The offender, Mr Michael Mannah, stood trial before a jury in September 2022 on an indictment containing two counts under the Commonwealth Criminal Code. On 30 September 2022 the jury found him not guilty of count 2, but guilty of count 1. Count 1 is an offence under s 474.22(1) Commonwealth Criminal Code, which carries a maximum penalty of 15 years' imprisonment and is, essentially, that the offender used a carriage service to access child abuse material. The maximum penalty is of course an important guidepost in the sentencing exercise to which I have had regard.
It is for me to determine the facts on which the offender is to be sentenced, however, my findings must be consistent with the jury's verdict. Also, any matters in aggravation must be established beyond reasonable doubt, while matters in mitigation need only be established on the balance of probabilities. I find the following facts:
[2]
FACTS
At the time of the offence, the offender was employed as a police officer and held the position of sergeant in the transit police during the period 7 August 2020 to 22 January 2021, which covers the dates of the offence. The offender elected to undertake duties related to the COVID-19 hotel quarantine program at the Novotel, Darling Harbour, in addition to his regular duties. The offender at all relevant times was the registered user of A mobile phone service ending in 636 which, at the time of his arrest on 22 January 2021, was associated with an iPhone 7 mobile handset.
Between 16 July 2020 and 22 January 2021, telephone interception warrants were in place in relation to the offender's mobile phone number and between 27 November 2020 and 22 January 2021, an interception warrant was also in place in relation to the offender's home internet service as Bossley Park.
Between 7 August 2020 and 20 January 2021, approximately 5,000 images that fell within the definition of "child abuse material" were identified using the interception warrants as being associated with the offender's mobile phone service and home internet connection. The approximately 5,000 images were reviewed. The vast majority were images of persons under the age of 18 years where no sexual activity was depicted, but which involved persons under 18 years posing in a sexually suggestive manner, either in underwear or swimwear or naked, and in a way that reasonable persons would regard, in all the circumstances, as being offensive.
Among the material there were about 300 files which depicted cartoons, anime or computer-generated images which depicted persons under the age of 18 engaged in a sexual pose or sexual activity in a way that reasonable persons would regard, in all the circumstances, as being offensive.
There were a small number of images, between 1 and ten in each case, which depicted the following:
1. a) non-penetrative sexual activity between a person under 18 years of age or solo masturbation by a person under 18 years of age, which included explicit activity not involving an adult or
2. b) non-penetrative sexual activity between a person under 18 years, which involved mutual masturbation and other non penetrative sexual activity, or
3. c) penetrative sexual activity between a person under 18 years and an adult which included intercourse, cunnilingus and fellatio.
Those are the factual matters upon which I proceed to sentence.
[3]
OBJECTIVE SERIOUSNESS
As this is a Commonwealth offence, it is necessary for me to address, insofar as they are relevant, the various paragraphs of s 16A Crimes Act 1914 (Cth). Section 16A(2)(a) refers to the nature and circumstances of the offence and para (c) of that sub section refers to whether the offending involved a course of conduct.
Factors relevant to the objective seriousness of offences of this kind have been identified by the New South Wales Court of Criminal Appeal in a number of cases, including R v Hutchinson [2018] NSWCCA 152. I note by reference to relevant factors referred to in Hutchinson, the following:
First, the vast majority of the 5,000 images involved actual children, with only about 300 being cartoons, anime or computer-generated.
Secondly, as to the nature and content of the material, the gravity of the sexual activity and the age of the children, I note that, as I have already observed, the vast majority of the material did not depict sexual activity, but involved children posing in a sexually suggestive manner, where some were naked. As the Crown submitted, some of the children were very young, as depicted in exhibit 22 in the trial and exhibit 1A in the sentence proceedings. However, I accept that this represented only a small percentage of the material.
Third, as to the extent of any cruelty or physical harm depicted, the vast majority of the images did not involve these aspects. There was, however, a relatively small number of images which depicted graphic sexual penetration of a child. As the Crown submitted, this sort of material in particular needs to be the subject of strong rebuke because of its tendency to promote the perception or fantasy that children might be seen as sexual partners for adults.
Fourth, the offence involved a large number of images, mostly of real children, and the number of children victimised, I conclude, must have also been large.
Fifth, I conclude that the offender's purpose in accessing the material was for personal use and not for sale or dissemination to others. He also did not take action to save the material, nor is there any suggestion that the offender acted with the intention of obtaining any financial or other material benefit by accessing the material.
