Police v Sidney Lee Burchett

Legislation 19Historically, offences such as these were categorised as child pornography, whether they involved dissemination, production or possession. Amendments to the Crimes Act 1900 introduced the words 'child abuse material' which came to be statutorily defined in a widely encompassing fashion to cover all forms of material including still images, videos, and words, in which a child is described as a victim of torture, cruelty, physical abuse, sexual posing or sexual activity. Throughout this decision, I have used the words child pornography and child abuse material interchangeably. 20Section 91H of the Crimes Act 1900 provides: - 91H Production, dissemination or possession of child abuse material (1) In this section: disseminate child abuse material , includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F(2)). produce child abuse material includes: (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years. 21The definitions applicable in the interpretation of s 91H are set out in ss 91FA and 91FB of the Crimes Act 1900 as follows: - 91FA Definitions For the purposes of this Division: child means a person who is under the age of 16 years. child abuse material - see section 91FB. data includes: (a) information in any form, or (b) any program (or part of a program). material includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction). 91FB Child abuse material - meaning (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person.

Criminal history of the offender 22Other than convictions for drink driving in 1989, for which he received a fine, and larceny as a servant in 1990, for which he performed 200 hours community service, the offender has no criminal record of any relevance to the present offences for which he is to be sentenced.

Pre-sentence report 23The Court was provided with a Pre-sentence Report dated 20 April 2011 prepared by Probation and Parole Service, describing the offender as having had a stable upbringing within his family environment and benefiting from close relationships with two of his brothers and his wife of 16 years. He has five children ranging from twin daughters aged 18 months and three sons aged four, five and 15 years of age. Despite the strain on their relationship as a result of these offences, it would appear that his wife is supportive. Due to these offences, however, he was initially suspended, but later resigned, from his employment in the public transport industry in July 2010 and his income ceased in November 2010, following which he did not access government support, rather, utilising the family's savings. The Probation and Parole Officer noted, however, that although he did not dispute the police facts, the offender appeared to minimise and justify the offences claiming that it was his curiosity that drove him to access internet chat sites and, indeed, was surprised by how easy it was to access child pornography. Whilst he conceded that the images were of real people, the offender did not appear to recognise or express any concerns regarding the welfare of the child victims. The offender denied receiving any sexual gratification from the images.

Psychiatric Report 24Counsel for the offender tendered a report of Dr O Nielssen, Psychiatrist, dated 2 April 2001. In his report, Dr Nielssen outlined the offender's history, generally in accordance with the submissions made by the offender's counsel. The offender stated that he had never met in person any of the people with whom he had communicated via the internet chat site and that exchanges were a way of pushing the boundaries to see how far the others were willing to go in the conversation. He said that he made up the story and said that he had no intention of doing anything of the kind, believing that all of the comments were fantasy. He had never touched his children or any other children, nor had he ever performed any of the acts described in the exchanges and denied having an attraction to underage children. 25Dr Nielssen reported that the offender was not aware that he was breaking any laws by writing what he wrote, but after speaking with police and obtaining legal advice, he realised he had committed an offence. He said that the images found on his computers were both solicited and unsolicited and that while he did not review the images he had received, he regretted not deleting the images immediately. At this stage, I should interpose one salient point, namely, that the offence of possession of child pornography does not require that an offender view any or all of the material the subject of the charge. The offender had never sent any images of his own and had never circulated any images he received. Clinically, he had never been prescribed any kind of psychotropic medication, neither did he suffer any periods of severe depression beyond the understandable effect of criminal charges he now faces. There was no history of symptoms of psychotic illness. Indeed, from the point of view of his mental state, the offender did not present especially anxious or depressed, and seemed, according to Dr Nielssen, rather indifferent to the loss of his job and the risk of a term of imprisonment. 26Dr Nielssen concluded by stating that there was no medical evidence to suggest that the offender had any disorder of abnormal sexual interest, such as paedophilia. He reported a stable marriage of some 16 years with no history of offences of a sexual nature and, in the doctor's opinion, the offender's participation in chat room communications with people he had no intention of meeting appeared to be an example of a cultural phenomenon that has been created by widespread access to the internet, in circumstances where the communications of complete fantasy bear little resemblance to the personality of the offender in real life. Dr Nielssen reports the offender presenting a fatalistic attitude to the many losses associated with his charges, and agrees that any term of imprisonment would place a considerable burden on his wife and young children as his wife did not have much in the way of support without him.

