R v MacDonald

Catchwords: CRIME - child sex offences – child abuse material - use carriage service to access child abuse material – use carriage service to possess/control child abuse material

Legislation Cited: Child Protection (Offender’s Registration) Act
Commonwealth Criminal Code
Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Cases Cited: Cayhadi v R (2007) 168 A Crim R 41
Cowling v R [2015] NSWCCA 213
DPP v Garside [2016] VSCA 74
Makita v Sprowles [2001] NSWCA 305
R v Bredal [2024] NSWCCA 75
R v Gent (2005) 162 A Crim R

Category: Sentence

Parties: Commonwealth Director of Public Prosecutions (Crown)
Rohan Samuel MacDonald (Offender)

Representation: Counsel:
Ms S. Anderson for the Offender
Solicitors:
Commonwealth Director of Public Prosecutions for the Crown
The Local Court Lawyers for the Offender

File Number(s): 2023/00436587; 2024/00026178; 2024/00038229

JUDGMENT

Introduction

1. Rohan Samuel MacDonald (“the offender”) appears for sentence in respect of five offences under the Commonwealth Criminal Code (“the Code”). In addition there are two matters listed on a section 16BA schedule (“the schedule”) with item 1 to be taken into account in respect of sequence 1 of H number ending 085 (the offences will be referred to in the style “H085/1”), and item 2 to be taken into account in respect of H892/5. The maximum sentence for each of the offences including the schedule matters is 15 years. I take the maximum sentences into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offending to assist in arriving at the appropriate sentence.

2. The Crown bundle which became exhibit A had a cover sheet which lists the seven matters just referred to. If reorganised into chronological order it shows that the offender was accessing child abuse material for a period of almost 18 months between 2 November 2021 and 26 April 2023 (H381/1). He then engaged in conduct with young females, communicating with them in obtaining child abuse material which were almost all photographs of the young females concerned. That occurred in the period 23 February 2023 to 27 June 2023 (H085/1 and H085/2). The nature of the offending then again changed so that the conduct between 6 July 2023 and 10 October 2023 was using a carriage service to procure a person under 16 years for sexual activity (H892/5). The last offence was being found to be in possession of child abuse material following a search conducted on 11 October 2023. The offender was born on 8 March 2003 so that he was 18 at the beginning of the offending and 20 at its conclusion. That chronology assists in seeking to properly assess the facts and circumstances and outcome of this case.

3. The facts of each offence are set out below, followed by my assessment of the objective seriousness of the offence. This includes consideration of the schedule matters. The matters are dealt with as they appear in the agreed facts, that is, not chronologically. The facts are set out in some significant detail in exhibit A in a document headed agreed statement of facts and which runs for some 40 pages. Being part of exhibit A that statement is in evidence and the more brief summary set out below should not be seen in any way to minimise the seriousness of the offending being dealt with.

4. In considering objective seriousness I have been assisted by the Crown’s written submissions (CWS) including at [13] which helpfully set out relevant factors when assessing the objective seriousness of offences involving child abuse material and citing cases such as DPP v Garside [2016] VSCA 74 and R v Gent (2005) 162 A Crim R. In relation to the accessing and possession offences it is plain that actual children were used. It is also plain that the offender acted alone and that there was minimal risk of the material being seen by others. Generally speaking he was also, apart from his direct involvement with the 3 14-year-old females, not in close proximity to those creating the material the subject of the access charges. Other matters more specific to the various charges are referred to below.

The facts and objective seriousness

H085/1, s474.22(1) and item 1 on the schedule

5. The first charge appearing on the schedule to exhibit A is H085/1, an offence under s474.22(1). There is also a matter under s474.23(1) which is item 1 on the schedule. The primary charge is of the offender using a carriage service to cause child abuse material (CAM) to be transmitted to himself in the period 23.2.23 to 27.6.23. The schedule matter is under s474.23(1) of producing CAM with intent to breach s474.22 in the same period. The agreed facts deal with the facts of both these matters together. This was a sensible approach because there is a large degree of overlap in the two offences and much of the conduct causing the transmission of the CAM is conduct that also satisfies the element of the production of CAM. That conduct of production is conduct whereby the offender is suggesting to the child concerned, or directing that child, identified as MR, as to what to do in the creation of the CAM, eg to involve another female. By reason of this significant overlap, the schedule matter does not add meaningfully to the sentence for the primary offence.

6. On 25.2.23 the offender initiated a conversation with MR who was 14 years old and asked her if she would sell nude pictures on snapchat so he can’t save them and no one will know. He directed her to take photos and videos, including fingering, i.e. digital penetration of her vagina, though it is not clear from the facts that any such imagery of such an explicit nature was produced or sent at this point in time. The victim and offender negotiated the price of the photos to be sent. On 17.3.23 the offender paid MR a total of $365. The only example given of an explicit photo sent at this time was of MR’s “bum” with underwear on.

7. On 28.3.23 the offender again negotiated with MR for the purchase of images to be sent to him electronically. There was an agreement for the offender to pay $100 and MR sent him a video of her inserting her fingers into her vagina and rubbing her vagina with her fingers. MR was 15 at this time; see table at [11.4] of agreed facts.

8. MR chased the offender for payment on 31.3.23 and on 5 and 27.4.23. On 27.4.23 following a discussion MR sent a video of a female's exposed breasts being rubbed by the female with oil. A discussed masturbation video is not referred to in the facts as being sent. There then followed further communication as to whether the image was of MR; this included messages concerning supposed removal of breast implants. MR apologised to the offender and stated she was only 16.

9. On 28.4.23 there was more communication, including as to whether MR was attractive and of her ex boyfriend. The offender’s comments come across as ingratiating in nature e.g. that she has “an amazing body” and was “hot”. The conversation on this day also included the offender asking if MR thought he was pathetic for buying nudes and MR replied that she did not think so. Ultimately MR sent a video of her stripping to become fully naked followed by 4 videos of MR naked, and including bending over to expose her vagina from behind. The offender had sent $100 for these 5 videos.

10. On 20.5.23 MR sent a message to the offender asking if he wants her to send stuff; MR again asks him this on 24.5.23. At that time he says he has no money and to give him 2 weeks.

11. On 12.6.23 the offender asked MR if she would “take nudes with another girl”. MR replied maybe. A price of $10 per photo was agreed.

12. On 13.6.23; the offender received 9 CAM images; including 2 girls wearing underwear and kissing; $50 was paid by the offender.

