R v Middleton [2023] ACTSC 50

LOUKAS-KARLSSON J Introduction Sentencing a criminal is about individualised justice. It is not about excuses. It is about the proper and just punishment for the individual offender. A punishment that fits both the offender and the offences; the crime and the criminal. I note the following at the outset because the issue of exceptional circumstances is raised in this case. A test of exceptional circumstances does not do away with individualised justice. Individualised justice is justice for the individual criminal and justice for our society. The test of exceptional circumstances does not equate to every case must lead to full-time imprisonment. That is not individualised justice. It is not justice. There will be cases that involve exceptional circumstances. Sentencing is not one size fits all. On 2 June 2022, Christopher Alex Middleton (the offender) pleaded guilty to the following offences: (a) Count 1 (CAN 11244/2021): An offence of using a carriage service for child abuse material, contrary to s 474.22 of the Criminal Code Act 1995 (Cth) (Criminal Code). The maximum penalty for this offence is 15 years’ imprisonment. (b) Count 2 (CAN 11243/2021): An offence of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service, contrary to s 474.23 of the Criminal Code. The maximum penalty for this offence is 15 years’ imprisonment. The following offence is also to be taken into account on a schedule in accordance with ss 16A(2) and 16BA of the Crimes Act 1914 (Cth) (Crimes Act): (a) (CAN 3063/2022): An offence of failure to comply with an order made by a magistrate, contrary to s 3LA(6) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment. The matter first came before me for a sentence hearing on 23 August 2022. I made an order on that date for the preparation of an Intensive Correction Order Assessment Report. While it had been anticipated that this matter might be relisted approximately eight weeks after the initial hearing, the matter was listed before me for the continuation of the sentencing hearing on 21 February 2023. The matter was subsequently vacated and relisted by me for 28 February 2023 due to the unexpected continuation of a then ongoing jury trial.

Agreed Facts The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows. On 3 September 2021, the Australian Capital Territory (ACT) Joint Anti Child Exploitation Team received a report from the National Centre for Missing and Exploited Children (NCMEC) related to the access of child abuse material on the social media messaging application ‘Kik’. The user was linked by an Internet Protocol (IP) address to the Internet Service Providers known as iiNet and Telstra. The IP address subscriber was then identified as the offender. On 17 November 2021, a search warrant was executed at the offender’s address. The offender’s mother, father and brother were present at the time. As the offender declined to provide Police access to his devices and the relevant accounts, he was subsequently served with an order under s 3LA of the Crimes Act. After receiving legal advice, the offender provided the pin/password to his devices including a Samsung mobile phone and a Huawei Matebook laptop, as well as to his Kik accounts with usernames of 'sneakyibis' and 'jamesdead735'. The web browsing history of the offender’s phone shows that the offender had accessed the encrypted cloud storage website ‘Mega.nz’ and that he lied to police in saying he did not. The offender omitted to inform police that the password and account details were saved in the ‘My Passwords’ application on the offender’s phone. The following devices belonging to the offender were seized during the execution of the search warrant: (a) a Samsung mobile phone; and (b) a Huawei Matebook laptop. The Kik application was installed on the offender’s phone and logged into. A conversation was observed on Kik Messenger which occurred on 14 November 2021 between the offender and another Kik user. The messenger chat concerned the forceful confinement, assault and rape of a 13 year old female by the offender and another Kik user. The content of the conversation meets the definition of child abuse material per s 473.1 of the Criminal Code. Police reviewed the ‘Mega’ account 'John Smithe' and associated email address and identified that it comprised five folders containing 374 files. Police viewed three files and indicated the videos were of varying lengths and depicted rape and indecent acts committed on prepubescent children by adult offenders. Subsequent forensic examination of the offender’s Samsung phone revealed the download of 12 different Virtual Private Network (VPN) applications between 6 September 2020 and 24 July 2021. VPNs are used to encrypt a user’s internet traffic and disguise their online identity. Additional applications found on the offender’s phone included: (a) the ‘Tor Browser’ which is designed to access the ‘Tor Network’ or the ‘Dark Web’, downloaded 8 December 2020; (b) ‘IP Change’, downloaded 22 March 2021; (c) ‘DuckDuckGo’, an internet search engine designed to prioritise a user’s personal privacy and security which can be used to search the internet and access the ‘Dark Web’, downloaded 20 April 2021; and (d) ‘Hide My IP’, downloaded 24 July 2021. In addition, the internet history of the Google Chrome application on the offender’s phone also showed navigation to temporary email providers and Mega.nz between 2 October 2021 and 16 November 2021. Located on the Mega account were a total of 220 video files that were assessed to meet the definition of child abuse material. Three files were duplicates. The Statement of Facts disclosed that, of the 220 video files, the shortest video file was three seconds in duration and the longest video file was 52 minutes and 10 seconds. Of the 220 video files, 51 percent depicted prepubescent child victims and 49 percent depicted pubescent child victims. The child abuse material depicted female child victims ranging in ages from six months to 14 years of age. The files depicted, among other things, rape of children by adults and bestiality. During the execution of the search warrant, the offender stated the following: (a) When asked what his understanding of child abuse material is, the offender stated “It’s bad. It’s not good.” The offender further stated: “People abusing children” and “people exploiting children sexually and then filming it, I guess.” (b) He denied having child abuse material, child exploitation or child pornography on his Samsung mobile phone and Huawei Matebook. (c) He had the Samsung mobile phone for two years and in regards to anyone else accessing the phone it was only his brother who would use it to change songs. (d) He would access Google Chrome with the ‘DuckDuckGo’ extension on his Huawei Matebook but not on his mobile phone. (e) He did not use ‘Cognito’ application regularly. (f) He did not use VPNs or the ‘Tor’ browser. (g) There was a VPN on his phone that he had not used in years. (h) The offender’s understanding of his compliance with the s 3LA order was “I was only meant to provide passwords and account details, not information on data.”

Objective Seriousness and Sentencing Submissions The offences for which the offender is to be sentenced are serious, as is clear from the maximum penalty of 15 years. In assessing the objective seriousness of an offence of possession of child abuse material, it must be borne in mind that the possession of child abuse material creates a depraved market for the continued corruption and exploitation of children: R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (R v Porte) at [67]. The absence of sale, distribution or dissemination of material does not mitigate the penalty for the possession offence: R v Porte at [66]. The possession of child pornography is not a victimless crime. On the contrary, because the material remains in the community, the offence creates significant ongoing harm: see R v KB [2019] ACTSC 136. The depravity of this material is clear. As stated in DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 (DPP (Cth) v Garside) at [62]: What is clear from all of the authorities is that access to child pornography is regarded as a very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending. (emphasis added) Taking into account the depravity of the offences, specific deterrence and protection of the community, the prosecution submitted that a term of immediate imprisonment was appropriate in this case. The prosecution tendered a sample of the child abuse material for the court to view. It was submitted by the prosecution that the utility of the sample booklet has further increased in light of the new Interpol classification regime and its broader categorisation scheme. The prosecution emphasised it is important for the court to view the material in this matter to form an impression of the realistic nature of the material and its degree of depravity: see R v Porte at [76]. The court viewed the material as it was submitted must be done. It was truly depraved and degrading. There are no sufficient words to describe the appalling nature of this material. It is one of the worst aspects of a judge’s work to be forced to view this material. For the record I state the court is aware of the nature of the material and the degree of depravity (see also R v Hutchinson [2018] NSWCCA 152 at [48]-[50]). Factors relevant to the objective seriousness of offences of this kind are discussed in R v De Leeuw [2015] NSWCCA 183 (R v De Leeuw) at [72]; R v Ferguson [2015] ACTSC 363 at [48]; R v Arthur [2017] ACTSC 23 at [17]; and R v Major [2016] ACTSC 161 at [25]. The objective seriousness of child abuse material offending is ordinarily determined by reference to, inter alia, the following relevant factors: (a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted; (b) the number of items or images possessed; (c) whether the material is for the purpose of sale or further distribution; (d) whether the offender will profit from the offence; (e) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; (f) the length of time for which the pornographic material was possessed. As stated earlier, in R v Porte, the court also observed the following at [67]-[69]: (a) the possession of child abuse material creates a market for the continued corruption and exploitation of children; and (b) the possession of child pornography is not a victimless crime and that the harm is ongoing because the material remains in circulation on the internet.

Nature, content and quantity of material The offending for Count 1 is particularly serious due to the violent and depraved nature of the conversation. In relation to Count 2, the offender had 220 video files of child abuse material, including one video being 52 minutes and 10 seconds long. The volume of material is one indicator of objective seriousness with respect to offences of this type. The primary focus, however, is the type of material and the degree of its depravity: see Director of Public Prosecutions v Latham [2009] TASSC 101 at [35]; see also Commonwealth Director of Public Prosecutions v CCC [2021] QCA 4. The offending material depicts very young children, with 51 percent of the files depicting prepubescent child victims. The content of the child abuse material possessed by the offender is grossly degrading, abhorrent, and graphic and reflects a very high level of depravity and cruelty.

Make available to others The offending material was stored for the purpose of further offending. The offender admitted that this also included for the purpose of sharing with others. Counsel for the offender submitted, in terms of transmission, that there is no evidence to suggest the offender received any payment or other material benefit for the acquisition or transmission, nor is there any evidence of risk of the material being seen or acquired by a child, or by persons susceptible to act in the manner described or depicted. Counsel for the offender correctly submitted these are not mitigating factors, although their presence may be an aggravating factor. The prosecution correctly submitted that the absence of any benefit or profit does not mitigate the offending: see Saddler v The Queen [2009] NSWCCA 48 at [54].

Length of time Counsel for the offender submitted the length of offending is relatively short, being a matter of months. A time frame for the offending is not specified in the agreed facts or prosecution submissions.

