R v Jones

District Court of NSW|2021-08-16

Elizabeth Tsitsos (Armstrong Legal) File Number(s): 2020/248397

Judgment

The offender Hayden Jones, born in 2000 is before the court for sentence for the offence of using carriage service to access child abuse material contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth) for which the maximum penalty is 15 years imprisonment.
The elements of the offence are as follows: (1) A person commits an offence if: (a) the person: (i) accesses material; or (ii) causes material to be transmitted to himself or herself; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material; or (iv) solicits material; and (aa) the person does so using a carriage service; and (b) the material is child abuse material. Penalty: Imprisonment for 15 years. (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1): (a) intention is the fault element for the conduct referred to in paragraph (1)(a); (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
The Court Attendance Notice in this matter particularises access as the relevant element of the offence.

Agreed Facts

The agreed facts, signed by the offender, are as follows:
Hayden Jones was 18 and 19 years old at the time of offending. He will soon be aged 21. He resided with his parents in Woodbine, NSW and has no criminal record.
In July 2020, police received information that the offender had been accessing child abuse material (CAM) via a cloud storage website. As a result of this information, investigators applied for and were granted a Commonwealth search warrant.
On Wednesday 26 August 2020, NSW police attended premises in Woodbine to execute the search warrant.
Police were granted entry to the premises and provided the offender's mother with a copy of the warrant and rights of the occupier.
Prior to the commencement of the search, the offender indicated to police that there might be items of interest to investigators on his Samsung mobile phone. The offender provided police with the pin access code to the device.
During the execution of the search warrant, police located a black Samsung mobile phone as described by the offender in his bedroom. Using the pin code provided by the offender, police conducted a preliminary review of the contents of the phone.
Police identified that the application Mega.NZ was installed on the phone. The application provides access to the cloud sharing website Mega.NZ. Mega.NZ is a New Zealand based publicly accessible website which provides end to end encrypted cloud storage. Any person with a free account can upload material to the platform which can then be shared and accessed via a unique URL which links users to an online folder in which the material is stored. Users can save URLs to their own accounts.
Police examined the application and located CAM stored in the offender's account. As a result of the location of this material, police arrested and cautioned the offender.
The offender was conveyed to Campbelltown Police Station. After receiving legal advice, the offender declined to participate in an electronically recorded interview. The offender signed a consent form granting police permission to access his Mega.NZ and other online accounts. The consent form provided police with the passwords of the listed accounts.
On 30 August 2020, police accessed the offender's Mega.NZ account for the purposes of conducting a review of the material contained within it.
The offender's account had a total of 1.27 terabytes of material constituting 177,729 files stored across 3900 separate folders. Due to the high volume of material police were unable to download and examine all files present on the account. The 177,729 files were not exclusively CAM and did include mainstream pornography.
As a result of the review, police identified approximately 10,000 files which fell into Interpol Baseline Categories 1 and 2. The Interpol Baseline Categories are defined as follows: 1. Category 1: An image depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child. 2. Category 2: Material that includes a person who is, appears, or is implied to be a child and is depicted or described in a way that reasonable persons would regard in all the circumstances as offensive and who: 1. Is a victim of torture, cruelty or physical abuse; 2. Is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others), or 3. Is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity, or 4. Is exposing the genital or anal area or the breasts of a female child.
The following are examples of the folders of material examined by investigators: 1. "Brutal Shocking rape" 1. Added on 13 April 2020; 2. Contained 1.24 GB of video and photographs consisting of 131 files which included Category 1 and 2 material; and 3. One Category 1 video in this folder depicted the sexual assault of a 9-month-old baby boy by an adult male inserting his penis into the child's anus. 1. "500+teenie videos" 1. Added on 29 April 2020; 2. Contained 4.19 GB of child abuse material consisting of 975 files of Category 1 and Category 2 child abuse material; and 3. One Category 1 video in this folder depicted the sexual assault of a 2-year-old female child being sexually assaulted by an adult male inserting his penis into the child's vagina.

Exhibits

Before me are 7 exhibits.
Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. A Notice of Committal; 2. A Court Attendance Notice; 3. An Agreed Statement of Facts (recited above); and 4. The offender's criminal history.
Exhibit 2 is a Sentencing Assessment Report (SAR) from Mr Jeremy Duncan, Community Corrections Officer dated 9 June 2021 which attaches a structured case note from CSNSW Psychology under the hand of Ms Melanie Rowe.
Exhibit 3 is a folder containing two sample booklets (one un-redacted and one redacted) that contains an extract of the files and folders found on the offender's device.
Exhibit 4 is a bundle of documents prepared by the offender's legal representative that contains: 1. A report by Dr Carollyne Youssef, psychologist, dated 1 June 2021 and her CV; 2. A letter of remorse from the offender to the court dated 7 June 2021; 3. A number of character references from: 1. Penny Jones (mother); 2. Shayne Jones (father); 3. Reagan Jones (brother); 4. Jared Barry Lazarus (best friend); 5. Brenda Howard (maternal grandmother); 6. Nicole Castray (godmother); 7. Amanda Leanne Bendeich (maternal aunt); and 8. Charmaine Apps (maternal aunt).
Exhibit 5 consists of case notes recorded by Mr Jeremy Duncan during his interactions with the offender and his family, and to which he referred when preparing the SAR.
Exhibit 6 is a document provided by the legal representative of the offender that sets out his bail conditions since his arrest on 26 August 2020.
Exhibit 7 is a copy of the offender's health summary provided by his general practitioner dated 8 June 2021.
I note that Mr Duncan was cross-examined by Mr Tuckey who appeared for Mr Jones, and the offender and his mother were called to give evidence. Mr Jones was cross-examined by Ms Debenham who appeared on behalf of the Crown.

