R v Bredal [2024] NSWCCA 75
Category: Sentence
Parties: Rex (Crown)
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Bugmy v The Queen [2013] 249 CLR 571DPP (Cth) v De La Rosa [2010] NSWCCA 194R v Bredal [2024] NSWCCA 75
Category: Sentence
Parties: Rex (Crown)
Judgment (2 paragraphs)
[1]
Judgment
Michael John Holland, you appear for sentence today in relation to two offences.
First, the offence of accessing child abuse material using a carriage service. This offence was committed between about 13 August 2020 and 12 December 2022. This is sequence 2.
Sequence 2 involves a contravention of s474.22(1) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.
Secondly, the offence of possessing or controlling child abuse material, in the form of data held in a computer, and having used a carriage service to obtain or access that material. This offence was committed on or about 14 December 2022. This is sequence 1.
Sequence 1 involves a contravention of s474.22A of the Criminal Code (Cth).
The facts surrounding sequences 1 and 2 are contained in an agreed statement of facts. Slightly recast by me as to style, but not substance, they are as follows.
At the time of the offending, you were aged between 56 and 58 years; and living in Sydney.
On 11 November 2022, New South Wales Police received a report from the Australian Federal Police concerning the downloading of child abuse material to a unique IP address. That IP address was yours, and you had subscribed to it since 4 November 2020.
On 14 December 2022, a search warrant was executed at your residential premises. You assisted the police in the search of those premises, including providing them with your laptop.
After the execution of the search warrant, you were taken to a police station where you participated in an electronically recorded interview.
Your laptop was the subject of forensic analysis on 2 February 2023. That analysis revealed the presence of 524 images and video files which satisfied the definition of Category 1 child abuse material according to the Australian Child Abuse Categorisation Schema.
Category 1 material is defined as "Media depicting real pubescent child / very first signs of puberty and the child is involved in a sex act, witnessing a sex act or the material is focused / concentrated on the anal or genital area of the child".
The 524 files depicted the following:
1. adult males having penile / vaginal intercourse with female toddlers;
2. one image of a male adult having penile / anal intercourse with a boy aged roughly 7 years;
3. children engaged in sexual intercourse with each other in various forms, including penile / vaginal intercourse;
4. fellatio of other children or adult males;
5. adult males performing cunnilingus on female children; and
6. children performing cunnilingus on other female children.
These files had been created within your laptop between 13 August 2020 and 12 December 2022 - that is, over a period in excess of 2 years. The offending was, therefore, not an isolated event nor transitory.
It is these facts which constitutes sequence 1.
You used your personal laptop to access child abuse material files between August 2020 and December 2022, as I have just indicated. Paragraph 37 of the agreed statement of facts contains a schedule which sets out the file creation dates of the 524 child abuse material files. There was a significant disparity in the amount of material created within the range covered by that schedule. For example, one file was created in December 2020; two files were created in November 2020; and four files were created in October 2020; whereas 85 files were created in October 2021; 84 files were created in March 2022; and 64 files were created in December 2022. No creation dates were identified between January to March 2021; nor May to June 2021.
It is the use of a carriage service by you to create those files that constitutes sequence 2.
It is necessary for the Court to make a finding of the objective seriousness of each offence for an offence of its kind.
In assessing such objective seriousness, regard should be had to the following:
1. the nature and content of the material, the age of the children and the gravity of the sexual activity depicted;
2. the number of items or images possessed;
3. whether the material was for the purpose of sale or further distribution and, if so, the number of persons to whom the material was transmitted;
4. whether actual children were used in the creation of the material and, if so, the number of children depicted;
5. the degree of planning, organisation or sophistication employed by an offender in acquiring, storing, disseminating or transmitting the material; and
6. whether an offender acted alone or in a collaborative network of likeminded persons.
Insofar as sequence 2 is concerned, it is a rolled-up charge. As the Crown has correctly submitted: "In sentencing a rolled-up charge, the Court is required to assess the criminality of an offender's conduct as particularised… The more contraventions or episodes of criminality that form part of the rolled-up charge, the more objectively serious the offence is likely to be" (Outline of Crown Submissions on Sentence [27], 24 January 2024).
Applying these various considerations, although each of the offences is an objectively serious example of an offence of its kind, each is, nevertheless, below the mid-range of objective seriousness - but not near or approaching the bottom of the range.
There are no additional aggravating factors.
Your subjective circumstances were placed before the Court through:
1. a sentencing assessment report dated 24 January 2024;
2. the report of Dr Adam Martin, psychiatrist, dated 27 November 2023;
3. a supplementary report by Dr Martin dated 10 April 2024;
4. a report by Dr McSwiggan, consultant neuropsychologist, dated 2 April 2024;
5. a letter of apology, undated, from you;
6. a collection of character references;
7. the sworn oral evidence of some of those referees;
8. your sworn oral evidence; and
9. the sworn oral evidence of Dr Martin.
