Director of Public Prosecutions (Cth) v FRENCH

District Court of NSW|2023-06-01

Judgment

The offender appeared before a Magistrate at the Wagga Wagga Local Court on 7 December 2022 and pleaded guilty to three charges attaching to H8843514, namely that he: 1. Sequence 1: Between 13 May 2022 and 24 May 2022 at Lockhart in the state of New South Wales used a carriage service to transmit material, being child abuse material, contrary to s 474.22(1) of the Criminal Code 1995 (Cth); and 2. Sequence 3: On 9 June 2022 at Lockhart in the State of New South Wales did possess material which was bestiality material on a Lenovo laptop, contrary to s 547E(2) of the Crimes Act, 1900; and 3. Sequence 4: On 9 June 2022 at Lockhart in the State of New South Wales possessed or controlled material, being child abuse material in the form of data held in a computer or contained in a data storage device and he used a carriage service to obtain or access the material contrary to s 474.22A(1) of the Criminal Code 1995 (Cth).
The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 26 April 2023. In respect of the Commonwealth offending the offender is entitled to consideration of his facilitating the course of justice including the utilitarian value of the pleas of guilty. I assess that consideration including the utilitarian value of the pleas at a numerical discount of 25%. In respect of the state offending (Sequence 3) the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
In respect of both offences contrary to the Commonwealth Criminal Code the maximum penalty is 15 years imprisonment and/or a fine of 900 penalty units. The maximum penalty for the state offending (sequence 3) is three years imprisonment and/or a fine of 1000 penalty units. There is no standard non-parole period specified in respect of that offence.

Assessment

I will go initially to sequence 1, i.e. the charge of Use Carriage Service to Transmit Child Abuse Material. The offending occurred over an eleven day period and involved the offender sending very explicit and highly sexualised messages to the assumed on line identity. The facts indicate that the offender engaged in these exchanges on four occasions. There was no attempt to make any arrangement to meet. A real child was not involved. That does not make the matter less serious but rather it would be more serious if a real child was involved. The offender gave evidence at the sentence hearing. I will deal with that evidence in greater detail later but a recurring theme in his evidence is that he was expressing fantasies rather than any actual desire and that he did not at the time of the offending know that engaging in those fantasies was illegal. On balance I accept that evidence. The age of the assumed online identity's child was 9, clearly pre-pubescent. The offender made no effort to hide his identity in that he used his user name and sent a photograph of himself. In all of the circumstances the offending is below mid-range but not at the lower end of the scale.
Sequence 3, Possession of Bestiality Material, relates to the possession of two photographs. Those photographs were not handed up by the prosecution at the sentence hearing. In the circumstances this matter is very much at the lower end of the scale of seriousness.
Now, to sequence 4, i.e. the charge of Possession of Child Abuse material on a Data Storage device. The number of images was limited to 22. A number but not all depict penetrative sexual acts. The children are clearly pre-pubescent. If I was required to estimate the age of the children I would estimate about 10 years of age. There was no additional cruelty to the children involved. There was no suggestion that the accused was going to on-supply any of the material. The number of different children was very limited and I would estimate two or three. There was no suggestion that the offender would profit from any of the material.
The offender gave evidence at the sentence hearing to the effect that he did not actively seek or solicit the child abuse material but rather it was sent to him during exchanges. I also accept this on balance.
In all of the circumstances but in particular noting the age of the children, that actual children are used and the type of activity depicted but also noting the very limited number of images the matter is below mid range but as with sequence 1 not at the lower end of the scale.
To express the issue of the seriousness in another fashion, while the Commonwealth offending is serious these matters are somewhat less serious examples of that type of offending.
In setting out the facts and making an assessment of the seriousness of the matters for which the offender appears for sentence the requirements of s 16A(2)(a) of the Crimes Act 1914, i.e. the nature and circumstances of the offending have been satisfied.

Sections 16A(1) and 16A(2)(k) Crimes Act 1914 (Cth)

Relevant to the penalty to be imposed in respect of sequences 1 and 4 section 16A(1) of the Crimes Act 1914 (Cth) provides: "In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence."
Section 16A(2)(k) provides that in passing sentence the court must (and therefore is in mandatory terms) take into account: "the need to ensure that the person is adequately punished for the offence"
So far as s 16A(1) of the Act is concerned, the Court of Criminal Appeal (Kirby P, Campbell J (as their Honours then were) and Newman J) in R v El Karhani (1990) 51 A Crim R 123 said at p 130: "…On the contrary, s 16A(1) imposes on the court the duty, which is its primary obligation to ensure that the sentence or order is of a severity appropriate in all the circumstances of the offence. It is by this duty that the general principles of sentencing law are imported into the function of a court imposing a sentence on a federal offender convicted of the offence. What will be appropriate will depend in part upon a consideration of fundamental notions, such as that of general deterrence".