Relevant principles 27There are a number of relevant considerations to which I must now turn before reaching a conclusion as to the appropriate sentence to be imposed. The first is the purposes of sentencing. 28Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) enunciates the purposes for which a court may impose sentence as being, namely, punishment, protection of the community, promotion of rehabilitation and accountability, deterrence, both specific and general, denunciation and a recognition of the harm done to the victim of the crime and to the community at large. In my view, sentencing for offences of this kind must comprise a real denunciatory emphasis, with particular regard to general deterrence. One must be especially cognisant of the fact that offences involving child pornography and child sexual abuse material, of whatever kind, are not victimless crimes and in circumstances where technological mediums such as the internet facilitate the exchange of offending material, courts should be vigilant in protecting a vulnerable section of the community from the predatory practices of those who deal with such material. The paramountcy of general deterrence and denunciation as considerations based on the exploitative nature of these offences was made clear in the decision of Simpson J in R v Booth [2009] NSWCCA 89 wherein her Honour (with whom McClelland CJ at CL and Howie J agreed) held, at [40]: - "40 ... It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime. 41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. ... The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse.... 43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material. 44 It is for that reason that this is a crime in respect of which general deterrence is of particular significance. In my opinion the sentencing judge too readily dismissed from consideration the need to convey the very serious manner in which courts view possession of child pornography." 29In R v Gent [2005] NSWCCA 370, reference was made to the decision of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC (3d) 187 at 191 in which it was held that: - "The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place." 30The next relevant consideration is the assessment of the objective seriousness of the offences. The Court of Criminal Appeal has provided guidance in relation to assessing offences of this kind. In R v Gent , Johnson J at [99] identified a number of factors to assist in the assessment of objective seriousness: - "(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed; (b) the number of images or items of material possessed by the offender; (c) whether the possession or importation is for the purpose of sale or further distribution; (d) whether the offender will profit from the offence. It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised." 31More recently, RA Hulme J in Minehan v R [2010] NSWCCA 140 at [94] (with whom Macfarlan and Johnson JJ agreed) identified the following factors as having relevance to an assessment of the objective seriousness of child pornography offences: - "1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence." 32So far as the possession charges are concerned, paragraphs (c) and (d) of the Gent factors would appear to have no application in that there is no evidence of possession or importation for the purpose of sale or distribution or for profit on the part of the offender. However, paragraphs (a) and (b) of the Gent factors have direct application as do paragraphs 1 and 2 of the Minehan factors. The offender was found in possession of 16 videos and 176 images, 192 items in total, stored across two computers, with children varying in ages between four and 14, with 24% of material falling within the upper range of the Oliver scale (level 4) and 2% at the top of the scale (level 5). The number of images present in Gent's case was 601. When turning to the Minehan factors, in particular paragraph 3, it would seem that the volume of material illustrative of penetrative sexual activity between adults and children at level 4 and sadism and bestiality at level 5 carries with it a real and genuine concern of the cruelty and physical harm occasioned to the children portrayed in those images and footage. Counsel for the offender conceded that there would not have been a significant overlap in the number of children depicted in the material and I understand from that submission that it is of some significance that there would have been numerous children victimised by the activities portrayed in the images and videos as referred to in paragraph 4 of the Minehan factors. It was submitted by counsel for the offender that for the purposes of assessing paragraph 10 of the Minehan factors, the offender acted alone in his pursuits and never met any people of the chat room sites and indeed that there was no evidence that he participated in any activity with the nine-year-old child whose parents were also apprehended by police. Whilst I accept that submission, paragraph 10 of the Minehan factors is quite specific in its application requiring a sentencing court to consider whether