Bryan Loyson, now aged 26, and is a Belgian native, who arrived in Australia on 11 November 2018. He appears for sentence having pleaded guilty to a number of charges involving child pornography material. The evidence in the case comprises agreed facts and associated documents in the Crown case, a report of the psychologist Mr Jason Borkowski, extracts from the offender's Corrective Services Records and a letter from his mother who is participating in the sentence proceedings via video link from Belgium.
I have been greatly assisted by the very comprehensive written submissions from the Crown Prosecutor and from Mr El-Choufani, who appears for the offender. There is not a great deal in issue. In the light of those submissions it is necessary for me to cover in some detail the circumstances of the offending and the subjective circumstances to justify the sentence of imprisonment which will be imposed.
It is conceded that a term of full-time custody is required and that that term should commence on 8 April 2019 when he was taken into custody. It is also conceded that a 25% discount for the utilitarian value for the pleas of guilty should be allowed in the light of sentencing practices in Commonwealth matters since the ruling in Xiao v R [2018] NSWCCA 4.
The first count (sequence 5) is a charge of using carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth), carries a maximum penalty of 15 years imprisonment.
The second charge (sequence 6) of money laundering, contrary to s 400.6(1) of the Criminal Code (Cth), carries a maximum penalty of 10 years imprisonment.
The next count (sequence 7) alleges that on 25 March 2019 he supplied child pornography material with the intention of it to be used by another person, contrary to s 474.20(1) of the Criminal Code (Cth) and carries a maximum penalty of 15 years imprisonment. There are two matters to be taken into account on sequence 7 on a s 16BA schedule, and they will be dealt with in the way in which Form 1 matters are dealt with in sentencing for State offences as decided by the Chief Justice in the guideline judgment on those matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146). The two matters (sequences 009 and 13) on the s 16BA schedule are offences contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth) of using a carriage service to publish or advertise child abuse material and each carry a maximum penalty of 15 years imprisonment.
R v Loyson [2020] NSWDC 864 | Case summary | Zoe
The next matter, sequence number 8, is using a carriage service to make available child pornography material, contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth), and carries a maximum of 15 years imprisonment.
And finally, sequence 10, a further charge of using a carriage service to transmit child pornography material, contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth),with a maximum penalty of 15 years imprisonment.
A summary of the offending is that the offender used the social media platforms, Snapchat and Tumblr, to promote the sale of child abuse material through his website. That website allowed customers to enter their credit card details to make a payment, after which they would receive an email in their drop box link containing child abuse material files, and over the course of 10 months he accessed at least 2,344 files of child abuse material or child pornography material, as it is variously described in the Crown documents, and he earned approximately $US19,730 from the sale of the child abuse material, including two sales totalling 164 files to an undercover police officer for a total of $110. Putting aside the two sales to the undercover officer he received $19,620 US dollars for 344 transactions.
He also separately disseminated a small number of individual files to other like-minded persons. It is conceded that there was some planning, although it was not a highly sophisticated operation and it is also conceded that the operation was carried out for financial reward, which is a significant matter to be taken into account.
The agreed facts set out the six, well-known categories under the CETS scale. He registered a website in February 2018 before he came to Australia, and it was set up so that from about 1 September a user could enter their details, transfer funds and obtain a link to a drop box. He arrived in Australia on a temporary working visa valid for a year. He opened a bank account, obtained a tax file number and telephone number.
In relation to sequence 10, on January 29 he used a Snapchat account to send five category 1 images, and another five category 1 images two days later, one image and one video, of categories 1 and 2 respectively , three days later. In March 2019 he sent three videos to a group of six recipients; two of which were category 4 videos, and and one video was category 2.
In February 2019 Australian Federal Police received information that his website was responsible for the sale of child abuse material. In March 2019 an undercover officer went onto the website and purchased tape 1 and 2 from the offender's website. From that transaction, 121 video files of categories 1, 2, 3 and 4. Examples of the video files are described at [24] of the agreed facts. The second drop box link contained 47 video files of category 1, 2, 3, 4 and 5, and examples of the video files are set out in at [25] of the agreed facts with a brief description.
