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[2025] NSWCCA 156
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-10-01
Price AJA at [1]Ierace J at [2]Rigg J at [3]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Maloney v R [2025] NSWCCA 156
Hearing dates: 6 August 2025
Date of orders: 1 October 2025
Decision date: 01 October 2025
Before: Price AJA at [1]
Ierace J at [2]
Rigg J at [3]
Decision: (1) Grant leave to appeal;
(2) Dismiss the appeal.
Catchwords: CRIME – appeals – appeal against sentence – Commonwealth offence of transmitting child abuse material using a carriage service – State offence of possession of child abuse material – whether the sentencing judge erred in the assessment of objective seriousness of offending – whether the applicant’s motivation for the offending increased the objective seriousness – whether the sentencing judge erred by not considering the causative role of the applicant’s mental health in his motivation to offend – whether the sentence imposed is manifestly excessive – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499
Lazarus v R [2023] NSWCCA 214; 380 FLR 228
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Noonan v R [2020] NSWCCA 346
R v Hutchinson [2018] NSWCCA 152
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Kieren Maloney (Applicant)
Rex (Respondent)
Representation: Counsel:
S Fraser (Applicant)
A Chhabra / M McCall (Respondent)
Solicitors:
Morrisons (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2022/00375425
PRICE AJA: I agree with Rigg J.
IERACE J: I agree with the orders proposed by Rigg J and with her Honour's reasons.
RIGG J: The applicant, Mr Kieren Maloney, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence of imprisonment imposed on him by his Honour Baker SC DCJ in the District Court of New South Wales on 30 August 2024, following guilty pleas entered in the Local Court.
The applicant pleaded guilty to one count of transmitting child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code (Cth). This offence has a maximum penalty of 15 years imprisonment. He also pleaded guilty to a related charge on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), that he possessed child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). Although the maximum penalty for that offence is 10 years imprisonment, because it was not being dealt with on indictment the Local Court maximum penalty of 2 years imprisonment was applicable to this offence.
His Honour imposed a fixed term of 12 months imprisonment for the State offence, commencing on 13 May 2023 and expiring on 12 May 2024. For the Commonwealth offence his Honour imposed a sentence of 3 years and 9 months imprisonment commencing on 13 August 2023 and expiring on 12 May 2027, with a non-parole period of 2 years and 4 months expiring on 12 December 2025.
There are two grounds of appeal; namely:
“Ground 1:
The Court erred in the assessment of objective seriousness by:
(a) Regarding the applicant’s motivation for the offending as increasing objective seriousness, and/or
(b) Not considering the causative role the applicant’s mental health played in motivating the offending conduct.
Ground 2:
The sentence is manifestly excessive.”
The circumstances of the offending were before the Court by a statement of agreed facts. On 29 November 2022 the applicant transmitted child abuse material, using a carriage service, to four mobile phone numbers belonging to separate women unknown to him. The transmission was of images (to two women) and text messages to all four. The text messages were set out in the agreed facts and his Honour’s sentencing judgment, but are not replicated in this judgment.
To the first woman he transmitted 16 images of real girls, aged between three and five years old in various stages of undress, involved in penetrative sexual intercourse with adult males. He also transmitted four text messages, before and after the transmission of the images, describing in extremely graphic terms the sexual and physical abuse, and torture, of newborn babies.
On the same day the applicant transmitted 54 images of real girls aged between four and eight years, in various stages of undress, involved in penetrative sexual intercourse with adult males, to the second woman, with 14 text messages describing in extremely graphic terms the sexual and physical abuse, torture and killing of babies. These included assertions of what he had done, that he had video recordings of available to send to her, and what he intended to do that night – inviting the woman to participate by watching on FaceTime. He described his ongoing sexual abuse of his daughter, which he said was loved by his girlfriend.
On the same day the applicant transmitted six text messages to the third woman describing in extremely graphic terms the physical and sexual abuse, torture and killing of babies. He offered to send her a video of the same, and offered her money “for a certain something” if she was into incest, age play and rape fantasy.
On the same day the applicant transmitted five text messages to the fourth woman in extremely graphic terms offering to send a video of his sexual assault of a baby, and other video recordings of babies and children being raped, tortured and killed.
