R v Kinnaird

Catchwords: CRIME — sentencing — guilty verdicts after trial — Commonwealth offences — offence under the Criminal Code Act 1995 (Cth), s 474.22(1) — use a carriage service to transmit child abuse material — use a carriage service to access child abuse material — use a carriage service to cause child abuse material to be transmitted to self — objective seriousness — close proximity between the offender and the creation of child abuse material — registrable person order

Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited: Minehan v R [2010] NSWCCA 140
R v Hutchinson [2018] NSWCCA 152

Category: Sentence

Parties: Rex (Crown)
Neil KINNAIRD (offender)

Representation: Counsel:
Ms Z Alderton (Crown)
Mr T Edwards SC (offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Anderson Boemi Lawyers (offender)

File Number(s): 2023/107254

Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies so as to prohibit the publication of any material which may identify or is likely to lead to the identification of any child victim in the proceedings.

JUDGMENT

Introduction

1. The offender, Neil Harry KINNAIRD, appears for sentence after being found guilty by a jury of the following three child abuse material charges pursuant to s 474.22(1) of the Criminal Code Act 1995 (Cth*)*.

2. Count 1 – Use carriage service to access child abuse material.

3. Count 2 – Use carriage service to transmit child abuse material.

4. Count 3 – Use carriage service to cause child abuse material to be transmitted to himself.

5. The maximum penalty for each offence is 15 years imprisonment. The maximum penalty serves as a legislative guidepost to be balanced with all other relevant sentencing considerations. This penalty makes abundantly clear the seriousness with which these types of offences are viewed.

Time in custody and commencement date

3. The offender was arrested and charged on 3 April 2023. He was refused bail and remanded in custody for two months until 2 June 2023 when he was granted conditional bail. Following the jury’s verdicts on 5 June 2025 the offender was again remanded into custody. These two months will be taken into account as pre-sentence custody and the offender’s sentence will be backdated to commence on 5 April 2025.

Sentencing for Commonwealth Offences

4. When sentencing a federal offender, Part 1B of the Crimes Act 1914 (Cth) (“the Act”) applies and a sentence should be imposed that is of a severity appropriate in all of the circumstances of the offence.

5. Section 16A(2) of the Act sets out a non-exhaustive list of matters that must be taken into account, to the extent that they are relevant and known to the Court. I have had regard to those relevant factors.

Nature and circumstances of the offending: s 16A(2)(a)

6. The offender gave evidence at trial and denied any involvement in the offences. His response to the Crown case was that it was a reasonable possibility that his phone was hacked by an unknown remote actor who then secretly manipulated his phone to engage in the offending. The jury must have rejected this.

7. Following a trial by jury, subject to certain constraints, it is a matter for the sentencing judge to determine the facts relevant to sentencing. The primary constraint on a sentencing judge is that the view of the facts adopted for the purposes of sentencing must be consistent with the verdict of the jury. Another constraint is that findings of fact made against an offender must be arrived at beyond reasonable doubt.

8. The following facts are established beyond reasonable doubt and are consistent with the jury’s verdict.

Background

9. In March 2023, the offender was 53 years old and lived at Baulkham Hills, Sydney. At the same time the co-offender, MT, was in a relationship with a woman who had two female children, HW (aged 9) and MB (aged 12). From time to time the children lived with MT and their mother at his premises on the Central Coast.

10. Prior to the events giving rise to the offending, the offender and MT did not appear to have known each other.

11. At about 5.17pm on 9 March 2023, NSW Police attached to the Child Exploitation Internet Unit executed a search warrant at an address at The Entrance, following information that MT was sharing child abuse material online in various chat groups. MT was arrested and taken into custody.

12. Following his arrest, HW and MB complained that MT had sexually assaulted them, and MT was charged with the sexual abuse of these two children and for the creation, possession and dissemination of child abuse material. Some of that child abuse material was transmitted to the offender. MT has not yet been sentenced for his offending.

The offending conduct

13. An analysis of the mobile telephone seized from MT at the time of his arrest revealed a Kik Messenger conversation between MT and the offender who was operating the Kik account with a username ‘Ausbiguy4u’.

14. The offender was the person who sent each of the messages, images, or videos attributed to “Ausbiguy4u” in Trial Exhibits D and E. Exhibit E is a schedule of the Kik Messenger communication sent between 4 March 2023 and 9 March 2023. Exhibit D is a Cellebrite download of the relevant Kik Messenger communication from MT’s phone for the same time period.

15. Although not all of the images and videos in Exhibits D and E constitute child abuse material, they are relevant and provide context to the offending. For example, during their conversations, the offender represented to MT that he had a teenage daughter ‘Abs’ whom he intended to engage in sexual activity with (although I note the offender has no children). At the same time, MT represented to the offender that he was sexually abusing two young female children in his care.

