R v Glasheen

SENTENCING PRINCIPLES FOR CHILD ABUSE MATERIAL OFFENCES.

1. The possession of child abuse material is acknowledged to be an abhorrent crime, described to be "callous and predatory", due to its exploitation and abuse of children; (R v Porte [2015] NSWCCA 174 at [40]).
2. The authorities recognise the importance of general deterrence in sentencing for offences of this type. In Vincenzo Jon Fedele v R [2015] NSWCCA 286, Hidden J stated at [53] and [54], "In this line of authority general deterrence is sometimes described as "paramount" or the "primary sentencing consideration". It is said that, absent exceptional circumstances a sentence of imprisonment involving full-time custody is "ordinarily" warranted. It is also said that less weight is given than in other cases to the fact that an offender has prior good character and favourable prospects of rehabilitation." "These pronouncements are a guide to the exercise of discretion in child pornography cases but, of course, are not prescriptive of the result in a particular case which must turn on its facts and circumstances."
3. In R v Cardwell [2021] QCA 112, Sofronoff P at [10]-[12] agreed with the primary sentencing judge's observations concerning the harm these types of offences can cause and consequential importance of general deterrence stating as follows: "The cases on this kind of offending make it clear that accessing and possessing child pornography is not a victimless crime. These offences actually harm real children and the repeated circulation of child pornography depicting this abuse continues the victimisation of the children in the images. Every child in every image you accessed or downloaded was, in fact, harmed. Victims of child pornography report lifelong impacts as a result of the abuse and by participating in it, you are re-victimising because of your downloading of that material. It is difficult to permanently or fully remove images from circulation. Every time you accessed that material, you supported the market for the continued corruption and exploitation of children. That market concurs on an international level. It is increasingly prevalent because of internet access. By doing that you are supporting an abhorrent industry which exploits children." "Those observations are, of course, sound and accurate".
4. Specific deterrence, denunciation, punishment and protection of the community are also very important sentencing considerations (R v Gent (2005) 162 A Crim R 29 at [65]).

GENERAL PRINCIPLES FOR SENTENCING COMMONWEALTH OFFENCES.

1. The offender is to be sentenced for an offence against Commonwealth Law. The overarching requirement imposed by Part 2B of the Crimes Act is that the Court imposes a sentence which is of a severity appropriate in all the circumstances of the offences (s 16A(1)). Section 16A(2) of the Crimes Act requires the Court to consider the matters listed in that section to the extent that they are relevant, in addition to any other matters.
2. Further, given this is a Commonwealth sex offence, in determining the sentence to be passed or the order to be made, in addition to other matters, the Court must have regard to the objective of rehabilitating the person (s 16(2AAA)). This may include imposing any treatment or rehabilitation conditions to an order (s 16(2AAA(a)) or including sufficient time for the undertaking of a rehabilitation program in determining the length of any sentence or non-parole period (s 16(2AAA)(b)).
3. Section 17A provides that a Court shall not pass a sentence of imprisonment on any person for a Federal offence unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all of the circumstances of the case. It is conceded in this matter that nothing other than a full-time sentence of imprisonment is appropriate or indeed available by virtue of s 16AAB.
4. Whilst the parties accept that the minimum sentencing provisions at s 16AAB apply in this instance, there is a dispute as to how the application of that provision is to be approached and how it impacts on the sentencing discretion. In essence, the Crown submits that the correct approach is as per Bahar v R [2011] WASCA 249, which provides that the minimum sentence can only be imposed for offending that falls within the "least serious category". The defence submits that that decision and approach does not apply in this sentencing exercise. I will return to that issue towards the conclusion of my remarks.
5. Section 16AAC, allows the Court to impose a sentence of less than four years but only if the Court considers it appropriate to reduce the sentence by taking into account the plea of guilty or the offender's cooperation with investigating police. Whilst the parties agree that this provision is relevant, again there is a distinction between them as to whether or not the offender in this instance is entitled to those exclusions and/or reductions.

SECTION 16A MATTERS TO WHICH THE COURT IS TO HAVE REGARD WHEN PASSING SENTENCE

The nature and circumstances of the offence (s 16A(2)(a)).

