R v CURTIS

JUDGMENT

1. When arraigned before a jury, the offender, Michael Curtis, entered pleas of not guilty to seven Commonwealth offences. The jury returned verdicts of guilty to six of those counts. The offender is to be sentenced for the following offences:

2. Counts 1 and 3: cause to transmit child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code*;*

3. Counts 2 and 4: transmit child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code*;*

4. Counts 6 and 7: possess child abuse material having been obtained using a carriage service contrary to s 474.22A(1) of the Criminal Code*;*

5. Each offence provision has a maximum penalty of 15 years' imprisonment.

6. I must sentence in accordance with Commonwealth sentencing principles. The maximum penalty for an offence provides relevant guidance. In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

7. During the trial the offender signed an agreed facts document: Exhibit F. Much of the content was readily provable by direct evidence. However, it saved some limited time in presenting the evidence in this form. The material agreement that saved time and spared the jury being exposed to the source images, was the acceptance that the material was child abuse material. I also take into account that the offender assisted the investigation by providing his passwords to devices. This approach reflects a willingness to facilitate the course of justice and utilitarian benefit and warrants recognition and some amelioration to sentence.

8. This is a sentence after trial and the facts for sentence are to be derived from the evidence called at trial. Any determination on the facts must not be inconsistent with the verdict of the jury. Different standards apply to findings whether made adverse to or in favour of the offender.

9. The offences of cause to transmit occurred in 2021 and 2022 and those of transmitting occurred in 2021 and 2022. Specific and different date ranges are provided for each of those offences. The two offences of possession related to what was located on two phones on 25 May 2023.

10. The offender had been married for many years to a Filipina woman with whom they shared an adult child. His wife died and he travelled to the Philippines to settle parts of her estate. The offender arrived in Australia from the Philippines on 23 May 2023. He was stopped by ABF officers who requested to search his electronic devices. An initial manual examination located some material which resulted in devices being seized for further examination. Further evidence was obtained that confirmed, consistent with the verdicts of the jury, that the offender communicated with another person based in the Philippines. The communication supporting the offences was with one woman. The offender both transmitted videos and images of child abuse material and also sought, or caused, similar material to be transmitted to himself. This communication was recorded in WhatsApp messages that were extracted from his devices. He retained child abuse images on two devices and these were located after software was used to extract the images.

11. The child abuse material involved real children of differing ages including babies to pubescent although in the most pre-pubescent to pubescent. Exhibit F reflects that count 6 is supported by 14 videos and count 7 by 13 videos and 4 images. Count 6 involves a baby through to pubescent children and involves various acts including penetrative acts. Count 7 involves pre-pubescent through to pubescent children and involves various acts including penetrative acts. Each of these interactions would have occasioned harm being emotional or physical or both to the child victim. I do not accept the submission on behalf of the offender that no physical harm was discernible. Anal penetration with objects on such young children is likely to cause physical harm in the sense of pain or discomfort. I do accept the material does not contain acts that entail torture, cruelty beyond the acts themselves or observable physical injury.

12. The offender was interviewed at the airport and then again the following month. He told police he did not transmit or solicit child abuse material. He accepted he did receive, without request, child abuse material and he believed he had deleted the material. The offender relied upon this version at trial. He did not give evidence.

13. The exploration of the offender’s communications on two separate phones reflected the offender both transmitted and solicited child abuse material. There is a charge of each offence per phone. The verdicts reflect a satisfaction by the jury that the offender communicated and exchanged images with one person, “Nhell”, over the period of time. The evidence established that the offender was involved in an online relationship with Nhell. She also sent intimate images of herself to the offender. Although the offender made modest payments to Nhell, the only benefit he received from transmitting material was to receive further material. There is no suggestion he received monetary enrichment. He did directly liaise with Nhell rather than engaging in anonymous downloading of child abuse material. The material evidences knowledge by the offender that Nhell was involved in more criminality as reflected by her participation in the dark web. This participation was not utilised for their exchanges.

