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Cases Cited: Crowder (a pseudonym) v The King [2024] VSCA 211
DPP (Commonwealth) and DPP (Vic) v Garside [2016] VSCA 74
DPP (Cth) v Gregory (2011) 34 VR 1
DPP (Cth) v Zarb [2014] VSCA 347
Elwdah v R [2024] NSWCCA 150
Gulyas v Western Australia [2007] WASCA 263
Imbornone v R [2017] NSWCCA 144
Jackson v R [2020] NSWCCA 230
Markarian v The Queen (2005) 228 CLR 357
Mertell v The King [2022] ACTCA 69
Minehan v R [2010] NSWCCA 140
R v Bredal [2024] NSWCCA 75
R v Cardwell [2021] QCA 112
R v De Simoni (1981) 147 CLR 383
R v Fuller [2010] NSWCCA 192
R v Howard [2024] NSWDC 514
R v Hunter [2022] NSWDC 631
R v Pacey [2025] NSWDC 53
R v Porte [2015] NSWCCA 174
R v Qutami (2001) 127 A Crim R 369
R v Smith (1987) 44 SASR 587
R v Sykes [2009] QCA 267
Wong v The Queen (2001) 207 CLR 584
Young v R [2021] SASCA 51

Category: Sentence

Parties: Rex (Crown)
John Benedict Brooks (Offender)

Representation: Counsel:
S Hoad (Crown)
J Sabharwal (Offender)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Matt O’Brien Solicitors (Offender)

File Number(s): 2023/00181386

Publication restriction: N/A

JUDGMENT

1. John Benedict Brooks appears for sentence following his pleas of Guilty to three offences under the Commonwealth Criminal Code. Two offences are charged pursuant to s 474.22(1) of the Criminal Code and the third offence is charged under s 474.22A(1) of the Criminal Code*.*

2. The first count relates to an offence of use of a carriage service to transmit child abuse material; the second alleges use of a carriage service to access child abuse material; and the third count relates to use of a carriage service to possess or control child abuse material. Each offence separately carries a maximum penalty of 15 years imprisonment. The maximum penalty operates as a yardstick in the determination of an appropriate sentence.

3. The offences arose from the Australian Federal Police executing a search warrant on 6 June 2023 pursuant to s 3E of the Crimes Act 1914 (Cth) upon the residence of the accused at an address in Cooma. A search of electronic devices at the home of the offender yielded a total of 212 files deemed to be child abuse material. The offender told police that he had obtained these files through the use of a carriage service, that is, over the internet, and had saved the material onto his personal devices including a desktop computer, a 16GB USB drive, and also an external hard drive.

4. The offender was found to have transmitted and accessed child abuse material via a number of Dark Web applications, as well as encrypted messaging applications and chat rooms.

5. In offending of this type, I do not see the necessity of identifying the particular applications which are named in the Agreed Statement of Facts. In my view, publicising the names of such websites and applications has the potential to provide easier access for others of similar inclination to the offender. I similarly do not propose to go into a detailed description of the images or files located by police. I share the previously strongly expressed views of her Honour Judge Tupman of this Court regarding providing prurient gratification to others who may read the detail of the judgment (see R v Hunter [2022] NSWDC 631 at [37]). It is sufficient to note that the children depicted in various of the images and files which were retrieved ranged in age from approximately 14 years of age, down to infants.

FACTS AND CHARGES

6. Count 1 is an allegation of transmitting child abuse material. The Agreed Facts set out a conversation via a chat function on a web application between the offender, using the pseudonym “John Brown”, and an unknown person using the name “Richard Small”. Two images of child abuse material are said to have been sent by “Richard Small” which were followed by messages in text from the offender to “Richard Small” about the images. These communications occurred on 27 June 2022.

7. Count 2, which is an offence of accessing child abuse material, related to the offender having communicated with an unknown person earlier on the day that the warrant was executed, namely 6 June 2023. The offender admitted regularly using the identified application to engage in text-based roleplay with other users. The JPEG image which was open was estimated by the offender to be of a child between 13 and 15 years of age. A paragraph in the Agreed Facts described the child depicted in the image as being a pre-pubescent female child, estimated as being approximately between 10 and 12 years of age.

8. An interrogation of the internet browser on the offender’s desktop computer revealed a number of bookmarked websites which contained child abuse material. Police observed two saved bookmarks which, when accessed, resolved to websites containing child abuse imagery depicting the rape of male and female children between approximately 4 and 10 years of age by adult offenders. It is relevant to observe that the described depictions are drawings, cartoons, or animations of the actions described. Notwithstanding the earlier description in paragraph 20 of the Agreed Facts describing the ages of the illustrated victims as between 4 and 10 years of age, paragraph 22 describes the cartoons or animations involving sex with children described as between 15 and 16 years of age.

9. Subsequent forensic examination of the desktop computer located a screenshot dated 22 September 2021, which featured a website described as a paedophile chatroom. The offender advised police that the website had been shut down 3 to 5 months earlier.

10. Further forensic examination of the desktop revealed earlier access on 6 June and the day prior, 5 June 2023, as having been used to access files identified as child abuse material. One of the images is recorded in the Agreed Facts as being a description from the “police informant”. It describes an image of a female approximated to be 8 years of age sitting nude on a toilet. The description indicates that her breasts and vagina are exposed to the camera and the female is looking into the camera as if posing for the image.

11. The second image recovered was described by the “police informant” as Category 1 which is a broad categorisation relating to real children who are pre-pubescent in a varying number of different circumstances ranging from the imagery being concentrated on the genital region of the child, to the child being actually involved in a sex act. The description of this file by the “police informant” was conforming to Category 1 but is not otherwise described.

12. The third count in respect of which the offender appears for sentence relates to the possession of child abuse material. The first image described is derived from the same application initially described with respect to Count 2. The child abuse material described as having been accessed in Count 2 is also the subject of the separate allegation of possession of child abuse material. Five files were found on the hard drive of the desktop computer. Three of them appear to be single image screenshots or downloads of a single image. One file was described as a 48-second compilation video featuring a montage of sexual interaction with a baby.

13. With respect to the application which had been utilised for the conversation on 27 June 2022 with the person using the name “Richard Small”, the two images sent to the offender in respect of which he responded by typing words in text and which form the basis for the charge in Count 1, are described as part of the material relied upon for the third count of possession of child abuse material. The images had been retained within the conversation which in turn had been retained on the relevant application.

14. Police also conducted a forensic examination of the external hard drive which was seized. It contained nine images determined to be child abuse material. Six files are described as falling within Category 1 and included what was described as erotically posed victim children ranging in age from about 6 to 8 years of age and clearly displaying what is described in the Agreed Facts as their breasts and vaginas. Some images were described as depicting acts of fellatio by a 12-year-old female on an adult male. An indicative description of the Category 2 material which comprised three images was described by the “police informant” as an image of a female aged approximately 6, lying on a bed completely nude with legs open.