1. The parties acknowledge that the factors relevant to an assessment of objective seriousness for offending of this type are as stated in Minehan v R [2010] NSWCCA 140 at [94], more recently revised and confirmed in R v Hutchinson [2018] NSWCCA 152, by Hulme J at [45] and as follows: 1. Whether actual children were used in the creation of the material; 2. The nature and content of the material including the age of the children and the gravity of the sexual activity portrayed; 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material; 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted; 5. In a case of possession, the offender's purpose, whether for his or her own use or for sale or dissemination. In this regard care is needed to avoid any infringement of the principle in R v De Simoni (1981) 1947 CLR 383. 6. In the case of dissemination/transmission the number of persons to whom the material was disseminated/transmitted; 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission; 8. The proximity of the offender's activities to those responsible for bringing the material into existence; 9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material; 10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender; 11. Whether the offender acted alone or in a collaborative network of likeminded persons; 12. Any risk of the material being seen or acquired by vulnerable persons, particularly children; 13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted; and 14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act for State offences or s 16A of the Crimes Act 1914 for Commonwealth offences bearing upon the objective seriousness of that offence.
2. That list however, is a non-exhaustive list and other factors in individual cases may be relevant (supra, (46)).
3. With those factors in mind the following is relevant to my assessment of the objective seriousness of this offending:

• The charge is a "rolled-up" count involving more than one instance of offending, capable of being separately charged. Accordingly the criminality is greater than for one instance of offending;
• There were 64 images of child abuse material accessed;
• The offending occurred over a discrete period of time between 12 and 19 July 2020, but was not isolated offending;
• Actual children were used in the creation of the material including a number that were prepubescent;
• The material includes prepubescent female children engaging in sexual acts with adults, including oral and penetrative sex;
• The material was accessed for the offender's own sexual gratification;
• The material was not stored nor disseminated by the offender;
• There was no proximity between the offender's access and those responsible for bringing the material into existence;
• The material resulted from directed searching by the offender and therefore was not unintentionally accessed. However, there was little planning or sophistication attached to it;
• The offending was readily detected, particularly given the offender's responsibilities under the CP Act;
• The material was readily accessed via the internet and therefore accessible to anyone; and
• The offender acted alone.

1. I do not accept the defence submission that the gravity of the sexual activity depicted in the material is unclear. The descriptions, whilst limited, present a sufficient picture of depravity for an understanding of the nature of the images to be ascertained, as I have earlier observed.
2. The Crown submits that the offending falls below midrange of objective seriousness but is "comfortably above the least serious category of objective seriousness for offences of this kind".
3. On behalf of the offender, it is submitted that the offence is "not objectively serious" and falls into the lower range, if not the least serious category of offending, for an offence contrary to this section. It is the offender's submission that the provision allows for more serious offending than "accessing", including "transmission" or "soliciting" child abuse material and accordingly, "accessing" may be seen as one of the least serious forms of offending pursuant to the provision. No authority is provided in support of that submission.
4. I accept that there is some relevance to that submission, but in the absence of any binding authority and noting that the same maximum penalty applies to all offending within the provision, I am unable to fully accept it. Whilst "access" may be less serious than "soliciting", for example, as the abovementioned authorities point out, all offending within the provision involves the exploitation of vulnerable children in a most abhorrent way. In the absence of a market for access by persons such as the offender, the need for soliciting and transmitting the material would be substantially reduced.
5. In considering the above, I accept that the objective seriousness of the offence places it below midrange but not into the least serious category of offending given the number of images involved; the fact that actual children are involved; their age; the nature and content of the material; and the fact that it was intentionally searched for to satisfy the offender's sexual interest.

Personal circumstances of any victim (s 16A(2)(d), injury, loss or damage resulting from offence (s 16A(2)(e)).

1. Whilst no particular victim is involved in this offending or any particular injury is referred to, as was noted earlier, the impact of this type of offending on vulnerable victims generally is acknowledged. Aside from that observation these factors bear little relevance in this instance.

The need to ensure that the person is adequately punished for the offence (s 16A(2)(k)) and the need for general deterrence (s 16A(2)(ja)).

1. Those same principles also acknowledge that in this instance, there is a need for general deterrence and adequate punishment to be reflected in the sentence for the offender.