14. WhatsApp messages on the ‘205’ phone detected the offender received 10 videos from Nhell and sent her one. These are counts 1 and 2 respectively. WhatsApp messages on the ‘A22’ phone detected the offender received 11 videos from Nhell and sent her four. These are counts 3 and 4 respectively. Exhibit M captures the images sent and received by the offender, cross-referenced to videos located on the respective phone to support the possession offences. Count 6 concerns the 205 phone and counts 1 and 2. Count 7 concerns the A22 phone and counts 3 and 4. I appreciate one entry on Exhibit M, [Record 39] related to count 5 for which a verdict of not guilty was returned.

15. The Crown summarised the effect of Exhibit M in Crown written submissions (“CWS”) at [14] and [20] as:

16. 14.1 In relation to Count 1, the Offender caused to be transmitted to himself ten (10) of the fourteen (14) child abuse material videos described in the agreed facts - Exhibit F. All but one video in the “Exhibit H” column of Exhibit M (VID- 20211208-WA0014.mp4) were caused to be transmitted to himself between 13 October 2021 and 13 December 2021 from “Nhelle Watts” or “Nhelle” on the WhatsApp platform. The Offender received three (3) of the same child abuse material videos on a second occasion.

17. 14.2 Count 2 concerned the Offender transmitting one (1) child abuse material video to ‘Nhelle’ using the WhatsApp platform on 8 December 2021, namely “VID-20211208-WA0014.mp4” at page 498 of Exhibit H.

18. 14.3 In relation to Count 6, the Offender possessed thirteen (13) child abuse material videos. All but one video (VID-20211213-WA0000.mp4) referred to in the “Exhibit G” column of Exhibit M corresponds with the fourteen (14) video files described in Exhibit F - the agreed facts.

19. …..

20. 20.1 In relation to Count 3, the Offender caused to be transmitted to himself ten (10) of the thirteen (13) child abuse material videos and four (4) images described in the agreed facts - Exhibit F. The videos that do not form part of Count 3 are referred to in the “Exhibit J” column as Record 39, record 188 and one video does not feature at all. The Offender caused the videos to be transmitted to himself from “Nhelle Watts” or “Nhelle” on the WhatsApp platform between 8 January 2022 and 30 September 2022. The Offender received eight (8) of the same child abuse material videos on a second occasion and one on a third occasion.

21. 20.2 Count 4 concerned the Offender transmitting three (3) child abuse material videos to ‘Nhelle watts’ using the WhatsApp platform between 1 September 2022 and 27 September 2022. Specifically, these videos are referred to in the “Exhibit J” column as records 63, 103 and 188.

22. 20.3 In relation to Count 7, the Offender possessed twelve (12) child abuse material videos and four (4) child abuse images. All but one video (VID- 20220927-WA0016.mp4) referred to in the “Exhibit I” column of Exhibit M corresponds with the thirteen (13) video files and four (4) image files described in Exhibit F - the agreed facts.

23. In the absence of any suggestion this would not be accepted, I adopt this as an accurate summary of the material to sentence upon.

24. I am assisted in factors pertinent to determining objective seriousness by the factors nominated in both Minehan v R [2010] NSWCCA 140 and R v Hutchinson [2018] NSWCCA 152.

25. The actions of the offender were for personal benefit and from which the offender must have derived sexual gratification. The terms of the communication suggest a personal sexual interest. No other reason is advanced. I accept that generally possession or soliciting the transmission for personal use is less serious than other explanations. The offender transmitted images as part of an effort to receive images. He was engaged in an arrangement whereby images were effectively traded. The offences have a reckless fault element. I am satisfied beyond reasonable doubt that the offender knew the material was child abuse material. The female with who he communicated requested payment on occasion. She presented, not as a like-minded person sharing the same interest as the offender, but someone who was involved for financial benefit.

26. I accept there was no sophistication to the storage of the material possessed or the manner of exchanging material. The relationship operated at a level that was effective in both sourcing and sending the images. The relevant factors in assessing the seriousness of the offences include a consideration of the number of images, the description of the images as to the nature of the act and the age of the child. The descriptions reflect multiple victims.

27. The possession offences are limited to the date of discovery. The other offences plead periods between a month to many months. Count 2 only involves a sole occasion.

28. Counts 1, 3 and 4 rely on a course of conduct, with various separate acts supporting each count. Each offence is to be reviewed as occurring in the context of the other offending and with an understanding that the involvement in illicit images was not brief.

