The Queen v Dalwood

Case •

[2020] NSWDC 841

•

16 November 2020

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: The Queen v Dalwood [2020] NSWDC 841
Hearing dates: 9 October 2020
Date of orders: 16 November 2020
Decision date: 16 November 2020
Jurisdiction:Criminal
Before: Wilson SC DCJ
Decision:

Full time custodial sentence imposed. Decision at [112]-[113].

Catchwords:

CRIME – sentence – 6 charges – child sexual offending – victims outside Australia – child pornography offences

Legislation Cited:

Crimes Act 1900 (NSW) s 91H(2)

Crimes Act 1914 (Cth) ss 16A, 17A

Criminal Code (Cth) ss 272.14, 474.19, 474.25C

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5

Cases Cited:

Baden v R [2020] NSWCCA 23

Director of Public Prosecutions v Beattie [2017] NSWCCA 301

Minehan v R [2010] NSWCCA 140

Pearce v The Queen (1998) 194 CLR 610

Ryan v The Queen [2001] HCA 21

Qutami [2001] NSWCCA 353

Category:Sentence
Parties: Regina (ODPP)
Daniel Dalwood (Offender)
Representation:

Counsel:
Mr Murray (Offender)

Solicitors:
Ms Hirst (ODPP)
Ms Moran (Offender)
File Number(s): 2019/115322
Publication restriction: Statutory prohibition on publication in relation to identities of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

Introduction

  1. Daniel Dalwood, hereafter referred to as “the Offender” appears before the Court for sentence in relation to 6 charges on an indictment:

  1. Count 1 – possess child abuse material, in breach of s91H(2) of the Crimes Act 1900 (NSW);

  2. Count 2 – use a carriage service to solicit child pornography material, in breach of s474.19(1) of the Criminal Code (Cth);

  3. Count 3 – use a carriage service to plan etc sexual act, where person under the age of 16 years, in breach of s474.25C of the Criminal Code;

  4. Count 4 – procure child for sexual activity outside Australia, in breach of s272.14(1) of the Criminal Code;

  5. Count 5 – procure child for sexual activity outside Australia, in breach of s272.14(1) of the Criminal Code; and

  6. Count 6 – use a carriage service to transmit child pornography material, in breach of s474.19(1) of the Criminal Code.

  1. Counts 1 and 3 carry maximum penalties of 10 years’ imprisonment, while Counts 2, 4, 5 and 6 all carry a maximum term of 15 years’ imprisonment. The maximum sentences demonstrate the seriousness with which the community, by Parliament, view this type of offending. They are a guidepost for a sentencing Judge.

  2. There are no Form 1, related or back-up offences.

Procedural History

  1. The offending occurred over a period of some 8 months between 2 August 2018 and 12 April 2019. On 12 April 2019 the Offender was arrested and released upon conditional bail, however on 28 May 2019 he was re-arrested for breach of bail, and has been bail refused in custody since that date. This will be the commencement date for the sentence.

  2. On 11 March 2020 the Offender pleaded guilty to all 6 charges in Wyong Local Court and, after being committed for sentence to the District Court in Gosford, adhered to his pleas on 9 October 2020.

Agreed Facts

  1. I have been assisted by the Parties who have agreed upon a statement of facts in relation to the subject offending. The Agreed Facts are as follows:

  2. Between 2 August 2018 and 12 April 2019, the Offender engaged in communications with an adult female, Maricel Bulitec, believed to reside in the Philippines. The communications occurred over Facebook Messenger, which allows registered users of the social networking site, Facebook, to communicate privately through instant messages, pictures and video calls.

  3. Investigators identified over 10 hours of video chat logs between the Offender and Bulitec. The video calls generally occurred after the Offender requested Bulitec’s female children to undress on camera, pose naked or engage in sexual activity. The child victims in this matter are Bulitec’s 3 female children being:

  1. B1, believed to be 3 to 4 years old at the time;

  2. B2, believed to be 8 to 9 years old at the time; and

  3. B3, believed to be 13 to 14 years old at the time.

  1. During the charge period, the Offender and Bulitec purported to be in a relationship and the victims called the Offender ‘dad’.

  2. All communications referred to below took place via Facebook Messenger from the Offender’s Facebook account.

Sexual Offences Against Children Outside Australia

Count 3: Use carriage service to prepare/plan to engage in sexual activity with person under 16 years

  1. The Offender requested that Bulitec send him pictures and videos depicting her youngest daughter, B1, in preparation for doing, or planning to engage in sexual activity with her. As a result, Bulitec produced child pornography material of B1 and sent it to the Offender. At the time of the communications, B1 was aged approximately 3-4 years of age.

  2. The Offender instructed Bulitec to send pictures of B1 “showing me her vagina”, “getting naked for me” and posing naked, demonstrating his interest in engaging in activity of a sexual or indecent nature with B1. For instance, on 13 September 2018, the Offender, referring to B1 and her sisters wrote, “I want to rub there vaginas and stick my finger inside them”.

  3. Furthermore, the Offender and Bulitec discussed engaging in sexual intercourse with B1. As an example, on 7 October 2018, the following exchange took place between the Offender and Bulitec, in terms set out in paragraph 10 of the Agreed Facts.

