Solicitors:
Sydney Defenders (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)
File Number(s): 2024/00135600
[2]
Judgment
The offender Bede Cridland is before the Court for sentence following pleas of guilty in the Local Court to two charges as follows:
1. Sequence 1 is a charge that on 28 April 2023 at Riverview, he possessed 213 images and videos of category 1 child abuse material and 315 images and videos of category 2 child abuse material by possession of a Z690 Aorus Elite DDR4 desktop computer and six hard drives. This is an offence contrary to s 91H(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period for this offence but s 67(1)(b) of the Crimes (Sentencing Procedure) Act 1999 precludes any term of imprisonment being served by way of Intensive Corrections Order.
2. Sequence 2 is an offence that on 28 April 2023 at Riverview, the offender possessed 17 images and videos of bestiality material. This is an offence contrary to s 547E(2) of the Crimes Act 1900 which carries a maximum penalty of 3 years imprisonment.
The offender was committed for sentence on these offences from the Local Court after pleading guilty there. He is entitled to a discount of 25% from what would otherwise have been the appropriate sentence to represent the utilitarian value of those pleas, pursuant to the provisions of the Early Appropriate Guilty Plea scheme. It should be noted that this sentence is another example of how inaccurately that scheme is named.
He was arrested on 28 April 2023 and was first before the Local Court in May 2023. Despite several mentions, the brief was not served until September 2023, and even then, was apparently inadequate according to the Local Court bench sheet. There was no charge certificate for some time thereafter and no case conference until a period after that.
It took almost a year in the Local Court and 11 mentions before this matter was committed for sentence in circumstances where sequence 1 was always going to be committed to this Court, either for trial or sentence, and where, in fact, a plea of guilty in the overall circumstances of this matter was largely inevitable. It is unfortunate that this took almost a year and 11 mentions in the Local Court, many of which would seem to have been unnecessary.
The Local Court is extremely overworked. It is a waste of precious public resources to have these matters unnecessarily mentioned, for public resources to be used for prosecution, Legal Aid and the Court, for private lawyers to appear, and have clients pay for them and for magistrates to have to spend time, even if only briefly, on mentions which go nowhere, when the whole purpose of the scheme is to encourage early compilation and service of the prosecution evidence and early pleas of guilty where appropriate, because it is recognised that doing so has a utilitarian value to the administration of justice.
There is no real explanation of why it took so long in this case. All parties in matters of any type, where serious offences are charged, and which will inevitably come to this Court, should try much harder to expedite these matters and to comply with what was the original purpose of the Early Appropriate Guilty Plea scheme. This case is an example of the opposite of how that scheme was meant to have operated.
Having said that, I now turn to deal with the sentences before me. There are agreed facts before the Court signed by the offender and on behalf of the DPP. From those, I accept that the New South Wales Police Child Exploitation Unit discovered that a device using a particular IP address completed several downloads between 17 March and 21 March 2023. Police reviewed those files and found that they contained child abuse material. The IP address resolved to an iiNet internet service in the name of the offender. The downloaded material consisted of images and videos of prepubescent children engaging in sexual activity, falling within category 1 of the Australian child abuse categorisation schema.
On 28 April 2023, police executed a warrant at the premises in Sydney where the offender lived with his mother and brother. The offender told police at early stage in the search warrant, if not right at the beginning, words to the following effect, "I'll save you time, it's me you're looking for." He told police that the material they were searching for was located on devices in his bedroom. He also told them that there was child abuse material on a desktop computer in his bedroom which is part of the subject matter of sequence 1.
Police searched the offender's bedroom and located the desktop computer there, together with a large number of other electronic items which are specified in para 9 of the agreed facts. In total they seized one desktop computer, two laptops, one tablet, 22 hard drives, four mobile phones, three USBs, one SD card, and two TP‑Link routers. The desktop computer was logged into an account in the name of the offender when police executed the search warrant with the username being a Gmail account in his name.
The offender was arrested, taken to the police station and ultimately from there released on bail. He has been on bail since the date of his arrest, namely from 28 April 2023.