29. The Crown submitted all offences ‘do not fall at the lower end of seriousness for this type of offending’. It was submitted on behalf of the offender that each offence fell below the mid-range and in the lower range of objective seriousness. I consider each offence contains highly objectionable material but that there is very much limited quantity, more so for the transmission offences. I accept the characterisation advanced by the offender.

30. The offender is now aged 69. He was employed as a teacher and after retirement, maintained involvement in teaching through providing tutoring to students. The Crown submitted the loss of employment caused by the charging and the loss of authority to work with children is a form of extra-curial punishment as there is loss of income. I do not discern this requires any amelioration to sentence.

31. The offender was a person of prior good character. Although good character is held to have limited significance in this type of offending, this record entitles him to some leniency. At trial he was supported by witnesses who attested to aspects of his good character and those expressions are amplified by further references tendered on sentence. None had any awareness of this debauched conduct he engaged in. This ignorance of what occurs in private is fairly typical of those who commit this type of offending.

32. The offender's subjective case is supported by numerous references and psychological opinion. The offender experienced no particular disadvantage as a child. He was raised in a pro-social environment. Although somewhat diminished by his arrest and charging, the offender had and still has considerable support in the community. The offender’s wife died in March 2022. It is of some significance that the offender had already commenced engagement in child abuse material prior to this sad event. Her death is of significance given the diagnosed grief disorder caused by the event. The offender indicated he engaged in sexual encounters outside of his marriage given his wife being older and no longer sexually intimate. The WhatsApp messages reflect he was in a relationship of sorts with Nhell before his wife’s death. The offender explored the connection of his offending with his elevated alcohol consumption. This was part of the material advanced in the report of Dr Paul Pusey, Clinical and Forensic Psychologist. The crux of his reference to substance abuse is to frame an increase in usage subsequent to the discovery of the child abuse material. Despite this, he specifically stated he perceived alcohol to inform his offending as it impaired his decision making, concentration and thinking. It is also said to have informed his chat relationships and that it inclined him to be manipulated by his chat mates and girls. He engaged in the conversation from 2021 onwards. This is a period before and after the death of his wife. The content of the messages does not reflect any manipulation. He presents as actively involved in the forwarding and receiving of images, more so receiving. Even if alcohol disinhibited his conduct on occasion there must be an underlying interest as otherwise it is contemplated that the types of images would cause a natural revulsion. I would not consider the disinhibiting role of alcohol to warrant amelioration to sentence.

33. Treatment for alcohol dependence, depression and anxiety is said to have commenced after he was apprehended. This suggests a nexus between detection and treatment which raises the prospect that the issues were not causally connected to his offending. However, the offender told Dr Pusey that he perceived the connection and said he was depressed, anxious and under the influence at least some of the time when ‘this’ occurred. I take this to refer to the conduct supporting the offending. He also advanced grief from his wife’s death to operate. I reiterate that he commenced offending before she died. His account is that he already had sexual relationships outside the marriage before her death and engaged in alternative conduct.

34. Dr Pusey recorded the offender referring to the evidence at trial omitting relevant conversations. There was no additional evidence sought to be tendered on his behalf at trial or on his behalf for sentence. I do not comprehend what the offender intends to convey in having indicated he now acknowledges his guilt ‘according to law’. This presents as no more than alluding to the verdicts of the jury. This interpretation reconciles with his statement about the impact from his arrest and how imprisonment would be unfair.

35. I accept the mental health diagnoses of current issues. I am cognisant that Dr Pusey indicated the offender may have sought to mislead in some respects that would present him more favourably. I do not consider the sustained involvement in child abuse material, as reflected in the separate offences, to be consistent with it being impulsive behaviour. I accept some aspects would be exacerbated if the offender were sentenced to custody and that this would elevate the onerous conditions in custody. I am unable to determine they existed at the time of offending or there to be a causal connection between the offender’s mental health and the offending. There is nothing that supports a lessening of moral culpability.

36. The psychologist’s opinion is that the offender falls in the low risk of reoffending.

37. Dr Pusey recorded the offender acknowledged remorse and feelings of guilt over the death of his mother and that he was sending and receiving child abuse material and the fact this is a crime. This does not reflect true remorse for his conduct. Consistent with defending the offences at trial, the offender has not expressed what I determine to be genuine remorse or demonstrated any insight into the harm occasioned from his offending. For an educated man with experience in teaching youth, this absence of insight is of concern.

