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R v McHugh [2025] NSWDC 563 | Case summary | Zoe

NSWNSWDC

R v McHugh

[2025] NSWDC 563

District Court of NSW|2025-05-09|Before: Sutherland SC DCJ

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-05-09

Before

Sutherland SC DCJ

Catchwords

SENTENCING — Child sex offences — Using a carriage service to
solicit, access and transmit child abuse material –
Using a carriage
service to possess or control child abuse material – Offending whilst

Source

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Catchwords

SENTENCING — Child sex offences — Using a carriage service tosolicit, access and transmit child abuse material –Using a carriageservice to possess or control child abuse material – Offending whilstsubject to conditional liberty –Initial offending whilst on a CommunityCorrection Order for difference offences – Reoffending whilst on bail forsimilar offences– Subjective circumstances – Child sexual abuse– Mental Health issues – Substance abuse issues

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v McHugh [2025] NSWDC 563

Hearing dates: 7 March 2025

Date of orders: 9 May 2025

Decision date: 09 May 2025

Jurisdiction: Criminal

Before: Sutherland SC DCJ

Decision: In respect of the NSW State offences, an aggregate sentence of 20 months with a non-parole period of 15 months commencing 7 February 2024: at [98].
In respect of the Commonwealth offences, an aggregate sentence of 4 years with a non-parole period of 2 years commencing 6 May 2025: at [100]. Forfeiture of devices to Commonwealth Director: at [103].

Michael Dominic McHugh appears for sentence with respect to 6 substantive offences in respect of which he has entered pleas of Guilty.
Four of the offences relate to the use of a carriage service to access and transmit child-abuse material, to solicit child-abuse material and to possess or control child-abuse material.
Three such charges relating to soliciting, accessing and transmitting child-abuse material have been preferred pursuant to section 474.22(1) of the Commonwealth Criminal Code and carry a maximum penalty of 15 years imprisonment each.
The fourth count under the Criminal Code relates to possessing or controlling child-abuse material obtained using a carriage service. This is a contravention of section 474.22A(1) and similarly carries a maximum penalty of 15 years imprisonment.
In addition to the Commonwealth charges relating to child-abuse material, the offender has pleaded Guilty to two New South Wales substantive offences arising from his possession of unlawful firearms and prohibited weapons.
The first offence (Sequence 4) is a contravention of section 51D(2) of the Firearms Act 1996 (NSW) relating to possession of more than three unregistered firearms. Such an offence carries a maximum penalty of imprisonment for 20 years. Parliament has specified a standard non-parole period of 10 years imprisonment.
The second offence (Sequence 8) relates to possession of prohibited weapons. This is an offence contrary to section 7(1) of the Weapons Prohibition Act 1998 (NSW) and carries a maximum penalty of 14 years imprisonment. It carries a standard non-parole period of 5 years imprisonment.
Two additional summary offences, namely possession of ammunition for a firearm contrary to section 65(3) of the Firearms Act 1996 (NSW) and an offence of possession of a prohibited drug contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) have been placed on a Form 1 and the Court is asked to take those additional offences into account in determining an appropriate sentence with respect to the substantive Firearms Act offence.