Sixth, there is no suggestion that the offender was engaged in any proximate sense with the persons responsible for bringing the child abuse material into existence.
Seventh, the offending did not involve extensive planning, organisation or deception. However, it did involve deliberate searching, as is explained in the evidence given by Mr McCracken at trial at p 113 to which I will make reference later in these remarks.
Eighth, the offence involved the offender acting alone and, as accepted by the Crown, there was no risk of the material being seen or acquired by vulnerable persons or any risk of the material being seen or acquired by persons susceptible to act in the manner depicted.
It is also relevant to take into account that the offending occurred over a considerable period of more than five months. It therefore involved a course of conduct and cannot be regarded as isolated or as an aberration. There is no evidence that the offender paid for any of the material he accessed, however, this does not mitigate the offending because of the fact that simple accessing of such material feeds the market.
Paragraph (d) of s 16A(2) refers to the personal circumstances of any victim and para (e) refers to any injury, loss or damage resulting from the offence. The personal circumstances of the actual children depicted in the images cannot be known, neither is it possible for the Court to make any specific finding as to any injury, loss or damage resulting to any of the actual children. However, and as was observed in R v Clarkson [2011] 32 VR 361, "The absolute prohibition on sexual activity with a child is founded on the presumption of harm." In addition, as was noted in R v Porte [2015] NSWCCA 174, "Harm may also result from the knowledge as they grow older that the material may remain in circulation, heightening the shame and distress associated with being exploited when young and vulnerable."
Given the matters to which I have made reference, I am satisfied that the offence is a serious example of its kind, especially given the number of images and the period over which the offending occurred. It is true, however, as the Crown conceded, that the offence is not as serious as could be imagined and is less serious than many examples of this type of offence. However, I do not consider the offender's moral culpability to be low, but would describe it as moderate. I assess the objective seriousness of the offence as being somewhat below the mid range, but not in the low range.
Paragraph (j) of s 16A(2) refers to the deterrent effect that any sentence may have on the person. It was submitted by the Crown that I would conclude that the offender has a sexual interest in children and, in effect, that this underlines the importance of deterring him from future similar offending. The offender, however, points to the opinion of Dr Nielssen, who says that the offender was, "Not thought to have a disorder of abnormal sexual interest, for example, a specific attraction to prepubescent children."
This opinion, however, about "specific" attraction to children is based in part on the offender's reported attraction to voluptuous women and his account that the offending material appeared during searches for pornographic material that did not include search items that might elicit child abuse material. It is also contrary to the evidence at trial of Mr McCracken at p 113 of the transcript who said, in relation to the internet searching detected by the interception warrants that it showed that the user was not:
"just accidentally going to one page. That there was a consistent return to a certain number of websites that seemed to repeat, and then an intentional moving through more content across the internet."
Mr McCracken expanded on this view by saying that "when you get one, two, three, four, five websites of the same content, in my opinion it indicates that the person is intentionally seeking out this type of content." This is quite contrary to the offender's assertion to Dr Nielssen that he had, "Never seen this stuff."
I do not accept the suggestion that the offender had never seen the material and that, in effect, it was accessed unknowingly and entirely accidentally in the course of accessing adult pornography. Rather, I am satisfied beyond reasonable doubt that the offender intentionally accessed the material with an interest in such material. As I have said, I regard his moral culpability for the offence as being moderate.
Having said that, I do accept that child abuse material was not the offender's primary interest and was not the primary target of his internet searches. Based on these conclusions, and the offender's denial of any interest in or intention to access child abuse material, I consider that the sentence needs to reflect the important aspect of specific deterrence. Sub para (ja) of s 16A(2) refers to the importance of general deterrence. Clearly, general deterrence is of great importance in sentencing for offences of this kind. That is in part due to the fact that these kinds of offences feed the market for the exploitation of children, are difficult to detect, are very prevalent, and occur at an international level.
Offences of this kind are certainly not victimless, given that in most cases, leaving aside cartoons, anime, et cetera, real children are exploited and abused and given that images may remain on the internet for very long periods of time. And even in the case of cartoons and similar material, general deterrence is still a very important matter, due to the fact that such material feeds the market for child abuse material. General deterrence, therefore, as I have said, is an important aspect in this sentencing exercise.
[4]
SUBJECTIVE MATTERS
Paragraph (m) of s 16A(2) refers to the character, antecedents, age, means and physical or mental condition of the person. The offender is now 50 years of age and was about 48 at the time of the offence. He has no prior criminal history. While this remains a relevant factor in his favour, prior good character is of less weight when sentencing for offences of the kind before the Court: see Western Australia v Collier (2007) 179 A Crim R 310.
