defendant. Convicted on three offences. Sentenced to a fixed term 9 months imprisonment (possession, sequence 10) from 12/12/19 to 11/9/20; Commonwealth prepare or plan offence (sequence 11) head sentence 1...
Key principles
Sentencing for offences involving child abuse material and related preparatory communications must be informed by objective seriousness assessed using factors such as the...
A plea of guilty entered at the earliest opportunity attracts a significant utilitarian discount; in this case the judge applied a 25% discount to the State offence and, by...
Preparatory offences (using a carriage service to prepare or plan to engage in sexual activity with a child) are aimed at penalising preliminary steps even where the offender may...
Where multiple sentences are imposed for related Commonwealth and State offences, the principle of totality requires accumulation but also significant concurrency where facts...
Issues before the court
How should the objective seriousness of possession, transmission and preparatory child sexual offences be assessed for sentencing?
What discount should be afforded for an early plea in combined State and Commonwealth matters?
Plain English Summary
Mr Pieter Bezuidenhout placed an online ad soliciting sex with young girls, exchanged images and explicit messages with undercover police, and had large quantities of child abuse images on a seized laptop. He pleaded guilty. Applying established sentencing factors for child exploitation offences, the judge found the offending objectively serious, imposed custodial sentences (9 months for possession; 1 year 6 months for planning; 1 year 8 months for transmission), structured to allow some concurrency, and ordered release to a recognisance bond after 1 year 2 months with supervision conditions.
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Deep Dive
1,896 words · generated 26/06/2026
What happened
Pieter Bezuidenhout placed an explicit "personals" advertisement on Locanto seeking "teen insemination" and stating an interest in young daughters, offering to exchange pictures ("pies") and to meet. Between 7 February and 18 April 2019 he communicated with two undercover police operatives (CEIU20 and CEIU21). During those communications he transmitted images and videos of child abuse material (including multiple category 1 items under the Interpol Baseline Categorisation), exchanged highly explicit written and spoken messages describing sexual acts he wished to perpetrate on, or witness with, very young girls, and engaged in detailed planning and logistical discussion that purported to arrange meetings with two alleged nine year old girls (see [4]-[7], [2]-[5] under preparatory offence).
How should multiple sentences be structured to respect totality and avoid crushing overall punishment where offences overlap?
Cited legislation
2 cited instruments linked from this judgment.
On 18 April 2019 he was arrested. An examination of a laptop seized from his home on 8 October 2019 revealed 347 child abuse images (122 category 1; 225 category 2) and 65 videos (50 category 1; 15 category 2). He pleaded guilty at the earliest opportunity to three offences: a New South Wales offence of possession of child abuse material (s 91H(2) Crimes Act 1900 (NSW)) and two Commonwealth offences, transmitting child pornography and using a carriage service to prepare or plan to engage in sexual activity with a child under 16 (see [1]-[2], [7]).
The sentencing judge, Bourke SC DCJ, assessed objective seriousness using the Hutchinson/Minehan factors, applied a 25% plea discount, considered the offender's subjective circumstances (psychological report, history of alcohol misuse and sexual deviance, limited employment prospects and social isolation), and imposed custodial sentences: fixed 9 months (possession) and head sentences of 1 year 6 months (prepare/plan) and 1 year 8 months (transmit). The Commonwealth sentences were structured with significant concurrency and combined with a recognisance release order under s 20(1)(b) Crimes Act 1914 (Cth) permitting release after 1 year 2 months subject to supervision and good behaviour for three years (see [3], [24], [26]-[29], [44], [48]-[53]).
Why the court decided this way
The court's reasoning rests on a few interconnected pillars.
Objective seriousness: The judge systematically applied factors drawn from the Court of Criminal Appeal authorities (Minehan and R v Hutchinson) to measure objective seriousness. These factors include whether images depict real children, age of children, nature and gravity of sexual activity, cruelty or physical harm, quantity of material, whether the possession is for personal gratification or dissemination, sophistication and planning, and risk of dissemination or of prompting others to offend (see [8]-[22]). In this case the material involved real children, included prepubescent victims and penetrative sexual acts (including an example of anal penetration of a child of about five years), substantial numbers of category 1 images and videos, and a sustained course of transmissions and planning over weeks. For the transmission and preparatory offences there was explicit textual and verbal material amounting to child pornography and specific planning to access nine year old girls (see [9]-[16], [24]-[29]). These findings led to the assessment that possession was objectively serious (though "towards the lower end" compared with the worst examples), and that transmission and planning offences were between slightly below middle to slightly below middle range respectively (see [25]-[29]).
Statutory markers and sentencing purposes: The judge treated maximum penalties as legislative indicators of seriousness (see [2], [26], [27]). He applied the statutory sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16A of the Crimes Act 1914 (Cth) for Commonwealth offences, which require consideration of deterrence, punishment and rehabilitation (see [30], [46]).
Plea discount and utilitarian value: He gave a 25% discount for an early plea to the NSW offence and, although Commonwealth practice lacks a standard percentage, applied the same discount to the Commonwealth matters because the utilitarian value, avoiding contested trials and witnesses giving evidence, was comparable (see [3]).
Preventive aim of preparatory offences: On the preparatory offence, the judge emphasised that the criminalisation targets preliminary steps to prevent escalation to actual abuse. Even if the offender said he did not intend to go through with the meetings, that does not mitigate the objective seriousness because the offence is designed to penalise preparation and planning (see [28]).
