R v Loo

Catchwords: CRIME — child sex offences — child abuse material — using carriage service for child pornography material or child abuse material — possess bestiality material
SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law
SENTENCING — penalties — recognisance

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)

Cases Cited: Baden v R [2020] NSWCCA 23
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Hall v R [2021] NSWCCA 220
McGregor v R [2024] NSWCCA 200
Minehan v R [2010] NSWCCA 140
R v Brown [2023] NSWDC 477
R v Hutchinson [2018] NSWCCA 152
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
RA v R [2024] NSWCCA 149

Category: Sentence

Parties: Rex
Bung Tiong Loo

Representation: Counsel:
C Tsapoutas (Crown)
A Bhasin (Defendant)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Clover Legal (Defendant)

File Number(s): 2024/00201241

Publication restriction: No

JUDGMENT

1. The offender entered pleas of guilty at Sydney Downing Centre Local Court on 12 March 2025 to the following offences:

2. Sequence 1 – Use carriage etc to access Child Abuse Material contrary to s 474.22(1) of the Criminal Code (Cth). This offence carries a maximum penalty of 15 years imprisonment.

3. Sequence 2 – Use carriage service to possess Child Abuse Material contrary to s 474.22A(1) of the Criminal Code (Cth). This offence carries a maximum penalty of 15 years imprisonment.

4. Sequence 15 – Possess bestiality material contrary to s 547E(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 3 years imprisonment.

5. The maximum penalty for each of the offences acts as a sentencing guidepost or reference point and reflects the seriousness of each of the offences.

6. The plea of guilty was adhered to on the sentence hearing.

7. Admitted on behalf of the Crown was the following:

8. Exhibit C1 – Notice of Committal

9. Exhibit C2 – Amended Court Attendance Notices

10. Exhibit C3 – Statement of Agreed Facts dated 7 March 2025

11. Admitted on behalf of the offender was the following:

12. Confidential Psychological Report of John Machlin, clinical psychologist, dated 10 June 2025.

Agreed facts

6. In May 2024, a particular IP address was detected downloading and transmitting child-abuse material. Police investigations found the address corresponded with an NBN account holder residing at an address in Campsie. On 29 May 2024, police obtained a search warrant which was executed on 30 May 2024. The offender was not present at the time of its execution. Police identified the offender as the owner of the electronic devices on which the material the subject of the charges had been located. The offender was subsequently arrested at his place of work.

7. The child abuse material was analysed and classified according to the Australian Child Abuse Categorisation Schema. Categories 1 and 2 are as follows:

8. Category 1 – Real child pre-pubescent perceived to be under 13 years of age: Media depicting a real pre-pubescent child/very first signs of puberty and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child.

9. Category 2 – Other illegal content, child under 18 years of age: other child abuse material that is illegal within Australia but does not fit Category 1. Media may include images of children, which are likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality or humiliation. Images may depict a child as the person conducting the activity or observing other persons. This includes animated, text of children and photoshopped media.

Sequence 1: Use carriage service to access child abuse material

8. The offender used the Google Chrome web browser and the “BitComet” and “Terabox” applications to access Child Abuse Material on his Toshiba laptop.

9. Between 8 March 2024 and 28 May 2024, the offender used the Google Chrome web browser to visit 262 websites containing child abuse material.

10. The child abuse material accessed overlaps with the child-abuse material the subject of Sequence 2, being possess child-abuse material.

11. The encrypted cloud storage application “Terabox” had been installed and configured on the offender’s Toshiba laptop to allow access to the cloud system. It was first used by the offender on 31 March 2024.

12. Police identified 25 videos constituting child-abuse material within the application, all deemed to be Category 1 material with the majority of the files depicting very young children aged from 2 to under 14 years old. These included numerous video files of unclothed, prepubescent children engaged in sexual activity, including several depicting a female child having sexual intercourse with an adult male and young male.

13. Police also found that the peer-to-peer torrent application “BitComet version 2.05" was installed on the offender’s laptop which was actively used, and in active use by the offender at the time the search warrant was executed. Between 8 March 2024 and 28 May 2024 the offender had accessed 3,379 torrent links. Some of the filenames referred to children of various ages engaged in sexual activity.

Sequence 2: Use carriage service to possess child abuse material

14. The offender possessed 13,832 videos and 2,305 images constituting child-abuse material across nine devices including several mobile phones, a laptop and hard/storage devices.

15. On the offender’s OPPO mobile phone, police identified 11 videos constituting child-abuse material, all deemed Category 1. The video material depicted various unknown young pre-prepubescent female and male children engaged in sexual acts including sexual intercourse. The videos depicted various young prepubescent female children naked, focusing on genitals. The majority of videos depicted young children aged under 10 years.

