[2011] WASCA 249.
Minehan v R [2010] NSWCCA 140.
R v Delzotto [2022] NSWCCA 117.
R v McNaughton [2006] NSWCCA 242
Source
Original judgment source is linked above.
Catchwords
[2011] WASCA 249.
Minehan v R [2010] NSWCCA 140.
R v Delzotto [2022] NSWCCA 117.
R v McNaughton [2006] NSWCCA 242
Judgment (9 paragraphs)
[1]
Solicitors:
Mr. J. Fennel (The Crown)
Mr. V. Vijay (The Offender)
File Number(s): 2021/00026674
[2]
Judgment
HER HONOUR: The offender Daniel Joseph Hunter is before the Court for sentence on 16 substantive offences, contrary to various provisions of the Criminal Code Act 1995 (Cth) (the "Criminal Code") with nine offences to be take into account as additional offences pursuant to s 16BA of the Crimes Act 1914 (Cth).
The offender pleaded guilty to all offences in the Local Court and was committed for sentence to this Court. The offences appear to cover 23 separate occasions between 20 and 28 January 2021 on which various offences were committed and the structure of the charges, in my view, was unnecessarily complicated.
Despite what was obviously then a complicated and lengthy sentence, the parties on 10 December 2021 gave the District Court an estimate for this sentence of two hours. That was always wildly incorrect and this inaccurate estimate of the length of this sentence has led to considerable difficulties finalising this matter. I will return to this issue.
All of the offences here are contrary to various provisions of the Criminal Code as follows: Section 474.24A(1) which carries a maximum penalty of 15 years imprisonment, s 474.22(1) also carrying a maximum penalty of 15 years imprisonment, and s 474.24A(1) which carries a maximum penalty of 30 years imprisonment with a mandatory minimum sentence of 7 years.The 16 matters for substantive sentence are as follows:
SEQUENCE 1: A charge of possessing or controlling child abuse material obtained, or accessed, using a carriage service, committed on 29 January 2021. This is an offence contrary to s 474.22A(1) of the Criminal Code.
SEQUENCES 4, 9, 13, 17, 20, 25 and 29: Seven separate charges of transmitting child abuse material using a carriage service, all contrary to s 274.22(1)(a)(iii) of the Criminal Code, which were committed on 21, 24, 26, 27 and 28 January 2021.
When sentencing him for sequence 4 he asks that I take into account an additional offence, being sequence 8, a charge of causing child abuse material to be transmitted to himself on 21 January 2021. That is an offence contrary to s 474.22(1)(a)(ii).
When sentencing him for sequence 17 he asks that I take into account an additional offence, being sequence 16, a charge of soliciting child abuse material using a carriage service on 26 January 2021, contrary to s 474.22(1)(a)(iv).
When sentencing him for sequence 29 he asks that I take into account an additional offence, being sequence 30, a charge of causing child abuse material to be transmitted to himself on 28 January 2021, contrary to s 474.22(1)(a)(ii).
SEQUENCES 6, 10, 12, 18 and 24: Five separate charges of causing child abuse material to be transmitted to himself using a carriage contrary to s 474.22(1)(ii). These offences were committed on 22, 24, 26, 27 and 28 January 2021.
When sentencing him for sequence 6 he asks that I take into account an additional offence, being sequence 7, a charge of transmitting child abuse material using a carriage service on 20 January 2021. It is contrary to s 474.22(1)(a)(iii).
When sentencing him for sequence 10 he asks that I take into account an additional offence, being sequence 11, a charge of transmitting child abuse material using a carriage service on 24 January 2021, also contrary to s 474.22(1)(a)(iii).
When sentencing him for sequence 18 he asks that I take into account an additional offence, being sequence 19, a charge of transmitting child abuse material using a carriage service on 26 January 2021, also contrary to s 474.22(1)(a)(iii).
SEQUENCES 14 and 21: Two substantive offences for sentence being that on 26 January 2021 the offender accessed child abuse material using a carriage service. These are contrary to s 474.22(1)(a)(i) of the Criminal Code.
When sentencing him for sequence 14 he asks that I take into account an additional offence, being sequence 15, a charge of transmitting child abuse material using a carriage service on 26 January, contrary to s 474.22(1)(a)(iii).
When sentencing him for sequence 21 he asks that I take into account an additional offence, being sequence 22, a charge of transmitting child abuse material via a carriage service on 27 January 2021, also contrary to s 474.22(1)(a)(iii).
SEQUENCE 5: A charge that between 27 and 28 January 2021 he used a carriage service to transmit child abuse material on three or more occasions involving two or more people. It is an offence contrary to s 474.24A(1) of the Criminal Code, and, as previously said, carries a maximum penalty of 30 years imprisonment with a minimum mandatory term of imprisonment of 7 years.
When sentencing for this offence he asks that I take into account an additional offence, being sequence 23, a charge of transmitting child abuse material using a carriage service on 27 January 2021, also contrary to s 474.22(1)(a)(iii).
There are thus 9 separate additional offences to be taken into account when sentencing for 9 of 16 substantive offences pursuant to s 16BA of the Crimes Act 1914 all of which require separate consideration to determine the extent to which, if at all, they would increase the relevant sentence for the substantive offence to which they attach.
At the risk of being repetitive, just stating this numerous and complicated list of offences for which facts must be considered, all of the provisions of Part 1B of the Crimes Act 1914 taken into account, individual sentences considered, reasoned and announced, taking into account, where relevant, s16BA offences for some, but not all offences, issues of concurrence and totality considered, let alone determining issues in relation to one of the offences which carries a minimum mandatory term, makes it clear that the original estimate of two hours given to the District Court was complete fantasy, made further so in circumstances where the sentence was listed on a Thursday as part of this Court's general sentence list, where the Crown's sentence summary contained a statement of facts comprising 18 pages and 80 paragraphs, but which itself was not physically present in the Court file when the sentence started, and where the Crown's 24-page written submissions, and the Defence's 9-page written submissions, were tendered to the Court at the time the sentence commenced.
Even if there had been an opportunity for a judge to have read it in advance, which there was not, the important material was simply not in the file. Further, as it transpired, those appearing for the offender knew, at the time the sentence came before me as part of a sentence list, that not only was there this extremely large volume of material to be read and understood by the sentencing judge, but that they also intended to call oral evidence from the offender.
It is entirely unprofessional in my view that this Court was told by both parties, or at least neither party sought to be heard to the contrary on 10 December 2021, that this sentence would occupy only two hours. Even if that estimate assumed that a judge of this Court may have had the opportunity to read the material in advance, an unlikely proposition in the Downing Centre, which must be known, and should be known, to any practitioner in this Court, even two hours would not have been sufficient to then deal with oral evidence, lengthy submissions, and of course did not in any way factor in time for consideration by the sentencing judge, nor time to deliver the actual oral sentence judgment, which, as it will now become clear, is likely to take somewhere between one and two hours.