  4. I should say I don’t intend to read all the exchanges in the Agreed Facts, but I will read this one as it is relatively short:

Offender: “Does all the girls still want to have sex with me, do you know me having sex with the girls that is classified as rape?”
Bulitec: “I hope please babe. They know that so please” “P-L-S-S-S-S”. Offender: “So what they know that is that it is classed as rape”.
Bulitec: thumbs up emoji.
Offender: “So do they want me to rape them?”
Bulitec: “Yes babe”.
Offender: “Who wants to be raped first?”
Bulitec: “It’s up to you who’s first, but get the phone first babe”.
Offender: “B1 and B2”.
Bulitec: “Well get out the phone”.
Offender: “They’re the two vaginas that I like”.

Counts 4 and 5: Use carriage service to procure child to engage in sexual activity outside Australia

B2

  1. The Offender communicated directly with B2, believed to be 8-9 years of age, through Facebook Messenger. In these communications, the Offender encouraged B2 to engage in sexual activity and in some instances, he induced her to engage in such activity by promising to send money to her family to buy medication and a bike.

  2. Examples of the Offender procuring B2 are set out in paragraph 12 of the Agreed Facts, and will not be repeated for reasons of brevity.

  3. During his communications with B2, the Offender also solicited child pornography material by repeatedly requesting her to send photographs and videos of herself naked, with focus on her genital and breast region. For instance, on 24 March 2019, the Offender requested from B2, “a pic of ur vagina” and, “a pic of ur bum and of ur chest”. In the same communication, the Offender wrote, “yes I am so horny I want to see the pics to imagine that I am having sex with you so I can masturbate”.

B3

  1. The Offender also communicated directly with B3, believed to be 13-14 years of age, where he requested multiple pictures of her vagina, “can u send me another pic with ur legs open”, her breasts, “show me ur tits”, and in her underwear, “can I also get a pic of u in ur bra”. The Offender also encouraged B3 to engage in sexual activity, and on occasion, he enticed her to do so by offering to send her money.

  2. Examples of the Offender procuring B3 are set out in paragraph 15 of the Agreed Facts.

  3. While speaking to B3, the Offender also sent indecent images of himself on 6 occasions, being images of himself naked and penis exposed, including some close-up images.

Child Pornography Offences

Count 2: Solicit child pornography from Maricel Bulitec

  1. Between 2 August 2018 and 2 April 2019, the Offender made numerous requests to Bulitec to see naked images and videos of her children. This included occasions where the Offender instructed Bulitec as to what he wanted the children to do and what type of photographs he wanted Bulitec to take and send to him. The Offender asked for images and videos of the female children undressing, in various sexual poses and images that concentrated/focused on their genital regions. In some instances, the Offender threatened to end the relationship and stop sending money to Bulitec if she did not send more images and videos.

  2. Examples of the Offender’s solicits are set out in some detail in paragraph 18 of the Agreed Facts, continuing through to paragraph 20. I note for example on 2 August 2018 that the Offender said to Bulitec “Just say if youse don’t do video, no more money getting sent”. Another example of the influence which the Offender brought to bear in soliciting for pornography was on the 25 September 2018 when he said “I’ll also pay for B3’s exam if she sends me a naked photo”. Another example is 4 January 2019 when the Offender said “Come on you said that I send money I will see naked girls. Just tell B1 if she doesn’t let me see her naked, she’ll not get the bike at all and no more money”. There are other examples, but those are sufficient to illustrate the nature of the communication between the Offender and Bulitec in order to solicit pornography. The Offender also asked for naked images of other children who visited Bulitec’s home during the relevant period, including:

  1. Bulitec’s niece, N1 (age not specified);

  2. Bulitec’s nephew, N2 (age not specified);

  3. Bulitec’s nephew, N3 (age not specified);

  4. Bulitec’s nephew, N4 (referred to as 2.5 years of age);

  5. Bulitec’s nephew, N4’s brother (referred to as 8 years of age);

  6. neighbour’s child, G1 (referred to as 3 years of age);

  7. neighbour's children, G1’s sisters (referred to as 10 and 8 years of age); and

  8. friend’s child, referred to as a baby.

  1. For instance, on 27 August 2018, the following exchange took place after Bulitec sent the Offender an image of her nephew, N4, which depicted him standing in a pool naked and a second male sitting beside him:

Offender: “Who is that in the pool with him babe?”

Bulitec: “His eldest brother”.

Offender: “How old is his brother?”

Bulitec: “I think eight years old”.

Offender: “Can I get a photo of N4’s brother’s penis?” (Image sent to the offender depicting two naked male children).

Offender: “I take it the one that’s sitting in the water is N4’s brother?” Bulitec: “As what I told you babe if what you ask when B1 birthday I will babe because many kids naked will come, that comes there if the birthday will be held, but if you will not give, I’ll not get pic anymore of them, that’s the time I want you to give, it’s your girl birthday and only once a year babe”.

Offender: “Yes. Can I get a photo of N4 touching his brother’s penis”.