16. On the offender’s Honor mobile phone, police identified seven videos constituting child-abuse material all of which were Category 1. The videos depicted various unknown young prepubescent female children engaged in sexual acts including sexual intercourse with adult males as well as young prepubescent female children naked, focusing on their genitals. The majority of the videos depicted very young children aged under eight years.

17. Police identified 2,338 videos and 391 images on a 2TB WD hard drive, with over 2300 videos and 180 images classified as Category 1 with the remaining classified Category 2. The Category 1 videos depicted various prepubescent female children engaged in sexual acts such as sexual intercourse with adults as well as female children naked, focusing on their genitals. The Category 2 material included young prepubescent female children clothed and engaging in various sexual poses. Police identified several Category 1 videos involving children approximately five years of age.

18. Police identified 13 videos, all Category 1, constituting child-abuse material on a 2TB Portable SSD storage device, primarily being animated style videos involving young female children involved in various sexual acts.

19. On an Elements hard drive police identified 22 videos constituting child-abuse material, 20 being Category 1 and two being Category 2. The Category 1 videos were of young prepubescent female/male children engaged in various acts including sexual intercourse with adults with one of the videos depicting a child under 10 years of age. The Category 2 depicted young prepubescent female/male children clothed and engaging in sexual posing and various forms of nudity with genitals exposed, with one video depicting a child that appeared to be under the age of 14 years.

20. On a further Elements hard drive, police identified 204 videos and one image classed as Category 1 child-abuse material and a further five videos and two images classified as Category 2. The Category 1 material depicted prepubescent female/male children engaged in sexual acts including sexual intercourse with adults as well as prepubescent male and female children naked, with one Category 1 video depicting a child who appeared to be under five years of age engaged in sexual intercourse. The images depicted similar scenes as well as prepubescent male and female children naked focusing on their genitals with one image depicting a child who appeared to be under 16 years of age.

21. The Category 2 material included young prepubescent female/male children clothed and engaging in sexual posing or in various forms of nudity with genitals exposed, with one that appeared to be a child under 12 years of age.

22. Police identified, on a 5TB hard drive 2,170 videos classified as Category 1 material together with 159 videos and 1,780 images of Category 2 material. The Category 1 and Category 2 material depicted the same material as with earlier hard drive content. The Category 1 material included sexual intercourse with a child who appeared to be aged under 15 years. The category 2 material included images of a child who appeared to be aged under 9 years.

23. On a further 5TB hard drive, police identified 8,071 videos to be Category 1 and seven videos to be Category 2 depicting similar material as on other hard drives. The Category 1 material included a video of a prepubescent female engaged in sexual intercourse with an adult male with the child appearing to be approximately five years of age. With respect to the Category 2, this included a child that appeared to be nine years of age.

24. Similarly, police identified 779 Category 1 videos, together with one Category 2 video and 131 Category 2 images on another STB hard drive. The Category 1 material was of a similar nature to that on other hard drives. The Category 1 videos included one depicting two young prepubescent males engaged in sexual intercourse with an adult female where the child appeared to be under 8 years of age. The Category 2 images included a child who appeared to be under 10 years of age.

Sequence 15: Possess bestiality material

25. The offender possessed 268 videos constituting bestiality material across six of the offender’s devices. The material, detailed in the Agreed Facts, included females engaging in sexual intercourse and sexual acts with animals.

The offender’s interview with Police

26. The offender voluntarily engaged in a record of interview with police. The offender made full admissions that all the electronic devices seized belonged to him and he was the sole occupant of the room where they were found.

27. He told police that he had several hard drives, some of which he bought, and others were found left outside people's properties. Three of the hard drives which he found contained website links or download “seeds" to adult and child pornography. He followed those links, watching and downloading both adult and child pornography out of curiosity. When downloading those files other informational messages would then pop up and he would copy and search, which would then lead to other websites.

28. It was conceded that by these methods, he accessed a website containing nothing but child pornography content within the previous month. He denied watching the videos all the way through and stated he would only access them out of curiosity.

29. He was aware that child pornography was against the law in his country of origin, Malaysia, but considered other foreign countries apparently allowed such material. Whilst he accepted that some of the videos he saw were "disgusting", he was unable to delete them despite attempts to do so. Whilst again expressing some uncertainty as to whether the material was legal, he again claimed he was only driven by curiosity. He was unaware of the material being of such significance that it was necessary to disclose the material to police when first discovered. He stated that if he was aware of the significance of a penalty with potential for lengthy imprisonment, he would not have engaged in the various acts constituting the offences.