Police conducted a digital examination of all of the devices seized, and what was located forms the subject matter of each of the two counts for sentence. From all of those devices seized, child abuse material was located on seven of them, being the laptop computer, and six of the seized hard drives. The subject matter of sequence 2 was located on the laptop computer.
Child abuse material is categorised by New South Wales police using the Australian child abuse categorisation scheme (ACACS) into either category 1 or category 2. In general terms, the material falling within category 1 is more serious than that falling within category 2, albeit that category 2 material can still amount to very serious examples of child abuse material.
Category 1 captures material displaying real prepubescent children apparently aged under 13 involved in a sex act, witnessing a sex act, or where the material is focused or concentrated on the anal or genital region of the child.
Category 2 captures all other child abuse material that is illegal in New South Wales but does not fall within category 1, and includes material depicting a child or someone portrayed as a child who is a victim of torture, cruelty, or physical abuse or who is engaged in a sexual pose or activity, who is in the presence of another person apparently engaged in a sexual pose or activity or who is depicted exposing the person's genital, anal area or in the case of a relevant person, that person's breasts.
These categories are obviously broad and within each category there are more or less serious instances of any individual instance of child abuse material.
The details of what was located on each of the devices, the subject matter of either of the two charges now before me, are set out in paras 12 to 27 of the agreed facts. In total there were 213 images and videos of category 1 child abuse material and 315 images and videos of category 2 child abuse material, so 528 images and videos in total. There was both category 1 and category 2 material located on the desktop computer. On two of the hard drives the material located is described as falling within category 1 and on the remaining four hard drives the material located is described as falling within category 2.
I do not propose to set out in detail what was found on each of the seven devices. I do accept from the agreed facts that the summary in paras 4 and 5 of the Crown's written submissions is accurate and thus I accept that the category 1 child abuse material located across the three devices contains images and videos of real children aged between 1 and 12 engaging in sexual acts with adults, a real female child aged between 8 and 10 performing sexual acts and exposing her genitals and real children aged between 5 and 10 performing sexual acts on themselves and exposing their genitals.
The category 2 child abuse material contained images of real children aged between 4 and 13 exposing their genitals, animations of children in various age groups between 4 and 13, 5 and 8, 5 and 10 and 1 and 8 engaged in sexual acts with animated adults and other animated children. All of these videos and images form the subject matter of sequence 1.
I also accept from the agreed facts that whilst this child abuse material was located on the desktop computer and six of the hard drives, the majority of the contents of those devices only contained pornography which I infer means legal pornography, movies and television shows and there is nothing in the evidence to indicate that any child abuse material was located on any of the remaining devices seized by police. I further accept from the agreed facts that police conducted what is called a dip sample of the devices and from that it is accepted that the offender had not been disseminating any of the child abuse material and was only in possession of it.
For sequence 2, the images that are the subject matter of that charge were all located on the desktop computer and contained bestiality material of a sexual nature involving real adults and children as set out in paras 37 to 39 of the agreed facts including one picture file depicting a newborn baby's face close to a dog's penis. I do not propose to read onto the record in any greater detail the summary of those paragraphs in the statement of facts.
At the time of his arrest, the accused participated in an electronic record of interview where he admitted to being the sole owner and user of the desktop computer and all of the devices seized during the search warrant. He told police that he had been downloading material which he knew was illegal for about three years. But according to para 41 of the fact, when asked what the exact nature of the material was on the laptop, he declined to answer further questions. Portions of the electronically recorded interview appear at para 42 of the agreed facts and it is not clear, it seems to me at least, from reading that paragraph that the fact contained in para 41 is entirely accurate. In that record of interview, the offender was asked whether there were items of interest to the police on the laptop and he said, "Yes." The search warrant had already been executed at his home where he was present by that time. That warrant would have indicated the purpose of the search and the general nature of the material which police were searching for. The offender, by the time of the record of interview would have known that the police were searching for child abuse material. He was then asked, what was on the items which he knew would be of interest to police and his answer, according to the agreed facts was as follows:
"The specifics of them I am, I'm not certain." He further went on to say, "But there would be material of the nature you were describing." When asked by police, "And what is that nature?" His answer was, "Child abuse material, yes."