38. The offender has a number of medical and physical impairments. He has an Achilles injury that requires immobilisation or surgery. During the trial he used a crutch to assist his mobility. The offender did not action either option pending trial. He also has diabetes managed through diet. There is an issue with cholesterol, prostate and respiratory issues, all largely not unexpected for a man of his age. Any medical issue would be assessed and triaged. On his behalf it was submitted that his health would likely deteriorate more quickly and imprisonment would adversely impact his mental health. I do not agree with the former. The latter is likely to the extent any person entering custody would experience an adverse impact to their mental health, especially one such as this offender with previously treated depression. There is an expectation his needs could be addressed by Justice Health. I accept that he is aging and is not without some difficulties that may render custody more challenging.

39. The offender still provides meaningful assistance to his daughter and her family. His medical position and age have not prevented him assisting in caring for his grandchild. He will be able to sustain himself financially by renting his property, including to his current tenant if appropriate. I accept his absence would make childcare more difficult and deprive his family of his involvement in their lives. There is a not unexpected hardship to his family, operating at the level typically experienced. I take it into account to a limited extent. I accept there will be continuing support for the offender in the community.

40. I am mindful of the need to ensure adequate punishment. General deterrence and denunciation are important sentencing considerations in these types of offences. These offences are committed in private and are difficult to detect. I do not regard the offender’s mental health issues to lessen the significance.

41. Given that the offender committed his overall offences over a reasonable period of time it cannot be regarded as fleeting or a momentary indiscretion. There must be an interest in the material as it is not the sort of material someone would want to send, receive or possess without a definite desire. Despite a late in life onset, there remains a need for personal deterrence.

42. The offences inherently exploit and harm children. The offender, through transmitting and possessing the material, performed a role in sustaining this insidious industry.

43. I expect that the discovery of the material and resultant charging will provide a salutary lesson. This is amplified by the loss of friends which operates as a further censure. Those friends who remain loyal are now apprised of the offender’s interests and the offending and can provide focussed and informed support. Rehabilitation is a matter relevant to sentence. Although given the pleas and the continuing denial of sexual interest in the material it is unlikely that true rehabilitation will occur. True rehabilitation would be fostered by grappling with his offence motivations. I accept that there is a recommendation that he engage in sex offender treatment. Given the maintaining that there is no evident sexual interest in children despite almost two years of transmitting child abuse material it is unlikely that there will be a discernible benefit to the offender. Consistent with the matter proceeding to trial there has been no treatment addressing any underlying issue pertinent to offending. I acknowledge he has sought to obtain treatment for his depression and alcoholism.

44. Treatment focussed on criminogenic factors may commence in custody but is more likely to be addressed once released into the community and guided by a condition of release.

45. The Crown submitted only a term of immediate imprisonment was warranted. It is not accepted on behalf of the offender that a full-time term of imprisonment was required. Having considered all other available options, I am satisfied that no sentence other than full-time imprisonment is appropriate. Sentence will be backdated by three days to account for presentence custody.

46. I am assisted by suggested comparable cases. They reflect a range of sentencing outcomes informed by findings on objective seriousness and the strength of subjective material.

47. I am required to reflect upon there being discrete criminality reflected by each offence. There is however considerable overlap between the child abuse material solicited and that possessed. This justifies only limited accumulation. There is a requirement for a degree of accumulation overall between the offences given the additional and separate criminality. The sentence for one offence would not encapsulate the criminality of the other offences.

48. The offender is convicted on all six offences.

49. I propose to impose an aggregate sentence. The indicative sentences are:

50. Count 1, cause to transmit- 2 years imprisonment;

51. Count 2, transmit- 9 months imprisonment

52. Count 3, cause to transmit- 2 years imprisonment;

53. Count 4, transmit- 9 months imprisonment

54. Count 6, possession- 2 years and 6 months imprisonment

55. Count 7, possession- 2 years and 6 months imprisonment.

56. The sentence imposed is one of 3 years and 6 months imprisonment to date from 24 March 2025 with a non-parole period of 2 years. The offender will be eligible for release to parole on 23 March 2027.

57. The Crown made an application for forfeiture of the seized phones. The offender consented to the making of the order. I make the order set out in the forfeiture documentation.

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