R v Mirigliani

Count 1

1. An examination of the Samsung tablet located 369 files classified as Child Exploitation Material (CEM). These files were classified as ranging from Category 1 to Category 5 on the CETS scale. An examination of the Samsung Galaxy Note located 477 files classified as Child Exploitation Material. [1] These files were classified as ranging from Category 1 to Category 5 on the CETS scale. An examination of the Micro SD card located 11 CEM files classified as Category 1 CEM.
2. Examples of the CEM located in the Offender's possession are: 1. A video of a pre-pubescent female performing oral sex on an adult male, classified as Category 4 on the CETS scale; 2. An image depicting an infant female being anally penetrated by an adult male, classified as Category 4 on the CETS scale; and 3. A video file depicting a pre-pubescent female tied with rope being orally penetrated by an adult male, classified as Category 5 on the CETS scale.

Count 3

1. On or about 22 November 2018 and 10 December 2018, the Offender communicated via the online platform 'KIK' under the username James Kovaa. In the course of these communications the Offender sent messages, including image and video files, to another user.
2. On 22 November 2018, the offender sent 8 files to the other user. On 10 December 2018, the Offender sent a further 2 files to the other user. These 10 files were subsequently classified as CEM, ranging from Category 2 to Category 4 on the CETS scale.
3. Examples of the CEM sent by the Offender are: 1. A video of a pre-pubescent female performing oral sex on an adult male, classified as Category 4 on the CETS scale; 2. A video of a pre-pubescent female being vaginally penetrated by an adult male, classified as Category 4 on the CETS scale; and 3. An image of a pre-pubescent male and penis exposed and being anally penetrated by an adult male, classified as Category 4 on the CETS scale.

Count 6

1. On or about 28 October 2017 and 29 October 2017, the Offender transmitted CEM to himself. On each date the Offender opened a link sent to him via the aforementioned KIK platform which led him to image and video files. The Offender created a Dropbox account into which he saved these files.
2. On 28 October 2017, the Offender accessed and downloaded 205 CEM files. On 29 October 2017, the Offender accessed and downloaded 10 CEM files. All 215 files are classified as CEM, ranging from Category 1 to Category 5 on the CETS scale.
3. Examples of the CEM transmitted by the Offender to himself are: 1. A video file of a pre-pubescent female being vaginally penetrated by an adult male, with the words 'FUCK ME' across her body with an arrow pointing to her genital area, classified as Category 4 on the CETS scale; and 2. A video file of an infant female being hung upside down naked, with tape around her mouth and pegs on her genitalia, being beaten by a naked female, classified as Category 5 on the CETS scale.

Offender's Account

1. The Offender participated in a record of interview with Police, during which he stated the following: 1. He confirmed he owned the electronic devices located during the search warrant and that he knew there was CEM located on them; 2. He had received the child pornography during chats on the KIK chat platform whilst in a room with other members who traded child pornography; 3. He had been accessing child pornography since late 2017; 4. He received sexual gratification from child pornography; 5. He had accessed a Dropbox link whilst chatting to other users within a KIK group chat; 6. He viewed the account via the Dropbox link and knew it contained child pornography. He then saved and downloaded this account; 7. He had not produced child pornography himself; 8. He wanted to stop and had wanted to delete all of his child pornography but had not done so, though he had stopped accessing his KIK account by changing the password to something he couldn't remember; 9. He had stopped himself from accessing his KIK account for a period; 10. He had never considered engaging in sexual behaviour with children; and 11. He regretted doing what he did.
2. In the course of oral submissions, some attention was drawn to the Offender's anxiety (discussed below). The Defence submitted that it would be open to the Court to make a finding of reduced moral culpability on the basis of the Offender's anxiety. This was faintly pressed.
3. The Offender stated that he came across child pornography/abuse material, which took on a form of compulsion, driven by high levels of anxiety as he was attempting to reduce marijuana intake. He reached out to others who had similar interests and stated, "I didn't feel I was nearly as bad as those persons." He stated that he "felt disgusted" and that "every time I watched the stuff I always felt guilty." [2]
4. In his letter of apology dated 17 December 2019, the Offender stated that he never went out seeking this material and it never crossed his mind to do so. He stated that the first time he came into contact with child pornography was when he was 15 when he was downloading music on a site known as LimeWire. He stated he had no intention of downloading child pornography material, and had no idea why someone would have disguised this material as music. His initial reaction to seeing the material was a natural one, and that he immediately turned it off. He said that the "images were branded" into his memory, and he had an urge to go back to the material, initially out of curiosity more than anything else. He stated that he watched the material intermittently. It was only until a couple of years ago when he saw a video on Facebook of a woman who was dirty dancing with a younger boy that memories of those images came back, and that he returned to them but he could not explain it. He stated that he had forgotten about them completely, however, when he saw that video it brought back memories of what he had seen and this curiosity he had soon grew into a compulsion. Understanding this, he stated that every time he would view these videos or photographs there was something wrong about it and he felt disgusted with himself. Eventually he became involved in an internet chatroom called KIK, where he developed friendships within the community with the other users he had not had since moving in with his grandmother and distancing himself from his old friends who smoked cannabis. He stated that the arrest was something that needed to happen, to pull himself out of the hole that he was in and so that he could get help.