Realistically this sentence should have been listed for at least one day, and the parties should have requested the Court to list it on that basis. The fact that it has now taken as long as it has to finalise is in part the fault of the parties who did not give the Court anything remotely like an accurate estimate. This has a knock-on effect to every other court user and should stop.
Just to ensure that the folly and consequences of this is understood, it is important that I refer to the workload and circumstances of this particular court, both specifically and generally. Since 3 March attempts to finalise this matter have been hampered by a combination of factors, including weather conditions on one potential court date, meaning that it was too dangerous to travel, the listing of jury trials before me from 8 March to 15 April in the Downing Centre, the fact that I, in addition to many judges of this Court, contracted Covid and was required to isolate for a week in mid-March, the fact that I was then listed to sit at the Parramatta District Court for two weeks following the Easter break, and thereafter conduct seven weeks of circuit, including several lengthy and serious jury trials and other matters in the District Court at Queanbeyan from 1 May until mid-June, and a multitude of other lengthy sentences, both part heard following trial and freshly listed before me in the Downing Centre, and then further jury trials in the Downing Centre from 27 June to the present.
All practitioners in Sydney know, or ought to know, that this is the typical workload of the District Court, with of course the issue of Covid constantly waiting in the wings affecting judges, court staff, Correction staff, jurors, legal practitioners and parties. A sentence like this requires several hours of a Judge's time in chambers reading, collating, researching and considering, and the parties in this sentence have not given any thought to these contingencies. As I have said, inaccurate estimates like this here have a knock-on effect to every other court user and must come to an end.
I turn now to the actual offences. All of them occurred in the context of online conversations the offender had using an app called Kik between 20 and 28 January 2021 in which he transmitted, solicited, accessed, and caused transmission to himself, of child abuse material. Kik is an instant messaging application allowing users to exchange messages, photos and videos. The offender was logged into the Kik app on his phone in a false name. He used that Kik platform to trade child abuse material.
On 29 January 2021 AFP officers went to the offender's workplace in Sydney to execute a warrant. During the execution of the warrant, they located an Apple iPhone in the possession of the offender. At their request the offender gave them the PIN and they conducted a recorded conversation with him. They undertook a manual review of his phone, opened the Kik app and saw a number of conversations which contained child abuse material. They also saw child abuse material in the phone's photo gallery. They placed him under arrest and took him to AFP headquarters where he participated in an electronically recorded interview. During that he admitted that it was his phone and that no one else used it or had access to it.
He admitted that he had child abuse material on his phone in the Kik app and phone gallery, which comprised photos and videos mainly involving adults engaged in sexual acts with children aged between 8 and 17. He admitted that he saved the child abuse material to his phone from Kik chats and shared child abuse material with other people via that app.
He said that he looked at child abuse material for self-gratification and masturbated to ejaculation whilst doing so. He told police that he started looking at child abuse material in June or July 2020 via the Internet generally but joined the Kik app at around the time he started committing the offences before me and was also involved in a separate group chat on Kik called Yummies which he said comprised about 16 people, none of whom he knew personally, but all of whom traded child abuse material.
He said he had sent child abuse material to this group as well. He told police that he had chatted online via the Kik app with about 25 users and spoke about and sent clothed images of a child who he had claimed was his nine or ten-year-old daughter who he called Audree. He told police that during these chats he described sexual acts that either he had done, or had wanted to do, with this child.
He also told police however that he did not have a daughter and that the images of this child which he has posted on the Kik app were taken from the Facebook account of a woman with whom he worked about 12 years previously but with whom he no longer had contact. He had pretended that this was his child when he sent clothed pictures of her and admitted that he posted these pictures so that he could engage in online chats with more people via this Kik app. He did not in fact engage in any sexual acts with this or any other child.
He was charged with the offences for which he is to be sentenced and refused bail. He has been in custody bail refused ever since his arrest on 29 January 2021 and his sentences will commence on that day.
Police conducted a Cellebrite examination of the offender's phone and the charges now before the Court for sentence all arise from the contents of that phone.
[3]
Chronology of the Offences and the Relevant Facts
Sequence 1 is an offence of possessing child abuse material relating to files found both in the photo gallery of the phone and contained within the Kik conversations. The photos saved in the phone's photo gallery had all been accessed by the Kik app. Paragraph 15 of the agreed facts is a summary of the files located on the photo gallery of the iPhone.
The photos and videos, the subject matter of this charge, fall within categories 1 and 2 of the Interpol Baseline 4 Tier Categorisation System (IBCS). Category 1 applies to real pre-pubescent children under the age of 13 either involved in a sex act, witnessing a sex act, or where the photos or videos concentrate on the anal or genital region of the child. There were 444 images and 51 videos on the offender's phone which fell within category 1, that is 495 files in total.
Category 2 applies to other illegal content involving a child under 18 years of age. There were 32 such photos and 9 videos found on the phone, that is 41 files in total within category 2.
At paragraph 17 of the agreed facts there are samples of the videos the subject matter of this charge which fall within category 1. I do not propose to repeat those summaries here knowing that this sentence judgment may well be published and be available for public access. Repeating the details in such a judgment runs the risk, it seems to me, that a judgment of this Court contains descriptions of disturbing child abuse material capable of being accessed and abused by those very individuals who have propensities to access similar material and regrettably sometimes to act in a similar way. It is not necessary to do so and potentially dangerous.
In summary the category 1 videos summarised in paragraph 17, and relevant for sequence 1, all depict acts of penetrative sexual intercourse of children aged between about 3 and 8 by both male and female adults.
Samples of the category 2 videos are described in paragraph 18 and involve children apparently aged between 11 and 13 engaging in sexual acts either with other children or with an adult but which fall short of category 1 images or videos.
The remainder of the offences for sentence involve the offender's causing child abuse material to be transmitted to him, or accessing child abuse material, in the period between 20 and 21 January using the Kik app on his mobile phone. That app was subscribed by the offender using a false name and was an account created by him on 19 January 2021. He created a Gmail account in a name referencing the child 'Audree' and he used the name for the Kik application that did not reference his real name. He did these things in an attempt, I accept, to create some distance between his real identity and his Kik identity, but whilst this amounted to some planning, it was far from sophisticated.
There is no evidence that this app was encrypted, or that he had initiated any form of disappearing messages, and in fact all of the photos discovered in the photo gallery on his iPhone were on a phone apparently subscribed in his real name, which he had in his possession when he was arrested, and which had been saved to that gallery from the Kik application and were not secreted in any hidden files or across multiple locations on his phone.
Sequences 6 and 7 occurred on 20 January 2021 at around 6pm when the offender engaged in a conversation via the Kik platform with a person named as Tom and agreed to trade what was described as "young" which I accept means images or other material involving children. Tom asked, "How young?" and the offender replied, "No limits". Tom sent him a child abuse video in response and the offender replied in the way set out at the end of paragraph 23 of the facts asking for more serious child abuse material including those showing children crying. As a result, he was forwarded five files containing child abuse material. A summary of this material is in paragraph 24 of the facts.