If the person has pleaded guilty to the charge in respect of the offence (s 16A(2)(g)).

1. I take into account the fact that the offender pleaded guilty and that that plea was entered at the first reasonable opportunity in the Local Court. The plea was nevertheless entered in the face of a strong prosecution case. The timing of it, however, demonstrates a willingness to facilitate the course of justice, thereby avoiding the cost and delay of any trial which in turn benefits the community (Xiao v R [2018] NSWCCA 4).
2. The Crown acknowledges the timing of the plea but submits that the subjective value of it has not been established on the balance of probabilities. Whilst I do not accept that the plea subjectively demonstrates remorse, despite the strong prosecution case, I am satisfied it represents an acceptance of responsibility by the offender. The plea entitles the offender to a 25% discount on the sentence to be imposed.

The degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences (s 16A(2)(h)).

1. The offender cooperated with police at the commencement of their investigation for this offence by providing the pin code to his phone and by using facial recognition to unlock and allow access to his laptop whereby the offending was then uncovered. That cooperation entitles the offender to an additional 5% discount on the sentence I impose.

The character, antecedents, age, means and physical or mental condition of the person (s 16A(2)(m)).

1. The offender was 56 years of age at the time of the offending and is now 57.
2. The offender has a reasonably limited criminal history. His first criminal conviction was in 1983 for possession of drugs, being Indian hemp. In 1998, he was convicted and fined for a 'Possess Prohibited drug' matter. In 1990, he received a 12 month recognizance for two counts of 'Assault Occasioning Actual Bodily Harm' and in 2001 he received an 18 month s 9 bond for a 'Common Assault'.
3. His next offending was for the sexual offending referred to earlier. It occurred in 2013 and involved a female child aged between 7 and 9 years. The fact sheet relating to that offending has been provided in the Crown bundle. It shows the offender to have indecently assaulted and filmed a young female victim known to him through his housemate. For that offending he received a sentence of four years and three months for one 'Indecent Assault'; three years for another; a fixed term of 15 months for 'Using a Child under 14 years to make Child Abuse Material' and 'Possessing' that material; and a fixed term of nine months for 'Filming a Person's Private Parts Without Consent'. All of that offending involved the same child.
4. The offender was to be released to parole for that offending on 7 February 2017 but for unexplained reasons, remained in custody until his release to the community on 7 February 2018. There was then no further offending prior to this instance.
5. The offender acknowledges that for offending of this type, less weight is placed upon good character.
6. The offender's prior history, particularly for offending of a similar nature, disentitles him to the limited degree of leniency which may otherwise have been afforded. The offender acknowledges this.
7. Tendered on sentence was a Psychological Assessment prepared by Ms Julie Dombrowski, Psychologist, dated 7 July 2021. It sets out the offender's background and other matters relevant to his subjective features.
8. The offender grew up in Western Sydney with his parents and five siblings. His father was a printer and his mother a school teacher. He denied any neglect or abuse within the home but described it to be generally chaotic because of the number of children. He left home at aged 18 but returned in his 40's to care for his elderly parents. They have now both since passed away, as has an older sister. Several of his siblings have alcohol-related offending histories. All but one of them have ceased contact with him due to his prior offending.
9. The offender describes himself as being intellectually gifted and attended school until age 16. He had been reprimanded at school for being disrespectful and for smoking. At age 16, he completed a four year apprenticeship as a printer and largely worked thereafter in that industry.
10. When released from gaol in 2018, he worked for a tapware supply company in various roles, including stock control and sales. He was working in that capacity at the time of his arrest for this offence.
11. He described an active social life and an avid interest in skydiving. He described rarely forming close emotional connections, tending to end his friendships when they no longer served his needs. Like his family, many of his friends have ceased contact with him due to his prior offending. He currently has no close friends.
12. He is currently single. He was married for eight years. His marriage produced a daughter who is now aged 33. He maintained an amicable relationship with his ex-wife and shared the parenting of their daughter with her. However, this relationship and contact with his daughter similarly ceased following his prior offending. He expresses particular sadness about the loss of his relationship with his daughter. He has had several other casual sexual encounters but his marriage represents his most significant relationship. He identifies as a heterosexual man and describes having been with "a large number of women", citing a reputation for "sexual prowess".
13. He describes being the victim of sexual abuse on one occasion whilst he was aged 12 and at school camp. He described the incident to have likely contributed to him avoiding emotional connections with others during sexual contact.
14. He started using alcohol in mid-adolescence and became a daily user during adulthood. Whilst he did not use alcohol during his time in custody, he returned to regular use thereafter. He has also previously used cannabis on a daily basis and regularly used cocaine and MDMA or ecstasy. He has not used these substances regularly since his last period in custody. He has a history of gambling.
15. In 2010 when aged 47, the offender was hospitalised and later diagnosed as suffering from a transient ischemic attack. He has since taken medication to manage his blood pressure and to reduce the risk of a further episode. He has not experienced any further attacks since that time.
16. In 2002, following an attempted suicide, the offender was diagnosed with depression. This followed his separation from his wife and other destabilising factors and an increase in his gambling and alcohol use. He took antidepressants for a short period of time but his symptoms alleviated with family support. He describes a decline in his mood around March or April 2020 and again contemplated suicide following this offending. He does not report any current suicidal intent and is not taking any psychotropic medication.
17. Ms Dombrowski diagnoses the offender as likely meeting the diagnostic criteria for a Personality Disorder with Narcissistic Features. This diagnosis, together with his paedophilic interest, is said to have contributed to his offending.
18. No submission is made on the offender's behalf that the likely diagnosis is causally related to his offending and either mitigates it or reduces his culpability. That is an appropriate position and one that I adopt.
19. At the time of the offending, the offender was employed and living independently. He describes feeling lonely and socially isolated, partly because of the impact of COVID-19 and partly because many family and friends have ceased contact with him due to his prior sexual offences. He was using alcohol regularly and consuming up to six beers a day. He acknowledges that he searched the internet for pornographic material for his own sexual gratification. He told Ms Dombrowski that he was "surprised" to find images of prepubescent children on what he considered mainstream pornography sites. He says that his preference for pornographic material was of young, petite and small breasted women and that he had specifically searched for images and videos of that nature.