15. A forensic examination of the 16GB USB drive revealed two image files and 44 video files determined to be child abuse material. The 46 files were categorised according to the INTERPOL Baseline Categorisation Scheme as Category 1; 33 files, and Category 2; 13 files. The general summary of the material described children ranging in age from about 1 to 14 years of age, clearly depicting their bodies including genitalia in erotic poses. The general description of the videos were said to depict anal, vaginal and oral rape of both male and female victims by both male and female adult offenders. More detailed descriptions by the person described as the “police informant” included a description of fellatio by an apparent 8-year-old female on an adult male as well as anal penetration by another adult male.

16. Further similar descriptions were described in detail by the “police informant” with respect to a separate video file.

17. Both Mr Hoad, solicitor on behalf of the Crown, and Mr Sabharwal, counsel for the offender, agreed that an assessment of the objective seriousness of the offending falls toward or below the mid-low range. I agree with that assessment.

SUBJECTIVE FEATURES

18. The offender was born in August 1953. He was 70 years of age at the time of the commission of some of the offences and his offending conduct had, on the evidence which has been tendered, extended over a period of approximately two years. The most detailed account of his subjective background has been provided in a Psychological Assessment Report dated 7 October 2024 from Mr Matt Visser, a Clinical and Forensic Psychologist.

19. The offender presented as a man who appeared older than his stated age. The psychologist gained a general impression that he was truthful in his reported history. The exception to that was when talking about the offences during which time he gave what the psychologist described as a somewhat confused and inconsistent story.

20. The offender was born in Cooma as the younger of two siblings. His older sister, with whom he was close, died at the age of 21. His parents had apparently separated and from the age of 18 months he grew up with his grandparents. While his father visited occasionally from Queensland, where he lived, they were not close in their relationship. He had no contact at all from his mother after being placed with his grandparents until shortly before her death years later.

21. He described his grandmother as a “total bitch” and described her physical violence towards his grandfather as well as towards himself and an uncle. He gave examples of physical discipline being administered when he would misspell words and also being made to stand on the front deck.

22. In contrast to the relationship with his grandmother, he described his grandfather as the “total opposite.” He was said to be kind, caring, and engaged.

23. They lived on a farm and he attended primary school in Cooma. He struggled with academic work and had few friends. He was occasionally picked on. After completing Year 6 he spent one term in high school in Cooma before being transferred to a boarding school at Goulburn.

24. Of significance in an ultimate understanding of the offender’s psychological make-up, he described to the psychologist having been “sexually touched” by the parish priest on two or three occasions. He told the psychologist that he had informed his grandmother and her response was to give him “the greatest flogging of his life.” Other than speaking to a psychologist who he had seen many years later for treatment with respect to experiencing distressing dreams in the early 2000’s, he had not disclosed this information to anyone before the clinical psychologist retained for the present proceedings.

25. He left school at the end of Year 7 (or First Form as it would have been at that time). He completed no further formal education after leaving school.

26. I do note in passing that he is also described as having left school at around the age of 15. If accurate, that must have been at least the end of Year 8 or partway through Year 9 or Third Form.

27. As a teenager he apparently moved to Sydney where he worked in a horse stable. At the age of 17 he moved back to the Canberra region where he began shearing sheep. He continued with that line of work for approximately 15 years as well as doing other seasonal or short-term work labouring or in a sawmill.

28. At the age of 21 he commenced a relationship with a woman who in due course became his wife. They had two boys and remained married for approximately 20 years. The marriage broke up after his wife got a job working at Cooma Correctional Centre where she fell in love with one of the inmates. She left the marriage to begin a relationship with that man. The offender’s two sons are now respectively 48 and 50 years old.

29. The offender described both of his sons as having done well in general. Neither of them have had any issues with alcohol or drugs and each of them have children. He is closest, he recounted, to the eldest two grandchildren of 10 in total, they currently being 25 and 27 years of age and living in Canberra.

30. The offender described having been employed clearing the roads of ice and snow in the winter. He had that employment between about 1981 and 1986. This was during his late 20s up until his mid-30s.

31. In 1986 the utility vehicle that he was driving hit a patch of black ice and rolled a number of times. He suffered substantial back issues which continue to impact him. He described having had five surgeries including his neck and part of his lower back being fused. He continues to experience pins and needles in his legs and a recent attempt to remove the plate in his neck was unable to be successfully achieved.

32. A letter from Dr Arnold, which is included in the defence tender bundle, confirms the history of ongoing chronic pain and disability from lower back and shoulder injuries. Dr Arnold, I should observe, is the treating General Practitioner.

33. Following the initial surgeries to his spine he was advised that he would never work again. He told the psychologist that he was determined to do so and in 1999 obtained a job setting up a timber factory. He did relatively well and was asked to continue working at the timber factory after the setting up was complete. He continued to work there for approximately 2 years until falling off a forklift.

34. This accident led to knee surgery for a shattered kneecap. He was prescribed narcotic medication at this time. His patella was subsequently removed in 2004. He has been unable to pursue employed work since and was placed on the disability support pension.

35. In 2007 he was referred to a pain clinic for ongoing treatment including spinal nerve ablations with respect to his cervical and lumbar difficulties in his spine.

36. At some stage after the separation from his wife, the offender developed a relationship with a woman in Melbourne. He met her through a born-again Christian church and they were engaged after dating for a period of approximately 18 months. He described to the psychologist that they were both heavily focused on the past and the church “dictated what you read, who you saw, what you thought.” No detail of the particular sect or religion was described but the relationship was called off and he returned to Cooma.

37. In 2008 he suffered a serious injury to his shoulder which led to an operation to repair his left shoulder joint in 2010. He thereafter received bilateral cortisone injections to both shoulders.

38. In 2014 and 2015 he sustained serious surgical interventions for both his shoulder and spinal difficulties. These included a left shoulder acromeoplasty and a rotator cuff repair and also an L4/5 discectomy and an L5 bilateral Rhizolysis.

39. The offender has subsequently undergone several attempts at surgical revision. These have included unsuccessful attempts to remove the fusion plates at the site of his lumbar-sacral fusion in 2019.

40. In 2022 he underwent a right shoulder replacement.

41. His treating General Practitioner, Dr Arnold, describes the ongoing management of his chronic pain including regular doses of Ordine, an opioid analgesic medicine containing morphine hydrochloride. He also has regular steroid injections and spinal nerve ablation.

42. A letter from Doctor Anandhi Rangaswamy from the ACT Pain Centre to a surgeon, Doctor Peter Varga of the Pain Management Unit at the University of Canberra Hospital, confirms a deal of the material set out by the General Practitioner in relation to the ongoing treatment of the offender for chronic pain.

43. Dr Arnold also describes the offender’s ongoing treatment for diabetes, asthma, hypertension, and benign prostate hypertrophy. In addition, the doctor described a presumed recent CVA, that is, a presumed stroke.

44. The report from the General Practitioner also described the use of a CPAP machine for sleep apnoea and in more recent times antidepressant medication and the offender suffering a high level of anxiety.

