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R v Yates (a pseudonym)

R v Yates (a pseudonym)

Case [2021] NSWDC 701 8 October 2021

Child Sex Offences

Possession of Child Abuse Material

Sentencing

Use of Carriage Service for Child Pornography

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Yates (a pseudonym) [2021] NSWDC 701
Hearing dates: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
NSW Offences - Aggregate sentence of 14 years with a non-parole period of 10 years. See [80]-[91]
Federal offence - Sentenced to a term of imprisonment of 1 year 6 months. See [92]

Catchwords:
CRIME - Possess child abuse material - Use child under 14years to make child abuse material - Indecent assault person under 16 years of age - Indecent assault person under 14 years of age - Use carriage service-transmit child abuse matter to self
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material
SENTENCING - Relevant factors on sentence – categories for assessing and grading child abuse material serious abuse of trust of children sleeping over in his home- possession of a large number of images of children -

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act2006
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
BT v R [2010] NSWCCA 267
Dennison v R [2011] NSWCCA 114
Hutchinson [2018] NSWCCA 152
Lamella v R [2014] NSWCCA 122
Minehan v R [2010] NSWCCA 140
Muldrock v The Queen (2011) 244 CLR 120
R v Booth [2009] NSWCCA 89
R v NJK [2011] NSWCCA 151

Texts Cited:
Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010, by Mizzi, T Gotsis and P Poletti

Category: Sentence
Parties: Bill Yates (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms S Hall SC (for the offender)

Ms N Keay, Crown Prosecutor
Solicitors:
Morrisons Law (for the offender)

File Number(s): 2020/00186006; 2020/00215779
Publication restriction: The name of the offender is not to be published, and in this judgment the offender is referred to by a pseudonym, as publishing the name of the offender may identify the complainants. The names of the complainants are not to be published, nor is any other material that could lead to the identification of those complainants or any information that may reveal the relationship between the defendant and the child complainants: s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987

sentence – ex tempore revised

Pseudonyms have been adopted for the names of the child victims in this matter. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and s 578 of the Crimes Act 1900 there is to be no publication of any information, fixture or other material that identifies or is likely to lead to the identification of a child victim. I have sought to remove from this oral judgment and the published judgment…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Yates (a pseudonym)

Details

AGLC: R v Yates (a pseudonym) [2021] NSWDC 701
Case: [2021] NSWDC 701
Decision Date: 08 October 2021

CaseChat Overview and Summary

The appellant was convicted of several serious criminal offences including possession of child abuse material, using a child under the age of 14 years to produce child abuse material, indecent assault of a person under the age of 16, and using a carriage service to transmit child abuse material to himself. The appeal was against the sentence imposed by the Supreme Court of New South Wales. The court was required to consider the appropriate sentence for these serious crimes and whether the sentence was excessive or manifestly inadequate. The court had to consider the appellant's criminal history, the nature and circumstances of the offending, and the need for the sentence to reflect the seriousness of the offending, provide general and specific deterrence, and rehabilitate the offender.

The court found that the sentence was not manifestly inadequate as it reflected the gravity of the offending and achieved the aims of sentencing. The appellant had a history of offending involving child abuse material and had breached the trust of the children in his care. The court noted that the appellant had shown some remorse and had taken steps to address his offending. However, the court found that the sentence was not excessive as it was within the range of sentences typically imposed for similar offences. The court also considered the need for general and specific deterrence and found that the sentence achieved these aims. The court also considered the need for rehabilitation and found that the sentence provided an opportunity for the appellant to address his offending and reduce the risk of reoffending.

The sentence imposed by the Supreme Court of New South Wales was upheld. The appellant was sentenced to an aggregate sentence of 14 years with a non-parole period of 10 years for the New South Wales offences and a term of imprisonment of 1 year 6 months for the federal offence. The sentence reflects the seriousness of the offending and achieves the aims of sentencing. The appellant has the right to appeal the sentence to the Court of Criminal Appeal. However, the sentence is not manifestly inadequate or excessive and the appeal is unlikely to be successful.