The degree to which the person has shown contrition for the offence s 16A(2)(f).

1. The offender acknowledged to Ms Dombrowski that he was aware the children in the images were minors. He described feeling disgusted with himself because he found the images arousing. He expressed disappointment and loathing in himself and regret for his offending, the abhorrence and selfishness of his behaviour and the consequences of it on his relationships.
2. Ms Dombrowski noted him to have "expressed remorse" for his offending and to have stated he "felt disgusted by his own behaviour".
3. The offender relies on those unsworn assertions, together with the fact and timing of his plea of guilty, to show that genuine contrition has been demonstrated. The Crown reminds the Court that is not bound to accept hearsay statements of the offender to a third party (Imbornone v R [2017] NSWCCA 144 at [7]). Exercising such caution, the Crown submits that contrition has not been demonstrated.
4. I have already accepted the timing of the plea and extend to the offender a discount accordingly. The offender's untested assertions to Ms Dombrowski do not reflect genuine contrition in my view. The focus of those remarks is on the offender's disappointment and disgust in himself and his concern for the consequences upon him and his family. Those comments do not express, in my view, genuine recognition of the harm occasioned to children involved in this type of offending and do not amount to assertions of genuine contrition and remorse. Further, the offender's initial statement to police that the subjects were all "above age", coupled with his expressed "surprise" to Ms Dombrowski, sit in stark contrast with the title searches and videos that the offender accessed during the course of this offending. They too, undermine his asserted contrition and insight into his offending. I decline to find contrition to have been demonstrated in this instance.