Evidence

I will now summarise some of the documents which have been placed before me.
Exhibit 1 notes that the offender has no prior criminal history.
Exhibit 2 is the SAR, which states that the offender has a supportive and functional family and that he has isolated himself since the offending for fear of breaching his bail conditions and to mitigate risk. Mr Duncan commented that the offender's parents "minimized" the offence, but provided a supportive home environment through financial security, intervention measures and risk management strategies around removing the offender's access to cellular devices. He referred to their "cognitive dissonance", but found them to be pro-social.
The offender had been in consistent part-time employment since the age of fourteen and has no criminal history.
Mr Duncan commented in the SAR that in his opinion, the offender used minimization through the assessment process because he asserted that his intention was to access conventional pornography. The offender reported that he had an addiction to pornography but that he did not receive sexual gratification from child pornography.
The offender indicated that he was "bored of the normal sites" and was looking for "a new experience". Mr Duncan was of the view that the offender could not adequately explain how the alternative viewing platforms differed from legal platforms, the offender saying "it was hard to explain". He started downloading caches of pornographic material form links online as he was "curious" and he "figured it wasn't too bad". He accepted that he came across pornographic content related to children "accidentally" and said that he had deleted the videos initially but later became "lazy". Mr Duncan was of the view that this may demonstrate a minimisation of offending severity and culpability. He thought that the offender "minimised by saying that he had no idea how much [offending material] was on there".
The offender indicated that he had not considered the exploitative conditions imposed on the children featured in the material he accessed or that his offending fuelled the industry. He stated that he should have reported the content to the police when he realised they featured children. The offender recognised there was an issue and that he needed help. He has engaged with a forensic psychologist and stated that he intended to engage in supervision to address his risk factors.
The offender indicated he was willing to undertake community service work and his parents confirmed that they would be able to provide transport to the offender to ensure compliance with a community service work component. He was noted to be respectful, polite and appropriate during the assessment process.
The offender was assessed as a medium-low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). Community Corrections has overridden the offender's level of reoffending because the CSNSW Psychology structured case note recommended that the offender be referred to CSNSW Psychology for further assessment of the offender's dynamic risk factors.
The offender will be supervised at the medium LSI-R level pending further assessment by CSNSW Psychology.
The offender was deemed suitable to undertake community service work and Community Corrections can provide up to 21 hours of work per month.
The sample booklets in Exhibit 3 show the architecture of the folders, sub-folders and files as it was displayed on the police browser, rather than the offender's device, which was a mobile phone. Exhibit 3 does not specifically indicate which file or folder was opened by the offender but only how they were organised and displayed once the offender had downloaded the links from Mega.NZ on his device. I observe that the A4 format is probably three or four times larger than the average mobile phone and is likely not the format that was displayed at the time that Mr Jones accessed the material, a topic about which he gave evidence (see below).
Exhibit 4 contains a report written by Dr Carollyne Yousseff, forensic psychologist dated 1 June 2021. She is the offender's treating psychologist.
The offender reported to Ms Yousseff that he had a reasonably close relationship with his parents and slightly less so with his siblings. He is the second of three boys. He has never moved out of the family home and at the time of the offence he was working on a casual basis at a bowling alley.
The offender said that he suffered from chronic bullying when he was at school, primarily because he was a dancer. He explained that he felt he had to 'prove' his masculinity and heterosexuality and that he became quite hypersexual. Dr Yousseff observed that this seemed to have been an over-compensatory response to the bullying. The offender reported that he seldom felt connected to or accepted by his peers, and this led to a sense of depression, anxiety, social awkwardness and consequently, social isolation.
The offender told Ms Yousseff that he had several short-term relationships with females whilst at school and after leaving high school. In 2018, he commenced a 2 year relationship which he described as "good," although at some point his girlfriend did not want to engage in any sexual intimacy anymore which led the offender feeling unwanted, unattractive, rejected and lonely in the relationship. He was unable to discuss this with his girlfriend and instead turned to pornography and masturbation as a form of avoidance coping mechanism.
The offender and his family relocated to Coffs Harbour after his mother was promoted to a new role in early 2021. He said that the relocation has been unsettling for him as he had no social network there and his bail conditions restrict him from going out and meeting people. The offender said that he felt apprehensive, anxious, depressed and withdrawn from his family. He also reported feeling guilt due to the burden this matter is having on his family, and his parents in particular, both financially and emotionally. He has fleeting thoughts of "ending it".
The bail restrictions imposed on the offender have left him feeling further isolated due to limited freedom. He has not, however, requested any variations to his bail conditions as he believed that he should be abiding by these conditions given what has occurred.
With respect to the offence, the offender did not deny that he accessed CAM but he said that this occurred in the context of a "pornographic addiction", as he was using sex as a coping mechanism for low mood and relationship difficulties. He explained that the CAM was downloaded as part of his "bulk-downloading" pornography and that the CAM was obtained during those bulk downloads which he subsequently viewed.
The offender emphasised to Dr Yousseff that he has no desire to seek out children or to engage in any sexual behaviour with children. He denied any sexual interest in children and indicated that his sexual attraction is exclusively towards adult women. Mr Jones expressed disgust and remorse in his behaviour and deeply regrets his actions. He denied any sexual arousal to the material that he downloaded regarding children and denied intentionally searching for any material involving children.
Dr Yousseff stated that she started seeing the offender in September 2020 shortly after his arrest, and said that they have had 15 sessions between then and early June 2021, first face-to-face and then via audio visual link since the offender relocated to Coffs Harbour. The offender indicated that he wanted to continue attending therapy whether he receives a community based order or a custodial sentence.
Dr Yousseff said that during therapy the offender has been forthcoming with information and demonstrated meaningful engagement, often completing in-between session tasks and that he shows an ability to reflect on session topics by raising them for discussion in subsequent sessions. The goal of the sessions has been to develop a self-management plan which will enable Mr Jones to identify warning signs and risk factors and have alternatives, strategies and skills to manage those situations. She observes that Mr Jones reported that he has not accessed any form of pornography or social media (including email) since his arrest. He admitted that this was challenging for him, but that he is aware that his pornography use was problematic and unhelpful.
Dr Yousseff says that she considers the offender's engagement in therapy to be impressive, particularly given his youth. She is willing to continue providing him with therapeutic intervention. She says that his engagement has been very meaningful, and that he shows accountability for his behaviours and is motivated to develop insight, greater self-awareness and to learn strategies and skills to help him manage himself more effectively.
Dr Yousseff commented that at the time of the offending, the offender was depressed and appeared to meet the criteria for a Persistent Depressive Disorder according to the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5) and that he appeared to have engaged in self-soothing behaviours in a bid to mollify some of these feelings, some of which resulted in the current offence. The offender met the criteria for an Adjustment Disorder with mixed anxiety and depressed mood according to the DSM-5.
Dr Yousseff stated that the offender did not meet the diagnostic criteria for a Paraphilic Disorder as per the DSM-5 criteria and does not report sexual interests indicative of deviant sexual interests or preferences.
Dr Yousseff stated that the offender expressed remorse and regret for his offending behaviour. He recognised that it occurred in the context of a tendency to use sex as a coping mechanism by utilising pornography. She said that the offender reported being disappointed in his behaviour and is cognisant that the offending is something which he will carry with him for the remainder of his life.
Dr Yousseff recommended that the offender continues to engage in individual therapy to address his treatment needs. It is likely that Mr Jones will require longer-term therapy (i.e., greater than 12 months). He is currently taking Endep, which he has been taking for two to three years to prevent migraines as prescribed by his neurologist. He more recently commenced taking Seroquel to assist him with sleep, which he has taken for the past 6 -7 months.
Contained in exhibit 4 is a letter of remorse from the offender dated 7 June 2021. He says that he is sorry for accessing the files that led to his arrest. He also says that he is sorry for being another link in the chain of child exploitation and is sorry for the innocent victims who endure such abuse. He is sorry for the stress and burdens placed on his family and friends. He apologises to the court, police, community and most importantly to all the children and families of those children who were the victims of serious child abuse. He says that he fully appreciates that it is because people access this type of material that the perpetration of child abuse continues.
