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[2021] NSWDC 798
District Court of NSW
2021-08-12
Original judgment source is linked above.
Solicitors: Solicitor for Public Prosecutions (Crown) Rep-Revive Criminal Lawyers (Offender) File Number(s): 2020/00068739
SENTENCE SENTENCE OVERVIEW FACTUAL BACKGROUND SUMMARY OF OFFENCES VICTIM IMPACT STATEMENTS SUBJECTIVE FACTORS CIRCUMSTANCES SURROUNDING OFFENDING BEHAVIOUR AND MORAL CULPABILITY CHARACTER AND RECORD OF PREVIOUS CONVICTIONS REMORSE, CONTRITION, PROSPECTS OF REHABILITATION AGGRAVATING FEATURES OBJECTIVE SERIOUSNESS Grooming a child under 14 for unlawful sexual activity - Seqs 1, 4, 13, 49 Use child under 14 for the production of child abuse material - Seqs 36, 37, 42, 43 Disseminate child abuse material - Seqs 35, 40, 41, 45 Possess child abuse material - Seq 48 Sexual intercourse with a child under 10 - Seq 19 PARITY COMPARATIVE CASES DETERMINATION APPENDIX - TABLE OF OFFENCES AND VICTIM
OVERVIEW
FACTUAL BACKGROUND
SUMMARY OF OFFENCES
VICTIM IMPACT STATEMENTS
SUBJECTIVE FACTORS
CIRCUMSTANCES SURROUNDING OFFENDING BEHAVIOUR AND MORAL CULPABILITY
CHARACTER AND RECORD OF PREVIOUS CONVICTIONS
REMORSE, CONTRITION, PROSPECTS OF REHABILITATION
AGGRAVATING FEATURES
OBJECTIVE SERIOUSNESS
The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed: the three children were 8, 5 and 4 years respectively. The sexual activity included naked images of their anus and genital region and the audio recording included the grooming and conversation and act of fellatio with her son.
The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material: there did not appear to be any cruelty or physical harm beyond the psychological damage to the children.
The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted: the material related to the offender's three natural children although the number of images and the length of the videos were comparatively short in number and duration by contrast with other cases.
In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination: the offender's purpose was both for her own sexual gratification and for that of her co-offender to whom she intended to disseminate the material.
In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted: the material was only disseminated by the offender to her co-offender however she thereby lost control of it as demonstrated by his subsequent retransmission to unknown persons.
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: there is no evidence of payment or material benefit other than the sexual gratification and desire to please her co-offender.
The proximity of the offender's activities to those responsible for bringing the material into existence: the offender was the person who produced the material and disseminated it using her own children.
The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material: there was little in the way of sophistication but there was obviously a degree of planning with respect to recording the images of her children.
Whether the offender acted alone or in a collaborative network of like-minded persons: whilst there was no collaborative network of like-minded persons, it is clear that she acted in combination with discussions with her co-offender.
Any risk of the material being seen or acquired by vulnerable persons, particularly children: having been forwarded by electronic means, she had lost control over the material. In such circumstances there must have been both potential and indeed a not insignificant risk that the material could be forwarded to others. It goes without saying that there is thereafter no control over who might see it, including children.
Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted: the offender forwarded the material to her partner, and indeed the father of their own young daughter, in full knowledge of his paedophilic tendencies and his expressed desire to have sex with her daughter. She placed her own emotional needs and wants, together with her own desire for sexual gratification, above the welfare of her various children and forwarded them to a person clearly susceptible to act inappropriately towards children.
Grooming a child under 14 for unlawful sexual activity - Seqs 1, 4, 13, 49
Use child under 14 for the production of child abuse material - Seqs 36, 37, 42, 43
Disseminate child abuse material - Seqs 35, 40, 41, 45
Possess child abuse material - Seq 48
Sexual intercourse with a child under 10 - Seq 19
PARITY
COMPARATIVE CASES
DETERMINATION
APPENDIX - TABLE OF OFFENCES AND VICTIM Off # Seq Charge under Crimes Act 1900 Victim
1 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana
4 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana
F1(a) 14 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana 3. 35 S 91H(2) - Disseminate child abuse material Aubrey Pana & Kelly Pana 4. 36 S 91G(1)(a) - Use child under 14 years for production of child abuse material Kelly Pana F1(b) 34 S 91G(1)(a) - Use child under 14 years for production of child abuse material Kelly Pana F1(b) 39 S 66DA(a) - Sexual touching of a child under 10 Kelly Pana 5. 37 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 29 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 31 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 33 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 38 S 66DA(a) - Sexual touching of a child under 10 Aubrey Pana 6. 40 S 91H(2) - Disseminate child abuse material Kelly Pana 7. 41 S 91H(2) - Disseminate child abuse material Aubrey Pana F1(d) 30 S 91H(2) - Disseminate child abuse material Aubrey Pana F1(d) 32 S 91H(2) - Disseminate child abuse material Aubrey Pana 8. 13 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana 9. 49 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana 10. 42 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana 11. 43 S 91G(1)(a) - Use child under 14 years for production of child abuse material Henry Pana F1(e) 44 S 66DA(a) - Sexual touching of a child under 10 Henry Pana 12. 45 S 91H(2) - Disseminate child abuse material Henry Pana 13. 19 S 66A(1) - Sexual intercourse with a child under 10 Henry Pana F1(f) 46 S 66DA(b) Inciting a child under 10 to sexually touch Henry Pana F1(f) 47 S 66DA(a) Sexual touching of a child under 10 Henry Pana 14. 48 S 91H(2) - Possess child abuse material -
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: 01 July 2022
R
Danielle Pana
[2021] VCC 209
[2011] VSCA 157
(2010) 79 NSWLR 1
(1987) 163 CLR 447
(2013) 249 CLR 571
(1983) 3 NSWLR 245