The prospect of rehabilitation of the person (s 16A(2)(n))

1. Ms Dombrowski assessed the offender to fall in the "above average" risk of sexual recidivism. Factors of significance included his persistence in sexual offending, deviant sexual interests and his general criminality. His current risk of recidivism is approximately two and a half times that of the normative group as a whole. Ms Dombrowski noted dynamic factors including substance abuse, loneliness and intimacy deficits, sexual self-regulation difficulties and a reliance on sexual activity to alleviate negative mood states, to have all contributed to his offending.
2. To Ms Dombrowski, the offender is said to have "demonstrated discomfort and confusion" when asked if he had a specific sexual interest in pre or post-pubescent children. He responded that he did not believe he did, rather he typically preferred to have contact with petite framed, small-breasted women. He described his prior offending to have been opportunistic and to have been; "encouraged by a somewhat precocious nine year old child".
3. When last in custody the offender completed the EQUIPS addiction program and attended weekly alcohol and other drug counselling for a couple of months when he returned to the community. He is also understood to have completed sex offender specific treatment at Long Bay Correctional Complex during his term of imprisonment.
4. Ms Dombrowski opines that he requires further offence specific treatment to address the factors that contributed to his offending and in order to reduce his risk of recidivism. This would include treatment to target his dysfunctional personality style, such treatment likely to be long term over several years to be effective, and further offence specific treatment. Suitable programs, she says, are available in the community and in custody. Further, she suggests management of psychosocial factors such as housing, vocational training and employment, social activities/peers will be important to support the offender with his rehabilitation. She recommends a period of supervised or professional monitoring on his transition back into the community.
5. It is submitted on the offender's behalf, that his time in custody has enabled him an opportunity to reflect and embrace an appreciation of the consequences of his offending behaviour. He is stated to have insight into his situation. That is submitted to weigh favourably for his prospects of rehabilitation.
6. It is the Crown's submission that given the importance of deterrence and denunciation in this sentencing exercise, rehabilitation ought to be afforded less weight than ordinarily given. Further, it is submitted that his prior similar offending and apparent sexual interest in children, impacts poorly on the offender's prospects of rehabilitation.
7. The offender's prospects of rehabilitation are, at this stage, guarded. He has previously engaged in rehabilitation in custody, yet within a reasonably short period of time upon his return to the community, he has again reoffended, albeit in a less serious way. His above average risk of recidivism and the factors contributing to that finding, together with his assessed need for long term targeted treatment and his apparent ongoing paedophilic inclination, lead me to form that view. I am however, mindful of s 16(2AAA) and the need to take into account rehabilitation for this offender. I do this by way of the instinctive synthesis of relevant sentencing considerations in determining the overall sentence. It is also a factor specifically relevant to my consideration of the appropriate length of a non-parole period.

The deterrent effect that any sentence or order may have on the person (s 16A(2)(j))

1. The Crown submits that the previous sexual offending and the fact of the offender being placed on the Register, has not sufficiently deterred him from further offending which increases the need for specific deterrence to be reflected in this instance.
2. The offender submits that the relevance of specific deterrence varies depending upon the circumstances of a particular case. The offender submits it has been found to be an important consideration where an offender has a record for child pornography offences, provides an implausible explanation for offending, presents with a lack of insight into the offence and where there is a real prospect of reoffending (Sentencing offenders convicted of child pornography and child abuse material offences: Judicial Commission of NSW. Monograph 34 - September 2010 at p 7). Material in this instance, it is submitted, does not reflect all of those factors. Accordingly, whilst it appears conceded that specific deterrence is relevant, it is submitted by the offender not to be a weighty factor.
3. Given the offender's prior similar history for which he served a period in custody, his blatant attempts to search for illegal material in this instance of offending, his limited insight and remorse and his above average risk of reoffending, the sentence in this matter should reflect the need for his specific deterrence.

COMPARABLE CASES

1. A court sentencing for Commonwealth offences must have regard to sentences that have been imposed in other States and Territories (R v Pham (2015) 256 CLR 550 at [26]). As the Crown submits, this is to provide guidance as to the identification and application of relevant sentencing principles and also to yield discernible sentencing practices and a possible range of sentences against which to examine a proposed sentence.
2. No comparative cases are relied upon by either party, no doubt, as I am told, because this is one of the few matters so far to have proceeded to sentence in any Australian jurisdiction since the introduction of the mandatory minimum sentencing regime. Recently in this Court, in considering the same provisions, Grant DCJ in R v Delzotto [2021] NSWDC 325, found that the approach in Bahar as referred to earlier, did not apply to this sentencing regime and imposed a sentence below the minimum after applying the statutory allowable reductions. The Crown also advises that in a recent decision of R v Munn, as yet unreported, a decision of Tinney J of the County Court of Victoria, in dealing with a sentence which attracted these provisions, his Honour similarly did not follow the sentencing approach as espoused in Bahar.