Conclusion on objective seriousness The features discussed above are the relevant identifying features in this case concerning Count 1 and Count 2. An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. What is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]. The facts, matters and circumstances have been identified from [28] to [35]. In The Queen v Kilic [2016] HCA 48; 259 CLR 256 (The Queen v Kilic), the High Court held at [19] that unless the maximum penalty for an offence is to be imposed, a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called. The offending in this case is not a least serious instance, nor is it at the higher range. Taking into account the above, I assess the objective gravity of the offences to be in the mid range. As the High Court made clear in The Queen v Kilic, it is best to avoid using the expression “worst category” as lay persons may wrongly take it to mean that a judge has underestimated seriousness: see [20]. The offending is not low range. I have come to the conclusion that the offending falls in the mid-range arising from the factors discussed above.

Subjective Circumstances

Pre-sentence report In evidence before me is a pre-sentence report (PSR) dated 18 August 2022. The offender is 22 years old and born and raised in Canberra. He described a positive upbringing. He is one of two siblings and reported close and loving relationships with both parents and his younger brother. The offender reported stable accommodation at his parents’ house. He advised he has resided with his parents for the duration of his lifetime, and has no imminent plans to leave the family home. The offender attained his Year 12 Certificate, and then subsequently completed a Bachelor of Science in 2022. The offender reported previous employment at McDonalds fast food restaurant from 2016 to early 2022. The offender’s employment was suspended due to the charges before the court, and he subsequently resigned. I note that counsel for the offender’s supplementary written submissions state that the offender regained full-time employment at a building supplier in December 2022. The offender financially supports himself. The offender described himself as being socially isolated. He reported he does not maintain contact with his friends from school, nor from his previous employment. He stated he would typically only engage in casual interactions with acquaintances via online platforms. The offender has never had a romantic relationship or been sexually active. This information about the offender’s subjective circumstances contained in the PSR accords with the information about the offender’s subjective circumstances provided in the psychological reports outlined below. I note that the PSR was completed prior to the offender’s engagement with his treating psychologist, Ms Tabitha Frew. The question of the offender’s mental condition or lack thereof loomed large in this sentence proceeding. I will now discuss this topic.

Psychological reports In evidence before me are the following psychological reports: (a) Psychological Treatment Report of Mr Graeme Randall dated 21 July 2022; (b) Psychological Assessment Report of Ms Megan Godbee dated 5 August 2022; (c) Psychological Report and Comprehensive Mental Health Assessment of Ms Tabitha Frew dated 15 August 2022. In the interim period between the initial sentence proceedings on 23 August 2022 and the hearing on 28 February 2023, counsel for the offender provided a supplementary tender bundle containing two updated psychological reports and further submissions. Counsel for the offender provided the following additional material: (a) Psychological Treatment Report – Update Letter of Mr Graeme Randall dated 27 January 2023; (b) Psychological Treatment Summary Report of Ms Tabitha Frew dated 24 January 2023.

Psychological reports of Ms Tabitha Frew Ms Frew, a clinical psychologist, provided a report and mental health assessment dated 15 August 2022 which outlined the following. Under the heading ‘Brief psychosocial history’, the report outlines the offender’s childhood and family history; education and employment; relationships; medical history; mental health history; and (lack of) substance use. The report outlines the offender’s upbringing, which he described to the author as ‘great’. It outlines the offender’s engagement in school and extracurricular activities, work and education. Under the heading ‘Psychological Testing’, the report outlines the offender’s response to the following tests: (a) Paulhus Deception Scales; (b) Millon Clinical Multiaxial Inventory; and (c) Ritvo Asperger and Autism Diagnostic Scale and Structured Clinical Interview. Under the heading ‘Ritvo Asperger and Autism Diagnostic Scale and Structured Clinical Interview’, the report notes that the offender’s results from Autism [Spectrum Disorder] testing indicated marked deficits in verbal and nonverbal social communication skills, social impairments apparent even with supports in place, limited initiation of social interactions, and reduced or abnormal responses to social overtures from others. The report notes the offender had inflexibility with his behaviours, difficulty coping with change, and other restricted/repetitive behaviours which interfered with his functioning in a variety of contexts. The offender experienced distress and/or difficulty changing his focus or actions even when outside factors required this of him. Under the heading ‘Response to Terms of Reference’, the report provides responses to questions contained in a letter from the solicitor for the offender, including the following. The report states that the offender attended 15 of 17 scheduled appointments from November 2021 to August 2022, completing all appointments on time and actively engaging in the sessions. There were no issues with compliance. The report author states that in her professional opinion, the offender has (previously undiagnosed) Autism Spectrum Disorder (ASD) Level 2, without intellectual or language impairment. The report author outlines that a comprehensive mental health assessment was conducted over the first 6 sessions with the offender which formulated this diagnosis. Importantly, for the purposes of sentencing, the report outlines that based on the information provided and the assessment undertaken, Ms Frew is of the view that the offender was suffering from an undiagnosed and untreated ASD in the lead up to the commission of the offences and at the time of the offending. I accept on the basis of the opinion of Ms Frew that there is a causal relationship between features of the offender’s ASD and the offending. Ms Frew identified relevant factors at [410]-[532] of her report. There is, in my view, a causal relationship to a significant degree based on these factors. The relevant factors in summary are as follows: (a) The offender’s ASD caused deficits in his ability to make and maintain friendships or romantic relationships in adulthood; (b) The offender’s late awareness of a deficit in life experiences relating to romance or sex compared to his same-age peers made him feel defective and socially isolated, which was a precipitating factor in the commission of the offences; (c) At the time of report writing he presented to the report author as a person with the social and emotional understanding of someone of similar intelligence aged about 15 years old; (d) Because the offender’s undiagnosed ASD caused him to fail to progress along the developmentally normal continuum of age-appropriate intimacy in relationships, he was vulnerable to meeting people online who could take advantage of his underdeveloped social and emotional maturity; (e) The offender had no social or emotional capacity to understand the subjective context of reality as it related to real-time sexual experiences, and to generalise this knowledge to the needs and rights of the victims in child abuse material; (f) The offender’s naivety and literal interpretations meant that if a user profile stated the person was a 25 year old female, he genuinely thought he was talking to someone of that age and gender; and (g) The offender’s neurocognitive capacity to recognise that child abuse material was direct malice toward a child was reduced because of his ASD. Relevantly for sentencing, Ms Frew noted the following in summary: The offender is a psychologically vulnerable person because of his sheltered upbringing and neurocognitive deficits in social and emotional understanding, with an emotional age of approximately 15 years old in terms of how he relates to others and views himself. The undiagnosed Autism Spectrum Disorder was a causal factor in his offending, because if it was diagnosed in childhood, he would have had access to professional support to learn about emotions and social skills, plus appropriate sexual development, and socially normative behaviour. The report author also states that the offender has sub-clinical (emerging) features of Posttraumatic Stress Disorder (PTSD), developed after viewing a video of child abuse material. Importantly, I note that the author states that based on available information, the offender does not meet the DMS-5 criteria for Paedophilic Disorder. The report states the following: While he experienced sexual arousal on viewing child abuse material, Mr Middleton said, “I have never been attracted to a child, I like girls my age. Whenever I watched [child] abuse material, I had to have normal [adult] pornography going at the same time to get myself [sexually] excited. The [child] abuse material was more about the shock value and doing something I shouldn’t do.” Mr Middleton acknowledged there were 220 files of child abuse material on his personal devices. He said “I had a few group folders with heaps of it [child abuse material and bestiality content], but I didn’t watch a lot of the videos. I would say I opened about 20 percent of the videos, just to check they were the [child] abuse material, so I could then swap them with other people online, that is how I made friends. In evidence, Ms Frew stated that she did not conduct a forensic evaluation and that this conclusion is based on the self-reporting of the offender about his lack of sexual attraction to children. The offender told Ms Frew that he had to have adult pornography playing in order to become sexually aroused. Under the heading ‘Treatment Options’ Ms Frew states that the offender would benefit from a two-year period of psychological treatment using Cognitive Behavioural Therapy adapted for ASD. The offender requires a significant period of ongoing treatment to target his neurocognitive deficits because his ASD was not detected in childhood or adolescence. Therefore, he has not had any education or skills training to improve his capacity to cope with life and relationships. Under the heading ‘Sentencing Matters’ Ms Frew states that she assesses the offender as having a low risk of reoffending. Ms Frew is of the opinion that restricting the offender’s access to open source internet until the age of 25 would be a significant protective factor in reducing his risk of reoffending. Ms Frew also formed the view that the offender has the capacity to deal with the demands and constraints of a sentence served in the community. Importantly, Ms Frew stated that she is of the rare clinical opinion that the offender fits into a very small group of offenders who warrant special consideration for a non-custodial sentence, as it is likely to weigh on him more heavily than it would on a person without ASD and his adolescent-like interpersonal style. Ms Frew noted the concern that in custody the offender may be exposed to mature men with paraphilias such as sexual sadism and paedophilia, and they may influence his learning about sexual relationships. The offender’s naivety means he would be ‘easily influenced’ by such individuals. Further, Ms Frew noted that the offender will not receive the treatment benefits in custody that can be delivered to him in a one-on-one offence-specific therapeutic setting. These are important matters for sentencing.

