R v Large

District Court of NSW|2021-07-16

Solicitors: Ms Lo, Solicitor for the ODPP Ms Hoile, Solicitor for the Defendant File Number(s): 2020/00218989

Judgment

The offender was born on the 3rd of July 1960. He was 60 years of age at the time of offending.
He is to be sentenced for the following offences:

SEQUENCE 4: A single offence pursuant to section 474.22(1) of the Criminal Code Act 1995 (Cth), that on or about 20th of July 2020 did use a carriage service to make available material, being child abuse material, available via Telegram to "Larry Boyle"; maximum penalty 15 years imprisonment; minimum penalty 4 years imprisonment (the "distribution offence") and
SEQUENCE 6: A single offence pursuant to section 474.22A of the Criminal Code Act 1995 (Cth), that on or about 27 July 2020 did possess or control child abuse material obtained or accessed using a carriage service; maximum penalty 15 years imprisonment, minimum penalty 4 years imprisonment (the "possession offence").

AGREED FACTS

I incorporate the whole of the Agreed Facts. Arrest and Search Warrant 1. On 16 June 2020, the Australian Federal Police ('AFP') received a referral relating to a user called 'geoff.large' uploading child abuse material ('CAM') onto the internet. 2. Records revealed that the user was registered with the name 'Geoff Large' and the mobile phone number '+61426892509'. 3. On 27 July 2020, AFP officers executed a s.3E Crimes Act 1914 (Cth) search warrant at 38 Emerson Street, Shalvey, New South Wales ('the premises'), being the residence of Geoffrey Lyle LARGE ('the offender'), who was present during the execution of the search warrant. 4. AFP officers located and seized of the following data storage devices belonging to the offender at the premises: a. grey and silver SanDisk USB (serial number 4C53000130625109443); b. A black and red SanDisk USB (serial number BL180726204Z); and c. A white 1GTB SD Trek USB (serial number TDMG12M1GB080700122). 5. A black Samsung A20 mobile phone was located seized from the offender's person. 6. During the search warrant, the offender made admissions that in his vehicle, there was a phone which contained CAM. AFP officers executed a search warrant on the Silver Mazda Tribute (NSW registration CP52CM) on the premises and located the following devices: a. A black Alcatel Smartphone (IMEI 356267094249393); and b. A black LG Smartphone (IMEI 358944100354627). 7. The offender was arrested, cautioned and provided his Part 1C Rights. He was thereafter conveyed to the Mount Druitt Police Station and charged. He declined to participate in a recorded interview with AFP Officers. Sequence 4: S.474.22(1) of the Code - Use carriage service to make available CAM to 'Larry Boyle' 8. Examination of the offender's black LG smartphone revealed that the offender was signed into the 'Telegram' application under the username 'Geoff Large'. There was a profile picture depicting the offender. 9. On 20 July 2020, the offender engaged in a chat with a user named 'Larry Boyle', during the course of which the offender transmitted a MEGA link which contained files comprising of CAM, which were organised into subfolders. 10. Telegram is a cloud-based instant messaging and voice service with end-to-end encryption. MEGA is a secure user-controlled end-to-end encrypted cloud storage and communication service. 11. CAM is defined in section 473.1 of the Criminal Code (Cth). Material identified by AFP as CAM is classified into categories as per the Interpol Baseline 4 Tier Categorisation System. This categorisation system makes reference to the activity depicted in the CAM as follows:- Category 1 - Child abuse material - real child, prepubescent under 13 years of age, involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region; Category 2 - Child abuse material - other illegal content, child under 18 years of age; Category 3 - Non-illegal/indicative of interest in children; Category 4 - Ignorable. 12. AFP review of the MEGA link made available by the offender to Larry Boyle revealed that it contained the following files which were classified as Category 1 on the INTERPOL scale: Filename File Location Description CAT 3yo Girl Held…r (sound).avi Mega/Folders/Literally Everything/cp 17 Folders/sub folder/pedo files (0-9yr old)/115 files 7 minute and 10 second video depicting a prepubescent female being vaginally penetrated by an adult male's erect penis. 1 VID.20200723 _155943_734. mp4 Mega/Folders/Telegram 1 minute and 11 second video of a prepubescent female being vaginally penetrated by an adult male's erect penis. 1

12a. The MEGA Link is an application that shares the contents of a folder on a computer, similar to "Dropbox" or other file sharing applications. Telegram is the program that was used to share the MEGA link with the other party. 12b. It is agreed that at the time the MEGA link was made available to Larry Boyle it contained numerous files, upon initial examination by police they observed the two files (which were those that are the subject of the charge and are described in paragraph 12 of the original Agreed Facts). The other files that were originally contained within the link were not reviewable at the time of forensic examination. Sequence 6: S.474.22A(1) of the Code - Possess and/or control CAM accessed or obtained using a carriage service AFP review of the metadata identified that the CAM had been obtained or accessed by the offender through use of a carriage service from platforms such as 'Telegram', 'MEGA', 'Facebook' and 'Memory Zone'. 13a. The material in the offender's possession was classified by Monica LOLHAM, a Federal Agent (FA) employed by the Australian Federal Police (AFP). 13b. Officer Lolham viewed the child abuse material in this matter for the purposes of categorisation. 13c. The totality of the material included items across the full age range from infants to 14 years of age. 13d. The majority of the material was of children under the age of 11 years. 13e. A sample of images chosen by Officer Lolham will be made available at the sentencing hearing. Grey and Silver SanDisk 64GB USB 14. Examination of the offender's grey and silver SanDisk 64GB USB revealed that the offender possessed a total of 173 image and video files which were conclusively sampled and classified as CAM. 130 items were classified as Category 1, and 43 items were classified as Category 2. 15. Examples of the files include: Filepath Description Created date Interpol Category MemoryZone\Backup\ Videos\MEGA\MES A Downloads\Video 2min 28 sec video of female approximately 7 years old, on her hands and knees being anally penetrated by an adult male's erect penis 13 June 2020 1 MemoryZone\Backup\ Videos\MEGA\MEGA Downloads\cp 5 min 10 sec video of female approximately 4 years old, laying on her stomach whilst her anus and buttocks are kissed and licked by an adult male, who then performs oral sex on her vagina 22 June 2020 1 \MemoryZone Image of a female approximately 1 year old, wearing a white coloured top and panties sitting on a naked adult male, with her legs spread between the male's penis. The male is laying on his back and a white substance appears from the male's penis and across his abdomen. Modified date 24 July 2020 1 \MemoryZone Approximately 6 year old female, laying on her back with her legs spread in the air, exposing her vagina and anus 13 June 2020 1 \MemoryZone\Backup \Photos\Telegram\ Telegram Images Female toddler, approximately 3 years old, being held down by an adult male whilst she is vaginally penetrated by another adult male's erect penis 21 June 2020 1 \MemoryZone Female approximately 4 years old, laying on her back with her legs spread in the air whilst an adult male's erect penis rests on her genital area 13 June 2020 1