It seems to me that if indeed as appears in para 41, he declined to answer further questions about the exact nature of the material contained on the devices, that was in the context of having already said that he was not certain of the specifics of the material but also in circumstances where he had already admitted that it was child abuse material.
Also, later in that recorded interview he told police that he would download a file containing 50 movies and that, "Every now and then there would be one with other things in that that you wouldn't know from the file names." And when asked what he meant by that, he said, "Pornography of an obviously illegal nature." So to that extent, I do not accept from the agreed facts at para 41, that the offender was not in fact assisting the police during the course of that record of interview, and if that is what is meant to be implied by the term that he declined to answer any further questions, that the specific portions of the record of interview that are then quoted in para 42 would tend to cast some doubt on that assertion.
It is necessary to assess some of these facts then in order to determine the objective criminality of sequence 1. The starting point in assessing the objective criminality of any offence involving the possession of child abuse material is the recognition that contrary to what was once an accepted view, these offences are not victimless crimes and that is especially so in relation to category 1 child abuse material where real children are involved in the production of that material. As stated in the R v Porte [2015] NSWCCA 174, damage done to children abused can be, and undoubtedly often is, profound. In that case, the Court stated that:
"The abuse goes beyond that inflicted as part of the production of this material but may extend to these child victims realising as they got older that the material depicting them remains in circulation."
The Court then went on to say:
"Heightening the shame and distress associated with being exploited when young and vulnerable."
I also accept from a number of decisions referred to by the Crown in para 14 of their written submissions that there is the potential for harm caused by child pornography in circumstances where it may well fuel the fantasies of child sexual assault offenders, it may be used by potential child sexual assault offenders to groom victims and that it creates an additional layer of trauma as I have already referred to from the Porte decision, when children live with the knowledge that their images exist in perpetuity. It is also pernicious and may promote a distorted view of reality where children are seen as appropriate sexual partners for adults. These offences are far from being the victimless crimes that they were once regarded as being.
This is particularly so in the experience of the courts here in Australia for young and vulnerable children living in our Asia Pacific region who are abused and exploited in the production of this material, in circumstances where the sole reason for their involvement is because of the poverty in which they and their families live, and where the market for this exploitative product is so often Australian men who are thus, by viewing and possessing this material, perpetuating the exploitation of vulnerable and poor children not just in Australia but throughout our region.
It is for that reason that all sentences for all cases involving the possession of child abuse material must be regarded as serious offences and, of course, the maximum penalty of 10 years for this offence is an indication by the legislature of the seriousness of this offending.
By reference to the factors referred in the decision of R v De Leeuw [2015] NSWCCA 183 and Minehan v R [2010] NSWCCA 140, I accept that the objective criminality of this particular offence which is sequence 1 is informed not just by those general considerations but also by the following:
1. The nature and content of the material and in particular the age of the children and gravity of the acts depicted. Here there were real children aged between 1 and 13 depicted and the sexual acts were of their involvement with adults and exposing their genitals. There were also a significant number of images and videos which did not involve real children and which were animations apparently depicting children aged between 1 and 13 but who were not real children. Clearly, enough some of the real children were very young, but the gravity of the acts in which they were involved, although disgusting, does not appear to amount to any form of factual aggravation.
2. The number of items and images possessed. Here there were 528 videos and images in total. As I have said 213 in category 1 and 315 in category 2. Whilst the fact that there were more in category 2 being a less serious category than in category 1 does not necessarily of itself mean that the offending overall is objectively less serious, nonetheless, it is a factor to be taken into account when determining the overall objective seriousness. Whilst these are not minimal numbers of images or videos, nor are they anything like the extremely large number of items often located in cases of this type sometimes numbering into the hundreds of thousands.
3. The number of children depicted and therefore victimised. The evidence does not disclose the number of real children actually involved in the production of the material and is also silent as to whether or not there were any duplications across the seven devices. It is the experience of the courts in cases of this type, especially where multiple devices are found to include child abuse material, that there is often duplication of images.