Evidence of Ms Tabitha Frew – specialist in both ASD and sexual offending Ms Frew gave evidence before me at the sentencing hearing on 23 August 2022 concerning the contents of the first report dated 15 August 2022. Ms Frew gave evidence that her specialist areas are ASD and sexual and violent offending behaviour. Her dual forensic specialties are of particular significance in this case. In evidence in chief Ms Frew gave evidence that one of the significant areas of the offender’s impairment is his capacity to have relationships with people and make friends outside of his family system. Ms Frew stated that her clinical opinion is that this was a causal factor that led to him being isolated at home and making friends online, and consequently the commission of the offences. Importantly, Ms Frew gave evidence that if the offender were to be sentenced to a community-based order, she would make herself available on a fortnightly basis for a period of two years as the offender’s treating psychologist to address his ASD. Ms Frew gave two reasons for there being a causal relationship between the offender’s ASD and his offending. Firstly, she referred to the existence of research surrounding the inherent vulnerabilities for individuals with ASD as they relate to online child sex abuse offences. And secondly, the unique combination of a number of factors for Mr Middleton being late diagnosis, staying at home, lack of any real experiences with genuine friendship, social naivety (including being of the belief that the person he was speaking to online was a friend), and no experiences in dating or romantic relationships. In her evidence Ms Frew stated the following: There was, in my clinical view, a toxic combination which is written about in the autism and offending literature that talks about the social and emotional impairments in understanding the true impact and the real world experience of victims in those films … Ms Frew noted that the offender’s capacity to express remorse is directly influenced by his ASD. The evidence of Ms Frew was vigorously tested by the prosecution. In my view, Ms Frew’s opinion was not undermined by the prosecution’s cross-examination. Updated 2023 report The purpose of Ms Frew’s updated report is to “summarise the relevant observations of Mr Middleton’s progress in psychological treatment” and to provide the Court with “tailored clinical recommendations” to assist the Court in sentencing the offender. The offender has been under Ms Frew’s ongoing care for the management of ASD Level 2 and Attention Deficit Hyperactivity Disorder, combined presentation. The report states that the offender has attended an additional nine clinical psychology appointments since the sentence hearing of 23 August 2022, with his parents attending one session. The report also refers to future appointments. I note that according to Ms Frew’s original report of 15 August 2022 the offender had attended 15 sessions between November 2021 and August 2022. This is now a total of 24 appointments. The report outlines a case consultation between Ms Frew and Mr Randall on 20 January 2023. I summarise and deal with Mr Randall’s evidence later in this judgment. Suffice it to say at this point that Ms Frew provided a summary of the relevant facts of their discussion as follows. (a) The offender has been attending fortnightly sessions with Mr Randall via the video platform Coviu and he was near completion of the intensive component of the sexual offending treatment program; (b) Mr Randall outlined the offender’s positive participation in the program; (c) Mr Randall outlined some of the offender’s vulnerabilities including difficulty with expressing empathy and understanding his own needs which will take longer in therapy; (d) While Mr Randall outlined in his initial report that he was of the view the offender was sexually attracted to children, Mr Randall changed this opinion in the case conference; (e) With reference to a diagnosable condition, Mr Randall stated that he agrees after working with the offender for a while now that the offender has traits of ASD. Mr Randall stated that he did not do a full assessment at the time of writing the first report as it was not relevant to his work with the offender; (f) Mr Randall stated that he intended to continue to support the offender in a maintenance program for the duration of any sentence served in the community. The update provides further information regarding the offender’s continued engagement in treatment for his ASD. Under the heading ‘Additional Relevant Information’ the letter notes that the offender has applied to the NDIS for funding supports for management of ASD. The offender is in the process of seeking a referral to a forensic psychiatrist for trial of a stimulant medication to improve impulse control and emotional regulation. It notes that if afforded a community based sentence, it would be important for ACT Corrective Services to provide the offender with a list of suitable websites he can access such as elearning, internet TV and music, email, health and finance websites and government websites. This list would then be displayed in his bedroom as a visual reminder and deterrent against any decision to access sites. This would be a protective factor against reoffending. The letter further notes that while the offender’s parents cannot prevent him from re-offending, residing under their roof is a deterrent from re-offending now that they are aware of the offences. Further, Ms Frew notes if sentenced to a community based sentence, Ms Frew would provide the offender’s parents with consumer resources regarding ensuring vigilance online in the area of child and animal abuse materials. This would be a protective factor against reoffending. In summary, Ms Frew notes that the offender remains vulnerable to poor impulse control, sensory-seeking behaviours, and a preference to make friends solely online, all of which are risks for reoffending. However, with NDIS supports, meaningful education and employment, engagement in treatments, family support, and specific restrictions on his online activity, he has an opportunity to learn to develop into a prosocial and law abiding member of the community. I accept Ms Frew’s opinions as to these matters. Mr Graeme Randall (Psychologist) As outlined above, in evidence before me is a Psychological Treatment Report of Mr Graeme Randall dated 21 July 2022 and an Update Letter dated 27 January 2023. Mr Randall was also subject to cross examination at the second sentence hearing of 28 February 2023. The first report outlines the offender’s referral to Mr Randall for targeted therapy focusing on his sexual offending. Treatment sessions between Mr Randall and the offender occurred via a telehealth platform, commencing 4 April 2022. Mr Randall reported that the offender presented as an individual who, despite outward appearances, has a poor sense of self. The offender communicated to Mr Randall that he has had difficulty fitting in socially and, as a result, has not been able to effectively build strong emotional supports and relationships. Mr Randall noted that the offender realised that rather than addressing his emotions, he has intellectualised his feelings, resulting in poor emotional regulation at times and disconnection from emotions. This has further impacted his ability to form close friendships. The report author noted the offender presented throughout the sessions as being relatively stable, though disconnected from his emotions. The offender reported feeling somewhat depressed at the time of the offences, however there were no obvious signs of depression during sessions and he reported that the depression was a consequence of the COVID-19 lockdowns. The report identified that the offender requires ongoing psychological support to address the various factors that led to his offending behaviour and develop appropriate supportive relationships. The focus of Mr Randall’s treatment is the offender’s disconnect from his own emotions as barriers to empathy and the development of fulfilling relationships, as well as disclosures around being sexually aroused in response to child abuse material. The report author noted that the offender has engaged well in treatment and is open to exploring different perspectives regarding his behaviour and thought patterns, which appears to be slowly building his insight into his behaviour. The court was provided with a Psychological Treatment Report – Update Letter of Mr Graeme Randall. The letter provides that Mr Randall has continued to treat the offender on a fortnightly basis and (at the time of writing of the report of 27 January 2023) he has had a further 11 sessions with the offender, totalling 18 sessions. The letter notes that the offender has engaged well with the material in the sessions. In the original report, Mr Randall indicated he did not conclude that the offender currently suffers from a mental disorder, impairment, or condition. However, the update letter notes the following at [6]: Having read [Ms] Tabitha Frew’s report, I agree with her assessment of Mr Middleton. I agree with her recollection of the case conference. Mr Randall stated further that it was not his intent in the original treatment report to suggest that the offender was primarily attracted to minors, nor that the offender met the criteria for Paedophilic Disorder. Mr Randall distinguished that at the time of the offending, the offender acknowledged sexual gratification from child abuse material, which is different to being primarily attracted to minors or meeting the criteria for a Paedophilic Disorder. Importantly, the offender reported to Mr Randall that he no longer has thoughts of experiencing sexual gratification through child abuse material, and that the thought of seeking gratification through child abuse material is now repulsive to the offender as he recognises the harm caused. Mr Randall notes that the offender has expressed a desire to continue with therapy, noting the positive impact it has had on his life and perception of others, including his understanding of appropriate sexual behaviour. Mr Randall notes that while the offender’s specific course is nearing completion, the offender can continue to see Mr Randall on a monthly basis via telehealth to engage in maintenance therapy. Clearly maintenance therapy is important for the continuing rehabilitation of the offender. These comments accord with the case conference summary contained in Ms Tabitha Frew’s updated report.

Evidence in Court – Mr Graeme Randall Mr Randall gave evidence at the sentencing hearing of 28 February 2023. Mr Randall gave evidence that he defers to Ms Frew’s opinion in relation to the effects of ASD on the offending behaviour. Under cross examination, Mr Randall noted that his initial observation that the offender was not suffering from a mental condition was an observation rather than a diagnosis. The witness confirmed that his discussions with Ms Megan Godbee in August 2022 did not involve an actual discussion of ASD. The witness stated that neither himself nor Ms Godbee had undertaken a detailed assessment that would have diagnosed ASD. I note the following exchange: Ms Cragg: Well did Ms Godbee relay to you her opinion that Mr Middleton did not appear to meet the criteria for autism spectrum disorder because he did not report or present with the main symptoms associated with that condition? Mr Randall: She noted that she didn't see severity of symptoms to suggest the need to do further in-depth assessment at that point. Ms Cragg: Did you agree with that view? Mr Randall: As I had not done any assessments to determine ASD myself, I would agree that at that point in time there were some traits. Whether or not it was worthy to – for me as a treating psychologist to pursue a diagnosis was irrelevant. There was crossexamination by the prosecution regarding Mr Randall’s change in opinion between the initial report of August 2022 and the Update Letter of 2023 advising that he defers to Ms Frew’s diagnosis of ASD. In my view this was a sensible and appropriate concession by Mr Randall as Ms Frew specialises in ASD and sexual offending. The witness was further cross examined regarding the causal link between (if established) the offender’s ASD and the offending behaviour. He also emphasised that the ASD diagnosis would provide context for offending but not explain the offending. I did not understand Mr Randall’s evidence to necessarily contradict Ms Frew’s evidence in this area of causal linkage. The question to be answered with close scrutiny to the evidence is the following: did the offender’s condition contribute to the commission of the offences in a material way? The answer on the evidence in this case is yes. The forensic question for the court is not “context” or “explanation” but rather contribution in a material way. Of course, it cannot be said that ASD leads inexorably to such offending. It does not. That is consistent with the evidence of Mr Randall and Ms Frew. Nevertheless, the evidence in the case of this individual offender is clear. It is as set out earlier in this judgment in dealing with the evidence of Ms Frew. The offender’s symptoms of ASD contributed to the offence in a material way (see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa) at [177]-[178]). Psychological Assessment Report of Ms Megan Godbee A Psychological Assessment Report of Ms Megan Godbee dated 5 August 2022 was tendered into evidence. The report was produced following a semi-structured clinical interview with the offender for the purpose of providing a Psychological Assessment Report for the court. Ms Godbee reported that, in his late teens, the offender began engaging in hypersexualised behaviour (excessive masturbation) which contributed to him becoming desensitised to mainstream pornography. The offender began to develop interests in deviant material, and his emotional suppression may have reduced his feelings of guilt and shame at the time. Ms Godbee reports the offender’s index offending was precipitated by his sexual interest in deviant material, a lack of meaningful social connections, accessing deviant chat forums on the internet, the use of sexual release as emotional coping, as well as an increased need for coping and social connections due to boredom and loneliness under COVID restrictions. In her report, Ms Godbee indicated the offender presents with reasonable insight, however appears to have some difficulties with self-awareness related to his own emotions as he tends to intellectualise rather than experience his feelings. Ms Godbee indicated that the offender’s self-report and his offending are both indicative of a deviant sexual interest in young girls, as well as other deviant material such as pornography featuring violence. As to the discussion of ASD, I prefer the evidence of Ms Frew and Mr Randall, as Ms Godbee only had one interview with the offender via Audio Visual Link on 2 August 2022. Ms Godbee reported the offender presents as an inherently prosocial young man with specific issues related to sexual offending and his socio-emotional difficulties. Ms Godbee reported the offender demonstrated appropriate insight into these issues and is already engaging in the treatment that would be recommended for him. Ms Godbee noted the disruption to the offender’s treatment that would occur if the offender were to receive a custodial sentence.