Mr Jones says that he is disgusted by his appalling actions which led to the offending. At the time of his arrest he was not in a good head space. He has now gained insight and understanding of the seriousness of his mistakes. He now understands the greater effects of his involvement in the accessing of CAM and how it has contributed to the overall manufacture, exploitation of children, and supply and demand of such material. Even though he did not go out of his way seeking those types of videos and images, he acknowledges that by downloading them he is still guilty of a very serious offence. As part of a mass download of pornography, he passed over CAM, flicking over them and not watching them in their entirety. He accepts responsibility for having come about the photos and videos in the first place. He understands that the first time he came across any such material he should have reported it to the police and stopped downloading pornography. He did not do this and he will never forgive himself.
Mr Jones says that he accepts that he is at fault for his actions. He has pleaded guilty to the charge laid against him and that he is fully aware that the offence carries a maximum penalty of 15 years.
Over the past year, Mr Jones says he has met regularly with his psychologist and with her help, he has been able to understand the reasons for his actions and he wishes to acknowledge the circumstances leading to this point. He has had a long history of bullying and torment for being a male dancer. This led to an overt over-sexualisation in an attempt to prove himself to be masculine, which led to an unhealthy relationship with pornography. This is when he came to access the CAM. He says that he was disgusted by the images as most people would be, and he deleted and reported about two or three profiles on Tumblr. Soon after, however, he became complacent focusing more on his self pleasure and he began to overlook and ignore the CAM when it was included in the pornographic material he accessed. He says that he was in a way, desensitised to seeing such material. Reflecting on his actions, he is ashamed to have let himself get to such a state. He says that in a callous and desensitised manner he simply passed over looking for files of adult pornography that gave him sexual pleasure. He did not and does not have a sexual interest in children. He should have reported the disgusting material to the police.
Through his sessions with his psychologist, Mr Jones says that he has found that this unhealthy relationship with pornography stems from a coping mechanism for confirming his sexuality. He is working towards returning to an involvement in the community through stable work, healthy friendships and relationships as well as looking into the possibility of returning to undergraduate education and to once again have an active role in society where he can give back for all the help that he has been given. He is also dealing with the severe anxiety that has developed since his arrest that has affected his health overall. All of this he says, will greatly assist in avoiding a repeat of the offence.
Mr Jones says that he knows that he will spend many years on a child protection register and be limited in his movements and life decisions. He says that it is his burden to bear for his illegal conduct and for his heartless conduct by not telling the police. Although he is not sexually interested in children, he has contributed to their exploitation by his conduct and omission. He apologises for the harm his actions have caused to those unnamed child victims, exploited for deviant purposes. I observe that Mr Jones was cross-examined by the Crown, to which see below.
Also in exhibit 4 are character references from the offender's extended family and a friend. His mother Penelope says that subsequent to her son's arrest she has seen honest and true remorse, embarrassment and depressive behaviours in all aspects of his life. He rarely engages with others, seeks out supervision in all aspects of his life to ensure he is following the rules, does not initiate conversation outside of the family unit and displays significant anxiety when faced with any technology. She is devastated at the charges and feels that she has failed her son in her parenting, supervision and availability. She says that her son was always the heart of the family, that he provided support to others, was extremely empathetic and truly invested in the success of his tightknit family and his friends. He was an excellent student but always struggled to fit in with the wider community due to some quirky behaviour. He was an easy target for bullying. Mrs Jones says that her son constantly shows true remorse for his behaviour and is aware of the abuse that was suffered by the children in the images. These children are abused, raped, hurt, drugged and mistreated in every conceivable way. He understands that his involvement directly or indirectly impacts the production of more material and the cycle of abuse for these children continues. She notes that he has been absolutely compliant with current bail conditions and she believes that he will be fully compliant with any forthcoming recommendations, programs or parole supervision. She says that she holds Hayden responsible for his actions and she will never understand what he did and her heart goes out to all the children who have been used, abused and exploited to make the material he accessed.
The offender's father observes that his son suffered a fair bit socially in his school but had a small group of friends he could rely upon. Since August 2020 he says that he has lost his son to a person that is completely different. He is always anxious and regularly talks about the seriousness of his charge and is terrified of his own behaviour. He has put every cent of his savings towards this case and has forgone any form of enjoyment since. He has been concerned for his son's safety many times as he processes the outcome of his behaviour. Mr Jones says that he is still in a state of disbelief that his son could have accessed the material and he grieves for the innocent son he once had. He says that he had hoped so strongly for his sons that they did not have the same intergenerational trauma that he suffered as a child. His son has brought shame on his already disadvantaged Aboriginal community. He says that this has opened old wounds from his own childhood as a displaced child, feeling like he was never good enough. He sees the same helplessness in his son's eyes daily and that breaks him. He notes that his son always felt inferior to his brothers and this has compounded these feelings. His recovery will be long and difficult Mr Jones says that he is beyond confident that his son understands the severity of his offending. His behaviour has made the family reflect on the suffering of the children that are portrayed in the files who are sufferers of exploitation, child abuse, neglect and sexual assault. As a family they have discussed how access to this material indirectly influences people to make more files to be distributed. He has explained that this type of offending will never end as long as there is a market for this material globally. It disgusts him that his son has been part of that.
Mr Jones's older brother Reagan is studying a Bachelor of Law at the University of New South Wales and does not have a criminal record. He understands the charge to which his brother has pleaded guilty. He says that he was personally shocked at the charge. He says that his brother has been tremendously affected by the situation. He says that his brother has explained to him his wish that he could take back his actions and not have made this mistake. He says that his brother is extremely remorseful. He says that by contravening this section of the Criminal Code his brother has facilitated the abuse of children globally and he is disgraced to know this. He says that Hayden feels the same. In his opinion, his brother is not at risk of reoffending.
In an affidavit of 7 June 2021 Reagan affirms that he created a Tumblr account using his own email address for the purpose of ascertaining whether Tumblr sends a confirmation email to a user if they report a file on Tumblr. He reported the first three profiles he saw on Tumblr as inappropriate, which involved clicking the options button and pressing a flag as inappropriate. He says that he did not receive any email from Tumblr confirming that he had reported the files.
The offender's friend Jared Lazarus says that on many occasions the offender has told him that he regrets his decision and is ashamed of himself. He says that the offender has often spoken to him about how the actions in which he participated perpetuate the exploitation of young children all over the world boosting the possibility of their rape and by doing what he did continued the cycle of abuse.
The offender's maternal grandmother observes that her grandson has drastically changed from being a quiet and loving grandson with a whole life ahead of him to that of a frightened, truly remorseful and contrite young man. She believes that he is truly disappointed and remorseful for accessing illegal and devastating material. She notes that he has ruined his career in nursing which he had aspired to for many years, lost a good job in a local restaurant and bar and was excommunicated from the local soccer fraternity where he was highly respected as an assistant coach. She says that he now rarely leaves his room and is humiliated to the point of secreting himself from friends. He has lost all confidence in ever recovering. Ms Howard says that she is confident that her grandson will not offend again.
The offender's godmother Ms Castray says that Mr Jones has demonstrated sincere remorse for a lapse in judgement and on numerous occasions has apologised for his actions to her and has expressed his genuine regret. He has become extremely pessimistic and withdrawn and is highly embarrassed and emotional because of his actions. She says that her godson is otherwise a creative, intelligent and thoughtful young person who has been involved in extracurricular activities over his school years. She says that he is a genuine and compassionate young man. He has been open and honest during this time and has shown extreme remorse to her for his actions. He also has a deep understanding of what he has lost.
Ms Amanda Benedeich, who is a criminologist, is the offender's maternal aunt. She says that she has seen firsthand the devastating effect this has had on the offender who has apologised profusely to her and to her family. He is humbly apologetic for his actions. She was shocked to hear of his arrest and believes that it was highly uncharacteristic.
The maternal aunt of the offender Ms Charmaine Apps is a community development worker working for the Benevolent Society. She observes that the charges have had a significant effect on Hayden and she has personally witnessed the painful, emotional and psychological effect it has had on him. He has become extremely withdrawn and has displayed overly analytical behaviours. She notes that his career choice of becoming a nurse has been significantly impacted by the charge. As a proud indigenous man of the Yuin Mob of the south coast of NSW, the offender has participated in a number of cultural events and performances and it has made her extremely proud to watch him engage in and share his culture with a wider community. She observes that her nephew has not tried to hide his actions and has been open and honest during this time, and has shown immense remorse to her and to the extended family for his actions. She believes that he has a comprehensive understanding of what he has lost and that he has learned life altering and valuable lessons and will most definitely not reoffend.