Count 1

16. On 5 March 2023 at around 4:12pm, the offender received Videos 1, 2 and 3 (as described in Exhibit E) from MT and he responded “Wow”.

17. Video 1 (Item 18, Exhibit E) is a 1 minute and 2 second video depicting two real prepubescent children, aged approximately 5 to 7 years old. The children are naked. One child is shown laying on her back on a bed. The second is shown laying on top of the first child, with her back to the first child. An adult male is shown inserting his erect penis into the vagina of one child then into the other. The child on top of the other then turns over and kisses the other child.

18. Video 2 (Item 19, Exhibit E) is a 59 second video of a real female child on all fours, between 5-10 years of age, naked from the waist down. The child is shown to be vaginally penetrated by an adult male penis. The adult removes his penis, following which semen drips from the child’s vagina into her hand.

19. Video 3 (Item 20, Exhibit E) is a 14 second video of a real prepubescent female child, aged approximately 4 to 6 years old. The child is laying on a bed naked. The child is shown being vaginally penetrated by an adult male penis.

20. These videos constitute child abuse material, and the offender accessed the child abuse material through the Kik messenger application on his mobile phone.

Count 2

21. On 5 March 2023 at around 4:19pm, the offender transmitted Image 2 (as described in Exhibit E) to MT via the Kik application on his mobile phone, which constituted child abuse material.

22. Image 2 (Item 23, Exhibit E) is an image of two real pre-pubescent female children, aged approximately 6 to 8 years old with their breasts exposed. The image depicts the children kissing.

Count 3

23. On 8 March 2023 at about 9:21pm MT asked the offender “Any advance on getting me a pic of your girl in her undies? Or getting me some? I can send you some of my girls when they get back”. The offender responded on 8 March 2023 at about 9.22pm, “I’ll have a go tonight”.

24. Between about 8 March 2023 and about 9 March 2023, MT transmitted child abuse material, namely Images 12-15 and 18-20 and Videos 11, 13-19, (as described in Exhibit E) to the offender via the Kik messenger application.

25. I will return to the details of these images and videos and the context in which the offender caused the material to be transmitted to himself later in my reasons, when I consider the objectives seriousness of this offence.

Arrest and interview

26. The offender was arrested on 3 April 2023 and taken to Baulkham Hills Police Station. When he was arrested, the NSW Police searched the offender and seized his phone. The offender was cautioned and provided police with his phone number and his phone access pin number.

A factual issue

27. The Crown submitted that based on the images and videos sent by MT, the content of their message communications and the identifying physical features of MT (namely his visible tattoos), that the Court would find beyond reasonable doubt that at the time of his offending, the offender must have been aware that MT had access to his two stepdaughters and was or had committed sexual acts upon them. After assessing the evidence, I am satisfied that the offender must have been aware of this at the time he committed the offences. This is a significant aggravating feature, and I will return to this when I assess the gravity of the offending.

The personal circumstances of any victim and any injury resulting from the offence: s 16A(2)(d) and (e)

28. The personal circumstances of any victim and any injury resulting from the offences is also a relevant consideration. Although the personal circumstances of the children captured in the videos and images is not known, given the ages of these children, and the vile acts they were exposed to, it is, as the Crown submitted, an inescapable conclusion that significant physical, emotional and psychological harm was inflicted upon each child victim.

The offender’s subjective case: s 16A(2)(e)-(h), (j), (m)

29. The offender is now 56 years old. He is married and has an elderly mother who suffers dementia and is currently in full-time respite care. The offender was working as a Managing Director of his own IT consultancy business at the time of the offending.

Criminal history

30. The offender has no criminal history. He will receive the leniency that is afforded to an offender without any criminal history and who is of prior good character.

Offender’s materials

31. At sentence the offender relied upon a bundle of material that included a psychological report by Dr Jenna Bolliinger dated 4 August 2025, character references by family members, including his wife, friends and work colleagues, and a medical certificate concerning his mother’s condition. The offender also called good character evidence at the trial.

Psychological report

32. The offender’s background is summarised in Dr Bollinger’s report, which includes the offender’s developmental history, education and work history, relationship and sexual history, drug and alcohol use, medical and psychiatric history. Dr Bollinger also administered several psychometric tests and provided an opinion in relation to the offender’s underlying mental health issues.

Development history

33. The offender is the second of two children born to his parents. His father worked as a boilermaker, estimator and later for the Department of Defence. The offender noted that his father was from a working-class background and emigrated from Scotland when he was 15. The offender said that his father had been exposed to domestic violence and as a result he was “hard” as a father who rarely praised his efforts, and he received most of his support from his mother. The offender reported that his parents got along well. Although he was subject to corporal punishment at home, he said his father was not violent due to his own childhood experience. His father died in 2014 from mesothelioma two years after his diagnosis and his death was traumatic for the offender.

