Wormald v The King

[2025] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wormald v R [2025] NSWCCA 140

Hearing dates:

30 July 2025

Date of orders:

12 September 2025

Decision date:

12 September 2025

Before:

Wright J at [1];
Weinstein J at [2];
Sweeney J at [3]

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth child abuse material offences – State offences of common assault, sexual touching and possessing child abuse material – whether the sentencing judge erred in his findings as to the degree of deception practiced by the applicant in his offending and his use of insights gained from his teaching career – whether the aggregate sentence in respect of the Commonwealth offences was manifestly excessive – whether the overall effective sentence was manifestly excessive as a result of the asserted errors – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 578A

Crimes Act 1914 (Cth), ss 16A, 16BA, 19

Criminal Code (Cth), ss 474.22(1), 474.27A(1)

Cases Cited:

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Mulato v R [2006] NSWCCA 282

Newman (a pseudonym) v R [2019] NSWCCA 157

GP (a pseudonym) v R [2021] NSWCCA 180

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221

Ocek v R [2023] NSWCCA 308

R v Gent [2005] NSWCCA 370

R v Hutchinson [2018] NSWCCA 152

R v Jeffery [2021] NSWCCA 221

R v Whaley [2020] NSWDC 517

R v White [2025] NSWCCA 111

Woods v R [2024] NSWCCA 186

Category:

Principal judgment

Parties:

Aaron Wormald (Applicant)
Rex (Respondent)

Representation:

Counsel:
P Rosser KC / M Preece (Applicant)
M Millward (Respondent)

Solicitors:
Hamilton Janke Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/00189747

Publication restriction:

Statutory non-publication orders apply under s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 May 2024

Before:

Turnbull SC DCJ

File Number(s):

2022/00189747

JUDGMENT

1. WRIGHT J: I agree with Sweeney J.

2. WEINSTEIN J: I agree with Sweeney J.

3. SWEENEY J: Aaron Wormald, the applicant, seeks leave to appeal against the aggregate sentence imposed upon him for Commonwealth child abuse material offences, and the total effective sentence imposed upon him for Commonwealth and State offences, by Judge Turnbull SC in the District Court on 9 May 2024.

4. The applicant had pleaded guilty to all offences in the Local Court and a 25% discount was applied to the indicative sentence for each State and Commonwealth offence.

5. The New South Wales offences were a common assault, two offences of sexual touching of students, with another such offence on a Form 1, and two offences of possessing child abuse material, with another such offence on a Form 1. The aggregate sentence was 2 years imprisonment, with a non-parole period of 15 months, dating from 29 June 2022.

6. The Commonwealth offences were six offences of using a carriage service to solicit child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth) (“Criminal Code”), each with a maximum penalty of 15 years imprisonment, and one count of using a carriage service to transmit indecent material, contrary to 474.27A(1) of the Criminal Code, with a maximum penalty of 10 years imprisonment. Two of the soliciting offences had further similar offences taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth) (“Crimes Act”). For the two soliciting offences, with the s 16BA schedule offences taken into account, the indicative sentence was 4 years and 6 months imprisonment. For the other four soliciting offences, the indicative sentence in each case was 3 years and 6 months imprisonment. For the offence of transmitting indecent material, the indicative sentence was 1 year and 6 months imprisonment.

7. The aggregate sentence for the Commonwealth offences was 11 years and 2 months imprisonment, with a non-parole period of 6 years and 9 months imprisonment, commencing on 29 December 2022. It was accumulated on the aggregate sentence for the State offences by 6 months, so the total effective sentence was 11 years and 8 months imprisonment, with a total non-parole period of 7 years and 3 months imprisonment.

8. The applicant seeks to rely on the following grounds of appeal:

“1.    The Aggregate sentence imposed by the learned Judge in respect of the Commonwealth offences is, in all the circumstances, manifestly excessive and a lesser aggregate sentence should have been passed;

2.    In consequence of the manifest excess of the sentence for the Commonwealth offences, the overall effective sentence is manifestly excessive.

3.    That the learned sentencing Judge was in error in his findings as to:

a.    The significance of the Jannsen family, as to degree of deception practiced;

b.    The significance of the ‘fictitious children’;

c.    The use by the applicant of insights gained in his teaching career;

d.    The degree of deception and manipulation used in the offending generally.”