Subjective evidence

30. The only evidence as to the offender’s subjective circumstances is the report of John Machlin, clinical psychologist, who reviewed the offender in a two-hour interview via an audiovisual link from the correctional centre.

31. The offender was originally from a small coastal town in Malaysia where he was raised by his maternal grandparents. This was in circumstances where his parents lived and worked in Singapore to enable his financial support. The offender would see his parents twice a year. He reported that the family was financially comfortable and there were no issues in his home life. He soon adjusted to his parents’ absence.

32. The offender reported that he was a poor student who was inclined to truant and left school at the age of 16 due to his inability to meet the entry requirements for senior high school. He ultimately worked and lived in Singapore for a period of 15 years (primarily as a chef) before moving to Australia. He was also married whilst in Singapore and had several children to that relationship. He separated from his wife at the age of 30 before forming a relationship with an older Chinese national. They initially lived in Singapore for two years before moving to Australia. The offender’s son from his first marriage remained in Malaysia whilst his daughter is living in Singapore with her mother.

33. After arriving in Australia, the offender and his partner spent some years working as grape pickers following which they moved to Sydney and rented together for a year. However, his partner thereafter left him, and he has remained living in a rented room in an apartment. He has been working as a chef at a nearby restaurant.

34. The offender has more recently formed an Internet relationship with a woman he now refers to as his fiancée.

35. The offender’s physical and medical history is largely unremarkable. There was a period following his divorce where he suffered from depression although there have been no ongoing symptoms since. He did not consider himself as currently depressed.

36. With respect to the offending, the offender, consistent with the statements to investigating police, considered that he sought out the material by way of curiosity and without any pursuit of sexual gratification. He denied ever being sexually attracted to children and denied ever being the victim of child sexual abuse.

37. The psychologist noted that there were various ideas from the offender which were difficult to reconcile including that he assumed, having discovered the material, that people in Australia were accepting of it. He regarded sexual attraction to children as inhumane, in the context of having children of his own. He had a belief that the images were fake, being edited and pieced together. He was ignorant as to the exploitation of children arising from child pornography.

38. However, the psychologist observed that the offender potentially had the disadvantage of being unable to discuss difficult concepts fully and clearly where the use of an interpreter was not conducive to a “nuanced exchange". Further, the psychologist was of the impression that the offender felt the need to produce socially desirable responses, possibly due to factors including anxiety, caution, shame, and being unaccustomed to divulging sensitive feelings. Cultural factors could also have added to the offender’s inhibition around self-disclosure and discussion of sexual matters.

39. However, the offender accepted that he committed the offences. He respected the legal process and accepted the penalty that would be imposed. The psychologist noted that the offender's overall attitude was “one of submission and contrition."

40. Unsurprisingly, the psychologist referred to the considerable difficulties that would be experienced in custody. There were clearly feelings of isolation arising from cultural differences and language barriers. Further, there had been a lack of opportunity to communicate with family or his fiancée. He felt considerably powerless. However, the offender did not describe any symptoms of depression and did not feel the need for any assistance in this respect.

41. There was no discernible diagnosis applicable at the time of the offending and there were no pre-existing mental health conditions contributing to this offending. The psychologist concluded that the history provided by the offender was “unremarkable in terms of any relevance to the index offences, aside from his fairly isolated existence". However, clearly the offender has experienced hardship in custody and will continue to do so.

Submissions and sentence determination

42. Section 16A of the Crimes Act 1914 (Cth) (the Crimes Act) sets out the matters which the Court is to have regard when passing sentence in respect to a federal offence. Section 16A(1) provides that in determining the sentence to be passed the Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides a non-exhaustive list of matters that the Court must take into account as are relevant to the relevant sentence.

43. In assessing the objective seriousness of offending involving child abuse material, several authorities (Minehan v R [2010] NSWCCA 140; R v Hutchinson [2018] NSWCCA 152) provide a useful articulation of relevant factors. By reference to those authorities the following is noted. In most of the material (with the exception of some animated videos and images) actual children were used. The nature and the content of the materials has been traversed above. It clearly involved a significant age range, although a large proportion of the material involved prepubescent children with some of the material identified including children as young as five years. As the offender quite properly conceded the material is of varying degrees of gravity including some which is clearly significantly depraved. Given the age of some of the children portrayed in the material there would have been some physical harm occasioned to the children through its creation.