Submissions and Consideration

1. Both parties acknowledged the matters relevant to assessing the objective seriousness of the offending as stated in R v Hutchinson, [3] which follows on earlier authorities including cases such as Mineham v R, [4] and R v Porte. [5]
2. The Defence submitted that the following factors rendered the conduct objectively less serious: 1. In respect of the possession and transmission offences, the Offender's purpose was for his own use - not for sale or dissemination; 2. In respect of the transmission to another person offence, the Offender's conduct was not for financial gain, nor other material benefit (such as the exchange of child pornographic material) - it was to a single person and involved a small number of items, none of which fell into the most serious category 5; 3. There was no evidence to suggest the Offender's activities were proximate to those responsible for bringing the material into existence; 4. The offending did not involving planning, organisation or sophistication in acquiring, storing or transmitting the material beyond that which is inherent in the offence; [6] and 5. There was no risk of the material being seen or acquired by vulnerable persons, such as children, given the devices were the Offender's personal device and he did not live with any children, nor was there any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted in the material, given the offender engaged in the conduct privately on his own personal devices.
3. The Defence acknowledged that the offending was made more serious by the following factors: 1. Actual children were used in the creation of the material - although this is commonly the case for offences of this nature; 2. Some of the material involved penetrative sexual activity, or sadistic or humiliating content (the more serious categories) - although the proportion of the material that falls within the more serious category is not specified; 3. Some of the material was, as submitted by the Crown, "particularly depraved" [7] - although the proportion of material that meets this description must be treated as limited; 4. The first in time offence involved "one instance of physical abuse of a child" [8] ; 5. Some of the material involved pre-pubescent or infant children (of unspecified ages); and 6. More than a small number of items were possessed or transmitted to himself - involving by inference, a number of different children being depicted, although the actual number is unspecified - this case is, however, to be distinguished from those in which many thousands or tens of thousands of files are involved.
4. In written submissions the Defence submitted that Count 1 fell at about the mid-range of seriousness. [9] However in oral submissions, the Defence submitted that Count 1 fell below the mid-range, although not in the lowest category. Observation was made that in relation to the content, the Offender was to be sentenced on the limited evidence available on the higher categories and that there was no evidence of the proportion of the respective categories, nor was there evidence that the offender had viewed the material. The Defence also drew attention to the Offender's statement that he intended to stop. The Crown submitted in relation to this Count that it fell above the mid-range of objective seriousness.
5. In relation to Count 3, the Defence submitted in written submissions such offending fell into the lowest category of seriousness. [10] This was maintained in oral submissions. The Defence drew attention to the fact that in relation to this Count, that there was a smaller amount of material, the transmission of material was to a single user, and the transmission was not a sale or exchange. It further submitted was that there was no evidence of the proportional distribution of the material within the relevant categories. In relation to this Count, the Crown submitted that the offending fell below the mid-range of objective seriousness.
6. In relation to Count 6, the Defence submitted in written submissions that this fell at about the mid-range of seriousness. In oral submissions it was argued it fell below the mid-range. The Crown submitted Count 6 fell within the mid-range of objective seriousness.
7. In the relation to Count 1, the number of files comprised of 857 across three devices, including both still images and videos. The number of still images compared to videos was not described. The ages and numbers of children were not described, although some involved pre-pubescent and infant children. It is not known if there was any duplication of the images and the precise contents of each file was not described outside of the examples given. The micro SD card only contained Category 1 CEM although the two other devices contained Categories 1 to 5. The distribution across the Categories was not described. According to the Offender's acknowledgement to police, the period of time this material was in his possession would have dated from late 2017 when he had been accessing child pornography. There is no evidence that the Offender had this material in his possession other than for his own purposes, nor was able to be accessed by others. There is nothing to suggest that he was in a position proximate to the person(s) who brought the material into existence.