On 13 December 2022, the date of the applicant’s arrest, investigators discovered an image of his penis on his mobile phone with words superimposed on it describing in graphic terms his asserted wish for sexual use of it with his little newborn baby niece. This image was the basis of the State offence before the Court on a s 166 certificate.
The applicant’s subjective circumstances were before the Court by virtue of the criminal and custodial histories and parole revocation report tendered by the Crown, as well as a body of documentary evidence tendered on his behalf and his sworn evidence. His documentary evidence included two reports from Dr Richard Furst, forensic psychiatrist, an affidavit from his mother and one from his solicitor, as well as a letter from the prison chaplain.
The applicant was 24 years old at the time of the offences and 26 when sentenced. He is the youngest of three siblings, with two older half-brothers. His parents separated when he was two to three years old and he was raised by his mother, who has schizophrenia and has had extensive treatment through mental health services. When she came off her medication she became psychotic, leading to hospital admissions. The applicant described his upbringing as troubled and chaotic, with times when he had to get himself to school, and went to school without food and in dirty clothes. His mother sometimes forgot to pick him up, and the school needed to contact her. He felt detached and very alone.
As a child and teenager the applicant did not have meaningful contact with his father, who has a history of depression and obsessive-compulsive disorder. His older half-brothers have problems with drug addiction and criminal offending. He described them as tormenting and aggressive, and recalled times when they would hit their mother and grab her by the throat. The family home was subject to a violent home invasion where the perpetrators were armed with knives, apparently as retribution for the theft of bikes by his older brothers.
The applicant started acting out in high school and at times was angry and anxious. He said he was using cannabis from 13 years and later progressed to other drugs including MDMA. His conduct in high school led to suspensions and expulsion.
Dr Furst described the applicant's hospitalisation for six days of an eight day drug-induced psychosis in January 2016 (the month in which he turned 18) when, after taking LSD, he engaged in punching cars and punching holes in the wall, worrying his family and attracting the attention of the police. Hospital records confirmed that the applicant was advised not to use drugs and was educated about his risk factors. He described further incidents of paranoia and suspiciousness for periods of about two weeks at a time through 2016 after taking ecstasy and/or LSD.
The applicant gave evidence of a further psychiatric admission at 18 years of age that led to a diagnosis of bipolar disorder; although it seems from other evidence that this diagnosis was likely later than he recalled. He was prescribed medication, and told to continue with counselling. With regards to the latter he said he lacked motivation, missed appointments and ended up discontinuing the counselling sessions. The applicant said that following his second hospital admission he had a period of stability and commenced a bricklaying course at TAFE. In 2017 he was involved in a serious motor bike accident which resulted in multiple serious injuries including a broken back and neck. He was hospitalised for over two months following which he had to learn how to walk again.
The applicant was prescribed opiate based pain medication whilst recovering in hospital and began to “doctor shop” for oxycontin following his discharge, and when this was not successful turned to heroin. He described the significant fluctuations in mood he experienced at about that time. Dr Furst’s report confirmed prescription of Buprenorphine and Methadone over the three to four years preceding his February 2024 report, to manage opiate dependence and chronic pain issues. The applicant has not worked since that serious injury.
Dr Furst’s review of records indicated that after the suggestion of schizophrenia in 2016, and thereafter treatment for a period of time for anxiety and depression, the diagnosis was revised to bipolar affective disorder in the applicant’s 20’s in light of more prominent mood symptoms. This had been managed by a combination of antidepressant and antipsychotic medication over the last few years prior to Dr Furst’s February 2024 report.
The applicant has a criminal history which commenced when he was 20 years of age. In August 2020 a 3 year Community Correction Order was imposed for that first offence, which was of assaulting a police officer, as well as a number of subsequently committed offences including contravening apprehended domestic violence orders and destruction of property. The applicant was still subject to that Order at the time of the offending for which his Honour Baker SC DCJ sentenced him. On the same date he received a 7 month Intensive Correction Order for stealing property in a dwelling house. He had also been sentenced in April 2020 for a recent contravention of an apprehended domestic violence order, to an 18 month Community Correction Order. He was sentenced to a 9 month aggregate term of imprisonment with a two month non-parole period in October 2020, for offences of common assault and stalking or intimidation with intent to cause fear of harm. His parole conditions included participation in mental health treatment.