They all fall into category 1 child abuse material and the children shown on the videos appear to be very young aged between 2 and 8. None of the images indicated penetrative sexual activity but two involve sexual activity with an adult. This is sequence 6 of causing child abuse material to be transmitted to himself.
During this same chat with Tom, he sent pictures of the child he called Audree claiming that he and another adult had given her a sedative and performed a sex act with her, said he wanted to molest her, and described her genitalia. Sending the clothed picture of Audree in the circumstances constitutes the offence of transmitting child abuse material and is sequence 7, an additional offence to be taken into account pursuant to s 16BA.
The facts for sequence 7, in my view, albeit an offence which, if sentenced alone, would attract a maximum penalty of 15 years, is not on its own facts an offence which would necessarily give rise to a term of imprisonment. Moreover, it seems to me that it could easily, and would better have been viewed as part of the surrounding circumstances in which the more serious offence was committed, thus part of the same episode of criminality. This would mean that whatever the relevant sentences are for each of them it would be appropriate that they be ordered to be served concurrently. As a result, I do not propose to increase the relevant sentence for sequence 6, taking into account sequence 7 as an additional offence. It seems to me that sequence 7 could more easily have been abandoned in the Local Court so that this Court was left with a more manageable and less complicated sentence overall.
The next offences are sequences 4 and 8. On the evening of 21 January 2021 the offender engaged in conversation via the Kik platform with the user known as Jim Lay. They exchanged pictures of young pre-pubescent girls who they said were their relatives. The offender sent the clothed picture of the child Audree, who he said was nine. He asked for videos of children and Jim Lay sent him child abuse material, being one image and one video.
They are summarised in paragraph 28 of the facts and are both category 1. They involve children aged about 5 to 7, and one involves penetrative sexual intercourse between an adult man and a child. That is sequence 8, an offence of causing child abuse material to be sent to himself, an additional offence when sentencing for sequence 4.
Also, during this conversation, the offender sent two child abuse videos to Jim Lay. One of them is summarised in paragraph 29 of the agreed facts. It is also category 1, and depicts a child apparently aged about 6 involved in two forms of sexual behaviour with an adult male. He also transmitted text amounting to child abuse material to Jim Lay describing Audree's genitalia and a sexual act with her as set out in paragraph 30.
The transmission of the two videos, and this text material, is the subject matter of sequence 4, the substantive offence of transmitting child abuse material.
In this case, it seems to me the additional offence is as serious as sequence 4. Arguably because of the nature of the video which he received, it is of at least equal seriousness but objectively it is somewhat less serious because, whilst he caused the files to be sent to him, there is no evidence that he specifically asked for, or expected, any particular type of video to be sent.
Also, once again his requesting child abuse material, receiving it, and then sending files and text in return, it seems to me is really part of the same episode of criminality so that the appropriate sentence for sequence 4 in the overall circumstances of these sentences will be more than sufficient to impose appropriate punishment, exact retribution, and ensure personal and general deterrence. In those circumstances the sentence relevant for sequence 4 will not be increased as a result of the additional offence, sequence 8.
The next offence is sequence 9, which occurred on 24 January 2021 during the day. The offender engaged in conversation on the Kik platform with the user known as Your Master. He sent an image of a child he called Audree to this person and transmitted to him the same child abuse material video he had received from Jim Lay, which is the subject matter of sequence 4. Thus, he transmitted a video depicting penetrative sexual intercourse between an adult male and a child aged between 5 or 6. There is however no evidence that when he received this video, the subject matter of sequence 4, he did so with the intention of distributing it further, albeit he did so, and this forms the subject matter of sequence 9.
Sequences 10 and 11 are the next in time which occurred on the evening of 24 January 2021. The offender engaged in a conversation via the Kik platform with someone using the name Jim Jay. This person sent the offender images of pre-pubescent girls who he said were his "cuzs" or cousins. The offender sent him a clothed picture of the child he named Audree, who he said was his daughter, and about whom he engaged in some sexual conversation. He asked Jim Jay for videos of children. Jim Jay asked for more photos of Audree and the offender said he wanted more videos of children in return. Jim Jay sent child abuse videos to him. Three of those are summarised in paragraph 31 of the agreed facts and are all category 1 examples of child abuse material. These are the facts relevant for the offence of causing child abuse material to be transmitted to himself, which is sequence 10.
During the conversation the offender also transmitted child abuse material to Jim Jay by sending texts describing acts of sexual contact with children to him of the type referred to in paragraph 37 of the facts. These texts form the facts for the additional offence sequence 11 of transmitting child abuse material to be taken into account when sentencing for sequence 10.
In my view separate charging of sequence 11, let alone bringing it to this Court for separate consideration as an additional offence, was unnecessary. It is part and parcel of the factual matrix relevant for sequence 10 causing child abuse material to be sent to him. His transmission of child abuse material, sequence 11, are text only, albeit they are gross and criminal, are only texts, not videos nor images, and I infer that the sending of these texts were part and parcel of the ongoing conversation with this person during which he caused the child abuse material to be transmitted to him, which is the subject matter of sequence 10. Sequence 11 is part of the overall factual matrix in my view, or part of the context in which sequence 10 was committed and could never appropriately increase the penalty relevant for sequence 10.
Sequences 12 and 13 occurred overnight between 24 and 25 January 2021. The offender engaged in a conversation via Kik with a user named Mike Eldridge. There was generalised conversation regarding sexual behaviour with children. The offender asked for a child abuse video which the person sent and then engaged in further text messaging in which there was reference to the violent rape of a child. They engaged pictures and videos of children and then discussed violent sexual acts they claimed they would like to perform on children.
These conversations are set out in paragraphs 38, 40 and 41 of the facts. During the course of this exchange the offender caused three child abuse material files to be sent to himself including two, which are summarised in paragraph 43 of the facts, and which are the subject matter of sequence 12, the offence of causing child abuse material to be transmitted to himself. He also sent one child abuse material file to the other person which is summarised in paragraph 42 of the agreed facts and is sequence 13, a separate charge of transmitting child abuse material. These three summarised videos are all category 1 and depict adults engaging in penetrative sexual intercourse with children aged between 5 and 10.
The texts between the offender and this other person referred to violent sexual acts which each of them claims they want to perform on children. It is depraved and disturbing conversation between them in which the offender engages equally, making suggestions about very violent behaviour he claims that he wants to engage in with children. One of the photos sent by the other person to the offender was that of a three-year-old child.
Both of these are relatively serious examples of the relevant offence given the surrounding circumstances, however the texts are just words, and there is no evidence, nor suggestion, that the offender himself either had, or ever would have, done any of the things he was suggesting, let alone ever had, or would, engage in any sexual behaviour himself with any child. There is no evidence about the other person at all but I infer, more probably than not, that he was a person in much the same category, that is talking about acts that he never intended to commit. That is the nature of these sorts of applications and online chat rooms.