Remorse The PSR authors described the offender having acknowledged his actions had been unlawful. The offender verbalised feelings of embarrassment regarding the index offences, and stated “I hate that I got to the stage I did”. Ms Godbee’s report notes that the offender stated that he regrets his behaviour because of the consequences for himself and the hardship he has put his family through. The offender reportedly expressed the hope that this experience is “character building for him”. The offender was asked by Ms Godbee about the wrongness of his offending, and he identified that “it’s illegal because it’s horrible”. With prompting, the offender identified that “the person involved can’t consent, it’s a video of a rape basically”. The offender presented with a sound understanding of the way that accessing the material creates a demand for it. Ms Godbee’s report suggested the offender’s responses (to questions about consent and about his offending) gave the impression that he has an intellectual understanding of the wrongness of his behaviour but the negative consequences for the victims are not the first thing that he considers. The offender’s treating psychologist identified that building the offender’s empathy skills are a target of treatment. There is evidence before me that the offender’s ASD affects his ability to express remorse. Ms Frew notes the following in her initial report: [The offender’s] capacity to express remorse for the offences is directly influenced by the Autism Spectrum Disorder. If he was diagnosed with a neurodevelopmental condition in childhood and he had the appropriate professional treatments earlier, he would have greater capacity now to express remorse for the offences and to comprehend the true impact on the victims. However, his emotional age of approximately 15 years old, and neurocognitive deficits in Theory of Mind skills and empathy expression, means he only has capacity to show remorse for the effect of his offending in settings in which he is familiar…’ The impairment caused by [the offender’s] Autism Spectrum Disorder is such that he does not have the skills to express remorse in settings such as a Court room, or to people he is not familiar with, unless he has prepared social scripts to cope in these environments. His deficits in Theory of Mind skills and empathy expression does not mean that he does not feel regret, emotional pain, or empathy for the victims in the child abuse material. Rather, I have observed his physiological responses of discomfort and sadness in response to the emotional pain of his parents, and I have also observed him to become visibly emotionally and physiologically distressed when I asked him to describe the sounds he heard of a child being terrorised in a child abuse video. Mr Randall states in his report that the offender ‘…Expressed that he is deeply ashamed of his behaviour, and that he feels sick, recognising what he has done.’ A letter from the offender dated 19 August 2022 was tendered and includes the following: I am deeply ashamed of the charges against me. Many people will judge what I have done extremely harshly (rightfully so) as I do myself. I sincerely doubt that there is anyone who is more upset about my actions than me. I will openly accept any punishment that the Court deems appropriate as well as continuing to seek treatment to ensure that nothing like this will ever happen again. I have many regrets and can’t begin to adequately display their severity in this letter. I detest the hurt that I have inflicted upon my family. I see them trying to hide it every day and it only makes me feel worse about my actions. I am beginning, through the treatment with [Ms] Tabitha Frew and [Mr] Graeme Randall to appreciate the full impact that my actions have had on the lives of the victims and I feel sick thinking about what I have done. In a way I am glad I was arrested as it stopped me engaging that behaviour further and has led to a diagnosis of autism. The aim of this letter is not to make excuses for my behaviour as none exist. It is also not to say that the psychological treatments I have been undergoing have ‘cured’ me, and I don’t deserve any punishment, that is not true. I do want to express sincere remorse for my actions and while I cannot take them back, I hope I will not be defined by them. I also hope that this experience ultimately serves to make me a better person. The offender’s remorse is further expressed in the letter of the offender’s mother and father who state that: Christopher has expressed unequivocally that he is both remorseful and highly ashamed of his actions. He is ashamed because he now clearly understands how wrong his actions were and that they served to promote the continuation of wrongful material being made available online. A letter of support from a family friend states: I have spoken to Christopher and it is clear that he sorry and remorseful for his actions and any harm that it might have caused. Counsel for the offender submitted that the offender’s remorse is expressed in his letter to the Court, set out above. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with caution: see Butters v The Queen [2010] NSWCCA 1 (R v Butters) at [18], Fusimalohi v The Queen [2012] ACTCA 49 at [8], Alvares v The Queen [2011] NSWCCA 33; 209 A Crim R 297, Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 at [44], Mun v The Queen [2015] NSWCCA 234 (Mun v The Queen) at [36], and R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: R v Butters at [18], Mun v The Queen at [37], and Van Zwam v The Queen [2017] NSWCCA 127 at [6], [110]. Accordingly, I ascribe appropriate weight to the remorse expressed in accordance with the authorities.

References As referred to above in discussing remorse, two references were tendered in support of the offender. A reference under the hand of the father and mother of the offender is dated 18 August 2022 and includes the following: As parents we could not have been more shocked or devastated about the charges laid against Christopher. This is not the Christopher we know, and love, and feel that this situation is totally out of character for him. He has never been one to defy the rules, in fact and in contrast, he has always been a responsible and reliable young person who hated getting in trouble. We have consulted with Christopher’s Psychologist, [Ms] Tabitha Frew and agree with her diagnosis of Autism Spectrum Disorder. Reflecting on this from Chris’ childhood, we can now see how Christopher was socially isolated and found it hard to communicate and interact with his peers as she has mentioned in her report. …In addition, he is ashamed that his actions have caused a significant amount of upset and devastation for his immediate and extended family. A reference under the hand of a family friend was tendered and includes the following: Christopher has a loving and supportive family and an extended family which he is very close to. With their help and continued support I know that Christopher is capable of doing whatever is necessary to make up for his mistakes and any harm that he may have caused and work to restore the place and trust in the community that he once had. I take these references into account on sentence. Intensive Correction Order Assessment Report When this matter came before me on 23 August 2022, I determined that I should give serious consideration to the sentence being served by way of Intensive Correction Order (ICO). To that end, I referred the offender for assessment. The ICO assessment report concludes that the offender is suitable for an ICO and includes the following. Mr Middleton is a 21-year-old man who has been assessed as a low risk of general reoffending based on the Level of Service Inventory-Revised (LSI-R). His primary risk factors appear to be social isolation, use of spare time, and mental health. Mr Middleton’s offences were entirely committed online. However, it is noted that his bail conditions have prevented him from accessing the internet since the charges were laid in November 2021. These conditions have limited Mr Middleton’s exposure to online communities, which may have otherwise presented a risk for his reoffending. Mr Middleton has made active efforts to reduce his risk by obtaining full-time employment and engaging in mental health treatment. Should he continue engaging in interventions, he will likely remain at low risk of reoffending Mr Middleton has continued to engage regularly with two independent psychologists. He advised that one psychologist provides offence-specific treatment while the other provides more general counselling. Mr Middleton reported that one of his psychologists told him he might have PTSD from exposure to child abuse material during the commission of the offences. Mr Middleton felt he could not comment on any diagnoses but acknowledged that his mental health had deteriorated after the offences. However, he reported that receiving mental health treatment had been beneficial, including helping him “reframing” his perspective. Overall, Mr Middleton presented insight into the link between his mental health and the offences. Mr Middleton’s father verified this information and reported having recognised positive changes in his son since he began attending the above psychological treatments. Mr Middleton agreed with the statement of facts and appeared to accept responsibility for his offending. He did not attempt to minimise the offending and made statements elaborating on the negative consequences of his charges on his family. Mr Middleton reported that he did not believe he had any risk of re-offending. He stated that he would be "stupid" if he committed further offences and would “deserve to go to jail. “ Mr Middleton’s family home has been assessed as suitable should the offender receive a community based order. Mr Middleton would be assessed for the Sexual Offending Program if the Court granted him community supervision A number of factors associated with the offending may be targeted if an Intensive Correction Order is made. The factors include: (a) Leisure/recreation (use of spare time); (b) Companions (social isolation); (c) Internet use; and (d) Community service. If an Intensive Correction Order is made it is recommended that the order contain the following additional conditions: (a) Assessment for suitability for programs or counselling to address offending behaviour, including the Sex Offender Program. (b) That the offender attend educational, vocational, psychological, psychiatric or other programs or counselling specifically in relation to sexual offending and mental health.