On 25 or 26 November 2021 the applicant was arrested in relation to a charge of domestically related reckless wounding. He was refused bail. In March 2022 the applicant was sentenced, for an offence of assault occasioning actual bodily harm committed in December 2020, to imprisonment for 18 months with a non-parole period of 6 months to expire on 24 September 2022. Special circumstances were found because of his mental health issues and prospects of rehabilitation. He was released to parole and bail on 24 November 2022 (the date on which a fixed term of 12 months imprisonment for the next mentioned offence was later ordered to have expired). The bail was related to the charge of reckless wounding which occurred and was charged in late November 2021. He was not dealt with for that offence until after the offending the subject of this appeal, by the imposition of a 12 month sentence of imprisonment previously served and ordered to have been served between 25 November 2021 and 24 November 2022, imposed on 29 March 2023. Dr Furst’s report indicates that the domestic violence offences relate to the applicant’s father, and a male flatmate.
Accordingly at the time of the present offending the applicant was subject to parole, in addition to the previously mentioned Community Correction Order, and bail. He had been out of custody for five days. He gave evidence that his bail was conditional upon participation in residential drug rehabilitation at the Restoration Centre. He recounted that he was excited to have been granted bail and hopeful with regards to his rehabilitation. However, once at the centre he was offered and took 'Ice' by other residents. They assisted him to take the drug intravenously, something he had not done before.
The applicant described the centre as requiring attendance at meetings, but that otherwise he was left to his own devices and was using drugs heavily. Regarding the offending he gave the following evidence:
“Q. Effectively, on 29 November. Where did the images, where did you get them?
A. I was on the Dark Web seeking - because other boys there were seeking drugs off the Dark Web and first time ever I was on the Dark Web, they showed me how to do it and I was on, seeking drugs from a Drug Forum and somehow it led me to - it led me to the porn sight where it was with kids and stuff, child - children. Yeah and then I - being on the ice, I've scattered, I just - scrolling and just doing silly things on it. Yeah, it was very stupid things, outrageous things.”
He said that having come across the images he then engaged in the transmissions to ‘random women’ who had advertised escort services on the internet. He said that he had not stored the images on his phone and believed he sent them directly from the page where he found them. He confirmed he did not have a baby daughter or a girlfriend.
To Dr Furst the applicant denied having any thoughts or fantasies of a sexual nature at the time of the interview and denied sexual attraction to children. He acknowledged having sexual fantasies involving young children at the time of his offending, but stated he had not had them before or since. In Dr Furst’s report he indicated that the applicant stated he was manic at the time, and “was not in his right frame of mind” and “felt very ashamed of it.”
Although Dr Furst had information from the applicant and the records he reviewed of the history of his substance abuse generally, his first report did not indicate awareness of the applicant’s heavy methylamphetamine consumption proximate to the offending. The affidavit of the applicant’s solicitor on sentence made clear that he had provided instructions to her, prior to Dr Furst’s first interview for report, of the drug consumption at the rehabilitation facility in the days prior to the offending, as described in his evidence before the District Court.
Based on the history then available to him and a review of collateral documents (which included a previous assessment of the applicant conducted by Dr Furst in 2016), Dr Furst opined that the applicant meets DSM-5 TR criteria for the diagnosis of the mental disorders bipolar affective disorder, substance use disorder, oppositional defiant disorder/conduct disorder and chronic pain disorder.
Dr Furst described common symptoms of those disorders and treatment commonly offered before recommending a treatment plan for the applicant. He described bipolar affective disorder as a mental illness characterised by significant mood instability, changes in energy levels and changes in activity levels. People with bipolar disorder typically experience periods of intense emotional highs, known as mania or hypomania, as well as periods of deep depression, known as major depression or bipolar depression. Manic episodes typically last several days or more, are characterised by elated or expansive mood, and are severe enough to warrant hospitalisation.
With regards to the offending Dr Furst stated that:
“There have been residual intermittent periods of elevated mood and the form of mania or hypomania, and it would appear that he was experiencing such an elevated mood in the brief period and which he was in the community for 19 days in November 2022, which was when in the offences in question before the Court took place.