  1. On 5 March 2019, Bulitec sent the Offender a non-explicit image of her friend with a baby. The Offender then requested a naked picture of the baby and suggested that she change the baby’s diaper to do so. The Offender stated, “I want to see the baby girls vagina”.

  2. On 12 March 2019, the Offender asked for pictures of Bulitec’s nephews, N2 and N3, and niece, N1. In the same conversation, the Offender told Bulitec that he would, “fuck my girls first and then N1 u babe. I will fuck them all in the ass to babe”.

Classification of Child Pornography Material: INTERPOL Baseline Categorisation

  1. Material is determined to be child pornography material if it is classified by investigators as Category One or Category Two using the INTERPOL Baseline Categorisation System as described below:

Category One

  1. Material depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child.

Category Two

  1. Other child abuse material that is illegal within NSW but does not fit within Category One, but such material includes a person who, is, appears to be or is implied to be a child and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive who:

  • is a victim of torture, cruelty or physical abuse; or

  • is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or

  • is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or

  • is exposing the genital area or anal area or the breasts of a female child.

Count 6: Use carriage service to transmit child pornography to Victoria Gaunt

  1. On 4 February 2019, the Offender sent a private Facebook message to Victoria Gaunt from his Facebook account asking if she wanted to see pictures of, “a girl’s daughter that I’m seeing”.

  2. The Offender sent 2 images of a prepubescent female exposing her genitalia and bottom and stated “ok this is the photo of her 7 year old daughter”. Investigators classified this image as Category One according to the INTERPOL Baseline Categorisation System.

  3. On 16 March 2019, Gaunt reported the incident to NSW Police.

Count 1: Possess child abuse material

  1. On 12 April 2019, NSW Police executed a Commonwealth Search Warrant on the Offender’s premises. Several electronic devices including an Apple iPhone X, an Optus mobile phone, and a Huawei mobile phone were seized and taken for forensic examination.

  2. On 18 April 2019, investigators attended Gosford Cash Converters and further seized an iPhone 8 that had been pawned there by the Offender on 21 March 2019 for $300.

  3. The following table is a summary of the quantity of child abuse material located on each electronic device:

Device

Number of Images

Number of Videos

1. iPhone X mobile phone

141

0

2. Optus mobile phone

8

0

3. Huawei mobile phone

20

5

4. iPhone 8 mobile phone

22

0

TOTAL

191

5

  1. The majority of this material identified on the Offender’s electronic devices was classified as Category Two according to the INTERPOL Baseline Categorisation system. The image and video files depicted actual children aged between 1 and 15 years of age and was of the following:

  1. children in underwear;

  2. a naked female child laying on a bed with her legs open and genitals exposed;

  3. a naked child bending over;

  4. naked children in a small pool;

  5. naked children in a bath;

  6. an adult holding a male child’s penis;

  7. a male child’s penis; and

  8. video of naked children dancing/playing.

  1. By virtue of the definition of ‘child abuse’ in section 91FB of the Crimes Act 1900 (NSW), material classified as child pornography material is, by extension, identified as child abuse material.

Arrest and Interview

  1. On 12 April 2019, the Offender was arrested and conveyed to Wyong Police Station.

  2. The Offender participated in an electronically recorded interview where he told investigators the following:

  • the children depicted in the images seen on his electronic devices were his step children from the Philippines whom he had never personally met;

  • he claimed to have been dating Bulitec for a period of approximately 2 months;

  • he was financially supporting Bulitec and her children;

  • he sent $100 to $200 per week through Western Union transfer to Bulitec;

  • he admitted to sending Victoria Gaunt images of the children that Bulitec had sent him; and

  • he admitted to having the material saved on his electronic devices.

  1. The Offender did not answer any questions about the nature of the online conversations between himself, Bulitec and the child victims.

Breach of Bail

  1. After his arrest and release on conditional bail, the Offender engaged in further communications with Bulitec and her 3 children via Facebook Messenger. These communications occurred between 14 May 2019 and 29 May 2019.

  2. In the communications, the Offender told Bulitec about his recent arrest, charges, bail conditions and he informed her that he was no longer allowed to speak to her and the children. He further stated that the Police would not find out that he was communicating with Bulitec and her children “this time”. In addition to the Facebook Messenger chats, there were a number of video chats between the Offender and Bulitec. There were also a number of messages where the Offender communicated directly with Bulitec’s children, and on one occasion, they sent an image of themselves to him.

  3. On 24 May 2019, the Offender’s brother located a mobile phone in the Offender’s room and provided it to NSW Police.

  4. Subsequently, NSW Police conducted a search of the Offender’s premises and seized the mobile phone, where they located a number of social media applications installed on the device, including Facebook Messenger.

  5. The Offender was arrested and participated in an electronically recorded interview at the Police Station, where he denied contacting Bulitec. The Offender has been bail refused since 24 May 2019 for breaching 2 bail conditions, being, not to access the internet and not to contact any of the alleged victims.

Offender’s Subjective Case

Psychiatric-Legal Report

  1. A psychiatric-legal report authored by Dr Christopher Bench and dated 6 May 2020 was marked Exhibit 1 in the sentence hearing.