Totality and structure: With three offences spanning State and Commonwealth jurisdictions, the judge applied totality: some accumulation was warranted but significant concurrency between the two Commonwealth offences was necessary because of factual overlap, avoiding an excessive aggregate sentence (see [44]). He also structured release via a single recognisance release order for the Commonwealth sentences to provide supervision after an agreed custodial period (see [47], [52]).
Personal circumstances and risk: The judge took into account the offender's lack of prior record, difficult personal history, alcohol misuse, deviant sexual interest (as identified by a psychologist), and the limited weight that unsworn psychological reports are entitled to receive (Qutami), leading to guarded optimism about rehabilitation but concern about re-offending risk that justified supervision (see [31]-[43], [37]).
These components combined to produce the court's conclusion that full-time custody was the only appropriate response given the mixture of possession of highly exploitative material, repeated transmissions, explicit planning with purported young children, and the need for general and personal deterrence (see [44], [24]).
Before and after state of the law
Before this decision, sentencing judges routinely relied on the Minehan factors and the later R v Hutchinson refinements to assess objective seriousness in child abuse material cases. The statutory framework, sentencing purposes in s 3A (NSW) and s 16A (Cth), already required consideration of deterrence, rehabilitation and utilitarian discounting for pleas.
This decision applies those established principles to a factual matrix involving both possession and active preparatory and transmission conduct. It reinforces two settled points:
Preparatory communications and use of carriage services to plan sexual activity with a child attract significant objective seriousness even if the offender claims he did not intend to carry the plan out; the statutory aim is preventive (see [28]).
Early pleas justify a substantial utilitarian discount, and courts may extend a comparable discount to Commonwealth offences where the utilitarian value is comparable (see [3]).
The outcome does not change legal principles but exemplifies their application where material includes the most serious categories and where planning involves very young children. It confirms that custody is appropriate in cases combining substantial possession with active planning and explicit transmissions over time.
Key passages with plain-English translation
Paragraph [24]: "Offences involving the possession of child pornography are not victimless..." Plain English: Possessing child abuse images supports and perpetuates real-world exploitation; it is harmful and demands strong sentencing emphasis on deterrence.
Paragraph [3]: "The offender pleaded guilty at the earliest opportunity and he is entitled to a 25% discount..." Plain English: Because he admitted guilt early and avoided a trial, the court reduced sentence length by roughly one quarter.
Paragraph [28]: "This is not a matter that mitigates the offence because this offence is clearly aimed at targeting preliminary steps..." Plain English: Even if he said he did not intend to act, planning and preparatory steps are criminal on their own and are judged seriously, the law prevents people from moving closer to committing child sexual abuse.
Paragraph [44]: "I am satisfied... that a term of fulltime imprisonment is the only appropriate sentence..." Plain English: Given the facts, the judge decided only a prison term would adequately punish and deter.
Paragraphs [48]-[53]: Sentencing structure. Plain English: The judge gave specific dates and lengths for each sentence, then set a release scheme where, after serving a specified custodial period, the offender could be released under supervision and a good behaviour bond.
What fact patterns trigger this precedent
The decision is most directly relevant where multiple of the following features exist:
Possession of a large quantity of category 1 and/or 2 child abuse images or videos that depict prepubescent children, including penetrative sexual acts or anal penetration of young children (see [9]-[13], [24]-[25]).
Repeated transmissions of child abuse images or videos via internet platforms or carriage services to others over time (see [5]-[6], [26]).
Explicit written or verbal sexual descriptions amounting to child pornography combined with logistical/planning communications aimed at accessing very young children (see [26]-[29]).
A sustained course of conduct over weeks or months involving undercover or third-party communications that indicate planning and preparation (see [22], [28]).
Early guilty plea and agreed facts enabling a substantial plea discount (see [3]).
No prior criminal history but indicators of deviant sexual interest and alcohol misuse that limit mitigation and increase risk considerations (see [31]-[36], [42]).
Where that combination is present, this judgment demonstrates the likely acceptance that custodial sentences with supervised release will be imposed and that preparatory conduct will be treated as gravely as actual transmissions.
How later courts have treated it
This decision applies established sentencing authorities rather than innovating. It uses R v Hutchinson and Minehan to structure the objective seriousness analysis and cites Qutami to temper weighting of unsworn psychological material (see [8], [37]). Later courts assessing similar fact patterns would expect this judgment to be treated as an illustrative sentencing example: demonstrating how to quantify objective seriousness and balance totality, concurrency and plea discounts where State and Commonwealth matters overlap. It is therefore most likely to be cited for sentencing range and structural points (plea discount approach across jurisdictions, recognisance release orders after custodial period, and emphasis on the preventive aim of preparatory offences). Practitioners should treat it as persuasive district court authority for relatively substantial custodial outcomes where planning and transmission accompany possession of category 1 material.
Still-open questions
Quantifying plea discounts for Commonwealth offences: The judge applied the same 25% discount used for the NSW offence to Commonwealth offences by analogy, but there is no statutory or uniform Commonwealth benchmark. Future appellate consideration could clarify whether and when an equivalent uniform percentage is appropriate or whether discounts should be assessed case-by-case.