However, whilst each of these offences is a separate offence, they were each committed at more or less the same time and amount, in my view, to more or less the same episode of criminality. It would have been appropriate for these two offences to be treated in much the same way as other groups of offences have been treated, that is with one dealt with as a substantive offence and the other as an additional offence. It is hard to understand why that did not occur in this case, although the impact of the tortuous conferencing system, knowns as the Early Appropriate Guilty Plea Scheme, may well have had something to do with this outcome.
In the circumstances, when considering issues of totality, I will be regarding these two sentences in any event as appropriately concurrent with each other if it becomes necessary to deal with the sentences in this group separately.
Sequences 14 and 15 occurred in the morning on 26 January. The offender engaged in a conversation via the Kik platform with a user named Leo Brooks. The person told the offender that his daughters were aged between 7 and 10, and the offender referred to the girl he called Audree, who he said was his daughter. There were texts between them in which the offender referred to sexual acts that he wanted to commit with this person's daughters and offered to allow this person to engage in sexual activity with Audree. The details are in paragraph 6 of the facts. They are the relevant facts for sequence 15, which is an additional offence of transmitting child abuse material.
During this conversation this person named Leo Brooks sent the offender two child abuse files, which he accessed. One of them is summarised at paragraph 47 of the facts. It is a video of 1 minute and 59 seconds, showing sexual contact between a young girl aged about 6 to 7 and an adult male. It is category 1 child abuse material. The offender's accessing these two child abuse files are the relevant facts for the substantive offence sequence 14.
Again, the child abuse material which he transmitted, and which is the subject matter of the additional offence, were only texts, albeit disgusting, and amounting to child abuse material, but only texts. They are not of such a serious nature that it would appropriately increase the relevant sentence for sequence 14, and the penalty for that offence, given the nature of the video and other circumstances, would always be more than sufficient to give appropriate weight to personal deterrence, retribution and punishment for the additional offence overall.
Once again it seems to me that it could easily have been viewed as part of the factual matrix in which the offender engaged in these texts with the other person, thus transmitting child sexual abuse material, as part of the surrounding circumstances in which the other person then transmitted files to him which he accessed. A separate charge for sequence 15 was unnecessary and again has unnecessarily complicated this sentence.
Sequences 16 and 17 occurred in the morning of 27 January 2021. The offender engaged in a conversation via the Kik platform with a person called Noozleman Ay. There were text messages between them in which they spoke about the sort of child abuse they both liked to see. The other person asked what sort of thing the offender liked, and his answer appears at the end of paragraph 49. That apparently constitutes the additional charge of soliciting child abuse material, which is sequence 16. There is no evidence that the other person even sent anything in response to this solicitation. During the conversation the offender transmitted a ten second video to this person which is summarised in paragraph 51 of the facts. It is category 1 child abuse material and is sequence 17, the offence is a substantive offence.
The additional offence is of very low objective seriousness for an offence of soliciting child abuse material. It involves five sentences by way of text interactions between the offender and the other person in which he solicits child abuse material, but on the evidence, none was apparently sent. It is unlikely ever to have given rise to a term of imprisonment and could never increase a sentence for the more serious substantive offence of transmitting child abuse material and yet again it could easily have been abandoned and dealt with as part of the factual matrix.
Sequences 18 and 19 occurred on the afternoon of 26 January 2021. The offender engaged in a conversation via the Kik platform with the user called Paul Blart. They both said they had daughters who were aged 9 and 10 respectively. The offender sent a photo of the girl he called Audree, who he represented was his daughter, and offered this other person the opportunity to engage in sexual contact with her. He boasted that he had raped her and that he wanted to make her available to his friends. The other person asked the offender if he had pictures or videos, he said he did, and sent him a child abuse image, which is one of those he had received from the person called Jim Jay and is part of the subject matter of sequence 10.
The offender asked for pictures of the other person's daughter's face. The other person sent him child abuse material video described in paragraph 54 of the facts involving penetrative sexual intercourse between an adult male and a young girl aged between 6 and 7, which is therefore category 1. This is sequence 18, causing child abuse material to be transmitted to himself.
In addition to the image already referred to which he sent, the offender also transmitted another of the child abuse images he had received from Jim Jay, the subject of sequence 10, and a video as summarised in paragraph 55 of the facts. The transmission of these three pieces of child abuse material comprises the subject matter of sequence 19, the additional offence of transmitting child abuse material to be taken into account when sentencing for sequence 18.
These two offences are of about equal seriousness and in fact arguably the additional offence of transmitting the child abuse material is the more serious than the offence of causing one child abuse video to be sent to him. They were both however committed as part of the same criminal offending in which they engaged in trading child abuse material. The sentence for sequence 18 will adequately deal with all of the relevant factors which would be necessary if sentencing separately for sequence 19, and in any event even if they were separately sentenced it would always have been appropriate to order that they be served concurrently with each other as they were part of the same criminal episode. So again, it would not be appropriate to increase the sentence for sequence 18 to take into account sequence 19 as an additional offence.
Sequence 20 occurred on the afternoon of 26 January 2021. The offender engaged in a conversation via the Kik platform with a person called Sammy Sam. During the conversation he sent two videos which are summarised at paragraph 57. They are both category 1 and involve sexual intercourse or connection between an adult male and a young girl aged between 6 and 9. In this way he transmitted child abuse material.
Sequences 21 and 22 occurred on the evening of 26 January. The offender engaged in a conversation via the Kik platform with a person called Michael Shrew. He transmitted seven child abuse material files to this person including one video, which is summarised in paragraph 59. It depicts a young girl aged about 12 or 13 engaging in a sexual act but with no other person present. It is category 2 and comprises the facts relevant for sequence 22, an additional offence of transmitting child abuse material to be taken into account when sentencing for sequence 21.
This person in turn sent the offender four child abuse material files which he accessed. Two of them are summarised at paragraph 60 of the facts and are both videos category 1 involving young girls aged between 3 and 6 involving sexual acts with adult males. His accessing this material represents the facts for sequence 21. During this conversation the offender sent texts expressing some liking for violent sexual activity with children and also said the words "girls deserve no mercy".
The offence of transmitting seven child abuse material files to this person is relatively serious, albeit only one of them is summarised. The subject matter of the substantive offence of accessing child abuse is slightly more serious, especially as at least two of the files are category 1 involving children in sexual acts with adults. He accessed those files and clearly, they remained on his phone within the Kik app.
Both it seems to me, however, are part of the same episode of criminality and the sentence for sequence 21 of accessing the four files will sufficiently cover the appropriate sentence for transmitting seven files of which I infer the most serious is a category 2 video as summarised in paragraph 59. The sentence for sequence 21 does not need to be increased to take that additional offence into account.
Sequences 24 and 25 are separate offences involving the same episode of criminality. On 24 January the offender engaged in conversation via the Kik app with a number of different users including a person called JT, someone called Tyler T, and a person called Judge Judy. These three identities and the offender traded child abuse material during those conversations including the offender's causing a number of child abuse material files to be sent to him, including six from JT, eight from Tyler T, and three from Judge Judy. A sample of four is set out by summary in paragraph 67 of the facts.