Black and Red SanDisk 16GB USB 16. Examination of the offender's black and red SanDisk 16GB USB revealed that the offender possessed a total of 121 images and videos which were conclusively sampled and classified as CAM. 71 items were classified as Category 1, and 50 items were classified as Category 2. 17. Examples of the files include: Filepath Description Created date Interpol Category \MemoryZone Image of toddler approximately 1 year old, sitting on the shaft of an adult male erect penis with a white substance on the adult male's penis and abdomen. 24 July 2020 1 \MemoryZone Naked pre-pubescent female approximately 6 years old, exposing her breasts and vagina in a sexually suggestive position 24 July 2020 1 \MemoryZone Naked pre-pubescent female approximately 6 years old facing camera with breasts and vagina exposed 24 July 2020 1 \MemoryZone 26 second video of a female approximately 5 years old, being vaginally penetrated by an adult male penis 24 July 2020 1 \MemoryZone 2min 46 second video of a female approximately 5 years old being vaginally penetrated by an adult male's erect penis 24 July 2020 1

Black 2GB USB 18. Examination of the offender's Black 2GB USB revealed that the offender possessed a total of 73 images which were conclusively sampled and classified as CAM. 66 items were classified as Category 1, and 7 items were classified as Category 2. 19. Examples of the files include: Filepath Description Created date Interpol Category \My Received Files Pre-pubescent female, approximately 4 years old, holding and licking an adult male erect penis. 13 August 2012 1 \My Received Files A pre-pubescent female, approximately 8 years old, performing fellatio on an adult male erect penis 15 September 2012 1 \My Received Files A pre-pubescent female toddler, approximately 3 years old, laying on her back with her legs being held back by an adult. Her vagina is exposed and smeared with a white substance. 7 August 2012 1

White 1TB SD Trek USB 20. Examination of the offender's white 1TB SD Trek USB revealed that the offender possessed a total of 38 images which were conclusively sampled and classified as CAM. 25 items were classified as Category 1, and 13 items were classified as Category 2. 21. Examples of the files include: Filepath Description Created date Interpol Category \ An animation image of a naked pre-pubescent toddler, approximately 3 years old, with her legs in the air exposing her vagina 25 August 2011 1 \ A naked pubescent female approximately 10 years of age, standing with her hand on her hip and breasts and vagina exposed 24 August 2011 1 2011-10-01, Picture A pubescent female, approximately 13 years old, sitting on a couch with her legs spread, using her hands to expose her vagina 30 September 2011 2

Black Alcatel Smartphone 22. Examination of the offender's black Alcatel Smartphone revealed that the offender possessed a total of 81 images and 7 videos which were conclusively sampled and classified as CAM. 23. Examples of the files include: Filepath Description Created date Interpol Category Alcatel_503 3T Joy 1.zip/sdcard /Telegram/ Telegram video 1 minute and 58 second video of a female, approximately 4 years old, being vaginally penetrated by an adult male's erect penis. The adult male then ejaculates into and on her vagina. 26 July 2020 1 Alcatel_503 3T Joy 1.zip/sdcard /Telegram/ Telegram video 1 minute and 5 second video of a female toddler, approximately 2 years old, being orally raped by an adult male penis. The male then places the naked toddler on the shaft of his penis and uses his fingers to open her vagina. 26 July 2020 1 Alcatel_503 3T Joy 1.zip/sdcard /Telegram/ Telegram video 2 minute and 27 second video of a female, approximately 4 years old, performing fellatio on an adult male erect penis. The adult male then rubs and penetrates her vagina with his erect penis whilst she is semi-conscious. 26 July 2020 1 Media/Internal shared storage/ Android/data/ org.telegram/ messenger/ cache An image of a female approximately 4 years old being vaginally penetrated by an adult male erect penis 16 July 2020 1 Media/Internal shared storage/ Android/data/ org.telegram/ messenger/ cache An image of a naked female, approximately 6 years old, while an adult hand spreads her buttocks to show her anus and vagina 16 July 2020 1 Media/Internal shared storage/ Android/data/ org.telegram/ messenger/ cache An image of a naked female, approximately 4 years old, performing fellatio on an adult male erect penis 16 July 2020 1

