R v Ferguson

District Court of NSW|2024-03-28

Solicitors: Director of Public Prosecution (Crown) Legal Aid (NSW) (Offender) File Number(s): 2021/00251451 Publication restriction: Nil

EX PARTE Judgment

The offender pleaded guilty in the Wollongong Local Court on 17 August 2023 to the following offence:- 1. Sequence 3 - between about 1 December 2020 and about 31 August 2021, did use a carriage service to access child abuse material. This offence has a maximum penalty of 15 years, and a 4-year mandatory minimum.

Agreed facts

In August 2019 and May 2020, the offender had been convicted of registrable offences in New South Wales under the Child Protection (Offenders Registration) Act 2000 (the Act). By reason of that Act an inspection took place on 31 August 2021 at the offender's residence in Fairy Meadow. The offender advised police that the only device he owned was a mobile phone, which was in his hand when he answered the door.
The offender ultimately consented to police searching his phone, which had no PIN code, and during a review police located a relevant file which contained various downloads dated 9 August 2021.
The offender, having been cautioned by police, indicated that he was unable to recall anything about the file and was also unable to recall when he had been looking at the relevant child abuse material. The offender indicated that he had issues with his memory.
The phone was subsequently seized, and an extraction was undertaken on 2 September 2021. That extraction revealed that between about 1 December 2020 and 31 August 2021 the offender had accessed 128 files containing child abuse material which depicted prepubescent children, of both genders, naked and exposing their genitals.
The agreed facts provided detail of a sample of 15 of the child abuse files. It is unnecessary for the purposes of these sentencing remarks to detail each of those relevant samples given they are recorded in the statement of facts. However, by way of summary, the sample included images of naked prepubescent females in various positions and at various locations in which undeveloped breasts and genitals were exposed.
The offender was arrested on 2 September 2021 and agreed to participate in an interview. During that interview the offender admitted that he had owned the phone since about Christmas 2020 and that nobody else used the phone. He freely acknowledged the content included what he called child porn and indicated that he did not know why he looked at the child abuse material and denied getting any gratification from viewing it. He accepted that he looked at child abuse material on his mobile phone not every day, just every now and again when he got an "urge". Once he started he could not stop.
The offender readily admitted that he had been looking at child abuse material on his phone on and off since he had first obtained the phone. He admitted that relevant Google searches would produce various pictures of the type listed in the sample images and that he would keep it for a while before thereafter deleting.
The offender stated that he deleted the pictures most of the time when he was "sick and tired of them" and did not keep them all the time. He admitted that the last time he looked at child abuse material on his phone was several weeks before the phone was seized. The offender again maintained that he did not get any gratification from the images, rather, he described it as an adrenaline rush when he did so. He freely admitted that he had started looking at child abuse material in around 2019.

Previous offending

The Crown material included the agreed facts in respect to the first of his offending, which was detected in March 2019 when he had requested a retail outlet to assist in a data transfer from an earlier phone. The data revealed over 3,000 images which were contained on two USB flash drives which were provided to police by the retail outlet, they having identified the material as part of the download.
Also included in the material were the remarks on sentence of his Honour Judge O'Brien from 29 May 2020 arising from further offences of accessing child abuse material and possessing child abuse material. It should be noted that the first of the offending, to which reference has already been made, related to an offence of possessing child abuse material.
The remarks of his Honour are a matter of public record but include details of the offences for which his Honour sentenced the offender.
It is appropriate to note the chronology of the offender's offending. As previously observed, the offender was initially detected and charged with child abuse material offences in March 2019. The offender was sentenced in the Local Court in respect to those offences to 12 months' imprisonment. The offender appealed from that decision and was granted bail pending the appeal. Within weeks of being granted bail, the offender committed the further child abuse material offences for which he was sentenced by O'Brien DCJ. That sentence mandated a period of full-time imprisonment following which the offender was released on a recognisance release order. Again, within a matter of weeks of being released on a recognisance release order, the offender committed the offence for which he is now to be sentenced. However, it should be observed that the date range for the offence for which the offender is to be sentenced commenced on 1 December 2020, the offender having been released in accordance with the prior recognisance release order on 27 November 2020.
The offender's criminal history is limited to the offences to which reference has already been made.