They are all category 1, involved five children altogether, including two young boys in one, and young girls in the other three, all of them aged between 6 and 10. This is the subject matter of sequence 24 of causing child abuse material to be transmitted to himself.
The offender himself also transmitted child abuse material to JT and Tyler T during these conversations, comprising six to JT and nine to Tyler T. A sample of two of those is summarised at paragraph 68 of the facts. One is category 1 displaying a sexual contact with a young girl aged about 7 or 8 and an adult male, and the other is category 2, depicting two young teenagers apparently clothed but engaging in sexual behaviour. This is sequence 25, the charge of transmitting child abuse material. Again, it is hard to know why these are separate charges and one is simply not dealt with as an additional offence to be taken into account when sentencing for the other, in the same way that has occurred to other combination of offences dealing with the same people at the same time.
Whatever the relevant sentences are for these offences are however it would always be the case that they would be ordered to be served concurrently with each other because they are effectively part and parcel of the same episode of criminality.
Sequences 29 and 30 occurred in the afternoon of 28 January 2021. The offender engaged in a conversation via the Kik app platform with a user with the name of Some Guy. They agreed to trade child abuse material. The offender sent this person seven child abuse material files which included a video summarised in paragraph 71 of the facts. It is category 1 and involves two boys aged between 6 and 8 and an adult female engaged in sexual intercourse with one of the boys. That is the substantive offence of transmitting child abuse material.
The offender caused eight child abuse material files to be sent to him by this person. A sample of those files is summarised at paragraph 72. They are both videos falling into category 2 involving young girls aged between 11 to 13 engaging in sexualised behaviour but with no other person present. This is part of the subject matter of sequence 30 to be taken into account as an additional offence when sentencing for sequence 29. Again, it seems to me that the relevant sentence for sequence 29 will more than adequately deal with the matters which would need to be considered if sentencing for sequence 30 alone, and the relevant sentence for sequence 29 will not be increased to take that additional offence into account.
The remaining offences are sequences 5 and 23. On the evening of 27 January the offender engaged in a conversation on the Kik platform with a user called Kin Bey. This person told him he could add him to a different group but that he needed some content from him, meaning child abuse material. The offender asked if there were any limits and whilst the evidence does not provide any answer, I infer presumably he assumed there were not. He then sent this person child abuse files including the video that he had previously forwarded to the person Jim Lay, part of sequence 4, and the two videos he had previously sent to the person Sammy Sam, the subject of sequence 20. This person asked for more explicit sexual material involving what was described as "real rape". The offender said he did not have that sort of material but confirmed that he had been added to the other group. This is the group known as "Yummies".
This is the subject matter of sequence 23, a charge of transmitting child abuse material, an additional offence to be taken into account when sentencing for sequence 5. Thus, it involves the offender's transmitting three child abuse material videos to this person Kin Bey via the general Kik app, all of which were category 1, in circumstances where I infer he anticipated that he would be added to a separate child abuse material trading group within he Kik app in which I infer from the request by this other person for videos of real rape he would have anticipated receiving more serious child abuse material.
He was ultimately added to this group within Kik called Yummies around 6.30pm on 27 January. Between then and 28 January 2021 the offender transmitted child abuse material within this group on nine separate occasions, each being a video. Seven of them are summarised at paragraph 78 of the facts, and the other two are one of the videos which he also transmitted to the person Some Guy on 28 January, part of sequence 29, and another, the video summarised in paragraph 67 of the facts, part of the subject matter of sequence 65, which the offender had caused to be sent to himself on 27 January.
Two of these videos are category 2 involving children aged between 6 and 12, and the others are all category 1 involving children engaged in sexual acts including penetrative sexual intercourse with adults. Most of the children are young aged around 5 or 6. One of the videos depicts a young female toddler, aged between 1 and 2, being vaginally raped by an adult male. The full transcript of his interactions with others on this chat group is annexure A to the agreed facts.
The offender transmitted nine separate child abuse videos during this chat with a number of different users. There are three of those with specific usernames appearing in annexure A, but within the annexure references to others also involved in this trading of child abuse material with him. The evidence does not make it clear just how many people were involved in the group at the time the accused transmitted the child abuse material over these two days, but at the time of his arrest there were 28 members of this group. It is be recalled that when interviewed he told the police that he was engaged he believed with 16 people when he was engaging with the Yummies group.
The participants in the chat discussed the videos online with the offender making lewd and derogatory comments about the young girls who were depicted in them. These chats involving the nine pieces of child abuse material and involving those participating in the Yummies group comprises the subject matter of sequence 5. This charge of transmitting child abuse material on three or more occasions to two or more people is the most serious of any of the offences for sentence, if for no other reason because of the maximum penalty of 30 years with a mandatory minimum sentence of 7 years. Overall, the child abuse material which he transmitted whilst committing this offence, sequence 5, was of much the same nature as the subject matter of all of the other charges brought here contrary to s 474.22(1)(a)(iii), namely transmitting child abuse material.
There are seven other separate charges of transmitting child abuse material to seven different people between 21 and 28 January 2021 and the subject matter of each of those separate charges is largely of the same level of seriousness as the subject matter for sequence 5. The only exception it seems to me to that general proposition is that to which I have already referred, namely a video of the vaginal rape of a toddler aged between 1 and 2 by an adult male.
The additional charge sequence 23 of transmitting child abuse material is itself serious, but yet again it seems to me that the appropriate sentence for sequence 5, particularly being an offence which carries the minimum mandatory term of 7 years, will almost certainly be sufficiently appropriate to deal with the need for the sentence relevant to sequence 23 to reflect personal deterrence, retribution and punishment, and particularly so in circumstances where sentences for all the offences will be imposed.
[4]
The Mandatory Minimum Term of Imprisonment for Sequence 5
I now turn to the issue of the mandatory minimum term of imprisonment relevant for sequence 5. Pursuant to s 16AAA of the Crimes Act 1914 the Court must impose a minimum sentence of 7 years when sentencing for sequence 5, an offence contrary to s 474.24A of the Criminal Code. Whilst it was the case when this section commenced in March 2022, there was a period of some uncertainty surrounding the application of this provision that has in fact been settled following the decision of the Court of Appeal in R v Delzotto [2022] NSWCCA 117 ("Delzotto"). The Court of Criminal Appeal in that decision confirmed what is referred to as the Bahar approach, a reference to the decision of the West Australian Court of Appeal, Bahar v The Queen (2011) 45 WAR 110; [2011] WASCA 249.
I accept and adopt with respect the dicta of Adamson J in Delzotto at paragraph 54 as the approach I must take in sentencing for sequence 5:
"The Bahar approach involves a sentencing judge having regard to the minimum penalty from the outset as prescribing the bottom of the range of appropriate sentences in the same way as the maximum penalty is used to prescribe the upper limit of the range of appropriate sentences."