8. In relation to Count 3, there were 10 files which included both images and videos. The number of still images compared to videos was not described. The files ranged from Categories 2-4 on the CETS scale. The ages and number of children were not specified, although some involved pre-pubescent children (both male and female). The distribution across the categories was not described although some examples of more serious material were described. The precise content of each file was otherwise not described. The transmission was to another user of the platform 'KIK" and it was sent under the name of James Kovaa. There is nothing to suggest that transmission was for profit or exchange. The Crown drew attention to the fact that there were different acts involved in transmission as opposed to possession. It was accepted that the material was transmitted to only one recipient across 2 days, and that the number of files transmitted was relatively small. There is nothing to suggest that he was in a position proximate to the person(s) who brought the material into existence
9. In relation to Count 6, there were 215 files which were accessed and downloaded on two separate occasions. The files were classified as ranging from Categories 1-5 on the CETS scale. The ages and number of children were not described, but at least one file involved a pre-pubescent female (Category 4), while another involved an infant female (Category 5). The distribution across the categories was not described although some examples of more serious material were described. It is not apparent as to whether there was any duplication and the precise content of each file was otherwise not described. There was no evidence to suggest that the Offender transmitted this material other than for his own purposes, or that it was intended to be accessible by others. There is nothing to suggest that he was in a position proximate to the person(s) who brought the material into existence
10. The Crown submitted generally that though the personal circumstances of the children depicted are not known, the likely effect of the offending on them enables the Court to find that the children were abused in order to supply the market enabling the exploitation of children, their degradation, violation and abuse in order for the content to be produced. Further that there was an additional layer of trauma for the children involved, knowing the images of abuse exist in perpetuity and may resurface. So much can be accepted as integral to offences of the kind in question. [11]
11. Although the Crown submission referenced s 21A(2)(g), (l) and (m) of the 1999 Act no submission appeared to be advanced that the State offence was aggravated pursuant on these provisions. Nevertheless the content of material as described, some including multiple victims, goes to the nature and circumstances of the conduct under s 16A(2)(a) of the 1914 Act and to relative seriousness under s 21A(1)(c) of the 1999 Act.
12. As previously indicated, the Defence further submitted somewhat faintly that it was open to the Court to find reduced moral culpability based on the Offender's having anxiety. The Crown submitted, and I accept, there is no evidence beyond the Offender's self-reporting to Mr Borenstein that his general history of anxiety persisted at the time of the offending. Furthermore, there is no evidence of a medical connection with such condition such that it is appropriate to take into account to reduce moral culpability. The extent that it impacts on the subjective case is discussed below.
13. Overall there are difficulties of assessing the level of the subject offending in light of the limited information on the content as described. The opportunity provided to view samples of the material the subject of each Count did not enable anything further to be gleaned in this regards. The number of items appears towards the lower end of the scale when compared to quite a number of other cases that have come before the Court although the nature of some of the material is clearly not in the category of the less serious examples.
14. Taking that into account the matters discussed, I would view Count 3 as falling within the lower range and Counts 1 and 6 as falling below the mid-range of offending.

Plea of guilty

1. It was acknowledged the Offender pleaded guilty to all offences in the Local Court. With respect to the State and Commonwealth offences, [12] the offender is entitled to a discount for a guilty plea which is to be quantified in the case of the State offence at 25%, in accordance R v Thompson and Houlton. [13]
2. Whilst the R v Thompson and Houlton guideline does not apply to Count 3 and 6, I accept that a similar discount should be applied at 25%, taking into account the utilitarian value of the plea. No submissions were advanced to the contrary.