The motivations for his offending action are not clear, but the correspondence he sent to four women who were strangers to him suggest he was trying to shock them with the sexually explicit communications and images. Given Mr Maloney's propensity towards mood instability, he was probably elevated and disinhibited when he sent the correspondence and images in question; likely not thinking about the consequences of his actions. His judgement was probably also impaired because of his elevated mood/bipolar affective disorder.”
Dr Furst expressed the view that the applicant posed a low risk of sexual reoffending, namely a 1-7% risk of accessing further child abuse material and a 1-2% risk of a 'hands on' sexual offence. However this was consistent with the literature regarding risk of reoffending in a sexual manner for child exploitation material/child abuse material offenders in general, which demonstrates that same identified low risk of reoffending in the same way, and the same even lower rate of progression to ‘hands on’ offending. That literature, in combination with the applicant’s absence of any previous charges or convictions of a sexual nature, indicated that the applicant’s risk was the same as the reported general risk.
Dr Furst was of the view that the applicant’s risk of reoffending in a non-sexual manner was moderate, given his history of mood instability, addiction issues, poor role-modelling from older brothers and previous offending.
Dr Furst reported the view that custody was likely to be more onerous for the applicant because of his bipolar affective disorder.
A supplementary interview and report were requested of Dr Furst following the applicant's evidence in the District Court of methylamphetamine consumption prior to the offending. Dr Furst was then given a similar history on this topic as had been given in Court. The applicant said he would not have done it without ice – “Ice made me have weird thoughts.” Dr Furst noted that methylamphetamine use likely increased the applicant's energy level and drive, increased his libido and made him more disinhibited. He then stated:
“Alcohol and drugs of abuse are strongly associated with increasing the risk of relapse into mania in people with bipolar disorder. The most likely association between his consumption of methylamphetamine and his bipolar disorder would be to make him less stable in his mood and more inclined towards mania or hypomania [a less severe form of mania].
The effect of unstable mood, and mania in particular, overlaps with the effects of methylamphetamine intoxication described above, including increase energy and drive, increased libido and disinhibition. People who are manic/hypomanic often also feel invincible, are typically impulsive and frequently have deficits in consequential thinking.”
Dr Furst confirmed and maintained his earlier expressed views regarding the risk of reoffending.
The evidence indicated that the applicant has not used drugs in custody, and has seemed to his mother to be more mature than prior to this period of incarceration. He plans to live with his mother on release. She has become stable on her medication and looks forward to supporting him. The applicant acknowledged the connection between drug use and his criminal history. He said he had been shocked by his behaviour and wanted to change by stopping drug usage and attending to his mental health when next released.
He expressed significant remorse for his offending, and there was information before the Court about the applicant breaking down emotionally with his lawyers in a significant way because of his shock and sorrow at what he had done.
In his remarks on sentence the sentencing judge set out the applicable maximum penalties and the need to provide a discount of 25% for the plea of guilty. Having considered the submissions made by the parties, his Honour set a commencement date part way between the applicant's arrest and the expiration of the balance of parole. His Honour set out the detail of the offending and the applicant’s personal circumstances in terms which are not the subject of any complaint.
Within a part of the judgment which came under a major or emboldened heading “The offender’s subjective case” was a heading ‘The offending’ which set out some relevant aspects of the applicant’s report to Dr Furst and his evidence in Court. Under another such heading ‘Cause of the offending’, his Honour referred to Dr Furst’s evidence about elevated mood at the time arising from mania or hypomania. He included Dr Furst’s statement in the first report regarding the applicant’s likely attempt to shock the women. He referred to Dr Furst’s evidence that the applicant was probably elevated and disinhibited, and “likely not thinking about the consequences of his actions” with “judgement probably also impaired because of his elevated mood / [bipolar] affective disorder.”
Under another heading in this same part of the judgment entitled ‘The offender’s evidence – the offending and his state of mind’, his Honour set out without any apparent criticism the relevant evidence as to attendance at the rehabilitation facility, drug usage, not experiencing sexual thoughts previously about children and the applicant’s inability to explain what he did, and expression of remorse and indication that he cried when he thought about what he had done.