Subjective material

The subjective material, dealt with chronologically, commences with a psychological assessment undertaken by James McIntosh in July 2019 which was an assessment of the offender's mental fitness to participate in Court proceedings. The psychologist noted that the completion of the assessment was challenging due to the offender's continued introduction of new and confabulating statements and information. Whilst the offender appeared to participate legitimately and attempt items, he regularly questioned if his performance would assist his case.
The offender was subjected to various tests to determine his capacities. The findings were as follows: 1. The offender's conceptual domain standard score was in the extremely low range; 2. The offender's social domain standard score was in the extremely low range; 3. The offender's practical domain standard score was in the low range; and 4. The offender's overall level of adaptive behaviour was in the extremely low range.
The offender's IQ was found to fall in the extremely low range and accordingly it was determined that the offender was living with a mild intellectual disability and was further developmentally disabled within a legal context. Relevantly, the psychologist found: "Mr Ferguson's communication abilities including speech, vocabulary, listening and conversation and non‑verbal communication skills are in the low range. His ability to make independent choices, exhibit self-control and take responsibility when appropriate is in the extremely low range. His ability to interact socially, initiate and maintain friendships, express and recognise emotions and assist others when needed is in the extremely low range. His impaired ability to adequately provide information around his interactions with mental health and the nature of his symptoms creates difficulties. He was unable to provide insight beyond an historical diagnosis of depression".
A psychosocial assessment was undertaken in May 2020 on referral from Legal Aid. This report provides some insight into the offender's background. I accept that the history provided to the social worker reflects a genuine history provided by the offender.
The offender indicated that his father was in the Air Force and, accordingly, his childhood was somewhat transient. He spent most of his primary school years in Singapore before returning to Australia at the beginning of high school. He spoke fondly of his parents, indicating though that he had a particularly close relationship and felt deeply connected with his mother and sisters. He accepted his father was a disciplinarian who was strict, but fair. The offender indicated the relationship with his siblings drifted as he got older and was finally severed in his thirties in circumstances which are further documented in the report.
The offender indicated that from about the age of 11 he was sexually abused by his paternal uncle over a period of some four-and-a-half years. He described this period, quite understandably, as being particularly traumatic. Consequently, he began experiencing nightmares and had negative ruminating thoughts.
In his early thirties he began experiencing suicidal thoughts and began cutting himself and pointed to scarring, from self‑harming behaviour, all over his body. He attempted suicide during his fifties which he described as the darkest period of his life. He also referred to various auditory hallucinations.
As previously noted, the offender and his family were cohesive up until his thirties when he attempted to disclose the abuse to his parents and sisters. Sadly, these were dismissed, and he was not believed. It was following this that he was effectively disowned by his family, although it is apparent that he did maintain some ongoing relationship with a sister with whom he later resided.
The offender acknowledged that he had learning difficulties and significant educational needs, that he was bullied during his primary and high school years because of which he subsequently truanted. It was during high school that he developed depression.
It is apparent from the report that the offender, at the time of the assessment, suffered various medical ailments, including epilepsy, hypertension, osteoarthritis as well as scoliosis and disc prolapse, this latter condition resulting in further deterioration leading to his present physical condition to which reference will be made later in these remarks.
The report traversed in some detail the offender's mental health, including suffering depression from the age of 11, although he was too young to realise that was the condition from which he suffered. Reference has already been made to the significant suicidal ideations and suicide attempts throughout his life. Reference has also already been made to the auditory hallucinations.
It is apparent from the report that the offender also suffered periods of homelessness. He originally was living with his parents, but after their death he moved in with his sister and her husband. The offender received some inheritance which was invested in his sister's family home renovations where it was intended he would remain for his entire life. However, unfortunately, he fell out with his sister and ultimately left that home and went through periods of homelessness before securing community housing in Corrimal.
The offender had indicated that he had never engaged in an intimate relationship with anyone.
Reference was made to support services and the circumstances of the offending at that time.
The report noted, by reference to various studies, that people who suffer sexual abuse during their childhood and adolescence are likely to suffer the prolonged effects of trauma, including feelings of intense fear, helplessness, loss of control. These are the types of feelings which the offender was experiencing following the abuse. The report also documented other impacts of sexual abuse upon a person's mental wellbeing consistent with the offender's reporting of symptoms.
The offender, at that stage, had taken responsibility for his behaviour and made no attempt to justify it, although he did seek to minimise his behaviour, and there was some issue over his ability to empathise with his victims.
A more recent psychosocial report was prepared for the purposes of these sentence proceedings. That report updated the offender's medical condition and physical status.
The offender presented as a 65-year-old who used a wheelchair. He had been diagnosed with incomplete quadriplegia and effectively had no feeling in his body from his knees up. It was noted he was living with a range of serious health issues which had a significant impact on his wellbeing, he needed assistance with all activities of daily living and required 24-hour care and support. The offender reported that he was depressed, remarking that every night he wished he would not wake up the next morning.
The offender required a catheter bag. His daily routine involved high need for care and support commencing with assistance to get out of bed in the early hours of the morning and subsequent need for assistance and support whilst showering and other issues of personal care. It was also noted that the offender could experience faecal incontinence overnight.
It is apparent from the history provided by the offender, and for that matter his carer who was present, that he required considerable care throughout the course of the day. He needed a wheelchair to mobilise and needed carer support to mobilise outside the unit.
The report noted that Mr Ferguson now needed substantial support in all areas of his life, this included needing one to two people to roll him over in bed, to hoist him from his bed to his wheelchair and vice versa. He now needed a wheelchair to mobilise and a person to support him to use the wheelchair. He required one or two people to assist with showering, he needed support with toileting, changing incontinence pads and cleaning, and bedding changes due to faecal incontinence. He required assistance to dress and for all other aspects of personal grooming. Mr Ferguson needed someone to prepare his meals, open food items and he needed help to eat. He was also at high risk of pressure injuries and required specialised equipment and two people to reposition him.
The report further noted: "If Mr Ferguson enters custody with his current wheelchair he will continue to experience significant safety, positioning and comfort concerns, most likely continuing to contribute to poor mental health. It will also be imperative that all efforts are made to ensure that he will be able to access the new wheelchair as quickly as possible when it becomes available. Mr Ferguson also requires other specialised equipment to ensure he is physically comfortable, safe and able to mobilise while reducing the risk of pressure sores. This includes a tilt in space shower commode, hoist, electric reclining chair, electric bed, sheepskin heel protector and pressure cushions".
Reference was made to a Pathways to Community project to assist at the time of his release. The report noted that going into custody will have a devastating impact on the offender and that the experiences of suicidal ideation are likely to be exacerbated by any period of incarceration. Further, if he is not offered the right care he is at the risk of hospitalisation, especially due to the risk of pressure sores and infection, due to his catheter, arising from faecal incontinence.
It is apparent from information provided by the solicitor for the offender that the offender may have immediate healthcare needs given the failure of a carer to attend yesterday to assist with his personal care needs.
The subjective material documents the offender's medical treatment since his last period of incarceration. As the further remarks will document, the offender has spent lengthy periods hospitalised and is now deemed to be a high cervical incomplete quadriplegic.