9. Ground 3 was added during the appeal hearing, without objection from the Crown and with the leave of the Court.

10. A summary of the facts of the Commonwealth offences is as follows. The applicant created Instagram and Snapchat accounts for four fictitious siblings, aged from 12 - 16, with the surname Jannsen. The applicant used the fictitious profiles to communicate with young children and convince them to send him nude images and videos of themselves. The applicant also created other Snapchat or Instagram accounts of fictitious children to befriend his own fictitious accounts, which he could then use to convince the child victims to send explicit material to his account.

11. The applicant used a screen recording application to record videos of his communications with the children he targeted. By the use of that application he was able to record his interactions with children without them being notified that he had done so, which would have occurred if he had “screen-shotted” messages or images.

12. In compliance with s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) I will refer to the child victims by initials.

13. The applicant used the Tom Jannsen account during September 2020 to communicate with the child “SH”, who was estimated from images of her to be around 12 years of age. He screen recorded several video files. The applicant repeatedly asked to see photos of SH, saying he wanted to kiss her lips, and talked about having an erection. SH sent images of her face and chest with a crop top on. The applicant encouraged her to pull up her crop top and send further images. When SH talked about having a shower the applicant encouraged her to send images. The applicant encouraged SH to meet up with him in secret and said he would pretend to be a girl. SH told the applicant that her father was “strict about guys”. That offending was the subject of Sequence 20, which was taken into account on the s 16BA schedule in relation to Sequence 21.

14. Sequence 21 involved the applicant communicating with the child “K”, on Snapchat and Instagram during October 2020. He used mainly the Tom Jannsen and Ellie Jannsen accounts to communicate with K. He screen recorded several video files of conversations, mostly over Instagram, between him and K. The applicant used Ellie’s account to convince K to send images to her brother Tom. After some time the applicant used Ellie’s account to convince K to send images to her instead. The applicant, pretending to be 14 year old Ellie, told K that she was not going to share K with Tom. The applicant convinced K to send videos of herself masturbating and encouraged her to “finger herself”. K sent a video of that, and the applicant informed her that she had a “beautiful pussy”. From an image of her face police believed that K was under the age of 16.

15. The applicant then went to K’s Instagram profile and scrolled through images she had uploaded. He zoomed into the breasts and genital region of images in which she was wearing a bikini. K’s profile said she was 14. The applicant also looked at profiles of girls who had been tagged in images and began to add them as friends.

16. The sentence indicated for that offence in Sequence 21, taking into account Sequences 20 and 22 on the s 16BA schedule, was 4 years and 6 months imprisonment, as against the maximum penalty of 15 years imprisonment, with a 25% discount.

17. The offending the subject of Sequence 22, taken into account in the sentence for Sequence 21, involved the applicant using the profile of Annabelle Jannsen, purportedly a 14 year old girl, to communicate with a boy “T”, on Instagram in October 2020. When he sent an image the applicant replied “I got excited because I thought you sent a cock pic.” T sent the applicant an image of himself standing in front of the mirror naked with his penis exposed. Police estimated him to be around the age of 14.

18. The applicant communicated with a girl “A”, on Instagram in November and December 2020, using Ellie Jannsen’s profile, purporting to be a 14 year old girl. The applicant spoke explicitly sexually and talked about sexual acts he wished to do to A. The applicant encouraged A to send images, which she did. The images were of her naked with her breasts and vagina exposed. Police estimated her age to be 14 years. That offending was the subject of Sequence 23, for which the sentence indicated was 3 years and 6 months imprisonment, as against the maximum penalty of 15 years imprisonment, with a 25% discount.

19. The next offence was the applicant communicating with a girl “C”, using Tom Jannsen’s Instagram and Snapchat accounts frequently between February 2021 to June 2021. He screen recorded numerous video files of conversations with C and numerous videos and images of her from which police estimated her age to be 14 years.

20. The conversation between the applicant and C was ongoing and most commonly about sexual topics, including the applicant telling C that he wanted to “fuck” her. He regularly asked her for videos and images, often telling her what to send him. C often sent the applicant videos that mostly pictured her naked with her breasts or vagina exposed.

21. In part of the conversation the applicant told C that he wanted “nudes” from her so he could sketch her. He said he was a good artist and had sold his artworks. C was hesitant to send images and the applicant tried to manipulate her into sending them, telling her he had been waiting for eight hours and spent $400 on equipment on his way home from school to do it. He told her he was crying and had ripped up the book and was going to bed.