45. The General Practitioner expressed the view that the offender possesses limited personal skills and personal resilience to adjust to his prospective incarceration. She expressed a concern that he could manifest a high level of somatised pain and dysfunction which could trigger bowel obstruction in particular. He had been treated for a bowel obstruction in 2024 and had undergone a colonoscopy for the removal of polyps.

46. The psychologist Mr Visser specifically expressed the opinion that a custodial sentence was likely to impact the offender more significantly than an average member of the community. The psychologist opined that a combination of increased depression/weight loss, and a broad range of physical health conditions could place the offender at physical risk. I take that to be a reference to his physical health conditions.

47. The Crown has tendered a Structured Case Note for the Sentencing Assessment Report which had been ordered. The purpose of this consultation was to assist in the prediction of sexual recidivism and to make comment on the offender’s treatment needs, risk considerations and suitability for sex offender programs within Corrective Services NSW. Such consultation is based on file review and liaison only. Relevant information noted that following the discovery of the 212 files deemed to be child abuse material, the offender, after being cautioned, admitted to accessing the Dark Web for the purposes of viewing pornography and engaging in chat rooms whilst using a pseudonym.

48. In an interview with Community Corrections, the offender accepted responsibility for his offending. He explained that he had been lonely, particularly during COVID, and sought companionship on the internet. He said he became addicted to the internet and would spend 10 to 12 hours online per day. He denied watching videos for his own sexual gratification, he said that he spoke with women who used the videos for their own sexual gratification. He said that he had erectile dysfunction and was in pursuit of companionship. He said that he felt embarrassed and ashamed about his actions.

49. His risk of sexual reoffending was assessed using the Child Pornography Offender Risk Tool (CPORT): Version 2. He scored 2 on the CPORT which was described as an average score. The assessment was that his offending behaviour may have occurred in the context of intimacy deficits and isolation or loneliness where he has used child abuse material and pornography to cope. He was assessed as having a likely low recidivism risk compared to other sexual offenders and would accordingly not be eligible for sex offender programs offered by Corrective Services in the event of him receiving a custodial sentence. In the event of him receiving a non-custodial sentence, he was recommended to be referred to Corrective Services NSW Psychology for further assessment related to his dynamic risk factors. That assessment was under the hand of Geraldine Haywood-Mercer, the Senior Psychologist at Cooma Correctional Centre and Parole.

50. A Sentencing Assessment Report was prepared by Diana Ghali, the Senior Community Corrections Officer at Cooma/Queanbeyan Community Corrections. His current circumstances were noted as him having moved to reside with his son in stable accommodation located in Cooma while the offender’s own property was being advertised for sale. He was noted to have accepted responsibility for his offending and having acknowledged the wrongdoing of his actions. He was assessed as minimising his level of responsibility and claiming to not have watched videos of females being abused. He did however acknowledge that he watched videos of underage girls but denied receiving sexual gratification from this.

51. His ineligibility based on the low assessment of his risk of recidivism was agreed by Ms Ghali to render him ineligible for Corrective Services NSW sex offender programs. The offender was recorded as demonstrating an understanding that pornographic videos of underage girls are often made without their consent. He stated that he felt ashamed and embarrassed by his actions. He was amenable to engage in psychological intervention and indicated his willingness to engage in any intervention deemed appropriate by Community Corrections. He was described as being respectful and forthcoming with information and compliant with his appointments with Community Corrections.

52. He was assessed pursuant to the Level of Service Inventory-Revised as having a low-medium risk of reoffending.

53. It is appropriate to refer to an additional aspect of Mr Visser’s report. After setting out the basis for his testing and opinion with respect to the Major Depressive Disorder, Mr Visser, under the heading of “Another Perspective” describes a detailed conversation held with the offender’s son. He confirmed that his father now lived on the son’s property. He described his father as pretty much a loner but that he currently assists with work on the farm, working from “dawn to dusk*”*.

54. The significance of the offender now residing with his son is that he no longer has any access to the internet. The offender advised Mr Visser that he no longer uses a computer.

CONSIDERATION

55. I refer to the general principles applicable to sentencing for Commonwealth offences. The Court is required to sentence the offender in accordance with Part 1B of the Crimes Act 1914 (Cth). The overarching requirement imposed by that part of the relevant legislation is that the Court must impose a sentence which is of a severity appropriate in all of the circumstances of the offence.

56. The provisions set out in s 16A(2) of the Commonwealth Crimes Act require a Court to consider the matters itemised and listed in that section to the extent that they are relevant and known to the Court. Section 16A(2)(k) stipulates that the Court must ensure that the offender is adequately punished for the offending.

57. Common Law principles including proportionality and totality also apply. A Court is required to proceed by an instinctive synthesis of the relevant considerations rather than adopting a multi-stage approach. Such was made clear by the High Court in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 228 CLR 357, and by the Victorian Supreme Court in DPP (Cth) v Gregory (2011) 34 VR 1, amongst other cases.

58. The maximum penalty as I have already indicated for each of the offences is 15 years and that operates as a relevant legislative yard stick.

59. RA Hulme J in Minehan v R [2010] NSWCCA 140 set out a number of factors of relevance to an assessment of the objective seriousness of offences involving the possession or transmission of child abuse material. These include whether actual children were used in the creation of any of the material; the nature and content of the material including the apparent ages of children and the gravity of the sexual activity portrayed; the extent of any cruelty or physical harm occasioned to children that may be discernible; the number of images or items of material and in cases of possession, significance lies increasingly in the more substantial numbers of different children depicted. In the case of possession, consideration as to whether the purpose of possession was for the personal use of the offender or whether it was for sale or dissemination.

60. The Crown’s written submissions remind the Court to be cautious in relation to the transgressions and to bear in mind the principles articulated in the High Court in R v De Simoni (1981) 147 CLR 383, that is, elevating particular offending to take into account more serious factors that would require a more serious offence being charged.

61. In the case of transmissional dissemination, the factor identified by RA Hulme J was the number of persons to whom the material may have been disseminated or transmitted.

62. The next factor identified by his Honour in Minehan was whether any payment or other material benefit was made, provided or received. Next was the proximity of the offender’s activities to those responsible for bringing the material into existence and RA Hulme J was there adverting to those closest or closer to the actual production of movies or videos.

63. His Honour next itemised the degree of planning, organisation, sophistication and or deception employed by an offender in requiring, storing, disseminating or transmitting the material. It is a rare case where persons utilising the Dark Web or similar applications accessing child pornography use their own personal details, and although such a factor is not completely unknown, it is far more common that persons use a pseudonym or a false name.

64. The next relevant criteria is whether or not the offender acted alone or in a collaborative network of like-minded persons. Next, any risk of the material being seen or required by vulnerable persons such as children. Such factors are regularly seen where miscreants have their own children in or about where the computer may be stored or the hard drive or other portable drive is available.

65. As I have already indicated in relation to the present material, the Crown and the defence are in agreement that the offending falls at the mid to low range of objective seriousness of offending. As I have already indicated, I agree with that description.