4. The length of time over which the material was possessed. Here the evidence is that the offender was in possession of this material from 7 March until 28 April 2023, although he did tell police that he had been downloading files on and off for about three years. This possession offence cannot therefore be seen as some sort of one off act in isolation particularly given that in any event the evidence is clear that he was in possession of the material at least from 17 March 2023. However, the subject matter of the offending is his possession of it on the day of his arrest and the only evidence about the length of time over which he was in his possession of that material is that it was from 17 March and overall, that is a relatively short period of time.
5. I accept that the offender did not apparently acquire any of the material as part of a commercial transaction.
6. The offender on the evidence had no connection with the producers of any of the material.
7. The evidence does not disclose that the offender was participating in possession of this material with a group of likeminded individuals or when downloading the material.
8. There was no risk that the material would be seen or acquired by anyone other than the offender and therefore no risk either that it would be seen by others who might be similarly inclined or seen by a vulnerable persons, including children.
9. The manner in which child abuse material is stored and organised can be relevant to determining objective criminality. For example, if it is extremely well catalogued or stored by an offender in folders that are disguised by names that seek to hide the true nature of the material, that would indicate a degree of planning and sophistication relevant to determining objective criminality. Whilst the material here was stored over seven devices, there is nothing in the evidence to indicate that they were hidden in any way and, in fact, on the desktop there were files which by their very titles would seem to suggest the content involved children aged 5, 8 or 10. The fact that the material was on seven devices does not, in my view, elevate the objective criminality especially when those seven devices were a small number of all of the devices seized and the remaining devices did not apparently contain any child abuse material.
10. The offender did not come into possession of the material with the intention of disseminating it or for anything other than an intention to possess it possibly with a view to accessing it himself in the future albeit that there is no evidence that he did so. Nor is there any actual evidence that he came into possession of this material or decided to continue possessing it after downloading it for purposes of sexual gratification. The Crown has made such a submission but except by inference there is no evidence from which such a finding could be made.
11. In this case, if the offender's assertions as to how he came into possession of the material is accepted, that would be a relevant consideration in determining the overall objective criminality. He claims to have come into possession of it in the course of obsessively downloading very large quantities of other material into which this child abuse material was embedded. There is a further consideration involving his mental health and the connection between that and his obsessive downloading of the material. I will first, however, deal with the way in which he came into possession of the child abuse material.
From the agreed facts, as I have said, I accept the majority of the material found on the seven devices was legal pornography, movies and television shows. I also accept, as I have said, that he told police that he was in the habit of downloading very large files containing about 50 movies at a time and that the child abuse material was embedded in this larger volume of material often disguised with misleading file names. He gave this explanation to police on the day of his arrest. It is not an explanation that has come late in the day in a way that might be seen as an ex post facto rationalisation or excuse. He gave police this information on the day of his arrest.
There is a psychiatric medico-legal report tendered from Dr Furst which I will refer to in greater detail later but during the course of that assessment, the offender told Dr Furst largely the same thing in relation to downloading and storing an enormous amount of material in digital format which he then stored on 22 external hard drives ranging in capacity from four TB to 20 TB.
The offender further has written a letter of apology to the Court which has been tendered without objection and in circumstances where he was not required for cross-examination. This letter is relevant for a number of purposes but in that letter, he states that during the COVID lockdown period, he downloaded large amounts of material including copyright infringed movies, TV shows, documentaries, music, eBooks, games and pornography. He stated that he was downloading in amounts that were far in excess of what any one person, including him, could consume and described what he was doing as digital hoarding. There are some findings about this in the psychiatric report which I will come to in due course but in his letter to the Court, that is how he described what he was doing. He said that in that downloaded material, there were files with misleading names and that he had downloaded some abuse material, without any real intent, in this way.
Whilst Dr Furst at p 5 of his report says that the offender denied viewing the child abuse material that he downloaded, I accept that this would seem to be at odds with what the offender has said both earlier and elsewhere. As I said, the offender told police that he knew there was child abuse material embedded in some of the larger downloaded files, but which were hidden behind misleading file names. He can only have known that if he had viewed them at least to some extent. He told police that on the day of his arrest and he has said the same to the Court in his letter of apology. That statement by Dr Furst in my view has to be viewed in that light.