General and specific Deterrence

General deterrence is clearly a significant aspect to be considered in any matter involving child abuse material. Section 16A(2)(ja) requires a court when sentencing for a Commonwealth offence to consider the issue of general deterrence. Johnson J observed in De Leeuw [2015] NSWCCA 183 at [72(c)]: "General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]."
Similar observations were made by Johnson J (Leeming JA, Beech-Jones J agreeing) in R v Porte [2015] NSWCCA 174 at [70]. In EG v R [2015] NSWCCA 21 Hoeben CJ at CL (Harrison and Hulme JJ agreeing) said at [42]: "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment…"
McClellan CJ at CL (Latham & Price JJ agreeing) in R v Asplund [2010] NSWCCA 316 at [50] said: "The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity."
Price J in DPP (Cth) v Beattie [2017] NSWCCA 301 said at [120]: "The importance of general deterrence and denunciation has also been emphasised in child pornography offences: Minehan at [94]; Porte at [70]; R v Booth [2009] NSWCCA 89 ('Booth') at [41]."
Harrison J (Hoeben CJ at CL, Walton J agreeing) in Burton v R [2020] NSWCCA 127 at [26] said: "Section 474.19(1) has been considered recently by a number of intermediate appellate courts. The following propositions emerge: 1. The vice attacked by an offence under subsection 474.19 of the Criminal Code is the use of the internet to access the market for child pornography and the consequent boost to that market of which internet access is such an important element: R v Gordon (2011) 1 Qd R 429 at [37] cited with approval in R v Porte [2015] NSWCCA 174 at [55]-[56]. 2. The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155 at [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]. 3. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime; children are sexually abused in order to supply the market: DPP (Cth) v D'Alessandro [2010] VSCA 60 at [23]. 4. The harm done to the children exploited has been described as profound, exacerbated by the continued circulation of images on the internet indefinitely: R v Porte at [69]-[70]."
Section 16A(2)(j) of the Crimes Act 1914 requires a court to consider the issue of specific deterrence. Given the fantasy in which the offender engaged, the separate possession of the child abuse material and the fact of the engaging in the online chat, I am of the opinion that specific deterrence has some work to do in this matter. However, the age of the offender, his lack of record, his genuine contrition and remorse and considering generally the whole of his evidence the issue of specific deterrence is not as significant as in some other matters.

Subjective case - including character, antecedents, age, means and physical or mental condition of the offender - s 16A(2)(m) Crimes Act 1914