Exhibit 5 are the case notes prepared by Mr Duncan. In his note of 7 May 2020 Mr Duncan reports that Hayden said he was addicted to porn but denied that he watched child porn out of a sexual attraction to children. He said that his addiction was once per day. He said that he became bored of the normal porn on legal sites and was looking for a new experience. He started accessing Tumblr which had purged pornographic content on the site. He said he missed the content because "he really liked that stuff". Mr Duncan said he was unable to explain why it was different to legal websites despite repeated attempts to get him to elaborate. Mr Jones said the content was easier on Tumblr but could not elaborate as to why. He said that legal websites lacked diversity. The offender said people started sharing links to a program to download content and that he got curious. After a little while he came across child porn and he said he started deleting it, but then he became lazy and left it there. He admitted he came across child porn while watching appropriate porn but said he flicked to the next video to finish. Mr Duncan challenged him by saying that any reasonable person would consider the presence of child porn to be unacceptable and a red flag. The offender said that sometimes it would ruin the mood but he was rushing, lazy and too caught up in the moment. The offender said that it was a stupid mistake and that he was trying to access normal porn, despite being unable to explain how the porn he was accessing was in any way different to "legal" porn which would not have exposed him to disturbing material. Mr Duncan challenged the offender to recognise he was contributing to an abusive industry and the offender said he recognised child porn is illegal as it exploits young people. He said that he had no idea how much "was on there" which Mr Duncan considered an attempt to minimise his culpability. The offender said he recognised that there was an issue, that he needs help and that he should have reported it.
On 27 May 2021 at Coffs Harbour Mr Duncan interviewed the offender at his home. Both of his parents were present. The offender was respectful and engaged appropriately. His mother was tearful and said she felt guilty because she did not have time to pick up the clues with her son.
An intervention plan was verbally discussed with Hayden. The offender indicated that he is largely isolated at home and watches TV. His parents had barred him from accessing the Internet and his mobile phone. He does not like alcohol and has never tried drugs. He was engaging with his forensic psychologist and his mother said that she had investigated thoroughly to find him the best psychologist available. The offender reported to be benefiting from the sessions and that he has learned that after being bullied and called gay, he sexualised women to compensate for a loss in identity and became addicted to porn. The offender said that he wants to go to TAFE and is researching jobs. He said he will continue to isolate himself from all porn as he is scared to look at it again. Mr Duncan said that they will work on managing environments to ensure that it does not breach his child protection register order and implement prosocial lifestyles to reintegrate him into the community to ensure he does not isolate himself. He referred him to the Aboriginal Employment Service to enquire into a certificate III in civil landscaping. Mr Duncan thought that the offender had an adequate case plan in place to address his reoffending through his forensic psychologist.
On 7 June 2021 Mr Duncan had a phone conversation with the offender's forensic psychologist. She confirmed that she and Hayden had been meeting fortnightly via zoom and every three weeks recently, for the past 12 months. She described a good working relationship with Hayden and said they planned on working together for the future regardless of his court outcome.
On 7 June 2021 Mr Duncan had a phone conversation with the offender's mother. She confirmed that someone would definitely be able to take Hayden for community service to be ready for the bus on any given day. Mr Duncan said that Mrs Jones showed a minimisation of culpability by stating that there was no evidence that he accessed the porn or even knew it was there. She confirmed that her son had had a number of intimate relationships and described them as normal and "vanilla".
Exhibit 6 sets out the offender's bail conditions made on 26 August 2020 as follows:- 1. Must appear at court went required to do so; 2. Reside at Woodbine NSW; 3. Surrender passport; 4. Report to Campbelltown police station every Monday Wednesday and Friday between 00.01 and 23.59; 5. Not to seek any social networking site via any means or through a third party; 6. Not to seek or actively remain in the company of any person under the age of 16 years, other than immediate family members and in the case of immediate family members, that such contact be supervised by an acceptable person over the age of 18 years; 7. Not to actively communicate or attempt to communicate (directly or indirectly) with any person under the age of 16 years, other than immediate family members; 8. Not to seek or undertake paid or voluntary work or social activities that will bring him into contact with any person under the age of 16; and 9. Not to attend or be in the vicinity of premises known to be frequented by children, including but not limited to video arcades, playgrounds, schools and preschools, premise being used for childcare, concerts or shows or sporting venues intended for the specific use of entertainment of persons under the age of 16 years.
Variations were made on 8 February 2021 changing his place of residence to Sandy Beach New South Wales and the reporting station to Coffs Harbour police station.
Exhibit 7 is the offender's patient health summary which notes the offender's current medications as Endep, Indomethaein, Maxalt, Mersyndol, Ondansetron and Panadeine Forte.
In addition to the exhibits, three witnesses gave evidence. They are Mr Jeremy Colin Duncan, Community Corrections Officer, the offender and Ms Penelope Jones, the offender's mother.
Mr Duncan gave evidence on 2 August 2021 for the purpose of being cross-examined by Mr Tuckey.
During cross-examination Mr Duncan conceded that he did not know that the police were unable to identify the files that had been viewed and those that had not been viewed by the offender.
Mr Tuckey questioned the witness about his description of the offender having minimized his actions throughout the assessment process when the offender referred to his actions leading up to the offending. He asked Mr Duncan whether he excluded the possibility that the offender's actual intention was to access conventional pornography. Mr Duncan responded that he considered that the offender was minimizing because he could not provide him with, in his opinion, any explanation as to why he needed to access conventional pornography or why he had to download those caches of pornography when he had admitted to knowing that the CAM was there.
Mr Tuckey put it to Mr Duncan that with respect to this offence, a person who pleads guilty can either have been reckless as to the material being CAM or could have intentionally accessed the CAM, and that this was a matter for the court to decide. Mr Duncan indicated that he was not aware of the elements of the offence, and he said that he was not aware that it was open to the court to find that the access was reckless.
Mr Tuckey asked Mr Duncan about his opinion that the offender had minimised his offending because he has said that "I had no idea how much was on there". Mr Duncan said that he believed that the offender had downplayed downloading the caches, and that as the offender had pleaded guilty to this offence, he had assumed when writing his report that the offender had pleaded guilty to knowing that all 10,000 images were there and were CAM.
Mr Tuckey also asked Mr Duncan to confirm that it was his opinion that the offender used his addiction to pornography as minimisation. Mr Duncan responded affirmatively but also conceded, when questioned further, that he was not aware of psychological research in relation to people addicted to conventional pornography transitioning to child pornography or otherwise and said that he did not have qualifications in psychology or any research qualifications into the use of pornography.
Mr Duncan gave evidence that, in his opinion the offender could not adequately explain why he left conventional "legal" pornographic websites for Tumblr, but he accepted that the offender had said to him it was "easier" on Tumblr and that he was curious about the material that people would share through links. Mr Duncan also accepted that the offender told him that it took a little while until he came across CAM while watching appropriate "legal" pornography and then flipped to the next video. Although at first he deleted the CAM, the offender stated that he became lazy and left the material there.
Mr Tuckey also asked Mr Duncan about his observation that the offender's mother minimised the offending, because she had told him over the phone that "there is no evidence he accessed the porn". Mr Duncan accepted that he had also written in his case note that the offender's mother felt guilt for not having picking the clues in the offender's behaviour which demonstrated some recognition that the offender's behaviour was wrong.
Mr Duncan noted that he had talked to Dr Yousseff for no longer than a couple of minutes, and that he did not mention minimisation to her. He acknowledged that in his opinion, the offender had an adequate case plan in place to address his reoffending through his treatment plan with Mr Yousseff.
The Crown did not re-examine Mr Duncan.
I thought that Mr Duncan was a satisfactory witness who did his best to assist the court. His use of the word minimization with respect to the attitude of the offender clearly is a conclusion based upon his expectation that the offender ought to have been in position to better explain his actions, which the offender admitted and conceded was wrong. The offender is a young person and it would be extraordinary if he was able to carefully articulate the reasons for his behaviours which occurred whilst he was a teenager. The offender's evidence which I accept, to which see below, is that he was never looking to access CAM, and that when he first came across it, he reported it and deleted it. I accept that over time, and in the context of massive bulk downloads he eventually gave up reporting the CAM which was about 5% of the enormous amount of material that was downloaded. I accept that he was foolish and lazy and ought to have reported it. In my opinion, the offender did not have a good reason to explain his actions other than he was lazy, foolish and caught up in the titillation of the "legal" pornography. In other words, that there is no good answer is on balance the truth and it is not minimisation. In my opinion, the conclusions reached by Mr Duncan that the offender minimised his conduct are of no weight. The same can be said of the characterisation of Mrs Jones's comment to which see below.