Crown submissions

The Crown submissions dealt with general sentencing principles in respect to Commonwealth matters. The submissions also addressed the issue of breach of a recognizance in respect to the previous sentencing by O'Brien DCJ to which reference has already been made. The Crown referred to the relevant principles to be applied when considering a breach of non‑custodial orders as previously applied in respect to the State legislation. The Crown contended that this Court would revoke the previous recognizance release order and require the offender to serve the outstanding eight-month portion of the previous sentence.
The Crown referred to general principles in dealing with child abuse material and further dealt with the relevant considerations in determining the nature and circumstances of the offence by reference to s 16A(2)(a) of the Crimes Act 1914. In particular, the Crown highlighted the statements of principle contained in the judgment of RA Hulme J in R v Hutchinson [2018] NSWCCA 152.
The Crown referred to other relevant considerations under s 16A(2), including contrition and guilty plea, specific deterrence, general deterrence as well as character and antecedents, means and physical and mental condition of the offender. The Crown referred to relevant principles dealing with the mental condition in the context of the overall sentencing process.
The Crown also referred to issues of prospects of rehabilitation and noted it was necessary for the Court to consider s 16A(2AAA) of the Act.
The Crown thereafter referred to the structuring of the sentence, including the fixing of a commencement date for the current offence and referred to principles of accumulation and totality by reference to s 19 of the Act. The Crown also referred to principles in respect to the fixing of a non-parole period or recognisance release order depending on the length of any term of imprisonment. It also noted the presumption of actual imprisonment was to be served given the offence is a prescribed offence involving child abuse material. It also referred to mandatory conditions in respect to any recognizance release order.
The Crown also referred to the mandatory minimum sentencing which is applicable in the present case addressed in the High Court decision of Hurt v R; Delzotto v R [2024] HCA 8.
The Crown ultimately contended that it is appropriate to find the offender breached the previous recognizance release order and that this Court should require the offender to serve the outstanding balance of that sentence. The Crown further contended that a sentence of imprisonment for the relevant offence involving a non-custodial period was warranted. The Crown also referred to the necessity to determine the commencement date for the sentence given any order arising from the breach of the recognizance release order.
The Crown in oral submissions further reinforced the written submissions and again contended that deterrence was a significant factor given the nature of the offending and the previous history of offending.