Character and antecedents can be dealt with together. The offender was born on 3 July 1957 and accordingly is 65 years of age and will shortly be turning 66. Until this offending he had led a blameless life and is not otherwise known to the authorities.
However, given the nature of the offending the offender's prior good character carries limited weight. If authority for that proposition is needed I note R v De Leeuw [2015] NSWCCA 183 at [72(d)] per Johnson J and R v Gajjar (2008) 192 A Crim R 76 at [27]-[29]. The Court (Maxwell P, Nettle JA (as his Honour then was), Weinberg JA) said in Gajjar at [28]: "That is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors".
The Crown Prosecutor in his written submissions refers the court to the decision of DPP v Garside (2016) 50 VR 800 where the Victorian Court of Appeal (Redlich, Priest and Beach JJA) said at [63]: "The respondent could call in aid a number of mitigating factors, including his lack of prior offending, age, familial support and remorse and prospects for rehabilitation. These factors were relied on by the respondent before the sentencing judge to justify 'mercy.' But the authorities to which we have referred demonstrate that such factors must be given less weight than they ordinarily would in sentencing for possessing and accessing child pornography as such offenders generally have similar backgrounds and are of prior good character."
The authorities are clear that good character will not achieve the same weight when it comes to offending relating to child abuse material. However, be that as it may the offender must receive some meaningful consideration for his lack of record in particular noting his age.
I will now deal with the evidence of the offender. He is 65 years of age and lives at Lockhart which is a small community some 65 km to the south-west of Wagga Wagga. He was born in Wagga Wagga in July 1957 and educated at the local Catholic high school. After leaving school he commenced an electrical apprenticeship which was completed in 1976. He worked as an electrician for various construction companies in and around New South Wales. In 1980 while working in Albury he met his wife, Julie. They are still married. His wife had three children from a previous relationship but it seems there are no children of the relationship between the offender and his wife. They were married in 1981 in Wagga Wagga.
The offender also has worked as an electrician in an aluminium smelter in Gladstone in Queensland and has also worked for the Gladstone Port authority. The offender held supervisory roles in the places where he worked. The offender has also completed courses in maintenance engineering and business management. For a time the offender and his family lived in Perth and whilst in Perth the offender worked for the Fremantle Port Authority.
The offender and his family remained in Perth until 2014 during which time they travelled back to Lockhart to celebrate the 80th birthday of his mother. The offender had not seen his mother for some time and was surprised at the extent to which she had aged and become frail. He sold up in Perth and moved to Lockhart. He had planned an early retirement and was 57 years of age upon retiring.
Since moving to Lockhart the offender has become involved with the local community. This includes involvement as a director of the local Ex-Servicemen's Club and doing work for the club as an electrician, including upgrading the switchboard and computerised sign-in system and the poker machines. He is also involved in fundraising for charity with the local angler's club and assists local residents with electrical work.
The offender's mother is still living in Lockhart. The offender's sister lives with their mother and she is the mother's main carer. The offender calls in on his mother 2 to 3 times a week and attends to yard maintenance and also assists her in going to see medical specialists in places such as Young and Albury.
His evidence continued that he has not previously been in trouble with police and his first experience with police was with them knocking on the door in June of last year. He was shocked and in disbelief as to what was going on. He was taken to the police station at Wagga Wagga and charged with the matter that is presently before the court and placed on conditional bail.
The offender maintained that he had complied with the conditional bail. Indeed, there was unchallenged evidence to the effect that he has made enquiries with police and his solicitor from time to time to ensure that he remains compliant with the bail. I accept without hesitation that the offender has strictly complied with the conditional bail to which he is subject.
So far as the offending is concerned the offender said he commenced using chat sites about a year or so before he was arrested; he used the username "Aussie Guy". All of the communications were non-verbal, that is to say everything was typed. He admits there were quite a number of red flags that he ignored and he agreed that he had discussed sexual activity including children in the course of the communications. He maintained what was being discussed was always fantasy and he had no intention of acting on those fantasies.
A little later in the evidence in chief, counsel for the offender returned to the issue of the chat sites. The offender again emphasised that what he was typing was pure fantasy and that he tended to go along with suggestions made by people with whom he was communicating. He did not think that at the time he was doing this that engaging in the fantasies was itself illegal. He said that he was under a false belief that if it went no further than fantasy it was not illegal. He accepts now that this is not the case.