Black LG Smartphone 24. Examination of the offender's black Alcatel Smartphone revealed that the offender possessed a total of 91 images and 20 videos which were conclusively sampled and classified as CAM. 25. Examples of the files include: Filepath Description Created date Interpol Category Media/Internal storage/ Telegram/ Telegram Video 1 minute and 57 second video of a naked female, approximately 4 years old, with her vagina being digitally penetrated by an adult male 21 July 2020 1 Media/Internal storage/ Telegram/ Telegram Video A 39 second video of a naked female, approximately 4 years old, performing fellatio on an adult male erect penis. The male then ejaculates in her mouth and she spits out a clear/white substance on his penis. 23 July 2020 1 Media/Internal storage/ Telegram/ Telegram Video A 1 minute and 31 second video of a female approximately 7 years old, on all fours whilst an adult male penetrates her from behind with his penis 23 July 2020 1 Media/Internal shared storage/ Android/data/ org.telegram. messenger/ cache An image of a 5 year old female performing fellatio on an adult male erect penis 23 July 2020 1 Media/Internal shared storage/ Android/data/ org.telegram. messenger/ cache An image of a naked 7 year old female sitting on the ground whilst a dog licks her vagina 20 July 2020 1 Media/Internal shared storage/ Android/data/ org.telegram. messenger/ cache An image of a naked 3 year old female, being vaginally penetrated by an adult male erect penis 21 July 2020 1

Black Samsung A20 mobile phone 26. Examination of the offender's black Samsung A20 mobile phone revealed that the offender possessed a total of 251 images and 13 videos which were conclusively sampled and classified as CAM. 27. Examples of the files include: Filepath Description Created date Interpol Category Media/Phone /Telegram/ Telegram video 21 second video of a female approximately 7 years old laying on a naked adult male, with his erect penis against the right hand side of her face, whilst a second adult male inserts his erect penis inside her mouth and proceeds to orally rape her. The child is distressed and can be heard crying. 6 June 2020 1 Media/Phone /Telegram/ Telegram video A 14 second video of a female, approximately 6 years old, performing fellatio on and licking an adult male erect penis 20 May 2020 1 Media/Phone /Telegram/ Telegram video A 1 minute and 33 second video of a female, approximately 5 years old, laying on her back whilst she masturbates an adult male erect penis. The female then performs fellatio and licks the adult male's erect penis. He then rubs his penis on her vagina and ejaculates a white substance on it. 6 June 2020 1

MEGA Account 28. Review of the offender's mobile devices confirmed that the offender had the MEGA application installed on both his LG smartphone and Samsung A20. 29. Review of the offender's MEGA account on the Samsung A20 confirmed that the offender had a folder within it titled 'Literally Everything' which contained CAM stored in subfolders including names such as: 'Boys1', 'Boys 4', 'Boys 5', 'Boys 6', 'Cp (momos copr)', 'Fuck', 'Kid Vids', 'More boys', 'Pedo-files (0-9yr old)'. 30. An example of the material stored on the MEGA folder is as follows: Filepath Description Created date Interpol Category Mega/Folders/Literally Everything/cp 17 Folders/sub folder/pedo files (0-9yr old)/115 files Video titled '3yo Girl Held…r (sound).avi', depicting a prepubescent female being vaginally penetrated by an adult male's erect penis. It is 7 minutes and 10 seconds in length. N/A 1

OBSERVATIONS OF AGREED FACTS

The totality of the child abuse material ('CAM') included children across the age range from infants to 14 years of age. The majority of the CAM depicted children under the age of 11 years. The descriptions given in the agreed facts do not include any infant younger than one year of age. For convenience, the following definitions have been adopted:

0 - 1 year old: Infant
2 - 3 years old: Toddler
4 - 7 years old: Early Years Child
8 - 12 years old: Pre-pubescent
13 - 14 year old: Child All the children depicted are female.

Whilst the offender did not give evidence, the parties adopted from [35] and [36] of the report of Ms Godbee, Forensic Psychologist, dated 17 June 2021, as told to her by the offender, that he was initially provided with the CAM by a person with whom he associated by connection on Instagram where they shared images of dragons and gothic art. On the suggestion of that person, he engaged the program Telegram and that person shared gothic art images through a link to a shared folder which contained CAM which the offender accessed. When the other person noticed that the offender was viewing the CAM, the person continued to upload more CAM files. The offender synced his computer and phone to the shared file and the material was downloaded.

SEQUENCE 4 - DISTRIBUTION
During the search the offender co-operated and assisted in relation to the distribution offence by telling AFP officers in his home that phones within his vehicle which contained CAM.
AFP examination of the offender's located phone in his motor vehicle revealed that on 20 July 2020 the offender engaged in a chat with a user named "Larry Boyle", during the course of which the offender shared a MEGA Link which contained files containing CAM, organised into subfolders.
The CAM distributed included 2 videos of Category 1 CAM: depicting pre-pubescent female victims being vaginally penetrated by an adult male's erect penis and a file named "3yo Girl Held…r (sound).avi" and a file location "Mega/Folders/Literally Everything/cp 17 Folders/sub folder/pedo files (0-9yr old)/115 files". The other MEGA link files were not reviewable during AFP forensic examination.

