R v Apps

Approach to Sentencing

1. To the extent that I make findings of fact adverse to the offender I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)
2. I must have regard to Part 1B of the Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in s 16A of that Act.
3. A Court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s16A(1) of the Act. The Court must take into account the matters listed in s 16A(2) of the Act that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in s 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].
4. The offender has entered a plea of guilty. For federal offences the Court must consider the offender's willingness to facilitate the course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [278]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. The Crown case was a strong one. The offender's plea saved the need for witnesses to be called at trial and the utilitarian value of the plea is high. I am satisfied that the offender's plea indicates an acceptance of responsibility for his actions, his remorse and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.
5. The comity principle is relevant to sentences imposed for Commonwealth child pornography offences. The intermediate appellate courts have decided that: 1. general deterrence and denunciation are of paramount importance; 2. the objective gravity of the particular offences must be considered; 3. the offences are not "victimless" because the creation of the material involves the exploitation and degradation of significant numbers of disadvantaged children; 4. limited weight should be given to prior good character; 5. undue focus should not be placed on the need for treatment to achieve rehabilitation at the expense of general deterrence and denunciation; and 6. in serious child pornography offences the appropriate sentence is one involving immediate incarceration and the use of an intensive corrections order may be inappropriate.
6. I have had regard to the matters set out in Minehan v R (2010) 201 A Crim R 243 at [94], R v Porte [2015] NSWCCA 174 at [63]-[72] and R v Hutchinson [2018] NSWCCA 152 at [45].
7. For a federal offence the non‑parole period or recognizance release period is the minimum period that justice requires the offender to serve in custody. This is by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen, (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
8. An Intensive Corrections Order is not an available sentencing option for these offences: s 67 Crimes (Sentencing Procedure) Act 1999.
9. I have taken into account the principles outlined in the guideline judgment relating to the s 16BA offences, which can be applied to federal offences: Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 and Le v R [2022] NSWCCA 243 at [36].

Facts

1. The parties tendered an Agreed Statement of Facts. I have taken into account the entirety of the document in coming to an appropriate sentence. What follows is a brief summary of the facts to permit an understanding of the sentence imposed.
2. The offender is an Australian citizen, with no prior convictions. Prior to his arrest, he was employed as a security guard at a hospital and lived with his wife and his parents.
3. On 30 May 2023 the offender departed on a flight to the Philippines. He had previously travelled to the Philippines between 7 and 24 September 2016.
4. On 9 June 2023 the offender returned to Australia, arriving at Sydney International Airport. He was subjected to a routine baggage examination by Australian Border Force (ABF) officers, at which time he produced a Samsung Galaxy Mobile phone and provided the password to it. The officers examined the device and identified 607 image files comprising child abuse material (Count 1), evidence that the offender had used the device to transmit image files and text messages comprising child abuse material (Count 2) and text messages sent by the offender offering to pay an individual in the Philippines to procure unnamed girls under the age of 12 for the purpose of having sexual intercourse (Count 5).
5. The 607 image files were imported by him into Australia on the device (Count 3 on s 16BA schedule) and were accessed by the offender using a carriage service (Count 4 on s 16BA schedule).
6. As to Count 1, the sample of the image files depict female children aged between five and 11 years wearing underwear, including some lingerie, in sexualised poses. The metadata from the device indicated that the offender had accessed 39 of the 607 image files on the device between 25 April 2023 and 4 May 2023.
7. As to Count 2, within the Telegram application on the device, investigators located a conversation between the offender and an individual identified as "Bernard". On 20 April 2023 the offender transmitted 22 images comprising child abuse material depicting female children between the ages of six and nine, accompanied by messages relating to the sexual abuse of the children depicted. On 22 April 2023 the offender transmitted three images comprising child abuse material depicting female children between the ages of seven and 10, including the message, "there's a girl in ED at the moment that I'm watching over because she's a minor. I'm so tempted to run her in". On 25 April 2023 the offender transmitted 71 images comprising child abuse material depicting female children between the ages of five and 14, accompanied by messages expressing sexual interest in the child abuse material and the children depicted. On 26 April 2023, the offender transmitted 100 images comprising child abuse material depicting female children between the ages of seven and nine years accompanied by the message, "I want to shove one up this badly". On 1 May 2023, the offender sent a screenshot of a message of a post advertising the availability of a group chat providing access to child abuse material in the form of videos and images of children between the age of three and 12.
8. As to Count 5, within the Viber application on the device, investigators located a conversation thread between the offender and an individual identified as "Mela Rivera". On 25 May 2023 the offender wrote: Tell you what baby, when I'm visiting. For every girl under 12 you bring me for fuck, I will give you 2k, how does that sound? Sorry I really love young [followed by two embarrassed sweat emojis]
9. After stating that he liked to have sex with seven or eight year old girls, including a seven year old named Kate in the past three weeks, the offender stated: I' been messaging people in Philippines and see if any have some young they want to let me. I pay them [smiling face with love heart eyes emoji] none [crying with laughter emoji] Only 1 person so far but she want 40k for 2 days. It's too expensive … My [wife] is asking me if I'm going to fuck many young girls this trip, I said I don't know yet because I have problems to sort out.
10. At the time of his arrest the offender participated in a recorded interview with officers from the Australian Federal Police. The offender admitted that he owned the device. He stated that some of the content of the communications with others were lies. He did not wish to comment on other allegations.
11. The offender was conveyed to Mascot Police Station and charged. He has been remanded in custody since 9 June 2023.