Determination

1. In considering the maximum penalty, the minimum sentence applicable, the nature of the offending, the need to reflect adequate punishment, deterrence, denunciation and a recognition of the harm to the victims of this type of offending, together with the offender's relevant subjective circumstances, I am not satisfied that any sentence other than one which involves a custodial sentence is appropriate in all of the circumstances of the case (s 17A Crimes Act) (Cth)). As noted earlier that conclusion is also mandated by virtue of s 16AAB.
2. I now turn to a consideration of the application of the mandatory minimum sentencing regime.
3. In June 2020 a new sentencing regime was introduced into the Crimes Act 1914 (Cth), by way of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act. The rationale for these changes was to ensure that sentencing for sexual crimes against children was in line with the gravity of the offending and reflected community expectations. The new regime acknowledged the harm suffered by victims of child sexual offences and the need for a strong measure of deterrence.
4. The changes included a mandatory minimum sentencing regime applicable for more serious Commonwealth sex offences and repeated sex offending of a less serious type.
5. This offender is caught by the repeat offender, or second strike, provisions contained in s 16AAB by virtue of his previous sexual offending. There is no issue about that. Consequently, subject to s 16AAC, for this offence, being the "current offence", the Court "must" impose a sentence of imprisonment of at least four years. The Explanatory Memorandum, accompanying the legislation, "clarifies" the application of the minimum penalties despite (my emphasis) s 16A(1) (clause 197).
6. There is no mandated non-parole period. The Explanatory Memorandum explains that the mandatory minimum penalties do not limit judicial discretion to set a non-parole period (clause 195), which requires the Court to consider all of the circumstances, including those listed in s 16A, in taking into account individual circumstances and any mitigating factors in considering the most suitable non-parole period (clause 196).
7. Section 16AAC gives the Court a discretion, only if it considers it appropriate, to allow reductions to the sentence below the mandatory minimum of up to 25% for a plea of guilty and up to 25% for cooperation, as referred to (s 16AAC(2),(3)). The Explanatory Memorandum states the reductions apply "only" (my emphasis) if the penalty imposed by the sentencing court is the minimum penalty specified (clause 213).
8. There has been no binding judicial interpretation as to how these provisions are to be applied. As referred to earlier, competing submissions are made as to how this Court would approach the application of the provisions.
9. It is the Crown's firm position that the correct approach is consistent with the approach taken in Bahar. In dealing with a "people smuggling" offence under s 232A of the Migration Act 1958 (Cth), the Court in Bahar was required to consider the approach to be adopted to the mandatory penalty provisions contained in s 233C of the Migration Act.
10. Section 233C provides that, on conviction for an offence under s 232A, unless the offender is under 18 at the time of the offending, the Court must: 1. impose a sentence of imprisonment of at least eight years for a repeat offence or five years in any other case; and 2. set a non-parole period of at least five years for a repeat offence or three years in any other case.
11. In the leading judgment in Bahar, McClure P stated that, "The statutory language makes it unequivocally clear that the Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than five years." [53] Further; "The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied." [54]
12. The sentencing process was thereafter described by the Court at [55] to be as follows: "(i) The minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending; and (ii) Whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender."
13. Her Honour stated that, the question for the sentencing judge is, "where having regard to all relevant sentencing factors the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate."
14. Her Honour acknowledged that the mandatory minimum term of imprisonment could create complications for reductions in sentencing for mitigating factors [56].
15. Whilst there has been some criticism of this approach, including in this State, (see Dui Kol v R [2015] NSWCCA 150), the approach established in Bahar has been applied in other intermediate appeal Courts across the Commonwealth. In this State, Alsopp P in Karim v R, Magaming v R, Bin Lahaiyu v R and Bahu v R, Alomalu v R [2013] NSWCCA 23 at [44], considered that the Court was bound to adopt the approach in Bahar. I accordingly accept that the reasoning in Bahar is generally binding on this Court.
16. The question arises, however, as to whether that reasoning prescribes the approach to be adopted for sentencing an offender who falls within the mandatory minimum sentencing regime that now exists under the Crimes Act 1914, and specifically, for this offender.