  2. In his report, Dr Bench remarked that the Offender reported being born in Katoomba to parents who have been married for some 45 years, with both of whom he maintains a good relationship.

  3. The Offender reported that he was repeatedly sexually abused by an adult male family friend from age 3, who “engaged in active and passive genital fondling”.

  4. The Offender reported that he completed Year 12 without any suspensions or expulsions, despite being in special education classes from Year 8 to Year 12, on account of him suffering from Autism. After leaving school he gained various employment roles including driving and garden maintenance. He also stated that prior to commencing the relationship with Bulitec, he had been in a domestic relationship with ‘Helen’ for 7 years, and then with ‘Sarah’ for 3 to 4 years, with neither of whom he has any children.

  5. Dr Bench remarked that there was “no significant past medical history elicited”, although the Offender now suffers from Crohn’s disease and has recently been diagnosed with Vitamin B12 deficiency. The Offender reported that his sister suffers from Bipolar Disorder, though otherwise denied any family history of substance abuse or suicide. He also denied any past criminal history.

  6. The Offender reported to Dr Bench that he started drinking alcohol at age 18, however only consuming “3 to 4 beers every month or 2”. He also denied any adverse consequence from alcohol use, as well as ever abusing illicit or prescription drugs, or gambling.

  7. Turning to his past psychiatric history, the Offender reported that he had “some very basic understanding of the nature of autism”, although Dr Bench noted that he appears to have a lack of age or peer-appropriate relationships. The Offender reported episodes of depression from age 8 or 9, which stemmed from the aforementioned sexual abuse, causing him to experience hypervigilance, nightmares, shortness of breath and heart racing, although he denied having to use any substances to abate such memories. He has never been diagnosed with Post-Traumatic Stress Disorder. The Offender did note that his difficulties with depression have been “greatly increased” since his arrest on the index offences, reporting experiencing decreased appetite, insomnia, and lethargy some suicidal ideation, although clarifying that “I’d never do it”. He has never formally been diagnosed or treated for a depressive illness. Dr Bench noted that, on review, he elicited no historical or current symptoms consistent with hypomania or psychosis.

  8. With regard to the Offender’s sexual history, Dr Bench prefaced that the Offender’s reporting was “somewhat vague and his answers quite minimal”. The Offender reported that his first sexual experience was the sexual abuse from an adult male perpetrator, which occurred “every week or second week” between ages 3 and 9. The Offender stated that he informed somebody of the abuse, who advised him to report it to police, however he never did so and the perpetrator has never been charged.

  1. The Offender reported first viewing pornography at around age 15, however denied ever uploading or paying for pornography subscriptions, and denied using any other messaging app other than Facebook Messenger to engage in sexual communications. He stated that he signed up to some e-dating sites, however did not meet anybody through such mediums.

  2. In terms of the abuse material, the Offender stated that he has “no awareness why he started to seek out child pornography”, and that he had never accessed child pornography outside the index offences. He denied any sexual preference or attraction to pre-pubescent children, and denied ever having sexual contact with children. The Offender noted that he has had “three or four” sexual partners in his life, all of whom were of a similar age to himself, and described his ideal sexual partner as being “a similarly-aged or older woman”. He also stated to Dr Bench that he prefers to have sex in relationships.

  3. Regarding his mental health, the Offender reported that he was not on any medications, and was drinking rarely (such as every couple of months) at the time of the offences. The Offender reported being in a relationship with the mother of the victims, Maricel, though stated that they had never met in person, he had never been to the Philippines, and they were dating “off and on” for 3 years prior to the offending behaviour. The Offender was sending Maricel between $100 and $200 per week, and had hoped to marry her.

  4. The Offender initially denied having ever masturbated to the images, which initially consisted of images of the children in swimming costumes or naked, and aged 8 to 14 at the time. He stated there were about 250 images in total, and eventually, and reluctantly, acknowledged to having masturbated to such images, as well as acknowledging asking Maricel to have the children perform particular acts.

  5. He stated that the transmission of child pornography occurred by accident, and that he had inadvertently attached them in a message to his friend while attempting to send other innocent images. He also acknowledged contacting Maricel and requesting further images after his release on bail.

  6. The Offender stated to Dr Bench that “I think the whole thing is bad… the whole thing was a mistake… I know it’s bad and it’s wrong to do it”, and stated that he intends to obtain treatment and counselling to avoid further future offending. He also stated that, since being incarcerated, he has no libido and no persistent sexual interest in pre-pubescent children.

  7. Dr Bench opined that, based on his interview, the Offender does meet the diagnostic criteria for both Autism Spectrum Disorder and Paedophilic Disorder, although acknowledging that a definitive diagnosis of the former requires comprehensive evaluation of records and other materials, which were not available in this context. He stated, however, that “nonetheless, [the Offender’s] presentation was certainly clinically consistent with same”.

  8. With respect to the Paedophilic Disorder, Dr Bench stated that, in his opinion, the most significant factor that could decrease the Offender’s risk of recidivism would be to partake in a specialist sex offender treatment program, and further noted that it would only be after participation in such a program that a definitive diagnose of such a Disorder could be made, and a treatment regime, including possible medication, might be devised.