22. In another conversation C told the applicant about her home life and having trouble with siblings. The applicant told C that she should come and live with him so he could “protect her”. That offending was the subject of Sequence 24, for which the sentence indicated, taking into account Sequence 25 on the 16BA schedule, was 4 years and 6 months imprisonment, as against the maximum penalty of 15 years imprisonment, with a 25% discount.

23. The offending in Sequence 25, taken into account in respect of the previous offence, involved the applicant communicating with a girl “M”, on Instagram in February 2021 using the Tom Jannsen account. He sent messages to M telling her that she was beautiful and that he wanted to kiss her. He persuaded M to send images of herself naked in a bathroom. He begged her not to stop and messaged “Let daddy see one more?”. M continued to send images and the applicant continued graphically describing what he wanted to do to her sexually. Police estimated M’s age to be 13 - 14 years.

24. The next offence involved the applicant using the Tom Jannsen Instagram account to communicate with a girl “H”, on Instagram in February 2021. The applicant told H that he had been waiting for photos. He asked her to send “A few nudes when U shower. I’ll come for U.” She sent images of her vagina and breasts. Police estimated her age to be around 14 years. During the conversation the applicant and H discussed that they were “seeing one another”. H told the applicant how lucky she was to be dating him and referred to him being good looking. In July 2022 H’s Instagram account listed her age as 15, so that when the interactions with the applicant took place, she would have been no older than 14. That offending was the subject of Sequence 26, for which the sentence indicated was 3 years and 6 months imprisonment, as against the maximum penalty of 15 years imprisonment, with a 25% discount.

25. The next offence involved the applicant communicating with a different girl “A”, using the Tom Jannsen Instagram and Snapchat accounts throughout April and June 2021. The applicant screen recorded video files of conversations between them and numerous videos and images of the victim that had been sent on Instagram and Snapchat. Police suspected A was likely around the age of 12. The applicant asked her to send him nudes, at one point instructing her to put her fingers inside herself and send him a video, which she did. Other images sent contain the victim’s exposed chest and breasts. During the conversations the applicant told A that he missed her. In one conversation, A called the applicant a “perv” and told him she was only in year 7. The applicant replied that he was in year 10. That offending is the subject of Sequence 27, for which the sentence indicated was 3 years and 6 months imprisonment, as against the maximum penalty of 15 years imprisonment, with a 25% discount.

26. The next offence involved the applicant communicating with a child “I”, on Instagram in September 2020 using the Tom Jannsen Instagram account. He asked I for videos and photographs and instructed her what to send him, with comments such as “Can you take off your shirt for me and let me watch you finger yourself?”. The victim sent the applicant several images and videos of herself performing sexual acts and exposing her breasts. The applicant could be heard moaning on videos when the child I sent sexually explicit content. Police estimated her age to be about 12 years. That offending was the subject of Sequence 28, for which the sentence indicated was 3 years and 6 months imprisonment, as against the maximum penalty of 15 years imprisonment, with a 25% discount. The applicant sent a video to I of a male masturbating, which was the subject of Sequence 29, using a carriage service to send indecent material to a person under 16 years, for which the sentence indicated was 1 year and 6 months imprisonment, as against the maximum penalty of 10 years imprisonment, with a 25% discount.

27. In assessing the objective seriousness of the Commonwealth offences his Honour took into account, apart from the matters the subject of the appeal grounds 3(a) – (d), that real children were involved as victims, that there were repeated requests and importuning for sexual images and that there was planning. His Honour found each offence was “towards the mid-point of the midrange of objective seriousness”, an assessment accepted and not challenged by the applicant. His Honour decided that the only significant difference in each of the Commonwealth offences was the attachment of additional offences on s 16BA schedules.

28. His Honour took into account the following subjective circumstances of the applicant. He was born in 1975. He had no prior record. He had been dismissed from his teaching job of 25 years.

29. He had experienced anxiety and depression and abused alcohol. Judge Turnbull SC accepted that the applicant had been treated for mental health issues since 2018 including Bipolar Affective Disorder, with episodes of mania and depression, and Post-Traumatic Stress Disorder symptoms.

