R v Meza Isla

[2024] NSWDC 526

District Court of NSW|2024-10-28

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-10-28

Catchwords

s 16BA
s 17A
s 19: s 20(1)(b)(ii)
s 23ZD Crimes (Sentencing and Procedure) Act 1999 (NSW) s 3A

Source

Original judgment source is linked above.

Catchwords

s 16BAs 17As 19: s 20(1)(b)(ii)s 23ZD Crimes (Sentencing and Procedure) Act 1999 (NSW) s 3As 5s 21A The Criminal Code (Cth) s 474.22s 474.23 Crimes Act 1900 (NSW) s 79

Judgment (30 paragraphs)

[1]

Background

Gustavo Adolfo Meza Isla ("the Offender") has pleaded guilty to, and is to be sentenced for, the following offences, involving the possession and dissemination of child abuse and bestiality material: Seq Offence Description Maximum penalty As agreed by Parties 1 Section 474.22(1) of the Criminal Code (Cth) Use carriage service to transmit child abuse material 15 years' imprisonment 2 Section 547E(1) of the Crimes Act 1900 (NSW) Disseminate bestiality material 5 years' imprisonment 8 Section 547E(2) of the Crimes Act 1900 (NSW) Possess bestiality material 3 years' imprisonment 27 Section 474.22 of the Criminal Code (Cth) Use carriage service to possess child abuse material 15 years' imprisonment Section 16BA Offence attached to Sequence 27 Item 1 Section 474.23(1) of the Criminal Code (Cth) Use carriage service to produce child abuse material with the intention of committing an offence against s 474.22(1) 15 years' imprisonment

[7]

Sentencing principles relevant to child abuse material offences

The applicable principles and factors in sentencing for offending involving child abuse material are uncontroversial and well-established.
The objective seriousness of such matters is ordinarily determined by reference to the following factors: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of items or images possessed. 5. The proximity of the Offender's activities to those responsible for bringing the material into existence. 6. The degree of planning, organisation, sophistication and/or deception employed by the Offender in acquiring, storing, disseminating or transmitting the material. 7. The age of any person with whom the Offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the Offender. 8. Whether the Offender acted alone or in a collaborative network of like-minded people. 9. Any risk of the material being seen or acquired by vulnerable people, particularly children. 10. Any risk of the material being seen or acquired by people susceptible to act in the manner described or depicted. 11. Any other matter in s 16A of the Crimes Act bearing upon the objective seriousness of the offence.
General deterrence is a significant consideration for offending involving child abuse material and the online sexual exploitation of children, given the prevalence and ready availability of pornography involving children on the internet, and the need to protect children online from sexual abuse given their vulnerability.
Specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations. The question of likelihood of re-offending is clearly central to consideration of protection of the community from ongoing offending by the particular offender. General deterrence also has a protective factor against other potential offences by other people.
Offending involving child abuse material is difficult to detect given the anonymity which is provided by the internet, and it occurs on an international level, where the children abused for the creation of the material can be located anywhere.
Conduct such as the possession, transmission, or accessing of child abuse material creates a market for the continued corruption and exploitation of children.
There is a paramount public interest in promoting the protection of children, as online child exploitation offences and offences involving activities such as the production or possession of child exploitation material are not victimless crimes - children continue to be sexually abused and degraded to supply the market.
Such offending is not mitigated by the fact that an offender did not profit from the offending, did not pay for material, or was not involved in the distribution or sale of the child abuse material.
The nature of the internet and the evolution of remote storage devices using internet networks, means that images may be published and stored around the world for many years. The longevity of such materials is akin to re-victimising the abused children. The victims not only have to endure the abuse that occurs in producing such material but must live with the consequences of their images being swapped, traded, and accessed potentially indefinitely.

[8]

Sentencing principles relevant to bestiality offences

In Chesworth v R [2023] NSWCCA 115 at [22] ("Chesworth"), the Court of Appeal considered, among other charges, a charge of bestiality contrary to s 79 of the Crimes Act 1900 (NSW). Rothman J in discussing the offence remarked of the criteria for assessing the objective seriousness that "offences against animals, as distinct from humans, involve slightly different criteria". First, they take into account the vulnerability of a domestic animal and their incapacity, usually, to consent or refuse to engage in particular conduct. As a consequence, bestiality is difficult to compare, in terms of seriousness, and the factors associated with its objective seriousness, with offences against human beings." His Honour further indicated that "in the offence of bestiality, general deterrence looms large as does condemnation of the conduct". It was further observed in Chesworth that given the rarity of the offence, there is no "range" evident for bestiality cases.
Rothman J observed that a bestiality offence is not concerned wholly or principally with the infliction of violence or cruelty, such that if that conduct was present, it would have been an aggravating factor of that offence. In the Court of Appeal, the appellant's conduct was assessed as "just below mid-range", albeit in circumstances where no party had argued that it should be assessed as higher than it had at first instance (as "below mid-range"). The indicative sentence on appeal was 2 years and 6 months.
As I have already recorded, the Crown contends that the vulnerability of the victims (the animals) who did not have the capacity to consent ought be seen to be an aggravating factor under s 21A(2)(l).
I do not think that submission can be accepted. As was explained in Chesworth, animals have no capacity to consent to any activity involving interactions with humans. The very offence of bestiality has intrinsically built into it an acknowledgement that what is happening is happening to an animal and therefore, the question of consent is irrelevant. Almost by definition, the animal is, in that and other senses, vulnerable to humans. I therefore do not consider there to be a s 21A(2)(l) aggravating factor because that vulnerability is already built in the offence itself.

