R v Curle

R v Curle - [2023] NSWDC 654 - NSWDC 2023 case summary — Zoe

[5]

The offences

Between about 23 January 2022 and 8 March 2022, the offender engaged in online communications via the Telegram messenger application. During these communications, the offender sent and received Child Abuse Material in the form of images and videos to and from other Telegram users. An examination of the offender's Desktop computer hard-drive, Telegram account and Samsung mobile phone revealed that the offender had accessed Child Abuse Material files via Telegram, had saved both Child Abuse Material files from Telegram and Telegram messages containing Child Abuse Material to his Telegram account and Desktop computer, and had saved Child Abuse Material files from other sources to his Desktop computer and mobile phone.
Sequence 1 relates to the offender's possession of Child Abuse Material found on his desktop computer, on the Telegram application and on his mobile phone on 9 March 2022.
Sequence 2 relates to the offender's earlier access to Child Abuse Material using his Samsung Galaxy S22 mobile phone between 24 February 2022 and 9 March 2022.
Sequence 3 relates to the offender's earlier transmission of Child Abuse Material to various recipients via the Telegram application between 23 January 2022 and 8 March 2022.
Child Abuse Material is classified into categories under the Interpol Categorisation System. This classification system provides two tiers of child abuse material. Category 1 is the Interpol Baseline which is used in a number of international jurisdictions because it identifies sexual material involving pre-pubescent child victims that is illegal in all countries with child exploitation material laws. Category 2 is for material which falls within the Australian definitions of child abuse material which are broader than the international baseline, including sexual material involving post-pubescent child victims and material involving physical abuse and torture of any child. The system does not give a gradation based on the gravity of the child abuse depicted or described in the material, unlike previous classification systems.

[7]

The mobile phone - Telegram saved messages

During the search warrant, Police reviewed 254 Telegram chat messages which had been saved by the offender in the Telegram application on his mobile phone. Each of the saved messages contained at least one image or video file. The files included: 1. 60 Child Abuse Material images, which Police categorised as Interpol category 1. The age of the child victims appeared to range from 2 to 13 years old. They were all female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included (adult) penile/(child) anal penetration, (adult) penile/(child) vaginal penetration and (child) oral sex. 2. 384 Child Abuse Material video files, which Police categorised as Interpol category 1. The age of the child victims appeared to range from 2 to 13 years old. They were predominantly female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included (adult) penile/(child) anal penetration, (adult) penile/(child) vaginal penetration and (child) oral sex. One file was (child) penile (child) vaginal penetration.
Three of the video files were files received by the offender from "Pablo Rodriguez" during the chat referred to later in my judgment, in response to the following messages sent by the offender: "Hello there". "I love your forced videos". These files are described as: 1. A 1 minute and 54 second video file depicting a real, prepubescent female being held down on a bed and an adult male performing penile/vaginal penetration in several positions while the prepubescent female is seen to be struggling and crying; 2. A 22 second video file depicting a real, prepubescent female tied to a bed head by her wrists and an adult male forcing his penis into her mouth; and 3. A 22 second video file depicting a real, prepubescent female tied to a wall by her wrists and an adult male forcing his penis into her mouth.

[26]