13. On 14.6.23 the offender bought 18 CAM images including of MR and a third person wearing only briefs; $170 was paid.

14. On 20.6.23 the offender bought 23 CAM; they are of MR with another young female; wearing only underwear (7 images) and the rest fully naked. $100 was paid and a further $65 paid on 27.6.23

Objective seriousness

15. The number of images is not voluminous and some are fairly low in terms of indecency or in terms of abuse material. The initial image sent was of MR’s bottom, wearing underpants.

16. At the other end of the scale there was a masturbation video.

17. The money involved is notably modest, though clearly enough to induce the creation of the images.

18. There is a progression in the offender’s behaviour; it commences with low level imagery, then develops to greater abuse, firstly to masturbation, and secondly to the involvement of another female. This clearly fits with predatory and grooming behaviour. Yet at the same time some of the conversations are reflective by the offender; eg asking if MR thought he was pathetic, almost as if MR is a confidant more than a target. Consistent with this view is that the age disparity is a modest one.

19. In my view whilst it goes without saying that this is serious offending, it is not a serious example of it. To the extent it may be considered useful, I would not assess it as reaching the mid range, so below mid.

H085/2; s474.22(1)

20. This is a second charge of using a carriage service to cause child abuse material to be transmitted to himself. It occurs in the period 12.6.23-27.6.23. The offending involves a 14 year old female identified as TH. The agreed fact is oddly worded as it states the Crown “contends” that the offender communicated with TH; my understanding is this is agreed. The inference in the agreed facts, which I accept is that TH is the second girl referred to in the facts concerning sequence 1. From 12.6.23 to 27.6.23 D paid $505; of this, $385 paid for sexually explicit photos of TH that the offender received from MR. It is not stated how many images were sent, nor of what they were. The inference must be they were the photos of TH with MR, which forms part of the offence of sequence 1, so there is considerable overlap, something emphasised by the fact that reference to the facts of sequence 1 is necessary to determine by inference the number of photos involving TH. On that basis, and based on the table at [33] and [35] of the facts there were 41 photos of MR and TH together. There were 5 payments to TH, 4 being on the same day payments were made to MR.

Objective seriousness

21. The number of videos is modest.

22. The conduct in the videos is towards the lower end of abuse.

23. The money is modest, but like with sequence 1, plainly enough to induce the conduct of TH and the transmission of the material.

24. Given the low degree of involvement with TH and relatively low level imagery overall, I would assess this in the low range of seriousness.

H318/1, s474.22(1)

25. This offence is of using a carriage service to access child abuse material in the period 2.11.21-26.4.23

26. A search warrant was executed on 11 October 2023 and a laptop, 2 computers and a mobile phone were found. An examination of the devices found CAM. The offending involves the use of what are referred to as 3 mega accounts.

27. In respect of the first account, from 2.11.21 to 7.6.22 the offender accessed the account 18 times. 61,370 videos, 18881 pictures and 336 images from social media and 2 audio recordings were accessed. Examples of the material are extensively described in the agreed facts and include oral sex on a male aged 1-2; a 6-8 year old child's hands on an erect male penis to masturbate the man and then penetration of the child; a 46 min video of a 6-8 year old performing oral sex on adult male and then intercourse occurring and ejaculation on the child’s face.

28. Another example given is of an adult female using a child’s hand and foot to penetrate herself; oral sex on a child is shown; another video is an adult male forcing his fingers into a child's anus and vagina at same time. Item 38 at [48] of the facts is of a baby 6-12 months old, with an erect adult male penis next to the child’s vagina, with ejaculation having apparently occurred.

29. A second mega account showed access to 80,123 items of CAM. This was accessible from 4.7.22 to 18.11.22; the offender accessed this 20 times up to 25.11.22. The videos include oral sex and ejaculation onto the face of children. The children’s ages range from 4 to 12.

30. A third mega account showed access to 2278 items; access was between 31.1.23-26.4.23. This account was accessed 8 times up to 7.5.23. Examples of these images descends to beastiality, with a child giving a dog oral sex and a dog licking a vagina. Male ejaculation into a 6 year olds mouth is depicted.

Objective seriousness

31. The imagery is at the highest level of degradation and deviancy and abuse. The children are extremely young, and the acts are of penetration of children as young as 2. The imagery also includes beastiality.

32. The volume of material accessed is staggering, in excess of 160,000 images.

33. The facts show mega account number 1 allowed access to almost 80,000 images. Yet over an approximate 6 months the account was accessed 18 times, so approximately 3 times per month. With account no. 2 it had a similar number of items and was accessed a similar number of times (20) over a similar period (4 ½ months). There is then a 2 month gap of no access, followed by some 4 months of access to account no. 3 which was accessed 8 times, so 2 times per month, and with a far lower number of images, namely 2278.

34. As observed by Mr Sheehan, it would seem impossible that the offender could have looked at all the CAM. In saying that it is acknowledged that the charge is “accessing” CAM.

35. The offending thus reflects the highest level of degradation, an enormous volume of material, and yet diminishing criminal conduct as the access decreases and then ceases altogether some 5 months before the offender comes to the attention of police, and 2 months after his 20th birthday.

36. This is plainly a serious example of this type of offence, and on balance is into the mid range.

H318/4, s474.22A(1)

37. This is a charge of possess / control CAM using a carriage service. From the same police search referred to above, police seized a samsung phone and a PC tower on 11.10.23. The total number of images is said to be not known, and the sentence needs to be on known numbers, which is 35 images and 15 videos of CAM detected on the phone, and some 20 on the PC tower, making out the charge. Examples of the imagery from the phone are a 12-14 year old girl exposing her breasts; a female saying she is 16 and masturbating including inserting a dildo; a female wearing a swimsuit pulled down; a 14-16 year old inserting a make up brush into her vagina. The ages of the children involved are 12-16 years.

38. Examples of the images from the PC include a male child having sexual intercourse with an adult female; a female child having oral sex with an adult male and also a child performing oral sex on an adult female. The age range is 4-10 years.

Objective seriousness

39. The number of images is small.

40. The age of the children includes the very young.

41. More depraved conduct can be envisaged, yet the conduct involved is most serious, including sexual intercourse with toddlers.

42. On balance this is not an overly serious example of this type of offence and I would assess it in the low range.

H892/5, s474.26(1)

43. This offence is of using a carriage service to procure a person under 16 years of age for sexual activity. The period of the offending is from 6.7.23 and goes to 10.10.23. There is an initial online conversation between the offender and JS; JS is 14. The offender sends JS a picture of his penis and says he is 16 when he is in fact 20. Soon after the communications started the offender and JS started “dating” and using pet names. The offender asked for explicit images of JS, and sent JS explicit photos of himself. JS then offered to, and did, send naked photos of herself. The offender intensifies the content of the conversation to become graphic descriptions of how he would have sex with JS. There is talk of females “cuming”, talk of the offender’s penis and how it is all hers (JS’s) to use and much talk of love; both use the acronym ILYSM (I love you so much). There is reference by the offender to a threesome and they also discuss the offender masturbating. They discuss meeting in person, and finally meet in person on 17.9.23 and have lunch and go to the beach. JS’s parents take JS to the lunch. On 10.10.23 the offender confesses his age; they discuss it; she says she is 14; she says she has to block him, does so, and tells her parents of what has been occurring.