In June 2023 NSW Police were referred an investigation from the Child Exploitation Internet Unit (CEIU) with respect to the offender having been detected uploading child-abuse material utilising Google and Instagram.
In November 2023 a search warrant was executed at the offender’s place of residence in a flat in Petersham. The offender volunteered that he had a number of gel blasters and also provided to police his mobile phone. He advised them of the PIN number for the mobile phone.
The offender was placed under arrest and subsequently participated in a recorded interview. In the course of the interview he told police that he had pictures of children on his mobile phone some of which were naked. He also advised that the images on the phone included children being sexually assaulted. He told police that he sent photos of children to another person and that he knew that was wrong to look at “that stuff”.
He told police that while he looked at what he referred to as “stuff”, that he would never go out and actively search for children to groom “or anything like that.”
The offender also told police that he didn’t know why he looked at such material and that he hated himself for doing it.
During the execution of this first search warrant, police located three battery-operated select-fire gel-ball airguns, and one gas-operated gel-ball air pistol. Pictures of these weapons have been tendered as Exhibit 2 in the proceedings.
The three gel blaster guns are defined as “prohibited firearms” under the relevant legislation while the gas-operated gel ball pistol falls within the definition of a “pistol” pursuant to the legislation. They all relevantly have the appearance of real weapons capable of firing actual bullets.
The offender was charged in Sequence 4 with an offence of possessing more than three unregistered firearms, contrary to s 51D(2) of the Firearms Act 1996. This is one of the substantive offences before me.
During the search police had also located a packet of dehydrated gel pellets. These fall within the definition of “ammunition” contrary to s 65(3) of the Firearms Act and were the subject of charge in Sequence 5. This charge has been admitted and placed on a Form 1 to be taken into account in determining an appropriate sentence with respect to Sequence 4.
Also found during the search was a retractable baton and an imitation grenade cartridge. The grenade cartridge was a plastic imitation of a high explosive dual-purpose grenade cartridge. Notwithstanding that it was an imitation, the grenade cartridge falls within the definition of a “prohibited weapon” under cl 3(1) of Sch 1 of the Weapons Prohibition Act 1998 (NSW).
The retractable baton falls within the definition of a “prohibited weapon” pursuant to cl 2 (17A) of the Weapons Prohibition Act. Sequence 8 charged possession of these prohibited weapons. It is a substantive offence in these proceedings.
A small quantity of a prohibited drug, namely 2.3 grams of cannabis leaf, was found in a resealable plastic bag. This gave rise to Sequence 6, namely possession of a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act. It has also been placed on the Form 1 attaching to Sequence 4.
An examination of the offender’s mobile phone revealed that he had been using an application called Telegram Clone. This is a secure messaging and audio calling cloud-based application which uses cloud technology to store data and synchronise accounts across multiple devices. It permits communications between persons using the app and included on a user’s contact list.
Forensic examination of the phone disclosed that the offender had been sending and receiving child-abuse material during the course of communications with a person identified as “A”. A total of 1,296 files had been sent between the offender and “A”. Of that number, 165 were sampled by police. 27 files were ascertained to include child-abuse material.
Descriptive examples of images including videos are set out in detail in the Agreed Facts which have been tendered. Should they be required for perusal in another place, they will be available in the court file as an exhibit.
However, despite the interests of open justice, I decline to set out the detail of the images in narrative form. I have a firm view that the salacious appetite and sexual gratification of others who may share a similar view of child-abuse material should not be fuelled or provided for to any extent by publishing such descriptive circumstances.
It suffices for present purposes to note that the images included close-ups of young children’s genital areas and vision of young children engaged in different kinds of sexual acts, including sexual intercourse, with adult males.