  9. Dr Bench further opined that the Offender’s overall risk of recidivism is “somewhat unclear at this time”, and is unlikely to become clear until he engages in a more comprehensive treatment program. Dr Bench noted that, after his arrest, the Offender acknowledged the negative consequences of his actions, and expressed a willingness to obtain treatment, which may contribute towards a lower risk of re-offending. However, the author also cautioned that if it is shown that the Offender’s Autism Spectrum Disorder has a fixed interest in child abuse material, “such would suggest a greatly increased risk of recidivism”.

Written Submissions

Crown’s Written Submissions

  1. The Crown’s submissions, marked MFI 1 in the sentence hearing, were prefaced by observing that sentencing for child pornography ordinarily involves an immediate term of imprisonment, and that general deterrence is the paramount consideration in sentencing offenders of this type. It was submitted that it therefore follows that personal mitigatory factors such as good character, age or prospects of rehabilitation must be given less weight than they may in other sentencing exercises.

  2. I accept the submission that general deterrence is of great importance.

Nature and Circumstances of the Offence

  1. In considering the nature and circumstances of the offending, I have taken the Crown submissions out of order and arranged them according to the counts on the Indictment. I have also indicated my findings of objective seriousness reached after consideration of submissions by the Crown and the Offender.

Possess child abuse material (Count 1)

  1. The Crown, at para 26, submitted that the offences relating to the possession of material, which contemplated some 191 images and 5 videos, was “objectively serious” for reasons including:

  1. the material depicted 11 children, aged 1-14 years;

  2. whilst the majority of the images were classified as ‘Category 2’, this categorisation “does not materially diminish the objective gravity of the offending… or mitigate the offending”;

  3. the material was for the Offenders’ sexual gratification;

  4. the material was possessed on 4 different storage devices;

  5. the Offender was in close proximity to the production of the child abuse material; and

  6. the maximum penalty of 10 years’ imprisonment.

  1. Accepting (a) to (e) above, I find that the charge of possess child abuse material (Count 1) falls at the low range of objective seriousness, having regard to the comparatively small number of images stored by the Offender.

Solicit child pornography material (Count 2)

  1. Specifically referencing the child pornography materials, including solicit, transmit and possess child pornography material, the Crown referenced the matter of Minehan v R [2010] NSWCCA 140 in identifying a non-exhaustive list of factors which are to be assessed in determining the objective seriousness of offences of this type, including:

  1. the nature and content of the material;

  2. the volume of material;

  3. the extent of any cruelty or physical harm occasioned by the material;

  4. the number of persons to whom the material is disseminated, if relevant;

  5. whether any payment or material benefit was provided for the material;

  6. whether the Offender acted alone or in a collaborative group;

  7. the degree of planning, organisation or sophistication employed in acquiring, storing or disseminating the material; and

  8. the length of time for which the material was possessed.

  1. I have had regard to these factors in considering the objective seriousness in this case.

  2. Referencing the fact that the Offender made “repeated and persistent requests” for child pornography material from Bulitec, the Crown submitted, at para 23, that this offending was “objectively very serious” for the following reasons:

  1. the fact that material was solicited from 11 children, including a baby in one instance;

  2. the “significant” volume of material, requested on a near-daily basis over some 8 months;

  3. the content of the material requested, which included children in poses, masturbating and engaging in sexual activities with each other;

  4. the fact that it was the Offender’s requests that directly resulted in the creation of the child pornographic material;

  5. the exploitative nature of the Offender’s relationship with Bulitec, in that he would either offer or threaten to withdraw financial support depending on the production of the abuse material;

  6. the maximum penalty of 15 years’ imprisonment.

  1. Leaving aside the maximum sentence, which is a guidepost for sentencing, but having had regard to the previous 5 submissions, I find that the offending in respect of this Count falls at the midrange.

Use carriage service to plan sexual act (Count 3)

  1. In respect of Count 3, using a carriage service to plan etc sexual act of a person under 16 years, to be at the midrange, having regard to:

  1. the frequency with which this was done;

  2. the number of children involved; and

  3. their ages, with one child aged 3-4 years and the other 8-9 years; and

  4. the nature of the sexual activity contemplated. That is including sexual intercourse and rape.

Sexual offences against children outside Australia (Counts 4 and 5)

  1. In relation to the sexual offences committed against children outside of Australia, the Crown submitted that the overseas offending was “objectively very serious and extremely depraved” (para 18) for reasons including:

  1. the young ages of the victims. One child was aged 8-9 years and the other 13-14 years;

  2. the “persistent, planned and predatory” nature of the offending, including references various forms of penetration, use of emotional manipulation, bribes, and the Offender describing engaging in sexual activity of a graphic nature, including rape, vaginal intercourse and anal intercourse;

  3. the emotional and physical harm likely suffered by the victims due to premature exposure to sexual activity;

  4. the closeness in proximity of the Offender to the production of the child pornography material, insofar as it was the Offender who instructed its production; and

  5. the degree of control and manipulation exercised by the Offender over the child victims, including threats to stop financially supporting the family;

  1. I accept those submissions and find that, for the reasons the Crown advanced, the offending was objectively very serious and the conduct depraved.