17. The Crown submits that the reasoning in Bahar must be followed in this instance. It is the Crown's specific submission that taking into account, in particular, the depraved nature of the material; the motivation of the offender, being for sexual gratification; the multiple child victims involved; the nature of the acts depicted; the need for general and specific deterrence; and, the offender's poor prospects of rehabilitation, that this Court would conclude that the offender does not fall into the "least serious category of offending". Accordingly, it is the Crown's submission that the minimum mandatory penalty is not available and that this offender's sentence must sit above that mandatory minimum penalty of four years.
18. It is the Crown's further submission, that unless the Court in this instance was to find that the offender fell within the "least serious category of offending", he is not entitled to the exclusions and reductions found at s 16AAC. It is the Crown's submission that these exclusions and reductions were introduced in order to confront the issue identified by McClure P at [94], herein namely complications arising from the inability to factor in discounts for a plea of guilty and/or cooperation. Whilst not challenging that the offender is entitled to reductions for those factors, the Crown submits that they would be factored in as part of the instinctive synthesis that would apply in calculating a sentence that falls above the mandatory minimum.
19. The offender submits directly to the contrary. Whilst acknowledging that Bahar is binding on this Court, the offender submits that this Court would be "cautious" in accepting the Crown's submissions as to it representing the correct approach in this sentencing exercise. The offender distinguishes the application of the Bahar approach by noting that minimum penalties apply to only the head sentence in this instance as opposed to fixing both ends of the relevant yardstick. Further, it is submitted that a distinction arises from the availability of discounts for a guilty plea and assistance to reduce a sentence below the fixed minimum which similarly do not arise under the Migration Act provisions.
20. The offender invites the Court to reject the Crown's submissions that the mandatory minimum sentence is reserved only for those offences that fall into the least serious category of offending. The offender submits that there is no definitive statement of what a "worst category" of case is. The authorities that have contemplated the meaning of that phrase have focused on the objective gravity of the offence, including aggravating features (Little v R [2010] NSWCCA 210 at [31]). It is submitted that those same principles must apply in considering "the least serious category of offence" and as such, require a focus on the seriousness of the offending and presence of any aggravating factors without taking into account matters personal to the offender. The offender submits that in adopting the Crown's approach, an assessment of whether this offending fell within the least serious category of offending would focus on objective seriousness of the offending only. Further, the offender submits that the Crown's approach would result in a prescriptive approach that risks a two stage approach to sentencing which is inconsistent with the "instinctive synthesis" approached in Muldrock v R [2011] HCA 39; 244CLR 120.
21. Whilst I accept that the reasoning adopted in Bahar is binding on this Court, it is my view that it is not determinative of the approach to be adopted in this sentencing exercise. A distinction can be drawn between the mandatory minimum regime that affects this sentencing exercise and the mandatory penalty regime that exists under the Migration Act. I form that view for a number of reasons.
22. Firstly, I adopt the reasoning of Grant DCJ in Delzotto (supra at [31]) in that the construction of the provisions of the Migration Act is not binding on this Court as it relates to the construction of a different Act.
23. Secondly, the Bahar approach to the application of the mandatory penalty regime that exists under the Migration Act results in a significant restriction being placed on the sentencing discretion, in that the provisions provide the "floor" and "ceiling" for the penalty to be imposed within which the general sentencing principles are to be applied. The provisions of the Crimes Act, specifically as relevant here at s 16AAB, preserve some discretion for the Sentencing Court. It does so by allowing the Court to fix a non-parole period within which the Court is to "take into account individual circumstances and any mitigating factors in considering the most suitable non-parole period" (EM,196)
24. Further, it allows a sentencing Court to fix a sentence below the mandatory minimum by application of the s 16AAC reductions, "if the Court considers it appropriate".
25. These discretions do not exist under the Migration Act, nor within the Bahar reasoning.