44. The offender possessed many videos and images. There was no proximity between the offender’s activities and those responsible for bringing the material into existence. There was an absence of any significant planning, organisation, sophistication and/or deception employed by the offender. Whilst the material was easily accessible by investigating police following execution of the warrant, there was a relatively modest use of appropriate technology to enable the offender to access and store some of the material. However, I accept otherwise the offending was largely unsophisticated and there were no significant attempts to hide the material.

45. The offender was not in any communication in connection with the acquisition or dissemination of the material. The offender’s conduct was essentially the offender accessing material available on the Internet. There was no collaboration with like-minded persons nor was the offending part of a collaborative network. There was no risk of the material being seen or acquired by vulnerable persons such as children or those who may act in a manner described or depicted.

46. Whilst it is apparent that the offender initially accessed this material by retrieving used devices and hard drives, it is readily apparent that over time the offender took active steps to access and store the relevant material.

47. Consistent with the submissions of the Crown and the offender I accept that Sequence 1 falls within the low to mid-range of objective seriousness for offences of this type.

48. With respect to Sequence 2, consistent with the submissions on behalf of the Crown and the offender, this conduct falls within the mid-range of objective seriousness.

49. With respect to Sequence 15, the bestiality offending, the offender possessed a significant number of videos constituting bestiality material across six devices. The material involved sexual acts with various animals who were clearly unable to consent. I am satisfied that this offending falls somewhere between the low and mid-range of objective seriousness for offences of this type.

50. With respect to sequence 15, the offender is entitled to a discount of 25% on a sentence that would otherwise be imposed given the timing of the plea of guilty. With respect to sequences 1 and 2, pursuant to s 16A(2)(g)(iii) of the Crimes Act, the Court notes the plea was entered at the earliest opportunity. I accept in this respect an appropriate discount for the plea of guilty would also be 25% on the sentence that would otherwise be imposed.

51. The Crown quite properly concedes that given the extent of the offender's participation in the interview, and his candid admissions contained therein, a further discount should be applied reflecting the offender’s cooperation pursuant to s 16A(2)(h) of the Crimes Act. I am satisfied an additional 5% discount should be applied on the sentence that would otherwise be imposed reflecting this cooperation.

52. However, I am further satisfied that the offender’s cooperation with the investigating police, and his early guilty plea, is a further mitigating factor in that it reflects the willingness of the offender to facilitate the course of justice: Baden v R [2020] NSWCCA 23; Giles*-Adams* v R; Preca v R [2023] NSWCCA 122. This is also consistent with the offender’s acceptance of responsibility contained in the psychologist's report.

53. The offender was 39 at the time of the offending and has no prior criminal history. I accept that he is otherwise a person of good character. The psychologist quite candidly concedes that there were no mental health impairments or other conditions operating at the time of the commission of the offences. However, I accept that the offending occurred in the context of the offender living an isolated existence in Australia, removed from his family or other support network.

54. With respect to Sequence 1 and 2, as has been observed in several decisions, every time a person views or downloads child abuse material they are involved in the further degradation and exploitation of the child which continues the victimisation of children in the images. The accessing of child abuse material actively encourages the market for such images thereby only seeking to perpetuate the ongoing abuse of children. Given these factors, general deterrence and denunciation must loom large in the sentencing process. These offences must be denounced by the Court in the strongest terms.

55. I accept the offender has relatively good prospects of rehabilitation. There is no evidence that the offending occurred in the context of any paedophilic disorder. The offender readily accepts he committed the offences charged and has expressed significant contrition. The somewhat irreconcilable ideas identified by the psychologist would result in some caution as to the prospects of rehabilitation, however I accept that this history must be considered in the context of the qualifications contained in the psychologist's report.

56. The sentence the Court intends to impose in any event does consider objectives of rehabilitating the offender and providing every opportunity for rehabilitation outside the custodial environment.

57. I accept that generally the offender’s risks of reoffending are relatively low in circumstances where there is no evidence of paedophilic tendencies. It is apparent from the psychologist’s report that the offender accepts the impropriety of his actions leading to the various offences.

58. I accept, given the comments of the psychologist in the report, that the offender will experience significant hardship whilst in custody beyond what would ordinarily be experienced by inmates. This is in the context of the offender having virtually no English, and an inability to communicate other than in Chinese. Further, there is clearly a lack of opportunity for the offender to have any real communication with his family.

59. With respect to the two Commonwealth offences an aggregate sentence pursuant to s 53A of the C**rimes (Sentencing Procedure*)* A**ct 1999 is available: McGregor v R [2024] NSWCCA 200. I am satisfied that this is an appropriate matter for the Court to impose an aggregate sentence pursuant to s 53A. It will be necessary to indicate what sentences would have been imposed with respect to the individual offences.