On this issue I had the opportunity to observe the offender in the witness box for a considerable period of time, both during the evidence in chief and the cross examination. Whilst the offender appeared to be embarrassed and while it was difficult for him to admit a number of the things that he admitted to, nevertheless I am satisfied that he was a truthful witness. A good portion of the demeanour of the offender was in no doubt attributable to the circumstances in which he found himself.
So far as the child abuse material to which sequence 4 relates is concerned, the offender maintained that the images were unsolicited. I understood the offender to say that he had not seen some of the material. The child abuse material was on the laptop computer which was rarely used.
When the police attended the offender's residence, they seized a quantity of electronic equipment including two desktop computers, the laptop, a mobile phone, three hard drives and a number of USB sticks. All of those have been returned to the offender except the mobile phone and the laptop.
The offender went on to say that Mr Randall, a psychologist, suggested he attend counselling sessions. He said that he and his wife had been attending those sessions. This is borne out by exhibits 10 and 11, which are brief reports from Ms Maureen Said, Counsellor, and Dr Karl Weiner, Clinical and Forensic Psychologist, respectively. The former indicates that the offender and his wife have attended counselling sessions and the letter confirms that the offender has attended treatment sessions. Clearly the treatment sessions with Dr Weiner are ongoing.
Towards the end of his evidence in chief the offender indicated that he did not have any sexual interest in children. I reject this aspect of the offender's evidence. In any event, my overall impression was that by the conclusion of the cross examination including a couple of questions by me, the offender accepted his initial position was not the reality. The second report of Mr Randall, with which I will deal shortly also is contrary to the offender's initially stated position on this issue.
The offender was cross-examined by the Crown Prosecutor. The offender maintained that he initially became involved with the chat sites out of curiosity. He conceded that he had received images but maintained that most of them were deleted. He maintained he did not know the images to which sequence 4 relate were still on the laptop computer. Those images were received over a period of about 15 months. The cross examination included the offender being taken to the contents of some of the exchanges, including material that I had earlier excluded. I am unable to reject the evidence of the offender as to the state of his knowledge of the images.
Exhibits 1 and 2 are reports prepared by Mr Graeme Randall, Registered Psychologist. It would seem that the offender enjoyed a positive upbringing. He had a good relationship with his father although his father did not openly show emotion. His father was fully employed until his retirement but died at the age of 65 in a sudden and tragic accident. The offender also enjoyed a positive relationship with his mother. There was no physical or emotional or sexual abuse throughout his childhood and adolescence. There was no exposure to illicit substances gambling or problematic use of alcohol.
The offender's educational and vocational history is set out at paragraphs 17 to 20 inclusive of the report which is consistent with what the offender gave in the early part of his evidence in chief.
Mr Randall sets out (paragraph 21 and continuing) that the offender described himself as quiet, shy and someone who suppresses emotions. He met his wife who is 13 years older than him when he was 23 and they have been together since. It would seem up until the offender was charged with the offending for which he appears for sentence there were no difficulties within the marriage.
The offender's first sexual experience was when he was 16 and he had infrequent periodic sexual experiences with women who he met socially. The offender occasionally viewed pornographic magazines in his teenage years but denied specifically searching any particular category of pornography. The offender denied having any fetishes, deviances or preoccupation with sex throughout his life. The offender denied engaging in sexual fantasies prior to the offending period although it seems the author of the report doubts this.
According to the offender, for most of his marriage sex was infrequent and below-average. His wife's libido decreased and sex was 'almost non-existent'. The offender explained to Mr Randall that as a result of being unable to relieve his sexual frustration he began exploring a sexual chat site. He explained that whilst on the chat site he engaged in conversations which he described as 'pure fantasy… talk about things I would never think of doing in real life'. He did not believe that, as it was fantasy, it was wrong. Mr Randall goes on to say (paragraph 26) that since the arrest the offender has realised that fantasy discussions such as those in which he engaged are not acceptable and he expressed a desire to no longer engage in such discussions.
The offender denied seeking images of underage persons or images of the bestiality nature but acknowledged that images were often "pushed" through the chat site without his knowledge.