Criminal History The offender has no prior criminal history. It is well established that an offender’s good character must be given less weight in relation to sentencing for offences of this kind (DDP v Smith [2010] VSCA 215 (DPP v Smith) at [23]). Further, the Victorian Court of Appeal approached this question in the following manner in DPP (Cth) v Garside at [88]-[92], concluding at [92]: In my opinion, the better view as to the relevance of good character to be applied in cases of child pornography is as expressed by McHugh J in Ryan, and by this Court in SD. In Ryan, a case involving multiple sexual assaults on young boys over a long period, McHugh J said: Counsel for the offender submitted that in considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case. In R v Maruskanic [2019] ACTSC 337, Burns J said at [26]: It has been said that evidence of prior good character may not carry as much weight when determining an appropriate sentence for offences of this kind as might otherwise be the case. However, that does not mean that prior good character is to be ignored. I accept that the offender is a person of prior good character. I ascribe the relevant weight in accordance with the authorities discussed above.

Pleas of Guilty The offender entered pleas of guilty on 2 June 2022 in the ACT Magistrates Court. The prosecution conceded that the offender’s pleas were entered at the earliest available opportunity and have resulted in a benefit to both the community and witnesses in avoiding the need for a trial. In 2020, s 16A of the Crimes Act was amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Consideration of this sentencing factor may result in the court providing a ‘discount’ to the sentence (see R v Duncan [1998] 3 VR 208 at [214]-[215]). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea. In sentencing for Commonwealth matters, the Court is not required to specify a discount (see Xiao v The Queen [2018] NSWCCA 4 at [280]), although it is desirable to do so in the interests of transparency. Taking into account the above matters, in my view, a discount of approximately 25% is appropriate for the pleas of guilty.

Time in Custody The offender has spent no time in custody referable to these offences.