Offenders submissions

The offender's submissions fairly conceded that a sentence of full-time imprisonment was appropriate. Reference was made to the mandatory minimum sentence of four years' imprisonment and, again, the remarks of the High Court in Hurt v R; Delzotto v R [2024] HCA 8. The submissions referred to the plea of guilty and the consequences of that plea, including a relevant discount on the sentence that would otherwise be imposed. The submissions referred to the subjective case as well as the offender's physical and intellectual disabilities.
It was contended that the offender's intellectual disability was a material consideration, and it should be taken into account in accordance with the well‑known principles in Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. The offender referred to the relevant factors in determining the objective seriousness of the offending. The submissions also referred to the issues of totality when considering the recognizance release order and a sentence for the present offence.

Consideration

The offender is to be dealt with in respect to a breach of a recognisance release order made by O'Brien DCJ on 29 May 2020. In accordance with his Honour's orders the offender was released on 26 November 2020 after serving ten months of his sentence. The offence for which the offender is to be sentenced was committed between 1 December 2020 and 31 August 2021, the former date being within approximately one week of being released.
I am satisfied that the offender has failed to comply with the recognisance release order and, relevantly, failed to be of good behaviour for the period of the order.
Section 20A(5) provides in these circumstances the Court may make various orders. The Crown contends that pursuant to s 20A(5A)(c)(i) the Court would revoke the order by ordering that the offender be imprisoned for that part of the sentence that the offender has not served at the time of his release. In the present case, that is a further period of eight months imprisonment.
The Crown contended the principles applicable to State breaches of non‑custodial orders would also be applicable when considering the relevant Commonwealth provisions. This includes that the regimen of non‑custodial sentencing options will be discredited if leniency was extended to the offender. Further, there is a risk that courts may be becoming increasingly reluctant to extend to offenders the lesser sentencing options which the legislature has provided. In those circumstances the Court should deal with such breaches "in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest" (citing R v Morris, unreported, 14 July 1995, NSWCCA per Kirby ACJ, Badgery‑Parker and Bruce JJ). I accept this submission on behalf of the Crown in its entirety.
As previously observed, the commencement date for the offence for which the offender is to be sentenced was within one week of the offender being released in accordance with a recognizance release order. Such conduct demonstrates a flagrant disregard of the Court's order that he be of good behaviour upon his release. In my view, the offender should be required to serve the balance of the sentence imposed by O'Brien DCJ, being a further eight months.
In so determining, I am conscious of not double-counting in any way adverse to the offender in determining the breach of the recognizance release order when separately considering the sentence for the offence to which I am passing sentence.
The offender is to be sentenced in respect to the offence of use a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.
Section 16A(1) of the Crimes Act 1914 provides that in determining the sentence to be passed the Court must impose a sentence that is of a severity appropriate in all the circumstances of the case.
The material accessed comprised over 100 files of images depicting prepubescent children of both genders, naked and exposing their genitals. A sample of the images has been traversed earlier in these remarks. As the sheer number of persons coming before the Court to be sentenced for offences involving child abuse material demonstrates, offences of this type are becoming increasingly prevalent, particularly given the easy access to such material via the internet.
As has been observed in several decisions, every time a person views or downloads child abuse material they are involved in the further degradation and exploitation of the child which continues the victimisation of children in the images. The accessing of child abuse material actively encourages the market for such images thereby only seeking to perpetuate the ongoing abuse of children. Given these factors, general deterrence and denunciation must loom large in the sentencing process. These offences must be denounced by the Court in the strongest terms.
Section 16A(2) provides a number of mandatory considerations in determining the appropriate sentence.