  2. I find the objective seriousness of the offending of sexual offences outside Australia (Counts 4 and 5) to be at the midrange of objective seriousness.

Transmit child pornography material (Count 6)

  1. In relation to the transmit offence, wherein the Offender transmitted 2 messages via Facebook Messenger to his friend, Victoria Gaunt, the Crown submitted that the offending is “objectively serious”, because:

  1. the transmitted material “can only be described as graphic and depraved”;

  2. by transmitting the material, the Offender increased the number of persons who have viewed it, thus re-victimising the child, and removing control of the image circulation from the Offender;

  3. the maximum penalty of 15 years’ imprisonment.

  1. In addition, the Crown submitted at para 29 that the Offender appears to have attempted to minimise his conduct by stating that the material was transmitted by accident, and that he had intended to send some innocent pictures instead. This is not consistent with the evidence contained in the Facebook Messenger chats, which prefaces the transmission with a request that Ms Gaunt not tell anyone or show anyone the images, implying explicit content. The Offender also told police in the Record of Interview that he transmitted the images to Gaunt because he wanted advice about what he should do with them.

  2. Without making a specific finding as to his intention in sending the photographs, but having regard to the considerations I have just referred to, I find the offending in relation to Count 6 falls at the low range of objective seriousness.

  3. The Crown has submitted that the criminality involved in the majority of the offences occurred over a period of 8 months, and represents a course of conduct. Plainly, I accept that submission.

  4. I return now to the question of general deterrence. The Crown again referred to it as being the paramount consideration. This was not disputed by counsel for the Offender. The need to acknowledge general deterrence is the paramount consideration, particularly due to the increasing prevalence of such offending in the community, as well as the increasing ease of access and ability to redistribute such material. It is also a form of offending which is difficult to detect. Members of the community who may be inclined to so offend must, by this sentence and others, be deterred from doing so.

  5. The Crown advanced a submission in relation to the guilty plea, reminding me that in respect to Commonwealth matters the guilty plea discount must reflect both the assistance provided to the administration of justice, but also the utilitarian value of the guilty plea. In any event, I intend to reduce the sentence by 25% of account of those factors.

  6. In relation to remorse and contrition, the Crown submitted that the Offender’s guilty plea may be viewed as being submitted in the face of a strong Crown case against him and could be viewed as a recognition of the inevitable. It was also suggested that the Court may take into account the Offender’s breach of bail as possibly demonstrating that at the time of the breach the Offender had limited insight into the wrongfulness of his conduct.

  7. Leaving aside the reasons for the guilty plea, I observed the guilty pleas were made at an early stage, therefore being accounted by a discount of 25% of the sentence. In relation to it being representative, of remorse I have difficulty in finding remorse in this case, particularly as the Offender reoffended within a short period of time of being released on bail. Other than the references to Dr Bench about remorse, the Offender has not given evidence, nor any other indication, that he is remorseful.

  8. In relation to the prospects of rehabilitation, the Crown submitted that the Court ought to be guarded, given that the Offender is yet to undertake any treatment in relation to this offending and what caused him to engage in this form of offending. I find that the prospects of rehabilitation are, in fact, guarded.

Offender’s Written Submissions

  1. The Offender’s written submissions were marked MFI 2 in the sentence hearing.

  2. In relation to the Offender’s personal circumstances, counsel submitted that the Offender had not previously been convicted of any criminal offence. In relation to the report of Dr Bench, it was submitted that the Offender meets the criteria for Paedophilic Disorder, and that a treatment program for his paedophilic tendencies should be undertaken.

  3. Before turning to consideration of the reference to a paedophilic disorder in Dr Bench’s report, I note that given the absence of prior convictions this Offender is entitled to a finding of good character. Notwithstanding the nature of this offending and the circumstances which led to it, including the capacity to pay sums of money to the mother of the children involved, I see no reason to limit the weight to be attributed to the finding of good character.

  4. The question of paedophilic tendencies and the diagnosis of paedophilic disorder is something which occupied the submissions of counsel for the Offender and to a lesser extent the Crown. Mr Murray of counsel referred the Court to a decision of the High Court in the matter of Ryan v R [2001] HCA 21, in which the Court discussed issues facing sentencing judges when sentencing paedophiles for conduct relating to that condition.

  5. In particular reference was made to the comments of Kirby J in para 126 of the judgment, where his Honour stated:

The appellant’s paedophilia is an explanation for his sexual attractions to young persons. It is not a defence of the criminal conduct in which he engaged. However, depending on the evidence or other material available to the sentencing judge it might be appropriate in sentencing such an offender to consider the common cause of his multiple offences, as that cause is relevant to evaluating the totality of the wrongdoing. Doing this might allow a court sentencing him to view his actions in context by reference to a major contributing cause of his offending if not the major cause of it.

  1. McHugh J also commented upon this topic. Commencing at [38] he acknowledges that Kirby J referred to factors relevant to the sentencing a person such as that appellant. In [38] McHugh J stated:

Undoubtedly the whole issue of the correct approach in sentencing and dealing with paedophiles like the appellant is of great importance. Sooner or later it will have to be addressed by this Court.

