surf for and download pornography, and the theme often involved child abuse material.

11. The log summaries indicate that this occurred on a regular basis for over a year. Another device used a procedure called ‘Spotlight’ that indexed user files and tracks metadata. The opinion of the prosecution experts strongly suggests that the person logged into the account was regularly viewing child abuse material between March 2018 and 30 December 2020.

12. The video images were categorised using the Interpol baseline system Category 1 and Category 2. I have previously remarked that they are singularly unhelpful in describing the material as both are too broad. The Category 1 images depict a real prepubescent child where the child is involved in a sex act, or witnessing a sex act, or the material focused, concentrated on, the anal or genital regions of the child. Other child abuse material, Category 2, is illegal in New South Wales but does not fit within that category. It would appear that a significant portion of the material here fell within Category 1.

13. I am required to analyse and consider the specifics and the gravity of the offending behaviour. Here, I am assisted by the decisions referred to in the Crown submissions, including: Minehan v R [2010] NSWCCA 140 and Rv Booth [2009] NSWCCA 89. The appellate courts have said that significant penalties have to be imposed to properly reflect the seriousness of offences of this type. It is important to keep in mind, as Simpson J said in Booth at par [47], when formulating an appropriate sentence there is a “need to deter others from involving themselves in child pornography by signalling that such behaviour will be met with significant penalties”. That is “an important consideration. So too is the denunciation of those who engage in this callous and predatory crime”.

14. I start by stating generally that possession of child abuse material is a pernicious crime. Real children were exploited in the production of this material and those who provide the market for it cannot escape responsibility for their exploitation.

15. I have to consider best I can, the nature and extent and content of the material, the number and type of images and the purpose of the possession. There is no suggestion here that anyone other than the offender had access or was intended to have access to the material. There was no suggestion of any commercial element. White was a user of the material, he was not involved with any elaborative network of likeminded people, although he did access that material. The offence occurred in a home, but I give that matter no weight.

16. The possession of child abuse material is a callous and predatory crime. It causes harm to individual victims and communities. Courts must take into account the harm caused, as every occasion on which such material is accessed or viewed, it encourages further production of such material.

Objective seriousness

17. Although recognising that s 91H matters carry a large number of potential types of offending, some of which are more serious than possession of and viewing of the material here, the Crown in this case characterised this matter as a serious example of its type.

18. Given the time over which the material was possessed, given the sheer volume and type of material, and given its nature, so serious was this offending that in my view only a sentence of imprisonment could properly reflect the seriousness of what was done. Given that no alternative arrangements are available in such cases means that White must be removed from the community and gaoled for a period.

Subjective case for the offender

19. In formulating an appropriate sentence, I take into account that assessment of the gravity of the crime and that assessment was informed by the general principles to which I have referred. However, as I must, I take into account his subjective case.

20. It would appear that apart from the commission of this offence, White was, and presented as, a respected and valuable member of our community. Obviously, he was not during the period he was accessing this material, but past behaviour is a good indication of future behaviour. I have to consider his risk of reoffending in matters such as this, and his capacity to resume a normal life in the community, on serving his sentence.

21. There is a Sentence Assessment Report before the Court. It has a risk assessment report attached to it. I also have a helpful report from Dr Rodriguez. He also provides a risk assessment. They are, as Mr Valentin, counsel who appears for the offender notes, in agreement; if White is provided with assistance, he has a low risk of reoffending.

22. One risk factor was identified by the Crown. It would appear, and I accept, that his accessing child pornography occurred when he was disinhibited by overindulgence in alcohol. He still drinks alcohol. There remains the risk that if he overindulges again, he might reoffend, a matter I have to take into account.

23. Dr Rodriguez notes other risk factors that are still present:

• White indicates some deficits in self-awareness about his online behaviour;

• He has problems with stress and coping, noting his maladaptive strategy to deal with it is alcohol abuse;

• He has demonstrated possible deviance by his online behaviour; and

• There is a history of problems with intimate relationships.

24. On the other hand:

• There is no diagnosis of any paedophilic disorder;

• He does not have a history of sexual offending;

• There is no pattern of escalation in the offending;

• There are no contact sexual offences;

• He does not appear to support or condone sexual offenders;

• He has, generally, a prosocial outlook to life; and

• He does not have any of the psychotropic traits; or mental illness; or other behaviours commonly associated with risk.

25. I accept those assessments. I accept the conclusion that his prospects of rehabilitation are encouraging. He is not antisocial or criminogenic and he is able to, and has demonstrated capacity to, lead a stable life in the community. He will require some supervision on release. His prospects for the future, his prior good character, which is reflected in the references to which I have referred, his family history, which is set out in Dr Rodriguez’s report, all justify a significant variation in the period that must be spent in custody.

26. In matters such as this, obviously the length of the sentence is important as a specific deterrence, and so far as others are concerned, it is necessary they understand that the gaol door closes upon offenders who offend as White did.

Submissions

27. In formulating the sentence, I am indebted to Mr Valentin for his careful written submissions and for the submissions provided in writing, and orally, by Ms Knox Solicitor, who appears for the Director. There are some minor differences between them, although both agree on the seriousness of the offending.

28. Mr Valentin spoke to, what I accept is, a compelling subjective case. He submitted that, serious though this offence was, when I take into account time spent on remand, White’s background, his regret, the fact that he has lost his family, and his excellent proposition for the future, that a lengthy Community Correction Order involving strict supervision would meet all the purposes of sentencing.

COVID-19

29. White will be going into custody during the COVID-19 pandemic. Every day I hear evidence of the impact of the pandemic on prisoners. I have heard evidence of repeated lockdowns. I do not undervalue the lived experience of gaol; something that would be completely alien to White. His capacity to engage in programs will be impeded. While the pandemic restrictions continue, he will get access to the programs or the psychological treatment he needs. A matter I take into account. He may have work available to him if he is proactive in seeking that work and I would urge him to do so. He certainly does have skills that can be used and that will occupy his time.

30. During lockdown he will be locked in cells at times with people he would rather not associate with. I do not underestimate what it is like to be locked in a cell with others where you have to eat and excrete in the same small room. It will be a traumatic experience for him, but it is justified by the crime that he committed. That said, I will try and fix the period that must be spent in custody at the minimum that I believe meets the purposes of sentencing.

Synthesis

31. As I have indicated earlier, I have formed the view that a custodial sentence is required in this matter. White will need support adjusting to normal community life on release. He will need to continue to see a psychologist, he will require monitoring and supervision. He and he will have to rebuild his life on release. I am heartened by the support that he has been offered by his family and I am sure they will stick by him. The longer he spends in custody, the more he risks breaking prosocial bonds.

32. Had it not been for the plea of guilty a sentence of 2 years and 6 months would have been imposed. While I am required to reduce that sentence by 5% he would have received an additional benefit by rounding because sentencing is not meant to be strictly mathematical.

33. To give effect to my recognition of his subjective case, and the other matters to which I have referred, there will be a substantial finding of special circumstances in this matter.

Orders

34. The formal orders of the Court are that White is sentenced to a term of imprisonment. There will be a non-parole period of 1 year and 2 months which will commence today, 24 November 2022, making him eligible for release to parole on 23 January 2024. There will be a period on parole of 1 year and 2 months subject to supervision. Total sentence will expire on 23 March 2025.

35. If I am provided with a forfeiture order in chambers, I will endorse it.

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Decision last updated: 23 January 2025