The report sets out the offender continued accessing the chat site for approximately a year and ceased using the chat site after his arrest. His libido significantly decreased after his arrest and he has no desire to engage in sexual behaviour. He repeatedly said that he was "an idiot for accessing the chat site".
At paragraph 29 of the report the following appears: "Based on Mr French's description of his sexual behaviour, and his limited emotional connection with friends, he appears to have used sexual discussions with anonymous women as a substitute for emotional connection and to relieve his sexual frustration. He does not appear to have a deep emotional connection with others, noting that he prefers to suppress his emotions. However, he does not present as having an appreciation of his lack of deep, emotional connection, or the impact his lack of emotional connection has had on his behaviour. In the context of these discussions he reportedly engaged in fantasy discussions which he justified as being not real which led to the offending behaviour".
The report indicates there are no issues so far as use or abuse of alcohol or illicit substances is concerned. The offender would appear to be in good physical health. He is currently prescribed medication for blood pressure and cholesterol. Likewise, there does not appear to be any issue so far as the offender's mental health is concerned. His mood is described as "generally happy" although unsurprisingly it would seem the offender has experienced periods of negative rumination regarding his offending behaviour and the consequences of his offending behaviour. Mr Randall sets out (paragraph 34) that the offender's lack of insight into his emotions makes meaningful formulation regarding his psychological functioning difficult. Mr Randall recommends continued therapy.
Mr Randall deals in some detail with the issue of the risk of reoffending - in particular the various tests used to assist in the determination in that regard. I understand the report to say (see paragraph 44) that the offender is in the low range of reoffending. At paragraph 50 Mr Randall opines that the offender poses a low risk of future sexual offending. Noting the offender's age, his complete lack of any criminal history, the fact that he is now receiving therapy and treatment I am prepared to find on balance that the offender is unlikely to reoffend.
Mr Randall opines the offender does not have a mental condition either at the present or at the time of the offending. He goes on to say that the offender reported that since his arrest he has come to understand that fantasy sexual discussions are inappropriate.
On the issue of remorse expressed or demonstrated by the offender Mr Randall sets out (second point, page 17) that the offender reported that he has gained an understanding of the harm caused through his offending behaviour and is willing to accept the consequences for his behaviour. Given the evidence of the offender taken with his demeanour at the sentence hearing while in the witness box I am more than satisfied on balance that the offender is remorseful and contrite and is entitled to a finding on balance of those issues in his favour.
Mr Randall recommends ongoing treatment and therapy including therapy focused on developing effective coping mechanisms to manage his emotions, building supportive relationships in managing his sexual frustrations. I note that at the conclusion of the report Mr Randall recommends Dr Weiner.
The second report of Mr Randall is dated 20 April 2023. This report is specifically directed towards the issue of the offender's sexual interest in children. At paragraphs 4 and five the following appears: "As noted, my original report reflected Mr French's assertion that he was not primarily sexually attracted to children, and that his messages were of a fantasy nature. At the time, I was not provided with the detailed messages that Mr French sent. Having now been provided with the messages sent by Mr French, I acknowledge a sexual gratification by Mr French to both images and the sexual messages regarding children. Gaining sexual gratification from sexual images of children and sexualised messages does not necessarily mean Mr French has a primary sexual interest in children per se. It is possible for an individual to engage in behaviour in a fantasy context for a variety of reasons, be aroused, they have little to no interest in that behaviour in real life. … There is an arousal and sexual gratification, though not a primary sexual interest. There may be many situations in which an individual may engage in fantasy about a particular activity such as revenge, dating a particular person, knowing that they would never engage in that behaviour in real life and would likely actively reject the activity if the fantasy were presented in real life. It is in this context Mr French reported engaging in the sexual discussions and images of children."
Clearly contrary to what he initially maintained, the offender has or at least had a sexual interest in children. However, these proceedings and the treatment he is receiving has made him aware of that. Further, the second report of Mr Randall enables the court to more easily accept the assertions of the offender that the contents of the exchanges were fantasy and further that he had no intention of acting on that fantasy. There was never a suggestion that the offender ever attempted to meet the person or persons with whom he was engaging in the chat site exchanges. This goes to the objective seriousness of the matter but also the unlikelihood of reoffending and the prospects of rehabilitation.