Double-counting between transmission and preparatory offences: The judge took care to avoid double-counting planning as both an element of the preparatory offence and an aggravating factor for transmission. However, precise limits on how much overlap justifies concurrency versus accumulation remain factual and may invite appellate refinement.
Role and weight of unsworn psychological reports: The court applied Qutami to temper reliance on unsworn psychiatric/psychological material. There remains scope for further guidance on the admissibility and weight of such reports in sentencing where corroborative sworn material is sparse.
Sentencing ranges for blended State and Commonwealth sentences: The decision structured sentences with specific commencement dates and a single recognisance release order. Appellate courts may in future provide more detailed principles for structuring multi-jurisdictional sentences so that release and supervision mechanics are consistently applied.
Rehabilitation and community protection balance: The judge opted for custodial sentences with supervised release. Ongoing questions persist about how best to align access to treatment programs in custody and on supervision with public protection and rehabilitation prospects, particularly where the offender expresses willingness to engage in treatment but carries a history of alcohol misuse and deviant interest.
This decision is an instructive application of established sentencing principles to a case combining significant possession, explicit transmissions and concrete preparatory planning to access very young children. The judge's reasoning and structured outcome provide a useful template for sentencing in similar fact patterns while highlighting areas where appellate guidance may further refine cross-jurisdictional sentencing practice.
Judgment (2 paragraphs)
[1]
sentence
Mr Pieter Bezuidenhout is for sentence today in relation to three offences. The first is a State offence of possession of child abuse material on 18 April 2019, pursuant to s91H(2) of the Crimes Act 1900 (NSW). The other two are Commonwealth offences, one of transmit child pornography which was committed between 7 February 2019 and 16 April 2019, and one of using a carriage service to prepare for or plan to engage in sexual activity with a child under 16 committed between 7 February and 18 April 2019.
The maximum penalty for the State offence is ten years imprisonment. A ten year imprisonment maximum also applies to the Commonwealth prepare or plan offence, whereas a 15 year maximum penalty applies to the transmit child pornography offence.
The offender pleaded guilty at the earliest opportunity and he is entitled to a 25% discount on the sentence for the New South Wales offence by reason of the utilitarian value involved in avoiding a contested trial and avoiding the need for witnesses to give evidence. Although there is no standard discount for the Commonwealth offences, I will apply the same discount on account of the utilitarian value in relation to those matters.
Turning to the facts which are the subject of an agreed document. In February 2019 the offender placed an advertisement in a classified website called Locanto which is similar to Gumtree or Craig's List. Locanto had a "personals" section in which users could post material or advertise services of a sexual or intimate nature. The offender's ad read:
"Teen insemination. Looking for all fathers, mothers or parents who have the fantasy of having and seeing their young teen daughter inseminated, cummed in. Only look for daughters from the ages of, well, you know, to about 18. If you are willing to join in, even better. Don't be shy. My walls have no ears and my mouth does not speak words. If you respond, I will share my pies then on email or drop box."
I note that in a number of the communications that are the subject of the agreed facts the word "pies" is used but it was agreed in the sentence hearing that that term generally should be understood as referring to pictures or "pics".
Turning firstly to the facts of the Commonwealth transmit offence. That offence which was committed between 2 February and 16 April 2019, involved the offender sending child abuse material over a carriage service which involved two persons who purported to be adults interested in the invitation raised in the offender's Locanto ad. However, in reality they were police officers. The transmit offence relates to transmissions made by the offender to those two officers who will be referred to herein as CEIU, which stands for Child Exploitation Internet Unit, operatives 20 and 21. The facts of the transmit offence involving CEIU20, which is part of the offence which is the sequence 2 transmit offence, are as follows.
Police, who were carrying out proactive investigations saw the offender's ad on 7 February 2019 and on that day a police officer CEIU20, although of course that was not the identification that appeared on the Internet communications, sent a message to the offender, "Sounds like we have similar interests," with multiple exclamation marks. In response, the offender provided his email address and also sent an image which involved child abuse material falling within category 2 of the Interpol Baseline Categorisation scale. Given that I will be referring to that scale a number of times in these reasons, I will just set out briefly what that involves.
The Interpol Baseline Categorisation scale is divided into two categories, category 1 being an image depicting a real prepubescent child where the child is involved in a sexual act or is witnessing a sexual act or the material is focused or concentrated on the anal or genital region of the child. Category 2 is other child abuse material that is illegal within New South Wales but does not fit within category 1. It includes a person who is or appears to be, or is implied to be, a child and is depicted or described in a way that reasonable persons would regard in all the circumstances as offensive, who is a victim of torture, cruelty or physical abuse, or is engaged or apparently engaged in a sexual pose or sexual activity, or is in the presence of another person who is engaged in that sort of activity, or is exposing the genital or anal area or, in the case of a female, the breast area.
Returning to the facts relating to the transmit offence, in emails sent on the evening of 7 February 2019 the offender said, "I would really love to find someone open-minded who is willing to share his or her daughter, niece or whatever with me," and, "As part of my trust, I have sent a pie." Attached to that email was a category 1 IBC, that is, Interpol Baseline Categorisation scale image.
On 11 February, this is four days later, the offender sent another child abuse material image, being a category 1 image, and on that same day he exchanged Skype details with the police operative CEIU20, and also sent another category 1 child abuse image. On 13 April 2019 a Skype chat occurred in which the offender sent a video containing a category 1 child abuse image and on 19 February 2019 the offender sent another category 1 item, this being a video saying, "I have a vid for you. Please except," which was clearly meant to be "accept".