Evidence of the offender

The offender gave evidence on 2 August 2021 on affirmation.
The offender stated that he began to look at pornography what he said was a very young age, at 14 or 15 year old perhaps once or twice a week. His consumption of pornography increased when he was about 17 or 18 years of age and by the end of 2018 or early 2019 it had become a daily routine, mostly through websites like Porn Hub and X Videos. The offender said that he always believed that the participants were over 18 years of age as there were always disclaimers saying that this was the case.
The offender said he started to "branch out" and that he discovered Tumblr in 2017 before it had a purge of pornographic material. At the time he enjoyed the different format because it was unlike conventional "company-based" websites with paid actors which he found repetitive and monotonous, Tumblr appeared to have more of a blog style with a library of short videos that people would post with comments or messages, in a format not dissimilar to Facebook. The offender did not see any illegal material on Tumblr at this time.
The offender explained that after Tumblr purged its content any pornographic material, he stopped using it, but people were still able to post their own videos and material using Mega.NZ on Tumblr but that there was now an extra step and it was to click on the links uploaded through Mega.NZ.
The offender explained that after clicking on the link, the user had to download the App Mega.NZ and create an account, which the offender did by using his personal Gmail account which he had had since he was 13 or 14 years of age and which contained his personal details such as his full name and probably one of his old addresses. He downloaded the app to his phone and iPad but never used his iPad.
Once he had downloaded the Mega.NZ App, the offender had to re-click on the links he accessed through Tumblr and they would open through the App and he could save the links to a cloud. On the first occasion he went through this process, the offender accessed a file with 20 or 30 pictures of an adult female model. He said that on his Mega.NZ account, the folder would appear and as you clicked on it, the pictures were displayed in a thumbnail style.
The offender said that several weeks after this first experience he decided to try again and did a night a bulk downloading of files and links through Tumblr and Mega.NZ
About the fourth time he did this, about 2 and a half months after opening his Mega.NZ account in September 2019, the offender came across CAM after clicking on a link he had downloaded through this process. He said that he was quite shocked to find an image of " a female very much under the age of 18" and that he "panicked a little bit", closed Mega.NZ, went to Tumblr and reported the post but did not get a response. He said that he was unhappy for the rest of the night because he was appalled by what he had seen.
The offender said he deleted the folder containing the CAM. He explained that one folder could contain several or dozens or hundreds of subfolders each containing any number of files.
The offender said in his evidence that he went back to Mega.NZ several weeks later, thinking that perhaps the CAM had been a one-off. This next time he did not come across any CAM. However, he did on another occasion after that and he reported the CAM a second time to Tumblr but again received no response. He once again came across CAM which he reported to Tumblr (without response) and deleted.
The offender explained that thereafter he used Mega.NZ and again came across CAM, but on this occasion, rather than deleting the material and reporting it, he moved onto a new file, a new folder and made sure not to reopen the CAM file or folder.
To access pornographic material, the offender would bulk download by clicking a link, save it to the app, go to find a new link, save several links and then go back to the material to open and review it, often missing some links or not realising what had been downloaded. The files were saved to a cloud storage of the App and so the offender required a WiFi connection to access them. The offender categorically denied that he had explored all of the files and folders that he had downloaded. Mr Jones said that he estimated that he bulk downloaded on another half dozen occasions.
The offender admitted that he came across CAM on another few occasions but explained that he would leave the content there and move on to look for the "legal" content he was after.
When asked about how the pornographic material was displayed, the offender explained that as he clicked on a link, the first page would open and then there was a series of folders, some with names, many without, some with numbers, some with titles of a link. As he opened a folder, he would then see thumbnails on which he could click to open to full size and then swipe to the next picture displayed.
The offender said that although he might have some idea by looking at the thumbnail on the first page as to what image would be in the queue, once it was a full screen image, you would not know which image would come next as he swiped. He said that sometimes he could detect from the thumbnail that it was CAM but often the image was too small and blurry to be able to do so. He said that he never clicked on a thumbnail when he recognised it as CAM.
When asked why he did not stop clicking these links once he realised they at times contained some CAM, the offender said he did not have a good answer and that he was mostly watching pornography every day for hours on mainstream websites and that he was using Mega.NZ to have a different experience once in a while. He said that of the 177,729 files found, he had looked at only a very small percent. The offender acknowledged that as he clicked on these links, there was an ongoing risk that he would encounter illegal material but he said that he would keep this thought at the back of his mind as he was thinking that the files and folders would contain the material he was really after and not CAM.
When the police came to the offender's house, he said that he had not used Mega.NZ for months and he had forgotten how much he had downloaded as he was not using it anymore. He said he had no idea how much CAM was on his account and certainly did not know there were more than 10,000 files of CAM. He thought there were perhaps a few dozen files were there that he had not deleted. He immediately gave his phone and his Mega.NZ account to the police.
When asked about his actions and the offence, the offender said that he felt he had let himself get to a point where his - self-diagnosed - pornography addiction was controlling part of his life. He was dedicating an hour and a half to two hours each day to watching pornography and masturbating, and that led him to the situation where he was confronted with CAM. Since then, he has reflected on his behaviour and he said he was appalled by his decision to attempt to rationalise it. He said he was rationalising his behaviour by thinking that it was ok because he was not looking for CAM but encountering it by accident.
In 2017, the offender said that he had attempted to address his pornography addiction by seeing a psychiatrist but he abandoned it after about a dozen sessions, as he did not feel very connected with the doctor he was seeing.
The offender reported that he was taking medication for his mental health being Endep and Seroquel and that he had started seeing Dr Carollyne Yousseff, forensic psychologist, in September 2020, shortly after the search warrant executed at his parents' house. He said that the therapy with Dr Yousseff was helping him to address the root cause of his mental health problem and pornography addiction and to find new coping mechanisms. The offender said that he had not watched any pornographic material since his arrest because he is both worried that it could be a breach of his bail conditions and because he might come across CAM again.
The offender said that he did not understand, prior to his arrest, the extent of this illegal industry and the exploitation suffered by the children represented in CAM. He also confirmed he has never had any attraction for the children he saw on the material he came across.
He said that the offence of accessing this material is the biggest mistake he has made in his life, that it is entirely his fault that he continued to download these links and that when he thinks of his actions he is filled with anger and disgust at himself.
The Crown cross-examined the offender on a number of discreet issues.
Ms Debenham confirmed that the offender had mass downloaded the links on about a dozen occasions and that he would only access the links when he was doing the downloading and not go back on Mega.NZ to browse what he had downloaded without first going on Tumblr to find the links.
The offender acknowledged that he had become desensitized to the CAM over the relatively few occasions he came across it and he soon no longer sought to report and delete it. He confirmed that he told the Community Corrections Officer that he had become "lazy and too caught up in the moment".
When asked by The Crown what was different about the Tumblr/Mega.NZ platforms, the offender said that it was "more tailored around in essence the stuff" he liked, fetishes that he followed and that were for the most part quite "vanilla".
Ms Debenham asked the offender whether he agreed he was choosing to access a website over which he had no control with respect to the material that was coming to him, when he could have accessed mainstream pornographic websites over which he had control, to which he replied that he was mostly visiting mainstream websites but on a few occasions he felt like "changing it up and trying out the Tumblr."
The offender accepted that when he first encountered CAM on one of those links, it was not enough to stop him from accessing these links again but he added that at the time he thought that CAM was something found only on the dark web for people actively looking for it and he did not think it was something one could just casually, accidentally come across. At first he thought it was a "one off".
The offender conceded to the Crown that he came across CAM a number of times and that despite this he continued to access material on Mega.NZ. He also confirmed that he liked accessing material on Tumblr and Mega.NZ because he preferred the formatting, in spite of the fact that he knew he might come across CAM by accessing these platforms.
The offender also accepted that although he had said that the material he accessed through Tumblr and Mega.NZ was more tailored to his tastes, that was not entirely correct as it included CAM, which was not to his taste. However it mostly included the material he was interested in.
The offender agreed with the Crown that on the dozen or so occasions he bulk downloaded material, on about half of the occasions he possibly came across CAM. He also accepted that when he accessed Mega.NZ he was aware from experience of the possibility of coming across child material but added that this was why he eventually stopped using Mega.NZ. He did not delete the material or his Mega.NZ account because he said he just did not think about it. He just never thought about it. It did not cross his mind to close his account or delete the material.
Ms Debenham took the offender through the redacted sample booklet (exhibit 3) and asked him whether he could see the architecture of folders with specific names appearing on the offender's screen but the offender said that on his mobile device, he would not have seen these names as folders were downloading next to each other and then by rows of two more underneath. He also said that he did not see all of these folders (in the booklet) as they were shown on a computer screen which was unlike his mobile device. I note that the Crown said that the screenshots contained in exhibit 3 were taken during a recording of a display on a police browser. Further, Ms Debenham said that as police were navigating through the offender's Mega.NZ account, officers may well have clicked the diamond shapes which disclosed the sub-folders. The offender insisted, and I accept, that this was not how the files were displayed to him on his mobile phone.
The Crown asked about folders with specific names, and the offender agreed he would have most likely been able to see them if they were displayed at the top and he was waiting for them to download. The Crown referred to folder names such as "500 plus teeny videos", "girl, nine-year old", "Pevo-files (o-9YR all)", "brutal shocking rape" and asked the offender why he saved them to his account as they did not suggest "vanilla" pornography. The offender replied that he would not have done so if he had seen the name of these folders and that he did not pay attention or could not see the folder names as he was downloading the links, as he was using a mobile phone and the full names of the links were not apparent when downloading in that format. The offender said that he could not recall seeing any of the folders containing words that might have suggested that they contained CAM.
I observe that there is no evidence before me to explain exactly how this technology worked.
Mr Jones explained that he would click on a link on Tumblr which would show some thumbnails and that he would click on a button that saved all the material to the Mega.NZ account. He would click on this button and then move on to finding new links which he would also click on. He would continue doing so until he believed that he had downloaded enough, and then look at some of the material he downloaded.
During re-examination, Mr Tuckey asked the offender if he recalled for instance seeing a folder title "brutal shocking rape" and the offender said he did not. He added that the offence was almost 3 years ago and that he did not have a recollection of the folder names, but that it is unlikely he would have seen a title that long on his device given the size of his phone's screen (which was a Samsung S10, similar in size to an iPhone 10).
When asked by Mr Tuckey about folders containing the word "teen", the offender explained that this word appears all the time on "legal" porn sites and that it usually refers to people 18 to 21 years of age.
Mr Jones said that when he clicked on Tumblr it automatically opened the app and he would see his settings and then the top folder on his screen, but not the subfolders. I accept this evidence on the balance of probabilities.
I was very impressed by Mr Jones, who in my opinion gave candid and thoughtful evidence. He did not attempt to downplay his involvement in the downloading of the CAM and admitted viewing some CAM. I reject the Crown submission that I should approach the offender's evidence with circumspection. I make the following findings on the balance of probabilities, many of which he was not cross-examined by the Crown. I accept that Mr Jones was not attracted to underage children. I accept that he did not seek out CAM. I accept that he saw CAM on only several occasions and at least on two occasions he reported it, and on the others he swiped passed it after having viewed it. I accept that he got no sexual gratification from it. On the contrary, I find as he put it, that it put him out of the mood. I find that he stopped looking at his Mega.NZ account some months prior to his arrest. I find that not only did he not look at all the 177,729 files found on his device, he did not look at anything close to the 10,000 files containing CAM. I find that he looked an indeterminate but small number, that is only a small proportion of the 10,000 files and then only fleetingly. I find that he never intended to download and access CAM but was reckless on the approximately 10 occasions he bulk downloaded after he deleted the CAM files on at least the first two occasions. He did not share or sell those files. I find too that Mr Jones is genuinely remorseful and contrite, and that he now has a mature understanding of the significant evil surrounding the production, manufacture and dissemination of CAM.