The offender's background

The offender's background is set out in the two reports. The offender did not know his biological father and believed his stepfather to be his father until he was in his thirties. The offender's stepfather was physically abusive to both his mother and him until his stepfather left the home when he was around 12 years old. The offender left school during year nine following arguments with his mother and ran away from home. He said his attitude changed after spending several weeks in a boys' home and he returned home to his mother and found a job soon afterwards. The offender has been employed since then and has worked all his adult life except for a period when he was recovering from a work injury.
The offender told Mr Randall his childhood was "pretty crappy" and had experienced bullying at school and some violence at home. He recalls an occasion where his mother burnt his fingers for setting fire to a toy box and her friends using illicit drugs in his presence.
The offender told Mr Randall that he had very few friends throughout his childhood. He said he had three significant intimate relationships and had been married to his wife for twenty years. He said that during his other relationships he began using adult pornography to alleviate negative feelings throughout his later teen years, it eventually becoming a daily activity and coping mechanism.
Mr Randall was of the opinion that the offender's difficulty in forming appropriate relationships was likely exacerbated by his observations of his parent's dysfunctional relationship, and the excessive discipline he reported. Mr Randall was of the opinion that the offender's use of adult pornography was a coping mechanism that likely further prevented him from engaging and developing deep intimacy with his partners.
The offender told Dr Nielsen that around 10 years ago he was seeing a general practitioner because of anger problems and that he had been diagnosed with depression. The offender said that in 2016 he was prescribed medication for depression and for anxiety and he had responded well.
Dr Nielsen said that the offender appeared labile in his emotional responses during the assessment and did not seem pervasively anxious or depressed. Dr Nielsen said that, if anything, the offender was a little uninhibited in his remarks about the offending and his frank account of his sexual behaviour.
In evidence the offender said for over six or seven years his stepfather was an alcoholic and that almost every day he would get drunk and would use his hand, fist or a belt to beat his mother and him for "no good reason". This only ended when aged 12 or 13, when his stepfather moved out. This occurred before he ran away from home. The offender said he slept on the streets and would sometimes shop lift. He got caught, was charged and spent three weeks in a boys' home. The offender said that after he left the home he spoke to his mother, and she let him smoke at home which he said was the cause of the problems at home. He said he then moved home and went into the work force.

[27]

The offending and the offender's account

The offender told Dr Nielsen that "basically I have been addicted to porn for some years now…I accidently stumbled upon the younger stuff in a chat room on Telegram." He told Dr Nielsen that viewing the material created an interest, and he found himself drawn to images and videos featuring pre-pubescent female children, and he said, "I looked at it until I became bored with that material as well".
The offender told Dr Nielsen that he had accessed a website with fictional stories of sexual activity with children but said he had not downloaded any stories, only images (I note that the agreed facts state that two such stories were downloaded). In evidence the offender said that he did not realise that he had downloaded them.
The offender told Dr Nielsen he did not know why he read those stories but said "I think it was because it was taboo." The offender told Dr Nielsen that he found the Telegram group through a link on Facebook and that he started off with friendly chats in chat rooms until they were closed down and then had private one on one conversations with members of the group, in which he swapped his images.
The offender told Dr Nielsen that this started off with messages being exchanged about the types of pornography that they were interested in, and he had around six or seven contacts at any one time, including those listed in the agreed facts. He said he did not know the people personally and assumed they were from all over the world.
The offender told Dr Nielsen that the offences took place over a period of three to four years prior to his arrest in early 2022. He said part of the attraction was communicating with other people, which he related to his own isolation which included the COVID Lockdown period. In evidence, the offender said that he could not remember when he started viewing child abuse material. When asked how he came up with this period of three to four years that he told Dr Nielsen and that when he spoke to police, he said that it was around a year, the offender said that when speaking to Dr Nielsen he was feeling nervous and anxious and that his "brain starts to panic" and he must have made a mistake. He said he tends to blurt out the "first thing to my brain".
In cross-examination the offender was asked to "do his best" to remember over what period of time he believed he had been viewing child abuse material. Although he initially had said he could not remember he then said, "to be fair, maybe between one and two years."
I note that I found the offender's evidence in chief on this point disingenuous and indicative of my overall assessment of the offender that at different times he attempted to minimise his interest in the child abuse material.
The offender told Dr Nielsen that he was aware that accessing the material was illegal, but he said that "because I was addicted to porn so much yes…I took the chance." In cross-examination the offender said that this was a "wrong answer". He said that it was not that he "took a chance", he said he knew that it was illegal but "I wasn't thinking at the time." He said that he has found out more recently that, "it's because of my addiction to porn and my intimate issues." I found the offender's change on this point to be another example of him minimising his offending and admitted interest in the child abuse videos (see the agreed facts).
The offender confirmed to Dr Nielsen that the video files and images were stored on his computer because he said unlike adult porn it was not readily accessible and needed to be downloaded and stored. The offender told Dr Nielsen that he did review a number of the video files, but said that he mostly only watched them once, and he said, "before I was arrested, I was getting bored with them."
In evidence that offender repeated that before he was arrested, he was "just getting bored with watching child pornography." I do not accept the offender's evidence on this and note that even in the days just immediately before the offender's arrest he was actively seeking to acquire "forced videos".
The offender told Dr Nielsen that although there were distressing images of children being abused, he said he did not like those himself, but had shared them. He also said that he had a high libido and masturbated regularly while watching pornographic videos.
The offender in evidence said that he "did not like the content of the video of forcing children to have sex. I only saved them on my computer in the off-chance I can swap for non-violent videos." He said that he would swap non-violent videos with people around the world. When asked about the comments he made to others to the effect, "I really like that", he gave evidence that he only said that "because he found out that if you're on the chatroom and you don't say certain things, people would not talk to you again."
In cross-examination the offender was further asked about his evidence concerning the forced videos. He agreed that these were videos where children were either tied up or being forced to have sex with adults. The offender was asked why at times he told other Telegram users that he "loved" their forced videos. The offender said that he only said those things at the time because if he did not say certain things people would not talk to him on Telegram. It was put to the offender that he did enjoy those videos and that he was actively pursuing them for his own purposes. The offender denied that and said the only reason he had saved those videos was to share them with other people on Telegram. The offender denied that he was sexually aroused by the forced videos. He said that if he knew someone had a particular video that he might be interested in, he would ask them if they were interested in forced videos and then he would swap videos.
The offender told Dr Nielsen that he did not believe that his sexual attraction to prepubescent children was a long-standing interest, and that he "found it by accident…I started reading the stories and that led me down a dark hole of Telegram." The offender denied having a specific attraction to children, despite the nature of the images he stored. He told Dr Nielsen, "I think the biggest problem I have is that I don't enjoy sex."
In evidence the offender said he accepts Dr Nielsen's diagnosis of him having a paedophilic disorder. He sought to explain this denial of sexual interest in children by saying that he "actually misunderstood the question" he was asked and thought that he was being asked if he "wanted to actually have sexual intercourse with children." Even allowing for the offender's comprehension difficulties, I found this to be another example of the offender trying to minimise his interest in the child abuse material.