Continuing with the offence of transmit, the circumstances of that offence also involved transmissions to another police undercover operative, this one using the identity CEIU21 but, as I have said, that was not the identity that was visible on the Internet, but is the manner in which that person will be referred to in these remarks. On 18 March 2019 police, using CEIU21, again logged into Locanto and responded to the offender's advertisement. The offender then provided his telephone number, after being requested to do so by the police officer. The next day the offender sent CEIU21 a text which amounted, by reason of its content, to the transmission of child pornography. It said:
"Main thing is as long as she enjoys it and trust us with her ... It would be awesome to know what you have done with her and she has done with you in detail ... If you don't want me to cum in her that is also good but it would be so good and hot if we can both play with her together ... Hope to make it a reality and not just stay as fantasy."
Six days later on 25 March 2019, CEIU21, in a chat over Locanto, said to the offender:
"I haven't actually fully penetrated her with anything other than my fingers ... Is that something you'd ... you know, if we did meet up, that you'd introduce?",
to which the offender replied in terms that amounted to child pornography:
"Well, we can try and see what happens ... It's not the ultimate goal. The ultimate goal is to give her pleasure and if I can lick her out, maybe play with my cock on her pussy, even that will be just fine as well,"
and,
"I'm pretty much easy-going. I'm not going to like ... like my ad says - teen insemination but it wouldn't be the ultimate goal. That's just putting the feeler out there,"
and,
"Mate, at the top of the fantasy, if I can put it like that - but it doesn't have to go there - it can be less than that, whatever the person is comfortable."
On 2 April 2019 the offender spoke by telephone with CEIU21 and said the following words which amounted to the transmission of child pornography:
"I'd like to see you lick her out - playing with her. I'd like to see you ... at least just put the head into her. If she's happy with that. I just like us to have a fun time ... If you would like me to just eat her out and you watch and you have jerk off ... the three of us just being in that sexual stimulation and enjoying each other,"
and,
"If she's willing to, she can suck me off ... whatever she's comfortable in doing ... like you said also just now, as long as she doesn't get hurt but enjoy it ... Later along the track, the three of us can play together instead of just watching each other."
Nine days later on 11 April 2019 the offender sent a message to CEIU21 through Locanto which also amounted to the transmission of child pornography:
"It was hard to say over the phone primarily because we've not met yet ... but I think it would be great to just be able to play with her and eat her out until she cums. It would also be awesome if she would suck me and swallow my cum if she's up for it. I doubt I will last long, given the fantasy of a young girl like that ... I am happy if you want to record it, provided our faces are covered to protect her and my identify. It be also great to do a 69. Ultimately, I would love to inseminate her, but given her age and the chances of pregnancy on her, a simple cream pie will do also. In other words, just cumming on her pussy ... It be awesome if she is into anal also or willing to try it."
On 16 April 2019 the offender sent police 14 images of child abuse material through Locanto chat. Twelve of those were category 1 and two were in category 2 of the Interpol Baseline scale.
Turning then to the facts of the offence of preparing or planning to engage in sexual activity. That is the second Commonwealth offence, being an offence under s 474.25C. This offence, which also involved the offender's interactions with CEIU20 and 21, was committed between 7 February 2019 and 18 April 2019 and related to acts done in preparation or planning for engaging in sexual activity with two fictitious nine year old girls. The offending which involved communications with CEIU20, commenced on 7 February 2019 with an email in which the offender asked whether CEIU20 had "any experience with the younger ones?" These communications continued via Skype chat on 11 February 2019 when the offender asked for a pic of a nine year old girl to whom the police operative suggested he had access. After being informed of the child's characteristics, the offender said he was "getting hard thinking about it" and asked, "How does she respond?" and, "Does she know you want to sex her and have someone join?" The offender also referred to his teen insemination advertisement and asked, "Would you be open to share her with me?" and added:
"I don't mean any harm at all. Will not go against your or her will or anything like that. If it is only me having a jerk over her, so be it ... but my ultimate fantasy is to have a real girl naked with her parents where he would cum on her or in her, even if it is just the tip of my cock."
On 13 February 2019 a further Skype chat took place in which the offender said he liked ages "from there," that is from nine, "to about fourteen". The offender then asked, "Okay, so how we gonna do this? Any ideas?", to which CEIU20 responded, "I think you come to mine and we meet there. Just want to know you're serious if we're going to do this." After indicating that he worked six days a week but had a two week holiday coming up, the offender said, "Yes, mate, I am serious and I can assure you my utmost privacy too ... unless she says something, you won't get a beep out from me." The offender also asked, "Do you have a pie," that is a pic, "of the girl just see, please?"
On 19 February 2019, that is six days later, the offender engaged in another Skype chat in which he asked for a pic of the girl and asked, "How's our little girl doing?" and:
"So where we gonna meet and what's gonna happen? I just want to get a picture of things. I will be honest ... I have no experience in it, meaning what we want to do ... so all I can think of is start with talking, then move to porn and go younger porn ... it is a great big fantasy of mine ... but I have no clue as to how to go about it,"
and,
"Though the ad said teen insemination, I would happy just to lick and kiss her all over and bring her to orgasm with my mouth. If I get to play with my cock over her clit, even better ... if I get to penetrate her, so much more better ... but if I get to cum in her OMG I will never ask for anything else."
