Plea of guilty - Possess or control child abuse material obtained or accessed using a carriage service - Exceptional circumstances.
Source
Original judgment source is linked above.
Catchwords
Plea of guilty - Possess or control child abuse material obtained or accessed using a carriage service - Exceptional circumstances.
Judgment (8 paragraphs)
[1]
Sentence: 3 months' imprisonment, released forthwith on a 9-month Recognizance Release Order.
[2]
Office of the Director of Public Prosecutions (Cth)
[3]
John Nagy, you have pleaded guilty to one charge of possessing or controlling child abuse material, obtained or accessed using a carriage service, on 13 February 2025. The maximum penalty for this offence is 15 years' imprisonment. You were 54 years of age at the time of the offending. The charge relates to three photograph images that were downloaded onto your laptop.
The circumstances of your offending have been provided in the Summary of Prosecution Opening. It is agreed to be an accurate account of events. The general summary of the facts is as follows.
On 1 August 2024, the Australian Federal Police ('AFP') received a report that child abuse material had been uploaded onto the Google platform by someone using the online username 'JohnNagy1770'. The IP address associated with the uploaded child abuse material is your home residence.
On 13 February 2025, Victoria Police attended your residence to execute a Search Warrant. Police peacefully entered the premises and explained why they were present. You were home with your mother and adult stepdaughter at the time. In discussion with a police officer, you mentioned that you had come across a website called 'Chat Avenue', found these images and downloaded them. Another police officer told you that you did not have to talk as you had not yet been cautioned. You replied 'yep, saw the images downloaded them on a laptop'. Police asked how many and you replied 'a few, maybe five'. Police searched the residence and located an ASUS laptop on the bed in your bedroom. Upon request, you continued to cooperate voluntarily and provided the officers with your laptop pin codes.
You were found to be in possession of three photographs of child abuse on your laptop. The three photos you downloaded depict:
A naked pubescent female child, likely to be 15 years, standing naked with her breast and genital area exposed. You called this image 'yum yum young'.
A topless pubescent female child, aged between 10 to 12 years, with a focus on her breasts. You called this image 'braces yum'.
A topless pubescent female child, likely aged between 12 and 14 years, pulling her underwear down to expose her genital area in a sexualised pose. You called this photo 'pose yum'.
You were taken to the police station and agreed to participate in a Record of Interview. You admitted that you were the owner of the laptop, that it was for your personal use and no one else used it. You stated that:
You knew police were at your house for child pornography forms of pictures. You thought the people in the images were 18 and said that it was hard to tell because they did not say their age and it was just a picture.
You admitted that the images came from other people on the chat site and you downloaded them onto your laptop.
You probably last used the ASUS laptop about year ago and the only way the child abuse material image could have gotten on to your laptop is through the Chat Avenue website.
You recall the child abuse material image located on your laptop as 'a very old image from probably a couple of years ago' and you could not remember it. You knew it was old because it was on your old laptop.
You stated you were not sexually interested in children and that you visit a lot of sites for curiosity.
When asked why you downloaded the files in the first place you replied, 'just curiosity and I'm sorry if I downloaded the wrong things'.
You did not know why police would be interested in investigating child abuse material. You confirmed that you only downloaded it and that you did not share it with anyone.
At the conclusion of the interview you stated 'I didn't do it intentionally. I just downloaded probably a picture or two. It wasn't my purpose to do it really. It was just curiosity, just to explore the internet. Very sorry if there was child pornography on there'.
I have not viewed the child abuse material as there is no dispute that the description provided in the Prosecution Opening is sufficient. While the volume of the material is an indicator of the seriousness of the offences, the primary focus is the type of material and degree of depravity. Quantity is the secondary focus. The material explicitly demonstrates three static images of pubescent females in the nude. While there may be a sexual pose for one of them, the photos are of girls on their own and the pictures do not include sexual activity. However, as they expose the females' breasts and genitals, the photos are of a graphic and sexual nature. There is no dispute that all instances involving child abuse material is objectively serious and cannot be regarded as trivial.