SEQUENCE 6 - POSSESSION

The CAM of which the offender had possession or/control in relation to the possession offence, was located on 7 of his devices located at his home, with his person and in his motor vehicle. The CAM had been obtained or accessed by the offender from multiple platforms such as Telegram, MEGA, Facebook and Memory Zone.
A total of the 868 Category 1 and Category 2 items was located on the 7 devices within his possession and control. 867 depicted real victims and there was 1 artistic representation of a naked female toddler.
Co-operation and assistance provided by the offender to AFP police in relation to the possession offence was limited to his acknowledgement of its possession and disclosure of CAM located on a black Alcatel Smart Phone and a black LG Smart Phone within his motor vehicle. The CAM located on those phones within his motor vehicle is identified at paragraphs 22 to 25 of the Statement of Agreed Facts as 199 Category 1 and Category 2 CAM items. The car was at the premises under search. The balance of the CAM was located on devices within his home, it being located in the course of the search pursuant to warrant.
The MEGA application was found by AFP police to be installed on both the offender's Samsung A20 mobile phone located on his person and on his LG Smart Phone, located in his motor vehicle.
Review of the offender's MEGA account on the Samsung A20 mobile phone located on his person confirmed that he had a folder within it titled "Literally EVERYTHING" which contained CAM stored in sub-folders including names such as: "Boys 1", "Boys 4 ", "Boys 5", "Boys 6", "Fuck", "Kids Vids", "More boys", "Pedo-files(0-9 yr old)" as described in paragraphs 28 - 30 of the Statement

The Agreed Statement of Facts sets out the Interpol Category 1 and Category 2 classifications and provides minimalistic description of the content of example files. Of those examples, 2 (in paragraph 21) describe the age of the pre-pubescent female victim as 10 years or older. All other images and videos within the examples depict children of 8 years or younger. Amongst the examples is a prevalence of very young victims of 4 years or younger, including 2 images of 1 year olds.

VIEW OF SELECTED MATERIAL AND AGREED EXAMPLES DESCRIBED

In R v Hutchinson [2018] NSWCCA 152 at [49] to [50] RA Hume J (Meagher JA agreeing) observed that in the vast majority of cases, written description would provide sufficient appreciation for the Court of the "relevant perversion and debauchery of the pornographic material" and further humiliation of victims by lawyers and Judges examining the images can be avoided. Regrettably, in this case, I am of the opinion that in order to appreciate and understand the gravity of the material in the circumstances of such young victims in much of the material and in order to appreciate any cruelty or physical harm occasioned to them; I agree with the Crown's submission, that I should view a selection. The example descriptions contained in the Agreed Statement of Facts, cause me concern that unless I view an agreed selection of the material, there is a significant risk I might have an exaggerated understanding of the depravity, cruelty, and gravity; or, alternatively, over compensate against fear of possessing that bias of perception, for the purposes of assessing the objective seriousness of the offending. In this case, I am not of the opinion that "it is possible to understand how terrible such a thing is by reading a description of it" (Hutchinson supra at [49]), I have chosen to view it in order to appreciate the gravity of the offending; Hutchinson, Supra per Button J at [90].

OBJECTIVE SERIOUSNESS

In addition to consideration of the written descriptions of the example CAM in the Agreed Statement of Facts, I have viewed an agreed sample selection of the CAM.
An inexhaustive list of factors assisting the assessment of objective seriousness of offences concerning CAM was provided in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. That list was approved and updated in R v Hutchinson [2018] NSWCCA 152 at [45]. With the assistance of the guidance of that list, I observe: 1. With the exception of one animation image, actual children were used in the creation of the material. 2. 867 depictions included a significant number of natural victims but the total number of 868 is not very large for offending of this type given that some other offending has involved tens of thousands of depictions. 3. The gravity of the offending and the depravity of that part of the total CAM involving depictions of infant, toddler and early years children is particularly high in the Category 1 because the female victims are so small in their anatomical development that the abhorrence of penetration by adult male penises is plainly cruel and unnatural. This is egregiously more so, the younger the victim. 4. The distress and discomfort of the toddler female victims is a visual feature in some of the example depictions. The extent of the cruelty is patently displayed in one of the sample depictions which shows a toddler who is crying and grimacing and has her arm across her face whilst being vaginally penetrated by an adult male's penis. 5. In the depictions of the infants, toddlers and early years children the activities including vaginal and anal penetration involving such obviously mismatched infant female genitalia and orifice sizing to the adult male penises infers beyond reasonable doubt extreme cruelty and some degree of physical harm occasioned to the children. 6. The depicted activities of sexual assault which involve animal upon child, child upon early years child, children across the age range from toddler engaged in fellatio with adult penises and adult digital penetration of toddlers are very seriously depraved types of CAM (conceded by offender: T 29/07/21 p 17.08). 7. The unnatural abhorrence, cruel depravity, humiliation and objectification of the depictions of the majority of children who were infants, toddlers, early years children, and pre-pubescent females (majority under the age of 11 years), infers, beyond reasonable doubt, particular depravity. 