[11]

Sequence 1

Whilst the number of files is relatively small, it is a significant that there is a substantial quantity of individuals to which the Offender transmitted files and that his offending was not confined to the transmission of visual files but included the transmission of text child abuse.
With respect of the video and images, the material depicts real children, as young as infants and toddlers as well as pre-pubescent children. To summarise, the material includes the: 1. displaying of the genitals of various children; 2. displaying of a child's genitals with semen on them; 3. vaginal and anal penetration of children; 4. toddlers and infants engaged in fellatio, cunnilingus, and anilingus; 5. restrained children engaged in sex acts; 6. children who have been dehumanised, having been defecated and urinated on by adults; 7. children engaged in bestiality; 8. a child penetrated by two adult males at the same time; 9. sexual activity between children; 10. anal and vaginal penetration by objects; 11. the children were abused over a significant period, with the two longest videos being each over 19 minutes in length; and 12. it is obvious that physical pain is experienced by some of the children, with some descriptions indicating children who were screaming during the abuse.
There is no evidence that the offending was done for financial advantage or commercial distribution. However, the absence of payment does not mitigate the offending. The Offender contributed to the ongoing further victimisation of each of the child victims whose image he shared. Offending of this nature also encourages and rewards future exploitation of child victims by creating a market for this type of material.
As to the text child abuse material, the Offender transmitted child abuse material to 4 of the 17 individuals. The material he created was serious. Text material is no less serious than images or videos as it similarly encourages a market for the abuse of children. Some examples here include: 1. The Offender discussed the sexual abuse of a 7-year-old child. 2. The Offender discussed oral and penetrative sexual intercourse across all the conversations.
There was a real risk of the text child abuse material being seen or acquired by people susceptible to act in the manner described or depicted, given the Offender was corresponding with individuals who willingly engaged in the correspondence.

[16]

General and specific deterrence (s 16A(2)(j)-(ja))

As I have said, general deterrence is of particular significance when sentencing for offences involving child abuse material, given the difficulty of their detection and the substantial public interest in promoting the protection of children in the online environment.
The sentence to be imposed on the Offender must make clear to other like-minded people within the community that offences of this type are considered abhorrent, reprehensible, and totally unacceptable by right thinking members of the community and that offenders will be met with punishment reflective of the broader community's attitude, as expressed by Parliament in the maximum penalties, towards activities involving the online sexual exploitation of children.
There is also a need for specific deterrence to be given significant weight in the sentencing exercise, given that the Offender's conduct discloses that he has a sexual interest in infant children and a preparedness to disseminate material to others, who may have been unknown to the Offender. The Offender's conduct is varied and includes different forms of carriage service offences. The sentences to be imposed must be of such a severity as to act as a personal deterrent from his engaging in further offending of a like nature.
The nature of the offending can only be demonstrative of the Offender's ongoing sexual interest in children, and a willingness to act on his interest by possessing and transmitting child abuse and bestiality material over a substantial period of time. The offending continued until the time of arrest, and there is no evidence it would have ceased but for the arrest.
It was submitted on behalf of the Offender by reference to some statements recorded in the Sentencing Assessment Report, that I should conclude that the material and conversations did not sexually arouse the Offender, rather the explanation for his behaviour was that he was trying to "excite" other members of the online group.
The Offender is also recorded to have said that he took "full responsibility for disseminating the content", that it was a "mistake", and that he should have "deleted all the content". The Offender also acknowledged the impact on himself.
I do not accept that the Offender was not sexually aroused by the material. I am satisfied beyond reasonable doubt that part of his motivation was for his own perverted sexual gratification. I reject any submission to the effect that he was only storing and disseminating the material so as to "excite" others. I should say, even if that was the explanation, I am not sure that advances the Offender's position at all. If that were the reason, the conduct would, in my judgement, be just as reprehensible and even a little bit more difficult to understand than it is if explicable by sexual gratification. I do not think the regret expressed by the Offender is anything other than regret for the position he now finds himself in, rather than any relevant remorse.