60. With respect to Commonwealth offences, I am satisfied the threshold pursuant to s 17A of the Crimes Act has been satisfied and that no sentence other than imprisonment is appropriate, having considered all other available sentences. I am also satisfied that the threshold has been overcome given the maximum penalties for each of the offences, and the objective seriousness in accordance with these sentencing remarks.

61. With respect to sequence 1, use carriage service to access child abuse material, an appropriate indicative sentence is 26 months from which is to be deducted 30% resulting in an indicative sentence of 18.2 months. With respect to sequence 2, use carriage service possess child abuse material, an appropriate indicative sentence is 30 months from which is to be deducted 30% resulting in an indicative sentence of 21 months.

62. Pursuant to s 19(5) of the C**rimes A**ct, there is a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences. However, I am satisfied pursuant to s 19(6) that imposing a sentence in a different manner is appropriate in circumstances where the ultimate aggregate sentence will result in a severity appropriate to the range of offending.

63. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ); R v Brown [2023] NSWDC 477 at [90]).

64. This was again referred to in RA v R [2024] NSWCCA 149, where the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”

65. In all the circumstances, I have determined an appropriate aggregate sentence with respect to the Commonwealth offences is 26 months imprisonment. Pursuant to s 19AC of the C**rimes A**ct, where a person is convicted of two or more federal offences in the same sitting, and the Court imposes a federal sentence that, in the aggregate, does not exceed three years, and at the time the sentences are imposed the offender is not already serving or subject to federal sentence, the Court must make a single recognizance release order in respect of that sentence and must not fix a non-parole period.

66. I am not satisfied that the present sentence is such that the Court ought to decline to make a recognizance release order. Pursuant to s 20(1)(b)(ii), given at least one of the offences for which the offender is to be sentenced is a Commonwealth child sex offence, I am not satisfied that there are exceptional circumstances such that the offender is entitled to immediate release. Rather, I intend to order that the offender serve a specified period of imprisonment before being released on a recognizance release order.

67. With respect to sequence 15, I am not satisfied that the s 5 threshold has been crossed. However, the sentence I intend to impose with respect to the State offence will ensure the offender is made accountable for his actions and will minimise the risk of re-offending.

68. It is agreed that the offender has spent a total period of 412 days in custody solely referable to the offences for which he is to be sentenced and the commencement date of the sentence will be backdated accordingly.

ORDERS

69. I make the following orders: –

70. With respect to sequences 1 and 2, pursuant to s 53A of the C**rimes (Sentencing Procedure) A**ct 1999 (NSW), the offender is sentenced to an aggregate term of imprisonment of 26 months commencing on 29 May 2024 and expiring on 28 July 2026.

71. The indicative sentences are set out above.

72. Pursuant to s 20(1)(b) of the C**rimes A**ct 1914 (Cth), the Court makes recognizance release order directing the release of the offender after he has served 18 months of the sentence (that is, on 28 November 2025), upon the offender giving surety in the sum of $100 without security, on the condition he be of good behaviour for a period of 8 months until 28 July 2026, and comply with the following further conditions:

(a) The offender be subject to the supervision of a probation officer appointed in accordance with this order. (b) The offender obey all reasonable directions of the probation officer. (c) The offender not travel interstate or overseas without the written permission of the probation officer. (d) The offender undertake such treatment and rehabilitation programs that probation officer reasonably directs.

4. In relation to sequence 15 the offender is sentenced to a Community Correction Order for a period of 2 years pursuant to s 8 of the C**rime (Sentencing P**rocedure) A**ct 1999 (NSW) with the following standard provisions:

(a) The offender must not commit any offence. (b) The offender must appear before the Court if called on to do so at any time during the term of the Community Correction Order.

5. The following additional conditions apply:

(a) The offender is to accept supervision and comply with all directions of Community Corrections with respect to rehabilitation, assessment to determine recidivist risk minimisation measures including internet use restrictions and referral for individual psychological treatment.

6. Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth:

(a) X0004686961 – 32GB MicroSD memory card (that was inserted in OPPO mobile phone) (b) X0004686963 – Honor mobile phone (c) X0004686964 – 2TB WD hard drive (d) X0004686965 – 2TB Portable SSD storage device (e) X0004686967 – 2TB Elements hard drive (f) X0004686968 – 2TB Elements hard drive (g) X0004686970 – 5TB HDD connected to Toshiba laptop (h) X0004686972 – 5TB HDD connected to Toshiba laptop (i) X0004686974 – Toshiba laptop.

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