Section 16A(2a) - Nature and circumstances of the offence

In R v Hutchinson [2018] NSWCCA 152 RJ Hulme J, with whom Meagher JA and Button J agreed, set out a list of non-exhaustive matters that may be relevant to the assessment of objective seriousness of an offence involving child abuse material.
By reference to that judgment the following matters are noted. There is no issue that real children were involved in all of the material accessed. The material depicted naked, prepubescent children in various sexual poses with exposed genitals. However, the images do not involve any sexual penetration of the children or feature adults engaged in such activity. There is no evidence of any cruelty or physical harm occasioned to the children that may be discernible from the material. There are over 100 images, although I accept the offender's submission that the number is generally towards the low end of range often seen for offences of this type.
There is no evidence of payment or other material benefit received or made by the offender for the material and no evidence that the offender was proximate to the creation of it. As the offender submitted, the conduct was generally unsophisticated. There was no attempt to secrete the images in any particular application and the phone was not otherwise secured by way of a passcode. There is no evidence that the offender was in any form of collaborative network of likeminded persons, and it appeared that he acted alone.
In all the circumstances, I find that the offence falls towards the low end of objective seriousness for offences contemplated by this section.

Section 16A(f) - Demonstration of contrition

There is no evidence of the offender expressing any remorse or contrition in any of the subjective material. However, I am mindful of the offender's intellectual impairments identified in the report of James McIntosh, which I accept, including his extremely low capacity to take responsibility.
It is difficult to accept that the offender's early plea demonstrates any genuine remorse or contrition given the strong Crown case. The early plea will otherwise be considered further in these remarks. However, I accept that the offender's co‑operation and frank admissions to police do reflect some remorse or acceptance that what he was doing was wrong. Further, the plea of guilty demonstrates some willingness of the offender to facilitate the course of justice which must be considered as conceptually different to the utilitarian value of the plea of guilty reflected in a discount in the sentence that would otherwise be imposed: Giles-Adams v R; Preca v R [2023] NSWCCA 122 per Yehia J.

Section 16A(2)(j) - Guilty plea

The offender entered a plea of guilty at the earliest opportunity and is entitled to a relevant discount for the sentence that would otherwise have been imposed. I am satisfied an appropriate discount, reflecting the early plea of guilty, is 25% of the sentence that would otherwise have been imposed.

Section 16A(2)(H) - Co-operation with law enforcement authorities

I accept that the offender co-operated with law enforcement agencies in respect to investigation of the offence in that the offender made candid and wide‑ranging admissions when interviewed by police.

Section 16A(2)(j) and 16A(2)(ja) - Specific and general deterrence

As previously observed, specific deterrence is a significant sentencing consideration, particularly in circumstances where the offender has committed two prior offences involving child abuse material. It is not without significance that whilst on bail, having appealed the severity of his first sentence, the offender committed the further offences. These were committed within weeks of having been released on bail. The present offence was committed within weeks of having been released on a recognisance release order arising from a sentence for the second tranche of child abuse material offences.
I accept the Crown's submission that the commission of the present offence demonstrated a continuing attitude of disobedience of the law, particularly offences involving child abuse material.
For the reasons already given, general deterrence also has a significant role to play in respect to offences involving child abuse material.

Section 16A(2)(m) - Character, antecedents, age, means and physical or mental condition