Dr Furst’s second report was addressed thereafter under a heading referring specifically to it. His Honour noted Dr Furst’s evidence that a significant proportion of people who commit offences involving child abuse material are intoxicated at the time, as well as the evidence of the effects of methylamphetamine. His Honour paraphrased Dr Furst’s opinion that “the interaction of this methamphetamine consumption and the offender’s bipolar disorder likely made him less stable in his mood and more inclined towards mania or hypomania.”
Under a major heading “Sentencing considerations” his Honour firstly, under a heading ‘Approach to sentencing’ recorded the requirement to consider Part 1B of the Crimes Act 1914 (Cth) (“the Act”). His Honour referred to the appropriate considerations in relation to the State offence. Under a further heading in this part of the judgment ‘Child abuse material’ his Honour set out some relevant principles regarding sentencing for offending of this kind, with which no issue is taken, such as Courts having stressed the need for general and specific deterrence, and denunciation. His Honour acknowledged that those who exploit children by involving them in the production of pornography are encouraged by the fact that there is a market for it, such that those who make up the market cannot escape responsibility for the exploitation of these real child victims.
Under the next major heading “Nature and circumstances of the offending” there are nearly two pages falling under a heading ‘The objective seriousness’ which recorded some submissions of the parties. His Honour recorded the submissions of counsel for the applicant which, although acknowledging the seriousness of the offending, contended that the relevant context was critical to an assessment of it. The submission that access to the material likely occurred very shortly prior to dissemination, impulsively over a short period of time, being all on the one day, was noted. The submission that the messages were patently untrue or unachievable was recorded, as was another that the applicant was likely manic, with his bipolar affective disorder appearing to have contributed to the commission of the offences.
Under the next heading ‘Finding on objective seriousness’ his Honour said, in the portion of the judgment relevant to the applicant’s first ground of appeal:
“Finding on objective seriousness
There are a number of well-established factors which bear upon the assessment of the objective seriousness of these types of offences. Those factors are set out in Minehan v R [2010] NSWCCA 140 at [94] and summarised in R v Hutchinson [2018] NSWCCA 152 at [45]. Relevant factors that are present in sequence 1 include:
1. That actual children were used in the creation of the images involved;
2. The nature and content of the material transmitted, including the very young ages of the children (in terms of the images, 3- to 8-year-olds and newborn babies in the text messages) and the gravity of the sexual activity portrayed (the images involved penetrative sexual assaults and acts of painful anal penetration of babies and necrophilia referenced in the messages);
3. The extent of any cruelty or physical harm occasioned to the children (the messages included references to gratuitous acts of violent rape, torture and murder using implements such as whips, chains and barbed-wire baseball bats resulting in painful deaths from choking and internal bleeding); and
4. The number of images involved (being 70 images and 30 separate text messages) and the number of persons to whom the material was transmitted (being four random innocent women).
The difficulty the Court confronts in assessing the objective gravity of this offending is that although the nature and content of the 70 images transmitted is consistent with the vile and despicable child abuse material that is regrettably often seen by sentencing Judges, the offender’s conduct and his apparent motivation in sending the images and the messages, in conjunction with the extreme terms of the messages, is even more disturbing.
Although the offending occurred over a short period of time, during which the offender’s impulsive behaviour was disinhibited and his judgment compromised by the combination of his mental condition and his drug use, he nonetheless targeted four random and innocent women, seeking to cause them what can only be described as mental anguish and psychological harm. To two women he sent the images. To all four he then deliberately composed and sent 30 text messages that contained the most shocking details of things that he represented he had done, was doing and intended to do to babies. These messages were made then worse by his suggestions and invitations for the women’s involvement. The fact that these acts were untrue or unachievable would not have been known to these four unsuspecting recipients. The offender’s ulterior purpose appears to have been to gratuitously inflict on them significant shock or psychological harm.
Considering all these circumstances I find the offending in sequence 1 to be very grave indeed.
In relation to sequence 6 whilst this possession charge relates to a single image, the offender’s use of his own penis, the reference to the offender’s fictional “little newborn baby niece”, the graphic depraved terms of the superimposed “wish” of the offender and its obvious connection to the other offending, significantly elevates the seriousness of this offence such that it is also a very serious offence of its type.” (emphasis in original)
“There is little doubt that the offender has a compelling subjective case. He suffered significant disadvantage and trauma throughout his childhood. This factor will be given ‘full weight’ on sentence and is relevant to a reduction of his moral culpability. The offender's mental illness at the time of the offending also sheds light on the offending to some degree and also somewhat reduces the offender's moral culpability. However, conversely, this also renders the offender more of a danger to the community, requiring greater weight to be given to the need to protect the community.