Objective seriousness

44. On one view this is plainly grooming behaviour. The offender admits he sought to procure sexual activity.

45. The content of the communications varies greatly; from what might be termed teenage declarations of love, (albeit the offender is an immature 20), to graphic descriptions of sex grossly inappropriate for a 14 year old.

46. On another view, the objective fact of the offender being young is relevant. The age disparity is a significant matter, but not so disproportionate as to add greatly to the seriousness of the matter. Further, there are parts of the conversation which have a ring of two adolescents finding their way in matters of sex and relationships, in a way not dissimilar to what was noted with H085/1 above and of MR being a confidant.

47. Even the meeting in real life is ambiguous; doubtless it was a step towards fulfilling sexual activity; yet it was not arranged to meet at some motel, but rather to have lunch and go to the beach, much in the way of a healthy relationship.

48. The Crown helpfully referred to s474.29AA of the Code, which requires the court to consider the maturity of the victim and the number of people involved in the commission of the offence.

49. Taking the above matters into account, I consider this to be a fairly mild example of this type of offence and would assess it below the mid range of seriousness.

Item 2 of the Schedule (in relation to H892/5)

50. This offence is to possess / control CAM using carriage a service. This offence arises from the fact of the offender receiving explicit material from JS and then saving them on to his phone. The images included JS totally naked and of her breasts. This conduct has been taken into account in determining the seriousness of the the primary offence. It does add to the gravity of the situation as it constitutes further offending. As an example of a s474.22A offence it is fairly low level, in both terms of quantity of the images and the nature of the images. It is taken into account in the way the schedule procedure requires.

Arrest

51. The offender was arrested on 1 December 2023. The offender agreed to an interview in which he made some admissions, but he denied at that time the matters concerning MR. The schedule to the Crown bundles states he was again arrested on 31 January 2024, though why this was so is not stated. The offender has spent 3 days in custody in relation to these matters.

Subjective case

52. Being a Commonwealth offence the NSW statutory provisions relating to the consequence of a plea being entered at the early stage in the Local Court do not apply. In this case the offender did enter his plea at that early time in the Local Court. There is plainly a significant utilitarian value in the plea, for example in this case there was no need for any trial and the possibility of the young people involved needing to give evidence was avoided. I accept the Crown point that there was a strong case particularly in relation to charges of accessing and possessing child abuse material which may have proceeded without evidence other than what was found on the devices in the possession of the offender. I consider it appropriate to allow a discount of 25%.

53. The offender has no criminal history. The Crown submits that in cases such as these less weight is to be given to prior good character as a mitigating factor. That point is made out in this case given the duration of the offending which was a period of 23 months so that it can be said that he was of less good character in the latter part of the offending than the early part. Even then the argument is that there should be less leniency for the earlier part of the offending. I accept the Crown submission in this regard. There will be some leniency due to the lack of a criminal history but it is tempered by the above considerations.

54. A sentencing assessment report was prepared dated 4 April 2025 along with a structured case note by Communities and Justice dated 31 March 2025. The history given to the sentencing assessment report writer was of a young man who had grown up without any disadvantaged background, had completed year 12, lived with his parents and was presently financially dependent on them having lost his job due to these charges. He made a frank acknowledgment of having done the wrong thing. He told the report writer his sexual preference was for female children aged 13 to 14. There is no significant history of drug abuse and in fact none other than he used MDMA and engaged in some binge drinking for a time after the charges were laid and is now abstinent. He is willing for intervention and is in fact saying a psychologist.

55. An assessment was made of a low risk of reoffending for nonsexual matters. The report then notes the offender has been assessed as an above average risk of sexual reoffending based on the Static 99 scale by a Corrective Services psychologist and goes on to say that community corrections has overridden the offender’s overall risk of reoffending to be high pending the result of a further assessment. That statement at page 3 of the report is a “bare ipsi dixit” of the type referred to by Heydon JA (as his Honour then was) in Makita v Sprowles [2001] NSWCA 305, for no reason is given for this elevation in the risk of reoffending.

56. The report sets out a supervision plan should a supervised order be made. This would require contact with community corrections each week, home visits every 8 weeks, referral to psychology services, assessment for suitability to engage in the EQUIPS foundation program, ongoing checks with his family and psychologist to monitor his progress and reference to an alcohol and other drug service for relapse prevention. As an observation that degree of supervision coupled together with his ongoing treatment with Mr. Webster referred to below together with restrictions on access to the Internet would be very effective in achieving the rehabilitation of the offender and protecting the community.

57. The structured case note states that the score of the offender meant that he was 2.7 times more likely to reoffend than the typical sex offender. That assessment is based on the static test so that dynamic factors peculiar to the offender have not yet been taken into account for the assessment, which somewhat unhelpfully for the sentencing exercise routinely only occurs after the offender has been sentenced. A difficulty in these types of assessments is that the risk of a “typical” sex offender offending is not stated, so the fact that a person may be 2.7 times more likely to reoffend, or 30 times more likely to reoffend is of little meaning as the base reference is not known. I note that a report of this nature was commented upon by Leeming JA in Cowling v R [2015] NSWCCA 213, eg at [42]. Leeming JA said it is difficult to make much use of the report (as here) when it refers to a “typical” sex offender without identifying what the characteristics are of such a person. I note the static scale utilized by the structured case note was a score of +5; similar testing carried out by Mr. Webster and Mr. Sheehan respectively returned scores of +3 and +4.

58. The structured case note says that if there was to be a custodial sentence the offender would require referral to the sex offender therapeutic programs unit to be assessed for suitability for sex offender treatment. It is said that being above average risk range the offender would likely be considered for sex offender treatment programs in custody and would also be considered for referral to general offending treatment programs which would also be available to him in the community. Based on this report the treatment being recommended would be no better in the community than in custody.

59. The offender tendered a bundle of material that was admitted as Exhibit 1. Included in that material were two testimonials and reports of two psychologists namely Mr Patrick Sheehan and Dr Gerard Webster as well as a letter from a further psychologist, Rebecca Shears.

60. One testimonial was from the offender’s father and the other letter confirmed the offender had since May this year been carrying out volunteer work at a nursery.