66. Subsections 16A(2)(j) and (2)(k) to which I have already adverted prescribe the need for adequate punishment and the importance of general deterrence. The maximum penalties reflect the importance of general deterrence. Child sexual abuse and conduct such as grooming and procuring has been noted to have significant impact on child victims and the community, and general deterrence reflects both the harm done to real victims and also deters others from offending.

67. References to the significance of general deterrence are to be found throughout the various authorities in this area and reference has been made in the Crown’s submission particularly to the comments of McClellan CJ at CL in R v Fuller [2010] NSWCCA 192. The significance of general deterrence is and must be recognised. Statements to the effect that these types of offences are abhorrent and that offenders will be met with condign punishment to reflect the community’s attitude to the sexual exploitation of children, must be given appropriate force.

68. The public interest in promoting the interests of children provides strong support and buttresses the importance of general deterrence. In the Crown’s submission, deterrence and denunciation are important even in the case of an offender of advanced age and punishment must still reflect the seriousness of the crime.

69. Such observations derived from cases such as Gulyas v Western Australia [2007] WASCA 263 and others are often adverted to not only in cases involving child abuse material but also in cases involving the actual abuse of children historically. It is relevant to take into account and give consideration to the character, the antecedents, the age, and the physical and mental conditions and means of the offender.

70. He is now 71 years of age. The offending initially commenced when he was 68 or 69 and extended with a regularity which is not clear on the Agreed Facts over a period of approximately two years. The Crown acknowledges, and I have already adverted to the opinions of the psychologist and the general practitioner, that the offender’s age will make imprisonment more arduous then if he were in good health. But it is important to bear in mind the expressions of opinion in judgments such as Jackson v R [2020] NSWCCA 230 that the Court should avoid creating any expectations that older persons can offend with relative impunity.

71. That observation being noted, it is of course significant that the combination of factors individually affecting this particular offender, do give rise to some considerations which are perhaps different from many other cases. The fact that he is regularly on morphine hydrochloride and he is prescribed substances of that kind, and the circumstances that he has had surgical intervention procedures endeavouring to effectively reverse or replace the metal plates put in so many years ago in relation to lumbo-sacral spinal fusion and cervical fusion provide an indication for the diagnosis for the ongoing problems of chronic pain.

72. There is little before the Court as to the ability of Corrective Services to deal with such level of ongoing pain restriction, although the prima facie position is of course that it is a matter for Community Corrections and they are well able to deal with circumstances involving increasing numbers of aged prisoners.

73. That having been said, the issues described in the medical material to which I have already adverted in some detail are relevant and are to be given careful consideration in determining the ultimate outcome in the instinctive synthesis of a sentence. I do note the submission by the Crown with respect to King CJ in the South Australian Supreme Court in R v Smith (1987) 44 SASR 587 where his Honour, dealing with the responsibility of Correctional Services authorities to provide appropriate care and treatment for sick prisoners, said at 587:

“Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.”

74. His Honour went on to speak about the factor tending to mitigate punishment when it appears that imprisonment will be a greater burden on the offender by reason of his or her state of health. There is evidence before this Court that there will be a more arduous imposition in relation to imprisonment upon this offender, although as I have already indicated, there is no specific evidence that his medical conditions could not be managed by Corrective Services.

75. I should note in passing that in the written submissions submitted on behalf of the offender, the question of the ongoing ability to utilise morphine-based medication might be questionable in relation to custody. Other than raising that as a query, the Court has no evidence one way or the other in relation to that particular aspect of the submissions.

76. I should note that Mr Sabharwal also raises a query regarding the ability to utilise a CPAP machine in custody. Again, there is no specific evidence as to whether utilisations of such an instrument is or is not within the bounds of administration by Corrective Services.

77. The offender has what can be described as a minor criminal history including assaults 30 years ago. His prior minor criminal history is of no particular relevance in the current proceedings and certainly does not give rise to concerns about recidivism.

78. The Crown raises for consideration a question regarding specific deterrence and prospects of rehabilitation. It would be self-evident from some of the remarks that I have already made that it was perceived both by the Forensic Consulting Psychologist and by the author of the Sentencing Assessment Report that there was a degree of reluctance in full acceptance of the seriousness of some of the offending, notwithstanding the offender’s expressions to that effect.

79. The Crown points to some of the text conversation relied upon for Count 1 as indicative of in fact a sexual interest in children notwithstanding the protestations by the offender to the Psychologist and the Sentencing Assessment Report author as to his motivation. Certainly the text is consistent with the submission by the Crown, but much of the other material is also consistent with the account given by the offender.

80. I accept the Crown’s submission that there is some incongruity between the conduct in respect of which he has pleaded Guilty and his denial of a sexual interest in children. The Crown submission is that this demonstrates a lack of insight and recognition of the broader harm caused. Whilst giving full force to those submissions, it is of course important to accept that the early entry of the pleas of Guilty are reflective of a degree of contrition, as is the letter written by the offender to the Court.

81. I turn now to the letter to which I have just made reference, the offender’s handwritten note or letter of the 20 March 2025 in which he has said:

*“I’*m writing this letter to express my apologies for my actions that lead me to appear before the Court. I understand the seriousness of this situation and the impact of my behaviour. I take full responsibility for my actions and the consequences they have brought. I am truly remorseful for any harm or inconveniences my actions may have caused others and members of my family.

I assure you that the past 21 months I have reflected on my behaviour and I am totally committed to making more positive change in my life moving forward. Those changes include never going near the net again, just like the past 21 months. In 1986 I got arrested for DUI a**nd to this day I have never touched a drop of alcohol since that time. I respectfully asked for the Court’s understanding and continue to work on becoming a better person”.

82. It would be appropriate to observe that both the account recorded by the psychologist and the letter from the offender himself, whilst entitled to appropriate weight, should be of course approached with the level of reserve that the Court of Criminal Appeal has consistently reminded first instance judges to exercise since R v Qutami (2001) 127 A Crim R 369, Imbornone v R [2017] NSWCCA 144, and other cases involving material which is unsworn and untested by cross-examination.

83. However, having made that observation and notwithstanding the comparatively more recent observations of Bellew J, as his Honour then was, regarding the reception of such material, such material is regularly received at first instance in the District Court on sentence proceedings where the strict rules of evidence do not necessarily apply and I take onboard what is expressed as at least consistent with the conclusions reached by the author of the Sentencing Assessment Report and indeed the consultant psychologist in her earlier report.

84. There is no question in my mind that there is no sentence other than a sentence of imprisonment which is appropriate. So much has been conceded by counsel for the offender and it remains for consideration as to what an appropriate term should be.

85. However, of more critical consideration, are the provisions in s 20(1)(b) of the Crimes Act 1914 and in particular subs (3) which permits the immediate release on a recognizance if the Court is satisfied that there are exceptional circumstances. There are many cases in which that conclusion requires little consideration because of the overwhelming nature of the case.