Comparable Cases Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili v The Queen). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]: [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili v The Queen at [53]-[54]. I was referred to the following cases by the prosecution: (a) Burton v R [2020] NSWCCA 127 The offender was charged with one count of use carriage service to access child pornography material, with a Schedule offence of use carriage service to transmit indecent material to person under the age of 16 years, and one count of possess child abuse material. The offender was sentenced to total head sentence of 21 months’ imprisonment, to be released with recognizance after 12 months. The offending concerned Skype communications with numerous adults over a period of two years in which the offender transmitted graphic written descriptions of sexual activities he would perform with children, and four images of child abuse material in offender’s possession. The Schedule offence involved similar communications with police officers who had assumed identities of children online. The offences were in the mid and lower range of objective seriousness. The offender was aged between 24 and 26, with no criminal antecedents. The offender was employed by the Australian Defence Force at the time of his arrest, presented with some prospects of rehabilitation but little insight into his offending and limited remorse. The offender had an unspecified psychiatric condition and it was deemed his ‘offending behaviour was a function of his personality structure’. (b) Clarke-Jeffries v R [2019] NSWCCA 56 (Clarke-Jeffries v R) The offender was charged with one count of using a carriage service to solicit child pornography material, one count of using a carriage service to procure a person under the age of 16 years to engage in sexual activity, and one count of unwarranted demand with menaces. The offender was sentenced to seven months’ imprisonment, two years’ imprisonment, and seven months’ imprisonment respectively, to be released after nine months with recognizance. The offending consisted of the exchanging of messages in which the offender pressured the victim to either meet with him to engage in sexual intercourse, or to send photographs of her naked breasts. The offender then used these images to demand money from the victim. The victim was 15 years of age. The offender was 18 years of age at the time of offending. The offender expressed ‘unequivocal contrition and remorse’, cooperated with police and was deemed unlikely to reoffend. The offender had no prior criminal record. The offender was found to be both emotionally and physically immature, which materially contributed to the offending. The offender reported having experienced childhood sexual assault, and continued to suffer from mental illness including a suicide attempt following the offending charges. Specific deterrence was not a significant factor on sentencing. (c) DPP v D’Alessandro [2010] VSCA 60 The offender was charged with two counts of use carriage service to access child pornography material, two counts of use carriage service to transmit child pornography material, and two counts of possess child pornography material. The total head sentence imposed was three years’ imprisonment, reduced from four years and six months’ imprisonment by virtue of a guilty plea, before being eligible for release on recognizance after two years. The possession offences concerned 1094 child pornography images, three child pornography videos and nine child abuse images; the access offences involved 8,009 child pornography images and 34 child abuse images; and the transmit offences related to 8,211 child pornography images and 34 child abuse images. The material was described by the first instance judge as being ‘equated with the very worst’. The offender was 25 years of age at the time of the offending, and was indicated to have demonstrated shallow remorse. The offender had no prior criminal history. The offender identified sexual fantasies regarding children, had paedophilic tendencies, and was at risk of further offending without treatment. (d) R v De Leeuw [2015] NSWCCA 183 The offender was charged with one count of possess child abuse material and three counts of use carriage service to access child pornography material. The offender was sentenced to imprisonment for a period of two years’ six months’ imprisonment for possession, and 15 months, 18 months, and 21 months’ imprisonment for the access charges. A non-parole period of 15 months was imposed, it was deemed inappropriate to make a recognizance release order for the Commonwealth offences. The material was in excess of 30,000 images including significant number of images in the higher categories of the CETS scale. The offending occurred over extended period between 2005 and 2013. The offender was aged between 54 and 61 at the time of the offending, with no prior criminal history. The offender reported he was the victim of childhood sexual abuse and had a previous suicide attempt with ongoing mental illness. The offender was diagnosed with paraphilia. Progress towards rehabilitation was demonstrated, with marked improvement in insight into offending. (e) R v Porte [2015] NSWCCA 174; 252 A Crim R 294 The offender was charged with one count of use carriage service to access child pornography material, one count of possess child abuse material and one count of possess prohibited weapon. The offender was charged with both Commonwealth and State offences. The offender was sentenced to 12 months’ imprisonment for the access offence and two years six months’ imprisonment for the possession offence, with a non-parole period of 15 months. The offending involved possession of 34,143 items of child abuse material, of which 27,729 were classified as Category 1 (nudity or sexually suggestive posing with no sexual activity). The offending occurred between October 2011 and January 2013. The offender was 47 years of age at the time of the offending. The offender’s criminal history involved a single offence in 1986 of malicious injury. The offender suffered from depression and a hoarding disorder, however, was not thought to have a disorder of abnormal sexual interest. The offender suffered from spinal degeneration requiring surgery. I was referred to the following cases by counsel for the offender: (a) R v Armstrong [2020] ACTSC 298 The offender was charged with one count of using a carriage service to possess child abuse material and two counts of accessing child abuse material. The offender was sentenced to 13 months imprisonment, reduced from 16 months due to his guilty plea. The period of imprisonment was suspended after six months upon the offender entering into a recognizance release order. The possession offence related to 66 videos of child abuse material. The further offences related to the transmission of 29 and 37 videos respectively. Of the 66 videos, 22 were assessed as category 1, 11 in Category 2, one in category 3, 31 in Category 4 and one in Category 5. An estimated total of 75 victims were depicted in the material. The offender was 43 years old, had no prior criminal record and was diagnosed with a Social Anxiety Disorder. The offender had no problems with drugs or alcohol and began regular engagement with a psychologist subsequent to his arrest in relation to these offences. (b) R v Arnould [2020] ACTSC 345 The offender was charged with one count of possessing child abuse material, and one count of using a carriage service for child abuse material. The offender was sentenced to 9 months’ imprisonment, reduced from 12 months on account of pleas of guilty. The period of imprisonment was suspended after three months upon entering a recognizance release order. The offending related to 370 images and videos. Most videos were assessed as Category 1, however some were assessed as Category 4 on the CETS scale. The offender indicated he viewed the material for sexual gratification. The offender was 50 years of age and had no prior criminal history. The offender had taken positive rehabilitative steps to address his offending by attending a psychologist on a weekly basis and completing a sex offender program. The offender is medicated for depression. The offender’s insight into his offending, impact on victims and on his family and friends was considered an indicator of low risk of reoffending. (c) R v Burch [2020] ACTSC 192 The offender was charged with one count of using a carriage service to possess or control child abuse material and one count of using a carriage service to transmit child pornography material. For the possession offence, the offender was sentenced to a two year good behaviour order, including a 100 hour community service condition. For the transmission offence, the offender was sentenced to 12 months’ imprisonment to be served by way of an ICO including a 200 hour community service condition. The possession offence involved five images: one in Category 1, three in Category 3, and one in Category 4. The further offences related to sexualised communications relating to child sexual abuse between the offender and four other persons, assessed as Category 6. The offender was 34 years of age, with no prior criminal record. The offender reported an abusive upbringing related to his father’s alcohol consumption. The offender had been engaging with psychologists prior to his convictions due to anxiety and depression. The sentence judge expressed reservations regarding the imposition of the ICO due to the objective seriousness of the offence and the offender’s lack of insight into his offending. The ICO was imposed due to considerations related to the COVID-19 pandemic. (d) R v Johnston [2020] ACTSC 46 The offender was charged with two counts of using a carriage service to transmit an indecent communication to a person under 16 years of age and one count of possessing child abuse material. The offender was sentenced to six months and 15 days imprisonment for the transmission offences and 11 months’ imprisonment for the possession offence, to be released after serving four months’ imprisonment on recognizance. The possession charge related to 291 images contained on three devices belonging to the offender. A sample comprising 33 of those images was reviewed with nine classified as Category 1, five as Category 2, nine as Category 4 and one as Category 5. The offender was 44 years of age at the time of the offending and had no prior criminal history. The offender accepted responsibility for his actions, although was unwilling or unable to explain the motivations for his offending behaviour. The offender was assessed as medium to low risk of reoffending and expressed willingness to undertake treatment and intervention. (e) R v Kanawaza (unreported, Murrell CJ, 2 December 2013) The offender was charged with one count of offensive use of a carriage service, one count of using a carriage service to transmit child pornography, and one count of intentionally possessing child pornography. The offender was sentenced to seven months imprisonment for offensive use of carriage service, 22 months fully suspended sentence for the transmission offence (with a recognizance release order for 25 months), and seven months imprisonment fully suspended with a seven month good behaviour order for the possession charge. The offender possessed 225 images, most of which were categorised as towards the lower end of the CETS categories. The offender had no criminal history and pleaded guilty to the charges at the earliest opportunity, with a 25% discount afforded for the guilty pleas. (f) R v KB [2019] ACTSC 136 The offender was charged with one count of using a carriage service to access child pornography and one count of using a carriage service to transmit child pornography. The offender was sentenced to 24 months reduced to 18 months imprisonment and 28 months reduced to 21 months, respectively. The sentenced was to be served by way of ICO, including 200 hours of community service within three years, attendance of the Adult Sex Offender Program, and offence-specific counselling. The offences involved accessing a total of 490 images that were of a high level of depravity, including 84 images in Categories 4 and 5 of the CETS scale. The offender was 31 years old at the time of the offending. The offender reports he had previous engagement with a psychologist. The offender had a positive childhood and positive relationships with his family. The offender demonstrated motivation to change, evidenced by engagement with treatment and focus on maintaining marriage and family life. The offender had no criminal history. The court notes that the following cases were determined subsequent to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) however were not referred to by either of the parties. (a) Director of Public Prosecutions (Cth) v Barnes [2023] VCC 147 The offender was charged with 15 counts of use a carriage service to solicit child abuse material, two counts of use a carriage service to transmit child abuse material and one count of possess or control child abuse material. The offender was sentenced to a total effective sentence of 14 months imprisonment, with immediate release on recognizance. The offending involved communication with individuals aged predominately between 14 and 17 years online through the platform ‘Kik’. The offending was considered low to mid range involving no targeting of children and no attempts to meet children in person. The offender was a 35 year old male who demonstrated ‘deep and profound’ remorse for his offending; he had no prior criminal history. The offender was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) which significantly impacted his life, and was a source of his social isolation and loneliness. The medication prescribed for treating the offender’s ADHD had the effect of causing hypersexuality and was likely a significant contributory factor in offending behaviour. ‘Exceptional circumstances’ were established. (b) Director of Public Prosecutions (Cth) v Bremner [2023] VCC 51 The offender was charged with one count of use carriage service to transmit child abuse material and one count of possess child abuse material obtained or accessed using a carriage service. The offender was sentenced to 19 months’ imprisonment. The amount of offending material was considered ‘moderate when compared to other cases’, however a significant part of the material in the case was deemed to be particularly depraved. The material involved a very serious level of depravity. The offender was a 38 year old man at the time of sentencing who reported serious health issues including vascular disease and hypercholesterolemia. The offender was described as a ‘sad, socially detached, directionless man… with deficits in identity, intimacy and empathy’. The offender had ADHD, persistent depressive disorder, avoidant personality disorders and a paedophilic disorder. The offender presented with limited insight into offending behaviour and required treatment aimed at developing insight into behaviour. The threshold of ‘exceptional circumstances’ was not met. (c) Mertell v The King [2022] ACTCA 69 The offender was charged with nine counts of accessing and/or possessing child abuse material. The offender, on appeal, was sentenced to 30 months’ imprisonment with a recognizance release order after 12 months. The offending involved an estimated 50-75 separate child victims and the offender was in possession of the offending material for a substantial period. The offending was described as objectively serious. The offender was a 68 year old male who was estranged from his family and reported limited social networks or romantic relationships. The offender had been diagnosed with ADHD and ASD, however no direct causal link was established between the offending and the offender’s ADHD and ASD. The offender had no prior criminal history. ‘Exceptional circumstances’ were not established. (d) R v Coker [2021] NSWDC 805 The offender was charged with one count of possess or control child abuse material obtained or accessed using a carriage service, two counts of using a carriage service to transmit/publish/promote child abuse material, and one count of use carriage service to access child abuse material. The offender received an aggregate sentence of two years and three months’ imprisonment, to be released on recognizance after nine months. The offending was describes as involving a relatively low number of, albeit high disturbing, videos and images and over a relatively short period of time. The offender was a 51 year old male with no criminal antecedents. The offender was a drug user and indicated he was under the influence when he ultimately possessed and transmitted child abuse material. The offender has abstained from illicit drug use since his arrest and maintains treatment. The offender demonstrated an unusually and significant high level of insight, remorse and shame. These factors allowed for significant mitigation, but did not constitute exceptional circumstances. (e) R v Dregmans [2022] NSWDC 55 The offender was charged with one count of possess or control child abuse material and one count of use carriage service to obtain or access child abuse material. The offender was sentenced to two years’ imprisonment, with immediate release upon entering into recognizance. The offending material involved actual children, however the number of images was limited to two and the images did not depict harm or cruelty inflicted upon the victims. The material was not transmitted or disseminated. The offender had no prior criminal history and good prospects of rehabilitation, coupled with a willingness to engage with community service. The offender was assessed as low risk of reoffending. Modest weight was given to extra curial punishment by virtue of medica coverage of the offences. A global approach was taken and ‘exceptional circumstances’ were established. (f) R v Horner [2023] ACTSC 23 The offender was charged with one count of use carriage service to possess child abuse material and one count of use carriage service to access child exploitation material. The offending subject to the second count occurred prior to the amending legislation, however ‘exceptional circumstances’ were established. The offender was sentenced to 15 months’ and 12 months’ imprisonment, to be immediately released on recognizance. The offender experienced childhood abuse resulting in PTSD, which had a moderate to high correlation to the offending behaviour. The offender demonstrated remorse and insight into his offending. ‘Exceptional circumstances’ arose from a combination of factors: (i) the limited quantity of material possessed and limited access, (ii) the offender’s background of childhood sexual and physical abuse, including abuse while in an institution; and (iii) the offender’s mental illness. (g) R v Khqustiaan [2022] NSWDC 128 The offender was charged with one count of use of carriage service to transmit child abuse material. The offender was sentenced to three years’ imprisonment, with a minimum term of two years, one month and seven days before being released on recognizance. The offending was described to be in the lower part of the mid range. It was conceded that the offending videos could not be considered to be the worst type of offending material as the videos did not involve gratuitous violence, and a relatively low (six) number of videos were transmitted in a short period of time. The transmission was not undertaken for commercial purposes. The offender had experienced childhood disadvantage, childhood sexual and physical abuse and was diagnosed with moderate depression and severe anxiety. The childhood experiences were not linked to the development of sexual deviancy or deemed to be causally connected to the offending. The offender reported early exposure to alcohol and the use of cannabis as a coping mechanism. ‘Exceptional circumstances’ were not established in this case, most significantly as a result of the finding that the offender’s rehabilitation prospects were guarded. (h) R (Commonwealth) v Nafarette [2022] NSWDC 225 (R v Nafarette) The offender was charged with one count of use carriage service to possess and control child abuse material, one count of solicit child abuse material using a carriage service, and one count of make child abuse material available using a carriage service. The offender was sentenced to two years and six months’ imprisonment, with immediate release on recognizance. The objective seriousness of the offending was described as ‘relatively low level’, notwithstanding some 232 images and three videos which depicted acts involving real children. The offender experienced a difficult early life, in particular as a result of the conduct of his father which involved exposure to sexualised conduct and pornography. The offender was subject to child abuse himself, and reported a fragile mental health state at the time of the offending. The offender presented with good prospects for rehabilitation and a relatively low risk of reoffending conditional on engagement in rehabilitative programs. The District Court held that it is ‘the combination of factors that amount to ‘exceptional circumstances’ within the meaning of the provision, accepting that no one factor itself is exceptional’ (see [91]). As such, ‘exceptional circumstances’ were established. (i) R v Pedersen [2021] NSWDC 535 The offender was charged with using a carriage service to groom a person under the age of 16 years of age for sexual activity. The offender was sentenced to two years’ imprisonment, with immediate release upon entering into a recognizance release order. The offending involved multiple instances of conversations with a police officer assuming the identity of a 14 year old female online, therefore the offending involved no actual child victim. The offender was 61 years of age at the time of sentencing. The offender demonstrated remorse and has good prospects of rehabilitation. ‘Exceptional circumstances’ were established by virtue of a ‘combination of factors’ including: (i) the hardship that would effectively flow to the offender’s family, (ii) the stress and trauma, (iii) the medical needs of his daughter, (iv) the risks associated with COVID-19, and (v) the nature of the offending. (j) Woods v R [2023] NSWCCA 37 The offender was charged with one count of using a carriage service to solicit child abuse material. The offender was sentenced to nine months’ imprisonment, to be released immediately on recognizance. The offending involved a conversation with a police officer assuming the identity of a 14 year old female online. The offender had a compelling subjective case including long-standing mental health conditions and a degree of cognitive impairment. The offender had a mild intellectual disability, learning and speech difficulties, ADHD and Tourette’s syndrome. ‘Exceptional circumstances’ were identified as the offender’s case was “well outside of a typical one” and the offending was described as “more a result of his complexities and limitations, as opposed to… an intention to engage in more insidious behaviour” (see [53]).