[29]

Mr Randall's report and evidence

Following the offender's arrest, he was referred for psychological treatment to Mr Randall, psychologist. Mr Randall has been treating the offender since 18 May 2022 and at the time of the report had seen the offender on seventeen occasions for counselling. In evidence Mr Randall said that the program generally takes between one and two years and the offender was not even halfway through the program.
Mr Randall reported that the offender was initially reluctant to engage in therapy, however, after the first two sessions, Mr Randall said the offender noted that he had begun to have developed insights and perspectives which he had not previously considered. Mr Randall was of the opinion that as a result, the offender's engagement in the sessions has been "remarkable", that he "regularly talks about looking forward to the sessions, and often notes he misses the sessions when there is an extended gap between sessions."
Mr Randall reported that the offender had difficulty with the vocabulary required to share concepts, which required a slower delivery of the treatment. However, Mr Randall was of the opinion that the offender "had made remarkable progress and gained significant insights into his offending behaviour, past distorted thinking, and past maladaptive coping mechanism."
Mr Randall reported that the offender had said that he had gained insight into his previous distorted thinking regarding pornography and the importance of developing close relationships. Mr Randall was of the opinion that a significant insight gained by the offender is his realisation that he had difficulty with witnessing and expressing intimacy.
Mr Randall reported that whilst treatment is available in custody, those programs are limited and generally reserved for inmates at a high risk of reoffending. Mr Randall acknowledged that his report concerned treatment rather than providing a risk assessment but yet offered an opinion that in light of the offender's response to treatment, his risk of reoffending is "very low". As such, Mr Randall reported that he did not believe that the offender would be able to access treatment in custody.
Mr Randall was also of the opinion that any interruption to the offender's treatment, caused by a custodial sentence, would likely be detrimental to his long-term recovery. Mr Randall was of the opinion that any custodial sentence "would add to his experience of trauma from childhood, reinforce his behaviour of isolation, as well as his previous maladaptive coping mechanisms, such as sexual behaviour". Mr Randall reported that in his view a custodial sentence would "undo the progress currently made through therapy and significantly increase the difficulty in engaging in future therapy, thereby increasing the risk of future reoffending."
Mr Randall said in evidence that he believed that the custodial environment would reinforce the "culture of trauma and abuse" that the offender had experienced, and that the offender would "go back to his shell and retreating back to his old ways of thinking" and "that reinforcement would make future re-engagement a bit more difficult and would interfere with some of the progress he's made." Although in cross-examination, Mr Randall accepted that the offender's insight would remain, but that he may close down emotionally.
I note that in evidence the offender (who gave evidence after Mr Randall) said that it had been explained to him that there was a high likelihood of him going into custody and his counsel asked him how he thought he would go in custody. The offender said, "Honestly, not well." He said that "it will be undoing all the good work that I've had with Mr Randall for a start."