The offender is married, but separated from his wife, although they have been living under the same roof for some years due to financial and child care related issues. His childhood did not involve any abuse, trauma or exposure to domestic violence. He has no longstanding history of mental illness, although in May 2020 he was diagnosed as being affected by an adjustment disorder with mixed anxious and depressed mood, which arose from a workplace conflict with a supervisor in the police force where he had been working since he was about 29 years of age.
In May 2020, he was declared by psychiatrist, Dr Bisht, to be unfit for police work for about six to eight weeks, but was said to be able to return to part time work after that time and had been seeing a psychologist for about two months. He was stood down from work, however when he was charged with this offence he resigned prior to his trial. He currently works, I am informed, as a storeman.
His subjective case is largely set out in the psychiatric reports of Dr Nielssen and Dr Bisht. The offender and his estranged wife were married in 2010 and they have two children, a daughter now aged seven and a son aged about nine. The offender's son is autistic and the offender told Dr Nielssen that at age 8 the offender's son was only able to say one or two words at a time, despite intensive therapy, and was unable to dress himself independently or perform other daily activities without prompting and help. However, the offender told Dr Bisht in 2020 that his daughter was the more difficult to deal with, describing her as a "wild child" who is, as he put it, "non-stop."
Dr Nielssen noted the previous diagnosis of adjustment disorder, but concluded that in 2022 the persistence and duration of symptoms suggested that the offender now has a chronic mood disorder which may be assisted by counselling and a self-guided course to impart techniques to manage symptoms or possibly a trial of antidepressant medications. Dr Nielssen did not think that the offender had any abnormal sexual interests, such as in children. However, and as I have said, I do not entirely accept this opinion. Although Dr Nielssen noted that there is currently no instrument to assess the probability of recidivism in people found to have accessed child abuse material, he concluded, based apparently on clinical assessment, that the offender had a low probability of a further offence of that kind.
In my view, however, given the offender's interest in such material, there will remain a risk of reoffending unless or until he acknowledges to himself that he had such an interest and undertakes some counselling or treatment to address it.
Dr Nielssen concluded that imprisonment would be more onerous for the offender, not only because he is a former police officer, but also because he thought that imprisonment would inevitably exacerbate his underlying depressive illness and would also impact adversely on his family. I accept these matters and, with respect to the fact that the offender is a former police officer, I accept that this is likely to make any time in custody more difficult, stressful and perhaps more dangerous for him.
[5]
CONTRITION AND REMORSE
Paragraph (f) of s 16A(2) refers to the degree to which the person has shown contrition for the offence. Dr Nielssen notes that, when asked about the offending images, the offender said that while he did look at porn, he had "never seen this stuff." I do not, however, accept this denial. It is, in my opinion, contrary to the jury's verdict, which must have involved it being satisfied beyond reasonable doubt that the offender intentionally accessed the material and that he was at least reckless as to its being child abuse material. Secondly, there is the very large number of images accessed. Thirdly, there is the evidence given by Mr McCracken at p 113 of the trial, to which I have already referred. In my view, there is no contrition or remorse in this case.
[6]
PROSPECTS OF REHABILITATION
Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation. Dr Nielssen expresses the opinion that the offender is a low probability of committing further offences of the same kind because he does not have a particular fixation with child abuse material. In my view, however, and as I have already said, the offence was committed by reason of at least some sexual interest in the child abuse material, although I accept that this was in the context of the offender's general use of adult pornography, which I consider to have been his primary interest.
[7]
RISK OF REOFFENDING
The offender has also been assessed as a low risk of reoffending according to the LSI-R testing tool. Having regard to these matters and the offender's overall background of a fairly stable work and family history and lack of prior offending, I regard his prospects of rehabilitation as being reasonably positive.
Paragraph (p) of s 16A(2) refers to the probable effect that any sentence would have on the offender's family or dependents. I have earlier made reference to the offender's two children and in particular his son who is affected by autism and global developmental delay, is non-verbal and requires assistance with everyday needs. A letter from the offender's estranged wife with explains that the offender, despite bail conditions prohibiting unsupervised contact with the children, continues to play an important role in the lives of his children, given that their mother works full-time as a teacher. This includes the offender's important role in his children's participation in extracurricular activities such as swimming.