  1. He went on to say that the issues do not arise in the context of that matter in sufficient clarity to permit the Court to make any determination of the issue. However, I note that commencing at [40] McHugh J said:

Whether or not paedophilia is an underlying condition and it appears not to be a psychiatric illness it is by no means clear that a paedophile should be punished ‘less severely than would be appropriate for a series of wilful and completely unconnected offences’. If two men commit similar offences against children, one because he was a paedophile and the other for sexual gratification, I doubt the general public view would see any difference in the two cases, indeed the public view which cannot be disregarded if courts are to maintain the confidence of the community may be that the paedophile should get the heavier sentence of the two because he is more likely to reoffend, there is certainly judicial authority for that view. In Channon v R Brennan J then a member of the Federal Court stated:

An abnormality may reduce the moral culpability of the offender and the deliberation which attends his criminal conduct yet it may mark him as a more intractable subject for reform than one who is not so affected or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.

  1. The quote continues, at [41]:

In Veen v R (No 2) a majority of the High Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to reoffend but the majority noted that although the condition may be said to diminish his or her ‘moral culpability for a particular crime’, it is a double edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result the person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition for the need to protect society which may require a longer sentence than would otherwise be the case.

  1. Therein lies the difficulty with the circumstances which exist here. Whereas a court might be inclined to find reduced moral culpability on the basis that an offender, such as the present, may be a paedophile or suffer a paedophilic disorder now, the effect of a psychiatric diagnosis upon the sentence may be hypothetical, as the other edge of the double edged sword is that the sentence may be increased for specific deterrence and to increase the need to protect the community.

  2. Returning to the submissions of counsel for the Offender, it was accepted that the offending would have had a deleterious effect on the children as a result of the Offender’s conduct and that of Ms Bulitec. In the submissions it appears that the Offender has instructed that he is remorseful for his actions and regrets any negative impact on the children. Whilst this may be the case, it is difficult to make a finding of remorse based on instructions alone. Regardless of his instructions regarding remorse the only evidence is the out of court statements of Dr Bench. In that regard I am mindful of the comments of the New South Wales Court of Criminal Appeal in the matter of Qutami [2001] NSWCCA 353 at [58]-[59] where Smart AJ stated :

In this case reliance appears to have been placed on statements made by the prisoner to psychiatrist and the psychologist, whilst those statements are admissible in evidence very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner, in many cases only very limited weight can be given to such statements.

  1. In the absence of evidence from the Offender, I decline to accept the second hand statements provided by way of instructions to counsel and history to the expert that he is remorseful for his offending. I decline to find remorse.

  1. The submissions of counsel then turn to the question of payment of money by the Offender to Bulitec. Counsel for the Offender submitted that the Offender’s consistent reference to the children as his step-children strongly implied a mental element of responsibility for the children’s upkeep and welfare, making reference to the remarks in Baden v R [2020] NSWCCA 23.

  2. However, counsel also stated that it cannot be ignored that the financial generosity would benefit the Offender in his own activity, particularly when there are discussions of money close in time to matters of sexual discussion. Whilst there may have been some degree of misguided belief that the Offender was in a genuine relationship with Bulitec, and by reason of that fact her children, it is my firm view that the transfer of money was largely dependent upon the production and exchange of abuse material. The risk which the Offender runs in submitting that he viewed the children as his step-children is that it may put him in a position of trust which was plainly abused. Nevertheless, I decline to make that finding.

  3. Counsel for the Offender also submitted that given the lack of any prior convictions generally, specific deterrence is not supported as an element of sentencing for this Offender. I have difficulty accepting that submission. Whilst I accept that the offending may have been occasioned by a paedophilic disorder, and that condition may explain the offending and it may arguably reduce his moral culpability, it also demonstrates the need for a sentence to serve the purpose of personal deterrence to prevent the Offender from further acting upon those sexual urges.

  4. Counsel for the Offender made submissions as to the objective seriousness. I have already made findings in that regard.

  5. I had taken into account the submissions advanced by counsel prior to making those findings. For the record, I note that in respect of Counts 4 and 5 it was submitted that the objective seriousness was at the lower end of the low range. In relation to the balance of the offences, being Counts 1, 2, 3 and 6, counsel submitted they were low range category offending. For the reasons I have already given, I reject those submissions.

  6. Counsel also helpfully provided a submission as to the structure of the sentence. It was submitted that an aggregate sentence of 3 years’ imprisonment would reflect the overall criminality of the subject offending. In addition, it was contended that special circumstances should be found, having regard to his age and the need for a long period of supervision on release, as well as being his first time in custody. I do not accept the submission in relation to the aggregate sentence, however I do accept the submissions advanced on behalf of the Offender in respect of special circumstances, which I find.

Oral Submissions

  1. Turning briefly to oral submissions, the Crown made a number of additional submissions. In relation to the offending relating to Counts 4 and 5, that is procuring a child to engage in sexual activity outside Australia, the Crown submitted that that offending fell at the mid-range of objective seriousness.