I will take the offender's reduced moral culpability into account on sentence. I will also take into account the way the offender’s background and mental health issues mean that his time in custody will be more onerous.”
“In relation to his risk of reoffending, given that his current offending appears to be more driven by factors that underpin his previous non-sexual offending such as his mood instability and addiction issues rather than an identified sexual interest in child abuse material, I find that his risk of reoffending is moderate.”
There followed consideration of s 16A(2AAA) of the Act under a heading ‘The objective of rehabilitation’ as it applied to this case.
After the next major or emboldened heading “Instinctive Synthesis” his Honour set out matters of principle pertinent to such heading. The next major heading was “Determination”. His Honour referred to the reduction to some extent to moral culpability due to childhood experience and mental health issues, which also meant the need for general deterrence was reduced to some extent. At the applicant’s age, promoting his rehabilitation was recorded as an important consideration. The circumstances of the offences meant that there still remained a significant need for general deterrence. Specific deterrence, retribution and denunciation, recognising harm to the victims, and holding the applicant to account for his offending were also important considerations, as well as the need for protection of the community.
The s 166 charge was found to involve a separate aspect of criminality which was to be reflected in a very modest accumulation. His Honour acknowledged the relevance of totality in light also of the applicant’s almost continuous incarceration from 26 November 2021, broken only by the brief time in the residential rehabilitation facility.
His Honour then indicated the sentences to be imposed, having synthesised all the matters referred to and reducing these by 25% for the guilty plea.
(a) Regarding the applicant's motivation for the offending as increasing objective seriousness, and/or
(b) Not considering the causative role the applicant's mental health played in motivating the offending conduct.
The applicant submitted that the sentencing judge elevated the seriousness of the transmission offence (count 1) because of the applicant's conduct and his apparent motivation, in conjunction with the extreme terms of the messages. It was submitted that although it was well open to the sentencing judge to do so by reference to the extremity of the messages, it was not open to do so by reference to the applicant’s conduct and his apparent motivation, if his mental illness was borne in mind.
It was submitted that although the applicant’s action added to the exploitation of the children involved, he was not motivated by sexual interest in children and not acting in a way designed to encourage the sharing of such material amongst like-minded individuals. Rather, his actions were directed towards adult women whom it appears he intended to shock. It was submitted that this was to be distinguished from a motivation which promoted and encouraged the market for child exploitation material. The evidence indicated he stumbled upon the material, giving rise to an apparently short term motivation directed towards creating shock in the adult victims. This was submitted to be interrelated with the onset of a rapid and significant decline in his mental health, leaving him in a manic state and suffering from impaired judgment and lacking in consequential thinking.
It was submitted that, contrary to the sentencing judge’s finding that the motive for the offending made it more disturbing, it should have been seen as reducing objective seriousness relative to other transmission offences. It was acknowledged that sub ground 1(a) would not be successful by itself, and a motive to cause emotional harm to a recipient by sending such distressing material could be regarded as a very serious instance of criminality. The asserted error here was in his Honour not grappling with such motive being infected by the illness at the time. It was submitted that although the conduct and motive as alleged would be a proper basis to elevate objective seriousness in the absence of mental illness, in this case it had to be seen in such context.
To state that the applicant’s mental illness “shed light” on his offending “to some degree” (see quotation above at [46]), was contended to significantly understate the evidence. The evidence indicated the experience of extreme highs and lows associated with his mental illness. The applicant’s evidence that he was “manic” around the time of offending was not challenged and was consistent with the opinion expressed by Dr Furst. This was submitted to be furthermore consistent with the applicant’s inability to explain why he had committed the offences, and his evidence that "I don't want to hurt anyone especially something so innocent".