the offender acted alone or in a collaborative network of like-minded people. Unlike the Gent factors, which deal primarily with possession of child pornography, the Minehan factors deal with possession, dissemination and production of child pornography. I accept that not all of the 6379 chat logs consisting of conversations between the offender (via his username 'louise_69r') and 1806 other users consisted of offending material. In fact, the Facts Sheet makes it clear that the chat logs ranged between 2005 and 2010 and their review identified a further 28 persons of interest, and it is the content of the communications between those persons and the offender which are similar to the chat logs forming the basis of sequence 1, which I have set out earlier in these reasons. The dissemination offence, by virtue of the chat log conversations, cannot be considered in a vacuum. In my view, there is a clear and unambiguous network of participants, at varying levels along the spectrum of criminality which pervades the standards of morality, decency and propriety enjoyed by mainstream society. 33Another relevant consideration is that of increased penalties. Most of the leading cases dealing with the possession of child pornography were decided prior to the amendments carried through principally by the Crimes Amendment (Sexual Offences) Act 2008 (NSW) and to a lesser extent the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW). By virtue of the Crimes Amendment (Sexual Offences) Act 2008, which commenced on 1 January 2009, the maximum penalty for being in possession of child pornography was increased from five years imprisonment to 10 years imprisonment. This had the effect of imposing the same maximum penalty for possessing child pornography as had already existed for producing or disseminating child pornography, thus merging the various child pornography offences into a single offence. The significance of this point is that when maximum penalties are raised, this is an indication that higher penalties should be imposed. In R v Way (2004) 60 NSWLR 168 at [52], the Court held that: - "Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum: R v Sha (1988) 38 A Crim R 334; R v Peel [1971] 1 NSWLR 247. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made: R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic (1998) 45 NSWLR 209 at 227." 34An increase may represent a change in the community feeling or expectation as to the sentence appropriate for such an offence, although it must be understood that such a change will not necessarily have a wholly determinative or conclusive effect: R v Crump (unreported, 30/5/94, NSWCCA). 35Another consideration is that in structuring a sentence with multiple charges, I am required to have regard to the principles of totality. The effect of the totality principle is such that the Court is required to pass "a series of sentences, each properly calculated in relation to the offence for which it is imposed ... [and] to review the aggregate sentence" to determine whether it is 'just and appropriate': Mill v R (1988) 166 CLR 59 at [63]. 36In assessing the objective seriousness of an offence where the offender has committed multiple offences, the court should not indulge in a global assessment: R v R eyes [2005] N SWCCA 218. The laying of two separate charges for the 'possess' offences appears to have been so as to discern the material found on one computer from the other. In R v Saddler [2008] NSWDC 48, each charge was based on the location of material on separate electronic devices and cumulative sentences were imposed to reflect this. Other than the fact that the images and videos were found on two different computers in the offender's home, the desktop computer and the laptop computer respectively, there is nothing, in my view, which makes one 'possess' charge objectively more or less serious than the other or distinctive in any way and, noting that Saddler's case was decided by a single judge in the District Court of NSW, I distinguish Saddler's case , to the extent that it constitutes any form of persuasive authority. Accordingly, any sentence to be imposed for the two 'possess' charges preferred by sequences 2 and 3 should, in my view, be concurrent as between the themselves. The same cannot be said, however, for the 'disseminate' charge preferred by sequence 1 and the sentence to be imposed for that offence should, in my view, be made partially cumulative and partially concurrent to the offences for sequences 2 and 3 so that, to use the words of Howie J in Cahyadi v R [2007] NSWCCA 1 at [27], the sentence for one offence could "comprehend and reflect the criminality for the other offence" and that if it could not, the sentences should at least be: "... partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality". 