Offender's Case on Sentence

1. The offender tendered the following documents: 1. report of Chafic Awit, psychologist dated 20 May 2024; 2. bundle of medical reports relating to the offender's father; and 3. google search for media reports relating to the offender's arrest and charges for the offences.
2. The following is a precis of the evidence relied on by the offender.
3. The offender is an only child. His parents are still married. He had a good childhood until about age eight, after which his parents dedicated a lot of their time to running their business, working from about 4am to 6pm, seven days a week. He spent a lot of time being cared for by his grandparents. This continued until the offender was about 15 years of age, when his father had to get out of the business due to ill health. Growing up, the offender spent his time in the company of adults and did not have many friends.
4. He reported a number of childhood incidents that caused him symptoms of anxiety, including being threatened by an adult at age six, being in a motor vehicle accident at age nine, being thrown into a swimming pool by a teacher at age 11 and his father being on life support at age 13. At age 17, two of his friends died in separate motor vehicle accidents in the same year, which caused him to experience grief for some time.
5. The offender attended school in Maclean to Year 12 and described himself as an average student. He experienced some bullying by his teachers and peers that went unresolved by the school, following complaints made by his parents.
6. In 2003 he attained a Certificate II in Information Technology, followed by a Certificate II and Certificate III in Aquaculture Farming. In 2022, he completed a Security Operations Certificate.
7. The offender has a good work history. After high school in 2004, he obtained employment with Harvey Norman and worked in a number of stores, before leaving in 2016, stating that he could not put up with continued verbal abuse by customers. He then worked for himself operating an Asian supermarket. The business struggled financially for a number of reasons, including the COVID-19 pandemic. He left the business owing a considerable sum of money to a number of creditors. The failure of his business caused the offender to suffer symptoms of anxiety and depression.
8. In October 2022, the offender began working as a security guard at a hospital. Whilst in custody, he has worked in grounds maintenance at Goulburn Correctional Centre and in the clinic at Clarence Correctional Centre.
9. The offender commenced consuming alcohol at age 19 in company with his workmates. His consumption increased by age 20 to about 12 bottles of beer per day and further at about age 26 to 10 pints and some shots each day at the hotel across the road from where he was living.
10. He spent a lot of his social time online, finding it easier to interact with others in that format as a result of social anxiety. He met his wife and got to know her online, before meeting her face to face in London in 2012. They were married in 2014. His wife was a positive influence on him, ceasing his gambling and reducing his alcohol intake. She suggested that he see a psychologist more than once in the three years prior to the offending. Their relationship suffered during the failure of the offender's business and then stabilised. They experienced further difficulties when the offender had an extra martial affair in the Philippines with a 29 year old female that he had met online. His wife found out about the affair through access to his devices when the offender was in custody.
11. They have not engaged in intimate relations since about 2018. The offender commenced viewing pornography over a number of genres, including child pornography. He stated the child pornography was just another genre that he cycled through, and that it represented a small proportion of the material that he viewed. He told Mr Awit that he did not "have any real desire towards children". He stated that his conversations about trying to procure children for sex were an attempt to "fit in with the online crowd he was talking to".
12. The offender has experienced difficulties in custody, including physical threats which caused him to feel anxious. After about six months, he was moved into protective custody.
13. The DASS-21 results suggested that the offender was suffering moderate levels of depression, severe levels of anxiety and moderate levels of stress, at the time of his consultation with Mr Awit.
14. The offender expressed remorse to Mr Awit, stating that on reflection he was deeply ashamed of his actions which were unjustifiable. He accepted that the children depicted in the images were victims of his offending.
15. Mr Awit opined that the offender had struggled with symptoms of depression and anxiety throughout his life. He avoided social interactions or drank alcohol to excess to cope with them. He turned to online interactions with people as a coping mechanism. The lack of physical intimacy with his wife led him to using pornography, including child pornography as a genre. Mr Awit opined that the offender's symptoms support a conclusion that his decision-making was impaired at the time of the offending, but that it was difficult to be more precise because the offences took place over a three year period.
16. Mr Awit recommended that the offender engage in psychological treatment when he is released from custody, including sex offender treatment.
17. Mr Awit diagnosed the offender as suffering from Social Anxiety Disorder, Generalised Anxiety Disorder and Persistent Depressive Disorder. I have some reservations about accepting Mr Awit's opinions as to these diagnoses. First, they are all based on the history provided by the offender, Mr Awit had no access to supporting documentation or independent sources of information and Mr Awit had limited contact with the offender. Second, many of the events relied on by Mr Awit as a basis for the offender experiencing psychological symptoms were of a relatively minor nature, and there is no contemporaneous evidence of their impact on the offender. Third, there is no independent rigour applied to the statements made by the offender to the effect that he did not hold a sexual predilection towards children. This is a matter that required substantial attention in the context of this case. Mr Awit has relied on the offender's denial that he has a sexual interest in children, when the objective circumstances of the offending suggest the opposite.
18. The offender provides care to his father who suffers from a myriad of health conditions.
19. The offender's arrest and charges have also attracted some adverse media attention.