61. The offender’s father, Garry MacDonald, is plainly very supportive of his son and that is to the offender’s advantage. He describes his son as a determined young man who is compassionate and kind. The offender assists with day-to-day tasks around the house. Mr. MacDonald was understandably shocked when informed by police of the nature of these charges which he says are completely out of character for the offender. He states that the offender has expressed full and great remorse and is deeply upset by the hurt and damage he has caused the victims and their families and his own family. He notes that the offender's behaviour towards his sister has been exemplary. He states that the offender has and will continue to have the support of Mr. MacDonald and his family. He offers the opinion that incarceration would be a “stumbling block” in his efforts at rehabilitation. He also talks of the possible impact of a term of imprisonment on his son's hopes.

62. Following being charged the offender lost his job. It was said during the hearing that the police attended his workplace at McDonald’s and arrested him in full view of his workplace and work mates. One might wonder just why that approach was taken but no submission was made about this and I put it to one side. In about May of this year he then commenced working 1 or 2 mornings a week on a volunteer basis with an organisation called “friends of the koala” which involves doing general nursery activities. I infer the offender did this to keep himself occupied rather than getting engaged in employment pending the outcome of this hearing.

63. Rebecca Shears is a psychologist who treated the offender on 21 December 2024 following a referral from a GP in line with a mental health treatment plan. There were further sessions in February (twice), March, April (twice) and May with, at the time of the report dated 16 May 2025, a further session scheduled. She states that he presents with symptoms of anxiety and depression. Testing indicated he was experiencing severe levels of distress consistent with a diagnosis of severe depression and/or anxiety disorder. The report refers to support he gains from his brother’s ex-girlfriend. Ms. Shears refers to a letter she provided the GP which included a statement that the offender experienced suicidal ideation with no specific plan or intent. This is triggered it seems by his worry as to how his criminal history will impact on his life goals.

64. The Crown required both Mr. Webster and Mr. Sheehan for cross-examination. I will refer to their oral evidence below. The first report in time was that of Mr. Sheehan. A full history was taken. In his summary he states that the offender reports a basically stable family life during his development and was not subject to significant disadvantage or social deprivation. The offender described a basically normal early sexual development and no pressing psychopathology in his earlier life. There are no indications of antisocial orientation nor a broader pattern of callousness or exploitative behaviour. Mr. Sheehan says there is little to assist in understanding why he chose the cause of action he did, meaning the offending other than his acknowledgment of interest in the forbidden and his normalisation of exchanging money for sexual images. Mr. Sheehan says that the offender's shame is a barrier to his ability to candidly explore the self-perceptions that supported his behaviour. He states it is encouraging that the offender acknowledges these offences and does not shy away from the harmfulness of his actions.

65. The report notes that the offender commenced working while still at school at age 14 and worked full time once he had finished school. His bail conditions prevented dealing with young people which meant that work ended. His long-term plan is to do an apprenticeship as a car mechanic but with the limitations of his bail he has decided to await the completion of these proceedings before progressing that. It is noted the offender appeared demoralised and under occupied for a young man of 22 years.

66. When asked about the offending the offender said that “it felt good to have stuff I shouldn’t have”, but denied any sexual element to accessing the child-abuse material and flatly denied any sexual interest in prepubescent children. Mr. Sheehan considered that account was incomplete and he was providing the least uncomfortable explanation. There is no connection between the abuse and any use or abuse of substances.

67. At paragraph 15 Mr. Sheehan addresses the issue of pedophilia and concludes that he would suggest some caution in applying the pedophilia label to the offender given that the offending occurred when aged 18 to 20 years as he entered early adult life. Mr. Sheehan notes that a diagnosis of of pedophilia disorder requires that the subject experiences intense sexual arousal towards children aged 13 years or below persisting beyond six months and causing serious problems in life. Despite the offender’s denial of a sexual interest in children, the interest in children aged under 13 is inferred by his behaviour (namely the amount of CAM accessed) so that the diagnostic criteria is met. The offences against the three known complainants suggest the offender’s deviant interests are not restricted to prepubescent females but extend to teenage girls with secondary sexual characteristics which is not typical of pedophilia disorder in its classic form. He says this may lend some weight to the offender’s account of being interested in the forbidden, or “taboo” as a focus of interest, being excited by the forbidden itself. Hence why he would be cautious in applying the pedophilia label. Mr Sheehan’s opinion was it was not safe to assume the offender’s deviant interests would remain with him over the life course.

68. The offender stated he understood the behaviour to be wrong but that it was only on reflection after being charged that he appreciated that he was contributing to a demand for the market in the abuse of children.

69. Mr. Sheehan assessed the offender to be in the above average range of risk of reoffending using standard actuarial risk assessment tools such as the Static 99. Mr. Sheehan arrived at a score of +4. He noted a dynamic risk factor of deviant sexual interest but said the risk profile is softened by the absence of antisocial personality orientation, which suggests he can adjust his behaviour in response to sanction. This led to an assessment of moderate or medium relative to other sex offenders.

70. Unlike the sentencing assessment report and structured case note Mr. Sheehan is not so sure that the offender would be offered sexual offender treatment in custody. His view is that the optimum treatment pathway is to reengage with Dr. Webster in the community. I note that that re-engagement has in fact now occurred.

71. Lastly it is noted that the offender has developed an adjustment disorder with depressed mood since being charged, something worsened by the state of stagnation in his life pending sentence namely no work or positive focus. He states it is more probable than not that his condition would worsen by entering custody.

72. When Mr. Sheehan was cross-examined he was asked how he reached the conclusion concerning the pedophilia diagnosis which he refrained from making. His evidence was that pedophilia does not have a remission rule under DSM V so it sits with the person forever. Reading that with his report he seems to be suggesting that given that there were reasons to think the offender’s deviant interest may not remain with him it was inappropriate to make the diagnosis. In his evidence he stated that the diagnostic criteria for pedophilia was developed before child abuse material which given his following evidence was a reference to its easy availability on the Internet. His evidence was that if you possessed child abuse material at the time that the diagnostic criteria was developed it would have required a certain determination to obtain it, reflecting a fairly rusted on interest, compared to now where the material is, as Mr. Sheehan expressed it, just a click away. He went on to say that he would hesitate to make the diagnosis because of the offender's young age and that he is emerging into adulthood.

73. In terms of the view that the motivation to obtain the material was to engage with what was taboo he was asked why of all matters that are taboo the offender would have settled on child abuse material. Mr. Sheehan said he considered that and answered that it is perhaps the most taboo of topics. He referred to what he had recorded in his report namely that the accused said that it felt good to have something he shouldn’t. He explained that the offender experiences a thrill in discovering something he should not have, which is a non-sexual thrill, but that there was also a sexual arousal.