Assistance to Authorities [14]

1. The Defence argued that in respect of Count 3 and 6 the Offender is entitled to have taken into account the degree to which he cooperated with law enforcement agencies in the investigation of the offence or other offences. Furthermore, that it was contended that in respect of Count 1 the Court must take into account and may impose a lesser penalty that it would otherwise impose on an Offender having regard to the degree to which the Offender has assisted law enforcement authorities in the investigation of the offence.
2. The Defence did not identify any quantifiable discount referable to the matters set out in s 23 of the 1999 Act.
3. In the circumstances, the assistance provided amounted to cooperation with investigative police in locating one device, confirming that he was the owner of the various devices and providing admissions in relation to the acts involved in the offending.
4. It is not evident that the Offender's cooperation disclosed otherwise unknown criminality and no submission to this effect was advanced. [15] Certainly the Offender's cooperation is not of a type that in my view would qualify for a separate quantifiable discount.
5. Nevertheless, the Offender's cooperation is a matter that I take into account generally, particularly as evidence going to remorse, contrition and rehabilitation.

Remorse and contrition [16]

1. The Offender did not give evidence. A statement was, however, tendered on his behalf. [17] In that statement, the Offender apologised for his actions resulting in the charges and stated that he was extremely embarrassed and ashamed at what he had done. He went on to acknowledge the harm that was caused to children through child pornography adding inter alia: "I want to say from the bottom of my heart that I am sorry to every child that has ever had to experience this type of abuse, I am sorry for the part that my action played. I am sorry for the fact I stooped so low and I will for the rest of my life stand against child abuse and child pornography." [18] It was accepted by the Crown that the Offender was remorseful, that his plea reflected the apology which he has written, that he entered the plea at the earliest opportunity, and his admission demonstrated cooperation with authorities.
2. I accept that the contents of 1. the Offender's apology letter to the Court; [19] 2. the report of Mr Sam Borenstein,; 3. references from the Offender's family members and friends documenting expressions of remorse being communicated; [20] all reflect the Offender's remorse. It is also noted in the Sentencing Assessment Report. [21] It has further been demonstrated in his cooperation with law enforcement earlier referred to.
3. It follows that I find that remorse has been established within the terms of s 21A(3)(i) of the 1999 Act and that the Offender has relevantly demonstrated contrition pursuant to s 16A(2)(f) of the 1914 Act.

The Offender's character, antecedents and age [22]

1. The Defendant was born in Sydney aged 29 and has a younger sister by 4 years. His father died as a result of cardiac arrest, age 33, when he was aged 6. His mother was left widowed and, of the Offender's description to Mr Borenstein, "had to be my mother and father." He recalled wanting to protect his mother and "to be the man of the house". He stated he had gotten on well with his mother and his sister. He stated that his uncle (his mother's brother) provided some male influence, input and mentoring which was intermittent and couldn't be relied upon.
2. The impact of losing his father was also described by the Offender in his letter of apology. The Offender stated that his father wasn't there to keep him in check or to keep him in line or help him out with bullying at school and things like that. He said that it meant that he had no one to talk to or to seek advice from about all the things that a boy would usually ask his father. He said he felt he was on his own and he had no one to turn to for help. As he got older he said that it led him to develop severe anxiety and depression and he struggled with reaching out and asking for help. This resulted in him turning to the wrong people for help and led his life down what he described as "down a dark road."
3. The Offender attended schooling until Year 10 and described himself as an average student, although there was evidence of him having some disciplinary issues. After leaving school, he attempted panel-beating and attended Ultimo TAFE, but left the trade after 12 months to commence French polishing, which he also left after 12 months. He stated he was working with an old school friend and "we ran a bit a muck". [23] He worked as an electrician offsider for 6 months, and CCTV and alarms for 12 months. He also worked in demolition for 12 months and as a builder's labourer for 4 months. He then worked in jack tiling "for the blind" for a period of some 12 months, and moved into warehousing stock. He is currently employed by Weatherden, where he has been working for the past 2 years as a warehousing "all-rounder".
4. I accept that I should, to an extent, take account of the Offender's prior good character and the absence of previous convictions. The Defence accepted that in matters of this nature, good character and the absence of prior antecedents carry less weight. [24] The Crown did not submit that the s 21A (5A) of the 1999 Act applied so as to disentitle consideration in respect of the State offence. [25]
5. According to Mr Borenstein, the Offender elected to live with his paternal grandmother some 5 years ago, following a fall out with his younger sister. He stated that he also decided to live with paternal grandmother to remove himself from his friends who were using marijuana on a chronic basis.
6. In his letter of apology the Offender stated that early in 2015, at about the age of 24, he made the decision to move into his grandmother's house as she was ill and required someone to live with her and assist her. He stated that he thought it was a good opportunity to get away from the negative influences of his old friends and find a fresh start.