Mrs Penelope Jones

The offender's mother Penelope Jones gave evidence on 16 August 2021. She is the director for Integrated Mental Health, Alcohol and other Drug Services for the mid-North Coast Local Health District. She has a Bachelor of Nursing, a Masters of nursing, a Masters of Mental Health, a Masters of Public Health and a Masters of Health Leadership and Management.
Mrs Jones observed that her son was a quiet and excellent student.
She said that after the charges were known, the offender repeatedly told her and her husband that he had never looked for the CAM and that it was not his interest. He had often expressed what he had done wrong but always said that he had never searched for this material.
Ms Jones said that since the offending, she has had numerous conversations with her son and that he has been "exceptionally remorseful" and that he is very distressed by his actions and by "what he calls his laziness" and understands that he could have avoided all of this if he had followed through on his intention to delete the material. He has often discussed the matter having a very significant level of distress.
When asked about her interaction with Mr Duncan, Community Corrections Officer, Ms Jones said that she initiated contact by phone but that when Mr Duncan came over for a home visit, she was on the phone with the offender's therapist, that her husband attended the meeting and she only came out for the last few minutes of the interview. At that time, Mr Duncan did not ask her any question but only talked about the process.
She denied that she ever expressed to Mr Duncan that the offending and CAM were not serious and she emphasised that at as a family unit they fully understand the seriousness of these events. She specifically denied telling Mr Duncan that there was no evidence that her son accessed the pornography or even knew it was there.
Mrs Jones said that her son has abided by his bail conditions, and her own condition, that he was not to have any access to the Internet at all. She said that he has been absolutely compliant and is fearful of any technology at the moment. She said that he is socially phobic from her point of view, and that he rarely will leave the house unless he is supervised by both her and her husband. In her opinion he is at risk of suicide. She said that her entire family would be of support and assistance to Hayden in the future.
The Crown did not cross-examine Mrs Jones.
I found Mrs Jones to be a frank and straightforward witness. I accept her evidence in its entirety. I accept in particular that she did not ever minimise the seriousness of the criminality of her son's offending. I also accept her observations about the seriousness with which her son considers the matter before the court. I accept that she believes her son is a suicide risk.

Sentencing for child pornography offences - general principles

The general sentencing principles applicable to offending of this nature are summarised in R v De Leeuw [2015] NSWCCA 183 as follows: 1. Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted. 2. The objective seriousness of the offending is ordinarily determined by reference to the following factors: 1. the nature and content of the material, in particular 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 is for the purpose of sale or further distribution; 4. whether the offender will profit from the offence; 5. in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; 6. the length of time for which the pornographic material was possessed. 1. General deterrence is the primary sentencing consideration for offending involving child pornography. 2. Less or limited weight is given to an offender's prior good character. 3. Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography. 4. Offending involving child pornography is difficult to detect given the anonymity provided by the Internet. 5. The possession of child pornography material creates a market for the continued corruption and exploitation of children. 6. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market. 7. The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending
The maximum penalty for the offence is 15 years imprisonment, which reflects the gravity with which the legislature regards this type of offending.
Section 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that prescribed sexual offences are not to be sentenced by way of an Intensive Corrections Order. I acknowledge that the instant offence is a prescribed sexual offence for the purposes of s 67.

Objective Seriousness

The Crown submits that in R v Hutchinson [2018] NSWCCA 152, the following matters were identified as relevant to the assessment of the objective seriousness of child pornography related offending: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in the case of possession, the significance lying in the number of different children depicted. 5. In the case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 6. Whether any payment or other material benefit was made, provided or received for the acquisition of child pornography material. 7. The proximity of the offender's activities to those responsible for bringing the material into existence. 8. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material. 9. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 16A of the Crimes Act 1914 bearing upon the objective seriousness of the offence.
Taking into account these matters, the Crown submits that the offence is above the mid-range of objective seriousness for offences of this type, which by their nature, are very serious. The material that was accessed is described in the agreed facts and consists of material which falls into both Interpol Baseline Categories. The Crown noted that unlike other classification systems, the Interpol Baseline Categories do not represent rankings of the severity of the material in question.
Real pubescent and prepubescent children were exploited in the production of the material and she submitted that it is an inescapable conclusion that physical harm was inflicted upon some of the child victims in the production of the material.
The Crown also submitted that the material was dealt with by the offender for his own sexual gratification. Whilst there is no allegation of further transmission or sale of the material, she submitted that the absence of such an allegation does not mitigate the offending.
The Crown accepted that the offending was not sophisticated. However Ms Debenham submitted that it was deliberate and spanned a not-insignificant period of time. She said that the total number of images is very high, although she conceded not the highest seen by this court.
Mr Tuckey, on behalf of the offender, submitted that of the 177,729 files in the Mega.NZ account, police identified approximately 10,000 files that fell into the Interpol Baseline categories. This amounts to 0.56% of the total material found in the account.
He further submitted that here is no indication in the facts which of any of the 177,729 files Mr Jones had displayed on a screen or otherwise viewed or opened. This applies equally to the 10,000 files and the files described in paragraph 13 of the Agreed Statement of Facts.
Mr Tuckey submitted that by his plea, the fault elements of the offence establish that Mr Jones had accessed material intentionally. However, he submitted that both the plea, the agreed facts and Mr Jones's evidence establish that Mr Jones was reckless as to the material being CAM. Mr Tuckey submitted that Mr Jones's state of mind as to the material being CAM could be no higher than recklessness. This is sufficient to establish the offence elements and any contrary submission would require proof beyond reasonable doubt.
Mr Tuckey submitted that there is no evidence that Mr Jones took any steps to conceal his activity online. He used his own email address haydenj31@gmail.com in relation to his Mega.NZ account, and did not in any way try to disguise his identity. Further, his Gmail account subscriber details were in his true name, and his Gmail account listed his father's mobile number in his account details, and this mobile number was linked to Mr Jones' true residential address. He provided police with his log-in details and password for his Mega.NZ account.
Mr Tuckey noted that the 3900 folders noted in the agreed facts include sub-folders. There is no evidence that Mr Jones himself organised the folders or which of the folders or sub-folders Mr Jones in fact opened.
Mr Jones has consistently explained his offending both to the author of the SAR, in his letter to the court and in evidence during the sentence proceedings. Mr Tuckey submitted that the following conclusions can be drawn:- 1. Mr Jones said that he was 'downloading caches of pornographic material from links online'. This is consistent with the agreed facts at paragraph 7. 2. He became aware that some of the caches of pornographic material contained CAM despite continuing to access the caches. 3. He said that he had '"no idea how much was on there" (referring to the illegal material). 4. In continuing to view the caches he saw and deleted, or saw and skipped over, materials that appeared to him to be CAM. 5. The circumstances in which Mr Jones found and used the unique URLs as described in paragraph 7 of the facts are not stipulated. It is not apparent that the URLs contained any information such as the file names - which would have been apparent to Mr Jones at the time of downloading - indicating that they contained illegal material. Further, Mr Tuckey submitted that whilst persons can upload material to the platform, there is no allegation that Mr Jones did that. Indeed, Mr Jones gave evidence, which I accept, that he was not aware whether he was copying any documents how it operated, and there is no technical evidence about copying or removing which occurred with respect to the 10,000 files. There is no evidence that demonstrates a moving from one computer or a device to another. Thus Mr Tuckey submitted that the access, as defined in section 473.1 of the Criminal Code, to which the offender has pleaded guilty and for which he should be sentenced taking into account the evidence, is (a) "the display of the material by a computer or any other output of the material from a computer", rather than (b) "the copying or moving of the material to any place in a computer or to a data storage device". For completeness, there is no evidence to suggest that that (c) is engaged "in the case of material that is a program - the execution of a program".
Based on the agreed facts and Mr Jones's evidence, I entirely agree with Mr Tuckey's submissions in paragraph [150] above.
Mr Tuckey submitted that:- 1. Mr Jones did not access the material for the purpose of their further dissemination or sale, and he did not stand to profit from the offence; 2. Mr Jones did not access the material for the purpose of sexual gratification, or in pursuit of a sexual interest in or a sexual preference for minors; 3. Mr Jones's offending was not proximate to the creators of the offending content; 4. Mr Jones's offending was not part of a planned or organised criminal activity. There is no evidence of any degree of planning, organisation or sophistication in Mr Jones's offending; 5. Mr Jones acted alone; and 6. As the material was located on a pin code locked mobile phone, there can be no suggestion of any risk that a vulnerable person or child would come upon, enact or replicate the offending material.
I accept Mr Tuckey's submissions noted above. I accept that Mr Jones was reckless as to the nature of the material that was stored on his Mega.NZ account, that the offence was committed recklessly, that he accessed the offending material recklessly and I accept his evidence in these respects which I have found to be truthful. I note nonetheless the seriousness of this offending. It is not victimless. Any access of this kind of material means that children will further exploited because, as the Crown put it, there is a market for this material that will find its way onto these types of websites, and that even a reckless commission of this offence contributes to those markets.
I observe that in this matter the facts and the evidence of Mr Jones do not determine which files were viewed and which were not. In my opinion, Mr Jones should be sentenced for those images which he has admitted viewing and which he gave evidence occurred on only a number of occasions in circumstances of recklessness when they were mixed in with "legal" pornography. The offender's motivation in his offending was to access large caches of "legal" pornography. It is a great shame that he did not report his findings of CAM to police as he should have.
Taking all matters into account, in my opinion the offending falls toward the low end of the scale of objective seriousness for offending of this nature.