A second mobile phone which was also obtained by police during the execution of the first search warrant also revealed images obtained pursuant to the messaging facility in the Telegram application. The images included a video showing pre-pubescent female children having sexual intercourse and committing other sex acts with adult males.
This material, which is set out in detail in the Agreed Facts, gave rise to Sequence 1, namely use of a carriage service to access and transmit child-abuse material. As indicated earlier, this is a contravention of the relevant provision in the Commonwealth Criminal Code s 474.22(1).
In addition to the material to which I have already made reference, relied upon in support of the charge of accessing and transmitting child-abuse material (Sequence 1) three video files were located which were of some length. The first exceeded 1 minute, the second exceeded 9 minutes and the third was almost 32 minutes in length. The video footage included a single female child in the second file performing sexual acts and sexual intercourse with an adult male. The longer video depicted a variety of underage children participating in the performance of sexual acts and engaging in sexual intercourse. The recording includes screenshots and conversations between the offender and the person “A”’ including comments regarding sexual violence towards underage females by the offender.
Following his arrest on 3 November 2023 the offender was released on bail on 10 November 2023.
In early February 2024 police were provided with information that the offender was again utilising Google platforms to share child-abuse material.
On 15 February 2024 NSW police executed a second search warrant on the offender’s premises. An examination of a mobile phone then in the offender’s possession revealed that that the offender was again sharing and receiving child-abuse material over the Telegram application.
Examination of communications through that application revealed images being sent by the offender to other persons, together with detailed narrative descriptions of what he would do to young female children involving appalling, violent, sexual acts. In addition to sending this child-abuse material the offender had also been soliciting material to be sent to him and he received videos and images depicting, amongst other things, sexual intercourse by adult males with female children. Some of the material, including videos, which he solicited he paid for using Bitcoin cryptocurrency.
For the reasons which I have already articulated, I do not propose to reproduce the graphic and detailed descriptions in the narrative sent by the offender during these conversations. Similarly, I do not propose to reproduce the detailed descriptions which are set out in the Agreed Facts of all the activities and actions which can be viewed in the videos which were both sent and received.
It suffices to publicly acknowledge in open court that the narrative conversation by the offender describes, and the content of the various videos depict, appalling and depraved sexual acts with young children including aggressive and violent behaviour and descriptions of injuries which might be sustained by such children. Some of the child-abuse material involved children as young as 3 or 4 years of age.
The criminal use by the offender of a carriage service to transmit, solicit, and cause child-abuse material to be transmitted to himself and the use of a carriage service to access child-abuse material led to the preferring of two substantive “rolled*-*up” charges.
Sequence 1 in the second group of charges relates to the use of a carriage service to transmit and solicit child-abuse material, and also causing such material to be transmitted to himself between 25 January 2024 and 12 February 2024. Such an offence contravenes s 474.22(1) of the Commonwealth Criminal Code.
Sequence 2 in the second group of charges is a similarly “rolled*-*up” offence under the same section alleging use of a carriage service to access child-abuse material between 13 May 2022 and 15 February 2024.
Samples of some of the material accessed earlier are included in the narrative material which I discussed with respect to other charges. Specific details of additional material saved within the Telegram app and also in another cloud-based storage service called Mega.NZ, in which the offender had two accounts, are set out in descriptive detail in the Agreed Facts.
Following the execution of the second search warrant on 15 February 2024, the offender was arrested on that day and has remained in custody, bail refused, since that time.