34. The offender reported a damaged relationship with his brother, and they no longer have contact. The offender reported that his brother physically assaulted, threatened and teased him during their childhood and that his verbal bullying affected him and continued into adulthood.

Education and work history

35. Although the offender reported some childhood bullying, his education and work history was largely successful, with the offender achieving a bachelor’s degree and going on to work consistently in different professional jobs.

Relationship and sexual history

36. The offender reported having three significant relationships, the longest being with his current wife of 22 years who continues to support him. He described his sexual interests as “mainstream”, and given his denials of the offending, denies he has any sexual interest in children.

Psychiatric history

37. The offender has never been diagnosed with any mental disorder. However, he reported experiencing some mental instability – feeling anxious, low mood, social withdrawal, heightened mood and some feelings of claustrophobia. Following his arrest, the offender had ten sessions with a psychologist but said that although he found it helpful, it became “repetitive”, and he discontinued treatment.

Psychometric testing

38. Dr Bollinger administered a series of psychometric tests. These included a Depression, Anxiety, and Stress Scale, a Drug Use Questionnaire and an Alcohol Use Disorders Identification test.

39. The test results indicated the offender was at an intermediate risk for drug use and low risk for alcohol use, had normal levels of stress and anxiety with severe levels of depression. The offender also returned results that indicate that he may be eligible for a diagnosis of PTSD based on symptoms that had worsened since his arrest but may also relate to earlier sibling bullying.

Opinion

40. Ultimately Dr Bollinger was of the opinion that the offender “displays symptoms of major depressive disorder, however, is subthreshold for a diagnosis*. He experiences periods of low mood, low motivation and ruminative thoughts. These do not appear to extend to a level that interferes with his functioning, however”.*

41. Dr Bollinger was also of the opinion that the offender “...meets the criteria for generalised anxiety disorder and post-traumatic stress disorder (PTSD), related to bullying from his brother and police involvement.”

Other material

42. The character references tendered by the offender all indicate that the offender is highly regarded by family, friends and work colleagues and they continue to support him. The offender’s wife also provided a letter attesting to her continued support of the offender and provided information about the offender’s more recent responsibilities for the care of his mother.

Sentencing considerations

Sentencing principles for Child Abuse Material offences: s 16A(2)(ja),(j) and (k)

43. There are well-settled principles that relate to sentencing offences involved in the online sexual exploitation of children. Child abuse material is an international problem which has attained prominence in the internet age and continues to plague and damage the community. The courts have repeatedly stressed the need when sentencing for such matters to give primacy to general and specific deterrence and denunciation.

44. General deterrence generally requires harsh penalties be imposed. Such penalties are designed to signal what will happen if an offender is caught and hopefully deter people from offending. Although sadly, such penalties have not appeared to have dented the production and dissemination of such deviant and depraved conduct.

45. A reason for the heavy penalties is that those inclined to exploit children by involving them in the production of child pornography or child abuse material are encouraged by the fact that there is a market for it. Those who make up the market cannot escape responsibility for the exploitation of these real child victims.

46. It is also important to keep in mind that the possession of child abuse material is not a victimless crime and where the material remains in the community the offence creates significant ongoing harm.

Assessing the objective seriousness of the offending

47. The approach to be taken to the assessment of the objective seriousness of child abuse material offences and the factors that are relevant to that task is well-known. See Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94], as summarised in R v Hutchinson [2018] NSWCCA 152 at [44]-[45].

Count 1

48. In relation to Count 1 the offender accessed three videos sent by MT using an application on his phone. This is a relatively small number of items of child abuse material in comparison to the quantity of items frequently accessed by offenders charged with this offence. The videos are also of short duration (between 14 seconds and around one minute), contained no abject cruelty or torture, with no risk of the material being seen by children with the offender, and the interaction between the offender and MT began in an opportunistic way and only occurred over several days. However, the depravity of the material is not at the low end of offences of this nature. There were four real child victims, who were all very young (being approximately between 4-6, 5-7, and 5-10 years old), and shown naked, engaging in offensive and degrading penile/vaginal penetrative acts.

49. Taking into account these matters, I find the objective seriousness of this charge to be below the mid-range, but not at the lowest end of the range.

Count 2

50. Count 2 involves the offender transmitting one image to MT using his phone. The image was of two real prepubescent children aged between 6-8 with their breasts exposed and kissing. The depravity of the single image is far less than frequently seen in child abuse material. I find that this offence falls towards the bottom of the range, though given there are two real victims of younger ages, not at the bottom.

Count 3

51. Count 3 is by far the most serious of the three offences.

52. The Crown submitted, and I accept, that whilst Count 3 is particularised as ‘Between about 8 March 2023 and about 9 March 2023’, the surrounding context of the offender’s communications with MT starting on 5 March 2023 is relevant as to how the offender “caused” child abuse material to be transmitted to himself on 8 and 9 March 2023, and also to the assessment of the gravity of this offending.

