R v Dale

Plea

1. The offender pleaded guilty in the Local Court; he is entitled to a reduction of each sentence of 25% for its utilitarian value. There are other benefits from the early plea, they show an acceptance of responsibility and the consequences of his actions, albeit after being caught red‑handed with the material on his phone. But there is only limited evidence of any remorse or contrition. I doubt he has the mental capacity to fully understand the impact of his offending on the real victims of this crime, that is the children used in the production of the material which he accessed.

Sequence 11

1. The agreed facts indicate that for sequence 11, the silver HP laptop, there were eight category 1 images and 189 category 2 images. Examples of the category 1 images include children between the ages of 10 and 14 engaged in sexual intercourse with adults. There is no s 16BA schedule associated with that count.

Sequence 13

1. The black laptop offence, sequence 13, involved 164 category 2 images, those images were accessed between April 2020 and May 2020 and a further 61 images were accessed between March 2013 and June 2014. Sequence 18 is on a s 16BA schedule. All of the images depict real, prepubescent and naked children aged 4 to 16 years with naked adults.

Sequence 15

1. For sequence 15, the ASUS laptop, were 343 images, one in category 1 and 342 in category 2. Eleven (11) images were accessed between April 2017 and April 2019. Sequence 19 is on the s 16BA schedule.

Sequence 22

1. On the Samsung Galaxy (sequence 22) and another unidentified electronic device), were found, 12 images, one in category 1 and 11 in category 2, accessed between 23 June 2020 and 8 November 2020. There are two matters on the s 16BA schedule, related to this offence, with 66 images; eight in category 1 and 58 in category 2. They were accessed between 21 September 2019 and June 2020 (sequence 20). And 14 images, all in category 2, accessed between 23 September 2018 and 20 September 2019, (sequence 21 on the schedule).

Sequence 23

1. On the Samsung 53 (sequence 23) were found images relevant images, five in category 1 and 48 in category 2. They had been accessed by the offender on another unidentified electronic device and they were subsequently produced by using the Samsung Galaxy. By "produced" I mean that he took photographs or screenshots of the separate electronic device. These 53 images, were saved on his phone camera. This is a State offence and the production relied upon is the taking of the screenshots. There is also a Form 1 matter sequence 17 Possess child abuse material.
2. There are five matters for sentence, four Commonwealth matters, one State. Others matters must be taken into account. When I take matters into account I go to the respective provisions, either the Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1 or s 16BA Crimes Act 1914 (Cth). I do not in any sense impose sentences for those offences. I do so as part of the synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. They operate here to increase the sentence that would otherwise be appropriate because of the need to recognise for personal deterrence and retribution for the crime for sentence. The matters also go in some instances to show the course of conduct of the offender and the period of time over which he was engaged in criminal activity.
3. So far as the State matters are concerned the production and accessing are so interrelated that to substantially increase the sentence would involve too much of a degree of double counting, in effect the Form 1 enables the offender to clear the slate so far as offences are concerned. It does not diminish, however, the seriousness of the matter for sentence.
4. I thank everyone for the summaries and not insisting that I view the material.

Objective seriousness

1. Child pornography is an international problem, particularly in the internet age. Courts and appellant courts have stressed the need for sentences to denounce such activity and to to impose sentences that attempt to signal to others who might do as Mr Dale did that they will be punished severely. This principle of general deterrence was emphasised in the submissions of the Commonwealth Crown. It was accepted of those submissions by the defence. It is reflected in the maximum penalties to which I must have regard. "Legislatures do not enact maximum available sentences as mere formalities, judges need sentencing yardsticks" Markarian at [30].
2. There are many factors that must be taken into account. They were conveniently summarised by the Court of Criminal Appeal in Minehan v R [2010] NSWCCA 140 and Hutchinson v R [2018] NSWCCA 152.
3. In summary. Actual children were used in the creation of the material. Some of the content of the material involved acts of intercourse between adults and children. All the images were photographs, there were no videos. And they were not as numerous as many of the matters that regularly come before this Court. The images were held for the offender's prurient purposes, that is his sexual gratification. There is no evidence that he transmitted the matter to likeminded individuals and the production was for his own purposes. There was very little by way of planning or organisation. He was not part of any collaborative network of likeminded persons and there was no risk of the material being seen by others, let alone children. There was, however, as the time periods indicate, a course of conduct and persistence in offending over many years.
4. It must be firmly borne in mind that the material in question could not have come into existence without the exploitation and abuse of children somewhere in the world. That abuse and exploitation is what makes these crimes so callous. Every time such images are viewed the offender is reminded of and confronted by pictorial evidence of that exploitation, abuse and degradation and the degradation it causes: R v Booth [2009] NSWCCA 89.