The offender did not give evidence in the sentence proceedings. A psychological assessment prepared by Ms Kerry Watson dated 1 March 2025 was tendered in the defence case. That assessment was based on a clinical interview, a mental state examination, and a psychometric assessment.
In the interview the offender described a developmental history growing up in a loving family environment which had provided him with adequate emotional nurturance, stability, security, predictability, and consistency.
The offender described to the psychologist having been sexually abused in High School, in year 7 and year 8, on three occasions by his then Science teacher. He was said to have been inappropriately touched on two occasions and raped on the final occasion. He described his subsequent schooling having been characterised by oppositional behaviour and challenging which frequently resulted in suspensions. He said that he ceased attending school in early year 9.
He thereafter commenced an apprenticeship as a boilermaker at the age of 15 and subsequently progressed to a variety of casual roles in labouring and similar work. In due course he worked in mining in Western Australia and in Queensland for a number of years.
The offender described to the psychologist a history of drug use which had commenced at the age of 12. He claimed to have used marijuana from that age and also having typically used LSD from the age of 12 up until the age of about 18. He described an abuse of amphetamines (Speed) from the age of 13 and claimed to have continued with that abuse until his mid-20s when he began using methylamphetamine (Ice). He also described his regular use of cocaine from the age of 15 which he claimed to have used at least once weekly during the year prior to his offending conduct.
In addition to the history of using marijuana, LSD, amphetamine, and cocaine he also told the psychologist that he had begun using heroin from the age of 17 on a daily basis.
His heroin usage was said to have continued as a heavy addiction until he was approximately 24 when he completed a 9-month rehabilitation program. Following a relapse he was ultimately placed on a methadone program and more recently had been prescribed Buprenorophine injections which had continued until the present time.
The offender advised the psychologist that he had been diagnosed with Attention-Deficit/Hyperactivity Disorder at the age of 12. He said he had been prescribed Ritalin but said that his mother had ceased giving him the medication after a few months.
The offender said that his mental health had declined immediately following the sexual abuse that he suffered at school at the age of 13. He described significant psychological symptoms which had been particularly characterised by persistent anxiety, feelings of worthlessness, and episodes of depression.
He described to the psychologist an enduring experience of pervasive psychological turmoil and impairment which he said had persisted without resolution.
He said that he had attempted suicide at the age of 18 or 19 by cutting his wrists and again at the age of 24 by taking an intentional heroin overdose.
The offender was apparently able to recognise that his abuse of and dependency on illicit drugs since his early adolescence was the cause of further mental health instability.
At the time of the psychological consultation he was prescribed the anti-depressant medication Prozac.
Following a review of the mental health history provided by Mr McHugh, the psychologist was of the opinion that the history was indicative of the early onset and chronic experience of: Post-Traumatic Stress Distorder; Major Depressive Disorder, Episodic; Generalised Anxiety Disorder; and Opioid and Stimulant Use Disorder. Each of those disorders were described pursuant to the DSM-5.
In the opinion of Ms Watson, the diagnostic conditions were relevant at the time of the offending conduct and remained relevant and unresolved to the present.
The psychologist noted that the offender had expressed feelings of regret and remorse in relation to the offending conduct. She described associated self-condemnation being apparent as was the offender’s negative self-concept in relation to his possession of child-abuse material.
Ms Watson described the offender having accepted full responsibility without excuse or justification for his offending conduct in relation to the child-abuse material. She said that he was seemingly forthcoming in his explanation of how he obtained the material and similarly forthcoming with regard to his sexuality and sexual history.
He described himself as heterosexual and said that he had engaged in cross-dressing since 2023. He denied a sexual interest in minors and said that he had never engaged in inappropriate interaction with a minor.
The psychologist set out the actual expressions of self-condemnation by the offender. He had said: “words can’t express how awful and disgusted I feel in myself” and “I’m really disgusted in myself, it’s not the person I am”.
He also told the psychologist that the conduct occurred because he was “high all the time”. He said that he was “not thinking right” and that he had acted as a result of “curiosity”. He told Ms Watson: “I’ve never looked at this stuff before then.” He said: “I made a mistake, that mistake just isn’t me.”
The psychologist repeated her conclusion regarding acceptance of responsibility without excuse or justification also in relation to the firearms and drug offences. She said that the offender was seemingly forthcoming in his explanations of what was in his possession and how he came into possession of the items. I am constrained to observe that her report does not disclose what those explanations were.
A limited psychometric assessment was carried out using the DASS21 which is a self-report questionnaire. The results of that questionnaire indicated that the offender fell in the moderate range for each of the symptoms of depression, stress, and anxiety.
The psychologist’s ultimate opinion was that the psychological assessment was indicative of a declined mental health state throughout much of the offender’s life that had developed against the background of the described childhood trauma and which was “undoubtedly complicated by the drug abuse and addiction that has spanned his life since his early adolescence.”
Ms Watson expressed the opinion that the combination of a disordered mental health state and the recurrent abuse of methamphetamines and cocaine may have contributed to a tendency to act without reflection, decreased impulse control, and decreased ability to exercise appropriate judgement and restraint. Her concluding opinion was that the offender’s present attitude, insight, remorse, and contrition towards the offending conduct led her to believe that he would avoid any such conduct in the future. She recommended ongoing engagement with a psychologist including focused treatment of cognitive behavioural therapy and participation in a community-based sex offender treatment program.
In addition to the material introduced through the third-party medium of the psychologist, a letter of apology handwritten by the offender was also tendered. I do not intend to repeat the full text of that letter. It suffices to observe that it repeats the essence of much of the history which he had recounted to the psychologist.
One aspect of his history relating to drug abuse which was referred to in passing but not set out in detail in the psychologist’s report was an assertion that he had been on methadone for the past 10-15 years. He described methadone having helped him to have a relatively normal life. He detailed his mental health having started to get worse around 2015. He said that a psychologist who he had seen in 2020 expressed the opinion that he was suffering from borderline agoraphobia. He was prescribed anti-anxiety medication and anti-depressant medication. No report from such a psychologist or other medical material has been produced.
The handwritten letter repeats an acceptance of full responsibility and similarly repeats his expressed level of shame and disgust in his actions. He said in his letter:

It should be borne in mind that his Honour stressed that individual cases might identify other matters relevant to an assessment of objective seriousness, and the list set out by him was not exhaustive.
A consideration of these various factors in the present matter reveals the significance of a number of them. It is clear that actual children were used in the creation of much of the material. The nature and content of the material was clearly perverted and depraved. It included children as young as 3 and 4 years of age, as well as many pre-pubescent females. Some of the material involved a degree of cruelty and physical harm. The level of cruelty and physical harm in the narrative description contributes to a high degree of moral culpability. Some of the actual videos included expressions of pain on the faces of real children.
The number of images and items of material are clearly numerically less than many other cases. The number of persons to whom the material was transmitted was a small and limited number, although it must be observed that the offender would have no control over who else the recipients might transmit the material to. Some of the material was received or caused to be transmitted to the offender pursuant to payment of amounts of cryptocurrency in the form of Bitcoin. There is no evidence of the proximity of the offender to the persons who brought the material into existence. It appears the degree of planning or sophistication by the offender was insubstantial. However he had sought to delete various accounts during his resumption of illegal use of carriage services following his release on bail. He did not act alone, but in a collaborative network of likeminded persons, albeit few in number.
In my view the offending with respect to the child abuse material, notwithstanding a lesser number of items than in many other cases, falls within a broad mid-range of objective seriousness.
With respect to the offence of possessing more than three unauthorised firearms, in my view this falls slightly below a mid-range of objective seriousness given the nature of the firearms. With respect to the possess prohibited weapons relating to the retractable baton and the imitation grenade, this in my view falls towards the lower end of objective seriousness.