The offender is presently aged 65. He has previously been convicted of child abuse material offences.
As previously noted, the offender relies upon his intellectual disability and mental condition as a matter to be taken into account on sentencing. It is contended that moral culpability is reduced and that less weight should be given to general deterrence, retribution and denunciation.
I accept the opinion of James McIntosh that the offender suffers from a mild intellectual disability and is developmentally disabled. I accept that in this context the offender's ability to make independent choices, exhibit self-control and take responsibility when appropriate is impaired.
As to the effect of a mental condition reducing an offender's moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82, observed: "[74] A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending. [75] The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence. [76] While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing)." (Emphasis added)."
Whilst authorities such as Muldrock and De La Rosa have held that deterrence, retribution and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sentencing have no relevance. Muldrock referred to the fact that in "most cases" mental impairment or disability will substantially lessen the offender's moral culpability for the offence.
In Alkanaan v R [2017] NSWCCA 56 Harrison J, (with whom Payne JA and Schmidt J agreed) observed at [108]: "The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for".
Whilst the offender's disabilities and mental impairments may well have impacted on his ability to make independent choices and exhibit self‑control, there is no other evidence capable of demonstrating the link between the offending and the offender's impairments. However, I accept that the offender's impairments do shed some light and give context to the offending conduct such that moral culpability and deterrence is moderated, although not substantially so.
I accept that the offender also suffers from depression and consequently has made several suicide attempts. I accept that the offender's depression in part has been caused by childhood trauma, primarily arising from his sexual abuse by a paternal uncle over a period of four‑and-a-half years. I accept that this impacted the offender's mental health to the extent he was bullied at school and ultimately ostracised by his family following disclosure of his abuse. His various disabilities led to periods of homelessness and social isolation.
The offender also suffers from multiple medical conditions, including epilepsy, hypertension, osteoarthritis as well as scoliosis and disc prolapses. The latter conditions deteriorated to the extent that the offender underwent several surgical procedures since his last period of incarceration and is now considered a high cervical incomplete quadriplegic. As the report of Elisa Lazos documents, the offender is essentially wheelchair bound and requires high levels of care. This includes care and support with activities of daily living and the most rudimentary personal care tasks. He presently relies upon a catheter bag and can experience overnight faecal incontinence.
In R v Smith (1987) 44 SASR 587 King J at [589] observed: - "Generally speaking, ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a risk of imprisonment having a greatly adverse effect on the offender's health".
However, the Court observed that offenders cannot expect to escape punishment mere because of a condition of their health. However, it is potentially a factor mitigating punishment where imprisonment "will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a greatly adverse effect on the offender's health".
As Mason P observed in R v Burrell (2000) 114 A Crim R 207, as well as the risks associated with an offender's medical condition, the realities of prison life should not be overlooked.
I accept that given the multiple physical disabilities and medical ailments from which the offender suffers, imprisonment will clearly be a greater burden on him. Self-evidently, the offender will not have available the same level of care otherwise available in the community and, accordingly, will suffer significant hardship by reason of his medical ailments whilst in custody.

Section 16A(2)(n) / Section 16A(2)(aaa)- Prospects of rehabilitation

As previously observed in these remarks, the offender has continued to commit child abuse material offences whilst at liberty following commission of the first of these offenders. The offender appears to have little insight into the consequences of his offending and his expressions of remorse are somewhat limited. Whilst this is likely to be explicable in part by reason of his mental impairments, these factors cannot be ignored in assessing the offender's prospects of rehabilitation.
The offender was arrested for this offence on 2 September 2021 and granted bail the following day. It was a condition of his bail that he does not possess any mobile phone or access the internet by any means. The offender has been an in-patient at various facilities from 28 February 2022 until 17 March 2023. Since that time, he has been living in supportive accommodation. There is no evidence that he had breached his bail conditions in the intervening period. This demonstrates some change in behaviour given his previous conduct whilst at liberty in the community. Further, unlike the previous offending, the offender has not been charged with any offence of possessing child abuse material.
In the circumstances, whilst the offender's prior behaviour does not bode well, I accept that there at least some prospects for rehabilitation.
These matters are also relevant in considering the prospect of reoffending. Further, the conditions I intend to impose in a recognisance release order, and the fact that the offender will require high levels of care upon his release, further reduce the prospect of reoffending.