COVID

1. When I come to synthesise the appropriate sentence; I note that Dale went into custody on 26 January 2022. He will be serving his sentence subject to the COVID restrictions; with the risk, that as COVID has entered the gaols, he may suffer from that disease. If he does, I have heard evidence that unless hospitalisation is required he may be locked in a cell by himself quarantined and given only Panadol. He has underlying health conditions. I note that if early parole is given to prisoners, he will not qualify because of the Commonwealth matters; so he is at risk. He is presently subject to quarantine because he is introduced into the gaol system from outside. I take into account the evidence from the Corrective Services website that indicates that services, programs, particularly those with outside program providers and access to family and friend visits are limited and will be limited for some time because of the pandemic.

Subjective case

1. The evidence for Dale was presented in the form of a psychological report prepared by Dr Dornan. That report does not seek to parrot matters put by the offender; in fact it does not seek to minimise his offending in any way. It is a professional report. It indicates that when young the offender was found to have learning difficulties and has considerable literacy problems even to date. Although unsworn I believe I can accept the professional opinions asserted in it.
2. Dr Dornan notes the offender grew up in a supported family. He had learning difficulties at school, and he is still functionally illiterate. He has, however, been able to work and until illness intervened, he worked as a truck driver here and in Western Australia. He has led a relatively normal life in the community.
3. He had a number of relationships one of which was marred by domestic violence offences, in another his dearly loved wife died and Dr Dornan indicates that it is more than a coincidence, that his offending behaviour seems to correspond with the depression he felt after the death of his wife to cancer.
4. Dr Dornan has formed the view that there are some underlying mental conditions including adjustment disorder with anxiety and major depressive disorder moderate. Some aspects of these disorders came on at about the same time he started viewing child abuse material. It is not suggested other than the coincidence that there is any direct correspondence between those underlying conditions and the offending. Rather it would appear that use and abuse of adult pornography was accompanied by an interest in young children that precipitated the offending.
5. Dale would benefit from participating in moderate intensity sex offender programs when and if they are able to be offered to him. He needs to be reviewed by a psychiatrist and psychotropic medicine should be made available to him.
6. He will require psychological intervention to explore his problem solving and consequential reasoning deficits. He has a history of poor self‑esteem that needs to be addressed.
7. In Dr Dornan's opinion this psychological treatment is unlikely to be available to him in gaol but he would benefit from participation in EQUIPS foundation programs. He needs help in dealing with consequential reasoning, emotional impulsivity, reactivity and future goal planning. Because of the underlying nature of his offending behaviour if he does not get this assistance any prognosis as to his future must be guarded.
8. As Mr Fennel, who appears for the Commonwealth Director notes, while he was on bail there is no evidence that he took any pro‑active steps to engage in any form of psychological treatment or sex offender programs, some of which are in the available in the community even during the pandemic. I accept the submission that unless he becomes pro‑active and gets all the assistance possible his prospects for the future will remain guarded, and if he does not take action, grim. While his record does not entitle him to the leniency often given first offenders it is clear that given his age, (born in 1968), his lack of offences of a sexual nature, his capacity to work and form a small friendship network indicates that he does have a capacity to lead a normal community life. But his underlying problems must be addressed both in custody and outside.

Submissions

1. I have had the benefit of written submissions from the Commonwealth Director's office and Mr Kwan, Solicitor who appears for the offender. I have sought to address in these brief remarks matters raised by them and in discussion over today and yesterday when the matter had to be adjourned because the NBN failed us once again. I have to have regard to s 21B of the Crimes Act 1914 (Cth), there is a presumption of imprisonment for the Commonwealth offences, that provision applies to matters that occurred after 23 June 2020. That presumption is rebuttable but Mr Kwan accepts on behalf of the offender that there is no evidence to rebut that presumption. Accordingly, there must a full-time custodial sentence.
2. While the State matter, had it stood alone, may have been dealt with in the Local Court, and attracted an Intensive Correction Order. This could not have happened if it was to be joined with the Federal offences A custodial sentence is required for that matter as well.

Other cases

1. I have had regard to; the summaries provided in the Commonwealth submissions, statistics from the Judicial Commission about Commonwealth offences and other matters, both appellate and at first instance including my own. There is no pattern of sentencing although I do note at present most offences seem to cluster at the bottom of the 15 year range with very few near the top.