53. The Crown case at trial was that the offender “caused” material to be transmitted to himself in two ways.

54. Firstly, through express requests of MT for child abuse material:

(a) Messages 60, 62-64: MT told the offender that his “youngest one can deep throat”. The offender said (message 64) “Love to see that”. (b) Message 67-68: The offender said to MT “Need some more vids to wank to” and “Not just your girls”.

55. Second, the offender cultivated the impression that he had a daughter that he was engaging in sexual acts with. He cultivated this impression through words he said to MT, and by sending images and videos to MT, including of a sexual nature, that the offender represented depicted his daughter. The offender did this so that MT would send him child abuse material, specifically images and videos of MT sexually abusing his stepdaughters.

56. The Crown’s case at trial was that the offender knew that MT expected material depicting the offender’s ‘daughter’ in exchange for images and videos from him and it was expressly put to the offender that he knew that: “…the only way [MT] was going to send you child abuse material of him sexually assaulting his daughters is if you sent him something in exchange…” (T30.05.25, 265.10-15)

57. The following specific messages (by reference to Exhibit E) are also relevant to the offender’s conduct.

(a) Messages 15 and 16: The offender sent an image of a young female person performing fellatio on an adult male (not alleged to be child abuse material), followed by the message “Not my girl”. By this exchange the offender was implying to MT that he had a ‘girl’. (b) Messages 26-40: MT said, “I would love to see a new pic of your girl*”**.* The offender said he had some “moring [sic: morning] action” and that he got “Pretty far”. MT asked, “Your girl” and the offender said “Yup”. The offender then sent MT video 5 (message 38). This video is not child abuse material but depicted a female, age difficult to determine, performing fellatio on an adult male. MT responded, “Does she know about me and my girls” and the offender responded, “Yes it got me to this point” (message 40). By this exchange the offender represented to MT that Video 5 was a video of his daughter performing fellatio on him. (c) Messages 48-59, and 61: The offender represented that he was going to show his daughter ‘videos’ of ‘teens fucking… to show its normal’. MT then said to the offender “Show her me and my girls”, and “Just tell her I’m your friend. And you know I do it with my girls”, and that if the offender’s daughter had any questions that she could ask MT’s girls. At message 61 the offender said, ‘I’ll see if she will record a question’. In this exchange, in particular messages 48, 50 and 61, the offender represented to MT that he was going to show his daughter pornography, and ‘maybe’ show her videos of MT and his daughters. (d) Message 106-107: These are messages sent by MT to the offender requesting images of the offender’s ‘beautiful girl’. These messages demonstrate MT’s expectation that the offender would send him child abuse material. (e) Messages 113-114: The offender said to MT ‘Looking forward to hearing from your girls’ and ‘Mine will be keen to ask them questions’. The offender represented here that he had a daughter who would be interested to talk to MT’s stepdaughters about their experience of engaging in sexual acts with MT. (f) Messages 116-122: The offender asked MT if his girls were ‘up’, that he was ‘chilling with a beer and seeing if Abs wants to ask questions’. MT asked if the offender wanted to ‘talk to my girls’, and the offender clarified ‘More for my girl’. Again, the offender here represented to MT that he had a daughter who would be interested to talk to MT’s stepdaughters about engaging in sexual acts with MT. (g) Message 135-150: MT asked the offender if he had a ‘pic of your girl in undies’ and said, ‘I can send you some of my girls when they get back’ (message 135). The offender then said, ‘I’ll have a go tonight’ (message 136), and shortly after sent MT images 6, 7, and 8, being images that the offender obtained from the internet. The offender here represented to MT that those images were images of his daughter.

Images 12-15 – Child abuse material

58. After the offender sent MT the messages and images at 135-150, MT then sent the offender images 10-15. Each of those images depict the 12-year-old female in MT’s care. Images 12-15 are child abuse material.

59. Image 12 is an image of the child in a bedroom having lifted her top to expose her breasts. She is wearing a short sleeve top and underwear.

60. Image 13 depicts a ‘close-up’ of the child’s vagina. The child is shown laying on a white bed spread with MT’s penis at the top of her vulva. A bottle of lubricant is also shown on the bed.

61. Image 14 depicts the child sitting in a ‘W’ position on the floor of the lounge room. The child is wearing a black singlet, black G-string underwear and socks.

62. Image 15 depicts MT engaged in penile penetration of the child’s vagina. The image depicts MT laying on the bed, with the child facing away from him, on all fours.

63. The following messages were then exchanged between the offender and MT.

(a) Message 166, 171-173: The offender then sent MT Image 16. This image is not child abuse material but is a young female wearing the same clothing as the young female depicted in Image 7 and 8. At message 168 MT asked the offender, ‘She let you take these’. The offender then responded (message 173), ‘Yes she did’. Again, the offender here expressly represented that the young female depicted in Image 16 was his daughter and that she had allowed him to take that photo.