30. He reported a stable family environment and upbringing but said he was sexually abused by a teacher as a 13 year old child. Dr Allnut, psychiatrist, did not believe that that experience contributed directly to the applicant’s offences but said it contributed to his developing psychiatric conditions, especially depression and alcohol dependence. His Honour found those factors “contextual” of the offending.

31. The applicant gave evidence including that he had been terrified in custody, threatened, assaulted on multiple occasions, and sexually assaulted. Judge Turnbull SC found the applicant’s conditions of custody would be more onerous. His Honour found that the applicant had been specifically deterred by his experiences in custody and specific deterrence did not have a big role to play in the sentence. His Honour also found that the applicant was not the most appropriate vehicle for general deterrence.

32. His Honour found the applicant’s pleas of guilty were expressions of his contrition and remorse.

33. In fixing the aggregate sentence for the Commonwealth offences his Honour considered s 19(5) of the Crimes Act which requires full accumulation of sentences for child sex offences, as the Commonwealth offences were. His Honour considered that to fully accumulate the sentences would lead to a sentence out of proportion to what would be just and appropriate in all the circumstances of the offending. Therefore, his Honour applied s 19(6), finding that partial accumulation would result in a sentence of severity appropriate to the criminality.

Ground 3(a): That the learned sentencing judge was in error in his findings as to the significance of the Jannsen family, as to degree of deception practiced

34. Judge Turnbull SC made the following findings which are the subject of challenge by this ground of appeal:

• “[The applicant’s] conduct in establishing the false world of the family Jannsen in order to provoke, trick, manipulate children, to send explicit material for his sexual gratification is very serious criminality indeed…. It was hardly spontaneous, it was planned. It involved a high degree of deception…”

• “These children were thinking they were speaking to age-appropriate people.”

• “… by talking about and introducing other contrived correspondents as his… sister and family getting around resistance in that way… which led to videos, private… sex activity being channelled from the children to him.”

35. Senior Counsel for the applicant submitted that it is a standard feature of offences of the kind committed by the applicant that the offender deceptively presents themselves to the child victim as being of a particular age and having a particular interest and inducing them by persuasion or cajolery to provide material. He submitted that the applicant’s offences did not have an unusual degree of deception. He submitted his Honour placed significance on the applicant having created a completely false narrative of children who were the same age as the people he was addressing online.

36. Counsel submitted that there was only one offence, that in Sequence 21, in which the applicant moved from the Tom Jannsen profile to his supposed sister Ellie, yet his Honour’s observations about the use of the Jannsen family seemed to treat that conduct as applying to the whole of the offending.

Ground 3(b): The learned sentencing judge was in error in his findings as to the significance of the “fictitious children”

37. In this ground the applicant challenged his Honour’s finding that:

“The fictitious children, the manipulation and deception was of a high order.”

38. Counsel submitted that this must refer to the agreed fact that:

“The offender also created other Snapchat or Instagram accounts of fictitious children in order to befriend his own fake accounts, which he could then use to convince the children to send explicit material to his own fake account.”

39. Counsel submitted that his Honour’s statement of the fact “The offender also created other Snapchat or Instagram accounts of fictitious children in order to befriend his own fake accounts and then he would use them to convince the children to send explicit material to his own fake account” was not in terms of the agreed fact, which was “he could then use” the accounts of fictitious children which had befriended his own fictitious accounts. Counsel submitted there was no evidence that the fictitious accounts played any role, in any of the offending, in deceiving any of the victims. He submitted that the applicant’s creating the fictitious children who “friended” the Jannsens’ accounts to give the Jannsen accounts a provenance of having other friends was not a factor which showed an unusual degree of deception in the applicant’s offending.

Ground 3(c): The learned sentencing judge was in error in his findings as to the use by the applicant of insights gained in his teaching career

40. The finding the subject of Ground 3(c) was:

“I must point out that those circumstances wherein he is manipulating children online must have reflected insights that he had garnered over that lengthy period of time dealing with children of that age as a teacher, no doubt as a mentor, and as an associate. That is a sinister aspect to my mind.”

41. Later in his Remarks on Sentence his Honour said:

“I have already noted that his role as a school teacher, a drama teacher at that, his exposure to this generation, and I accept that that must have played a role in his capacity to elicit the images and to engage in the interactions that he craved.”

42. His Honour found that the applicant acting contrary to the expected role of a teacher “supporting and nurturing children” made his offending more serious.