On 13 February 2025, you were charged with offending and your bail was fixed. Your matter resolved to a plea of guilty to the current charge at the first committal mention on 20 June 2025. It is agreed that your plea has been entered at the earliest opportunity and was heard on 4 December 2025, the first County Court listing. You made admissions to police and were cooperative at the outset. You provided them with access to your laptop and then made admissions in your Record of Interview. Your plea of guilty was made at the first available opportunity and is consistent with your cooperation.
You are entitled to receive a substantial benefit for your early guilty plea. It has a highly significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial. You have facilitated the efficient administration of justice and are entitled to a benefit for that. Your plea of guilty demonstrates an acceptance of responsibility for your misconduct. Your counsel submits that it is also consistent with remorse. Even though it appears that you do not have a complete understanding of the nature of offending itself, I accept this submission and the prosecution does not dispute this.
You are of previous good character and have no prior or subsequent criminal history. However, limited weight is put on good character for offending of this type.
I turn now to your personal circumstances. You were born in July 1970 and are now 55 years of age. You are the only child of your parents. You have seven half siblings on your mother's side, although you did not grow up together. They all reside in Tasmania. Your mother lives here, has recently been moved into an aged care facility and you remain a carer for her. You have found it hard to establish and maintain intimate relationships throughout your life.
You grew up in a small town in rural New South Wales and although you attended schools, you do not describe yourself as a good student and you were bullied a lot. You were scared of your father throughout your childhood, as he hit your mother and drank a lot. If you were badly behaved, he would hit you with a belt. Your parents separated when you were around 19 years of age and you and your mother moved to Launceston, where her family lived. You have not really had any contact with your father since that time.
After leaving school, you worked for a year at a cement factory. You completed a welding course and although you had small jobs you were mostly unemployed while living in Tasmania, where you remained until you were 28 years old.
You then moved back to Melbourne with your partner and you were in a relationship for three years. Her daughter, who is now 34 years of age, shares your home with you. You do regard her as your stepdaughter, even though you were not married to her mother.
You were employed for 22 years as a welder with ASpace although you were forced to retire in March 2024. You suffered a stroke, were treated at the Monash Hospital and had to attend a rehabilitation program for a year in order to regain your licence. Your vision has been adversely impacted and it is not clear if you suffered any cognitive impairment. You have been unable to work since then.
You admit that you became depressed. You have been in receipt of the Job Seeker Allowance and formally took the role of carer to your mother, until her recent placement in a nursing home.
You currently have a range of physical health conditions affecting your daily life, including heart failure resulting in heart issues, sleep apnoea and respiratory issues, type 2 diabetes and you are undergoing investigation for renal failure. You are on a multitude of medications to manage these conditions.
Two character references have been provided, one from your half-sister and the other from three nephews who are all in Tasmania. They confirm that they are aware of your current circumstances and the court proceedings. Your half-sister writes that she was shocked when she heard what has occurred. You told her as soon as you were charged and have been honest and upfront in your disclosure. You have told her that you feel terrible about what you have done and she believes that you would be more wary from now on. She knows you as being an honest and kind person who is polite and considerate. You have been caring for your elderly mother. Your nephews also state that effectively, this offending is out of character. They describe you as being the best uncle they could ask for. You have always been kind, caring and fair. They continue to support you as well.
After you were charged, you sought assistance through your general practitioner who referred you to a psychologist, Ms Miriam Latif. She has written a letter to the court dated 17 November 2025. You have engaged in 10 sessions with her between 11 March and 17 November 2025. She describes that you have been consistently engaged and reliable in your attendance. You presented with symptoms of anxiety and depression which intensified following the charge. You showed symptoms of likely autism spectrum disorder, although further assessment is required. She confirms that you also report several significant physical health issues including kidney disease currently under specialist investigation, unmanaged diabetes and a reported stroke in 2024.