37Another consideration which falls for assessment is that of sentencing statistics. Counsel for the offender tendered a number of sentencing statistics of cases decided in this jurisdiction. Whilst they are instructive and I have had regard to them, their use must be tempered with the cautions referred to by Campbell JA in Han v R [2009] NSWCCA 300 at [2] wherein it was held that: - "Sentences imposed on other people for crimes that bear some similarity to the crime in question can legitimately be looked at as part of the process of a judge fixing a sentence. But in themselves they will not inform the judge of the range of sentences that would properly be open in a correct application of sentencing principles. It is the sentencing principles themselves that it is the duty of the judge to apply. They include taking account of the maximum penalty that Parliament has prescribed for the offence in question, and how the criminality of the particular mode of committing the offence that is being sentenced for compares to the criminality of the various possible ways in which a contravention of the particular prohibition that creates the offence could occur. 3 Statistics about the sentences that have been imposed for a particular offence can be of some assistance in informing the judge about the range of sentences that have actually been imposed for that offence. But the use of such statistics is limited. Part of the reason why that is so is because consideration of the range of sentences actually imposed is at best a check that the judge is correctly applying the sentencing principles. Part is because the statistics leach out many of the objective facts and all of the subjective circumstances that must be taken into account in a sentencing decision. Part is because the limited number of sentences that make up the sentences summarised by the statistics do not necessarily cover the full range of circumstances in which that particular crime can be committed. This list does not purport to be exhaustive." 38A more comprehensive list was enunciated by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 (with Sully and Ireland JJ in agreement). What must be borne in mind when considering a particular sentence are the specific findings as to objective seriousness of the offence and culpability of the offender, rather than a comparison with statistical figures and percentages. The critical question is whether the sentence imposed is appropriate for the particular case: Sinkovich v R [2011] NSWCCA 90 at [41]. 39The English Court of Appeal in R v Oliver gave some direction as to sentences for offences involving possession of images depicting child pornography at [17]: - "We agree with the Panel that the custody threshold will usually be passed where any of the material... in cases of possession (consist of) a large amount of material at level 2 or a small amount at level 3 or above. A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3 ...... A sentence of between six and twelve months will generally be appropriate for (b) possessing a small number of images at Levels 4 or 5 ...... In relation to more serious offences a custodial sentence between 12 months and three years will generally be appropriate for possessing a large quantity of material at Levels 4 or 5, even if there is no showing or distribution of it to others." 40It should be borne in mind that the maximum penalty applicable in Oliver for possession of child pornography was five years, not 10 years as in the present case.

Aggravating and subjective factors 41The written submissions tendered by counsel for the offender do, for the most part, correctly identify the aggravating factors weighing against, and the mitigating factors weighing in favour of, the offender for the purposes of s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999, including the aggravating factor that the offence involved images and videos of multiple victims: s 21A(2)(m); and the mitigating factors that the offender is generally a person of good character, save for the convictions for unrelated offences to which I have referred earlier in these reasons: s 21A(2)(f); the poignant reminder that these proceedings would leave him with such that he is unlikely to re-offend: s 21A(2)(g); his good prospects of rehabilitation: s 21A(2)(h); and his plea of guilty: s 21A(2)(k). I do not believe that the offender is wholly incorrigible despite the pernicious nature of these offences. I am permitted by s 21A(1)(c) of the Act to take into account any other objective or subjective factor that affects the relative seriousness of the offences and, for the reasons given earlier in this decision, I confirm my view that the 'disseminate' offence is one which I view as being exacerbated by virtue of it having been committed in a collaborative network of like-minded persons. It should be remembered that good character, to the extent that it is applicable, is accorded lesser weight in sentencing for offences of child pornography. So much is made clear from R v Gent at [64] wherein it was held that: - "There is a foundation for the approach that less weight should be attached to the evidence of prior good character on sentence for offences of importing child pornography. ......General deterrence has been referred to as the paramount consideration on sentence for this class of offence (Assheton). The fact that the offence is, in a sense, committed in secret is also relevant to this issue."