[30]

Assessment of the objective seriousness

It is well established that the objective seriousness of offences involving child abuse material and child pornography is ordinarily determined by reference to the following factors: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender. 11. Whether the offender acted alone or in a collaborative network of like-minded persons. 12. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 14. Any other matter in s 16A of the Crimes Act 1914 (Cth) ('the Crimes Act') bearing upon the objective seriousness of the offence.
See Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94], as summarised in R v Hutchinson [2018] NSWCCA 152 at [45].
In assessing the objective seriousness of an offence of possession of child abuse material, it must also be borne in mind that the possession of child abuse material creates a depraved market for the continued corruption and exploitation of children: R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (at [67]. The absence of sale, distribution or dissemination of material does not mitigate the penalty for a possession offence: Porte at [66]. The possession of child pornography is not a victimless crime. On the contrary, because the material remains in the community, the offence creates significant ongoing harm.

[32]

Sequence 1 - possession charge

In relation to sequence 1, the offender possessed a total of 1,107 saved files across two devices which totalled 1,005 videos, 100 images and two stories.
Ms Goodwin on behalf of the offender submitted that this offence falls below the mid-range of seriousness. I do not agree with this assessment. For the reasons identified by the Crown, I find that this offence constitutes a particularly serious example of the offending of its type. Those reasons are as follows: 1. All of the video and image files depicted real prepubescent children; 2. The real children depicted ranged in age from as young as 2 years old to 13 years old; 3. The files had been saved over a period of 4-5 months, with the two "stories" downloaded on 28 October 202119 and one of the video files saved on the offender's mobile phone having been saved on 13 February 2022; 4. The offending involved a total of 1,107 files, of which a significant proportion were video files; 5. The video files included highly depraved material, such as children engaged in sex acts, specific examples of which are as follows: 1. A three- or four-year-old female wearing a pink nightie being anally penetrated by an adult male; 2. A prepubescent female tied to a wall by her wrists being forced to perform fellatio; 3. A prepubescent female being held down on a bed, struggling and crying as an adult male performed several acts of penile/vaginal penetration on her; 4. A prepubescent female tied to a couch with an adult male penetrating her vaginally with his penis; and 5. A prepubescent female tied to a bed by her wrists being forced to perform fellatio. 1. As an aspect of the depravity of the material, it included (as described above) children in a distressed state who were subjected to acts of cruelty and what must, given the nature of the acts, have amounted to physical harm; 2. The offender did not indiscriminately collate the material but was actively seeking such depraved content, as is apparent from conversations he had with other Telegram users: 1. He asked the user "Cristian" whether he had any "forced" videos; 2. He wrote to the user "Chad Perez": "I like to watch little girls sucking cock. Or forced"; 3. He asked the user "Juan S", "Do you have any forced sucking and fucking"; 4. He wrote to the user "Pablo Rodriguez", "hello there. I love your forced videos"; and 5. He asked the user "Blu Savvy", "Do you have any forced videos". 1. I reject the offender's claim to Dr Nielssen and in evidence that he did not himself like distressing images of children being abused in light of the offender's active sourcing of them as just described. I do not accept the offender's evidence that his motivation for acquiring them was to exchange or swap them for non-violent material. If I am wrong about this, I do not consider this would make it more favourable for the offender. 2. It is apparent from the above exchanges that the offender's motivation for accumulating the child abuse material was in part his own sexual gratification. Further, the offender told police in a record of interview that he was "sometimes aroused by the videos and sometimes masturbated to the videos". 3. The offender clearly had a specific attraction to children given the nature of the material he collated and the content of the conversations he shared with other Telegram users. In evidence, the offender admitted as much. Dr Nielssen was of the opinion that the offender seemed to have developed "a specific interest in pornographic material involving children, consistent with a diagnosis of heterosexual paedophilia"; and 4. An additional purpose for the offender's possession appears to have been the further dissemination of the material to like-minded individuals. Although I note that the actual acts of dissemination are the subject of a separate charge and care must be taken to avoid double-counting.