The Crown submitted that I should view a sample folder of the material. Mr El-Choufani objected to that course in the light of what was said by Hulme J in R v Hutchinson [2018] NSWCCA 152 particularly at [48] to [50]. I accept the guidance offered there by His Honour. I take the view that particularly since his Honour's judgment was published, Crown Prosecutors appear to have been astute to provide sufficiently detailed descriptions of the material in the agreed facts so as to allow for the possibility that sentencing judges will act as I do in accordance with what Hulme J said namely, proceeding on the basis of the description in the absence of the Crown being able to suggest that there was anything of importance that the Court could not glean from the description set out in the agreed facts.
On 8 April 2019 police executed a search warrant at his room at a youth hostel in Sydney. The offender was present there and a number of items were seized including phones, laptops, credit card, some of which are the subject of a forfeiture order to be made by consent. He provided police officers with passwords to his electronic devices and a number of social media accounts. He was arrested and taken back with the officers where he participated in an interview and said that he was the only person who had knowledge of the passwords. He acknowledged that he was the user of the email accounts. He said that he was currently unemployed and had since been receiving social welfare payments from Belgium in 2018.
Between 1 January and 7 April the offender had utilised the Safari application on his phone to navigate to various websites, apparently containing pornographic material. Officers accessed 2332 image files on the iPhone which he had accessed via the Priority website. The images were between category 1 and category 6. And again there are descriptions of the sample file at [40] of the agreed facts and need not be repeated. On another iPhone officers located 12 images of category 1 and 2 which were described in para [42] of the agreed facts.
As to the publishing count, he had re-blogged 20 images of child pornography material, classified as categories 1 and 2 from other Tumblr users profiled onto his profile.
In relation to the advertising count he would send an image with a proof sheet of video thumbnails depicting children in various sexual acts and advertise that one pack was available with 150 GIFs or videos.
He had authored a note on his phone on 15 September 2018 suggesting that he was going travelling, and it contained material similar to what was found on his Snapchat account in relation to the advertising count. He also authored a note on his iPhone in September 2018 which suggested that he was on the road to a $1000 day. By the end of the July he had an audience of about 12,000 followers. He was making between €300 and €1000 every day by the end of September. The money he was making was basically net profits given his limited expenses.
As to the money laundering count, the transactions between 2 October and 7 April totalling 344 amounted to $US19, 730.
He has no criminal record in Australia or overseas.
The subjective material, set out in report of Jason Borkowski is not contested or adopted, and it is treated with some caution as suggested in cases such as Imbornone v R [2017] NSWCCA 14, but the Crown does not submit that it is not a reasonable basis upon which to proceed and I do so given that it is consistent with material provided by his mother in her letter to the Court, in which she offers support for him resuming a normal life when he is released.
He was born in Brussels. His parents separated when he was in his infancy. He had a good relationship with his father for about eight years but he had no further contact with him after that. He had a caring and normal relationship with his mother who was in regular employment. There were no substance use issues or criminal history on either side of the family. There was a stable upbringing and no violence or abuse. During high school he said that he never fitted in and was having trouble forming new friendships, he was socially isolated, he identifies as being heterosexual and has had conventional sexual experiences since his late adolescence, and accessed prostitutes two or three times, but not regularly. He viewed pornography involving consenting heterosexual adults several times per week. He denied any paedophilic other deviant sexual interests. He has denied any sexual abuse or sexual dysfunction. He had been in regular employment until about a year before coming to Australia. He was completing a dive master course and was interested in working as a scuba diving instructor. He has been working while in custody and the Corrective Services' notes describe him as a core worker in the laundry at Parklea with a strong work ethic, that he is quiet, courteous and respectful with no issues to report and he is an integral part of the laundry according to most recent notations.
He told Mr Borkowski that he had some credit card debt which was part of his motivation for this offending, but as the Crown points out, and as Mr El-Choufani ultimately concedes, financial reward in the true sense of the word was clearly the primary motivation. In the absence of any further evidence I am unable to accept his assertion that he was only going to clear his debts and then cease trading the content.
Mr Borkowski listed a number of issues which are protective against his risk of further offending and while they are in his favour, they are, as the Crown points out, also supportive of the proposition that he was operating for financial reward. Those protective issues include that he did not endorse sexual violence or child abuse. He has no anti-social, psychopathic tendencies. He has age appropriate intimate relationships. There is no prior sexual deviancy or distorted attitudes. He had an understanding of consent in sexual boundaries and had adequate general self-regulation skills. He had no substance use disorder and no history of physical or sexual abuse. Although Mr Borkowski acknowledges the deficits in his ability to engage and develop stable and appropriate social relationships as among matters which should be targets for intervention during any rehabilitation, community and custody based treatment programs are set out by Mr Borkowski and it would be advisable to pursue such programs.