Health [26]

1. Evidence was presented by Dr Lydia Kovach showing that the Offender was being treated as at 24 December 2015, "with increasing nervousness and physical signs of anxiety." [27]
2. According to the Offender's apology letter, Dr Kovach prepared a Mental Health Care Pan and referred him to see a psychologist Spiro Anthony. There was evidence of a GP Mental Health Treatment Plan, dated 24 February 2015 for general anxiety referring the Offender to Mr Anthony. [28] The Offender stated that he did not attend as he didn't feel that he could open up to someone that he didn't know.
3. Thereafter, there was evidence of the Offender was being treated by Dr John Chalmers, clinical psychologist, between 18 May 2016 and 25 October 2016, during which he attended 10 sessions for psychological treatment. [29] The Offender stated that his anxiety was really bad and he thought he was having a heart attack every day. He said that he spoke to Dr Chalmers about his problems and was encouraged to do breathing exercises instead of using cannabis. [30]
4. There was also evidence that the Offender was attended to by ambulance on 4 April 2016 in relation to chest pain. [31] Reports from Canterbury Hospital on 4 April 2016 reveal that he was having chest pain, noting he had a similar episode the previous year after being diagnosed for anxiety. [32]
5. On 15 April 2016 he came to be treated again at the Emergency Department at Canterbury Hospital, presenting with central chest pains. The clinical notes record that he felt very anxious when the pain started, and felt sweaty and anxious with some numbness occasionally. [33]
6. From 18 December 2018 the Plaintiff came to see Mr Sam Borenstein, Clinical Psychologist, on referral from his General Practitioner pursuant to a Mental Health Care Plan. Overall the Offender attended 9 treatment sessions between December 2018 and 28 November 2019. Mr Borenstein recorded that the Offender struggled with symptoms of anxiety and had been diagnosed with anxiety and panic disorder. He recorded that up until five years ago, he smoked marijuana chronically upwards of 7 grams per day. The Offender reported that he had a worsening of symptoms of anxiety and a propensity towards panic as he reduced marijuana consumption. He elected to move in with his paternal grandmother to cut ties with persons he used marijuana with. In terms of his drug history, Mr Borenstein recorded that the Offender stated that he commenced using marijuana when he was aged 20 when he started to mix with the wrong people. He was unemployed for a period of some 4 years and was receiving Centrelink payments. The Offender is reported to have stated that he smoked upwards of 7 grams of marijuana a day, which Mr Borenstein saw as evidence of his compulsive "addictive" qualities, driven largely by untreated anxiety. The Offender reported that he did not use other drugs, and that after he moved in with his grandmother he cut ties with the persons he socialised and smoked cannabis with. However, he stated that after a period of time he began to feel lonely, where he "went from having 40 friends who he would come around and hang out with me, to having no one." [34] He reduced his marijuana use on recommendation of his psychologist who treated him in mid-2016. He stated that he undertook psychological treatment after attending hospital for a panic-attack in April 2016, and afterwards was treated on a Mental Health Care Plan. He reduced his marijuana intake and in doing so experienced severe symptoms of anxiety, which was expressed in the form of compulsive behaviours of the sort which led him to be arrested and charged.
7. Upon testing under the Personality Assessment Screener (PAS) and Depression and Anxiety Stress Scale (DASS-21) on 28 November 2019, Mr Borenstein found that the Offender confirmed moderate potential for emotional and/or behavioural problems of clinical significance. [35] Mr Borenstein stated that the results confirmed the Offender's levels of personal distress, unhappiness and apprehension. He stated that the results also confirmed the Offender's propensity to rely on compulsive and impulsive in order to manage anxiety symptomatology, consistent with the Offender's medical history. The PAS profile confirmed the Offender has entertained suicidal thoughts without intent, and anger management issues which were internalised. The assessment ruled out serious psychiatric disorder, such as psychosis. Mr Borenstein confirmed that the results on the DASS-21 confirmed moderate symptoms of depression, extremely severe symptoms of anxiety, and mild symptoms of stress. Symptoms include mouth dryness, inability to experience any positive feelings at all, breathlessness in the absence of physical exertion, reduced motivation, trembling, worrying about situations in which he might panic and make a fool of himself, feeling downhearted and blue, feeling close to panic, elevated heart rate in the absence of physical exertion, and generally feeling fearful.
8. Mr Borenstein recorded that the Offender has ongoing treatment needs given his propensity towards anxiety, panic and secondary depression.
9. The Court also has before it evidence that the Offender suffers from pain in the left leg that culminated in a CT scan on 25 May 2019 showing: At L4/4, there is a large left paracentral extrusion, severely narrowing the spinal canal with thecal sac compression. There is severe left lateral recess stenosis with impingement of at least the descending L5 nerve root. An MRI scan should be considered for further evaluation. Elsewhere, there is a degenerative vertebral disc disease not resulting in any high grade spinal canal or foraminal stenosis. [36]
10. The Offender in his statement also referred to his health stating that he suffers from a number of medical conditions aside from his mental health including that he is significantly overweight. He stated that he has struggled with this for most of his life and cannot lose weight and that the stress of going to prison has resulted in him overeating. He also reports suffering bad pain in his whole left leg and walking with a limp following a slipped disc in his back which causes him discomfort. Despite this latter complaint, the Sentence Assessment report records that the Offender is willing and able to perform community service work and he has been assessed as suitable.
11. The Defence submitted that in the circumstances it was open for the Court to find that that the Offender's mental and physical health were such as to make the impact of incarceration more burdensome.
12. I am unable to assess what impact the observations in the abovementioned CT scan have on the Offender's day to day condition. Nothing was submitted to indicate it could not appropriately be managed in custody.
13. Whilst the Offender's statements have been untested, I am satisfied based on the material submitted that some allowance should be given to the Offender's mental health. In particular, I accept on this basis that a sentence of imprisonment would weigh more heavily on him reducing the significance of specific deterrence on sentence.