86. I raised with both parties the circumstance that I was not prepared to simply deal with this matter ex tempore when it first came before the Court. In my view cases like this one do require careful consideration. The Court has been assisted by references to a number of authorities, by the comparative cases to which the Crown has provided references, and also the Court’s own consideration and research into the question at issue.

COMPARATIVE CASES

87. It is appropriate to observe that comparative sentences and the expressions of principles, and more to the point the application of principle in other cases are of limited assistance. They provide a touchstone upon which a sentencing judge may view an appropriate range or the disposition in other cases. Where one can gleam sufficient factual subjective material to form a view as to the appropriate or inappropriate disposition of cases, it may however provide some assistance to a sentencing judge in a determination of the appropriate outcome.

88. The NSW Court of Criminal Appeal gave consideration to the provision of s 20(1)(b) in R v Bredal [2024] NSWCCA 75. That was an appeal by the Commonwealth Director against the asserted inadequacy of a sentence imposed upon the respondent, Mr Bredal, following a plea of Not Guilty and a trial with respect to a single offence of using a carriage service to “groom” a person under 16 years of age. The factual circumstances giving rise to the offence in Bredal arose from a series of online chat exchanges with a fictitious assumed online identity (AOI) operated by police.

89. Following the trial and the jury’s return of a Guilty verdict, the sentencing judge, his Honour Judge Allen, sentenced Bredal to a term of imprisonment of 1 year and 7 months. However, his Honour directed that the offender be released immediately on entering a recognisance for a period of 3 years, requiring that he comply with conditions including supervision and a restriction on travelling outside the State for a period of 2 years.

90. The Director did not take issue with the length of the sentence but complained that its immediate suspension was not warranted.

91. The Court, per Dhanji J (Harrison CJ at CL and Button J agreeing) held that it was open to the sentencing judge to have found the case was sufficiently exceptional as to warrant the complete suspension of the sentence of imprisonment, having regard to all the circumstances of the case.

92. The Crown argued in the appeal that the sentencing judge erred in finding that exceptional circumstances had been established. The first factor complained of was that the sentencing judge erred in having regard to the offender’s absence of prior convictions in finding that exceptional circumstances had been established. Dhanji J said at [92]:

“The short answer to this is, as observed above, exceptional circumstances are necessarily informed by matters that go to the purposes of sentence. An absence of prior convictions is such a matter, and one that can operate significantly in mitigation.”

93. His Honour remarked that:

“It might be doubted that the absence of a prior record alone could make a case exceptional. But it is a matter to which regard must be had, and which may, in combination with other matters, justify a finding that the case is relevantly exceptional.”

94. In the first instance, the evidence went beyond an absence of prior convictions, but established Mr Bredal’s prior positive good character.

95. The Crown next challenged the failure to take into account the respondent’s plea of Not Guilty and a failure by the offender to show contrition or remorse. Dhanji J said that “the absence of these favourable factors on sentence was not disqualifying of a finding that the circumstances were exceptional.”

96. The Director next argued that the sentencing judge’s finding that the offence was of a relatively low level of objective seriousness was inconsistent with the legislative provision and did not warrant a finding of the case being exceptional. Dhanji J noted that the sentencing judge did not find that the objective gravity of the offence in and of itself made the case exceptional. Rather, the sentencing judge took it into account together with other factors. Dhanji J said “he was right to do so” at [100].

97. The sentencing judge also took into account the respondent’s apparent withdrawal with continuing from his offending; his cooperation with police and in the conduct of the trial; his lack of prior criminal history; and the hardship which would be occasioned to his family.

98. The Court ultimately concluded that the engagement with the assumed online identity was on an adult chat site and there was no evidence to suggest that the offender was actively looking to engage with a child. Whilst the continued engagement with the AOI, after becoming aware of the AOI’s purported age, was morally reprehensible, he did not have any material on electronic devices at his home demonstrative of a further interest in children.

99. The offender was 45 years of age and his personal circumstances, which were described as both unusual and significant, included his role in caring for three children with special needs. The Director’s appeal was dismissed.

100. The Court of Criminal Appeal again gave consideration to s 20(1)(b) of the Crimes Act 1914 in Elwdah v R [2024] NSWCCA 150. That was similarly an appeal with respect to a single offence of using a carriage service to groom a person under the age of 16 years. The offending conduct followed the offender engaging in five online conversations with an assumed online identity operated by the Child Exploitation Internet Unit of the NSW Police.

101. The sentencing judge, Colefax SC DCJ, had sentenced the offender to a term of 2 years and 3 months and directed that the sentence be suspended at the expiration of 12 months at which time the offender was to be released pursuant to a Recognizance Release Order. McNaughton J, (Wright and Chen JJ agreeing), upheld an appeal against the severity of sentence.

102. The basis upon which the appeal was upheld was a failure by the sentencing judge to properly consider the objective of the rehabilitation of the offender. His Honour had made no reference to the mandatory considerations with respect to rehabilitation applicable to NSW sentencing and the Court took into account the time which had been served as constituting “exceptional circumstances”. The applicant was released immediately on a recognizance.

103. In R v Howard [2024] NSWDC 514, the offender pleaded Guilty to one offence of using a carriage service to procure a person under the age of 16 for sexual activity. The offender in that matter had similarly communicated with an assumed online identity purporting to be a 13-year-old girl. The communications had taken place over a period of approximately 3 months.

104. Newlinds SC DCJ found that the offending fell somewhere around the mid-range of objective seriousness of offending of this type. The offender had a strong subjective case. He had a number of complex psychiatric and medical conditions including borderline intellectual disability; Attention Deficit Hyperactivity Disorder; pervasive developmental disorder; generalised anxiety disorder; major depressive illness; and bipolar disorder. He also suffered from a number of physical health conditions. His Honour found that on the basis of one of the medical reports it was clear that the offender’s depressive illness materially contributed to his offending. His Honour found in all of the circumstances that the moral culpability of the offender was significantly reduced.

105. His Honour determined that the offender had good prospects of rehabilitation and of not further re-offending. There were found to be significant protective factors in place to mitigate his risk of sexual-based re-offending. He no longer had access to the internet unsupervised; he was well-connected to mental health services and had a stable living arrangement; he had some insight and awareness into his behaviour; and he did not present with general anti-social values or attitudes. He was compliant with and motivated to engage with treatment and supervision. He had no substance abuse issues. His risk of sexual re-offending was considered to be significantly reduced.