Image 18 and Video 11 – Child abuse material

64. After the offender sent MT Image 16 (at 10.14pm on 8 March 2023), MT then sent the offender further child abuse material, being Image 18 (an image of the same 12-year-old in MT’s care), and Video 11.

65. Image 18 depicts the child standing in underwear in a state of undress. The child is wearing a white bra and black underwear.

66. Video 11 is a 27 second video of a child, approximately 12 years old, bent over being vaginally penetrated by an adult male.

67. Five minutes after receiving Video 11 the offender responded to MT, “Yeah I’ve seen that…Got any other young one to show Abs? Doesn’t have to be your girls” (Messages 184 and 185). This was an express request by the offender for child abuse material that the offender represented he wanted to show his “daughter”.

Images 19 and 20 and Videos 13-19 – Child abuse material

68. A few hours later MT sent the offender Images 19 and 20 and Videos 13-19.

69. Image 19 depicts a 9-year-old female child in MT’s care lying face down on a bed watching television with MT’s hand on her clothed buttocks.

70. Image 20 depicts a real prepubescent female child approximately 4-6 years old holding an erect adult male penis which is inserted into the child’s mouth.

71. Video 13 is a video of a 12-year-old child in TM’s care, holding and masturbating MT’s penis.

72. Video 14 is a video of the 9-year-old child clothed and inserting MT’s penis into her mouth.

73. Video 15 is a 1 minute and 2 second video depicting two real prepubescent children, aged approximately 5-7 years old. The children are naked. One child is shown laying on her back on a bed. The second child is shown laying on top of the first child, with her back to the first child. An adult male is shown inserting his erect penis into the vagina of one child then into the other. The child on top of the other then turns over and kisses the other child.

74. Video 16 is a video of a real prepubescent female child being vaginally penetrated by an adult male penis.

75. Video 17 is a one minute and 50 second video depicting a real prepubescent child, aged approximately 6-8 years old. The child is naked and being vaginally penetrated by an adult male penis.

76. Video 18 is a video depicting an adult male attempting to force their penis into the mouth of a real prepubescent female child.

77. Video 19 is a one minute and 30 second video depicting a real prepubescent female child, aged approximately 6-8 years old. The child is wearing a dress with no underwear, with a ‘close up’ on the genitals of the female child in a solo masturbation act. Towards the end of the video an adult male rubs his erect penis on the child’s vagina.

Count 3 - objective seriousness

78. In assessing the objective seriousness of Count 3, I have taken into account the following factors:

79. The interactions between the offender and MT were limited to a 3–4-day period. This is relatively short in duration.

80. The number of images is low, and the videos are of relatively short duration.

81. There was no depiction of cruelty or torture or other physical harm, other than that inherent in the sexual abuse against children.

82. Real children were used in the creation of all the material.

83. The ages of the children depicted in the images and videos range between 4 and 12 years old.

84. Images 12-15, 18-19 and videos 13-14 depict two female children aged 9 and 12 that MT at times had in his care. This included videos and images of these two child victims respectively engaged in graphic sexual activity with MT, including penetrative sexual activity and fellatio.

85. The offender was in close and immediate proximity to the person who was responsible for bringing that material into existence. The offender well knew that MT had engaged in sexual activity with the two children depicted in the child abuse material that he was seeking.

86. The offender’s conduct in causing the material to be transmitted to him went well beyond a simple request for the material. Whilst his method of obtaining the material was not particularly sophisticated, it involved the offender utilising a degree of deception and manipulation to encourage MT to provide him with the child abuse material. The offender obtained images from the internet that he represented to be his named daughter whom he intended to engage in sexual activity with, so as to encourage MT to share child abuse material with him. The offender then expressly requested the child abuse material, actively encouraged MT and positively responded to being sent the child abuse material.

87. Mr Edwards SC, counsel for the offender, submitted that the objective seriousness for this count was “around the mid-range” and that but for the close proximity between the offender and the creation of the material, it would fall far lower in the range.

88. Mr Edwards SC also submitted that when considering this issue of proximity, the Court would take into account the fact that shortly before the material was sent to the offender, MT asked the offender if he wanted to talk to “my girls”**, and when the offender responded, “More for my girl but yeah”, that MT then informed the offender, *“*Ok they ain’t back till 7 days.” (at items 121-123 Exhibit E)

89. However, the Crown submitted that having regard to the factors I have referred to, the objective seriousness of Count 3 falls above the mid-range, and towards the higher range.

90. Having regard to these factors, I agree with the Crown and assess the objective seriousness of Count 3 as being a very serious example of this type of offending, falling above the mid-range and towards the higher range. The close proximity between the offender and the creation of this material, along with the offender’s surrounding encouragement, supports this finding. The fact that the offender was told that MT did not again have access to the two child victims for a week does not reduce or mitigate this aspect to any great extent.