Prospects of Rehabilitation and Likelihood of Reoffending [37]

1. The Crown drew attention to the Offender's admission that the offending was motivated by sexual gratification and that he was therefore sexually interested in children and had previously difficulty stopping himself from accessing child pornography material. The Crown submitted in these circumstances the Court would have real concerns as to the Offender's prospects of rehabilitation.
2. The Defence drew attention to the insight the Offender has into his wrongdoing combined with his remorse. It noted that he advised that he has taken measures to assist him to not reoffend, by changing his mobile number to a basic model that he cannot access the internet and that his grandmother has disconnected the internet at home. Further, attention was drawn to the fact that the Offender has ceased cannabis use, and that he has been two years abstinent. He has also sought psychological help and has attended the Sex Addicts Anonymous programme. In addition, he has strong family support as well as support from his girlfriend with whom he has been in a relationship for approximately six years.
3. Mr Borenstein has indicated the Offender has been assessed as falling in the low risk category of recidivism based on Static-99R and SVR- 20 findings. He notes that he has relied on compulsive and impulsive defences to manage anxiety symptoms. He states that progress in treatment sessions allows for confidence in stating that the Offender has learned more effective ways of managing symptoms directly and stating the likelihood of him relapsing into addictive or compulsive defences has been significantly reduced.
4. Laura O'Neill, Forensic Psychologist for Corrective Services, stated that there were three factors relevant to the Offender's risk, being susceptibility to negative peer influences in the past, acknowledgement to police that he accessed the material for sexual gratification, and intimacy deficits, noting that he did not reside with his girlfriend.
5. Following the obtaining of Ms O'Neill's report, the Offender was assessed in the Sentence Assessment Report as being at a low risk of reoffending on the LSI-R. [38]
6. Overall the Offender is remorseful, has good insight, has availed himself of treatment and taken practical steps as well as possessing good family and community support. Despite the fact the Offender's acknowledgement of sexual gratification to police, I accept that he has good prospects of rehabilitation and a low likelihood of reoffending taking into account the protective factors referred to.