106. At [48] of his judgment, his Honour cited the consideration by Dhanji J with respect to the meaning of exceptional circumstances at [60], [61] and [63] in R v Bredal:

“Citing Cornhill CJ in R v Kelly (Edward) [1999] 2 All ER 13 at [20]: “To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered” at [60];

“A combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional: [citations omitted] The factors that combine to make a particular case exceptional will all be factors relevant to the determination of sentence more generally. The purposes of sentencing will remain at the forefront. It is the impact of the particular factors on those purposes that will make the case either exceptional or unexceptional” at [61]; and

“The term “exceptional” used in its present context thus requires the circumstances to be sufficiently “exceptional” such that, despite a period of imprisonment being required, the Offender should not be required to serve any part of that sentence in actual custody. While a finding in relation to exceptional circumstances is a step in the sentencing process (after determining the s 17A threshold has been crossed, and determining the length of the sentence), the instinctive synthesis remains engaged” at [63].**”

107. In the ultimate, Newlinds SC DCJ was satisfied that the demonstration of real insight, remorse and a determination to not let such conduct happen again was significant. His Honour noted that the offender had voluntarily undertaken a significant degree of medical supervision and had complied with a treatment program which appeared to be succeeding. His Honour found that the circumstances of the offending were exceptional, including for the reason that his mental and physical health were such that it would be difficult for him to survive any significant time in custody, and if he did, the effect on him would be much worse than on a person without his disabilities.

108. His Honour imposed a term of imprisonment of 2 years which was wholly suspended and the offender was immediately released on a recognizance release order.

109. A similar outcome was reached in R v Pacey [2025] NSWDC 53. The offender in that matter was 18 years of age at the time of the offences. He pleaded Guilty to three offences contrary to the Commonwealth Criminal Code. The first charge was of using a carriage service with the intention of procuring a person under 16 years of age for sexual activity. The second offence was using a carriage service to transmit child abuse material to himself. The third offence related to using a carriage service to send indecent material to a person under the age of 16. The respective maximum penalties were 15 years imprisonment for the first two offences and 10 years imprisonment for the third.

110. The offending involved communications with a real victim who was 13 years of age at the commencement of the offending and who turned 14 part-way through. In June 2022, the victim commenced communicating with the offender on TikTok. She commented on a number of his videos and asked him to connect through an application called Discord. Shortly after communications commenced on Discord, the offender became aware that the victim was in fact 13 years of age.

111. The offender sent at least 10 images of his penis and a similar number of videos of him masturbating to the victim. He also sent numerous sexually explicit text messages. The narrative text included a description of an apparent fantasy of the offender describing detailed sexual acts that he would perform with the victim after a “long day at school or work”. These transmissions gave rise to the first charge of transmitting indecent material.

112. The second offence of causing child abuse material to be transmitted to himself related to the offender procuring the victim to create and send to him numerous sexually explicit photographs and videos of herself.

113. The third charge of transmitting communication with the intention of procuring a person under 16 to engage in sexual activity relied upon remaining parts of the Agreed Facts in which a multiplicity of communications sent with the intention of procuring the engagement in sexual activity but which did not involve sending indecent material were relied upon.

114. There was clearly a considerable overlap between the material relied upon for the separate charges.

115. The sentencing judge, his Honour Judge Bourke SC, distinguished the nature of the ongoing relationship from what might be termed the:

“usual circumstances where an adult male sets out with the deliberate intention of connecting with a child for the sole purpose of engaging them in sexualised discussions and activity*”**.*

116. His Honour categorised the offences as having occurred in the context of an ongoing relationship which involved genuine and mutual friendship, affection and support. The Crown accepted that the communications occurred in a context where the offender and the victim were involved in a type of romantic relationship. His Honour found that each of the offences fell below the mid-range of objective seriousness, while being above or well above the low range.

117. A psychiatric report described the offender’s immaturity and medical records referred to diagnoses of Bipolar Disorder, Post-Traumatic Stress Disorder, and Autistic Spectrum Disorder. He had been bullied at school and had a long history of mental health problems. He had engaged in counselling which included a focus on age-appropriate relationships. He had been accepted as eligible to receive the Disability Support Pension.

118. The sentencing judge determined that prospects for rehabilitation were reasonably good. The Court found that the threshold was crossed and that no penalty other than imprisonment was appropriate. Indicative sentences were 14 months for the transmitting charge; 18 months for causing child abuse material to be transmitted to himself; and 21 months for the offence of procuring. His Honour determined that there should be some degree of notional accumulation and imposed an aggregate head sentence of 2 years imprisonment.

119. His Honour made specific reference to the judgment of Dhanji J in R v Bredal where circumstances were considered to be exceptional if they amounted to an “exception”**, which is out of the ordinary course, or unusual, special or uncommon. His Honour noted that the circumstances need not be “unique, unprecedented or very rare”. At [85] his Honour set out an itemised list of circumstances which he concluded amounted to exceptional circumstances. I do not propose to set out those 17 circumstances other than noting that the combination of them, and noting that the youth of the offender was of considerable significance given he was aged 20 at the time of sentencing, the ultimate determination was an immediate release on a recognizance pursuant to s 20(1)(b) of the Commonwealth Crimes Act.

120. In addition to the New South Wales cases to which I have made reference, the Crown in its written submissions reminded the Court that in sentencing for Commonwealth offences the Court must have regard to sentences that have been imposed in other states and territories. The Crown provided a table of comparative sentences with respect to relevant interstate cases.

121. In Crowder (a pseudonym) v The King [2024] VSCA 211, the Court of Appeal in Victoria refused an application for leave to appeal against the severity of sentence in relation to two offences relating to child abuse material. The first count charged using a carriage service to access child abuse material and the second related to possession of child abuse material obtained or accessed using a carriage service. At first instance, County Court Judge Mullaly found that exceptional circumstances were not established and he imposed a total of effective sentence of 26 months imprisonment.

122. The offender was a legal practitioner who was aged approximately 33 at the time of the offending. He was found to possess 5,233 child abuse material files across 5 electronic devices. The files included 3,826 images and 246 videos. The remaining 1,161 files were duplicates. While the majority of the files were animations, there were approximately 700 files that depicted actual acts of sexual abuse perpetrated on real children.

123. There was some evidence of the offender having entered an abusive homosexual relationship with a more senior member of the legal profession when he was in his early 20s which had introduced him to illicit drug use and sexualised conduct, on occasion non-consensual, during which time he had been introduced to child abuse material. That abusive relationship continued for approximately 6 years. The offender subsequently entered into a heterosexual relationship and became engaged to be married. That relationship had broken up shortly before the offending conduct.

124. On behalf of the offender it was submitted that he had undertaken significant steps toward rehabilitation. In the opinion of a forensic psychiatrist, he was suffering from Post-Traumatic Stress Disorder following the abusive relationship leading to a Major Depressive Disorder. The psychiatrist expressed the opinion that the offender was experiencing mental illness at the time of the offending but that a direct causal relationship with the offending could not be definitively established.

125. The content of the child abuse material had been found to be “very grave towards the more serious end of the spectrum.” The volume of the child abuse material possessed was found to be significant and the involvement in the abusive relationship and exposure to child abuse material at that time had ceased more than 5 years earlier than sentencing.

126. The Victorian Court of Appeal found no error in the judicial sentencing procedure at first instance and refused leave to appeal.