Sentence considerations

Moral culpability – Background and mental illness considerations

83. An offender will be less morally blameworthy for an offence where the offender’s background explains or otherwise sheds light on the offending or where a mental condition contributed to the offending in a material way.

84. There is no support for a finding here that the offender’s upbringing or psychosocial background would reduce his moral culpability for the offending or moderate the weight attributable to general or personal deterrence.

85. I note that Dr Bollinger found that the offender’s symptoms of a major depressive illness were “sub**threshold for a diagnosis” and I do not find on balance that his mental health issues contributed to the offending in a material way.

86. However, the offender’s earlier experiences of bullying and ill treatment generally by those older than him and his more recent mental health issues are relevant subjective considerations and will be taken into account as part of the instinctive synthesis when determining the appropriate sentence. I will also take into account the way the offender’s background and mental health issues mean that his time in custody will be more onerous.

Hardship to family

87. In determining the appropriate sentence, I have also taken into account the probable effect that the sentence will have on the offender’s immediate family, including his wife. I accept that the impact on the offender’s mother will be significant given that he was solely responsible for her care before she was taken into respite care, and that due to her condition it will be difficult for her to understand his absence.

Contrition and Remorse

88. The offender maintains his innocence and continues to deny the offences. Accordingly, the offender has shown no contrition or remorse for his offending conduct.

Prospects of rehabilitation

89. Mr Edwards SC submitted that despite this absence of remorse, the Court could make a positive finding with regards to the offender’s prospects of rehabilitation. In support of this the offender points to his current age and prior good character, the short duration of the offending, the likely deterrent effect of his time in custody, the close support network of family and friends available to him, and that he has ongoing treatment available for his mental health issues.

90. Although remorse is not a prerequisite to an assessment that an offender has some prospects of rehabilitation, the failure to acknowledge wrongdoing, and to accept responsibility for it, are features of relevance to the assessment of an offender’s prospects. An offender who will not admit wrongdoing is very likely to be compromised to some degree in their capacity to reform the conduct that led to them committing the offence. I find that to be the case here.

91. Given the nature of the offender’s conduct involves a demonstrated sexual interest in children, and his lack of insight, despite the matters raised by Mr Edwards SC, I find the offender’s prospects of rehabilitation to be guarded. I am also unable to find that the offender is unlikely to re-offend in a similar way.

The objective of rehabilitation

92. I have separately considered s 16A(2AAA) of the Act. This requires the Court to have regard to the objective of rehabilitating the offender, including by considering whether it is appropriate to impose conditions about rehabilitation or treatment options (when making an order), and in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake any rehabilitation program.

93. However, the objective of rehabilitation does not displace the requirement for a sentence to be of a severity appropriate in all of the circumstances of the offence. The principal purpose of rehabilitation is to protect the community by ensuring the offender is required to undertake treatment in custody or upon release to prevent reoffending.

94. There will be a sentence of immediate imprisonment imposed. However, I will include a condition of release that the offender be supervised by the Department of Community Corrections, and such supervision includes compliance with all reasonable directions as to ongoing treatment and counselling with a suitably qualified health professional.

Instinctive Synthesis

95. The intuitive process of sentencing involves synthesising the objective seriousness of the crime and the subjective circumstances of the particular offender to arrive at a sentence that best meets the purposes of sentencing.

96. There are a number of sentencing considerations that are relevant when considering the appropriate sentence for the Commonwealth offence. There are some similar sentencing considerations that are relevant when considering the State possession offence.

97. These purposes of sentencing often overlap and may point in different directions and reach different conclusions. Of necessity, the promotion of the rehabilitation of the offender, if successful, is the best way of ensuring the offender does not commit further similar offences. Despite the promotion of rehabilitation, a different conclusion or different synthesis may be arrived at when factoring into the sentence adequate punishment, denunciation of the conduct and recognition of the harm to the community or victim.

98. In any event, each of the purposes of sentencing are guidelines to the fixing of an appropriate sentence and none of them can, nor should, be considered in isolation.

99. I will balance all these purposes when sentencing this offender and apportion the appropriate weight to each in the process of assessing the necessary sentence by way of instinctive synthesis.

Determination

100. I have already noted that general and deterrence is a primary consideration for offending involving child abuse material.

101. Mr Edwards SC submitted that given the offender’s background, any time the offender spends in custody would sufficiently deter the offender such that there is limited need for personal deterrence. I disagree. Given the offender’s lack of insight, and my finding in relation to his prospects of rehabilitation and unlikelihood of re-offending, I consider personal deterrence to be an important sentencing consideration. There is also a need to denounce the conduct of the offender and to recognise the harm done to the victims involved and to protect a vulnerable class within the community.