Probable effects of the Sentence on Family or Dependants [39]

1. The Defence submitted that a separate and distinct factor justifying leniency in this case is the hardship in the event of his incarceration that is likely to befall the Offender's grandmother, Ms Mirgliani. Evidence in this respect was provided by an affidavit by Ms Mirgliani dated 17 December 2019. In that affidavit she attests that she is 82 years old and has resided with the Offender since 2015. She indicates that she suffers from a number of medical conditions including skin cancer, shortness of breath, kidney disease, diabetes, high blood pressure, anaemia and chronic back, hip and knee pain that require regular medical follow up and assistance with home care with which the Offender assists. Medical evidence of Ms Mirigliani was tendered. [40] Ms Mirigliani stated that if the Offender were to go to prison then there would be no one else who is able to provide assistance, and she does not have funds to pay for full time care or to go to a nursing home.
2. Ms Mirgliani was not available for cross examination and as such her evidence is untested. In particular, it is not apparent why other members of the Offender's family who apparently reside nearby are not able to assist in some of the tasks the Offender otherwise would fulfil.
3. Overall I am not satisfied that the circumstances described amount to what can be described as "exceptional." [41] The Defence drew attention to a number of cases, which it was said, do not stand in the way of taking hardship to third parties into account in circumstances not amounting to "exceptional". [42] Those authorities follow a list of others which reached a similar conclusion. [43] In the present case I accept that there will be some hardship on Ms Mirgliani relative to the position when the Offender resided with her. It is appropriate to take into account as part of the general factual matrix case in determining the appropriate sentence.

Sentence

1. The Crown submitted that pursuant to the Court's consideration of the relevant provision under Part 1B of the 1914 Act and Part 3 of the 1999 Act, the objective seriousness, the maximum penalties available and the need for adequate punishment the only appropriate sentence to impose in the present case is one of full time imprisonment.
2. The Defence submitted that it was appropriate to consider the imposition of Community Corrections Order for the State offence and a conditional release order and recognisance pursuant to s 20(1)(a)(iv) of the 1914 Act in respect of the Commonwealth offences. This, it was said, would advance the need of general and specific deterrence, ensuring the protection of the community and rehabilitation of the Offender.
3. Each of the sentences that are imposed need to meet the purposes of sentencing set out in s 3A of the 1999 Act in the case of the State Offence and s16 A of the 1914 Act in the case of the Commonwealth offences. The harm caused to the victims of the offending needs to be recognised. In a case of this nature, general deterrence has been recognised to be of paramount importance along with the need to punish the offender, denounce the conduct and make the Offender accountable. [44] I accept that the need for specific deterrence has been ameliorated. I also accept that there is no demonstrated need to protect the community from the offender and that the rehabilitation he has committed to is demonstrative that this is so.
4. Overall I am satisfied that having considered all the alternatives, no penalty other than imprisonment in each case would meet the purposes of sentencing. [45]
5. The Crown submitted that a degree of accumulation is warranted noting that although the material is similar in nature, there were 3 charges involving 3 different and discreet forms of child pornography.
6. In setting the appropriate sentences I am mindful that the three offences are addressed to different forms of conduct. [46] Beyond that, it was not apparent from the facts to what extent, if any, there was an overlap in the material at the subject of each charge. Nevertheless I accept that some level of accumulation and concurrency is called for.
7. By reason of this being the Offender's first custodial sentence, his good prospects of rehabilitation and his health issues I would make a finding of special circumstances in respect of Court 1, and set a recognisance release order in respect of the Commonwealth matters.
8. After allowing for a plea discount as earlier described the sentence will be as follows: 1. Count 1: 10 months imprisonment commencing 31 January 2020 and expiring on 30 November 2020. Thereafter, a balance of term of 8 months commencing on 1 December 2020 and expiring on 30 July 2021 at which time the Offender will be taken to have become the subject of a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999. 2. Count 3: 6 months imprisonment commencing 31 October 2020 and expiring on 30 April 2021. 3. Count 6: 15 months imprisonment commencing on 1 March 2021 and expiring on 31 May 2022. 4. Pursuant to s 19 AC(1) of the 1914 Act, the Offender is to be released subject to a recognisance release from 30 July 2021 upon him giving surety (without security) in the sum of $500 on condition that: 1. he be of good behaviour for the balance of the term of the sentence; and 2. he accept the supervision of Community Corrections NSW.