The Court is required to have regard to the non-exhaustive list of factors set out in s 16A of the Crimes Act 1914. Offences involving the sexual exploitation of children online require important consideration to be placed on general deterrence. In some instances, the public interest in promoting the protection of children has led to expressions of principle requiring “paramount consideration” being given to the principle of general deterrence (see for example the observations of the Victorian Supreme Court of Appeal in R v Gajjar [2008] VSCA 268; 192 A Crim R 76 at [27]-[28] with respect to offences of procuring for sexual purposes). Sentences of immediate imprisonment have been said to ordinarily be warranted. Such observations have also been articulated with respect to possession of or access to child abuse material (see DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800).
In the present matter specific deterrence is also of particular importance. At the time of the offending during 2023, the offender was subject to a Community Corrections Order which had been imposed in December 2022 in relation to an unconnected offence of assault occasioning actual bodily harm. As noted earlier, he was released to bail on 10 November 2023 following his arrest for the present matter on 3 November 2023 following the execution of the first search warrant. Whilst on bail he committed further offences the subject of the charges preferred on 15 February 2024.
Section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 provides that offending whilst on conditional liberty is an aggravating factor for the New South Wales State offences.
The offender’s criminal record to which I have referred earlier reveals a range of offending conduct, commencing with drug offences and, as I have already described, offences of dishonesty in the Children’s Court and subsequently including theft and dishonesty offences including breaking and entering, which as I said earlier, occurred episodically throughout his adult life.
A number of factors in the offender’s upbringing including the asserted sexual abuse as a child give rise to a submission on behalf of the offender that the principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] are relevant. The Crown, on the other hand, submits that the psychological report and assessment provide an insufficient basis for the Court to conclude that the mental health conditions identified were a “material cause” of the offending such as to reduce moral culpability.
It is appropriate to observe that the Court must exercise a degree of reserve in accepting mitigatory material advanced to the Court through a third party report of what the offender has recounted. In this regard I bear in mind the observations of the Court of Criminal Appeal in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144. The offender did not give evidence and the account by him has not been subject to testing by cross-examination.
Notwithstanding trenchant criticism of the practice by Bellew J in Lai v R [2021] NSWCCA 217, the Court regularly receives letters of apology from offenders who do not give evidence in sentence proceedings. This further compounds the difficulty in assessing expressions of remorse.
It is correct to observe that the psychologist does not directly express a connection in a causal sense with the offending conduct by virtue of the symptomatic disorders that she has described. Whilst expressing the opinion that the various disorders were relevant at the time of the offending, Ms Watson does not say in what way they were relevant.
Albeit with a degree of reservation, I am prepared to accept the repeated expressions of remorse and contrition in combination with the admissions made to police at the time of his arrests and in subsequent interviews, together with his entering pleas of guilty as an indication of the genuine expression of remorse and contrition. He is, in the circumstances, entitled to a discount of 25% with respect to both the State matters and also the Commonwealth offences by virtue of the utilitarian value of those pleas.
I am also prepared to consider that some diminution of moral culpability is appropriate in all of the circumstances.
However, in light of his repeated offending after his release on bail following some 8 days of actual incarceration, I am of the view that his prospects of rehabilitation can be assessed as moderate at best (see Abbas v R [2024] NSWCCA 228 per N Adams J).
With respect to the circumstance that there are New South Wales criminal offences as well as Commonwealth offences, the Court is not permitted to fix a single aggregate sentence or a single non-parole period in respect of the different regimes. Section 19(3) of the Crimes Act 1914 sets out the requisite approach to the sentencing of a person for Federal offences and State offences at the same sitting. The difficulties which might arise were the subject of three suggested approaches in DPP v Swingler [2017] VSCA 305; 269 A Crim R 526. I do not propose to set out those potential and suggested approaches but have given consideration to them in determining the structuring of the separate proceedings before this Court.
The Court must also consider and apply the principle of totality with respect to all of the offending, particularly with respect to the Commonwealth offending.
Taking into account the difficulties that confront a Court when sentencing for State and Commonwealth offences at the same time, I propose to proceed by way of separate aggregate sentences. I will deal first with the State offences relating to the possession of the unregistered firearms and prohibited weapons.
With respect to Sequence 4 of the 2023 offences, possession of three unauthorised firearms, taking into account the 25% discount for the plea of Guilty and also taking into account the two additional offences included on the Form 1, the indicative sentence will be 19 months. As there is a standard non-parole period specified, the Court indicates a non-parole period of 14 months.
With respect to Sequence 8, the possession of prohibited weapons, the indicative sentence is 3 months. This offence also carries a standard non-parole period. The indicative non-parole period with respect to Sequence 8 will accordingly be 2 months.
The aggregate sentence for these New South Wales offences will be a period of 20 months with a non-parole period of 15 months. The sentence and non-parole period will commence on 7 February 2024.
With respect to the Commonwealth offences, Sequence 1 of the 2023 offences, using a carriage service to access and transmit child abuse material between May 2023 and September 2023, after an allowance of 25%, the indicative sentence is 18 months. With respect to Sequence 3 of the 2023 offences, possession of child abuse material, the indicative sentence is 12 months. With respect to Sequence 1 of the 2024 offences, relating to use of a carriage service between 25 January 2024 and 12 February 2024, the indicative sentence is 15 months. With respect to Sequence 2 of the 2024 offences, use of a carriage service to access child abuse material between May 2022 and February 2024, the indicative sentence is 24 months. Each of those indicatives has taken into account the 25% discount.
The aggregate sentence with respect to the Commonwealth offences will be a period of 4 years. The non-parole period with respect to that aggregate sentence will be a period of 2 years. In the interests of clarity, I should indicate that I have varied the customary ratio with respect to the Commonwealth non-parole period to take into account the principle of totality.
As I have indicated, the State offence will be backdated to commence on 7 February 2024, taking into account the 8 days of pre-sentence custody during which bail was refused, and the subsequent period in custody commencing 15 February 2024. The non-parole period with respect to the State offences will accordingly have expired on 6 May 2025.
The Commonwealth sentence will commence from 6 May 2025. The non-parole period will expire on 5 May 2027. The additional term will expire on 5 May 2029.
The Court orders that pursuant to section 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth:
1 Oppo Mobile Phone (Exhibit No. X0003201246);
1 Black Oppo Mobile Phone (Exhibit No. X0004642542);
1 Black Mobile Phone (Exhibit No. X0004642543); and
1 Mobile Phone (Exhibit No. X0004373242).