I do not accept either that the offender did not view any of the material, nor do I accept that he said that to Dr Furst. I accept that he did view the material and that is how he knew what it was, but I accept that what that comment from Dr Furst means is that the offender did not view the material in any detail and did not view it all and there is nothing in the evidence to suggest that, having downloaded it as part of a much larger download, he intentionally accessed it on later occasions.
This is a charge of possessing the material by being in possession of the desk top computer and the six hard drives and there is no evidence, which presumably would have been available to the police after analysis, of the offender having accessed the material stored on any of these devices at any time after they were downloaded.
So, from that combination of evidence and especially so since it is the explanation given by the offender from the day of his arrest, I accept that the offender in fact came into possession of this child abuse material in circumstances where it was embedded in much larger and in fact in enormous volumes of electronic material which he downloaded, most of which were movies, TV shows, legal pornography and the like. As such, I accept that he did not intentionally seek out and download this material but having come into possession of the large amounts of material, he stored it all on various hard drives, or retained some on his desktop, in circumstances where he knew that some of it was child abuse material and in circumstances where, having become aware that that is what it was, he should simply have deleted it. That finding forms part of the overall assessment of criminality of the offending, but also affects findings as to the offender's moral culpability, about which more will be addressed a little later in this judgment when dealing with the offender's mental health.
On the combination of these findings I accept, therefore, that sequence 1, albeit serious, is in the lower range of objective seriousness for offences charged under this section.
I know turn to assessing the objective criminality of sequence 2. This is a relatively new offence and there appear to be no authorities to assist the Court in relation to issues of objective seriousness or any comparable cases. There are in fact no cases referred to in the Judicial Commission's statistics either in this Court or the Local Court for sentences for this offence.
The gravamen of the offending is the possession of bestiality material. In this case there were 17 images located on the desk top computer involving real adults and children engaged in sexual acts with an animal and some videos as set out in paras 37 to 39. Some acts involved penetrative sexual activity, albeit, as described, the penetration being undertaken by the animal. The number of images and videos in those circumstances is relatively limited.
There is a reference in the Crown submissions to the decision of the Court of Criminal Appeal, R v Chesworth [2023] NSWCCA 115 and from that I accept that the substantive offence of bestiality, an offence contrary to s 79 of the Crimes Act 1900 , is of course a serious offence which attracts a maximum penalty of 14 years imprisonment and being the substantive offence that it is, a much more serious offence than the offence which comprises sequence 2. Amongst the reasons referred to by the Court of Criminal Appeal in that decision that such an offence must be regarded as serious is because domestic animals have a degree of vulnerability and no capacity either to consent to or refuse to engage in particular acts, including sexual acts with children and adults.
The offence before me, however, is not the offence of bestiality but the offence of being in possession of bestiality material and the Court must be cautious not to conflate the two offences when determining the objective criminality.
Here the images and videos were fairly small in number. They were only found on the desktop and I accept more probably than not, were downloaded in the same way as was the child abuse material, that is as part of larger downloads without any actual intention to seek out the bestiality material and possibly in circumstances where the real nature of the material was hidden by misleading file names. There is very little evidence before the Court in relation to those matters so far as sequence 2 is concerned. The offence itself, that is the offence contrary to s 547E(2), refers to bestiality or animal crush material where it might well be concluded that animal crush material is of a higher objective seriousness because there is real and serious injury to an animal. This is an offence, however, of being in possession of bestiality material. It is an offence, as I understand it, which is capable of being dealt with in the Local Court where the jurisdictional limit would be two years imprisonment.
On the material before me I have concluded that whilst this is not a minimal example of such an offence, and it is of course difficult to try to place it on a continuum of offences because there are few, if any, recorded offences against which any particular offence can be measured, nonetheless it was a small number of images even though involving real people and animals, and whilst there is some penetration it would appear to be from the animal towards the human.