I pause to observe that Dr Martin provided his evidence as an expert who subscribed to the Expert Code of Conduct. Clause 2 of the Code provides:
"An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness".
As I have had occasion to previously note: "This duty is, to my observation over many years, frequently honoured in the breach than the observance" (cf R v Kaplantzi [2023] NSWDC 42 at [35]). Not so in this case. As the Crown prosecutor correctly submitted, Dr Martin "…was a candid and reliable witness…" whose evidence I was "…entitled to rely on…" (T58:20 -26, 3 May 2024).
As I have already noted, at the time of the offending, you were aged between 56 and 58 years.
You have no prior criminal convictions. In other contexts, this would entitle you to the meaningful leniency which can be extended to a first offender. However, for offences against children, including child abuse material offences, this is a consideration of reduced significance. But it is still of some significance.
You were born in Sydney.
You were the youngest of three children born to your parents.
Your childhood was an unhappy one. Both of your parents had serious problems with alcohol; and your father was physically abusive towards your mother. Ultimately, when you were 11 years old, your mother left the matrimonial home - and abandoned her children. Your father abandoned you when you were 13 years old - after which you were raised by your older brother. The circumstances of your childhood was significantly dysfunctional, giving rise to a reduction in your moral culpability for your offending (cf Bugmy v The Queen [2013] 249 CLR 571).
Your mother died when you were 18 years old, and your father when you were in your late 20s.
You remain close to both your brother and sister. They both provide you with strong and ongoing support.
You did not enjoy school and were a poor student.
You left school at age 16; and you have been engaged in honest, meaningful and consistent employment (mostly as a security guard) until your retirement in 2022.
In the past, you have briefly had issues with alcohol and gambling, but they are not current problems, nor were they relevant to your offending. And you have never had meaningful issues with illicit drugs.
You have been married to your wife for 31 years. You and your wife have had five children. Your family continues to provide you with strong and ongoing support.
You have no serious or significant medical or physical health issues; and you have no intellectual disabilities.
However, from about 2017, you developed symptoms of depression and anxiety. It would seem that these conditions were related to work stress and problems with intimacy between you and your wife, as well as the consequences of your emotionally damaged childhood.
According to Dr Martin (whose evidence, unless otherwise indicated, I accept), the conditions or symptoms which commenced in about 2017 had developed into a major depressive disorder at about the time of your offending; and that such a disorder was causally connected to that offending.
You did not seek any treatment in relation to the depressive and anxiety condition until after you were admitted to bail following your arrest for these current offences - although you had earlier sought the assistance of your general practitioner in relation to the intimacy issue. Since you were admitted to bail, however, you have been receiving treatment from Dr Olatunji (a psychiatrist) and Mr Handleman (a psychologist). No evidence was placed before the Court as to the precise nature of the treatment you are (and have been) receiving from those practitioners.
Dr Martin has expressed the opinion that, as a result of the treatment you have received (and are receiving) from these two practitioners, your depression and anxiety are currently in remission.
You told Dr Martin that you did not have any sexual interest in children; that you accidentally started looking at child abuse material on the internet; and that you struggled to explain why you downloaded the child abuse material. You said similar things to the author of the sentencing assessment report. Dr Martin, however, could not exclude the reasonable possibility that, notwithstanding your denials, you had an underlying sexual interest in children.
And the only rational inference in the circumstances is that you have not told either of your two treating practitioners that you have a sexual interest in children - and, therefore, you are not receiving specific treatment for that condition from them. In this context, the following extract from the first report of Dr Martin, and the following two portions of his oral evidence are particularly noteworthy:
"A sustained sexual interest in pre-pubescent children [i.e., paedophilic disorder] cannot be excluded based on the available information, and in my view, should be the ongoing subject for discussions through his treating psychologist and psychiatrist" (Report dated 27 November 2023, page 8).
"I've been very clear that you can't - you might from a clinical perspective but can't exclude deviant sexual interest. Now I think it's a live issue and it will certainly need to be the subject for future treatment in whatever setting Mr Holland is placed" (T37:15-18, 3 May 2024).
"…if you look at most people in Mr Holland's situation they don't go on to reoffend. Obviously some do and they're the ones we take notice of. But most people, once they're caught, don't go on and reoffend because of the threat of punishment, which is now very real, and the shame, etc. So the success rates are - I mean it's very difficult to measure firstly, and I think you're correct that there isn't much evidence to demonstrate that you can successfully treat. But it doesn't mean that you shouldn't try" (T40:10-16, 3 May 2024).
Having reviewed all of Dr Martin's evidence (both written and oral), I am not satisfied, on the balance of probabilities, that you have no underlying sexual interest in children. My conclusion is, therefore, inconsistent with statements / denials you have made to Dr Martin, to the author of the Sentencing Assessment Report, and in your sworn evidence. However, I do not think those denials were deliberately dishonest; or adversely affect my assessment of your genuine remorse. Rather, I am of the opinion that it was, and is, reflective of a lack of insight; or an inability to acknowledge that condition. The fact that you continue to deny at least the possibility that your criminal conduct might have something to do with a sexual interest in children, and notwithstanding the treatment you have been receiving to date, is a matter of some concern to me.