Her treatment to date has focused on rapport building, psychosocial and psychosexual history-taking and psychometric assessment. You have demonstrated insight into your behaviour and expressed clear remorse and distress regarding your offending.
Future treatment will focus on identifying and addressing offence specific risk factors and facilitating access to community based professional supports is a priority. She writes that she will continue to work with you to address offence specific needs and strengthen your mental health management. You remain motivated to continue with treatment and have scheduled future appointments. With ongoing engagement and increased external supports, your prognosis is positive and your prospects for rehabilitation are considered to be good. The letter from Ms Latif indicates that your participation in treatment has assisted in your psychometric assessment and developing an insight into your behaviour. This is even though the treatment itself has not been specifically directed towards addressing offence specific risk factors.
While there is no dispute about the assistance in your engagement, the prosecution suggests that it may be of limited assistance in determining factors on sentence, as it is not the treatment that would normally be imposed to deal with these matters, namely a sex offender treatment program. I consider that it would be appropriate for you to participate in such a program in order to address the objectives of your rehabilitation. Should a Recognizance Release Order be imposed, that is a matter that would be dealt with in the corrective services and form part of the Order.
At the request of your solicitor, you engaged in an assessment with clinical psychologist Ms Carla Lechner on 5 November 2025. She has provided a report for court, dated 7 November 2025. She describes that you were polite and pleasant at the interview and responded to all questions asked. You provided her with your personal history and underwent psychometric testing. You acknowledged your role in your offending but found it extremely hard to explain your actions, attributing your offending to 'curiosity'. You denied being sexually aroused by the material or masturbating to it. She writes that you have a limited understanding regarding the wrongfulness of accessing child abuse material. You stated that you knew it was not a good thing but could not explain why it was illegal to possess child abuse material.
She assessed that you do not demonstrate symptoms of sexual deviancy, psychopathy or substance abuse. You do not have a criminal history. You have been immensely chastened and shamed by the process of apprehension, police interview and court attendance and this acts as a further deterrence to future offending. In her view, you are a low risk of reoffending, with the court proceedings acting as a strong deterrent.
She opines that you present with a persistent depressive order, a long-standing depressive illness for which you have not been treated. You would benefit from engaging in education regarding the exploitative nature of child abuse material. In her opinion, your offending has arisen in the context of loneliness, boredom and limited understanding of your actions. You have had difficulty adjusting to a forced retirement due to your health problems.
You impressed as cognitively slow. It is unclear whether this is due to genuine cognitive difficulties, the impact of your stroke, depression or a combination of these factors.
When considering your prospects I note that your circumstances have not been disputed by the prosecution. I consider that the acceptance of your misconduct, the fact that you have engaged with psychological counselling, your lack of criminal history and your early plea of guilty mean that your likelihood of reoffending is minimal. I consider that your prospects are positive.
The possession of child abuse material is not a victimless crime and creates a market supplied by and reliant upon the continued sexual exploitation of children. General deterrence must therefore be given significant weight. The paramount objective is the protection of children.
General deterrence is the primary sentencing consideration for offences involving child abuse material, given the prevalence of the offending, the ease of access to such material on the internet and the difficulties of detection. While specific deterrence is an important sentencing consideration for offences of this type, I consider that it is not as relevant here due to your lack of any prior or subsequent offending. Denunciation, punishment and protection of the community are also important sentencing considerations. I accept that you have good prospects of rehabilitation. You are prepared to engage in ongoing psychological treatment and would benefit from that.
The report of Ms Lechner outlines that an immediate term of imprisonment would have a detrimental impact on your mood. She anticipates a deepening of your depressive illness, especially as you would have ongoing concerns about your mother's condition. Your counsel submits that Verdins[2] limbs 5 and 6 should be taken into account when considering your disposition. The prosecution agrees that Verdins limb 5 is applicable and concedes that your time in custody would be more difficult than for other prisoners. However, the prosecution position is that Verdins limb 6 is not engaged as it requires a serious risk that imprisonment would significantly adversely have an effect on your mental health. In relation to the sixth limb, the prosecution position is that there does not appear to be evidence that really supports it, given the limited information provided by Ms Lechner.