The other issues, however, that surround the finding of objective seriousness are the same as are relevant for a finding of objective seriousness in the child abuse material charge, namely the offender's purpose or lack of specific purpose in downloading the material and those other matters already referred to.
In my view, this combination of factors means this is not a serious example of this offence, nor at the very bottom of the range, but below the mid‑range, towards the bottom of the range capable of being charged under this section.
I now turn to the subjective case tendered on behalf of offender. He is now aged 40 and was 39 at the time of offending. He has no criminal record and, as previously stated, he pleaded guilty in the Local Court at the first available opportunity. He also admitted his guilt more or less immediately after his arrest, but essentially did so when police arrived to execute the search warrant. He assisted police in this way, including admitting ownership of the various devices and making it, therefore, unnecessary for any evidence to be gathered to connect him to those devices. The utilitarian value of his plea is significant in the circumstances.
I now return to the issue of his moral culpability. This must be viewed in the context of his psychiatric condition. There is a report from Dr Furst and from his treating psychiatrist and psychologist, a letter from him and a letter from his mother.
There was an objection on behalf of the DPP to a portion of his mother's letter, but not generally. I accept from the bulk of the offender's mother's letter that it provides significant support for the history given by the offender to Dr Furst on which he based his diagnoses, at least in part.
I accept from this combination of material that the offender has lived at home with his mother all of his life and that his younger brother also lives there now. He has a sister who lives elsewhere. He would appear to be intelligent and has tertiary qualifications. He has an intermittent employment history largely via home working with call centres, which itself has a connection with his mental health disorders to which I will refer soon.
He experienced emotional and physical abuse at the hands of his father from the age of four to 14 and has had no contact with him since he was about 20. He is now 40 and has never had an intimate relationship and lives in a state of social isolation.
I accept from his mother's letter to the Court that he has rarely left the house where they live for the last 23 years. He has experienced depression and anxiety since he was an adolescent and has been medicated with antidepressants since adolescence and been in receipt of psychiatric and psychological care from that time. He has had problems with severe obesity requiring sleeve gastrectomy in the past. His way of coping with these stressors and the psychiatric conditions was to withdraw into himself and also physically into his home.
His work at the time of his arrest was with a call centre providing roadside assistance which he was able to do from home. He was due to be promoted within that organisation at the time of his arrest but lost that job because he was not permitted to access the internet. He has not been able to make any claims for social security benefits since his arrest because of the same internet ban and his agoraphobia and social anxiety disorder. He has been financially and emotionally supported by his mother since he was arrested, and she will continue to do so in the future.
In 2020 he suffered a severe back injury and has had surgeries to correct that injury. He developed a dependence on painkilling medication arising from this condition and as recently as 2023 was admitted to the Hills Clinic to deal this dependency.
I accept that he did not in any of his medical treatment, disclose any actual interest in child abuse or bestiality material, notwithstanding his possession of it, in the circumstances which I have already found and had no general compulsion to view the pornography.
I accept from Dr Furst's report that he has been suffering with very low self-esteem since being abused by his father as a child and adolescent and accept Dr Furst's diagnoses of the following psychiatric conditions from which the offender now suffers:
1. Social anxiety disorder
2. Panic disorder
3. Chronic pain disorder
4. Benzodiazepine and analgesic/opioid use disorder
I accept Dr Furst's opinion that the offending arose in the context of the offender's social isolation, which itself was a maladaptive method of coping with his chronic pain, chronic anxiety and addiction to pain medication. I accept that he withdrew from social contact in that context and that his obsessive downloading and hoarding of electronic material formed part of his overall psychiatric disorder.
In particular I accept Dr Furst's opinion that the offender's hoarding of electronic material relieved his anxiety and distracted him from his problems and in turn reinforced his maladaptive patterns of coping, which included avoidance, which itself was part of his social anxiety disorder. His overuse of pain medications was also part of the basis on which he sought to relieve his anxiety but which of itself also dulled his ability to make proper judgements at the time.