The relevant preparatory actions involving the second police operative CEIU21 took place between 18 March and 17 April 2019. It again involved discussion of plans to engage in sexual activity with a girl who was said to be nine years old. On 18 March 2019 CEIU21 responded to the offender's advertisement, saying in a text message, "I might have what you're after n what we're both after. What's the lowest you'll go?" To this, the offender responded, "The younger the better, as long as dad, mum or both are in agreement and present - how old is she and give me some details please - yes, I am serious if you are too." After CEIU21 said he could "get his hands on a precious nine year old princess, is that too young?" the offender replied, "No, mate, not too young at all ... matter of fact, perfect coz they get to experience the joy and respond too."
The offender then supplied his mobile phone number after being asked to do so. The next day, 19 March 2019, CEIU21 telephoned the offender and said, "I'm not a dad meself ... but I can get hold of ... a little nine year old girl." To this, the offender responded, "Tell me have you played with her before?" and, "What's the chances she'll be talking?" In response, CEIU21 said, "No. I always buy her gifts after it ... I think it's become, you know, par for the course for her." After the call ended, the offender sent a text message to CEIU21 which said, "Was great chatting with you. Like you said, at least we know we are real and on the same page ... hope to make it a reality and not just stay a fantasy."
On 25 March 2019 CEIU21 sent a text to the offender, "Good news. The little one's coming over on the weekend." There was then a discussion about when the offender might be able to visit and meet the nine year old. Just over a week later, on 2 April 2019, CEIU21 told the offender by text that, "We'll have her the first week of Easter," and on 11 April 2019 CEIU21 told the offender that he would raise with the child the idea of going "somewhere over your way" but suggested that they should "decide on the day". To this, the offender replied, "Yeah, that's perfect to me ... I really can't wait for that day to ... actually happen".
The next contact was on 16 April 2019 when CEIU21 texted the offender saying, "Tomorrow afternoon, tomorrow evening - if that works for you," to which the offender replied, "Um, yeah, yeah, we can ... if you want I can email you a few pics and we can sort of put it on ... the computer ... on a loop." There was also discussion about bringing a condom and lube and an indication by CEIU21 that he would send a text with the address and where to park.
The next day, 17 April 2019, the offender was sent a text message with the location of a unit block at which to meet. However, the offender did not attend or respond to any phone contact. He later indicated that he did not attend because he had not received a text. Although another meeting was arranged for the next day, that is 18 April 2019, the offender was arrested before having the opportunity to attend.
The offender was arrested, as I have just said, on 18 April 2019 at the butcher shop where he worked. After being taken to Manly police station, the offender participated in an ERISP interview in which he told police, among other things, that he had never intended to "go through with it". When asked why he continued to speak in sexual terms about nine year old girls, he said it was just stupidity but also that "any man has got a fantasy of being with a younger girl". When asked if he had a sexual interest in a child, he said, "No, oh, I've got photos," but denied being sexually aroused by the conversations. However, later in his interview he acknowledged that he had been aroused to an extent but maintained that he did not want anything to eventuate, stating, "I know in the back of my head it's not gonna go through." He also told police, "Suppose at the end of the day it can be seen that I've got sexual tendency towards children but something like that will never eventuate."
On 8 October 2019 while the offender was in custody bail refused, a search warrant was executed at his home. A laptop computer was seized. That computer, after analysis, was found to contain 347 child abuse material images, 122 being category 1 and 225 being category 2. In addition, 65 videos were detected which involved child abuse material, 50 of them being within category 1 and 15 in category 2. The material found on this laptop is the basis for the offence of possess child abuse material, which is the State offence referred to as the sequence 10 offence.
It is necessary for me to make some assessment of the objective seriousness of each of the offences. In the R v Hutchinson [2018] NSWCCA 152 RA Hulme J set out a list of matters derived and updated from the earlier decision in Minehan v R [2010] NSWCCA 140 which are designed to assist sentencing judges in determining the objective seriousness of offences involving possession, dissemination or transmission of child abuse material. I make the following observations by reference to those matters in so far as they are relevant to the offences of transmit and possession in this case.
Firstly, the photographic and video material in the offences of possession, and those of the transmissions that included images, involved real children.
Secondly, I need to take into account the nature and content of the material, including the age of the children and the gravity of the sexual activity. In relation to the possession offence, sequence 10, these involved 347 still images, 122 of which were in category 1 and 225 in category 2 of the Interpol Baseline scale, as well as 65 videos, 50 of which were in category 1 and 15 in category 2. A sample of some of that material indicates that the children were mostly prepubescent up to teenage females displaying their genital areas, either posing alone or with other children or adult males, and at least one image which showed a female aged approximately five years being anally penetrated by an adult male penis. As to the Commonwealth transmission offence, which is sequence 2, this involved 15 images and two videos falling within category 1 and a further three images in category 2. The children were prepubescent or teenaged females, although two of the images depicted a child aged about five years. This material was fairly similar to the possession offence material and involved the children either displaying genitals, performing oral sex on an adult male or digital vaginal penetration. The transmission offence also involved written or verbal descriptions of sexual acts that the offender wished to witness or perform on or with a young girl, including the possibility of anal intercourse.