  2. The Crown also submitted that the Court must have regard to the rehabilitation of the Offender in sentencing for Commonwealth child sex offences, see s 16A(2)(AAA) and the suggestion that the Court may consider whether it is appropriate to consider any rehabilitation or treatment options (T9.21). However, the Crown also clarified that the Offender’s prospects of rehabilitation should “not be given undue focus at the expense of other legitimate concerns such as the need for adequate punishment and general deterrence” (T11.11).

  3. I acknowledge the importance of rehabilitation in the sentencing process. I also accept the submission that it is one factor to which the Court will have regard in determining the appropriate sentence outcome.

Findings

S 16A Matters

  1. The factors, so far as they are relevant, referred to in s16A(2)(a) – (p) are incorporated in the discussions above.

Summary of Findings

  1. Before moving to sentence, I provide the following summary of the findings I have made:

  1. the Offender does not have a significant record of previous convictions;

  2. the Offender was a person of good character;

  3. the Offender’s prospects of rehabilitation are guarded;

  4. the risk of reoffending is, similarly, guarded;

  5. I am unable to make a favourable determination of remorse;

  6. the plea of guilty attracts a discount of 25%, representing the utilitarian value of the plea and the Offender’s assistance to the administration of justice;

  7. the objective seriousness of the offending is:

  1. for Count 1, at the low range;

  2. for Count 2, at the mid-range;

  3. for Count 3, at the low range;

  4. for Count 4, at the mid-range;

  5. for Count 5, at the mid-range; and

  6. for Count 6, at the low range;

  1. that the Offender has paedophilic tendencies and would most likely suffer from a Paedophilic Disorder, although plainly this is a matter about which expert evidence would be required;

  2. that this condition or those sexual interests may explain his offending, but not reduce the seriousness of his offending;

  3. that the sentence must adequately reflect the criminality of the offending (s3A(a));

  4. general deterrence is a major purpose for sentencing in these circumstances (s3A(b));

  5. that, notwithstanding the Offender’s sexual disorder and cause of it, personal deterrence is also an important purpose for sentencing;

  6. there is a need to protect the community from the Offender acting upon his sexual urges (s3A(c));

  7. rehabilitation, to the extent achievable, must be promoted (s3A(d));

  8. the Offender’s conduct must be denounced (s3A(f));

  9. the s5 and s17A thresholds from the state and Commonwealth Acts respectively are crossed, and no sentence other than imprisonment is appropriate; and

  10. I make a finding of special circumstances.

Aggregate Sentence

  1. I intend to impose an aggregate sentence. I provide the following indicative terms, all of which include a discount of 25% for the Offender’s early guilty plea:

  1. Count 1 – 12 months;

  2. Count 2 – 18 months;

  3. Count 3 – 2 years;

  4. Count 4 – 3 years;

  5. Count 5 – 3 years; and

  6. Count 6 – 12 months.

Totality

  1. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrency, as well as questions of totality. This is a necessary process, even in imposing an aggregate sentence In accordance with the approach in Pearce v The Queen (1998) 194 CLR 610, sentences considered appropriate for each offence are to be determined (in this case indicative terms) and the overall objective criminality is then to be taken into account when considering whether they should be served concurrently or cumulatively upon one another, either in part or totally. That is, except perhaps in cases of multiple offences committed as part of a single, discreet episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence, untainted by reference to other offences for which that offender is to be sentenced.

  2. The matters for which this Offender faces are discrete offences.

  3. In coming to an aggregate sentence it is necessary to have regard to questions of concurrency and accumulation. Plainly, to impose a sentence representing the sum total of the indicative terms would be excessive and offend the principle of totality.

  4. In determining the appropriate sentence the offences for which the Offender is to be sentenced comprise separate events over a period of about 8 months, plainly some accumulation is called for. However, a high degree of concurrency must also be struck.

  5. The ultimate sentence imposed must reflect the total criminality of the offending. It is necessary to ensure that the aggregation of all sentences is adjusted in appropriate measure with the total criminality involved. The aggregate non‑parole period must reflect the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice.

Convictions

  1. Daniel Dalwood, you are convicted of the offences for which you have pleaded guilty, namely:

  1. Count 1 – possess child abuse material, in breach of s91H(2) of the Crimes Act 1900 (NSW);

  2. Count 2 – use a carriage service to solicit child pornography material, in breach of s474.19(1) of the Criminal Code (Cth);

  3. Count 3 – use a carriage service to plan etc sexual act, where person under the age of 16 years, in breach of s474.25C of the Criminal Code;

  4. Count 4 – procure child for sexual activity outside Australia, in breach of s272.14(1) of the Criminal Code;

  5. Count 5 – procure child for sexual activity outside Australia, in breach of s272.14(1) of the Criminal Code; and

  6. Count 6 – use a carriage service to transmit child pornography material, in breach of s474.19(1) of the Criminal Code.

  1. For those convictions, I impose an aggregate sentence consisting of a non-parole period of 3 years, commencing 28 May 2019, and a head sentence of 6 years. You will become eligible for parole on 27 May 2022.

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I certify that the previous 113 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

Associate

J Bailey

Amendments

12 February 2021 - Amendments in relation to particulars which may lead to the identification of victims

Decision last updated: 12 February 2021

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Baden v R [2020] NSWCCA 23
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Minehan v R [2010] NSWCCA 140