102. Taking into account these matters, along with the s 16A factors, I am satisfied that in all the circumstances no sentence other than full-time imprisonment is appropriate for all three offences. Although Count 1 is much less serious than Counts 2 and 3, given the fact that it is not an isolated offence and having regard to the nature of the offending, the surrounding circumstances and the relevant sentencing considerations, I find that all three offences cross the threshold.

Accumulation and totality

103. Determination of questions of concurrency and accumulation of federal sentences is governed by s 16A(2)(k) of the Act to ensure that the offender is adequately punished for the offence. However, the principle of totality is applicable. Ultimately, the overall sentence must reflect the total criminality of all of the offences for which the offender is to be sentenced.

104. There is also a presumption in favour of full accumulation when a court is sentencing an offender for a Commonwealth child sex offence. This requirement does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances. If the court does so, it must state its reasons for imposing the sentence in that manner.

105. Given that there is great degree of overlap as between the three counts, as the offending is linked in time, nature and motivation, I am satisfied that full accumulation is not warranted. However, as the charges of accessing the child abuse material (Count 1) and transmitting material (Count 2) reflect different criminality and additional children, there will be a small degree of accumulation. As Count 3 is a far more serious, separate and distinct aspect of criminality that appears to be the culmination of a course of conduct, there will also be a small but a greater degree of accumulation with Counts 1 and 2.

Setting the sentence in this case

Comparative Sentences

106. I have had regard to the sentencing statistics and the table of cases relating to similar offences provided by the offender. Obvious limitations apply to the use that can be made of statistics and sentences imposed in other cases. The Court must make its own independent assessment of the particular case. The Court must identify the limits of the discretion by reference to the facts of the case before it. Ultimately, the sentencing discretion is individual and must be exercised by the judge in respect of the individual offender and the particular offending. Nevertheless, viewing comparable cases in an overall and broad way can provide some measure of the types of sentences passed in similar (although not identical) circumstances.

The overall sentence arrived at

107. In my view a sentence of full-time imprisonment of more than three years is required. Where the sentence of imprisonment imposed is more than 3 years, the Court must fix a non-parole period.

Indicative sentences

108. An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is currently available for federal offences.

109. As I will impose an aggregate sentence, I must set out the sentences that I would have imposed had separate sentences of imprisonment been imposed for each offence and I indicate the following:

110. For the offence of Transmitting Child Abuse Material using a carriage service (Count 2), a sentence of 6 months**.**

111. For the offence of using a carriage service to access Child Abuse Material (Count 1) a sentence of 1 year and 6 months**.**

112. For the offence of using a carriage service to cause Child Abuse Material to be transmitted to himself (Count 3), a sentence of 5 years.

Orders

113. Convictions are recorded for each of the three counts.

114. The aggregate sentence imposed is 5 years and 10 months imprisonment commencing on 5 April 2025 and expiring on 4 February 2031. There will be a non-parole period of 3 years and 6 months commencing on 5 April 2025 and expiring on 4 October 2028. If you are granted parole at the end of that time, you will serve the balance of the sentence, being 2 years and 4 months, in the community.

115. If you are granted parole, the order will be subject to conditions determined by the relevant parole authority and may be amended or revoked. If you fail, without reasonable excuse, to comply with the conditions of your parole, parole may be revoked, and you may be taken back into custody to serve the remainder of the head sentence.

116. To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management.

117. I also direct that a copy of the psychological report of Dr Bollinger be supplied to those responsible for the supervision of the offender.

118. I also order that, pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Commonwealth Director of Public Prosecutions, the following item be forfeited to the Commonwealth:

(a) One (1) Samsung mobile phone (Exhibit number X0003301013)

Child Protection Registration Order

The Order

119. Each of these three offences is a registrable offence under the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”) and pursuant to s 3C of that Act I will make a single Registrable Person Order (“RPO”).

The specified period of the RPO

120. The Court must also specify the reporting period for the RPO calculated in accordance with section 3I of the CPOR Act, having regard to the offences for which the offender is sentenced.

121. These three offences are Class 2 offences under the CPOR Act. Section 3I(b)(ii) ordinarily requires the Court to specify a reporting condition of 15 years as a finding of guilt has been made for each of the three Class 2 registrable offences.

122. However, pursuant to section 2E, the Court may exercise its discretion to treat those registrable offences as a single registrable offence, such that a reporting period of only 8 years would be required, “if satisfied it is appropriate to treat the offences as a single offence.”

123. Section 2E provides a non-exhaustive list of relevant considerations. Mr Edwards SC, on behalf of the offender, has submitted that having regard to those matters and in particular the fact that they are linked in time and motivation, that the Court would find that it is appropriate to treat the offences as a single offence.

124. However, for the reasons identified by the Crown in their written submissions in MFI 3, I find that it is not appropriate for the Court to treat the three offences as a single offence. My reasons for doing that are as set out in the submissions and can be identified as follows.