Nevertheless, and notwithstanding the uncertainties which he frankly and properly noted as to whether or not you, in truth, have an underlying sexual interest in children, Dr Martin ultimately concluded that, with continued psychiatric and psychological treatment of your depressive condition (and notwithstanding that that treatment is not specifically addressing any sexual interest, by you, in children); and because of (what Dr Martin described as) your "good" level of insight into the serious nature of your offending; your genuine sense of shame and remorse; and the continued strong support of your family, you had "excellent prospects for rehabilitation".
Dr Martin went on to state, however, that those prospects would be impeded if you received a sentence of full-time imprisonment - thereby breaking your contact with your current treating team.
I have closely considered both of the reports of Dr Martin and his oral evidence. Ultimately, I accept, on the balance of probabilities, most of what he has written and said. However, as I have indicated, I do not fully share Dr Martin's opinion concerning your level of insight. Whilst you might now have a better understanding of the criminality of what you were doing, you do not yet have meaningful insight into why you engaged in that conduct - that is, because you have, or may have, a sexual interest in children. For these reasons, and without having any input from either Dr Olatunji or Mr Handleman, I would prefer to describe your prospects of rehabilitation more cautiously than Dr Martin. In my view, your prospects of rehabilitation are reasonable.
But the subjective circumstances of an offender are of less significance with respect to child abuse offences than with many other offences. This is because, for child abuse offences, general and specific deterrence, especially general deterrence, are of much greater significance - as the second extract from Dr Martin's evidence that I have quoted serves to illustrate. Indeed, general deterrence is the primary sentencing consideration - although, because of your major depressive condition at the time of the offending, the full application of that consideration is somewhat ameliorated (see DPP (Cth) v De La Rosa [2010] NSWCCA 194).
In all the circumstances of each offence, I have concluded that no sentence other than a sentence of imprisonment is appropriate.
The start date needs to reflect that you served two days imprisonment before being admitted to bail. Accordingly, the start date of the sentence will be 13 July 2024.
And the length of the sentences need to reflect your early pleas of guilty. In each case, there will be a discount of 25 per cent for the early pleas.
In each case, therefore, before the discount, the sentence is imprisonment for 4 years. After the discount, the sentence in each case is imprisonment for 3 years.
The gravamen of each of the offences is different and involves distinct and separate criminality. However, the factual matrix underpinning the offences is significantly intertwined. For that reason, and because I am satisfied that the sentences to be imposed are of a severity appropriate in all the circumstances, the statutory presumption in favour of accumulation can be departed from. The sentences will be totally concurrent.
One issue which received significant attention in the sentence hearing was whether you had established "exceptional circumstances" to justify an order that you be immediately released to a recognizance release order. The factors submitted by your counsel which, taken in combination, would justify that finding are set out in [39] of his written submissions.
However, as the Crown correctly submitted, those various factors (individually and taken together) are not uncommon for offenders in the circumstances you find yourself in.
That said, there are two specific factors listed in your counsel's written submissions that require specific comment. First, I have not concluded that you have excellent prospects of rehabilitation. Secondly, I do not understand the evidentiary basis for the hardship to family submission. Your counsel submitted that, if you went into custody, this would somehow mean that your wife would have to move out of your current rental premises into smaller premises or with members of the family. But your current income is superannuation payments. There is no evidence that such payments would cease if you were imprisoned. And to the extent that the family finances will be adversely impacted by the recent health issues experienced by your wife, that would occur regardless of whether or not you were incarcerated.
Whilst I am not satisfied that there are "exceptional circumstances" (as that expression was explained in R v Bredal [2024] NSWCCA 75 per Dhanji J at [55] and [58] to [61] inclusive, with whom Harrison CJ at CL and Button J agreed) I shall significantly reduce the period of full-time custody that you must serve before being released to a recognizance release order in order to minimise the risk of a relapse of the depressive and anxiety symptoms currently in remission; and to minimise any detrimental effect on your current treatment and rehabilitation.
Accordingly, the execution of each sentence is to be suspended after 6 months pursuant to s20(1)(b) of the Crimes Act (Cth) upon the condition that you enter into a recognizance self in the sum of $500.00 without security upon the following conditions:
1. that you are of good behaviour for a period of 2 years 6 months from 12 January 2025; and
2. that you are to comply with the following further conditions:
1. to accept the supervision and guidance, and to comply with all reasonable directions, of the Community Corrections service for the term of the recognizance;
2. to be subject to the supervision of a probation officer appointed in accordance with the order;
3. not to travel interstate or overseas without the written permission of the probation officer; and
4. to undertake such treatment and / or rehabilitation programs that the probation officer reasonably directs.
I make the forfeiture order in accordance with the Short Minutes of Order signed by me and dated today.
You will now go with the officers.
[2]
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Decision last updated: 15 July 2024