It was submitted that when the motivation and mental illness were looked at together, this served to reduce rather than increase criminality. Reliance was placed upon the decision of this Court DS v R*;* DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96]. Although the issues of mental illness and objective seriousness had not been argued exactly this way at first instance, it was submitted, referring to Bugmy v T**he Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] and Noonan v R [2020] NSWCCA 346 at [38], contrasting Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 (“Zreika”) at [77], that the impact of mental illness was so central in this case that it should be regarded as a rare occasion where the Court would intervene to prevent miscarriage.
The respondent submitted that the conclusion was not available on a fair reading of the sentencing judge's remarks that he found that the applicant's apparent desire to inflict psychological harm made his case more serious than an ordinary case involving this type of offending, where an offender is driven by a sexual interest in children. It was submitted that the sentencing judge did not create a ranking system or putative hierarchy whereby the motivation of shocking recipients made the offending more disturbing than other motivations such as sexual interest in children or financial gain. It was submitted that the offending was rightly described as very grave because, in part, it generated more victims than the abused and violated young children.
It was submitted for the respondent that the sentencing judge repeatedly acknowledged the connection between the applicant’s mental illness and his offending. The respondent relied upon the manner in which the case was advanced for the applicant at first instance, which did not delve into the complex issue of when and how mental illness may be taken into account in assessing objective seriousness, contending that in line with Zreika at [77], the Court would be very slow to find error.
The impugned findings, set out within the passage quoted above at [45], taken in the context of the judgment as a whole, did not erroneously elevate the objective seriousness of the applicant’s offending, nor erroneously fail to take mental illness into account.
The sentencing judge was at this part of the judgment discussing three relevant aspects of the offending in count 1, in light of all the facts bearing upon its objective seriousness. The transmission of the 70 images, considered in light of the factors set out in R v Hutchinson [2018] NSWCCA 152, was objectively very serious, but consistent with child abuse material often seen by sentencing judges. However additionally to consideration of the transmission of those images his Honour was required to assess the extremity of the terms of the created messages, and the motivation for and conduct in transmitting all the material (images and messages). Although no victim impact statements were before the Court, the four adult victims had significant wrongs caused to them. Further, the applicant does not dispute the sentencing judge’s findings (appearing in the part of the judgment quoted above at [45]) that the applicant was “seeking to cause them what can only be described as mental anguish and psychological harm” and that his “ulterior purpose appears to have been to gratuitously inflict on them significant shock or psychological harm”. The submission is, rather, that the applicant’s mental illness needed to be taken into account in considering the force, or full level of understanding, in such motivation.
The fact that the applicant’s conduct was directly harmful to the women concerned, and that his motivation was to harm, did make this offence more serious than would have been the case on transmission of the same material in circumstances where the recipient of the transmission was not a direct victim of the crime (for example transmission to oneself, or to others known to be like-minded, for sexual gratification). Contrary to the submission for the respondent, the sentencing judge did use the harmful conduct and motivation to harm to elevate the seriousness of the offence – and was correct to do so. This does not mean that his Honour was creating a putative hierarchy. The conduct being in fact harmful, and designed to harm, was taken into account with all the other factors relevant to the objective seriousness of the offending to reach the conclusion that count 1 was very grave indeed. Had simple cartoon figures of children who were not real, and were not being subject to sexual assault of the kind here involved, been transmitted with a desire to shock, a different finding altogether would have been required.
As appears from parts of the sentencing judgment described at [40]-[44] above, his Honour had already by this point in the judgment referred a number of times to Dr Furst’s evidence about the applicant’s elevated mood from mania or hypomania, disinhibition, impaired judgment, and his mood being less stable as a result of the bipolar disorder and methylamphetamine. This evidence was not the subject of challenge, and was not criticised by his Honour. It was included for its relevance to the sentencing determination, and was part of all that his Honour said, at the end of the judgment, he had synthesised. His Honour had also, by the time of making the finding the subject of this ground of appeal, already noted the submission for the applicant that context was critical to assessment of the seriousness of the offending, and that the applicant was likely manic, with his bipolar affective disorder appearing to have contributed to the commission of the offences.
Those aspects of the applicant’s case were explicitly referred to again in the part of the judgment headed ‘Finding on objective seriousness’ quoted above at [45] which is the subject of this ground of appeal, because the finding of gravity was stated to have been reached although the offending occurred over a short period of time, during which the applicant’s impulsive behaviour was disinhibited and his judgment compromised by the combination of his mental condition and his drug use. This clearly suggests that these factors were taken into account in assessing objective seriousness. It suggests that the applicant’s offending would have been more grave still had his conduct not been impulsive and engaged in over a short period of time when his judgment was impaired.