It follows from that principle that the sentence must be proportionate to the objective criminality of the offence. See R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at paragraph 15, as per Spigelman CJ:
"That the mandatory minimum sentence applies as a predeterminant baseline for cases which involve the least serious offending".
Pursuant to s 16AAC of the Crimes Act 1914 there is a discretion to reduce the sentence for an offence charged pursuant to s 474.24A below 7 years but I accept only if the Court finds objectively that it is in the least serious category of offending capable of being charged pursuant to that section and only to take into account relevant discounts for a plea of guilty and assistance to authorities.
I will deal with this is in due course but clearly for this and all the other offences for which I must sentence the offender, it is necessary to determine the objective seriousness and the other sentencing principles relevant when sentencing for Commonwealth offences. Section 16A of the Crimes Act 1914 sets those out. The overriding principle governing all of these sentences is that they must be appropriate in all of the circumstances of the offending. Sentences must also take into account the relevant provisions of s 16A(2) of the Crimes Act 1914 which includes the nature and circumstances of the offences, in other words the objective seriousness of the offending.
All of these offences are serious. That much is clear simply because they are all offences involving the distribution one way or another of child abuse material and taking into account the maximum penalties imposed by the legislature for all of the offences, particularly sequence 5.
Bearing in mind the factors referred to in Minehan v R [2010] NSWCCA 140, I accept that in this case there are a number of relevant factors common to all the offences which inform the objective seriousness;
1. They were real children used for images and videos.
2. Some of the content was serious, or very serious, including sexual penetration of a child as young as one and two, and the range of sexual activity included sexual penetration as well as other sexual acts, both involving adults, but also depicting children acting alone.
3. There is no evidence of any physical harm actually suffered by any children in the videos. It would follow of course that sexual penetration of a child as young as two or three, or 5 or 6, is likely to cause harm, however there is no specific evidence in these videos, or images, that any such actual physical harm was portrayed.
4. There are different children depicted in each particular video or image and it would appear 23 separate instances. There would appear to be approximately 20 children, or perhaps a few more, involved in this child abuse material.
5. The number of images and videos overall is significant but not of the very large number unfortunately often seen in cases of this type.
6. Except for count 5, the transmission of the material for each of the relevant offences was to one person only.
7. The offender did not receive, or expect to receive, any material benefit from transmitting the material. He engaged in this offending for sexual gratification.
8. He was not involved in the creation of any of the child abuse material, so not proximate in any way to those who created it, with the exception that he did download and transmit the photo of the child he called Audree but it was a picture of a child apparently aged 9 or 10 who was fully clothed.
9. As previously referred to, I do not accept that there was any significant planning, and that which there was, namely the use of a false name and identity to access the Kik platform, was not sophisticated.
10. In relation to all but sequence 5 the offender was acting alone in the chats he had with these other users, and to the extent that he was part of a larger group for sequence 5 it seems to me that this is an integral part of the nature of such an offence requiring at least two other people to be involved, and this would not operate in a way that increases the objective criminality of that offence. That having been said, however, he was knowingly involved in a chat group which traded child abuse material with a number of people, which he did, and for some of the offences he disseminated material which he had been sent by others.
11. Another factor relevant in determining the objective criminality of these offences, is that although there are a number of offences, and a significant number of videos, the offending occurred over a short period of time between 20 and 28 January, only using this Kik app. Whilst there is evidence that this was not the only occasion on which he engaged in such criminal conduct, because of the admission he made to police that he had been accessing child abuse material generally via the Internet since about June or July the previous year, the only evidence about that was from him, namely that it was infrequent, so that the offending, the subject matter of the charges before me, which of course do not involve just one isolated act, nonetheless occurred over a relatively short period of time, brought to an end by the intervention of the police.
[5]
Objective Criminality of the Offences
Sequence 1 is the possession charge and I have ultimately concluded that it falls a little below the mid-range of objective seriousness. There were 536 files in total, of which 495 were category 1, and 41 were category 2. Many of the videos involved penetrative sexual intercourse by adults of children aged between 3 and 8. They had been obtained by the offender through use of the online Kik app. Overall, in my view it falls just below the mid-range in terms of objective seriousness.
Sequences 4, 9, 13, 17, 20, 25 and 29. All of the charges are separate charges of transmitting child sexual abuse material, the details of which have already been referred to, as have the additional offences where relevant. There are some differences between them, most of the child abuse material transmitted by him, the subject matter of these charges, were category 1 videos, some of them are objectively more serious than others, but given the fact that this will be an overall sentence for a large number of matters, 16 substantive in total, there is no need, it seems to me, to attempt to dissect each of them to determine the relative objective seriousness of each as against the other.
Each involves the transmission to an individual online of child abuse material files, in most cases more than one, but not a significant number. Each is part of an ongoing course of conduct by him over this period of nine days. Each of them, in my view, in the circumstances falls somewhat below mid-range in terms of objective seriousness. Taking into account all of the factors to which I have already referred, sequences 6, 10, 12, 18 and 24 are all the offences of causing child abuse material to be transmitted to himself. Even though this is one of the sub-sections to be found in s 474.22(1), it is, in my view, of slightly less criminality in general terms than the other offences found within that subsection. It is a somewhat less serious offence objectively to cause child abuse material to be transmitted to himself than an offence of actually himself transmitting child abuse material, it seems to me. So far as I can tell the penalties imposed by courts reflect that as least so far as the JIRS statistics are concerned.
The files which he caused to be transmitted to himself were mainly videos. Some involved penetrative sexual intercourse and some did not, and the details are as referred to earlier. Again, it seems to me that each of these offences is below the mid-range in terms of objective seriousness.
Sequences 14 and 21 are the offences of accessing child abuse material. The material was sent to him by users, but he was not charged with having caused this material to be transmitted to himself or soliciting it. Whilst each of the files described relevant for these two offences are category 1 examples of child abuse material, and each involved sexual contact between children and adults, they did not involve penetrative sexual contact, and there are limited files involved. In my view each of these two offences is in the bottom half of the range of offences capable of being charged under this section.
Sequence 5. This offence, in my view, is above the bottom of the range for offences capable of being charged under this section but not at the top. The offences anticipate an involvement in the transmission of child abuse material on at least three occasions to at least two people. Presumably an offence involving those minima would fall at the bottom of the range, perhaps depending on the level of depravity involved in the material transmitted. Here the offender transmitted this material to three known people and others over a period of two days and did so on nine occasions. The child abuse material transmitted covers a range of sexual acts including two instances of category 2 child sexual abuse material, however the remaining seven are examples of category 1 child sexual abuse material, and at least three of the files depict serious child sexual abuse including anal rape by an adult male of a child aged about 5 or 6 and, as referred to earlier, vaginal rape of a female toddler aged between 1 and 2.
This is not the least serious instance of an offence capable of being charged under this section but is nowhere near the top of the range. It is, in my view, in the bottom half of the range of offences capable of being charged under this section but, given the provisions of s 16AAA of the Crimes Act 1914, and the way that has been construed by the Court of Criminal Appeal in Delzotto, I must use 7 years as the minimum starting point for the appropriate sentence for this offence.