125. Firstly, in light of the criminality involved in the offender’s conduct, specifically in relation to count 3, that the offender expressly requested child abuse material from MT, cultivated the impression that he had a daughter he was engaging in sexual acts with so that MT would send him child abuse material of him sexually abusing his stepdaughters and, further, that it was proximate to real child victims.

126. I have considered Mr Edwards’ submission in relation to the way to approach the objective seriousness of that. I nonetheless take that into account as a relevant consideration when considering these matters. I put count 3 in a slightly different category to counts 1 and 2. The sophistication involved in this offence and the offender’s knowledge that there were two real victims being offended against, relatively contemporaneously, militates strongly against any finding that it is appropriate to treat count 3 as a single offence together with counts 1 and 2.

127. Further, the Court must consider whether the offences are of the same kind. The three offences are created by the same provision and plainly are of a similar nature as submitted by the Crown, however I find that there are distinct aspects to each offence.

128. Count 1 relates to accessing child abuse material, count 2 to transmitting and count 3 to causing material to be transmitted to himself. In each offence the offender engaged in different conduct and, again, this militates against a finding that it is more appropriate to treat the offences as a single offence.

129. Further, I must consider whether the offences were committed against the same person. As the Crown submits, this factor does not sit neatly with the nature of the offending in this case where the criminality of the offender’s actions is receiving child abuse material from, or transmitting child abuse material to, one particular person, however I agree that it is relevant that there is more than one child victim depicted in the material which was transmitted. The child abuse material referable to counts 1, 2 and 3 depicts at least four separate child victims, two of whom have been identified and were at close proximity to the offender through MT.

130. I have also considered whether the offences were committed at the same time or close together in time. The offences were not committed at the same time, however they were committed close in time as they were committed over a period of approximately five days. I have taken that into account in the question of exercising the discretion.

131. In light of the matters that have been identified and which I have referred to, I make a finding that it is not appropriate for the Court to treat the three offences as a single offence and accordingly, the Crown submissions are accepted.

132. The reporting period for the RPO will be 15 years. It will begin when the offender ceases to be in government custody for the offences.

Notice Requirements

133. I am required to arrange for the following to be given to the offender including, as he is not physically present in the court, a copy of the order, written notice of the offender’s reporting obligations, and the consequences of failing to comply with his reporting obligations.

134. I am also required to verbally explain the matters specified in the notice to the offender in language that is readily able to be understood, and the Crown has provided, for assistance, an outline of what the Court may say to the offender. I agree that that is an appropriate way to explain what is to occur to Mr Kinnaird.

135. Mr Kinnaird, I now need to explain to you what a registrable person is and the obligations that you have under that, and the consequences for failing to comply with that order.

136. Firstly, the Court has made a registrable person order under the relevant Act, which is the CPOR Act. That makes an offender a person required to be recorded on the New South Wales Child Protection Register. The period of your order will be 15 years, commencing from the date of your release from custody. The end date of that reporting period may be automatically extended for a number of reasons including if at any time you remain in custody. You will be subject to reporting obligations throughout this reporting period.

137. There is an ongoing obligation to make reports of particular information to police within a particular time period. Further, a written notice of your reporting obligations will be issued to you for your signature and acknowledgment, and you will be notified of these various reporting obligations. You should read the document carefully and seek legal advice if you do not understand any aspect of that document that you receive.

138. Your reporting obligations include that you will need to make an initial report to a police station, attending in person with identification documents within five days after your release from custody or otherwise after the date of sentence. You must complete an initial personal information report providing various personal information, including with respect to your address, any identifying marks or tattoos you have, your work, your club or organisation affiliations, any cars that you use, your use of communication devices and services, any prior criminal record or time in custody in New South Wales or elsewhere.

139. You must also provide information in relation to your passport details, any travel outside of New South Wales and any contact or residence with a child. Further, throughout your reporting period you must then report in person to a police station within a specified period of time. If there are relevant changes to relevant reportable circumstances, you must also report in person to a police station to complete an annual report each year.

140. Further, you must also report information with respect to any intended international travel or travel within Australia outside New South Wales, and after returning to New South Wales.

141. Further, during the reporting period you may also, without notice, be subject to checks by the police to ascertain if you are complying with your reporting obligations and under a section of the CPOR Act, police hold powers to enter any property or vehicle to conduct these checks and may require you to cooperate with police in gaining access to data held in any electronic device.

142. Finally, there are sections of the CPOR Act which provide for offences of failing without reasonable excuse to comply with the reporting obligations, or of furnishing false or misleading information in connection with the complying with reporting obligations. Such offences are punishable by imprisonment of up to five years or a fine of $50,000, or both. As I indicated, a document will be provided which will be written notice of these obligations and the consequences of complying with those reporting obligations. Mr Kinnaird, that document will be provided to you while you are in custody.

143. I must also, as soon as practicable after the order is made, arrange for a copy of the order to be given to the Commissioner of Police and the supervising authority for the offender.