8. The offender's obtaining of the whole of the CAM supported its creation and the harm to all of the victims (aged 1 to 14 years) depicted in it. That he was attracted to and focused on the selection of CAM depicting pre-pubescent female children in the age range of 10 to 12 years does not moderate the reality that his obtaining it supported the creation of the whole of the CAM. 9. The offender possessed the whole of the CAM for the purpose of his selecting from it depictions of pre-pubescent female children in the age range of 10 to 12 years for viewing to his personal sexual gratification, stimulating erection for the purposes of masturbation. Pre-pubescent victims were engaged in depraved sexual exploitation in the CAM he pursued as were all the children. 10. The victims being anonymous children, there is no direct evidence before me of psychological harm but there is general recognition that persons so abused suffer that harm and often throughout life. 11. The offender did not receive payment or other material benefit from the distribution of CAM. 12. The degree of planning, organisation and sophistication, in the possession offence, involved the offender acquiring the whole of the CAM and selecting from it depictions of pre-pubescent female children of approximately 10 to 12 years of age for access across his 7 devices at home, with his person and in his motor vehicle. He told Ms Godbee, psychologist, that he watched it on his television. 13. The offender was not part of an organised collaborative network of likeminded persons but nor did he act alone accessing the CAM on the broader Web. He obtained the CAM from someone and then passed it on to someone else. 14. There was little planning, organisation or sophistication involved in the offender selecting and forwarding to "Larry Boyle" MEGA link files from his possession.
In my opinion, the possession offence involves a high level of criminality because the possession and control included particularly cruel and depraved CAM victimising young children and, in particular, extremely young children. Vulnerability to physical and mental harm must surely be higher the younger the child. The gravity of the depravity must surely be greater the younger the child. By section 474.29AA, Criminal Code Act 1995 (Cth) Parliament recognises, and I find as a fact that the offence having involved victims under 10 years of age is an aggravating factor of the offender's criminal behaviour. By obtaining possession of the CAM, whilst his particular personal focus for sexual gratification concerned only pre-pubescent female children in the 10 year to 12 year age bracket, the offender participated in possession of seriously depraved and harmful CAM for offending of this type. In my opinion, the criminal culpability is very serious in proportion to the vulnerability of the majority of the children, they being under the age of 11 years. Very young children, particularly infants and toddlers are quintessentially at the mercy of adults. It seems to me to be a common sense proposition, given the purpose of the legislation to protect children by criminalising these acts, that a higher level of vulnerability of the victims is an aggravating factor in the assessment of objective seriousness.
This is not a case where the offender participated in the making of the CAM and he did not directly participate in the physical abuse of the children, as may be the facts in another case under this offence. Nevertheless, his obtaining of the whole of the CAM inherently encouraged injury and damage to all the victims. I reject the defence argument that his selecting CAM depictions within the 10 year to 12 year age range, moderates his culpability for harm to all of the victims, other than to the relatively minor extent, of his personal deviance limiting the time he viewed the balance of the CAM.
I accept the Crown's submission that the MEGA CAM on its face and in the titles contained information making plain to the offender the youth and infancy of victims depicted, at least in some instances: see file names at Agreed Statement of Facts [12], [29] and [30].
The Crown submits that the possession offending falls at or just below the mid-range of objective seriousness for offending of this type and that the objective seriousness of the distribution offending, despite the small amount of the material shared, is not of the lowest category because of the serious depravity of the content of the material.
Defence submissions do not describe where the offending falls in the range of offending for each offence.
Whilst the offender's criminal culpability involved in the possession offence would be higher had he purposively obtained the most serious of the CAM which depicted the youngest of the children for personal gratification; in my opinion his possession of that CAM was an incident of his obtaining the whole of the CAM, to select from it, the videos and images depicting pre-pubescent female children in the age range of 10 to 12 years for his personal sexual gratification. This completes the offending of possession and all of the inherent evils of exposure and humiliation of victims as well as the infliction of cruelty and harm upon them inherent to the offence of possession.
The single count relating to the possession offence is a "rolled-up" charge involving more than one episode of criminal conduct and this magnifies the objective gravity of the offending. There is a significant number of real victims, but the total of 868 CAM depictions is not so great as in some other cases. See for instance, the 32,000 depictions in R v De Leeuw [2015] NSWCCA 183 at [116] per Johnson J with whom Ward JA and Garling J agreed.
Noting what was said about terminology used in assessment of objective seriousness for offences of this type in R v Hutchinson supra at [57] to [63], I find that for the possession offence the objective seriousness is in the low range but toward the middle range.
In relation to the distribution offence, bearing in mind the single transition to one recipient of 2 items of CAM, for no reward, but the high level of depravity and cruelty depicted, including that one of the videos involved a three year old female person, I assess that the objective seriousness falls into the low range for offending of this type.