43. Counsel for the applicant submitted that it was not available to his Honour to say that because the applicant was a senior school teacher, he must have used insights gained in that role to help him commit the offences. Counsel submitted that his Honour made an assumption to that effect.

Ground 3(d): That the learned sentencing judge was in error in his findings as to the degree of deception and manipulation used in the offending generally

44. His Honour found significant deceit by the applicant recording videos, circumventing the Instagram and Snapchat applications which notify users when an image or message is captured by users. His Honour said it was the expectation of the victims using Snapchat and Instagram that the images disappear after a short while, not that they would be retained.

45. His Honour referred to the applicant having manifested romantic interest in victims and pretended to foster a romantic relationship with his created characters. He said it was particularly egregious manipulation by the applicant to pretend he was a young boy and an artist and blame the victim for the destruction of his art materials. He described it as “heartless”. His Honour said that offering a teenage victim advice about her home life was “appalling”.

46. Counsel submitted that because of the “perhaps exaggerated weight” that his Honour gave to deceptive behaviour on the part of the applicant, his Honour nominated indicative sentences in excess of what they ought to have been and higher than those imposed for offending which involved threats to publish photographs of children in order to compel children to provide more images, such as R v Jeffery [2021] NSWCCA 221 (“Jeffery”) and R v Whaley [2020] NSWDC 517 (“Whaley”). He submitted that the threats made the offending in those cases more serious than the applicant’s offending.

47. The Crown submitted that there is a tension between the applicant’s acceptance of Judge Turnbull SC’s assessment of the objective seriousness of the offences and Ground 3.

48. The Crown reminded the Court of the appellate restraint when considering the sentencing judge’s assessment of the objective seriousness of the offences. The Crown submitted that Grounds 3(a) and 3(b) were complaints about the weight afforded to particular factors in the assessment of the objective seriousness of the offences where the actual assessment was not challenged.

49. The Crown submitted that Grounds 3(c) and 3(d) require the applicant to demonstrate House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”) error and in challenging factual findings the applicant must establish that the finding was not reasonably open for the sentencing judge to make.

50. The Crown submitted that his Honour’s finding that the applicant’s role as a school teacher must have played a role in his capacity to engage with the victims and elicit the images was not an assumption but an inference well open to the sentencing judge on the evidence before him, that the applicant had no children of his own, but had had a long exposure to children over the course of his teaching career and as a high school teacher specifically had exposure to children of the age of the victims he targeted in the Commonwealth offences. The Crown submitted that the offending demonstrated that the applicant was able to convince the children that he was a teenage boy or girl, gain their trust and then exploit it. The Crown submitted that the fact that the applicant was successfully able to do that gave rise to an inference that he used his insights into children of the particular age that he had gained as a teacher and they assisted him to perpetuate the deception in which he engaged. The Crown submitted it was a finding of fact that was open to the sentencing judge and it was a factor that was meaningful in informing the assessment of objective seriousness.

51. The Crown submitted that the sentencing judge’s conclusions as to the objective seriousness of the offending were supported by the agreed facts.

52. The Crown submitted it was open to his Honour to find that the offending involved a high degree of deception based on the creation of and use of the fictitious family of siblings, the creation of other profiles to convince the children that the Jannsens’ were actual genuine children of the age represented, the surreptitious recording of the interactions which did not alert the children to the fact that the applicant was capturing their interactions, and the cultivating of relationships in those cases where that occurred, which were accepted by the children as genuine relationships, such as in the case of the children T, H and C.

Consideration

53. Although the applicant does not challenge Judge Turnbull SC’s assessment of the objective seriousness of the Commonwealth offences but anterior considerations and findings, it is worth repeating the statements of Spigelman CJ and Simpson J in Mulato v R [2006] NSWCCA 282 (“Mulato”), emphasised recently in R v White [2025] NSWCCA 111 at [66]. In Mulato Spigelman CJ said at [37]:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour…” (emphasis added).

54. Simpson J said at [46]:

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

55. A complaint about too much or too little weight given to a factor is not a complaint of error within the principles of House v the King: R v White [2025] NSWCCA 111 at [30] - [32].