His Honour took the mental illness into account in his assessment of objective seriousness in these ways, and additionally thereafter (see above at [46]) as reducing the applicant’s moral culpability for his offending to some extent (which is precisely how the submission was advanced for the applicant) and as reducing the need for general deterrence to some extent (which proposition had not been advanced for the applicant before his Honour).
Ground 1 should be dismissed.
The applicant relied upon sentencing statistics maintained by the Judicial Commission, acknowledging their limitations. These demonstrated only one instance of the imposition of a sentence higher than that imposed on the applicant for the transmission offence. In support of ground 2 the applicant contended that general deterrence should have been given no role to play in this sentencing exercise.
The applicant contended that although complaint was not made that the sentence for the State offence was itself manifestly excessive, it was nonetheless very stern. The extent to which the Commonwealth transmission offence was accumulated upon it was submitted to contribute further to the manifest excess in count 1.
The respondent reiterated that the Commonwealth charge was a “rolled up” charge. Each individual message amounted to a transmission offence, but these had been rolled up. Further, each recipient victim could have been treated separately, incorporating all material sent to her; but the individual victims too have all been consolidated in one charge. It was accepted that the number of transmissions was relatively low compared to the number sometimes seen by the Courts, but their content and depravity was submitted to be very important. The Court was reminded that the applicant’s liberty was conditional in three different ways at the time of his offending.
It was submitted for the respondent that general deterrence was still required to play a role in this offending. Reference was made to Lazarus v R [2023] NSWCCA 214; 380 FLR 228 in which Beech-Jones CJ at CL reaffirmed the long line of authority about the importance of general deterrence in offences of this kind.
In determining a complaint of manifest excess (or inadequacy), where no patent error is discernible, the moving party must persuade the Court that the sentence imposed is unreasonable, or plainly unjust: House v The King (1936) 55 CLR 499 at 505, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3]-[4], [6] (Gleeson CJ and Hayne J).
The Court is required to proceed on the understanding that there is no single correct sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [59] (citation omitted):
“… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’.”
The sentencing statistics relied upon by the applicant indicate that all bar one sentence imposed for the commission of the transmission offence, the subject of count 1, have been less onerous than that imposed on the applicant. In this case, demonstration of difference from other sentences imposed (in circumstances that are not known) is not adequate to show manifest excess.
I regard the sentence imposed for count 1 as stern, in light in particular of the applicant’s presenting mental illness at the time, the extent to which this offending was out of character, and his remorse.
However I do not accept that there was no role for general deterrence to play in these sentencing proceedings. The applicant accessed and transmitted very serious examples of child abuse material, and deliberately created and typed messages in extremely graphic terms. He was at that time sexually interested in children and demonstrated that interest in barbaric ways, and transmitted all material to the four adult victims with a harmful intent. His mental illness confirms that this was not criminality carefully planned over a long time, he had a reduced understanding of the consequences of his actions (compared to another person undertaking that course of conduct without his mental impairment), and his judgment was impaired. However the purposes of sentencing referred to by his Honour still required the imposition of a meaningful sentence.
Given the seriousness of the offending, guarded prospects of rehabilitation and the breach of three forms of conditional liberty, I am not persuaded that as against a maximum penalty of 15 years imprisonment a 5 year starting point for count 1 prior to discount for the guilty plea was unreasonable or plainly unjust, and nor was the total effective sentence after partial accumulation upon the State offence. The applicant consumed drugs contrary to the requirements of three forms of conditional liberty, with a history of drug usage escalating mental illness and education about the risks of the same. He then offended in a very serious way.
Ground 2 should be dismissed.
The orders I propose are as follows:
Grant leave to appeal;
Dismiss the appeal.
**********
Amendment to Respondent representative.
Maloney
R [2025] NSWCCA 156
(2013) 249 CLR 571
(2000) 202 CLR 321
(2022) 109 NSWLR 82
(2010) 242 CLR 520
(1936) 55 CLR 499
(2005) 228 CLR 357