Other general factors that I do take into account when sentencing for these offences include general deterrence, which is of paramount importance when sentencing for offences of this type. Child pornography offences are not victimless and here, where there were videos involving real children, there were real children victimised, and re-victimised every time these images were transmitted. Sentences for offences of this type must carry a very significant message to the community that these are not victimless crimes and will give rise to terms of imprisonment almost invariably and of significant length where appropriate.
It seems to me that this is of particular significance to those who live in Australia who want to trade in, or view, these images. In our region, the Australia/Pacific region, there are young children being victimised every day by the creation and transmission of images such as this and it is a sad reality of our region that all a poor family needs is a girl child and a video camera to create, and sometimes even transmit this material live. It is well documented that the creation of this sort of child abuse material is usually capable of providing far greater economic advantage to poor families in our region than any form of legitimate work. That is a sad reflection on our community and those in particular who would access this material in developed and better off countries like Australia. Every time anyone ever accesses, or transmits, or deals with this sort of material, at the end of it there is a young child who has been victimised and who continues to be victimised.
I cannot however let this sentence pass without commenting that in my view at least, there should be an obligation on service providers, and companies which make email accounts available, to ensure that their platforms are not being used for these purposes. It is well known to the Court, as it clear from some of the comparable cases tendered by the Crown, that the application, Kik, is used to trade in child abuse material. In the modern age it should not be difficult for mainstream email providers such as Google Gmail to monitor the creation of new email addresses being used in apps such as this which are notorious for the dissemination of child abuse material. The community as a whole, including those who provide online platforms which regrettably people use for these purposes, have an obligation at least to attempt to ensure that such use is closed down.
The need for specific deterrence in this case, in my view, is of limited weight for the reasons I will refer to soon involving the subjective circumstances of the offender and in particular the findings from the psychological report tendered.
[6]
Subjective Case of the Offender
I now turn to the other provisions of s 16A of the Crimes Act 1914 and specifically those traditionally referred to as the subjective case of the offender. He is now aged 43 and was 41 at the time of the offending. He gave evidence on sentence, and was cross-examined, during which he adopted the history and information he had provided to Dr Rodriguez, a psychologist, for the purpose of a report to the Court. From that report and his evidence, I accept that at the time of his arrest on 29 January he was working as a debt collector for a credit company in the Sydney CBD.
He was single, has never been married, and at the time was living with his parents in Sydney. He was born and raised in Sydney as the second eldest of four children, including two brothers and a sister. His parents are still alive and are supportive of him, and in due course, as I understand it, will be in a position to provide accommodation for him when he is released to parole.
He seems to have had a relatively normal childhood and upbringing. He was an average student and completed year 12 but did not go on to tertiary education. He worked in the hospitality industry for 12 years as a barman and manager of a club in Sydney, then moved to Canberra to work as a manager of a club there. In this job he developed a gambling addiction, became homesick and came back to Sydney. He started another job at a Leagues Club in Sydney for three years on his return but left that area of work because of long hours and exhaustion. At the time of his arrest, he was working as the manager of a team of 8 to 10 people involving in debt collecting with a credit company in Sydney.
He has never had an intimate partner and had no long term relationships. He has been significantly overweight during his life and had poor self-image.
His friends were his work colleagues, including a co-worker, who was in fact the mother of the child whose Facebook photo he used, calling her Audree, and passing her off as his daughter so that he could engage in more online child abuse activity. He has suffered low esteem since teenage years but to date has not required, nor used, mental health treatment, neither medication nor counselling.
He started to drink alcohol heavily at the age of 18. He started to abuse alcohol at the age of about 30 leading, from time to time, to blackouts, morning drinking, and similar. When he went into custody, he suffered from symptoms of alcohol withdrawal. He reported that his alcohol abuse was connected to his low self-esteem and stress and it helped him relate to others, which I accept to be the case. He was not engaged in any relevant use of illegal or other drugs at the time of his arrest. He was a loner, had never had a sexual partner, and viewed sexual pornography in the past to achieve sexual satisfaction by masturbation.
Despite the nature of these offences to which he has pleaded guilty he denied any paedophilic interest, or fantasy urges or behaviour towards minors. He told the psychologist that this six-day online behaviour, the subject matter of all of these offences, arose because it was different.
He comes to court as a person with no prior convictions, nor any history of sexual, or non-sexual offences. Whilst the Crown case against him is very strong, and the plea of guilty acknowledges that, nonetheless pursuant to s 16A(2) he is entitled to have his pleas of guilty and previous good character taken into account in his favour when determining the appropriate penalties.
Further, his early plea in the Local Court provides a significant utilitarian value, including by avoiding the need for a jury, to view this material, and for that reason he is entitled to a discount to recognise the utilitarian value of the plea. In addition, the plea of guilty indicates his willingness to assist the interests of justice. I will be discounting the appropriate sentences by 25% to give effect to the pleas of guilty.
The reasons he gave to the psychologist for having engaged in these offences appear to indicate a degree of insight. He admitted that he had become sexually aroused and frequently masturbated to online pornography but that he became satiated by that. It was not enough, and he developed an interest in child abuse material, or child pornography, and used it in the same way. He told the psychologist that he now regarded as what he had done as a "silly thrill" and whilst the Crown sought to categorise this response as minimising his criminal offending, I do not regard it as such. It might have been a poor choice of words, but he has not, in any other real sense, sought to categorise his behaviour as anything other than depraved.
His real remorse and contrition extends to his telling the psychologist that he would accept whatever was the outcome of the Court proceedings. He told the psychologist that he is a person who regards himself as having wasted his life. He also recognised that he had an alcohol dependency at the time and thought that his abuse of alcohol at the time probably lowered his inhibitions and made him more likely to commit the offences. I accept that that is likely to be the case.
He is, and has been, willing to accept treatment and in custody has already completed the EQUIP and Positive Lifestyle Programs and is willing to attend Alcoholics Anonymous in the future.
Again, there was an attempt to criticise him by the Crown for not having done so to date in custody and for apparently identifying AA as the first treatment program to which he might turn. I do not regard that criticism as being made good. The Court is aware that it is always difficult to access courses whilst a remand prisoner and further it is unlikely that any individual would have knowledge of what in due course will be made available to him either whilst he remains a sentenced prisoner or when he is released on parole.
What is important, and which I take into account, is that which I have said, namely that he is willing to undertake whatever is made available to him in due course, which will assist his rehabilitation. The type of treatment recommended is referred to by Dr Rodriguez. It is of course unknown what is likely to be made available to him when he is ultimately released to parole.
The psychologist diagnosed him as having an alcohol problem which would meet the criterion for alcohol use disorder in the DSM V and raised the possibility that he might also have a personality disorder, but was not able to diagnose it on the basis of one interview alone. Dr Rodriguez was not of the opinion that he was likely to be diagnosed with antisocial personality disorder because up until then he had led a largely pro-social life, including involvement in community activities. He was, however, chronically socially and sexually inhibited due to low self-esteem.