74. He said that if the static assessment of reoffending was the lower score of +3 as assessed by Mr. Webster as opposed to his assessment of +4 then there would be even less chance of the offender receiving appropriate treatment in custody.

75. The reports of Mr. Webster were not as thorough as those of Mr. Sheehan, save for a lengthy risk assessment. The first report or letter simply stated that he assessed the offender as having a major depressive episode being a letter dated 12 May 2025. He expressed the view that the offender was likely depressed at the time of the offence but later recanted from that position. He noted that he had seen Mr. MacDonald for treatment on a self-referral on 26 March 2024 and later received a referral from his GP in April and he saw him twice that month. He recommends that the offender continue treatment which at the time was financially difficult. Mr. Webster’s opinion was that the offender has a very favourable prognosis both in terms of improvements with mental health and significantly reducing his risk of recidivism

76. The second report of Mr. Webster was dated 30 September 2025. It is in that report that he revises his opinion as to the state of depression at the time of the offending and he adopts the view of Mr. Sheehan of an adjustment disorder subsequent to arrest rather than major depression as first thought and he is now inclined to take the offender at his word that he was not depressed prior to or during the offending.

77. Mr. Webster accepts Mr. MacDonald’s explanation for his offending being founded in risk taking or as described by Mr. Sheehan “taboo” as his primary motivation though there is the sexual element. Like Mr. Sheehan he is reluctant to apply the label of pedophilia.

78. There has been further treatment following the April sessions which recommenced on 26 June and has been weekly since that time period of now almost four months. They have been 8 sessions and 4 others canceled by Mr. Webster due to availability issues.

79. Psychometric testing was undertaken and a profile produced that suggests his depressive symptoms have reduced to the point that it no longer warrants a diagnosis. His profile suggests under pressure he becomes avoidant and dependent. The scoring suggests he genuinely cares for the welfare and needs of others. The views expressed by Mr. Webster are of the offender being a person who shies away from coming to the forefront in any group and is a person who tends to undersell his strengths. He tends to disengage.

80. The treatment goals were broadly twofold. The first is to address the risk of recidivism by building awareness of the law and ethics relating to sexual offences against children including the impact on victims, and secondly to reestablish the social relationships and return to the workforce as soon as his legal circumstances allow. He functions best when engaged in meaningful and rewarding employment and has a peer network with prior social hobbies to build his self-confidence and community integration.

81. This treatment has now been ongoing for some months. Mr. Webster says the offender has shown considerable insight in the recidivism area of treatment and the impacts on his life and perhaps more so on the lives of victims of child exploitation.

82. Mr. Webster considers the prognosis in terms of the offender’s mental health is very positive given the improvements already made.

83. Mr. Webster carried out an assessment of the risk of reoffending which was quite detailed. He referred to the static testing and also discussed the dynamic risk. He noted in relation to the static 99 test it was developed primarily for hands-on contact offenders and was not “normed” for individuals who had engaged in noncontact sexual offences and stated its use remains contentious in cases such as Mr. MacDonald’s.

84. On his assessment on the static 99 test the score was +3. The dynamic factors were then considered which includes risk factors and protective factors. The conclusion reached was that the score under the static test was in the average risk range. This is when the focus was on the identifiable victims exclusively.

85. Interestingly and I think persuasively Mr. Webster noted that the offender desisted from accessing the abuse material in early 2023 six months (or five months) prior to his detection and there is no suggestion that he has relapsed. In other words there has been no accessing of child abuse material now for some 2 ½ years.

86. Mr. Webster does note that the progression from accessing CAM to procuring is an escalation. On the other hand he notes as the offender matured from a 19-year-old who accessed the material to a 21-year-old (20) he felt guilt and decided to cease his procurement activities, he came to recognize that both forms of child exploitation were harmful to his victims, hence his confession to JS. This opinion is treated with caution, as the cessation of his activities with JS was not of his own volition, but only when found out by JS. Allowing for that, I consider the apology and admission made in that exchange with JS shows that he does have that recognition of the harm of his conduct.

87. Mr. Webster states that at still only 22 years of age the offender falls into the range developmental psychologists refer to as an “emerging adult”. At page 15 of his report he says:

“this category refers to a developmental phase typically spanning the ages of 18 to 25 in keeping with advances in neuropsychology. Mr. MacDonald is clear that he did not want to assume the full responsibilities that come with adulthood. Upon graduating from school he preferred to get a job that would give him an income with the minimum of challenge. He was offered promotions presumably because he worked well but he did not want to take on more responsible roles just yet. He was effectively giving himself lengthy gap years fully intending to commit to a career when ready. In the meantime he was happy to have drinks on Friday night with friends and work on his vintage car. Mr. MacDonald asserts that coinciding with the cessation of online sexual offending he reached a point of preparing to enroll in TAFE to begin his training as mechanic. His arrest created a barrier for him to take the next steps in this endeavour”.

88. The report goes on and it pays to set it out in full:

“In the absence of severe psychopathology I consider it likely that Mr. MacDonald’s offences, occurring in the first half of his developmental phase as an emerging adult were artifacts of his immaturity. He was happy to extend his adolescence for longer than is typical yet he sought stimulation by the thrill of sexually transgressive behaviour. Mr. McDonald’s voluntary and self initiated desistance from engaging in sexually abusive behaviour is a strong indicator that his maturation process was self-correcting. Now with the strong reinforcement of that correction that comes with being held to account by the justice system Mr. MacDonald has had great cause to reflect more deeply on the implications of his offending and thereby strengthen his resolve to never reoffend. With this in mind I am not inclined to increase the assessed level of the static risk because of his CSE (CAM) offending”.

89. For these reasons he arrives at a risk of recidivism as below the average risk.

90. Dr. Webster was cross-examined on this report. In some brief further evidence in chief he was asked about the fact that the offender admitted to JS that he had lied to her and what if anything it told us about the offender. The answer was that it showed he had a moral compass and that as he got older he got to a point where he did not want to continue (I infer the offending conduct). Dr. Webster said he could have just broken it off but he explained it to her in a sincere powerful conversation. Whilst what occurred was not healthy he said there was something real in the mix. The evidence was of the offender achieving some maturation; that is, as I understand it, he has moved through his delayed adolescence so that by the time he was detected he was closer to emerging into adulthood and therefore further away from the offending.

91. In cross examination Dr Webster stated that the offending was driven primarily but not only by the excitement factor and that based on psychometric testing and other information it was out of character. This was supported by the history that is he was not in trouble at school and had been working from 14 and from an outside point of view nobody would suspect this behaviour. By and large the offender is prosocial but there are psychological aspects that led to the offending which is what the ongoing treatment is aimed at. The fact that the access to the material had ceased was a promising sign as his psychological functioning had changed.