Endnotes

1. S 16A(2)(a) of the Crimes Act 1914 Act (Cth) (Hereinafter 'the 1914 Act') and s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 Act (NSW) (Hereinafter 'the 1999 Act').
2. Hereinafter 'CEM'.
3. Exhibit 7, pages 9-10.
4. [2018] NSWCCA 152.
5. (2010) 201 A Crim R 243; [2010] NSWCCA 140.
6. (2015) 252 A Crim R 294; [2015] NSWCCA 174.
7. Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83 at [32], [36] per Buddin J (with Grove and Price JJ agreeing).
8. Crown Written Submissions at [12].
9. Crown Written Submissions at [12].
10. Defence written submissions at [8].
11. Defence written submissions at [9].
12. See R v Booth [2009] NSWCCA 89 at [40]-[41] per Simpson J (McClellan CJ at CL and Howie J agreeing).
13. S 16A(2)(g) of the 1914 Act. See also Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4; s 21A(3)(k) of the 1999 Act.
14. (2000) 49 NSWLR 383.
15. S 16A(2)(h) of the 1914 Act and ss 21A(3)(m) and 23 of the 1999 Act.
16. See Le v R [2019] NSWCCA 181 at [53].
17. S 16A(2)(f) and (g) of the 1914 Act and s 21A (3)(i) of the 1999 Act.
18. Exhibit 1.
19. Exhibit 1.
20. Exhibit 1.
21. Exhibits 2 to 6.
22. Exhibit B.
23. S 16A(2)(m) of the 1914 Act; s 21A(2)(e)-(f) of the 1999 Act.
24. Exhibit 7.
25. R v Gent (2005) 162 A Crim R 29 at [64].
26. Defence written submissions at [21]-[25].
27. S 16A(2)(m) of the 1914 Act and s 21A(1)(c) of the 1999 Act.
28. Exhibit 13.
29. Exhibit 14.
30. Exhibit 7.
31. Exhibit 1.
32. Exhibit 8.
33. Exhibit 10.
34. Exhibit 11.
35. Exhibit 7.
36. Exhibit 7.
37. Exhibit 16.
38. S 16A(2)(j) and (n) of the 1914 Act and s 21A(3)(g) and (h) of the 1999 Act.
39. Exhibit B.
40. S 16A(2)(p) of the 1914 Act.
41. Exhibit 17.
42. R v Edwards (1996) 90 A Crim R 510 at 516-518 per Gleeson CJ (with James and Ireland JJ agreeing) and R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522 at [13]-[14].
43. R v Shortland [2018] NSWCCA 34 at [105]-[125] per Hidden JA; Carter v R [2018] NSWCCA 138 at [54]-[70] per McCallum J (with Leeming JA and Fullerton J agreeing); Linden v R [2017] NSWCCA 321 at [15] per Simpson JA and R A Hulme J.
44. See R v Bednarz [2000] NSWCCA 533 at [51] - [52] per Howie J; Elsobky v R [2006] NSWCCA 168 at [17] - [21] per Hidden J (with James and Hoeben JJ agreeing); Dipangkear v R [2010] NSWCCA 156 at [29] and [40] per Whealy J (with Hodgson JA and Buddin J agreeing).
45. See Fitzgerald v R [2015] NSWCCA 266 at [33]-[35] Hoeben CJ at CL (Price and Button JJ agreeing).
46. S 17A 1914 Act and s 5(1) of the 1999 Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2020