Since the decision of the Court of Criminal Appeal in Totaan v R [2022] NSWCCA 75, it is clear that in Commonwealth matters it is not necessary for the impact on dependents to be "exceptional" before it can be taken into account on sentence. I am satisfied in this case that the effects on the offender's children of any sentence I impose is a relevant matter. And, in particular, I have taken into account that any sentence of full-time custody will have an adverse impact, not only on the offender's children, but also on his ex wife and extended family.
Section 16A(2AAA) provides that in determining sentence I have regard also to the objective of rehabilitating the offender, including by considering whether it is appropriate to impose any conditions about rehabilitation or treatment options and/or to include within the length of any sentence sufficient time for the offender to undertake a rehabilitation program. I have taken this into account, but of course it does not remove the important requirements that the sentence be appropriate in its severity and reflect general and personal deterrence and the other important purposes of sentencing.
Section 17A of the Crimes Act 1914 requires that the Court not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances. In this regard, it was acknowledged on behalf of the offender that the threshold created by s 17A has been crossed. However, it was submitted on his behalf that any head sentence ought not to exceed three years and that it would be open to the Court to fix a Recognisance Release Order releasing the offender, either immediately or after a relatively short period in custody. I have had regard to s 17A and I am satisfied that the offence is one where no sentence other than imprisonment is appropriate.
In determining the length of the sentence and whether it should involve a period of actual custody, I have had regard to the case examples to which I was directed, both by senior counsel for the offender and by counsel for the Crown. I have also consulted a wide range of other cases from various intermediate appeal courts of Australia which have dealt with similar or reasonably similar cases.
I impose a term of imprisonment of 12 months.
As this is a Commonwealth child sex offence, s 20(1)(b)(ii) provides that I must order that the offender serve some part of that sentence in actual custody unless satisfied that there are exceptional circumstances justifying his immediate release.
I accept, as was said in R v Skinner [2016] 126 SASR 120 that exceptional circumstances is a test that ought not be set too high and that it can be made out either by a single circumstance or a combination of matters. Having considered all the circumstances of this case, however, both objective and subjective, to which I have made reference and have already taken into account generally, I am not satisfied that exceptional circumstances have been made out.
In my view, some period of actual custody is required in order to appropriately reflect all the purposes of sentencing and, in particular, those of general and personal deterrence. In my view, however, the period of actual custody should be a relatively short one due, in particular, to the fact that the offender has never previously experienced a gaol term, the likely onerous nature of gaol for him as a former police officer, the interests of his rehabilitation, and the impact on his family of his being removed from child care responsibilities.
Since the decision of the High Court in Hili and Jones v R [2010] 242 CLR 520 it has been clear that in Commonwealth matters there is no predetermined or default proportion that applies between a head sentence and a recognisance release order or non-parole period. Rather, I must take into account all the facts and other matters relevant to sentencing.
[8]
DETERMINATION
Having done so, I sentence the offender to a period of 12 months' imprisonment, but order pursuant to s 20(1)(b) that he be released after serving a period of four months by Recognisance Release Order for two years upon giving security in the amount of $100. The sentence will be backdated to commence yesterday, 19 January 2023, to take into account the presentence custody of one day. The sentence therefore will expire on 18 January 2024, the period of four months will expire on 18 May 2023, upon which date the offender will be eligible for release upon entering into the Recognisance Release Order.
The Recognisance Release Order will be subject to the following conditions, which are six in number:
1. That he be of good behaviour and not commit any offence,
2. That he be subject to supervision of a probation officer,
3. That he comply with any referral by the probation officer to a Corrective Services New South Wales forensic psychologist for a sex offender supervision assessment,
4. That he undertake such treatment or rehabilitation programs as the probation officer reasonably directs,
5. That he obey all other reasonable directions of the probation officer.
6. That he not travel interstate or overseas without the written permission of the probation officer.
Those are the orders of the Court.
Ms Crown, Mr Ekstein, anything to raise about any of those orders?
DEBENHAM: Your Honour, there is a forfeiture order that should be made in relation to the device which accessed the material.
HIS HONOUR: Is that by consent?
ECKSTEIN: Yes, it is, your Honour, but I do note that the Crown will download some of the family photos before it's destroyed.
DEBENHAM: Yes, your Honour, a copy of everything that's on the phone, but for the child abuse material, is already in the possession of the accused ...(not transcribable)... and the Crown undertake to remove specific childhood photos and place those onto a USB before it's destroyed.
HIS HONOUR: All right, thank you, and you can hand up that order and I'll attend to that in chambers. Thank you
[9]
Amendments
14 April 2023 - Appearances amended.
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: 14 April 2023