Prospects of rehabilitation

I understood the Crown to submit in effect that the court would be circumspect about finding that the offender has good prospects of rehabilitation. However, the offender has of his own volition engaged in counselling which is ongoing with Dr Weiner and has engaged in counselling together with his wife with Ms Said. The offender has nothing on his criminal history and as at the date of the sentence hearing had the support of his wife, at least to the extent that she was prepared to go to marriage counselling with the offender. She was in court supporting the offender at the sentence hearing. In all of these circumstances I am satisfied on balance that the offender has good prospects of rehabilitation.
This deals with the requirement of s 16A(2)(n) of the Crimes Act 1914. In respect of s 16A(2AAA) whether there is a sentence of immediate imprisonment or whether the court ultimately suspends any term of imprisonment clearly any condition of release should impose a condition that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling including continuing with the treatment by Dr Weiner or some other suitably qualified health professional.

Comparative cases

With the thoroughness and attention to detail this court has come to expect from the Commonwealth, the Crown has made available a table of what I said to be comparable cases and supplied hard copies of those decisions. The decisions provided are:

Burton v R [2020] NSWCCA 127;
Cluett v R [2019] WASCA 111;
R v Skyes [2009] QCA 267; and
Wilson v R (Cth) [2020] NSWCCA 211.

Given the developments in the law and the upward movement in sentences for child sexual assault and child sexual abuse material I would be somewhat circumspect about relying on a decision from 2009. However, the other more recent decisions are of some utility.
Burton was an appeal by that offender in respect of a total effective sentence of 21 months with a non parole period of 12 months in respect of offences of Use Carriage Service to Transmit Child Pornography Material contrary to s 474.19(1) of the Criminal Code 1995 (Cth) (Count 1) and Possess Child Abuse Material contrary to s 91H(2) of the Crimes Act, 1900 (NSW) (count 2). There was a s 16BA schedule taken into account containing an offence of Use Carriage Service to Transmit Indecent Material to Persons Under 16 years of Age. There was a late plea given and a discount of 10% was allowed.
Burton was between 24 and 26 years of age at the time of the offences, had no prior criminal history and was employed by the Australian Defence Force. In respect of count 1 the offence occurred between January 2013 and 12 February 2015 (i.e. 25 months) and during those communications transmitted child pornography which was in written form (see [11] of the judgment of Harrison J (Hoeben CJ at CL, Walton J agreeing). In respect of the schedule offence (see [12] of the judgment) the offender engaged in online communications between 1 January 2013 and 11 May 2015 with persons he believed to be under the age of 16 years. When the offender's premises were searched a computer was seized, on which police located four (4) child pornography images.
At [17] Harrison J sets out that in respect of the Schedule offence the time spent transmitting child pornography material exceed 12 hours over an 18 day period. The substance of the conversations was highly sexualised.
The offending in Burton so far as count 1 is concerned is more serious than the offending presently under consideration but the offending so far as the Possess charge (i.e. count 2) was less serious, noting the lesser number of images. Burton was a much younger offender than in the present matter. Harrison J notes at [41] that the offender had no criminal antecedents, demonstrated a capacity to be a contributing member of society through his time in the ADF and that the offending conduct was more a function of his personality structure than sexual deviancy and he had some prospects of rehabilitation.
The next decision is Cluett v R. A total effective sentence of 9 months was imposed with the offender to be released on a recognizance release order after 6 months and 1 day. On appeal the offender was released forthwith on entering a recognizance. The offender was charged with Possess Child Exploitation Material contrary to the Western Australian Criminal Code, and two counts of Use Carriage Service to Access Child Pornography Material contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth).
One of the charges contrary to the Criminal Code related to a video that was on a mobile phone at the time of his arrest. The video was from a foreign website showing a child of about 7 years of age naked from the waist down leaving a bed. Police seized a number of devices and a diary. The diary contained drawings and naked figures of both sexes and of varying ages from young to adulthood. Twenty-eight images of child exploitation material were found. These involved children from 5 to 14 engaged in various penetrative sexual activity. Images of Nazi Death Camps were also found. The remaining charge related to the offender accessing a Chinese Website on 20 occasions between 16 September 2016 and 2 August 2017. In all of the circumstances I access the offending in Cluett as being more serious as the matter presently under consideration.
The offender was 61 at the time of offending and 63 at the time of sentence. He had a minor criminal history. Significantly the offender was diagnosed with autism spectrum disorder. At [59] of the judgment the Court (Buss P, Mazza & Mitchell JJA) observed: "In reaching that conclusion (substituting an intensive supervision order for what sentence was imposed at first instance) the court in Naysmith ([2013] WASCA 32) observed: 'However, even if it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence.'"
The court in Cluett concluded (at [65]) that the judge at first instance had correctly considered the seriousness of the offending to be such that imprisonment was the only sentencing option, but it was not open to the judge in the circumstances of the case to conclude that it was inappropriate to suspend the sentences. The issue of the diagnosis of autism is a very significant difference between that case and the matter presently under consideration.
R v Sykes was an appeal by that offender in respect of a total sentence of 15 months and release after a period of 6 months on recognizance. There was one count of Commonwealth offending of Use Carriage Service to Access Child Pornography Material and one count of state offending of Possess Child Exploitation Material.
The facts in that matter are set out at [4]-[8] of the judgment of Mullins J (Holmes JA, Philipides J agreeing). Thirty one pornographic images were downloaded from a Croatian web site that had been hacked. Further, 89 images were located in a temporary folder in one location and 20 images located on a hard drive at another location. The offender was 28, his marriage failed and he lost employment and had to move as a result of the offences being publicised. The application for leave to appeal was dismissed. The offending is different and the number of images greater than the matter presently under consideration. The offender is also considerably younger than in the matter presently under consideration.
That leaves the matter of Wilson to be considered. The matter involved a total of three counts, namely Use Carriage Service to Transmit Child Pornographic Material contrary to s 474.19(1) of the Criminal Code, Use Carriage Service to Procure Person Under 16 years for Sexual Activity contrary to s 474.26(1) of the Criminal Code and Possess Child Abuse Material contrary to s 91H(2) of the Crimes Act, 1900 (NSW). A total effective sentence of 4 years with a non-parole period of 2 years 4 months was imposed.
Hoeben CJ at CL set out the facts in some detail at [6] and continuing. The offences were committed over a 12 month period. The assumed online identity had two daughters, one 10 and the other 13. The offender advertised for "fetish encounters". Contact details were exchanged. The offender suggested that they meet, get naked and possibly go to a nude beach. He sent a link to a clip called "young tarts and old farts". He was asked whether he was for real or just fantasy. He replied he wanted it to be real and "have a regular thing". The offender sent a clip of him masturbating and ejaculating and asked whether the daughter had seen the clip.
Sequence 2 involved similar conduct but no clip was sent. The offender arranged a meeting at a McDonald's store and was in fact arrested at that store. Three images of naked pubescent girls were found on a computer.
The offender was 64 and was in custody for the first time. He had been married for a time. He had been employed, including as a police officer and an investigator for ICAC. A psychologist who provided a report for the sentencing judge opined that the offender met the DSM criteria for a diagnosis of paedophilic disorder. Following his arrest the offender suffered a cardiac episode which required hospitalisation. Blockages in the arteries not amenable to stenting were found. The sentencing judge found that custody would be onerous. The appeal by the offender was dismissed. The offending in that matter was far more serious than the matter presently under consideration given the stated desires of the offender were real and not fantasy. Moreover, there was an arrangement to meet.