[18]

Guilty plea (s 16A(2)(g))

The Offender entered pleas of guilty to each of the offences for sentence at the Downing Centre Local Court on 29 May 2024.
The Court must, for the Commonwealth offences, take into account the fact and timing of the guilty plea and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence. In so doing, the following considerations apply: 1. The NSW mandatory discount scheme does not apply to federal offences. 2. The fact of the plea may be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility, and/or a willingness to facilitate the course of justice. 3. The strength of the Crown case may be taken into account in assessing the subjective value of a guilty plea, including whether the Offender's plea was simply "recognition of the inevitable". It follows that a guilty plea entered in the face of a strong Crown case should not be afforded as much weight (in the assessment of its subjective value) as a plea entered in circumstances where the Crown case is weak. 4. The Court must have regard to the utilitarian or objective value of a guilty plea, even in the absence of any subjective value. 5. In the interests of transparency, it is desirable for a sentencing judge to specify the discount given for a guilty plea, although it is not necessary.
The Crown accepts that the Offender's pleas were entered at the first reasonable opportunity, and, in the interests of transparency, it is desirable that he be afforded an arithmetical discount for the utilitarian value of those pleas.
In relation to the subjective value of the Offender's pleas, I consider the guilty pleas were given in the face of a very strong Crown case, comprised of evidence from an undercover operative and evidence found on devices seized at the Offender's residence. A plea such as this, that has resulted from the recognition of the almost inevitable, is not necessarily evidence of genuine contrition.
Nonetheless, I think the 25% that would be applicable under the State regime should be afforded to the Offender.

[22]

The State offences of bestiality

I will deal now with the sentencing considerations for the purpose of the State offences, that is sequences 2 and 8.
I have already rejected the submission made on behalf of the Crown that s 21A(2)(l) has applicability here, but I do accept that s 21A(3)(e) and (f) have application as the Offender does not have a record of previous convictions and is a person who is otherwise of good character.
Section 5 provides that the Court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate.
As the relatively few decided cases have made clear, because there are not very many of these types of offences that come before the Court, it is very difficult, whether by experience or reference to statistical sentencing information, to discern any particular range of appropriate punishment.
By reference to the facts in the matter of Chesworth, to which I have referred, the offending here is significantly less serious than the acts involved in Chesworth, where it was found in the Court of Appeal that an assessment of the objective seriousness as "just below the mid-range" was appropriate as was an indicative sentence of two years and six months.
In Chesworth, it was the offender himself who was involved in the sexual acts depicted. In this case, the activity depicted did not involve the Offender but did involve real people engaging in sex acts with real animals.
I think the best I can do is to say that the objective seriousness here is below the seriousness identified in Chesworth, which was identified at below mid-range.
I have already dealt with the other relevant matters required to be taken into account under s 3A of the CSPA in my discussion concerning the Commonwealth offences, all of which are equally applicable to the State matters.
In addition, under the State regime, the Offender is entitled as a matter of statute to a 25% reduction because of the guilty plea. He also is entitled to the benefit of the mitigating factors that I have identified.

[23]

Commonwealth offences

Dealing with Commonwealth offences first. There is some overlap between sequences 1 and 27 and the s 16BA offence, in that the child abuse material disseminated forms part of the child abuse material, the subject of the possession matters. However, it is only a small overlap as there is a very large quantity of material, the subject of the possession charges, which was not disseminated.
The starting point is that there is no question but that a term of imprisonment must be imposed. Even without the statutory presumption in favour of imprisonment created by s 20(1)(b)(ii), no penalty other than a significant period of full-time imprisonment is appropriate for each of the Commonwealth offences on their own.
I do not find it necessary to reiterate the depraved, violent, and wholly abhorrent nature of the material in question.
As I have said, without using tags such as "above the midrange" or "slightly below the upper end of the midrange", I consider the objective seriousness of the offending to be substantial.
I also think that it is extremely significant that there is no satisfactory explanation before me as to why the Offender offended, other than what I infer, which is that he did it for his own perverted sexual gratification. I do not think that the Offender understands why what he did is wrong and is considered wrong by others, nor the gravity of the matter. Accordingly, I think that there is a low prospect of him being rehabilitated and therefore, a reasonably significant prospect of him reoffending. I have an obligation to protect the community, and in particular children within it, from that potential reoffending. General deterrence is a matter which also must also be given great weight. The community needs to understand with clarity that offences of this nature will be met with significant punishment almost always involving significant periods of imprisonment.
I accept that the Offender has no previous convictions, however that is not unusual in this type of offending, and in light of the facts before me, it is very difficult to accept a submission that the Offender ought to be treated as if he is of good character and that this conduct represents some form of unusual conduct generally out of character.
I will afford the 25% discount that the Offender would qualify for under the State regime.
In all the circumstances, the indicative sentences I consider appropriate are as follows: 1. Sequence 1 - transmit child abuse material using a carriage service: 4 years imprisonment less 25% discount for the guilty plea being a head sentence of 3 years. 2. Sequence 27 (taking into account the matter on the s 16BA schedule) - possess child abuse material obtained using a carriage service: 3 years imprisonment less 25% being a head sentence of 2 years and 3 months.

R v Meza Isla

At a glance

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Decision date

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)