92. When asked about protective factors he answered that it was based on the matters set out in the report, and the psychometric testing and the self-control demonstrated since being detected (which I have noted already was now some 2 years ago). In addition to that he has been wholly compliant with his bail and Dr. Webster noted that events that could be triggers had occurred such as challenging discussions he had had in treatment concerning his sexual history, his offending and family functioning. He observed that he seemed to have always self regulated but for the offending. His discipline was compared favourably to other offenders who seem to retreat to the Internet whenever something goes wrong.

93. It was put to the expert that the desire of the offender to move away was avoidant behaviour. The answer to that was that he does want to move away but is prepared to stay in order to do his TAFE course. Dr. Webster said that was planning not avoidance.

94. Dr. Webster then made some interesting comments about today’s youth. He noted that in current day youth culture exchange of intimate pictures is common. He cited a report which he had with him in court namely the Seventh National Survey of Secondary Student Sexual Health published by the Federal government which stated that amongst year 9, 10, 11 and 12 high school students 86.3% received sex images and 70.6% sent them. I note the three children in question in this case were aged either 14 or 15, which would likely place them in year nine. Dr. Webster then noted the emergence of “fans only” which he said represented the need for people to want something personal which he described as a developmental need and noted that even with MR in this case there was some reassuring and caring behaviour.

Consideration

95. Section 17A of the Crimes Act (Cth) (CCA) provides that a court shall not pass a sentence of imprisonment unless having considered all other available sentences the court is satisfied that no other sentence is appropriate in all the circumstances of the case.

96. Both parties addressed the appropriate matters to consider as required by section 16A of the CCA. In particular the accused relied on the fact of the offender being so young at the time the offending commenced and still being young now. The difficulty for the offender of the volume and nature of the child-abuse material was accepted as a significant matter adverse to his interests. Reference was then made to the reports just gone through which seek to explain why the offender offended when he is otherwise so obviously pro social. It was submitted the court should accept that whilst there is plainly an element of deviant sexual behaviour the dominant feature was that of seeking the thrill of accessing the forbidden, the so-called taboo.

97. It was submitted for the offender that he had shown remorse. I accept that submission for there is a number of sources of evidence to support it. There is his decreasing offending to start with and then there was his apology to JS. I also accept his father’s evidence that his son has been very remorseful, and there has been these early pleas guilt and the statements of remorse to the sentencing assessment report writer.

98. His conduct in the past 2 years since detection has been exemplary. He has done voluntary work, complied with what were said to be very strict bail conditions, and was offered a job at Coles but declined it to pending the outcome of his case. The offender has concrete plans for his future when this matter is resolved and he has continued to be a well-behaved member of his family’s household.

99. The offender accepts the need for general and specific deterrence. In my view the need is greater for general deterrence particularly in offences of this kind. Realistically it is probably difficult to get the message through by way of sentencing to people so young as his offender but it must become known to today’s youth particularly given their cultural practice of transmitting to themselves naked pictures that such conduct can easily become criminal. I do not consider the need for specific deterrence is so great for the reasons already outlined including his access to CAM declined and then ceased well before detection. Adverse to the offender he turned to dealing with sexually developed young females. This conduct, though criminal, needs to be seen in the light of the psychological evidence and the offender’s delayed adolescence, an opinion of Dr Webster that I accept. I found the passages cited above from page 15 of his report persuasive and accept the opinions he expresses there. The conduct also needs to be seen in the context of the life of adolescents and the current cultural environment in which young people presently live. That is not to say there is no role for specific deterrence, and the sentence will reflect it to some degree. I consider however that so far as reasonably possible and in keeping with sentencing principle, there should be an emphasis on the offender’s treatment. On the evidence this is progressing well in the community. I prefer the evidence of Mr Sheehan to that of the sentencing assessment report and accept the treatment is more likely to be available in the community, and not in custody.

100. In this regard I note the reference by the offender to section 16A(2AAA) CCA which provides that when determining the sentence to be passed or order to be made in respect of a person for a Commonwealth child sex offence then in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as relevant; firstly when making an order to impose any conditions about rehabilitation or treatment options, and secondly in determining the length of any sentence or non parole period to include sufficient time for the person to undertake a rehabilitation program. In some ways this is perhaps a curious provision because section 16A already provides by subsection (2) (n) that it is necessary to consider the prospect of rehabilitation of the person. The legislation is therefore emphasising the need to consider rehabilitation. That is not to say it gains some kind of preeminence but it is a matter that the legislation plainly considers needs to be given careful consideration.

101. When I asked what the accused position was as to exceptional circumstances that would need to be found for any immediate release onto a release recognizance order (s20(10(b)(ii)) the submission was made that there has in fact been three days in custody so that any release would not be immediate because any sentence would be backdated by three days. The Crown position was that the interpretation of the relevant provision should be that presentence custody should not be considered. The provision in question which is found in section 20 is relevantly as follows:

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): …….

(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances--after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

102. The Crown argument is more attractive when the facts are as they are in this case where there has been a short period of custody following arrest and a lengthy bail period. That argument becomes much less attractive if for example the offender had been in presentence custody for 18 months. It is important to appreciate that what we are talking about is the liberty of the individual. The section requires in the absence of exceptional circumstances that the offender in question serve a specified period of imprisonment calculated in accordance with section 19AF. That period of imprisonment will be whatever the ultimate order of the court will be. In this case for example should the court order that he be released after having served a period of three days in custody then as is ordinarily the case the period would be backdated by the three days and he would be released upon sentence. To try and read the provision in the way the Crown argues for is far more tortuous if not impossible. If the legislature intended the construction argued by the Crown it could have simply said so particularly when we are dealing with the liberty of the individual. As a matter of statutory interpretation I favour the argument of the accused.

103. It is in any event to some extent largely a moot point. This is because for a person to be required to serve only three days in custody before being released upon a release recognizance order would likely be a case with some exceptional features and therefore likely to fit within the exceptional circumstances requirement in any event.

104. The ultimate submission for the Crown was that there should be a term of imprisonment of such duration that a parole period would need to be set and that the case was therefore not appropriate for a release recognizance order.

105. The Crown helpfully went through the relevant subsections of section 16A(2). In the order in which the submissions were made they were as follows. Firstly as to the damage resulting from the offence namely the injury to any victim. There is no direct evidence of that but insofar as the offending concerns the children actually engaged with they were 14 years of age and in one case 15 for part of the time of the offending. I accept the submission that it is recognized there is intrinsic harm caused by these types of offences to children of that age. The legislation seeks to protect children from harm caused by premature sexual activity. In terms of the CAM that was accessed it is obvious that they were real children and therefore being violently and inhumanely dealt with and the harm would be significant.