127. The next case handed up by the Crown was Mertell v The King [2022] ACTCA 69. This was an appeal against the severity of a total effective head sentence of 6 years and 3 months imprisonment with a non-parole period of 2 years for nine offences relating to accessing and/or possessing child abuse material. The appellant had possessed 513 child abuse material files in respect of which he had used a carriage service to access the child abuse material files. 25% of the files were classified as Category 1, involving depictions of the anal or genital regions of pre-pubescent children and/or their involvement in or witnessing of a sexual act. 75% (385) of the files were categorised as being Category 2 depicting pubescent children. The offender was 68 years of age and had been diagnosed with ADHD and Autism Spectrum Disorder. His prospects of rehabilitation were assessed as “guarded” given his failure to acknowledge the seriousness of his offending and to accept responsibility for it. His “obsessive downloading of pornography” was found to have been motivated by sexual gratification.

128. The ACT Court of Appeal was critical of the multiplicity of charges which resulted in a sentencing process of more complexity than might otherwise have been available. The child abuse material was stored on seven different devices and many separate real children were depicted in the material. The images and videos were described as “highly depraved” featuring sexually penetrative activity between adults and children.

129. The Court of Appeal upheld the challenge to the severity of the sentence. The head sentence of 6 years and 3 months was reduced to a period of 2 years and 6 months. The offender had been in custody bail refused for approximately 9 months. The Court of Appeal reduced the minimum period to be served from 2 years to 12 months and directed that he should be released after serving 12 months on a single recognizance release order.

130. In the course of that judgment reference was made to a number of comparative cases to which I will refer but briefly. In DPP (Commonwealth) and DPP (Vic) v Garside [2016] VSCA 74, a sentence in the County Court of a Community Correction Order which was the equivalent of an Intensive Correction Order for a period of 4 years was held to be manifestly inadequate. The offender had accessed and possessed more than 6,000 images and videos over a period of 8 months. However, the Court did not proceed to re-sentence and exercised the residual discretion to not intervene.

131. R v Porte [2015] NSWCCA 174 related to accessing and possessing 34,143 items of child abuse material of which almost 28,000 fell into Category 1. The offender was 49 years of age and suffered from significant spinal degeneration requiring surgery.

132. At first instance the offender had been sentenced to 18 months on each of the matters to be served concurrently by way of an Intensive Correction Order. I note in passing that the judgment in Mertell incorrectly states the lengths of these sentences. The Court of Criminal Appeal upheld the Crown’s manifest inadequacy appeal and found that the only sentences reasonably open required the service of full-time imprisonment. The offender was resentenced to a total effective sentence of 2 years and 9 months with a minimum term of 1 year and 6 months, noting that he was also sentenced for a charge of possession of a prohibited weapon.

133. In DPP (Cth) v Zarb [2014] VSCA 347, the offender was given a total effective sentence of 3 years and 3 months to be served by way of a Community Correction Order which, as I have already indicated, was the Victorian equivalent of an ICO. The Court of Appeal upheld a Crown challenge on inadequacy and re-sentenced the offender to 3 months imprisonment for accessing child pornography and a 2 year Community Correction Order to commence at the conclusion of 3 months actual imprisonment.

134. The factual circumstances in Zarb involved textual communications which would be categorised as child abuse material in addition to 415 child pornography images and one video. These included images and a video of penetrative sexual activity between adults and children; images of sadism, bestiality, humiliation or child abuse; and other child abuse material described in more detail in the judgment. The offender was 47 years of age at the time of sentence and had no relevant prior convictions. As I have indicated, the ultimate determination was that he should spent 3 months in custody.

135. In R v Sykes [2009] QCA 267, an appeal against severity was dismissed. The offender had accessed child pornography using a carriage service and was in possession of material described as child exploitation material pursuant to the Queensland Criminal Code. The carriage service accessed child pornography which had been stored on a Croatian astronomy website which had been hacked. Images had been accessed by the offender from that website. Material accessed and retained in folders on a computer itself included 120 images of varying degrees of depravity. These included images depicting an adult male causing a baby between 3 months and 9 months to perform oral sex on the adult male. Additional images retained on an external hard drive related to the Queensland State offence.

136. At first instance, a term of 15 months imprisonment with release after 6 months for the Commonwealth offence was imposed, and a sentence of 12 months with release after 4 months for the Queensland Criminal Code offence. The sentences imposed were to be served wholly concurrently. The severity appeal was dismissed.

137. The next case provided by the Crown was R v Cardwell [2021] QCA 112. The offender was 69 years of age and had no prior criminal history. He co-operated with police and made admissions and had taken some steps towards rehabilitation. He was charged with two offences contrary to the Commonwealth Criminal Code relating to using a carriage service to access child abuse material and one count of possession of child exploitation material contrary to the Queensland Criminal Code. Following pleas of Guilty, the offender was sentenced to imprisonment for 12 months on the Commonwealth charges but ordered to be released forthwith on entering a recognizance to be of good behaviour for 2 years. With respect to the Queensland State offence he was sentenced to imprisonment for 15 months, to be suspended after he served a period of 3 months actual imprisonment. It will be clear that the overall sentence was a 3-month term of imprisonment, followed by the Commonwealth and State suspended sentences.

138. The Court of Appeal found that the sentence fell within a sound exercise of sentencing discretion and the Court had no warrant to interfere with them. There was no Crown challenge to the Commonwealth sentences.

139. The last case provided by the Crown was Young v R [2021] SASCA 51. The offender had access to child abuse material and transmitted child abuse material via online chat conversations with three other persons over a period of months in 2018. The offender had a limited number of videos and images and had no prior convictions. He was found to be genuinely remorseful and contrite. However, the sentencing judge was not satisfied that there was no risk of the appellant re-offending in the future. The sentencing judge found that the offender’s interest in child pornography material remained beyond the circumstance of the offending.

140. The Court of Appeal found that the judge had developed a nuanced approach to the onus of proof and that he had correctly found, on the balance of probabilities, that the offender’s interest in child pornography was not yet behind him. Psychological assessments were consistent with the offender having paedophilic proclivities. The judge found that he was satisfied beyond reasonable doubt that there was some risk of further reoffending. With respect to the six offences before the Court, an effective total head sentence was imposed of 17 months. The offender was ordered to be released after serving 5 months in actual prison. An appeal against severity was dismissed.

DETERMINATION

141. As I have already indicated in the present matter, there is no question but that the s 17A threshold has been crossed. The range of sentences imposed in other cases varies considerably both within New South Wales itself for Commonwealth offences of similar nature and in the interstate cases to which reference has been made.

142. Recourse to the Judicial Commission statistics retained in New South Wales indicate they are a very substantial proportion of cases in which disposition has taken place under similar provisions pursuant to s 20(1)(b)(3).

143. With respect to the imposition of an aggregate sentence, which I have concluded is the appropriate way to approach the task at hand, I am required to indicate the sentences that would have been imposed with respect to the individual charges. I am cognisant of the substantial overlap between circumstances where one uses a carriage service to communicate with another person, such as the offence in Count 1, where the textual transmission by the offender gives rise to the offence, and in the same conversation, the person to whom he was communicating sends to him material which constitutes part of the material relied upon for the offence of using a carriage service to access child abuse material and similarly falls within part of the material for possession, which was Sequence 8 and is the third substantive count before the Court. There are other aspects of course which do not overlap to that extent, but it is important in giving consideration to the necessity for some partial accumulation to recognise clearly that there is a very considerable overlapping in conduct of this kind resulting in the preferring of multiple charges.