Both in his letter the Court and in his consultation with Dr Furst, the offender has also claimed that to an extent he committed these offences because he wanted to commit suicide but was not prepared to do so in his home because of the impact that would have on his family. He told Dr Furst that to an extent he rationalised that if he committed these offences, his behaviour would be discovered by authorities and he would go to gaol where it was likely either that he would commit suicide there himself or he would be killed by other inmates.
In his letter to the Court the offender states that even though he did not have any real intent to download abuse material, he came to realise that this is what he had done and that eventually he would be discovered by the authorities and be arrested and sent to prison. In that letter he even says that he believes he deserves nothing less than maximum incarceration because of the selfishness of his actions. In the next sentence, however, he also states his fear of incarceration and his view that he may commit suicide.
His letter is complicated and contradictory and, in my view, indicative of the serious mental illnesses from which he continues to suffer and from which he was suffering at the time of offending.
I accept that the offender is in fact a suicide risk generally and particularly so if incarcerated, and in fact I accept from the letter written by his mother to the Court, that he has been contemplating suicide for most of his adult life and more so in the last 12 months. He has also demonstrated symptoms of obsessive compulsive disorder to her, some of which involve self-harming behaviour including on occasions when he is suffering from severe anxiety in which he tends to wash his hands too much, to the point that his knuckles crack and bleed. I also accept his mother's evidence that he had started to demonstrate some intermittent facial tics which he is sometimes able to control but which are increasingly less able to be controlled with increased anxiety.
He has also told her that to an extent his offending had a connection with his own self-hatred and a view that being arrested and imprisoned would give him the opportunity to either commit suicide or be killed by someone else in prison.
All of this is an insight into the serious and complicated psychiatric conditions from which he suffers and from which he was suffering at the time he committed the offences before me.
At a very simple level, I accept that these psychiatric conditions had a direct connection to his offending because his downloading of the material was obsessive and part of the combination of his psychiatric conditions. Whether or not at the time he also viewed it as a way to get caught and have his life end may also have played a part in his offending, but that too is inextricably caught up with his combination of serious psychiatric conditions.
Sentences for offences of this type must clearly carry an element of general deterrence because of the abhorrence with which the community regards offences involving the possession of child abuse material. However, I accept that this offender's moral culpability for this offending is markedly reduced because of his longstanding and complex psychiatric condition and that he is a poor vehicle for general deterrence in those circumstances.
I accept Dr Furst's opinion that the offender does not display any sexual paraphilia and is a low risk of re-offending, either in relation to accessing child abuse material or at all. I accept Dr Furst's opinion, which has also been seen in many other reports tendered to the Court in connection with offences of this type, that there is in fact a very low correlation between those who offend by possessing child abuse material and any actual offending with children and that this offender's risk is extremely low.
He has expressed real remorse and contrition in the letter that he has written to the Court and what he has told Dr Furst and others.
His prospects of rehabilitation in terms of not re-offending are good, even though his mental health and physical problems are severe. He is receiving treatment from a psychiatrist and psychologist, which I accept would continue if he were in the community, and that his prospects of rehabilitation are enhanced if he continues to receive that treatment. That treatment would not be available to him in custody. He has physical health problems which require medication which is available to him in the community. Whilst his physical health would be treated whilst in custody, it is unknown whether he would be permitted to continue on the medication regime he is currently receiving because of the nature of some of those drugs.
He has ongoing support from his mother and that will continue whether he is in the community or not, but if he is in the community he will live with her and continue living with her as he has done for the last 40 years. The evidence is that the offender does not have any contact with children in that house and because of his ongoing agoraphobia and social anxiety disorder is unlikely to venture far, if at all, from that house and certainly not without her.
I accept from his treating GP, the report of Dr Furst and the other doctors treating him that the offender would be extremely vulnerable in a custodial setting. He is at serious risk of suicide and physical assault and aggression by others because of his poor mental health condition. He is at risk of being stood over and his mental health is likely to decline significantly if in a custodial setting.