106. The aspect of the guilty plea has been referred to above as has the issues are specific and general deterrence. I accept the submission concerning general deterrence namely it must be made clear to like-minded persons in the community and in which I would include young people that this conduct is unacceptable and illegal. I do not accept the submission as to specific deterrence which is based on the premise that there is an underlying sexual interest in children on the part of the offender, at least so far as it concerns prepubescent children. Whilst it is true that at the time of the offending there was such an underlying interest I accept the views expressed by Dr. Webster and Mr. Sheehan that the engagement in the offending behaviour was motivated by the thrill of dealing with what is considered taboo as much as any sexual deviancy and secondly that that deviancy might be described as being diminished greatly or in remission or without wanting to oversimplify it, is something that has dissipated with the maturation of the offender. So yes there is a need for specific deterrence but not of the extent argued for by the Crown. This is particularly so given the offender told the sentencing report writer that he has a sexual preference for 13 and 14 year old females. There was nothing made of this piece of evidence, but it is alarming.

107. The character and antecedents and circumstances of the offender have been set out above. I accept that less weight is given to the good character of the offender but it is not totally disregarded particularly when considering prospects in a young person. Connected to his good character and background and present circumstances are protective factors moving forward; namely the support of his family, and ability and ambition to pursue his apprenticeship.

108. The Crown makes the submission consistent with what I have said above that the existence of section 16AA(2AAA) does not override the other very important sentencing considerations such as general and specific deterrence and adequate punishment.

109. As noted above the approach of the offender to the issue of exceptional circumstances was to rely on the fact that there has already been a term of imprisonment served. When faced with the argument referred to above by the Crown the offender nevertheless said that for all the reasons that 3 days in custody is sufficient before being released there should be a finding of special circumstances.

110. The Crown was a little at a disadvantage because the issue of exceptional circumstances had not been raised in the material of the offender. The Crown did helpfully set out some authorities concerning what it termed the “presumption of actual imprisonment” as provided for by section 20 (1)(b)(ii) and which is set out above. The Crown noted the passage of the explanatory memorandum to the legislation dealing with his amendment that stated “that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes”. The Crown referred to R v Bredal [2024] NSWCCA 75 as to what may constitute exceptional circumstances. One point made in that case is that exceptional circumstances may be established when there are a number of circumstances which when viewed in isolation may not be exceptional but when taken together may satisfy that criteria. At [58] et seq Justice Djanji noted that the expression exceptional circumstances is not further defined. He noted that the expression was not a new one in the context of sentencing. Justice Dhanji made reference to an English decision explaining exceptional as being out of the ordinary course or unusual or special or uncommon. To be exceptional something does not need to be unique or unprecedented or very rare but it is not one that regularly or routinely or normally is encountered. The Crown position of the need to set a non parole period is plainly one which is inconsistent with a finding of exceptional circumstances.

111. It is necessary to take into account the schedule matters in respect of the relevant offences as identified above. The procedure is in line with the state Form 1 procedure. Indeed reference is made in the Crown submissions to Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ, dealing with the Form 1 procedure. That case is authority that in regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. The sentence arrived at must remain proportionate to the criminality of the offence being considered. The approach is the same with schedule matters. I would note that as discussed above I do not consider that either of the schedule matters add in a meaningful way to the weight of the sentence for the relevant matters.

Conclusions

112. As just noted the schedule matter to be taken into account in respect of sequence H085/1 adds little to the ultimate sentence for sequence 1 given the large overlap in the conduct relied on for each offence.

113. Similarly, sequences 1 and 2 of H number ending 085 have common facts. Sequence 2 relates solely to photos of TH sent to the offender by MR. The agreed fact is he spoke directly to TH, though much of what was said is not known. Sequence 2, particularly in the absence of knowing what was said by the offender to TH other than that he asked her to participate, adds little to the criminality already established by sequence 1.

114. The most alarming conduct is with sequence 1 of H ending 318. The simple fact of the staggering number of child abuse material images is the obvious feature of this offence. That said any assessment of the offending should not be based simply on the number of images. It needs to be a full consideration of all the facts as is hoped has been done above in assessing objective seriousness. The rather few times these accounts were accessed stands in stark contrast to the sheer volume of the images. The infrequency of access relative to the volume of images supports the view of the psychologists that this is not a case of pedophilia, but of seeking out the “taboo”.

115. Sequence 4 of H ending 318 is assessed as being in the low range. The images concerned were found on devices controlled by the defendant. Unlike with the access charge it cannot be said when those images came to be on the devices nor when they viewed.

116. H892/5 can be seen to be grooming behaviour done to procure sex, yet as noted above it has its ambiguities.

117. The subjective case of the offender is one that requires some consideration and should not be lightly treated. Whilst it would be prudent to treat the favourable words of the offender’s father with a full appreciation that they are the words of a loving father the points Mr. MacDonald makes are taken into account. They are that his offending conduct is far different to what has been observed over a lifetime of activities outside of the Internet and also a relevant point about the youth of the offender and the significant impact this decision will have on his future.

118. I largely accept as discussed above the evidence of the two psychologists Mr. Sheehan and Dr. Webster. Dr. Webster in particular came across as a very perceptive and thoughtful psychologist. His evidence together with some of the ambiguous matters in the facts which have been noted above permit a finding which I make that the offender is not a pedophile. Further I find that the offender was a person in delayed adolescence with an externally subdued or shy or non-forthcoming public persona but nevertheless with the base of a prosocial life, who for some reason sought out “the taboo”, without ignoring the accepted sexual element. Without intervention or detection his antisocial conduct concerning accessing child abuse material ended and he moved on to the actual engagement with females who although age inappropriate for a 20 year old, were not prepubescent. The offender's interest in those females supports the view that he is not a pedophile as they are not pre pubescent. None of this of course is to excuse the behaviour but it is important in considering his prospects and the risk of reoffending and in determining what the appropriate sentence should be. In that regard his stated preference even in 2025 was for 13 to 14 year old females. As already noted, nothing was made of that in submissions. Rereading that part of the sentencing assessment report it may be that it was a statement relating to his preference at the time of the offending; see page 2 of the report under the heading “Sex offending”. If read that way, his case is obviously stronger. If read as a current preference, it is a matter I take into account, and address below.

119. What is ultimately in issue in this case is not whether a term of imprisonment should be imposed but rather how that sentence should be structured and in particular whether it should be one that sees the offender return to custody. Before determining that question it needs to be determined what the term of the sentence should be, for the sentence needs to be no more than 3 years for a release recognisance order to be imposed; s19AC. It is convenient to deal with the issue of exceptional circumstances now at this part of the judgment, and in any event as will be seen from what follows, I have arrived at a sentence that is no more than 3 years.