When considering these submissions, I accept that you would be more vulnerable to the effects of imprisonment than a person who does not have your issues and I also accept that a term of imprisonment may have an adverse impact on your mental health. I take these factors into account. They are relevant when deciding whether or not to impose an immediate term of imprisonment.
When considering the appropriate penalty, your counsel has submitted that a Community Corrections Order (CCO) would be appropriate, given that this is at the lowest end of the spectrum for this offence. When considering the seriousness of your offending, there is no dispute that commission of an offence of this nature is serious. You told police you were in possession of the material for around a year and the initial investigation by the AFP commenced in August 2024. This information provides context for your offending and is not an aggravating feature. Your offence was committed on a single date. The total amount of child abuse material in your possession is a very low quantity. The prosecution does not agree that a CCO would be appropriate in this case.
The prosecution has submitted that a term of imprisonment is the appropriate disposition. The overall sentence should be such that a Recognizance Release Order is required to be fixed. It is accepted that the circumstances of this case are less serious than many other matters of this kind. The Crown submits that exceptional circumstances are made out, which allows your immediate release from custody despite the inherent seriousness of the offence. The prosecution position is that exceptional circumstances are made out having regard to the following:
Your early plea of guilty, cooperation and lack of prior convictions.
Your engagement in treatment, despite not being offence specific treatment but rather addressing rapport building, psychosocial and psychosexual history and your anxiety and depression; and
Your assessment as a low risk of further offending.
Your counsel submits that a Recognizance Release Order with immediate release is an alternative realistic sentencing option. Both parties agree exceptional circumstances have been established, to justify a Recognizance Release Order with immediate release. The Defence submits further factors are also relevant to this sentencing disposition, being:
This offence is at the lower end of spectrum of seriousness for this type of offending.
The remorse and acceptance of responsibility that you have demonstrated.
Your significant medical conditions; and
Family hardship to your 91 year old mother who is in a nursing home and requires your support as she has no other family members in Victoria.
In all the circumstances, I accept that your offending is at the lower end of the spectrum for the seriousness of these offences. However, after considering all the material, I am satisfied that the need for general deterrence and the objective gravity of the offending requires a term of imprisonment to be imposed. I have considered the imposition of a CCO. However, in my view, this is not an appropriate disposition. Further, I consider that your health related issues would probably operate to preclude you from doing unpaid community work.
I have the capacity to impose a disposition that would allow for supervision and treatment on a Recognizance Release Order. I have carefully considered the maximum penalty and current sentencing practices. Balancing all the factors that have been relied on, including the low end of the spectrum of seriousness of offending, your early plea of guilty, your remorse and working towards insight into your offending, as well as participating in counselling and your personal circumstances, I agree that exceptional circumstances are made out. I am satisfied that in the unusual circumstances of this case, a sentence of imprisonment that is fully suspended on the condition that you enter into a conditional Recognizance Release Order is appropriate and satisfies all relevant sentencing requirements. I note that it would include conditions that run a like a therapeutic order.
In relation to the charge, you are convicted and sentenced to three months' imprisonment. That sentence is to begin today. I direct that you be released forthwith on a Recognizance Release Order for a period of nine months. I will go through the conditions in a moment. The prosecution has submitted that Charge 1 is a Class 2 offence under the Sex Offenders Registration Act.[3] As you are guilty of this charge you are a registerable offender and subject to reporting obligations for a period of eight years. There is no objection to the making of this Order as it is conceded to be required under the legislation, I make that Order.
The declaration I make under s 6AAA[4] is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of six months' imprisonment, to be released on a Recognizance Release Order after serving three months.
Now, in relation to the Recognizance Release Order with immediate release, I will go through the Order that I am about to make. If there is anything that you want to raise, please do. The court orders the release of you, Mr Nagy, under s 20(1B) of the Crimes Act 1914 (Cth)[5] forthwith upon you giving security by recognizance of $500 to comply with the conditions that you:
Be of good behaviour for a period of nine months.