SUBJECTIVE MATTERS

Before turning to historical matters and expert opinion evidence in more detail, the significant observation is that the offender is not possessed of real insight into the harm suffered by victims of offences of this type and, specifically the victims in the CAM he possessed and distributed. This is the observation of both Community Corrections Officer, Ms Capes in her Sentencing Assessment Report dated 25 June 2021, tendered by the Crown, and Ms Godbee, Forensic Psychologist, whose report of 17 June 2021 (as amended) was tendered by the offender. The offender's lack of insight is succinctly stated in the SAR report: "Mr Large rationalised his behaviour by stating that he did not see the children as being 'human', therefore permitting himself to continue downloading and watching the abhorrent material."
The importance of this observation goes beyond consideration of remorse. During his sentence for his prior offending, Morgan DCJ was concerned for his lack of empathy for the child victim. After the offender completed the CUBIT program, for 17 years, whilst aware of the triggers for his abhorrent, deviant sexual attraction to pre-pubescent girls of age range approximately of 10-12 years, he did not reoffend. He explained to Ms Godbee that after having completed the CUBIT's Program when he saw a pre-pubescent girl in public, he would begin to think about the fact that she was starting to develop into a woman and he would picture her naked. He gradually learned to interrupt those thoughts.
Fort the subject offending, it only took the opportunity to visually see the CAM for him to commence repeatedly engaging with it, accessing videos once or twice a week whilst trying to masturbate. For a better view he watched it on his television. He told Ms Godbee that it was frustrating for him that he was unable to maintain an erection, that he was excited with the thought of accessing it without "getting caught" but that after a few weeks he became bored and began using adult pornography. Ms Godbee recorded (at [33]): "during the current assessment [the offender] denied any sexual attraction to girls of this age. However, given his prior offending, his index offending and these thoughts, it is clear that he does in fact have a deep attraction [to female children] aged approximately between 10 and 12." The author of the SAR report describes the offender's deviant state of mind as including an "addiction to child abuse material".
Ms Godbee reported that the offender's rationalising of his criminal behaviour extended to include his convictions for stealing at the age of 22 and again at age of 41. He told her that in the first offence, he broke into a house which was under construction and stole the kitchen cabinets because his partner was complaining about their kitchen and in the later offence, stole a door from someone else's house because his was damaged. Ms Godbee (at [30]) commented: "…he saw stealing as the only way to resolve the problem that he had, which suggests some distorted thinking."
In relation to the present offences, while the offender told Ms Godbee (at [37]) that he believes that people who produce CAM are using children as sex slaves, and he views it as abusive; he continued that he did not think about that at the time he was accessing it. He did know it was wrong.
His letter to this Court is devoid of expression of appreciation of harm done to the victims and in that way is another, and a direct, exposure of his lack of insight to his offending. It reads that the depicted children being used as sex slaves reminded him of how he felt as a child when he was sexually assaulted; but, in her comprehensive report, Ms Godbee did not record that the offender made such a statement to her. It is not recorded in the SAR. Indeed Ms Godbee reported that the offender does not appear to suffer post trauma symptoms consequent of that earlier experience.
The offender's history as reported to Ms Godbee includes his having suffered the violence of his father which caused breaking of his bones, feeling unloved by the lack of protection from his mother and that at the age of 14 years he was sexually abused by a male friend of the family. Ms Godbee observed that his childhood victimisation "may have desensitised him to the sexualisation of children and contributed to distorted beliefs about children wanting sexual contact as a form of affection".
He was educated to Year 10 and qualified as a boilermaker. After release from the custody to which he was sentenced for his prior offending, he worked as a crane mechanic. He has been married for 41 years and has prosocial friends. Whilst he has remained monogamous through marriage, he reported that his partner had affairs and he described frustration with their sex life. He suffers back pain as a result of an injury suffered at work in his 20s and for which he wears a brace most days. He suffered two heart attacks during his 50s and reports a "hernia on his heart". He is fearful that a blow to his chest whilst incarcerated might be fatal. He has not consumed alcohol for 17 years.
Ms Godbee (at [26]) expressed concern that the offender maintains contact with grandchildren including his 8 year old granddaughter and the children of friends. Ms Godbee explains that her concern arises from his history of offending and his deviant sexual interests. A testimonial dated 15 June 2021 from the offender's neighbour Mrs Martin confirms that her household trust him around their children and that their children trust the offender and have never been afraid of him. A friend, Mr Truscott likewise confirms that he has never felt that his children are in danger in the company of the offender. Indeed, after becoming aware of the charges, Mr Truscott remains of that point of view "as do my children". A further neighbour's testimonial from Mr Singh expresses similar views concerning exposure of his 10 year old daughter to the offender. The offender's partner's testimonial reports that the offender has been a "wonderful stepdad" including to her 5 daughters who were all below the age of 10 when they joined.
The offender's risk of reoffending, according to the Level of Service Inventory - Revised is "medium" (SAR pg 3). The offender is assessed to be unsuitable to undertake community service work because of his health issues.
In 2004 he breached his parole when convicted of a "peep and pry" offence. Ms Godbee commented that actuarial recidivism assessment tools were primarily developed for the assessment for contact offending. Applying Static-99R, she observed actuarial risk assessment at "Average". Applying the Risk for Sexual Violence Protocol (RSVP), which structured clinical judgment tool assesses both static and dynamic factors related to risk across sexual offending, Ms Godbee concluded (at [47]) that the offender's risk of recidivism in the next 5 years is "at least…average".
In this analysis (at [44]) Ms Godbee observed the following risk factors presented by the offender: 1. His sexual violence appears chronic in nature although there have been some gaps in detected offending; 2. His prior offending included physical coercion by threatening his 12 year old victim with a knife; 3. He presents with some distortions about sexual offending; for example, he states that the victim of his prior offending invited his sexual behaviour because of the way, as an 12 year old, she was dressed; 4. Whilst the offender has appropriate insight in some areas, "he has a particular gap in his self-awareness regarding his deviant sexual attraction to pre-teen girls"; 5. The offender's problems from his experiences of childhood abuse and his distorted attitudes toward sexualisation of children; 6. He has a deviant attraction to girls aged between 10 and 12; 7. Albeit he has avoided alcohol for 17 years, he has a history of prior problematic alcohol consumption which contributed to his previous offence; 8. He has problems with his intimate relationships including feeling devalued and unwanted by his partner; 9. He possesses distorted justifications for the other offending of his stealing at 22 and 41 years of age; 10. He relapsed to reoffending even though he had completed CUBIT "which has implications for the effectiveness of further treatment"; and 11. He has prior convictions for breaching parole and for failing to comply with reporting obligations.

DISCERNMENT - SYNTHESIS

In the synthesis of sentencing, weight is to be given to the risk presented by the offender's displayed failure to control his deviant attraction to pre-pubescent girls stimulating the index offending despite him being aware of the triggers having had the benefit of the CUBIT program: Ohania v R [2017] NSWCCA 268 at [25] - [27] per Hamill J with whom Gleeson JA and Rothman J agreed.
The law recognises that the offender's moral culpability is likely to be less than for an offender whose formative years have not been marred by depravation of basic needs of love and safety, by severe physical violence from his father combined with a lack of protection from his mother, starvation of affection, and having been sexually assaulted by a family friend at the age of 14 years; Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37. This to some degree moderates consideration of the importance of general deterrence in the offender's case, but Ms Godbee did not say that those factors did in fact contribute. She observed that the offender did not report a specific post-traumatic stress response to the physical and sexual abuse that he experienced as a child, such as nightmares or intrusive memories and that the offender does not think about those experiences often (at [21]). She assessed that those factors "may have" contributed to the development of his deviant attraction to pre-teen girls (at [48]). Accordingly, that moderation is not as significant as it might otherwise be in a case where the hardship more informs the criminal conduct.
The offender universally has expressed willingness to participate in counselling toward his rehabilitation.

ANTECEDENTS

Other than the prior offending already referred to, the offender's antecedent history involves traffic offences.

TIME IN CUSTODY

The offender has remained in custody since his arrest on the 27th of July 2020. He has been a quiet and compliant prisoner. He is classified as A2U and accommodated in a Special Management Area Protection and Junee correctional centre.