Youth The offender was 20 years old at the time of offending. There are a number of common law principles relevant to the sentencing of young offenders. These principles are helpfully summarised by McClellan CJ in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23], and adopted in this jurisdiction in R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J) at [23]: The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (emphasis added) The prosecution correctly submitted that the principles in sentencing young offenders were clearly set out in Clarke-Jeffries v R at [45]. The prosecution submitted that the reports before the Court provide that the offender has an immaturity that may mean general deterrence has less of a consideration. Conversely, the prosecution submitted that less weight may be given to the youth of an offender as a mitigating circumstance if the offending is serious and bears traits of adult offending. In such cases the offender’s youth, while still a relevant mitigating circumstance must, to a material degree give way to general deterrence, specific deterrence and denunciation, in light of the abhorrent nature of the offending. It is appropriate that I deal with this issue under the heading of the Verdins and De La Rosa principles. Specific Deterrence and General Deterrence The prosecution submitted that a deterrent sentence is of primary importance to protect the community, taking into account the offending in both counts and sexual gratification. Counsel for the offender accepted that in sentencing offenders for offences involving child exploitation, general deterrence is considered to be of ‘paramount importance’ (R v Wicks [2005] NSWCCA 409, [39]). However, counsel for the offender submitted the offender was not an appropriate vehicle for general deterrence because of his diagnosed developmental disorder of ASD (De La Rosa). I accept it is appropriate that there be some reduction or moderation on this account. Further, counsel for the offender submitted, given the offender’s ASD and Ms Frew’s finding that he has the emotional age of approximately 15 years old, the offender’s moral culpability is reduced. Counsel for the offender correctly submitted the offender would benefit from the continuing treatment suggested by Ms Frew in relation to the question of specific deterrence. I will deal further with general and specific deterrence in discussing the application of the principles from R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) and De La Rosa.

Verdins and De La Rosa; Moral Culpability and Other Relevant Matters The principles set out in De La Rosa at [177]-[178] guide how a mental condition is to be taken into account in sentencing: (a) Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence; (b) It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed; (c) It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced; (d) It may reduce or eliminate the significance of specific deterrence; (e) Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. (emphasis added) Similarly, the Victorian Court of Appeal in the case of Verdins set out the relevance of mental health to sentencing at [31]: Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways: (1) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. (2) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. (3) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. (4) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of the sentence, or both. (5) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. (6) Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. (emphasis added) The prosecution did not accept that there was a causal link with the offending. As discussed earlier at [56] and [95]-[96], I have determined that there is a relevant causal link. In my view the De La Rosa and Verdins’ principles are enlivened and relevant. The evidence in relation to the risk of imprisonment on the offender’s health is extensively discussed in the reports of Ms Frew, Mr Randall and Ms Godbee. Importantly Ms Frew stated that, in her opinion, which I accept as discussed earlier, the offender does not meet criteria for Paedophilic Disorder. Ms Frew states that: While he experienced sexual arousal on viewing child abuse material, [the offender] said, “I have never been attracted to a child, I like girls my age. Whenever I watched [child] abuse material, I had to have normal [adult] pornography going at the same time to get myself [sexually] excited. The [child] abuse material was more about the shock value and doing something I shouldn’t do”. The offender’s primary diagnosis is Level 2 (moderate) ASD, which Ms Frew opines indicates ‘a requirement for substantial support’. This condition is genetic and developmental in nature. Ms Frew further states, ‘[the offender] was suffering from an undiagnosed and untreated Autism Spectrum Disorder in the lead up to the commission of the offences, at the time of the offences, and he will have this condition for the remainder of his life.’ I repeat that I have accepted that there is a causal relationship between features of the offender’s ASD and the offending. I note in this context that in Cluett v The Queen [2019] WASCA 111; 279 A Crim R 57 (Cluett v The Queen), Buss P, Mazza JA, and Mitchell JA accepted (at [74]) evidence that the offender’s ASD was a contributing factor to his offending and endorsed the sentencing judge’s finding that the offending was not sexually motivated: [T]he appellant’s autism spectrum disorder was a contributing factor to his offending. On the sentencing judge’s unchallenged findings, the appellant’s fixation on his ‘research’ led him to obtain or access the images. While there was no rational basis for thinking that viewing the images was required for that purpose, the lack of rationality in the appellant’s thought processes was a product of his autism spectrum disorder. In our view, although the appellant appreciated the illegality of his conduct, his autism spectrum disorder reduces both his moral culpability and the significance of general deterrence as a sentencing consideration. In conclusion, as in Cluett v The Queen, despite the offender’s appreciation of the illegality of his conduct, the offender’s ASD reduces his moral culpability in accordance with the principles enunciated in Verdins and De La Rosa. The offender’s ASD is also relevant in relation to moderating general deterrence and specific deterrence. It is further relevant in sentencing that a custodial sentence would weigh more heavily on the offender.

Statutory and Other Relevant Considerations The principles of sentencing for Commonwealth offences are contained in Part 1B of the Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2). In this context, I note in particular: s 16A(2) (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person. I further note s 17A of the Crimes Act which states that a court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence. As referred to earlier at [143], a new sentencing regime was introduced into the Crimes Act for Commonwealth child sex offences in 2020. This regime applies to the charges for sentence as the conduct occurred after 23 June 2020. There is a statutory presumption that offenders will serve some period of actual imprisonment unless there are “exceptional circumstances”. I discuss this further below. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian v The Queen). When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]: [W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.] Rehabilitation Rehabilitation is an important consideration. I draw on the statement of French CJ, as he was then, in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]: Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest. Where a person has good prospects for rehabilitation, as is the case for this offender, the court supporting those prospects in the sentence also addresses likely future harm to the community and protection of the community. That is in the public interest in the offender’s case. Pursuant to s 16A(2AAA) of the Crimes Act, a court sentencing an offender for a Commonwealth child sex offence must take into account, in addition to any other matters, the objective of rehabilitating the person. This includes whether it is appropriate when making an order to impose any conditions about rehabilitation or treatment options and, in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program. Rehabilitation is an important factor in sentencing this offender. The prosecution submitted this requirement does not displace or override the requirement that the sentence must be of a “severity appropriate in all the circumstances of the offence” (s 16A(1) Crimes Act). That is, while the requirements of s 16A(2AAA) of the Crimes Act must be taken into account (where applicable) in the instinctive synthesis of relevant considerations, the subsection does not permit or require a court to impose a sentence which is disproportionately severe or unjustly lenient in pursuit of the objective of rehabilitating the offender. The offender has participated in a range of treatment programs including sex offender therapy in relation to child abuse material, discussed extensively in this judgment. Mr Randall sets out that the offender requires ongoing psychological support to address the various factors that led to his offending behaviour. In assessing the appropriateness of rehabilitation options, the court must also consider the observations of Ms Frew that the offender should not have access to the open-source internet. Ms Frew makes recommendations for the treatment of the offender. Ms Frew, Ms Godbee and Mr Randall all underline a custodial sentence would cause significant disruption to the offender’s treatment. Counsel for the offender conceded the offender knew the child abuse material was illegal, and was viewing it for ‘increased thrill’, or ‘shock value’, when he became desensitised to mainstream pornography. The offender told Ms Godbee that he went through a cycle of being ‘disgusted, repulsed’ by the material and then deleting it and relapsing again. Counsel for the offender submits the offender accepts responsibility for his actions and was forthcoming with each report writer about his motivations for offending. I accept this submission on the basis of my reading of all the reports of the three different psychologists. In my view the offender has good prospects for rehabilitation. On 9 December 2021, shortly after his arrest, the offender was referred to LSC Psychology in Sydney to engage in offence specific treatment. The offender was referred for the weekly Group Therapy Program at LSC, however, given he was awaiting sentence, he was not eligible and instead, began individual sex offender therapy with Mr Randall. The offender has seen Mr Randall on a fortnightly basis since 4 April 2022, again as set out earlier. Mr Randall states the offender has: …engaged well in treatment and is diligent in completing his set homework tasks to a high level. He is open to exploring different perspectives regarding his behaviour and thought patterns, which appears to be slowly building his insight into his behaviour, as is noted in his recognition of the importance of connecting with his emotions. Given that [the offender] is in the very early stages of his treatment program, his developing insight into the importance of emotional connections and relationships is very positive. The offender has also engaged in psychological treatment with Ms Frew since 22 November 2021 and, as of 21 February 2023, the offender will have attended 24 treatment sessions with Ms Frew. Counsel for the offender correctly submitted the offender now has the benefit of psychological intervention, and a diagnosis – with specific and targeted treatment – which he did not previously have. Counsel for the offender correctly submitted that the offender’s rehabilitation is aided by the fact that the offender now also has a significant support network that he can rely upon, being his mother, father, brother, and extended family. The offender’s parents state: Christopher is part of a loving family, and he is close with both sets of grandparents, aunts/uncles, and his cousins, who he sees regularly and who are all available and willing to support him going forward. A family friend stated as referred to earlier at [117]: Christopher has a loving and supportive family and an extended family which he is very close to. With their help and continued support I know that Christopher is capable of doing whatever is necessary to make up for his mistakes and any harm that he may have caused and work to restore the place and trust in the community that he once had. Overall, the offender has made significant attempts towards rehabilitating himself and has good prospects for rehabilitation. Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19]. Exceptional Circumstances As referred to earlier, for Commonwealth child sex offences committed after 23 June 2020, there is a statutory presumption that offenders will serve some period of actual imprisonment unless there are “exceptional circumstances” that justify the offender being released immediately on a Recognizance Release Order or ICO. The amendment to the Crimes Act intended to reflect the exceptionally serious nature of these crimes, consistent with the position of intermediate appellate courts in recognising that a term of imprisonment will usually be expected for offending of this type: see R v Padberg [2010] SASC 189; 107 SASR 386. Section 20(1)(b) of the Crimes Act relevantly provides that where a person is convicted of federal offences, the court may, “if it thinks fit”: (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); (iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances--immediately. In other words, it is only if the court is satisfied that there are “exceptional circumstances” within the meaning of s 20(1)(b)(ii) of the Crimes Act that the court may release the offender without requiring the offender to serve an actual period of imprisonment. What constitutes “exceptional circumstances” is deliberately not defined. In the case of R v GAW [2015] QCA 166 at [54], the court observed that there is no one clear proscription for exceptional circumstances: What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case. … The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind. Having regard to the Explanatory Memorandum, the lack of a definition for “exceptional circumstances” is deliberate. The Explanatory Memorandum goes on to state, at [295], that: The phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold. In the decision of R v Tootell ex parte AG [2012] QCA 273, concerning the construction of a like provision within the Penalties and Sentences Act 1992 (Qld), the Queensland Court of Appeal observed at [18]: We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. I note the comments of Buscombe DCJ in R v Nafarette at [89]: In my opinion, the word, “exceptional”, in the statutory context means out of the ordinary course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances. Further, I note the comments of Berman SC ADCJ in R v Pedersen [2021] NSWDC 535. His Honour referred to a combination of matters which pointed to the conclusion that “exceptional circumstances” were satisfied which included the hardship that would effectively flow to the offender’s family, the medical needs of the daughter, the risks associated with COVID-19, and the nature of the offending. There are, in my view, a combination of factors which, taken cumulatively, amount to exceptional circumstances. These matters operate to rebut the presumption of actual imprisonment. Specifically, the following matters in combination amount to exceptional circumstances such that the statutory presumption of immediate imprisonment is overcome: (a) The offender’s diagnosis of ASD Level 2 (per the Psychological Assessment Report of Ms Frew dated 15 August 2022 (PAR) p 8 at 300); (b) That there is a causal relationship between the offender’s ASD and the offending (PAR p 11 at 410). In my view, there is a material contribution to the offending to a significant degree as discussed at [56] of this judgment; (c) That there were subclinical features of PTSD following the viewing of a child abuse video (PAR p 9 at 326); (d) That the offender does not meet the DMS-5 paedophilic disorder and is not sexually attracted to children (PAR p 9 at 335). He therefore cannot accurately be described as a paedophile; (e) That the offender requires a significant period of ongoing treatment to target his neurocognitive deficits (PAR at p 10 at 384); (f) That the offender has neurocognitive impairment which has significantly reduced his capacity for empathy (PAR p 13 at 483); (g) That the offender’s ASD caused him to retain child abuse material for the sake of the collection rather than only for consumption of the material itself (PAR p 13 at line 497, and in Ms Frew’s oral evidence); (h) The fact of the long-term rehabilitation path the offender is undertaking. The offender has had over 19 sessions with Mr Randall and 24 counselling sessions with Ms Frew. The offender would benefit from a two year period of psychological treatment using cognitive therapy which is not available in custody (PAR p 16 at line 596); (i) The evidence of low risk of reoffending (PAR p 16 at 625); (j) The evidence that imprisonment would weigh more heavily on the offender (PAR p 18 at 680, p 19 at 725); (k) The evidence that the offender’s emotional age at the time of committing these offences was 15 years of age (PAR p 18 at line 689); and (l) The fact that the offender has been assessed as suitable for an ICO. Based on my assessment of the evidence before me, there are exceptional circumstances in this case as outlined above.