Be subject to the supervision of a probation officer (being a Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee. I am not going to repeat those three people every time I say the probation officer on the list), that will be in place for a period of nine months.
Obey all reasonable directions of the probation officer.
Not to travel interstate or overseas without the written permission of the probation officer.
Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
Report to the Frankston Community Correction Centre, which is located at 1 Fletcher Road, Frankston within two clear working days of the date of this Order. So that would have to be by next Monday...
Report to and receive visits from a Community Corrections officer or officers.
Notify an officer at the specified Community Corrections centre of any change of address or employment within two clear working days after the change; and
To attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
I confirm that the total effective term of imprisonment that I have imposed is three months' and I have ordered that you be released on a Recognizance Release Order with immediate release and that the Order will last for nine months. I will now ask my associate if she can print out the conditions of the therapeutic Recognizance Release Order and I will ask Ms Pavlica to go through it with you, to make sure that you can go through it and understand it. If there is anything that you want to raise, please do.
MS PAVLICA: Yes Your Honour.
HER HONOUR: There is a portion at the bottom that Mr Nagy will need to sign and date it, and today is 10 December. Ms Hill, I am just going to pass you a copy of it too, just to confirm that it is correct.
MS HILL: Yes Your Honour.
HER HONOUR: Thank you.
Mr Nagy, as a result of the sentence that I've imposed, you've been sentenced to a term of imprisonment of three months, but you're not required to serve that at the moment, but it will, in effect, be hanging over your head now for nine months. So, the Recognizance Release Order is in place for the next nine months.
Now, when you've signed the order, you've promised to be of good behaviour for the next nine months. Do you understand that if you commit any further offences during the next nine months, that would be a breach of this sentence?
OFFENDER: Yep.
HER HONOUR: Okay. You're required to give a security by recognizance of $500 and I've ordered that. You don't actually have to pay that now, but you may have to pay the $500 if you fail to comply with the conditions of the order, which essentially means that if you reoffend over the next nine months, or you fail to comply with the Order you're at risk of being directed to pay that amount of money of $500. So in effect, that's running over the top of your head now for the next nine months as well. You don't have to pay it unless the court makes an order, if you come back to court. So, do you understand that? Okay.
Now, the conditions of the order are outlined on that document that you have and all of those conditions will go to a Corrections officer. So, could I just check, is the Frankston Community Corrections Centre the closest one to where you are residing?
OFFENDER: Pretty much.
HER HONOUR: Okay. So you'll need to sign in there sometime in the next two days. So that means by next Monday by 4:00pm, you need to go there and take your document in and sign in and they'll have appointments with you to assess you. to work out what they need to do and what assistance can help you in dealing with your issues.
Or we'll send that material through, if there's no objection, to Corrections, so that they've got that, because that talks about the treatment that you've had so far, what they think would be of assistance to you in the future, to help you deal with those issues, okay? All right.
Now, can I just confirm then, that if you do commit a further offence during that period, or if you don't comply with the nine month order, if that happens, you will be brought back to court and you will come back before me and you are at risk of potentially going into custody, or paying that $500, if you're in breach of the order. So do you understand that? All right.
So in effect, what it means is, you need to comply with those therapeutic conditions for the next nine months and once the nine months is completed and if you haven't committed further offences, that's the end of the order.
Now, I understand your counsel has outlined that you do have health issues and if those health issues, or other issues, cause any problems for your compliance with the order, you can always come back to court, to seek a variation, or to have the order discharged, depending on what the issues are.
So if you have trouble complying with the order contact your solicitors or barrister immediately, because they will then be able to tell you what to do. So don't just ignore it, because they can come back to court, to seek a variation, if that is required. So, do you understand that? All right.
Is there anything that you want to raise, sir?
OFFENDER: Ah it's all good. Thanks, Judge.
HER HONOUR: All right, thank you and there's also the Sex Offenders Registration, which is a mandatory order for this offence.