PLEA OF GUILTY/SECTION 16A(2)(g) AND ASSISTANCE/SECTION 16A(2)(h)

It is agreed that the offender entered into pleas of guilty at the earliest available opportunity. He is entitled to the full mitigating benefit of the utilitarian value of his pleas. The community has been spared the expense of preparation and running of a contested trial. In a case such as this, that saving is likely to have relieved to some degree investigation, prosecution, defence and court staff from the traumatic task of examining the CAM. The offender admitted his wrong from the earliest time of the search of his premises, which admission included his disclosing to AFP officers, in the course of searching his house, that devices within his motor vehicle also contained CAM.
In the circumstances of the offender admitting his guilt at the earliest opportunity and his entering pleas in these proceedings at the earliest opportunity, he is entitled to 25% discount.
That the offender directed AFP officers to CAM in his possession on his devices in his motor vehicle; in the scenario of the officers searching the devices within his house for CAM, in my opinion, did more than indicate recognition of his offending and exceeded recognition that the officers would continue searching, and were very likely to make a strong prosecution case. Objectively, that co-operation assisted the officers in the investigation of the offence. It must have done so by pointing them to the devices containing CAM, rather than them having to locate those devices. In addition, he disclosed his several devices did store CAM. In my opinion, the offender is entitled to a discount of 5% on account of that co-operation.
In combination, the offender's early entry of plea and provision of co-operation to investigation of his offending, amounts to a discount of 30% from the penalty which would otherwise be imposed. The offender, is entitled to the imposition of head sentences of imprisonment so discounted and, in relation to the distribution offence, of less than the minimum period in that percentage: s 16 AAAC(2) Crimes Act 1914 (Cth).

ALTERNATIVES FOR SENTENCE

Having considered s 16A(2) matters and sentencing alternatives other than a sentence of full-time imprisonment; in my opinion, a sentence of imprisonment is the only appropriate course, all other available alternatives being not appropriate in the circumstances of the seriousness of the offending which requires the imposition of a sentence of a severity appropriate in all of the circumstances of the offence including general and specific deterrence, denunciation for this type of offending and that the offender be adequately punished for his offending: s 16(2)(k); 17A, 19B(1), 20(1) and 20AB(1) Crimes Act 1914 (Cth).

MANDATORY MINIMUM HEAD SENTENCE OF 4 YEARS

The parties agree that each of the offences carries a mandatory minimum sentence of 4 years imprisonment pursuant to section 16AAB of the Crimes Act 1914 (Cth), the offender having committed the prior serious child sexual abuse offence in 2001. Pursuant to section 3, that state registerable child sex offence is a "child sexual abuse offence" for the purposes of application of the mandatory minimum head sentence.
The introduction of the mandatory head sentence provision, applying from 23 June 2020, renders reference to sentences imposed by intermediary state and territory courts preceding introduction of that provision, to be of less guidance to the appropriate term of the sentence of imprisonment but those cases remain of assistance in application of principles, reflecting comity of approach such as recognition of harm to victims, denunciation, deterrence and rehabilitation: Hili v The Queen - (2010) 242 CLR 520; [2010] HCA 45 at [18], [50] and [70]. The mandatory sentence provision was applied by Grant DCJ in R v Delzotto [2021] NSWDC 325. I respectfully agree with his Honour's approach.
In the explanatory memorandum to the bill introducing section 16AAB to the Crimes Act 1914 (Cth) the Attorney-General, described the purpose of the amendment, as to increase general and specific deterrence for committing child sex offences and ensuring that penalties for these offences more appropriately reflect the gravity of child sexual abuse, so strengthening Australia's commitment to uphold the right of children to protection from all forms of sexual exploitation and sexual abuse as set out in Articles 19 and 34 of the Convention of the Rights of the Child. At [40] the Attorney-General, stated: "The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of these offences and ensure that the community is protected from child sex offenders. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children."

DESIGN OF APPROPRIATE SENTENCE

There is no contest that general deterrence is a primary consideration for offending of the subject type, being crimes of prevalence in our community. The hardship suffered by the offender during his upbringing, I have found to moderate in a limited way his personal moral culpability; however, his conscious wrongdoing whilst mindful that he was failing to control the triggers of his sexual attraction to pre-pubescent female children, requires severity of sentence adequately punishing the offender and providing denunciation of offending of this type. In my opinion, a significant consideration of sentencing is the offender's lack of empathy for the real child victims and his rationalising thoughts during the offending that whilst he was observing depictions of children being used as sex slaves, he did not feel the gravity of the realisation that the children he was observing in the depictions and videos were human. Whilst he remained for 17 years in control of his sexual attraction to pre-pubescent children and whilst the subject offending did not, as did his prior offending, involve contact offending; nevertheless, that seeing the CAM was sufficient to trigger his offending and overcome his resources of control; is a significant consideration in favour of a sentence which imposes general deterrence and specific deterrence. Whilst his victimisation at an early age, in the opinion of Ms Godbee, may have desensitised him to sexualisation of children; he is assessed to not suffer any specific post-traumatic stress response to those experiences. His mental health assessment does not disqualify him from being a suitable example for general deterrence. However those deprivations during upbringing and that he is to some degree desensitised, does to a limited degree render him less suitable as an example for general deterrence and denunciation of this type of offending. Sufficiently sever punishment is required to deter him from failing to control his deviant sexual urges towards children in the future. A sentence of severity appropriate to all circumstances of the offence is required; s 16A(1) Crimes Act 1914 (Cth).
The offender is not a person of prior good character. That he, according to the testimonials, is held in trust by neighbours and family is a common feature of offenders of this type of criminality. It is not of significant moderating effect. As observed by Ms Godbee, his access to young female children acquired through the trust of neighbours and family is a matter of concern given the risk of his recidivism to female children in his proximity.
Sentencing must have regard to the objective of the offender's rehabilitation taking into account his treatment and options for reintegration to society, when determining the length of any sentence or non-parole period: section 16A(2AAA) Crimes Act 1914 (Cth). That he remained free from offending for 17 years, is some evidence of his having benefited from the CUBIT program and of his want to remain free with his family, in the community. He has expressed a willingness to participate in rehabilitation, not involving mental health treatment. As already observed, he has not been assessed as suffering significant mental health conditions which inform his offending.
I accept and will adopt the Sentencing Assessment Report recommendations for supervised rehabilitation, which can be applied during incarceration and during parole.
I observe that, the offender acknowledges that he has a sexual interest in female children, that it took mere CAM depictions and video to overcome his control of that deviant interest and he has a desire to acquire further coping strategies. Also in the context of rehabilitation, the period of his succumbing to the temptation to view CAM was only over a few weeks and he was progressively growing tired of it and finding less sexual stimulation over that period.
Pursuant to section 68 of the Judiciary Act 1903 (Cth) the provisions of section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are picked up and available in the present case. I consider it appropriate to sentence by way of a single aggregate sentence, in circumstances that the episode of criminal conduct over a relatively short period included distribution in the character of passing on CAM for no payment to a single individual from the CAM possessed. I recognise that the offender accepted the risks of acts and further offending by that person ("Larry Boyle").
The appropriate indicative sentences, bearing in mind the minimum head sentences required, in my opinion are:

For the possession offence, 5 years imprisonment; and
For the distribution offence, the minimum mandatory penalty of 4 years imprisonment.

After discount for plea and assistance those indicative head terms are reduced to 3 years and 6 months and 2 years 9 months and 18 days respectively. Pursuant to sections 19(1) and 19(5) of the Crimes Act 1914 (Cth) the legislature has imposed a presumption in favour of cumulative sentences. Section 19(2) Crimes Act 1914 (Cth) provides that because the offender is being sentenced to imprisonment consequent of his conviction of 2 federal offences, the Court must, by Order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
In written submissions (MFI 1) at [68] the Crown submits that "some degree of accumulation between each of the charges is warranted to reflect the discrete and distinct forms of criminal offending directed at different vices and with different elements and occurring distinct[ly] in time."
In my opinion, the distribution act, whilst distinctly criminal, was closely, if not intimately nexed to the activity of possession and involved low distinct activity, equating to a spontaneous albeit different criminal act. Significant concurrence will reflect the totality of the offending, in this context; sections 19(6) and (7) Crimes Act 1914 (Cth). I impose a single head sentence of 4 years and 6 months.
Bearing in mind that the offender is presently aged 62 and his family will be without his support: that for some periods family visitation is likely to be restricted by pandemic conditions; that he has been assessed at a medium risk of reoffending in the Sentence Assessment Report and of at least average risk of recidivism within 5 years by Ms Godbee; his displayed ability to learn how to control his deviant urges during rehabilitation by his refraining from offending for 17 years, and considering his physical difficulties with back and heart health problems including his fear of being struck in the chest whilst in prison and his willingness to comply with further rehabilitation; in my opinion, the ratio of non-parole period to parole period should best permit sufficient opportunity for his reintegration into the community as a law abiding citizen. This is in the interest of community safety. I determine the appropriate ratio is for a balance term of 37% of the non-parole period of the total aggregate sentence.
The Crown argues that in order to comply with s 16AAB I am to indicate a commencement and completion date for sentence for each offence. In my opinion that I specified indicative sentences of the single-aggregate sentence has satisfied the section. In the event that I am wrong the single aggregate sentence contemplates for purposes of s 16AAB that the head sentence for sequence 4 commences on 27 July 2020 and completes on 14 March 2023, and the head sentence for sequence 6 commences on 27 July 2021 and completes on 26 January 2025.

Orders 1. The offender is convicted of the sequence offence 4 (distribution). 2. The offender is convicted of the sequence 6 offence (possession). 3. The offender is sentenced to a term of imprisonment of 4 years 6 months and a non-parole period of 3 years, 3 months and 10 days with a balance term of 1 year, 2 months and 20 days. 4. The sentence is backdated to commence on 27 July 2020 (the date the offender was taken into custody) and expires on 26 January 2025. 5. The non-parole period expires on 5 November 2023. 6. I direct the offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of that Service. 7. I make a forfeiture order pursuant to s 23ZD of the Crimes Act 1914 (Cth). Upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth; 1. Grey and Silver San Disk 64 GB USB; 2. Black and Red San Disk 16 GB USB; 3. Black 2 GB USB; 4. White 1 TB SD Trek USB; 5. Black Alcatel Smartphone; 6. Black LG Smartphone; 7. Black Samsung A20 mobile phone. 1. I recommend that conditions of supervision and parole are to include: 1. the offender obey any reasonable directions of Community Corrections toward child sexual assault and child abuse material offending rehabilitation programs; 2. the offender must not be in the company of any person under the age of 16 years unless accompanied by an adult deemed to be a responsible adult by Community Corrections; 3. the offender must abstain from engaging in either written or electronic communications with any person under the age of 16 years; 4. the offender must abstain from possession of or viewing child abuse material; 5. the offender must comply with all conditions and requirements of the Child Protection Register.

Amendments 07 September 2021 - Pursuant to section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and section 19AHA of the Crimes Act 1914 (Cth) 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: 07 September 2021

AAAC(2) Crimes Act 1914(Cth)

Crimes Act 1914(Cth)ss 3, 16A(1), 16A(2), 16A(2)(a), 16A(2)(b), 16(2)(k)

Criminal Code Act 1995(Cth)ss 474.22(1), 474.22A, 474.29AA

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