Plea of guilty

The offender pleaded guilty at the first available opportunity and he is entitled a discount to reflect its utilitarian value. It also demonstrates his remorse and his facilitation of the administration of justice. Mr Tuckey submitted that Mr Jones made admissions to investigating police and provided them with passwords and consent to access his online accounts. He also alerted the police that there may be items of interest on his mobile phone while the police were executing a search warrant at his place of residence. This significantly assisted the police, including by reducing the time required to identify the material of interest pursuant to the warrant. I accept this submission
I allow a 25% discount for the offender's plea of guilty.

Remorse

The Crown concedes, and I find that the offender is genuinely remorseful. He has appropriately expressed that remorse, including a now well-developed understanding of the nature of his crime, to his friends, family and to the court.

Prior Criminal History

The offender comes before the court with no prior criminal history, and he is entitled to some leniency on that account. I note too, that he is otherwise a person of good character who has enjoyed a good reputation in the community. I take into account the references tendered on behalf of the offender.

General Deterrence and Youth

The Crown submitted that general deterrence is the paramount sentencing consideration for offending involving CAM, as there is a paramount public interest in promoting the protection of children. She said that the accessing of CAM creates a market for the continued corruption and exploitation of children. As I have already pointed out, this is not a victimless crime. Children are abused in order to supply the market. It was also submitted by the Crown that the need for general deterrence is amplified by the fact that offending involving child abuse material occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain CAM anonymously.
It was submitted by Mr Tuckey that Mr Jones is an imperfect vehicle for general deterrence. He is a very young man who behaved irresponsibly and foolishly in a manner consistent with his youth and immaturity.
Mr Tuckey submitted that general deterrence should be given less weight due to Mr Jones's youth, particularly as rehabilitation is of substantial, if not primary importance - not only in interests of Mr Jones - but also in the interests of the community.
It was further submitted by Mr Tuckey that general deterrence has less weight as the offence was not committed for financial gain or characterised by premeditation, and because Mr Jones has been diagnosed with a mental illness (see below). He said that Mr Jones is unlikely to receive any substantial treatment if sentenced to a custodial sentence as the SAR notes that the only available program in custody would require him to serve at least 24 months.
In my opinion, general deterrence has some role to play, although as has been conceded by the Crown, his moral culpability has been somewhat diminished because of his youth and mental illness.

Personal circumstances of any victim of the offence and impact on victims

Mr Tuckey submitted that personal circumstances of the children depicted in the videos possessed by Mr Jones are not known.
The Crown accepted that the personal circumstances of the children depicted in the videos possessed by the offender are not known, but nevertheless submitted that the likely effect of the offending on them is apparent from the nature and seriousness of the offence.

Offender's character, age, antecedents, physical and mental condition and background

The Crown accepted that the offender's youth is a significant matter on sentence. There are three relevant considerations which arise as a result of an offender's young age: Azzopardi v The Queen (2011) 35 VR 43. First, an offender's immaturity may mean they are more prone to ill-considered and rash decision making, may lack insight, judgement and self-control and may not fully appreciate the nature and seriousness of their criminal conduct. In my opinion, this is certainly present in the instant case. Secondly, rehabilitation of young offenders is one of the objectives of the criminal law as such offenders are more likely to be rehabilitated because they are typically "still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour". There is a strong public interest in the rehabilitation of young offenders, as successful rehabilitation protects the community from further offending. This factor is also present in the instant case. Thirdly, courts have recognised that the impact of incarceration in an adult prison on a young offender will more likely impair their prospects of rehabilitation and may entrench them in criminal behaviour by exposing them to corrupting influences. This too, is clearly a factor present here. The authorities are replete with similar statements, which in my view clearly apply in the present case.
The Crown submitted, however, that in these circumstances the criminality of the offending is such that it requires the sentencing objectives of deterrence, denunciation, punishment and protection of the community to be given more weight, and that the weight to be attached to the offender's youth is reduced.
Mr Tuckey submitted that an offender's youth is recognised as diminishing the offender's moral culpability. He emphasised the three matters I have set out in paragraph [167] above.
In my opinion, taking into account the offender's youth, and accepting as I do his evidence about the offending itself, I find that his immaturity caused him to behave in a manner that demonstrated ill judgement and poor insight. He is an excellent vehicle for rehabilitation, having an unblemished background and an extremely supportive extended family, and there is a strong public interest in promoting this particular offender's rehabilitation.
As to his mental state, Dr Yousseff's report reveals Mr Jones's declining mental condition. I observe that she is the offender's treating psychologist and is in a different position than a psychologist briefed for a medico-legal opinion. Although she was not cross-examined, the offender was, and the Crown had a full opportunity to cross examine him about any representations attributed to him in Dr Yousseff's report. I note that she did not. Dr Yousseff's comments were entirely in line with the observations of Mr Jones's mother who was not cross-examined at all.
Mr Tuckey submitted that Dr Yousseff's findings and diagnosis may reduce Mr Jones's moral culpability for these reasons:- 1. The report notes that Mr Jones turned to pornography as a result of suffering 'chronic bullying' at school for being a dancer. This meant he was 'often concerned about being perceived as different or weak due to his interest in dancing and reported a need to 'prove' his masculinity and heterosexuality, noting that he became quite hypersexual, which seemed to be an over compensatory response to the bullying.': Dr Yousseff at p7. Mr Tuckey submitted that the mental anguish experienced by Mr Jones as a result of bullying therefore has a connection with the offending: 2. The report notes that Mr Jones 'seldom felt connected or accepted by his peers, and this led to a sense of depression, anxiety, social awkwardness and consequently, social isolation': see Dr Yousseff at p7; and 3. Dr Yousseff has diagnosed Mr Jones with Persistent Depressive Disorder and Adjustment Disorder with mixed anxiety and depressed mood: see Dr Yousseff at 26.1.1 and 27.1.1.
Mr Tuckey observed that Mr Jones has been able to form appropriate long-lasting relationships with women of his own age, and that Dr Yousseff's report notes that he had a romantic relationship lasting approximately two years. The report also notes that Mr Jones's girlfriend's eventual refusal to engage in any sexual intimacy led 'Mr Jones feeling unwanted, unattractive, rejected and lonely in the relationship… he in turn turned to pornography and masturbation as a form of coping and saw a marked increase in his use of pornography during this time, using it as an avoidance coping mechanism', and that this experience 'awakened a lot of feelings of rejection and defectiveness that he had previously experienced and was sensitive to, related to his school experiences of bullying'.
In my opinion, the offender's youth and mental health somewhat diminish his moral culpability.
Mr Tuckey submitted that the following factors should be taken into account when arriving at an appropriate sentence: 1. Mr Jones's youth. He was 18 and 19 years of age at the time of the offence. 2. Mr Jones does not have any prior charges or convictions. 3. Mr Jones is indigenous and received an indigenous cadetship to study nursing. 4. Mr Jones has been an active member of the Australian Army Cadets. 5. Mr Jones has expressed regret for his offending and has accepted responsibility. 6. Mr Jones was subjected to chronic bullying at school which led to an intense desire to prove his masculinity and heterosexuality. He also had difficulties making friends. 7. He has not been diagnosed with paraphilic disorder. 8. The husband of his maternal aunt, with whom he had a strong bond, committed suicide in 2017 which had a profound effect upon him. 9. His psychologist has recommended treatment which she believes will address his underlying issues and she has reported significant progress thus far. 10. Mr Jones has a strong commitment to engage in treatment. He immediately requested treatment for his offending behaviour and has requested additional therapeutic support from time to time. Dr Yousseff has described his 'engagement in therapy to be impressive particularly given his youth'.
All of these matters are in my opinion relevant and I propose to take them into account when synthesising a just and appropriate sentence,