Concurrency or cumulation Pursuant to section 19(5) of the Crimes Act, the legislature has imposed a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences. The presumption in favour of cumulation applies in this matter as the offender is to be sentenced in respect of two counts. It is appropriate that the sentences imposed in this matter be served to a significant extent cumulatively as each count is directed at separate and distinct aspects of the offender’s offending. Pursuant to section 19(6) of the Crimes Act, if the Court is of the view, having regard to totality and the overall severity of the offending involved in this matter, that it is appropriate to impose partially concurrent sentences, it is required by section 19(7) of the Crimes Act to state the reasons (see Mertell v The King [2022] ACTCA 69). There will therefore be a degree of concurrency. In conclusion, it is appropriate that the sentences imposed in this matter be served predominantly cumulatively as each count is directed at separate and distinct aspects of the offender’s offending. Nevertheless, on the basis of totality principles there must be a level of concurrency. Section 16BA offence Section 16BA of the Crimes Act enables other federal offences to be taken into account when sentencing a federal offender. The power to take an offence into account in sentencing a federal offender is discretionary (s 16BA(2)) and the power is invoked by the consent of the prosecutor coupled with an admission of guilt by the defendant (ss 16BA(1) and 16BA(2)). The offender is not to be punished for the admitted offence, being the offence of failing to comply with an order concerning the password, nor is the offence to be regarded as one for which the person has been convicted (s 16BA(10)). The focus of the Court is to be on imposing a sentence on the principal offending. The nature and seriousness of the offence to be taken into account is a relevant consideration in the assessment of the gravity of the whole course of conduct, the need for personal deterrence, and the community’s entitlement to exact retribution for a serious offence. Counsel for the offender submitted that this is not a serious offence of this type. The offender was forthcoming and compliant with police to the extent he was able to. The prosecution took issue with this submission at the oral hearing, submitting that the offender, in admitting to the offence, is admitting that he deliberately lied to police when he claimed that he did not know the password to his Mega account. This, in the prosecution’s submission, is clearly reflected in the agreed statement of facts. The prosecution submit that it is misleading to characterise the offender as being compliant and forthcoming to the extent he was able to. I accept the prosecution submissions on the facts. In written submissions the prosecution submitted that the offender’s actions, in initially lying about the existence of his Mega account, and then not complying with the s 3LA order by failing to provide police with the password to his Mega account when it was stored in his phone, increase the gravity of the primary offence. It is submitted that the Court would assess that the circumstances of the offending warrant a significantly higher penalty in respect of the primary offence. As above, I accept that prosecution submissions in this regard as it accords with the agreed facts. Sentence In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph is often quoted because it usefully summarises the nature of the sentencing discretion: The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. As Mahoney ACJ stated in R v Lattouf (unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996), “if justice is not individual, it is nothing”. In this case as a matter of individualised justice, exceptional circumstances are established on the evidence. The balance struck by a Court as an ‘instinctive synthesis’ is not used to “cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian v The Queen at [37]. I have balanced many different and conflicting features in this case, as discussed at length above, and have come to the conclusion that exceptional circumstances are clearly established. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters concerning the offender. As discussed above, after extensive consideration, in what must be said to be a difficult case, I have come to the conclusion that exceptional circumstances have been demonstrated. Before I pronounce sentence, it is appropriate that I refer to two matters. First, as I am a judge who regrettably must deal with many of these cases one cannot but wonder why the internet cannot be better regulated and policed so this degrading material cannot be found. Surely technology can stay ahead of the depraved people who manufacture this appalling child exploitation material for this depraved black hole of the internet. Second, the words of Nettle JA (as he then was) in DPP v Smith at [26]: Offences of this kind frequently appear as manifestations of the depraved voyeurism of socially mature adults. Such offenders have the insight to comprehend the effects of child pornography on its victims, but they offend nonetheless. But in this case, as the judge found, the respondent's offending was the addictive consequence of curiosity on the part of a socially very immature human being living an extraordinarily lonely existence, and he lacked insight into effect of the victims until after he was arrested. In this regard, I note that the offender was not a socially mature adult, he was a socially immature human being. The appropriate sentence for Count 2 is two years of imprisonment, reduced to 18 months on account of the plea of guilty. The appropriate sentence for Count 1 is two years’ and four months, reduced to 21 months. These will be concurrent to the extent of three months. As I noted in R v Elson [2020] ACTSC 264 at [85] and R v Paredes Valdez [2022] ACTSC 126, it must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a ‘significant punishment, coming second only to a term of full-time imprisonment’: R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed may result in a period of full-time custody.

Orders I make the following orders: (a) I record convictions for each of the offences. (b) For the offence of using a carriage service to transmit child abuse material (CC2021/11244), the offender is sentenced to 21 months’ imprisonment to commence 17 March 2023 and expire on 16 December 2024. (c) For the offence of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service (CC2021/11243), the offender is sentenced to 18 months’ imprisonment to commence 17 September 2024 and expire on 16 March 2026. (d) The offence on the s 16BA of the Crimes Act Schedule (CC2022/3063) has been taken into account on the sentence imposed for Count 1. (e) I direct that the terms of imprisonment are to be served by way of an Intensive Correction Order for the period commencing today 17 March 2023 and ending on 16 March 2026. (f) The conditions of the intensive correction order will be: (i) The core conditions in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT); (ii) A community service condition requiring you to complete 100 hours of service within 24 months from today; (iii) Not to access the internet, except for the following reasons: i. To obtain legal advice from his legal representatives; or ii. To engage in psychological, psychiatric or medical treatment, including booking treatment and completing homework tasks; or

iii. To undertake personal finance related tasks (online banking, online share trading, online share price analysis, access superannuation account); or iv. To access MyGov and all other government services; or v. To access COVID check-in apps; or vi. For the purpose of employment; or vii. To access an email address, provided the nominated email address is disclosed to ACT Corrective Services; viii. To access free to air television services provided by registered media broadcasters and the following music and video streaming services: i. Netflix; ii. Stan; iii. Disney+; iv. Apple TV; v. Amazon Prime; vi. ABC iView; vii. Spotify; viii. Apple Music.

ix. For contact with ACT Corrective Services or ACT Child Sex Offender Registry Team; or x. As permitted in writing by ACT Corrective Services. (g) The offender is to accept treatment as directed by Corrective Services with my recommendation that such treatment should include ongoing treatment from Mr Randall and/or Ms Frew (or a clinical psychologist of similar experience) for two years with intervals of at least monthly consultations. (h) To present and provide passcodes to any electronic device capable of accessing the internet to ACT Corrective Services or the ACT Child Sex Offender Registry Team, if requested to do so. (i) I make a forfeiture order pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Commonwealth Director of Public Prosecutions that the following items are forfeited to the Commonwealth: (i) Samsung Galaxy S10 (IMEI 351912105879317); and (ii) Google Pixel 2 XL (IMEI 358036081051833).

I certify that the preceding two-hundred and nine [209] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.

Associate: Lara Parmenter

Date: 17 March 2023