Competing submissions

In respect Sequence 3, the charge of Possess Bestiality Material, given that there were two images I indicated at the sentence hearing that I was proposing to deal with that matter by releasing the offender on a Community Correction Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act, 1999. I have no note or memory of either counsel taking issue with that indication. Accordingly, that is the manner in which I will deal with that matter.
However, in respect of the remaining two Sequences, i.e. the Commonwealth offending, the Crown submits that only a sentence of immediate imprisonment is appropriate given the offending and the need for general deterrence. Mr Heazelwood on behalf of the offender conceded that a sentence of imprisonment is appropriate but there are exceptional circumstances and the court is able to invoke s 20(1)(b) of the Crimes Act 1914 and direct the immediate release of the offender on him entering a recognizance. Essentially, the ultimate disposition of this matter will come to whether I am satisfied on balance that there are exceptional circumstances.
The term "Exceptional Circumstances" is within s 20(1)(b)(ii) of the Crimes Act 1914 (Cth). Section 20(1) relevantly provides: (1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs - by specified instalments as provided in the order; (iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; (iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period. (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): (i) if none of the offences is a Commonwealth child sex offence - either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or (ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances - after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or (iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances - immediately. (1A) Subject to subsection (1B), if the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period: (a) be subject to the supervision of a probation officer appointed in accordance with the order; and (b) obey all reasonable directions of the probation officer; the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.
The expression "exceptional circumstances" is not defined within the legislation. The Commonwealth helpfully has referred me to some decisions of appellate courts that assists.
In the Crown appeal of R v Tootell; ex parte The Attorney General [2012] QCA 273 at [18]-[20] the Court (Holmes & Fraser JJA, Henry J) said: "[18] The Penalties and Sentences Act does not attempt to define or confine what amounts to "exceptional circumstances". This statement of what the adjective means, taken from R v Kelly (Edward), (which has been applied in decisions of this Court dealing with the expression as it appears in the Dangerous Prisoners (Sexual Offenders) Act 2003) is helpful: 'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.' [19] The expression must, of course, be read in its statutory context. The intent of s 9(5)(b) is to make it the usual case that those who commit sexual offences against children will serve actual imprisonment. That intent should not be subverted by, for example, an over-readiness to regard as exceptional any circumstance peculiar to a prisoner's case. But the statements in R v Quick on which the appellant relies should not be taken as indicating that a combination of circumstances which would not individually be unusual can never be judged extraordinary. To the contrary, de Jersey CJ emphasised in that case the need for "careful assessment" of whether "the aggregation of such features warrants the conclusion the offender should be spared imprisonment...". [20] In Griffiths v The Queen, the High Court's view was that it was not essential that a defendant be able to point to one or more individually extraordinary factors in order to demonstrate that the circumstances of his case as a whole were exceptional. The issue in Griffiths was when a number of factors might make a case exceptional for the purposes of s 21(3) of the Probation and Parole Act 1983 (NSW) so as to permit the imposition of a shorter parole period than that otherwise provided for. Brennan and Dawson JJ listed the factors relevant there - the offender's youth, lack of serious criminal history, the effect of his drug addiction, his co-operation with police and better than usual prospects of rehabilitation - before going on to observe "Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances." The Court of Criminal Appeal had erred in failing to evaluate those factors in combination. [21] Deane J, in his judgment in Griffiths, did not consider that the court below had made the error of not looking at the offender's overall situation. For other reasons, however, it was necessary that it reconsider the matter, and in that exercise it should have regard to the factors identified by Brennan and Dawson JJ. Gaudron and McHugh JJ took the view that while the better than average prospect of rehabilitation was not of itself sufficient to justify the exercise of the power to confer a shorter non-parole period (because it was the totality of the circumstances which was to be considered) that fact in combination with other circumstances which were relatively neutral or of little weight might suffice. They considered that the Court of Criminal Appeal had erred in a different respect, but agreed that in reconsidering the matter it should take account of the circumstances to which Brennan and Dawson JJ referred."
In the matter presently under consideration I understood the Crown to concede at the sentence hearing that a combination of mitigating factors could amount to exceptional circumstances. However, the Crown made it quite plain that their position was that exceptional circumstances are not made out in the matter under consideration.
Mr Heazelwood has helpfully provided decisions of other District Court judges on the issue of exceptional circumstances. In R (Cth) v Nafarette [2022] NSWDC 225 at [89] Buscombe DCJ said: "In my opinion, the word, 'exceptional', in the statutory context means out of the ordinary course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances."
I also note that at [90] his Honour indicated that he received assistance from the Queensland decision of R v Tootell from which I have extracted above at paragraph 79. At [91]-[92] his Honour sets out the matters which, in the matter before him, amounted in combination to exceptional circumstances. I observe that those matters appear to be slightly more compelling than in the matter presently under consideration.
The other District Court decision to which I have been referred is R v Finch [2022] NSWDC 578, a decision by his Honour Judge Mahoney SC where at [179] his Honour adopted the construction of the meaning of exceptional circumstances formulated by Judge Buscombe in R (Cth) v Nafarette. I note that many of the factors relied on by Mahoney SC DCJ are very similar to those relied upon in the matter presently under consideration.
Noting I do not have a transcript of the submissions, I understand that Mr Heazelwood on behalf of the offender submits that the following in combination, but not in any particular order, amount to exceptional circumstances: 1. The relatively low objective seriousness of the matters; 2. The age of the offender; 3. The lack of any criminal antecedents; 4. The contrition and remorse shown by the offender; 5. The low risk of re-offending; 6. The good prospects of rehabilitation 7. The fact that the offending related to a fantasy and that the offender had no intention on acting on that fantasy; 8. The psychological presentation at the time of the initial report of Mr Randall, in particular the difficulty the offender had in expressing emotion; 9. The offender has proactively sought treatment before the sentence proceedings, which treatment would not be available in custody; 10. The offender has now gained insight into his offending 11. The voluntary work the offender does for the community of Lockhart; and 12. The embarrassment of the small community in which he lives becoming aware of his offending conduct; 13. The fact the offending conduct ceased; 14. The hardship so far as the offender's mother is concerned; and 15. The absence of anti-social conduct by the offender and the absence of any suggestion of anti-social conduct by the offender.
I am satisfied on balance that those matters are established in favour of the offender. While those matters are established, it becomes a question of weight. So far as s 16A(2)(p) of the Crimes Act 1914 is concerned the evidence of the offender is that he attends to his mother's yard and that he assists in taking her to medical appointments. After the decision of the Court of Criminal Appeal in Totaan v R (Cth) [2022] NSWCCA 75 this is a matter that must be factored into the mix.
The Crown maintains that none of those matters either individually or in combination amount to exceptional circumstances. The Crown also submits that the court would have concerns about the offender having sexual interest in children. The Crown appropriately emphasised the need for general deterrence.
The Crown took issue with the submission made by counsel for the offender that there was a causal connection between the psychological condition and the offending. I agree with the position of the Crown on this matter. Mr Randall clearly stated (p 16, second dot point to paragraph 54) that he did not believe that the offender meets the criteria for a mental health diagnosis. He further stated (next dot point) that he did not believe that there was a diagnosable condition. Further, and moreover, at pp 16-17 Mr Randall says, "As it is my opinion that Mr French does not have a mental condition either now or at the time of the offending there is no link between his offending behaviour and a mental condition".
The Crown also submitted, correctly in my view, that the embarrassment suffered by the offender because of the population of the small town in which he lives is a consequence of the offending. The Crown also reminded the court that good character carries less weight in matters such as the present matter.