Prospects of rehabilitation and need for specific deterrence

The Crown acknowledged that matters such as the offender's youth and the fact that he is not criminally recorded speak positively to his prospects of rehabilitation. Indeed, in oral argument she appropriately conceded that he had good prospects of rehabilitation and was at a low risk of re-offending.
Mr Tuckey submitted that Mr Jones has very good prospects of rehabilitation given his: 1. Youth; 2. Participation in an extended period of psychological counselling; 3. Family support, as evidenced by the character references and the numerous statements therein that he has showed intense remorse and their belief that he will not reoffend; 4. Various protective factors against further re-offending, including his insight and his family support; 5. Lack of sexual interest in, or sexual preference for minors, evidenced by the great majority of his pornographic material being mainstream and the statements in Dr Yousseff's report that 'his preference has always been for adult pornography, rather than CAM' and that 'he denied any sexual interest in children and indicated that his sexual attraction is exclusively towards adult women', and his evidence which I accept; 6. Recognition of the harm of his pornography addiction, evidenced by him not having accessed any form of pornography since his arrest in recognition that his pornography use was a destructive coping mechanism; 7. Circumstances, being that he did not seek out the offending material and his evidence on this topic which I accept; 8. Lack of a criminal record; and 9. Compliance with strict bail conditions since 26 August 2020 without further offending (see exhibit 6), thereby demonstrating his capacity to comply with court orders and community standards of decency. I observe that Dr Yousseff notes that Mr Jones 'has not requested any variations to his bail conditions as he believes he should be abiding by these conditions given what has occurred'.
I accept these submissions.
I note that section 16A(2AAA) was inserted into the Crimes Act and came into effect on 20 July 2020. That provision imposes a requirement that a court, when sentencing an offender for a Commonwealth child sex offence, take the objective of rehabilitation into account "in addition to any other matters", by considering the matter on the basis of what is relevant and known to the Court. I take that section into account.
Mr Tuckey submitted that given Mr Jones' guilty plea, young age and lack of criminal record, it is highly unlikely he will reoffend. He submitted that specific deterrence should be given less weight given Mr Jones' progress towards rehabilitation as demonstrated by his psychological intervention and treatment his use of prescription medication, including Seroquel, his stated disinterest in minors, his unequivocal remorse and insight into his offending, including the effects of CAM on its victims, his immediate admissions at the time of his arrest regarding identifying the relevant mobile phone and providing the pin code to access it, his strict compliance with bail for a long period of time and his lack of prior criminal history.
Mr Tuckey's submissions are well founded. The offender and his family have treated the matter with the utmost seriousness and have engaged appropriately. Notwithstanding Mr Duncan's opinion, in my view they have not minimised the offender's conduct at all. Taking all matters into account, I find that the offender's prospects of rehabilitation are excellent, and that he is unlikely to re-offend.

Amendment to s 20(1)(b) Crimes Act 1914.

The Crown submitted that section 20(1)(b), as amended, imposes a presumption in favour of an actual term of imprisonment for child sex offences and applies only with respect to conduct committed on or after 22 June 2020. Ms Debenham submitted that the presumption does not apply in the instant case, but that it is still a matter of principle that in the case of child abuse related offending, a term of immediate imprisonment is ordinarily appropriate and expected. She submitted that the only appropriate sentence in all the circumstances of this case was one of full-time imprisonment.

The need to ensure that the person is adequately punished for the offence: ss16A(2)(k)

Mr Tuckey submitted that any term of imprisonment is a significant punishment, but that alternatives to imprisonment also carry with them significant degrees of punishment. He submitted that the bail conditions imposed on Mr Jones can be seen as a part of the punishment that is to be imposed. These have been particularly onerous and denied him a great deal of liberty. Mr Jones has moved to Coffs Harbour but has been unable to develop a social support network as 'his bail conditions restrict him from going out and meeting other people': see Dr Yousseff at p9. His bail restrictions 'have left him feeling further isolated': see Dr Yousseff at p10. The offender and his mother gave similar evidence. I accept that the conditions have his bail have been onerous, and that the offender has been left feeling isolated and lonely.
I accept that Mr Jones has been emotionally punishing himself for his actions, that he no longer has contact with his soccer fraternity and that he has given up his dream of a career in nursing. I agree with Dr Yousseff that the offender's 'age and lack of prior criminal or custodial history makes him particularly vulnerable if incarcerated': see 32.1 of her report.
With respect to imposing an appropriate sentence, Mr Tuckey referred to s17A of the Crimes Act and noted the common law principle that a court should strive to impose the shortest sentence possible after a consideration of all the relevant factors. He also observed that the comments in De Leeuw at [72] that '[u]nless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted' does not constitute a guideline or a mandatory starting point of imprisonment. He submitted that each case must be assessed on its own merits and that my discretion remains unfettered.
I would in any event have found exceptional circumstances having regard to the objective seriousness of the offending, the offender's youth, good character and lack of a prior criminal history, the offender's insight into his actions and his remarkable progress towards his rehabilitation,
Mr Tuckey observed that the SAR at page 3-4 provides a comprehensive plan of rehabilitation and supervision for Mr Jones and that a treatment regime could be put into place to ensure his continued rehabilitation under a recognizance release order (considering s16A(2AAA)(a)). He submitted that treatment offered for Mr Jones in custody would require a minimum non-parole period of 24 months which would be disproportionate to the objective seriousness of the offending notwithstanding s16A(2AAA)(b).
Finally, Mr Tuckey submitted that the difficulty Mr Jones will face in a custodial setting as a result of his age, mental condition, the nature of his offending, the possibility of protective custody and the COVID-19 pandemic would make a full-time custodial sentence particularly onerous. I agree with this submission.
It all the circumstances of this case, Mr Tuckey submitted that a period of imprisonment with immediate release under a recognizance release order would meet all the purposes of sentencing.

The probable effect that any sentence or order under consideration would have on any of the person's family or dependants

Dr Yousseff's notes that Mr Jones 'reported feeling guilty due to the burden his matter is having on his family, his parents in particular, both financially and emotionally'. Mr Tuckey submitted that the character references provided by all his immediate family members evidences their current distress which would be severely aggravated by incarcerating Mr Jones. It was also submitted by Mr Tuckey that a sentence would take a particular toll on Mr Jones' maternal aunt, who has been dealing with her husband's suicide. I do not doubt that the events the subject of these proceedings have been difficult for Mr Jones's extended family, but in my opinion the effects are nothing out of the ordinary, and I give this submission little weight.

Covid-19

The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence.
Corrective Services NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. At the date of this sentence, there is a significant outbreak in the prison population. The court understands that there are presently conditions include suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by an offender in custody, although the impact is difficult to quantify with any degree of specificity. I take the pandemic into account as a matter to synthesise on sentence.

Comparative Sentences In The Queen v Pham, (2015) 256 CLR 550, the High Court noted that a court sentencing for a Commonwealth offence must have regard to sentences that have been imposed in other states and territories. This is so that consistency in the application of the relevant legal principles can be achieved. I have been provided with comparative cases. Although some were of limited assistance, none were on all fours with the present case.

In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914, which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and Part 1B is not intended to operate as a code.
Pursuant to section 16A(1) of the Act, any sentence that I impose must be of a severity appropriate in all circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of the Act as are relevant and known to court. I have also been guided by the approach of McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26.

Sentence

I have taken into account the provisions of section 16A(1) and (2) of the Crimes Act referred to earlier in this sentence.
Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case.
In Hill v the Queen; Jones v the Queen [2010] HCA 45, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act, together with the application of principles identified in Power v R (1974) 131 CLR 623; [1974] HCA 26.
Where the sentence of imprisonment imposed is more than 3 years, the Court must fix a single non-parole period: s19AB.
In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is 15 years imprisonment.
Mr Jones, please stand.
You are convicted of the offence of access material using a carriage service, the material being child abuse material contrary to section 474.22(1) of the Criminal Code (Cth).
I sentence you to a term of imprisonment of 24 months.
I direct you to be released forthwith, and upon entering into a recognizance for 24 months pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) with security in the sum of $100, and with the conditions that you:- 1. be of good behaviour; 2. accept the supervision and guidance of Community Corrections for as long as that service consider appropriate. To facilitate that order you must contact the Coffs Harbour Community Corrections Office by 10 September 2021; 3. not travel interstate without the written permission of your probation officer; 4. undertake such treatment or rehabilitation programs that your probation officer reasonably directs; and 5. continue to have psychological counselling with Carollyne Yousseff or another psychologist nominated by your usual general practitioner for the next 24 months or for as long as your treating psychologist considers appropriate.
I refer you to Corrective Services NSW psychological services for risk management and treatment recommendations.
Mr Jones, do you understand the orders I have just made?

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2021

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