Assessment of the Criminality 42It is the depiction and descriptions of child sexual abuse, through the chat logs of online communications between the offender and others which, by their sordid nature, offend, grossly in my view, the standards of morality, decency and propriety referred to in the legislation, that form the basis of the 'dissemination' charge preferred by sequence 1. It is the presence alone of the images and videos of children engaging in sexual poses and sexual activities and the portrayal of children as victims of sexual abuse, which reasonable persons would regard as offensive in all the circumstances, that by their inherent nature form the basis of the 'possession' charges preferred by sequences 2 and 3. 43As no election was made by the prosecution to proceed with this matter on indictment before the District Court of NSW, the charges retain their classification as indictable offences punishable summarily by virtue of s 260(1) and Table 1 of Schedule 1 of the Criminal Procedure Act 1986. That being the case, the maximum term of imprisonment that the Local Court may impose for an offence is, pursuant to s 267 of the Criminal Procedure Act 1986, two years, or five years, in the case of consecutive sentences (or partly concurrent and partly consecutive sentences) for multiple offences, by virtue of s 58 of the Crimes (Sentencing Procedure) Act 1999. 44The maximum penalty for the offences with which the offender is charged is, if dealt with on indictment, 10 years imprisonment. The matter presently under consideration is one to which the principles enunciated in the Court of Criminal Appeal decision of R v Doan (2000) 50 NSWLR 115 (per Grove J at [35]) apply such that sentence is imposed according to the gravity of the offences by reference to the statutory maximum, not the jurisdictional limit of the Local Court. 45In relation to the 'disseminate' charge (sequence 1), I am of the opinion that because of the pervasive nature of the chat logs carried out over a broad technological medium such as the internet, across a network of like-minded participants, over a lengthy period of time, the offending conduct falls below the half way mark of the scale of objective seriousness. Initially, I assess the criminality of sequence 1 deserving of a total sentence in the order of three and a half years. This is the significance of the decision of R v Doan . 46For the purpose of proceeding to sentence in relation to the remaining two 'possess child pornography' charges (sequences 2 and 3), the offending conduct falls between the low end and half way mark of the scale of objective seriousness. Initially, I assess the criminality of sequences 2 and 3, severally, deserving of a total sentence in the order of two and a half years each, again, on the basis of the reasoning in R v Doan . One should be circumspect, however, in interpreting the words 'low end' as constituting trivial. On the contrary, the categorisation of the offending conduct is such that I may now proceed to assess all factors, both objective and subjective, which have a bearing upon the sentencing exercise with a view to imposing a sentence which is condign in all the circumstances. So much is made clear from the decision of McColl JA in R v King [2004] NSWCCA 444 at [130], with whom Howie and Buddin JJ agreed, in which her Honour held that: - "The sentencing judge must reach an 'instinctive synthesis' which takes account of and balances the 'conflicting and contradictory' factors which bear upon the sentencing exercise." 47The discounts for the pleas of guilty referred to earlier in these reasons are applied to the initial assessments of criminality set out in the preceding two paragraphs rather than from the Court's jurisdictional limit of two years.

Sentence 48When deciding to sentence an offender to a term of imprisonment, I am required to undertake a number of steps before finally determining the appropriate sentence. The individual steps require me to consider the objective gravity of the offence and balance that finding against the subjective circumstances of the offender. The decision of Howie J in R v Zamagias [2002] NSWCCA 17 at [23] is authority for the proposition that it is the first of these considerations that will determine, essentially, which of the available sentencing alternatives the Court should adopt. Bearing this in mind, I have considered and rejected all possible alternatives to a full-time custodial sentence. Taking all of the relevant considerations into account, I am of the opinion that no penalty other than imprisonment is appropriate: s 5 of the Crimes (Sentencing Procedure) Act 1999. I am of the opinion that the sentence to be imposed in this matter must be one that emphasises general deterrence and denunciation and for these reasons, I am also of the view that the sentence would be bereft of its deterrent effect if I were to suspend it. Accordingly, I decline to do so. 49I make the following orders: - Sequence 1 - Disseminating child pornography The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 May 2011 and expiring on 26 May 2013. On the basis that this will be the offender's first time in custody ( R v Fidow [2004] NSWCCA 172 and Wright v R [2006] NSWCCA 122), coupled with my proposal to partially accumulate the sentence for this offence with the remaining two offences which I propose to make wholly concurrent as between themselves ( Hejazi v R [2009] NSWCCA 282) and the need for long-term supervision with a view to effective rehabilitation, I find special circumstances and, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, I vary the statutory ratio prescribed therein and I impose a non-parole period of 14 months commencing on 27 May 2011 and expiring on 26 July 2012 and a balance of term from 27 July 2012 to 26 May 2013. Sequence 2 - Possessing child pornography The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013. For the same reasons as above, I vary the statutory ratio and I impose a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013 Sequence 3 - Possessing child pornography The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013. For the same reasons as above, I vary the statutory ratio and I impose a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013. 50The overall effect of the sentences imposed is that of a 17-month non-parole period of custody, making the earliest date of release 26 October 2012. 51Following his release, the offender is to be subject to supervision on parole. Magistrate Theo Tsavdaridis 27 May 2011 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: 06 June 2011