Thirdly in relation to the Hutchinson factors, the extent of any cruelty or physical harm discernible in the material. In this regard, most of the material in relation to both the possession offence and the transmission offence involved varying degrees of depravity, given the ages of the children, although there were some instances of penile or digital penetration of prepubescent girls and one example where a female aged about five years is being penetrated by an adult male penis.
Fourthly, the number of images or items and, in the case of possession, the number of different children depicted. The possession offence in this matter involved 347 still images and 65 videos. Based on the sample material viewed by myself, some of the images involved more than one child and so the precise number of individual victims cannot be determined with any accuracy. The Commonwealth transmission offence involved 15 images within category 1, three images in category 2, as well as two videos categorised as category 1 and as well the written and verbal descriptions of sexual acts.
Fifthly in relation to the Hutchinson factors, in a case of possession, the offender's purpose, whether it is for his own use or for sale or dissemination. The offender's purpose in relation to the possession offence was his own sexual gratification.
Sixthly, in a case of dissemination, the number of persons to whom the material was disseminated. As to this factor, which is of relevance to the transmission offence, the material was transmitted it seems to two persons, being the police officers using fictitious online identities.
Seventhly in relation to the Hutchinson factors, whether any payment or other material benefit was received, including the exchange of pornographic material. There is no evidence that the offender acquired any monetary or other benefit in relation to either the possession or the transmission offence. As to the transmission offence, it seems that the images were sent as part of the offender's preparation and planning to engage in sexual activity with a child and in an attempt to engage with the recipient and create trust.
In relation to the eighth factor referred to in Hutchinson, there is no evidence as to the proximity of this offender to those responsible for bringing into existence the material that is the subject of either offence.
The ninth factor is the degree of planning, organisation, sophistication and/or deception employed. The possession offence in this matter did not involve any of these elements, the material simply being found on a computer used by the offender. While it might be said that the transmission offence involved some planning and organisation, in my view, this is better categorised as an aspect of the sequence 11 prepare or plan offence for which the offender is also to be sentenced and it is important that I avoid double-counting this aspect on both offences.
The tenth factor referred to in Hutchinson is the age of any person with whom the offender was in communication. This factor is of relevance to the transmission offence, which involved an apparent belief by the offender that he was, in each case, communicating with an adult male.
The eleventh factor is whether the offender acted alone or in a collaborative network of likeminded persons. It appears that in this case the offender was acting alone.
The twelfth factor is any risk of the material being seen or acquired by vulnerable persons such as children. There is no evidence to conclude that either the possession offence or the transmission offence involved a risk of this sort.
The thirteenth factor is any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. This risk arises in relation to the transmission offence, given that the offender's apparent purpose in transmitting the material was to encourage a person he believed to have similar interests to engage in actions amounting to child sexual abuse.
The fourteenth factor referred to in Hutchinson is any other matter bearing upon the objective seriousness of the offence. It is relevant to note in relation to the transmission offence that it was not a temporary lapse of judgment but a course of conduct which took place over a period of about two months.
Turning specifically to my characterisation of the objective seriousness of each of the three offences.
I commence with the "possession" offence, that being the State offence. That offence carries a maximum penalty of ten years, which is not only a sentencing guidepost but an indication that it is an objectively serious offence. As the courts have said many times, offences involving the possession of child pornography are not victimless. Possessing such material feeds a market for the continued corruption and exploitation of children. This sort of material cannot come into existence without the exploitation and abuse of children somewhere in the world, often in underdeveloped or disadvantaged countries. Those who make use of the product feed on that exploitation and abuse, and often on the poverty of the children involved. It is for these reasons that general deterrence is of particular significance. The harm involved is increased by reason of the fact that in many cases the images will or may remain on the Internet, able to be viewed by others, for an indeterminate period of time with the potential to further degrade and cause psychological harm to victims. While this State possession offence is not within the most serious category of this type of offence, it is still an objectively serious example, given the particularly young ages of some of the children, and given that some of the images show penetrative sexual activity, with at least one image showing the anal rape of a five year old girl.
Having had regard to the various Hutchinson factors and all the facts relating to this offence, it seems to me that, although the quantity and nature of the material cannot be described as low or trivial, the objective seriousness is towards the lower end as compared with other offences of this kind.
Turning then to the objective seriousness of the "transmit" offence which is sequence 2. The assessment of the objective seriousness of this offence starts with the maximum penalty of 15 years for this Commonwealth offence, which is a clear legislative marker of its seriousness. As I have said, maximum penalties are of course an important legislative guidepost to which I must have regard. The images that were transmitted were of a broadly similar nature to those involved in the State possession offence involving actual children and this offence also involved the extremely explicit descriptions, which themselves amounted to child pornography, of the sexual acts that the offender wished to perform on or with a potential real young victim. In total, he transmitted 18 images and two videos and described in words over four separate days various other sexual acts which amounted to child pornography. This was not an isolated aberration but occurred over a period of about seven weeks. I regard this offence as slightly below the middle range of objective seriousness.
Turning then to the objective seriousness of the Commonwealth "prepare or plan" offence, being sequence 11. As I have already noted, the maximum penalty for this offence is ten years imprisonment, which clearly marks it also as an objectively serious offence. While the offending did not involve any real children, that does not lessen the reprehensible nature of it. The seriousness of the offence is indicated also by the fact that the communications involved plans or preparations concerning sexual activity with very young girls and specific discussions about obtaining access to and engaging in sexual activity with two nine year old girls.