Synthesis

1. Sentencing is ultimately a discretionary judgment and the mix of factors that must be weighed in determining appropriate sentence are never precisely the same from one case to the other: see The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550.
2. I must give effect to the basic principles of sentencing law set out in s 16A of the Crimes Act 1914 and to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I also must give effect to Common Law principles. I have to give effect to the specific Commonwealth principles that apply here, they include the requirement that matters be accumulated: s 19(5) Crimes Act (Cth) and s 19(6). Accumulation is not required if the Court is satisfied the imposing of a sentence for a different matter will still result in sentences that are of a severity appropriate in all the circumstances. And, of course, I will give my reasons for any departure. Here that includes the important principle that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstance: Hoare v The Queen (1989) 167 CLR 348. Other relevant factors are Dale's age and underlying health conditions; including diabetes and his other intellectual deficits. Those conditions make him more vulnerable than a prisoner who did not have those deficits, particularly during the present pandemic.
3. Here there will be an aggregate Commonwealth sentence. There is, as I understand, no problem with imposing an aggregate sentence, see Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301, Woods v R [2020] NSWCCA 219, and that overall aggregate must reflect the total criminality. I will need to indicate individual sentences which take into account the matters on the schedules. I have to have regard to all the offender's criminality, distinguishing matters on the schedule from those in the matters for sentence. I have to have regard to the number of images in total and the number of images relating to each offence and their type and the matters to which I have already referred from Minehan and Hutchinson and the guidance offered by those cases.
4. I have to have regard to Dale's prospects for rehabilitation and the need, so far as possible, to engage the offender in rehabilitation. That has two aspects to it as the Crown rightly submit. One aspect is to incentivise and encourage the offender to engage in necessary rehabilitation, the other, as Mr Kwan stresses, is to give him the opportunity of engaging in rehabilitation programs which in this case are unlikely to be provided to him in custody, particularly sex offender matters.
5. I have to have regard to fixing a sentence that adequately signals to others how serious these matters are and recognise that a minimum term must be served.
6. Each of the sentences reflect the 25% reduction: Commonwealth Xiao v The Queen (2018) 96 NSWLR 1; State s 25D of the Crimes (Sentencing Procedure) Act, and take into account where applicable either the Form 1 or the s 16BA schedule.

Sequence 23

1. So far as the State matter is concerned, taking into account the matter on the Form 1 (seq 17) there will be a sentence of one year and one month. It will commence on 26 January 2022. There will be a non‑parole period of seven months which will expire on 25 August 2022.
2. The Commonwealth sentence will commence after he has served four months of that sentence, which will be 26 May 2022.

Sequence 11

1. I indicate a sentence of one year and six months.

Sequence 13

1. Taking into account the matter on the section 16BA Schedule (Sequence 18) I indicate a sentence of nine months.

Sequence 15

1. Taking into account the matter on the section 16BA Schedule (Sequence 19) I indicate a sentence of nine months.

Sequence 22

1. Taking into account the matters on the section 16BA Schedule (Sequence 20 & 21) I indicate a sentence of 11 months. The distinction is primarily because of the number of category 1 matters.
2. There will be a aggregate sentence of two years and two months from 26 May 2022. I direct that you be released at the expiration of one year, that is 25 May 2023.
3. I direct that you be released at the expiration of 1 year of your sentence on 25/05/2023 upon you entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914 yourself in the sum of $400 with the following conditions: 1. To be of good behaviour for a period of 1 year 2 months from this date. 2. To appear to receive sentence if called upon so to do at any time in respect of any breach within the said period. 3. Accept the supervision and guidance of an officer of Community Corrections NSW for as long as they deem necessary and obey all reasonable directions particularly in relation to sex offender and other rehabilitation. 4. Report to Community Services NSW within 7 days of release from imprisonment 5. Not travel interstate or overseas without the written permission of the Probation (Community Corrections) officer.
4. A copy of Dr Dornan's report will go with the warrant so that Corrections can, if possible, provide you with the rehabilitation programs you so sorely need.
5. The effect of my sentence cumulatively, Mr Dale, is a sentence of two years and six months with a minimum term of one year and four months that must be served in custody. Your earliest release date therefore should be 25 May 2023.
6. When you are released to parole you will have a lengthy period of over a year on parole. It is expected that you will be supervised. It is expected that you will utilise that time to engage in programs because if you do not there is a real danger you will reoffend and if you reoffend you would not be given the leniency inherent in the sentence which I have imposed upon you.
7. I have made, there being no objection, a forfeiture order pursuant to section 23ZD of the Crimes Act 1914 and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth: 1. Silver HP Laptop; 2. Black HP Laptop; 3. ASUS Laptop; and 4. Samsung Galaxy A520F mobile phone.
8. AUDIO VISUAL LINK CONCLUDED AT 4.10PM

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2022