The offender has expressed remorse to Dr Rodriguez, and to the Court, in his evidence, reporting that he now found his online behaviour abhorrent and inappropriate and was distressed by his deviant sexual behaviour. He indicated insight to Dr Rodriguez about the risks inherent in child exploitation and denied any sexual interest, or fantasy urges or behaviour towards children. Dr Rodriguez could not rule out a paedophilic interest or disorder at the time of his report in December 2021 because of the very nature of the offences, however.
Dr Rodriguez considered the offender's risk for further sexual offending using the RSVP tool, a sex offender's risk assessment tool. The risk factors both present and absent are set out on p 9 of Dr Rodriguez' report, which I do not propose to repeat. His professional opinion, following that assessment, is that the offender is a low risk of sexual contact offending against child victims but a low to moderate risk for committing further child exploitation material offences. He is also of the opinion that his risk can be modified with treatment and supervision to an extent, because of the insight he has developed following his arrest. He is of the opinion that he is unlikely to re-offend. This is an opinion which I accept in the circumstances, and on the basis offered by Dr Rodriguez, together with the evidence given by the offender and my observations of him in the witness box.
Dr Rodriguez helpfully provided in his report to the Court an analysis of the likelihood that offenders charged with child exploitation material offences would go on to commit contact sexual offences, and in this regard I refer to p 10 of Dr Rodriguez' report without the need to refer to it any further. I accept that there are very few examples of those involved in child exploitation material offences who go on to commit contact sexual offences.
It is Dr Rodriguez' opinion that the offender's prospects of rehabilitation are encouraging because he did not, in the past, display antisocial or criminogenic behaviour. Further he has stable accommodation available to him with his parents and is likely to be able to get a job because of his past employment history. Further, he took into account his view that the offender was remorseful and open to undertake psycho-therapeutic interventions. As I have said, he set out a treatment program which can be seen on pages 10 - 11 of his report.
I accept these opinions by Dr Rodriguez and accept that the offender is a low risk of any contact offending against children, and a relatively low risk of offending in a similar or any way in the future. This risk will be reduced if he is able to undertake some treatment whilst he remains in custody and on his release to parole.
The offender himself gave evidence, which I accept, that he has been working in prison in the light engineering section assembling furniture. He has worked his way up to machine operator and now has a blue card for warehousing. In addition, he has TAFE certificates in financial services and hospitality obtained before he committed these offences.
He had been involved in community activities in a positive and pro social way before he committed these offences, including soccer and cricket coaching, for a period of six years before his arrest. That soccer coaching involved his nephews who he helped after his brother's relationship failed.
He did have a significant gambling problem which at worst meant that he sometimes lost $14,000 in a day. He gambled on horses, greyhounds, and the like. He has lost between $90,000 and $100,000 over his life.
He gave evidence that he was gambling right up to the time of his arrest and was effectively an alcoholic, drinking most days. I accept that at the time of the offending he was drinking heavily. He was also, I accept, feeling depressed and very lonely, including self-loathing because of what had been his significant weight gain up to that point. He has obviously stopped drinking alcohol. He has lost a considerable amount of weight whilst in custody, and his overall mood would appear to have improved.
In his oral evidence he said to the Court that he was disgusted with himself. He understood the seriousness of what had happened and the consequences of it. He apologised for having committed the offences and he apologised also for having let his whole family down. He told the Court that he would never do anything like this again, and, as I have said, apologised and described what he did as disgusting. He told the Court that he wanted ultimately to get out of gaol, to make up to his family for what he did, and that he would undertake any programs that he was asked to do. I accept that his evidence in relation to these matters was genuinely given and this state of mind, and improvement, will ultimately impact on his prospects of rehabilitation, which I accept overall are good.
[7]
The Sentences
I then turn to the appropriate sentences. Clearly enough, full time custody is the only available sentence for any of the substantive matters.
For sequence 1, the possession sequence, taking into account all of the relevant matters, I am using the starting point of 4 years, reduced to 3 years for the 25% discount.
For sequences 4, 9, 13, 17, 20, 25 and 29, each of them an offence of transmitting child sexual abuse material, I have used the starting point of 3 years for each, so a sentence of 2 years and 3 months, and I refer already to the determinations I have made in relation to the additional offences relevant for some of those.
For sequences 6, 10, 12, 18 and 24, all being the same offence of causing child abuse material to be transmitted to himself, the starting point I have used is one of 2 years for each of those offences, to which I have applied a 25% discount, giving rise to a sentence of 18 months for each.
For sequences 14 and 2, the starting point used is around 18 months, and I indicate 12 months for each of these offences.
For sequence 5, I have used a starting point of 10 years, less 25% for the plea of guilty, giving rise to a sentence of 7 years and 6 months.
Clearly if each of these indicative sentences were to be entirely accumulated one on the other, the overall sentence would be grossly excessive. The overall sentence must reflect the total criminality and there should be a very high degree of effective concurrence here because of the factual overlap involving most of the offences. In particular, sequence 1, the possession offence, involves his possession of images and videos which he obtained by his involvement using the Kik app, causing material to be transmitted to himself and accessing those images by his engagement with others in this app. There is also a factual overlap between the transmission offences and the other offences for which he is to be sentenced.
I have concluded that the overall criminality should be reflected in a sentence of 8 years and 6 months imprisonment, which I will be imposing pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as an aggregate sentence. I will set one non-parole period of 5 years and 6 months, each of which will commence on the day the offender was arrested, namely 29 January 2021.
[8]
Formal Sentence Orders
1. For all offences, the offender is convicted.
2. The offender is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 8 years and 6 months, commencing 29 January 2021, expiring 26 July 2029. I specify a single non-parole period of 5 years and 6 months, commencing 29 January 2021, expiring 28 July 2026.
3. The indicative sentences are as follows:
Sequence 1: 3 years.
Sequence 4: 2 years, 3 months (taking into account sequence 8).
Sequence 9: 2 years, 3 months.
Sequence 13: 2 years, 3 months.
Sequence 17: 2 years, 3 months (taking into account sequence 16).
Sequence 20: 2 years, 3 months.
Sequence 25: 2 years, 3 months.
Sequence 29: 2 years, 3 months (taking into account sequence 30).
Sequence 6: 18 months (taking into account sequence 7).
Sequence 10: 18 months (taking into account sequence 11).
Sequence 12: 18 months.
Sequence 18: 18 months (taking into account sequence 19).
Sequence 24: 18 months.
Sequence 14: 12 months (taking into account sequence 15).
Sequence 21: 12 months (taking into account sequence 22).
Sequence 5: 7 years, 6 months (taking into account sequence 23).
4. I make an order in terms of the forfeiture order, which is signed by me and dated today, pursuant to s 23Z(D) of the Crimes Act 1914.
[9]
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Decision last updated: 14 December 2022