Section 16AAB - Mandatory minimum sentence

As the offender has been previously convicted of child abuse offences s 16AAB of the Act applies such that the Court must impose a sentence of imprisonment of four years. In Hurt v R; Delzotto v R [2024] HCA 8 Gageler CJ and Jagot J observed at [33]: "The statutory minimum sentence is thereby accepted to the function as acting as a yardstick representing the least worst category of case for which a sentence of imprisonment is required against which the case before the Court can be assessed."
The High Court acknowledged the relevant provisions of the Crimes Act relating to sentencing enable a court to impose less than the statutory minimum sentence in appropriate cases and that it is capable of acting as a yardstick.
I am satisfied having considered all other available sentences that no other sentence other than full time imprisonment is appropriate in all the circumstances of the case pursuant to s 17A of the Act.
In all the circumstances, the mandatory minimum sentence of four years needs to be imposed. However, in accordance with s 16AAC of the Act, this sentence is to be discounted by 25% for the utilitarian value of the plea of guilty resulting in a term of imprisonment of three years.
Section 19AC(1) provides in the event the offender is to be sentenced to a term of imprisonment of 3 years or less, the Court is required to impose a recognisance release order and must not fix a non-parole period. However, s 20(1)(b)(ii) provides that in respect to a child sex offence (the present offence being such an offence) there is a presumption that the offender will serve some period of actual imprisonment unless the Court is satisfied that there are exceptional circumstances justifying the offender being released immediately.
I note the offender does not contend that there are any exceptional circumstances for the purposes of this section.
In R v Quick; ex parte Attorney-General (QLD) [2006] QCA 47 it was noted to be exceptional the circumstance need not be unique or unprecedented or very rare but it cannot be one that is regularly or routinely or normally encountered.
Further in Quick it was noted that: - "what emerges then is that there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of the individual factors but to their weight and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case… The Court in the sentencing process must consider whether there are exceptional circumstances which in light of all other aspects of the case including those described in s 96 warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against the background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind."
More recently the South Australian Court of Appeal in R v Jones [2022] SASCA 105 at [45] observed: "Some uncommon features may militate against the finding of exceptional circumstances rather than supported." Further personal circumstances of an offender may tip the scales in favour of finding that exceptional circumstances exist although the Court must be conscious of the general sentencing considerations including general deterrence, personal deterrence and the protection of the community."
I am not satisfied that there are exceptional circumstances in the offender's case justifying the offender being released immediately.
I consider that in all the circumstances the offender should serve a period of sixteen months imprisonment and thereafter be released on a recognisance release order. In these circumstances it is necessary for the Court to determine the commencement date for sentence for which the offender is now to be sentenced.
Section 19(1) of the Act provides that where a person convicted of a federal offence is at the time of that conviction serving or subject to one or more federal sentences, the Court, when imposing a federal sentence for the federal offence, by order direct when the federal offence sentence commences. However, this is on the proviso that the new sentence commences before the end of the last prior sentence.
This requires the Court therefore to consider questions and to whether the new sentence should be served partly, cumulatively or concurrently with the balance of the recognisance release order.
Section 19(5) provides an order must not have the effect of the term of imprisonment imposed on a person for a child sex offence be served partly cumulatively or concurrently with an uncompleted term of imprisonment that has been imposed on the person for another Commonwealth child sex offence. However, s 19(6) provides that this does not apply if the Court is satisfied that imposing a sentence in a different matter would still result in sentences that are of severity appropriate in all the circumstances.
It is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release; R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).
As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is some underlying factual commonality across the offences which the offender is to be sentenced, it is important not to impose a punishment that is disproportionate to the overall criminality involved in the offences.
I have determined that the sentence for which the offender is now to be sentenced should commence after the offender has served five months of the eight months sentence as determined in accordance with s 20A(5)(c)(i). I have determined that there should be a period of concurrency of three months reflecting a sentence that is proportionate to the overall criminality and to avoid the crushing effect of a long sentence (s 19(7)). The latter consideration is particularly relevant given the offenders extremely poor health and the consequential hardships while serving his term of imprisonment.
Further account needs to be taken for the offender spending the one day in custody solely referable to the offence.

ORDERS

Accordingly, I make the following orders: 1. In respect to the recognisance release order made by O'Brien DCJ on 26 September 2020; 1. Pursuant to s 20A(5)(c)(i), the recognisance release order is revoked. 2. The offender is to serve the balance of the term of imprisonment imposed by O'Brien DCJ of 8 months to date from today, 27 March 2024, and to expire on 26 November 2024. 1. In respect to the offence for which the offender has pleaded guilty he is convicted. 2. The offender is sentenced to a term of imprisonment of 3 years to date from 26 August 2024 and to expire on 25 August 2027. 3. Pursuant to s 21B of the Crimes Act 1914 after a period of 16 months the offender is to be released on a recognisance release order himself in the sum of $1,000 for the remaining period of 1 year 8 months on the condition that the offender will: 1. Be of good behaviour. 2. Be subject to the supervision of a probation and parole officer appointed in accordance with this order. 3. Obey all reasonable directions of a probation officer. 4. Not travel interstate or overseas without permission of the probation officer. 5. Not possess any mobile phone or access the internet by any means other than for the purposes arising from his medical conditions. 6. Undertake any treatment and rehabilitation programs the probation officer reasonably directs. 1. Pursuant to s 23ZD and upon the application by the DPP, the following item is forfeited to the Commonwealth: 1. One (1) Nubia Z7 phone (X004132313)

Amendments 30 April 2024 - Corrected typographical errors 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: 30 April 2024

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