General Remarks

Given the offending and the need for general deterrence there must be a sentence of imprisonment in respect of the Commonwealth offending. In all of the circumstances I am not of the opinion that the offending to which sequence 3 relates (Possess Bestiality Material) crosses the threshold in s 5(1) of the Crimes (Sentencing Procedure) Act.
On the issue of the state offending, I must also give proper regard to s 3A of the Crimes (Sentencing Procedure) Act, which sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
The COVID-19 pandemic continues to wreak havoc with the broader community. It has particular significance for those in custody. Lockdowns are more frequent and of longer duration, face to face visits are restricted, there are periods of isolation on transfer from one centre to another and outside agencies have difficulty in accessing inmates in respect of courses and the like. This goes to make custody more onerous and in respect of state offending goes to a finding of special circumstances and in respect of Commonwealth offending goes to the ratio between the total sentence and the period in actual custody.
So far as the Commonwealth offending is concerned, I will approach this matter on the same basis as I would a sentencing exercise relating to state offending, i.e. a determination as to whether there should be a sentence of imprisonment, then a determination of the length of the sentence and finally a determination as to the means by which that sentence is to be served, noting that I have already dealt with the issue of exceptional circumstances.
In DPP (Cth) v Beattie [2017] NSWCCA 301, Price J said at [145]-[146]: "The Commonwealth Director submitted that based on the decision in Putland, aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director's submission. The Commonwealth Director's submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales."
The matter presently under consideration is being dealt with on indictment and accordingly I propose to deal with the matter by way of aggregate sentence. It will be therefore necessary for me to set out what sentences would have been imposed had separate sentences been imposed.
In respect of sequences 1 and 4 if separate sentences were imposed the total sentence for each matter would be 18 months imprisonment, indicating in both matters a starting point of 2 years before the deduction of the discount for facilitating the course of justice, including the utilitarian value of the pleas of guilty. If separate sentences were imposed there would need to be some degree of partial accumulation given the different nature of the offending.
In all of the circumstances I have determined that the appropriate sentence is one of 2 years imprisonment.
Now, the issue as to the means by which that sentence is to be served. In respect of the issue of whether the offender is released immediately on a recognizance I note and have regard to the decision of Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J, particularly at [74]-[84] and the decision of R v Zamagias [2002] NSWCCA 17 at [32] per Howie J.
Further, on the issue as to whether the offender should be released immediately it is a matter about which I have given much thought and about which I have prevaricated on the ultimate outcome. I accept that reasonable minds may differ as to whether what Mr Heazelwood submits in combination amounts to exceptional circumstances. Ultimately, I have concluded that they do, but only by the barest of margins. This is very much a "borderline" case so far as whether exceptional circumstances are established. In this matter I am also of the opinion that there should be monetary penalty imposed. This is directed at the issue of deterrence and specific deterrence in particular.

Orders

In respect of the matters to which the offender has pleaded guilty he is convicted.
In respect of sequence 3, i.e. the offence of Possess Bestiality Material the offender is released on a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act for a period of 2 years 6 months. That order is conditioned that the offender: 1. Commit no further offences; 2. Appear for sentence in respect of any breach within the said period; and 3. For the period of the Order be supervised by the Department of Community Corrections and obey all reasonable directions as to ongoing treatment and counselling, such treatment and counselling to include, but not limited to ongoing treatment sessions with Dr Wiener, or some other equally qualified health professional.
In respect of sequences 1 and 4 the offender is sentenced to an aggregate sentence of 2 years imprisonment. The offender is to be released forthwith upon him entering a recognizance himself in the sum of $1000 to be of good behaviour for a period of 4 years. That recognizance is to be conditioned that the offender will: 1. Be of good behaviour; 2. Appear for sentence in respect of any breach with the period of the recognizance; 3. Notify the Registrar of this court of any change of address; 4. For a period of 2 years the offender will be supervised by the Department of Community Corrections and obey all reasonable directions of officers of that Department, and in particular to obey all reasonable directions as to ongoing treatment and counselling by Dr Wiener or some other suitably qualified health professional; 5. Not travel interstate or overseas without the written permission of the officer of the Department of Community Corrections who is supervising him at the relevant time.
In addition, in respect of each of sequences 1 and 4 the offender is to pay a fine or monetary penalty of $2,500.
A copy of the reports of Mr Randall are to be forwarded to Community Corrections.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2023

Probation and Parole Act 1983(NSW)

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Judgment (12 paragraphs)

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