It is true that the offender told police that he had never intended to "go through with it" and he did not attend a proposed meeting. In these circumstances, I cannot be satisfied beyond reasonable doubt that he had formed the intention to have actual physical contact with the potential victims. However, this is not a matter that mitigates the offence because this offence is clearly aimed at targeting preliminary steps such as those engaged in by the offender so as to avoid the risk that a person who might not yet have made a final decision about whether, when and how to engage in sexual activity with a child might indeed be tempted to or might in fact "go through with it", whether by physical or electronic contact. It is also relevant to objective seriousness that the preparations in this case involved discussions about the possibility of the child victims being subjected to sexual abuse by the offender and another male simultaneously.
Having regard to these matters, I assess the objective seriousness of this offence as slightly below the middle range.
In determining the sentence for the Commonwealth offences, I am required to have regard to any relevant matters listed in s 16A of the Crimes Act 1914 (Cth). Most of these, of course, such as the nature and circumstances of the offence, plea of guilty, deterrence, adequate punishment, rehabilitation and the offender's subjective circumstances, involve a recitation of matters which must be taken into account in any sentencing exercise, be it State or Federal. I have taken those matters into account in so far as they are relevant in determining the sentences for those Commonwealth offences. In addition, however, s 16A subs 2(c) is of relevance, given that each of the Commonwealth offences involve a course of conduct committed over a number of weeks. They did not involve a temporary lapse of judgment. I have been careful, however, in relation to the prepare or plan offence, not to double-count this factor, given that a course of conduct will usually or often be an inherent aspect of a preparation or planning offence.
Turning to subjective matters relating to the offender, I note that he was born in Pretoria, South Africa is now aged 44, and was 43 at the time of the offences. According to the history given by him to the psychologist Mr Sheehan, his family were poor but not disadvantaged and there were no domestic problems such as violence, drug use, mental illness or criminality. His parents moved to Australia when the offender was about 22 but the offender remained in South Africa until he migrated to Australia in 2007 when he was aged 30. He is now an Australian citizen.
He completed year 12 in South Africa and after that he reported a solid but varied employment history. This included working as a bank teller and as a type of private security officer. This latter job he described as a highly dangerous occupation in which he carried a firearm which he would be forced to discharge on a weekly basis. He described multiple traumatic situations, encountering death and injury, having his life threatened, as well as being shot in the arm on one occasion. He told the psychologist that the stress of this job, which he held for about ten years, eventually began to overwhelm him, such that he would shake uncontrollably when attending incidents. Upon moving to Australia, he worked in metal fabrication for about a year and then at an abattoir in Tamworth for six years before commencing an apprenticeship in butchery, which he completed in 2017. He has been unable to obtain work since his arrest and now receives a Newstart allowance. He wishes to return to work in butchery, which he described as his passion.
The offender reported a limited history of long-term intimate relationships, with the only cohabiting relationship lasting about one and a half years when he was in his early thirties, which resulted in the birth of a son who is now nine years old but with whom the offender now has no contact, despite his attempts to have contact. He told the psychologist that he initially identified as exclusively heterosexual but later regarded himself as bisexual. He also told the psychologist that he spent a great deal of time each day looking at pornography and eventually started advertising for "threesomes" and eventually became involved in viewing nonconventional sexual themes such as incest and other child sexual abuse material. He also told the psychologist that in the period leading up to his arrest he was drinking excessively, including 12 or more cans of beer per day, and that his pornography use often coincided with his being affected by alcohol. He acknowledged his offences to the psychologist and said that since his arrest he has accepted that he has played a role in the re-abuse of child victims by sustaining the market for child exploitation. According to the psychologist, he did not try to minimise the seriousness of his offences. The psychologist found no evidence of psychiatric disorder and although he speculated that the offender may have previously had post-traumatic stress disorder, any traumatic symptoms had abated with time.
The offender told the psychologist that his arrest resulted in significant damage to his relationship with his family. Although his parents have apparently maintained some contact, he described this as "awkward" and his parents are not prepared to have him live with them. This is a matter which he said causes him some distress and he hopes that in future this relationship will improve.
The psychologist concluded that the offender meets the criteria for alcohol use disorder but that this is mild and in partial remission. He also concluded that the offender has a deviant sexual interest towards children and that he still has more to learn about the processes which led to his offences and how to avoid further offending. The psychologist suggests that this will best be undertaken by treatment in which the offender expressed interest and he would, according to the psychologist, be a good candidate. The psychologist opines that the offences may have been the product of a combination of sexual deviancy and preoccupation, together with alcohol abuse.
In my view, these factors, together with the offender's social isolation and his desensitisation to deviant material, provides some explanation, although of course no excuse, for his offences but does little to reduce his moral culpability, which is relatively high. It remains of some concern that, according to his report to the psychologist, the offender continues to consume fairly significant levels of alcohol.
As acknowledged by counsel for the offender, the weight I can place upon the offender's self-report to the psychologist is subject to the principle in the Court of Criminal Appeal's decision in Qutami [2001] NSWCCA 353 which requires that I exercise caution in relation to subjective material which is not supported by evidence on oath. However, it seems to me that I can place some weight on the report and, in particular, the matters to which I have referred, given that the offender acknowledges his offences and given that the report does not seek to excuse or minimise the offences.