The nature and circumstances of the offences

1. For count 1, there were real children used in the creation of the material. The children in the sample images were aged between five and 11. The images depicted the children clothed, sometimes in underwear, in sexually provocative poses but not engaged in sexual activity. No physical harm or cruelty was depicted, but it should be accepted that the involvement of children in premature sexual activity can and does inflict long term psychological harm. It is not possible to estimate the number of children depicted in the images. The images were accessed by the offender for his own sexual gratification. The offender was removed from the creation of the material. There was no risk of the material being seen by underage or vulnerable people.
2. Count 2 involves the transmission of 196 images via the Telegram application on the offender's device. The images were of a similar nature to the images the subject of Count 1, and probably sourced from those images. The images were of real children and accompanied by statements indicating a sexual interest in the children depicted. It is not possible to estimate the number of children depicted in the images. The messages were sent for the offender's own sexual gratification. The images were sent to one other like-minded person.
3. Count 5 involved making an offer to pay $2,000 to another person for each female child under 12 that could be procured by that person for the purpose of the offender having sexual intercourse with those children. The message was sent on 25 May 2023 a few days before the offender travelled to the Philippines. It was sent in the context that the offender stated that he had made a similar offer to another person and received a counter-offer which he believed to be too expensive.
4. I have taken into account the maximum penalty for the offences.

Section 16BA schedule offences

1. There is a considerable degree of overlap in the criminality between Count 1 and the offences in the s 16BA schedule. Count 3 involves bringing the images that were the subject of Count 1 back into Australia on his device and Count 4 involves using the internet to access those images.

Contrition

1. The offender expressed remorse to the psychologist for his offences. His plea of guilty also indicates remorse. I accept that he is genuinely contrite.

Deterrence

1. General deterrence has been expressed as a paramount consideration for similar kinds of federal offences by the intermediate appellate courts.
2. There is also a need for specific deterrence. I do not accept the offender's statements to the effect that he does not have a sexual interest in female children. He will need to get treatment to reduce his risk of reoffending. He has suffered some extra-curial punishment in that he has been the subject of adverse media reporting and he will lose his security licence and present employment.

Character, antecedents, age, physical and mental condition

1. The offender is 40 years of age and does not have any prior convictions.
2. The offender is entitled to be considered as a person of good character, but good character is afforded less weight in relation to this type of offending.
3. The offender is in good physical health.
4. The offender has experienced some psychological symptoms over the years. It is hard to discern how significant those symptoms were. He had not sought treatment, but I note that his wife, who is a nurse, had suggested that he see a psychologist on multiple occasions. His mental condition may go some way to explaining his offending conduct, but it does not excuse it. I am not satisfied that the offender has established a causal connection between his mental condition and his offending conduct or that his moral culpability for the offences is reduced.

Prospects of rehabilitation

1. The offender has good prospects of rehabilitation. He has accepted responsibility for his actions and expressed remorse. He is willing to accept interventions. He has the support of his family and a good work history.

Probable impacts on the offender's family

1. The offender is a carer for his father and I accept that his incarceration has had a serious impact on the care arrangements for his father. I am also satisfied that the offender's incarceration has contributed to the financial burden on his wife and the difficulties in his marriage.
2. I have taken into account the restrictions imposed on prisoners in New South Wales to respond to the COVID-19 pandemic. I am satisfied that the offender's time in custody has been made more onerous by reason of those restrictions.

Penalty

1. I have considered s 17A Crimes Act 1914 and I am satisfied after having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
2. James Dean Apps is convicted.
3. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are: 1. Count 1, taking into account the matters on the s 16BA schedule - 15 months; 2. Count 2 - 12 months; 3. Count 5 - 18 months.
4. I impose an aggregate sentence of 2 years and 6 months to date from 9 June 2023 and to expire on 8 December 2025.
5. Pursuant to s 20(1)(b) Crimes Act 1914, I order that the offender be released on 8 September 2024 after serving 15 months of the sentence, on entering into a recognisance in the sum of $1,000 to be of good behaviour for 2 years. The further conditions of the recognisance that will apply are that: 1. the offender accepts the supervision of a Community Corrections Officer; 2. the offender obeys all reasonable directions from Community Corrections; 3. the offender is not to travel overseas or interstate without the written permission of Community Corrections; and 4. the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.
6. If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.

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: 05 June 2024