56. If an error is found to have been made by the sentencing judge then the court must consider whether the error was material in the sense that it had the capacity to affect the sentencing outcome: Newman (a pseudonym) v R [2019] NSWCCA 157 and GP (a pseudonym) v R [2021] NSWCCA 180. Those decisions flowed from the High Court’s statement in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]:

“When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh… This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion.”

57. I am not persuaded that Judge Turnbull SC erred in his findings as to the significance of the created Jannsen family of teenagers in the offending. Whether it is usual in such offending for offenders to make false representations about their age and interests, in this case the applicant’s planning by creating such a family was an aspect of his offending to be considered. It had the effect that the victims believed they were communicating with children of their own age, not a man in his 40s, with whom presumably they would not have shared the behaviour and images that they did. It was an appropriate matter for his Honour to take into account, and none of his findings about that aspect of the offending have been shown to be in error.

58. His Honour correctly stated the facts that, in respect of the offending against the victim K, the applicant switched between two sibling profiles. He did not state that in respect of any of the other offences. He did not misstate those facts. His findings about the applicant’s use of the false Jannsen siblings, including the finding that “by talking about and introducing other contrived correspondents as his sister and family getting around resistance in that way, or here is a female rather than a male to interact with, which led to videos, private… sex activity being channelled from the children to him”, do not demonstrate that his Honour took that into account in error, or gave greater weight to it than it warranted. In any event, the applicant did not challenge his Honour’s assessment of the objective seriousness of the offences.

59. In respect of the fictitious other children’s accounts said to have been used by the applicant to give greater credibility to the Jannsen accounts, the “could” in the agreed statement of facts was transcribed as “would” in his Honour’s Remarks on Sentence. Whether that was a mistranscription or a slip in his Honour’s ex tempore judgment, the creation of other fictitious accounts was an additional part of the planning undertaken by the applicant, inferentially only for the purpose of successfully obtaining what he wanted from the child victims. The applicant has not suggested that it led to an error in the assessment of the objective seriousness of the offences. If the use of the wrong word by Judge Turnbull SC involved an error it is difficult to see that it was a material error which had the capacity to affect the sentence.

60. In respect of the applicant’s assertions of error about the applicant’s insights into teenage behaviour from his teaching career, the applicant was a teacher of teenaged children. He successfully interacted with a number of children on social media to obtain sexually explicit communications, images and videos. He did so by impersonating teenage children. The inference was well open to his Honour from those facts that the applicant had gained knowledge from his teaching experience of the ways in which teenage children interact on social media in order to commit his offences. I am not persuaded there was any error in his Honour’s finding to that effect.

61. Nor am I persuaded that his Honour gave “perhaps exaggerated weight”, as the applicant submitted, to the applicant’s deceptive behaviour by impersonating children, in some cases pretending an emotional or romantic interest in the victim, and circumventing the applications used to record and retain images and videos of the vulnerable children who thought they were disclosing private images to interested and empathetic children of a similar age.

62. Accepting that matters adverse to the applicant had to be established beyond reasonable doubt, the findings made by his Honour were open to be found to that standard.

63. The applicant has not established any of Grounds 3(a) – (d).

Grounds (1) and (2): That the aggregate sentence for the Commonwealth offences was manifestly excessive and therefore the total effective sentence is manifestly excessive

64. In support of the grounds of appeal asserting manifest excess the applicant submitted that the indicative sentences were too high and so with appropriate notional accumulation the aggregate sentence was always going to be manifestly excessive.

65. Counsel submitted that the features of the applicant’s offending are features present in almost every case of such offending. He submitted those factors were the pretence by the offender that he was of an age appropriate to the victims, the soliciting of child abuse material, repeated requests for such material, adopting a persona appropriate to his victims, pretending a romantic interest and expressing admiration for the appearance of the victim, establishing a relationship in which from the point of view of the victim it became appropriate to send the material requested, and that real children were involved as victims. Counsel submitted that the other factors taken into account by the sentencing judge, which are the subject of Ground 3, did not make the applicant’s offending far worse than the “normal case”.

66. While acknowledging the limitations upon the use of comparable cases: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, especially that a limited number of comparable cases makes it impossible to establish a range of sentences, counsel relied on the sentences imposed in Whaley and Jeffery, where the offending involved threats which caused the offending to be assessed as above the mid-range of seriousness. He submitted that the level of deception involved in the applicant’s offending was not equivalent to threats. Counsel also relied on the sentences imposed in Ocek v R [2023] NSWCCA 308 and Woods v R [2024] NSWCCA 186.