After his arrest on 18 April 2019, the offender remained in custody until being released on bail on 11 October 2019. Since December 2019, he has been living in a boarding house in the Newcastle region. A director of Newcastle Affordable Housing, which operates that boarding house, described the offender as being a great tenant who is welcome back in the premises in the future.
The offender has no prior criminal history and I also accept that his prior good history did not play any part in the offending. His history entitles him to some leniency, although the extent of that leniency is reduced somewhat given that prior good character is given less weight in offending of this sort.
It is positive and indicative of some remorse that the offender told the psychologist that he had not thought about the potential consequences to a nine year old intended possible victim but had focused only on himself and now accepts that he had played a role in the re-abuse of child victims. While I take this into account, the weight I attribute to it is reduced because it was not supported by evidence on oath.
I do not however regard the offender's pleas of guilty as indicative of any significant contrition or remorse because in my view his pleas were entered in the face of a strong Crown case.
The psychologist concluded that the offender would be considered on the basis of the revised Static-99 actuarial test to be in the moderate to low or average risk category for sexual re-offending. Given the fact the offender is as yet untreated, is still using alcohol, has no firm employment prospects, and is isolated from family, it is difficult to make a reliable assessment about prospects of rehabilitation and risk of re-offending. It seems to me that he is at least a moderate risk and that his prospects of rehabilitation might be described as guarded. His future prospects will very much depend on his efforts to seek treatment, to regain employment and to re-establish positive relationships with family and friends.
In my view, both he and the community will benefit from the offender receiving supervision over a significant period of time once released to parole.
It is important, given that I am sentencing for three separate offences, that I apply the principle of totality and ensure that the overall sentence, while giving due weight to the purposes of sentencing, including deterrence, is not one that can be regarded as crushing. In my view, there is a need for some accumulation among the three sentences but a significant degree of concurrency between the two Commonwealth matters in particular, given that the facts of those matters involve a good deal of overlap. While I accept, as submitted by counsel for the offender, that a custodial sentence will not always be required in cases of offending like that before the Court, I am satisfied, for the reasons I have set out and having regard to the importance of both personal and general deterrence, that a term of fulltime imprisonment is the only appropriate sentence in relation to each of the offences.
I note that the offender has already served a period of five months and 24 days custody and I have taken this into account in determining the penalty to be imposed and the commencement dates for any sentences.
I have had regard, in determining the sentence for the State offence, to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. In sentencing for the Commonwealth offences, I have had regard to the requirements of pt 1B of the Commonwealth Crimes Act.
I intend to impose a fixed term in relation to the State offence and individual terms for the two Commonwealth offences. Given the structure of those sentences, I will not impose a non-parole period in relation to the State offence, given that I will be imposing a single recognizance release order in relation to the Commonwealth sentences. In determining the length of that recognizance release order, I have had regard to all of the matters to which I have referred but also the fact that this is the offender's first time in custody and the desirability of his being subject to supervision once released.
In relation to the sequence 10 offence of possession, I impose a fixed term of nine months' imprisonment. That will date from 12 December 2019, having regard to the period of time the offender has already spent in custody. That term will, therefore, expire on 11 September 2020.
In relation to the sequence 11 offence, that being the Commonwealth prepare or plan to engage in sexual activity with a child under 16, I impose a head sentence of one year 6 months to date from 12 February 2020. That head sentence will, therefore, expire on 11 August 2021.
In relation to the sequence 2 offence of transmit child pornography, I impose a head sentence of one year eight months to date from 12 March 2020. That head sentence will expire, therefore, on 11 November 2021.
Of course, although I have not said it yet, I convict the offender of each of the offences.
I order, pursuant to s 20(1)(b) of the Commonwealth Crimes Act 1914, in relation to the two commonwealth offences, that the offender be released to recognizance without security after serving one year two months of those sentences to date from 12 February 2020 on the condition that he be of good behaviour for a period of three years and that he be subject to the supervision of a Probation officer and accept all reasonable directions of that officer. A further condition of that order is that the offender not travel interstate or overseas without the written permission of a Probation officer. That bond, therefore, will be due to commence on 11 April 2021 and will expire on 10 April 2024.
Mr Bezuidenhout, the sentence I have imposed is one which involves fulltime custody but you will be eligible for release after serving one year and two months to date from, as I have said, 12 February this year, which means that you will be eligible for release on 11 April 2021. On that date you will be expected to enter into a bond to be of good behaviour for three years from that date and be subject to supervision of a Probation officer.
By consent, I make the forfeiture order in relation to the offender's Acer brand laptop.
[2]
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Decision last updated: 07 September 2020
Convicted on three offences. Sentenced to a fixed term 9 months imprisonment (possession, sequence 10) from 12/12/19 to 11/9/20; Commonwealth prepare or plan offence (sequence 11) head sentence 1 year 6 months from 12/2/20 to 11/8/21; transmit child pornography (sequence 2) head sentence 1 year 8 months from 12/3/20 to 11/11/21. Offender to be released to recognisance without security after serving 1 year 2 months (from 12/2/20), with good behaviour bond for three years and supervision by Probation officer; forfeiture of Acer laptop ordered (see [48]-[53], [54]).