I have also read and take into account the sentencing assessment report from Community Corrections and the case note report annexed to that. The content of that report and the case note report in large part is supportive of the statements made by the offender to Dr Furst by way of history, his letter to the Court and the contents of his mother's letter and the opinion expressed in the case note report is largely the same as that of Dr Furst in relation to the lack of correlation between child abuse material offenders and actual offenders and the fact that there are no actuarial assessment tools currently available regarding no-contact sexual offences, such as possessing child abuse material, to assess, actuarially at least, the risk of reoffending. I also accept from the case note report annexed to the sentence assessment report that the offender's risk of reoffending was estimated at the below average risk category, albeit that there were some dynamic risk factors identified in the areas of intimacy deficits and general and sexual self-regulation domains. Based on his risk level, I accept that he is not eligible for any sex offender programs offered by Corrective Services NSW. In other words, there are no programs likely to be made available to him if he is in custody.
Overall, Community Corrections assesses him at a medium low risk of reoffending and that is largely generally because of the general issues surrounding his psychological deficits which have already been referred to in the report of Dr Furst and others.
I accept that it would only be in an exceptional case that the Court would impose a sentence for sequence 1 of something other than imprisonment and in doing so make a finding that the s 5 threshold has not been crossed. I have ultimately concluded that, taking into account all of the matters which I have addressed in this judgment, this is one of those cases which can be regarded as somewhat exceptional. It must be noted that whilst the Court must find that in order to sentence an offender to something other than prison for these offences there must be some exceptional quality to the offending, that does not mean that the case must be unique. It must be noted that it is not unique that this Court would deal with these offences in some way other than full time imprisonment. Whilst the Judicial Commission statistics indicate that the vast majority of sentences for these offences lead to terms of full time imprisonment, more that 10% are dealt with by way of Community Corrections Orders. So, it is far from a unique outcome, albeit that it must be a somewhat exceptional case in which something other than full time custody is the outcome.
As in all sentences, it is the task of the sentencing judge to synthesise all of the material and as was stated by Haesler DCJ in the decision of R v Ebejer [2020] NSWDC 473 at para 56:
"The Court must attempt to translate the complexity of the human condition and human behaviour to units of punishment."
Just as Haesler DCJ did in that case, I share the view that a sentence to be served by way of an Intensive Correction Order might have been appropriate for the offender before me because of his serious mental and physical conditions, the very clear connection between his mental condition and the offending, and the fact that dealing with him in the context of his mental and physical health in the community would be far more likely to ensure his ongoing rehabilitation. That, of course, is not available even if it were the case that, in the circumstances, the threshold is crossed.
Engaging as I do, however, in that instinctive synthesis, I have concluded that the threshold for imprisonment for sequence 1 is not crossed and that this is one of those exceptional case where the appropriate sentence, from both the perspective of the offender and the community, is to deal with him by way of Community Corrections Order for the maximum period of three years imposed by the legislature, on conditions which I will soon spell out.
Turning then to sequence 2, it is below the middle of the range in terms of objective seriousness and is an offence with a much lower maximum penalty. The threshold is not crossed and it should too, in my view, be dealt with by way of Community Corrections Order for a somewhat shorter period of time. I will be setting a Community Corrections Order of 18 months for that offence. They should both be served concurrently with each other because they both arise largely in the context of the same episode of criminality.
It is then only necessary to determine the conditions that ought attach to the Community Corrections Order. I am proposing that they be that he accepts supervision of Community Corrections and report to the Hornsby Community Corrections Office within a week of today. There should be a further condition, that he continue treatment with his treating psychiatrist and psychologist as directed by them and that he engage in such other psychological services and other programs as directed by Community Corrections. I will amend the second condition so that is it also that he continues treatment with his General Practitioner, psychiatrist and psychologist as directed. They are the three conditions that I propose.
For those reasons then I make the following formal orders:
1. The offender is convicted.
2. For sequence 1, he is sentenced to a Community Corrections Order of three years from today.
3. For sequence 2, he is sentenced to a Community Corrections Order of 18 months from today.
In each case, those orders will be subject to the following conditions:
1. That he accept supervision and guidance of Community Corrections;
2. That he engage in such psychological services and other programs as he is directed by Community Corrections;
3. That he continue treatment with his General Practitioner and treating psychiatrist and psychologist as recommended by them.
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Decision last updated: 10 September 2024