67. The Crown submitted that the applicant’s reliance on those cases was contrary to authority about the limitations on the use of individual cases.

68. The Crown took issue with the applicant’s focus on what was usual and unusual in cases of offending of the kind being considered. The Crown submitted that this Court should, as Judge Turnbull SC did, consider the applicant’s offending by reference to the factors identified by this Court in   R v Hutchinson [2018] NSWCCA 152 (“Hutchinson”) and before then in R v Gent [2005] NSWCCA 370.

69. The Crown submitted that the aggregate sentence for the Commonwealth offences was not manifestly excessive given the number of offences, that other than Sequences 28 and 29 which involved the same victim, each of the Commonwealth offences concerned a different child victim and involved criminality not contemplated within or captured by the other Commonwealth offences; that each of the Commonwealth offences involved very serious criminality, considerable planning, sophistication and the method by which the applicant circumvented the ordinary limitations of the relevant social media applications by the use of the screen recorder, as well as the lengths the applicant went to to gain the confidence of and manipulate the child victims by developing a series of fictitious siblings.

70. The Crown submitted that the sentencing judge found that the applicant’s mental health issues did not have the same mitigatory effect in respect of the Commonwealth offences as they did in relation to the State contact offences, and also found that the applicant’s moral culpability was reduced in relation to the contact offences but did not make such a finding in relation to the Commonwealth offences.

71. The Crown submitted that the sentencing judge was aware of the differences between the offender in that case and the applicant’s offending, and that whereas Whaley engaged in threats of blackmail the applicant did not need to engage in such because he received what he wanted by deception and manipulation of the child victims.

Consideration

72. The principles to be applied in consideration of an assertion of a manifestly excessive sentence were summarised by R A Hulme J in Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

• “Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

73. In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 Bell P added further:

“[42]   To this oft-cited summary of principles, may be added the following:

(1)    Sentencing is an ‘exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions’ — Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].

(2)    Each case has to be considered on its own merits, and no case is entirely similar to any other — Windle at [61].

(3)    There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate — Windle at [61].

(4)    An applicant seeking to challenge a sentence on the ground of manifest excess has a ‘very heavy practical burden’, and must show a kind of disproportion which is so ‘manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law’ — R v Elemes [2000] NSWCCA 235 at [22]–[23].

(5)    The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 — Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [181]; Dowling at [59].

(6)    The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) — Turner at [68].

(7)    Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process — Dinsdale at [6]; Simmons at [30].

(8)    Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range — Martinez v R [2020] NSWCCA 250 at [39].

(9)    Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight — Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]–[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].

(10)    Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender — Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

74. In Hutchinson R A Hulme J set out a non-exhaustive list of factors that may bear upon the assessment of the objective seriousness of offences of possession, dissemination or transmission of child abuse material at [45]:

“1.    Whether actual children were used in the creation of the material.

2.    The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3.    The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4.    The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.

5.    In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination…

6.    In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7.    Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8.    The proximity of the offender’s activities to those responsible for bringing the material into existence.

9.    The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.

10.    The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.

11.    Whether the offender acted alone or in a collaborative network of like-minded persons.

12.    Any risk of the material being seen or acquired by vulnerable persons, particularly children.

13.    Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.”

75. As His Honour stressed, in that case at [46], one must have regard to the factors in each individual case, so the cases relied on by the applicant do not establish a range of sentences for offences of the kind under consideration. Nor does it assist to focus on what is usual or not usual in offences of this kind.

76. So one must go back to first principles, to have regard to the maximum penalty prescribed for each offence, the matters to be taken into account pursuant to s 16A of the Crimes Act, the circumstances of the offending and the offender, which were taken into account by his Honour and have been set out in this judgment, and the factors in Hutchinson as adapted to the nature and circumstances of the offending and the seriousness of the offending as assessed. Taking all those matters into account, the applicant has not established that the aggregate sentence for the seven Commonwealth offences with matters on schedules to be taken into account in respect of two of them, with nine different child victims, is manifestly excessive in the sense of being unreasonable or plainly unjust. Nor has he established that the total effective sentence for the State and Commonwealth offences was manifestly excessive.

77. In the interests of finality I would grant leave to appeal but dismiss the appeal.

Orders

78. The orders I propose are:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 12 September 2025