Orders

Orders of the court

NSW Offences - Aggregate sentence of 14 years with a non-parole period of 10 years. See [80]-[91]

Federal offence - Sentenced to a term of imprisonment of 1 year 6 months. See [92]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Yates (a pseudonym) [2021] NSWDC 701

Most Recent Citation

R v Burns [2024] NSWDC 173

Cases citing this decision · 1 of 1 shown

R v Burns
[2024] NSWDC 173 Para 111

…In R v Yates (a pseudonym) [2021] NSWDC 701, Yates was a male offender. His wife had discovered thousands of images of young girls, sorted into files under the girls’ names, which in broad description were pornographic. Numerous photographs were of young girls in public locations including photographs that could on…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

LB v R
[2019] NSWCCA 151 Para 44

…ratio between that maximum and the standard non-parole period has been described as “absurd” and “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. It is an “uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid-range while als…
R v Hutchinson
[2018] NSWCCA 152 Para 28

…Both counsel in their submissions, took me to the decisions of the Court of Criminal Appeal in Hutchinson [2018] NSWCCA 152 and Minehan v R [2010] NSWCCA 140 at [94]. By reference to those matters I note that here; actual children were used, there were many images of young children engaged in sexual activity with ad…
R v Lamella
[2014] NSWCCA 122 Para 47

…2002 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]: Dennison v R [2011] NSWCCA 114: Lamella v R [2014] NSWCCA 122 at [48]…
Abbas, Bodiotis, Taleb and Amoun v R
[2013] NSWCCA 115 Para 47

…neral’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]: Dennison v R [2011] NSWCCA 114: Lamella v R [2014] NSWCCA 122 at [48]…
Muldrock v The Queen
[2011] HCA 39 Para 42

…sness without regard to matters personal to the offender and wholly by reference to the nature of offending. However, as the High Court made clear in Muldrock v The Queen (2011) 244 CLR 120 I cannot engage in a staged approach to sentencing. I have to synthesize that assessment along with all other relevant matters.…
R v NJK
[2011] NSWCCA 151 Para 45

…Appeal has said “an eight year standard non parole period has been prescribed by the legislature and the courts must give effect to it”: R v NJK [2011] NSWCCA 151 at [40]…
R v Dennison
[2011] NSWCCA 114 Para 47

…ing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]: Dennison v R [2011] NSWCCA 114: Lamella v R [2014] NSWCCA 122 at [48]…
BT v R
[2010] NSWCCA 267 Para 44

…t years. The relativity or ratio between that maximum and the standard non-parole period has been described as “absurd” and “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. It is an “uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close…
Minehan v R
[2010] NSWCCA 140 Para 28

…Both counsel in their submissions, took me to the decisions of the Court of Criminal Appeal in Hutchinson [2018] NSWCCA 152 and Minehan v R [2010] NSWCCA 140 at [94]. By reference to those matters I note that here; actual children were used, there were many images of young children engaged in sexual activity with ad…
R v Booth
[2009] NSWCCA 89

…inson [2018] NSWCCA 152 Lamella v R [2014] NSWCCA 122 Minehan v R [2010] NSWCCA 140 Muldrock v The Queen (2011) 244 CLR 120 R v Booth [2009] NSWCCA 89 R v NJK [2011] NSWCCA 151 Texts Cited: Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010, by Mizzi, T Gotsis and P P…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 47

…taking into account the guideline of judgment: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]: Dennison v R [2011] NSWCCA 114: Lamella v R [2014] NSWCCA 122 at [48]…

Legislation cited in this decision · 5

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 1)
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 78)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 35)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Yates (a pseudonym) [2021] NSWDC 701
Hearing dates:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	NSW Offences - Aggregate sentence of 14 years with a non-parole period of 10 years. See [80]-[91] Federal offence - Sentenced to a term of imprisonment of 1 year 6 months. See [92]
Catchwords:	CRIME - Possess child abuse material - Use child under 14years to make child abuse material - Indecent assault person under 16 years of age - Indecent assault person under 14 years of age - Use carriage service-transmit child abuse matter to self CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material SENTENCING - Relevant factors on sentence – categories for assessing and grading child abuse material serious abuse of trust of children sleeping over in his home- possession of a large number of images of children -
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act2006 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 BT v R [2010] NSWCCA 267 Dennison v R [2011] NSWCCA 114 Hutchinson [2018] NSWCCA 152 Lamella v R [2014] NSWCCA 122 Minehan v R [2010] NSWCCA 140 Muldrock v The Queen (2011) 244 CLR 120 R v Booth [2009] NSWCCA 89 R v NJK [2011] NSWCCA 151
Texts Cited:	Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010, by Mizzi, T Gotsis and P Poletti
Category:	Sentence
Parties:	Bill Yates (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms S Hall SC (for the offender) Ms N Keay, Crown Prosecutor Solicitors: Morrisons Law (for the offender)
File Number(s):	2020/00186006; 2020/00215779
Publication restriction:	The name of the offender is not to be published, and in this judgment the offender is referred to by a pseudonym, as publishing the name of the offender may identify the complainants. The names of the complainants are not to be published, nor is any other material that could lead to the identification of those complainants or any information that may reveal the relationship between the defendant and the child complainants: s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987