144. Ultimately, the indicative sentences which in my view would be appropriate would be a sentence of 9 months with respect to Sequence 1 or Count 1, 12 months with respect to Sequence 2, and 15 months with respect to the third count. An appropriate aggregate sentence in my view, would be a period of 2 years.

145. A critical question which has operated in my consideration is whether or not the circumstances of this case, or more appropriately considered, the combination of the circumstances in this case, can properly be described as exceptional.

146. The Crown was ably represented and the Court was considerably assisted by the substantive written submissions of Mr Hoad, solicitor from the Director’s Office, in which he strongly urged that the Court would not come to such a conclusion. The submissions rest in part on a distinction of too much comparison being made with other cases, and after referring to the observations in comparison being made with other cases, and after referring to the observations in Crowder (a pseudonym) v The King in detail, where the Crown submitted that the exceptional circumstances required reflect the inherent gravity of the offending that involves access to and possession of child abuse material.

147. The Court of Appeal in Victoria set out considerable detail which concluded with indicating that the kind of material which had been accessed and possessed in that case was anathema to the most fundamental human beings of our society. Most significantly the law properly recognises that the kind of offending in which the applicant engaged creates a market for the continued corruption and exploitation of children and normalises behaviour which is entirely perverted and depraved.

148. Of course, those observations could equally be applied to all the cases involving possession of such material. It is important to recognise the refined and the nuanced approach taken by Dhanji J in Bredal*,* with whom the other judges to whom I have made reference agree, in determining what could and what could not necessarily amount to exceptional circumstances. The Crown in its written submissions in the present matter at [60] put the position forward in these terms. After referring to the decision in Bredal and making reference to the decision by Dhanji J that the combination of the factors, each of which in itself would not be exceptional, may in combination demonstrate that the circumstances of the cases were exceptional.

149. The Crown submission in the present matter said as follows:

“Notwithstanding, the Crown submits that while the finding of exceptional circumstances by the sentencing Judge in Bredal was open, it is not correct that the finding of exceptional circumstances must necessarily be made in any analogous case. There is a significant distinction between such considerations being relevant to the question of exceptional circumstances, and such considerations being, in and of themselves, particularly significant matters.”**.

150. I must say the consideration of whether matters are relevant to be taken into account in what might be broadly referred to as an analogous case requires a considered and careful distinction from Bredal whilst recognising it was a case in which the conclusion by Judge Allen was ultimately found to have been open to him. Finding a case as being analogous needs to be approached with a degree of circumspection and caution. In the present matter the factors that required consideration which are otherwise mitigating factors include a number of aspects.

151. First, the offender has no relevant criminal convictions. Whilst he has some minor matters in his record, for the reasons I have already articulated, a drink driving offence and a common assault from years ago play little relevance to the proceedings in this Court and were disposed of without a conviction or with some monetary fine.

152. He is entitled to the recognition otherwise good character. His background touching on questions of positive good character reveal a man who has been a hardworking, labouring employee for much if not most of his life. He has had the constraints of significant surgical intervention following accidents, one a motor vehicle accident and the other a workplace accident which had resulted in multiple surgeries to endeavour to rectify the orthopaedic problems which were brought about by those incidents.

153. The fact of such surgery is not directly relevant, other than giving rise to the chronic pain with which he now suffers significantly from. The list of medications which has been tendered as part of the defence tender bundle reveals a multiplicity of prescribed medications for a variety of different ailments, one of the most significant of which being the prescription of the oral opioid medication which contains morphine and hydrochloride, that together with the letter from the pain clinic, strongly buttress the ongoing difficulties that Mr Brooks has and which would unarguably render his incarceration far more onerous than many other persons in the community.

154. Whilst it is to be recognised that there was some level of reluctance of full acknowledgment of the seriousness of some of his offending in early conversation with the psychologist and with the Pre-sentencing Assessment Report author, the ultimate acceptance of responsibility articulated by him to those relevant practitioners led to a determination that he was a low-mid risk of reoffending.

155. It is to be noted that, in the fallout of his arrest and charging, it has been indicated, and there is no reason to doubt it, that his own home is to be sold and he has moved onto the property where he resides now with his son and his son’s family. He has indicated that he no longer has any desire to have anything to do with the internet and in his letter of apology to the Court draws the comparison between him being charged decades ago with driving under the influence and thereafter determining to give up alcohol completely.

156. It is to be observed that the Court is entitled to reach a view, which I do, that he has reasonably good prospects for rehabilitation and for not re-offending in the future. He has been ascertained to be now suffering from a Major Depressive Disorder. It must be acknowledged that there is no causal connection between that state and the commission of the offences, and indeed common sense and the opinion of the psychologist would tend to suggest that his increased Anxiety Disorder and General Depressive Disorder have been exacerbated by the prospect of the disposition of the present matter and his arrest and charging.

157. It should be observed that although not completely determinative of the gravity of a particular offending, the number of items found to be retained by him, are by comparison with many other cases, substantially less than the Court regularly sees and indeed by reference to the vast majority of the cases to which I have referred in detail today, can be seen to be of much lesser level of severity when dealt with numerically.

158. As I have already indicated, the Crown submits and the Defence agrees that the objective seriousness falls below the midrange and from the low to midrange, or between the low and midrange of objective seriousness. As I have already indicated, the offender is now 71 years of age.

159. After careful consideration I have determined that the combination of those factors which I have identified do amount to exceptional circumstances.

160. Accordingly, I propose to impose a term of imprisonment for 2 years, which will date from today’s date which is the 28 March 2025 and hence expires on the 27 March 2027. Following my determination regarding the appropriate categorisation of the offending, he is to be released immediately upon entering into a recognizance himself, in the sum of $1 for a period of 2 years.

161. He is to be subject to conditions: firstly, to be of good behaviour; he is to be subject to the supervision of a probation officer; he is to obey all reasonable directions of the probation officer including the undertaking of all or any treatment programs or rehabilitation programs that the probation officer reasonably directs. He is not to travel interstate or overseas without the permission of his probation officer. That restriction does not apply to travel into or through the Australian Capital Territory. The offender is to attend upon the Community Corrections office in Cooma as soon as possible, but certainly within 7 days of today’s date.

162. Further and by consent upon the application of the Commonwealth Director of Public Prosecutions for a forfeiture order pursuant to s 23ZD of the Crimes Act 1914, I order that the following items are forfeited to the Commonwealth, one Hewlett Packard HP Pavilion **“*all-in-*one” personal computer, the serial number of which will be set out in the notice. Secondly, the Verbatim 16 gigabyte USB drive, item number JB004, the computer having been item number JB008 and last the Seagate external hard drive item number 001. Those items are to be forfeited to the Commonwealth.