[47]

Determination

As I have already mentioned, I have made a finding that the offender's moral culpability was reduced to some extent by reason of his childhood experience and paraphilic disorder. Accordingly, the need for general deterrence is also reduced to some extent.
However, general deterrence remains a primary consideration in this case, as does specific deterrence, the objective gravity of the offending, the need to denounce the conduct of the offender and to recognise the harm done to the victims involved and to protect a vulnerable class within the community.
For these reasons I am satisfied that no sentence other than imprisonment is appropriate in all of the circumstances of this case.
Ms Goodwin submitted that given the importance of the offender's ongoing treatment with Mr Randall, his response to that treatment, the unavailability of similar treatment in custody and the damage and interruption to that treatment it would cause, that it is in both the offender's and the community's interest to extend leniency and impose a term of imprisonment with immediate release as part of a section 20(1)(b) recognizance release order.
Section 20(1)(b) of the Crimes Act relevantly provides that where a person is convicted of federal offence, the Court may, "if it thinks fit": (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): … (ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances - after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1);
Therefore, it is only if the Court is satisfied that there are "exceptional circumstances" that the Court may release the offender in a Recognizance Release Order without requiring the offender to serve an actual period of imprisonment.
The phrase "exceptional circumstances" is not defined in the legislation. In R (Cth) v Nafarette [2022] NSWDC 225 at [89] Buscombe DCJ said: "In my opinion, the word, 'exceptional', in the statutory context means out of the ordinary course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances."
I have had close regard to the matters raised by Ms Goodwin, being the offender's background, his psychosocial history or treatment history and the possible detrimental impact an interruption to his treatment may cause. However, I am not satisfied that these factors amount to exceptional circumstances for the purpose of s 20(1)(b(ii).
In my view a sentence of full-time imprisonment is required. However, I will order that the term of imprisonment be suspended after a period of full-time custody. The full-time custody component of the sentence will reflect the minimum period that the offender should receive in custody having regard to all the circumstances of the case. This will enable the offender to renew his community-based treatment after that period of custody which will best meet the need for rehabilitation, and through this, best achieve the protection of the community and the need for specific deterrence.

[48]

Orders

I make the following orders: 1. I record convictions for each of the offences. 2. I have reduced each sentence for the offender's guilty plea. 3. For the offence of using a carriage service to transmit Child Abuse Material (sequence 3), the offender is sentenced to imprisonment for 24 months to commence on 9 June 2023 and expire on 8 June 2025; 4. For the offence of possessing Child Abuse Material obtained using a carriage service (sequence 1), the offender is sentenced to imprisonment for 20 months to commence on 9 December 2023 and expire 8 August 2025; 5. For the offence of using a carriage service to access Child Abuse Material (sequence 2) the offender is sentenced to imprisonment for 20 months to commence on 9 March 2024 and expire on 8 November 2025 6. I set a recognizance release order, commencing on 8 March 2025 with a recognizance self in the sum of $1000 for a period of 18 months, commencing on 8 March 2025 and expiring on 7 September 2026 with conditions that: 1. The offender be of good behaviour; 2. The offender be subject to the supervision of officers of Community Corrections and to obey all reasonable directions of that service; 3. The offender obey any requirement of Community Corrections that he permit inspection of any mobile phone owned or possessed by him and to provide access to any data on such mobile phone; 4. The offender accept any direction of Community Corrections that he attend any sex offender treatment program and/or that he be evaluated for or accept treatment for any mental health disorder including depression; and 5. The offender is not, during that period, to travel interstate or overseas without written permission of Community Corrections.
The overall effect of those sentences is that the offender will spend 21 months in custody before being released on a recognizance release order for a period of 18 months.
I also make a forfeiture order pursuant to s 23ZD of the Crimes Act on the application of the Director of Public Prosecutions that the following items are forfeited to the Commonwealth: 1. Samsung Galaxy S22+ mobile phone with IMEI number 355014520000805; and 2. Desktop computer with serial number MSB933K950102356.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)