26. I accept that the reductions at s 16AAC are to apply "only" if the penalty imposed is the mandatory minimum specified (EM clause 213). I accept that this may well have been introduced to counter one of the difficulties that were considered in Bahar. Relevantly, however, despite that rationale and an available opportunity to prescribe the type of offending for which the minimum penalty was reserved, both the Explanatory Memorandum and the Act remain silent on limiting the minimum mandatory sentence and the application of the available reductions only to that offending that falls into the "least serious category". Consistent with principles of statutory construction, I am unable to read into these provisions the approach that the Crown urges.
27. Accordingly, I am not satisfied that the Bahar reasoning process prescribes the approach to be taken in applying the mandatory minimum provisions in this sentencing exercise. Further, I am not satisfied that I need to form a view that the offender is only entitled to the minimum mandatory sentence if he falls into "the least serious category of offending".
28. I accordingly approach this sentencing exercise in line with existing provisions. I am required to impose a sentence that is of a severity appropriate in all of the circumstances of the offence (s 16A), noting the applicable minimum penalty of four years (s 16AAB) and relevant factors set out at s 16A(2). That approach, I note, is consistent with aspects of the Crown's submissions.
29. In considering an appropriate sentence in this matter, I take into account specifically the maximum penalty of 15 years; the minimum period of 4 years; my assessment of objective seriousness which sees the offence below midrange but not into the lowest category; the need to reflect general principles attaching to matters of this type, specifically, deterrence, denunciation and recognition of the harm done to the victims involved; the subjective circumstances of the offender including his repeat offending, his above average risk of reoffending and his need for lengthy rehabilitation to address his mental health condition and risk of sexual reoffending together with other relevant factors arising under s 16A(2) as detailed earlier.
30. I also take into account the submissions of the parties as to an appropriate sentence. Putting to one side the criticism that the Crown's submission offends the principle in Barbaro v The Queen (2014) 253 CLR 58 in that the Crown is suggesting a range of penalties, it is the Crown's submission that this offence, after applying applicable discounts, would see a sentence above the mandatory minimum. It is the offender's submission that an appropriate sentence would be the mandatory minimum to which the allowable reductions would then be applied.
31. I conclude that the appropriate sentence in this instance is one of four and a half years.
32. The offender is entitled to a combined discount of 30% for his early plea of guilty and cooperation with police involved in the investigation of his offence. However, in applying that discount, that would see the head sentence fall below the mandatory minimum. I could only allow that result if the penalty I impose is the minimum penalty, namely four years to which the s 16AAC reductions could then apply. I am accordingly unable to give full effect to the discount to which the offender is entitled.
33. I accept the mandatory nature of the provision. I am obliged to impose a sentence of at least four years imprisonment, which I so do.
34. I now turn to a consideration of an appropriate non-parole period. I note there is no statutory ratio for Commonwealth offences. I accept it is an error to begin from an assumed percentage (Hili v R (2010) 242 CLR 520). I am required to take into account the offender's subjective circumstances and any mitigating factors as acknowledged earlier, being cautious not to double-count where they may have already been considered in determining the appropriate overall sentence.
35. I also take into account s 16(2AAA) and the observations of Ms Dombrowski, that the offender will benefit from offence specific and mental health specific treatment for some period of time. I am also required to consider the minimum period of imprisonment that justice requires the offender to serve. Those factors lead me to set a non-parole period which represents approximately 66% of the total sentence.
36. In fixing that non-parole period, I reject the submission of the Crown that the effect of the mandatory minimum regime requires the Court to reflect the rationale of the new provisions in imposing a lengthier non-parole period. That approach sits starkly in contrast with the discretion that prevails in considering an appropriate non-parole period as stated in the Explanatory Memorandum.
37. Accordingly, in this matter I make the following orders; 1. The offender is convicted. 2. The offender is sentenced to a total term of imprisonment of four years commencing on 25 July 2020 and expiring on 24 July 2024. 3. I fix a non-parole period of two years and eight months commencing 25 July 2020 and expiring 24 March 2023. 4. The offender will be eligible for release on parole at the expiration of the non-parole period, subject to s 19AL of the Crimes Act 1914 (Cth). 5. I recommend that any release to parole be subject to supervision. 6. I recommend that whilst in custody the offender undertake any appropriate sex offenders course that may be available to him. 7. Pursuant to s 23Z(d) of the Crimes Act, I order the forfeiture of the offender's laptop to the Crown.

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