120. Strictly applying my interpretation of section 20(1)(b) it is not necessary that there be found exceptional circumstances because there has been time spent in custody and the release into the community should it be ordered to occur upon sentence will on my interpretation occur after he has served a specified period of imprisonment. Nevertheless should that specified time be for as short a period as three days it is important to set out in summary form just why that view is taken. The following are the matters which I consider lead to that result and absent the three days having been spent in custody would together in my view have amounted to exceptional circumstances. The position is one where whilst each of the factors may not on their own be exceptional, the number of factors identified taken together lead to that conclusion of exceptional circumstances. The matters relied on are:

(a) The facts particular to this case of the offender’s declining accessing of CAM, leading to a complete ending of that conduct. This is both factually significant, and psychologically significant in that it shows as discussed above, that the offender is not a pedophile, and supports the taboo theory. (b) Further, the case needs to be dealt with on its facts, and not in some generic way which may be overly influenced by the degree of depravity of the CAM. This is not the case of a 60 year old pedophile, but of a slow to mature adolescent, who was 18 at the earliest time of the offending, 20 when it ended, and is now 22. (c) The chronology of the offending set out at [2] above shows the shift in the offender’s activities, away from CAM and towards young adolescent females, albeit still significantly younger than he. In my view this supports the delayed adolescence theory of Dr Webster that I accept. In so far that the evidence shows a continued interest in 13 and 14 year old females (which has not been made as clear as would be desirable), that is a factor adverse to a finding of exceptional circumstances, which I have taken into account. The finding was nevertheless made as it was plain from Dr Webster’s evidence that there remains work to do with the offender in his rehabilitation, and that is likely to address this issue, and that, along with the other protective factors referred to in Dr Webster’s report will provide any necessary protection to the community. (d) Some of the conversation with MR in H805/1 is ambiguous, in that it is open to be seen as genuine, rather than grooming, which is in keeping with the immature state of the offender. (e) The offender’s immediate remorse as demonstrated by his apology to JS indicates he recognises his wrongdoing, and is a positive in considering his prospects and likely rehabilitation. (f) His current condition of adjustment disorder with depressed mood would worsen in custody. (g) The offender, at some monetary cost and with little income is engaging in appropriate treatment in the community, and will be better treated by remaining in the community. I note the comprehensive treatment that would occur in the community referred to at [56] above, and that the reengagement with Dr Webster has occurred and is ongoing. (h) Further, my preference for the risk assessment of Dr Webster means that there is a real prospect the offender would not receive the treatment in custody that he will receive in the community. This is important so that treatment can continue to address, amongst other matters, what Mr Sheehan noted as the offender’s incomplete explanation for the offending. (i) Dr Webster considers and I accept that the offender has a good prognosis. Added to this, the offender has now been on bail for 2 years, and has been fully compliant with all bail conditions, which are said to be onerous. The risk he poses to the community, as assessed by Dr Webster and which I accept, is below the average risk. That risk can be further guarded against by appropriate conditions, and there will be restraints on the offender’s access to the internet due to the provisions of the Child Protection (Offender’s Registration) Act. (j) The offender has spent three days in custody. For an immature 20 year old with no previous experience of that type, that would be an event of significant impact, and provide some deterrence. (k) Custody would be more onerous for the offender, based on the view of Mr Sheehan. His adjustment order with depressed mood would worsen. (l) There was evidence in this case of the current youth culture as to the exchange of explicit photographs amongst teenagers, including those as young as the victims in this case. The degree of deviancy in respect of those offences should be assessed with that in mind, and tends to show that the conduct, though criminal, is not altogether of a nature presently common in that environment.

Result

121. There will be an aggregate sentence, so that it is necessary to first set for each offence an indicative sentence. Items 1 and 2 on the schedule are taken into account when setting the indicative sentence for H805/1 and H892/5. The discount of the indicative sentence for each offence is 25%.

122. The following table summarises the offence, objective seriousness, and the indicative sentence before and after discount.

Table

| Seq | Offence | Max | Obj Ser | Ind | After disc | | H805/ 1; re MR | 474.22(1) | 15 | Below mid | 18m | 13m | | 11 (16BA item 1) | 474.23(1) | 15 | Taken into account in relation to H805/1 | | | | H805/2; re TH | 474.22(1) | 15 | Low | 12m | 9m | | H318/1; re CAM | 474.22(1) | 15 | Mid | 2y | 18m | | H318/4; re CAM | 474.22A(1) | 15 | Low | 12m | 9m | | H892: JS | | | | | | | H892/5; re JS | 474.26(1) | 15 | Below mid | 12m | 9m | | 4 (16BA item 2) | 474.22A(1) | 15 | Taken into account in relation to H892/5 | | |

123. In determining the aggregate sentence, the principle of totality needs to be considered. As noted in Cayhadi v R (2007) 168 A Crim R 41 to adopt a linear approach here would give rise to a disproportionate result. In particular there should be significant concurrency of the sentence for H805/2 given its connection to H805/1, and also of the two CAM related offences. The result that I come to is that the term of imprisonment should be 3 years.

124. I further find that there should be imposed a recognisance release order, to the effect that no further time is spent in custody. If it be necessary for a finding of exceptional circumstances to be made for that to occur, then such a finding is made. Alternatively, I note that the offender has spent time in custody so that as the sentence will be backdated, his release to the community will not be immediate.

Orders

1. The offender is convicted of the offences set out in the above table.
2. Taking into account the schedule matters in relation to the relevant offences, and after applying a discount of 25% to the indicative terms set out above, the offender is sentenced to a term of imprisonment of 3 years, to date from 12 October 2025, and expiring on 11 October 2028.
3. The offender is to be released from custody after serving 3 days in custody, to the effect that he be released today, 15 October 2025, upon entering into a recognisance of $1.00 with the following conditions:

(a) To be of good behaviour for the period 15 October 2025 to 11 October 2028. (b) For the period 15 October 2025 to 14 October 2027:

(i) Be subject to the supervision of a probation officer appointed in accordance with the order, and in that regard the offender is directed to attend at the office of Corrective Services in Lismore by no later than 22 October 2025; and (ii) Obey all reasonable directions of the probation officer; and (iii) Not travel interstate or overseas without the written permission of the probation officer; and (iv) Undertake such treatment or rehabilitation programs that the probation officer reasonable directs; and (v) Continue treatment with Dr Webster for such period that Dr Webster considers appropriate.

4. Note: Forfeiture Order made in accordance with a separate minute of order.

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