I have taken into account the sentencing principles in these matters set out in the Crown's submissions and the various factors summarised in Minehan v R [2010] NSWCCA 140 and R v De Leeuw [2015] NSWCCA 183 which should be taken into account. Ultimately I accept the submission for the offender that sequences 7 and 8 are around midrange of objective seriousness and the other counts are slightly below midrange. I take into account, as Mr El-Choufani points out, a number of factors common to sequences 5, 7, 8 and 9 being that he had no connection to those responsible for bringing the material into existence, he had no contact with children in connection with obtaining or making it, he acted alone, there was no evidence that was it acquired by or seen by vulnerable people, there is no evidence of it being acquired by people susceptible to acting in the manner described.
In terms of the dealing with the proceeds of crime charge I take into account what was said in R v Dennison [2011] NSWCCA 114, namely that double counting should be avoided, but there still should be a separate sentence to recognise the criminality of the individual offence.
It is accepted that some degree of accumulation between the sentences is warranted to reflect the different kinds of conduct, the different types of files, different recipients and discrete time periods involved.
I take into account his previous good character and the good work ethic demonstrated in custody. In the absence of any anti-social tendencies or connections I think his prospects of rehabilitation are good and the risk of re-offending are low.
Taking into account the new section in the Crimes Act 1914 (Cth), s 16A(2AAA), from 20 July 2020 I must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate to make any order imposing conditions about rehabilitation or treatment options, and in determining the length of any sentence or non-parole period to include sufficient time for the person to undertake a rehabilitation program. I will, as I have indicated, take those matters into account while not displacing or overriding the requirement that a sentence must be of a severity appropriate in all the circumstances.
I have been taken to a number of cases for the purpose of indicating a broad range of sentences which have been imposed in these types of matters including R v Denison [2011] NSWCCA 114, R v Dittman [2017] QCA 302, Burbidge v R [2016] NSWCCA 128 and R v Martin [2014] NSWCCA 283 provided by the offender. The Crown's bundle included R v Denison [2011] NSWCCA 114, Mara v R [2009] QCA 208, Fitzgerald v R [2015] NSWCCA 266 and Columbus v R [2007] QCA 396.
His long standing social anxiety as diagnosed by Mr Borkowski is, as Mr El-Choufani puts, relevant to two matters, firstly, the hardship in custody that he will undergo particularly being a foreign national with no support in the community, but also the importance of rehabilitation. As I have indicated, Mr Borkowski recommended regular psychological intervention to address his anxiety, depressed moods and social and inter-personal functioning. I note that he has been placed in a special management area placement, given his genuine and reasonably held views for his safety as a consequence of these charges and Corrective Services has assessed the likelihood of a threat occurring as a real and immediate concern that could result in serious injury or death.
He pleaded guilty at an early opportunity. He co-operated with authorities and expressed his contrition and recognised the harm caused by his offending, to the psychologist, who found that it appeared to be a genuine demonstration of remorse and empathy and he did not minimise or excuse his offending. He co-operated with law enforcement officials by providing the codes to which I have referred and making admissions in the interview.
There should be some degree of concurrency between sentences but there is a need for some accumulation given the separate criminality of each of the offences in the schedule matters.
The orders that I make are as follows:
1. The offender is convicted of each offence.
2. The indicative sentences are, taking into account the 25% discount for the plea of guilty:
1. 005: 11 months;
2. 006: 13 months;
3. 007 taking into account the matters on s 16BA form (009, 013): 30 months;
4. 008: 18 months;
5. 010: 18 months.
1. I impose an aggregate sentence of imprisonment of 4 years, to commence on 8 April 2019.
2. I impose a non-parole period of 2 years, 6 months, expiring on 7 October 2021.
FORFEITURE ORDERS
1. I make forfeiture orders pursuant to s 23ZD of the Crimes Act 1914 in relation to the following items:
1. Apple iPhone A1784 (BL07 on PSR M370708);
2. Apple iPhone XS (BL08 on PSR M370708);
3. Apple Laptop (BL09 on PSR M370708).
NON-PUBLICATION ORDERS
1. The non-publication order in relation to the address of the offender's website, dated 19 April 2019 is no longer necessary and is to be lifted.
Note - These extempore remarks were revised without access to the court file.
[2]
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: 08 March 2021