R (Commonwealth) v Nafarette

The offender's subjective case

I turn then to the offender's subjective case. The offender was 21 years of age as at the date of the offences and is now 23 years of age. He is what the law calls a young adult offender. The principles concerning the relevance of youth to sentencing are well known. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrents, denunciation and retribution, when sentencing a young adult offender. See the relevant principles discussed in Bullock v The Queen 2016] NSWCCA 131, referring to BP v The Queen [2010] NSWCCA 159.
Those principles also recognise that often males do not fully mature until they are at least in their mid-twenties. While it is the case that the concept of general deterrence is a highly relevant factor when sentencing for offences concerning child abuse material, I consider that here I should give some weight to the youth of this offender when imposing a sentence.
The offender has no prior criminal record. I accept that when sentencing for this offence, it has been said in the Court of Criminal Appeals that less or limited weight is to be given to an offender's prior good character, because these offences are often committed by persons who have no prior convictions and are of good character, however the lack of a criminal record remains, in my opinion, a relevant matter to have regard to when sentencing an offender for such offending, although the weight to be given to it on sentence is reduced for the reason I have just stated.
The following documentary material is before me in relation to the offender's subjective case; a sentencing assessment report dated 16 December 2021, which has attached to it a report by an Annalise Mifsud, a psychologist with Corrective Services, a report dated 16 February 2022 by Bradley Jones, forensic psychologist, two documents under the hand of Tony Vorster, a psychologist with Headspace Parramatta dated respectively 10 January 2022 and 7 March 2022, a letter dated 14 December 2021 from Dr Michael Fasher, the offender's general practitioner, annexing a number of documents concerning the offender's mental health and mental health plans, a letter from the offender and a letter from his sister. An affidavit of his solicitor was read without objection.
The offender did not give evidence on sentence, and I have had regard to that fact when assessing what weight to give to the subjective material, although I note the Crown did not object to any of the material on behalf of the offender or put in contest its content to any significant degree. Some of the material predates the offences, and overall, the subjective material is generally consistent.
Turning then to his family background. The material before me establishes that the offender was born in the Philippines and immigrated to Australia with his sister and uncle when he was approximately nine years of age. The offender has a twin sister, and it is clear from all the material that is before me that they have a good relationship. I note his sister was present in Court on Monday when I conducted the sentencing hearing, and she is here again today. The offender told Mr Jones that he could not remember his father's name. The offender said that he had a poor relationship with his father. His father, he recalled, exposed him to pornography and sexualised behaviours from when he was approximately five years of age, and he has not seen his father since coming to Australia. He recalled that when his parents were together, they frequently argued, and divorced when he was a young child.
His mother came to Australia in 2005 and married his stepfather. The offender told Mr Jones that he met his stepfather shortly after coming to Australia, and that he had a relatively good relationship with him, until his mother separated from his stepfather, which occurred when he was 18 years of age. The offender told the psychologist that his childhood in Australia was difficult because of the cultural differences, and his inability to develop many friendships. The offender told the psychologist that when he was approximately 12 years of age, he was the victim of sexual abuse by his cousin. The cousin was said to be older, 15 years of age, and the offender told the psychologist he was sexually abused for a period of about 12 months, and that penetrative intercourse was involved in the abuse. His disclosure to the psychologist was the first time he has disclosed the abuse.
While the offender did not give evidence, I am inclined to accept that the abuse occurred, given he has not been exposed to the criminal justice process previously, and it is well known that there can be significant delay in a victim of child sexual abuse disclosing it. Mr Jones records the offender telling him that the abuse ceased when he was in year seven at school.
The offender told Mr Jones that he had one intimate relationship in his life, which was of a relatively short duration in 2020. The sentencing assessment report records that the offender currently lives with his mother and aunt. He told the author of that report that his relationship with his mother was, "Distant and resentful". The sentencing assessment report records that the offender is currently unemployed, and in the past, has frequently changed employment.
Dealing then with his education and employment history. Mr Jones records the offender as having completed year 12. The offender described himself as an academically average student. He detailed to Mr Jones that he experienced bullying at school, and to some degree, felt alone during that time. In terms of employment, Mr Jones records the offender as reporting he has in the past had short term employment as an apprentice floor sander, a pick packer, a floor installer and sander, and worked as a forklift driver for 2-3 years.
In terms of his substance misuse, Mr Jones records the offender first consumed alcohol from 16, and that he has not consumed alcohol since February last year. The offender reported that he first smoked cannabis when 17, and that when he was 20 years of age, his cannabis consumption increased to use on a daily basis, as he saw it as helping him cope with his depression and feeling down about his sexual abuse. He also is recorded as reporting that he ceased his cannabis use in February 2021, when he commenced taking antidepressant medication. The offender also described to Mr Jones experimenting on a limited number of occasions with MDMA, cocaine, and "mushrooms".
Turning then to the psychological material that is before me. The documentation from his general practitioner shows that in May 2018, the offender consulted with a GP in relation to high levels of anxiety and depression. The general practitioner recorded at that time that the offender had experienced suicidal thoughts. The GP prepared a mental health plan as a consequence of being consulted by the offender. At that time, the offender was referred to a psychologist, however the GP had no evidence that the offender had acted on the referral. The offender told Mr Jones that he had around that time, attended three sessions at what is referred to as the Talbot Centre in Baulkham Hills, before ceasing that treatment. In May 2018, the offender also started taking antidepressant medication. Mr Jones was able to obtain records from the Talbot Centre which indicate that the offender was diagnosed by a clinician there in September 2018 with a major depressive disorder and a substance use disorder, and in October 2018, was considered to be at a moderate risk of self-harm.
The documentation before me shows that the offender returned to his GP in July last year when a further mental health plan was devised. The GP referred the offender to Headspace in Parramatta. The content of the general practitioner's documentation is essentially consistent with what the offender is recorded as reporting to Mr Jones insofar as his background is concerned.
Mr Forster, a psychologist with Parramatta Headspace, records that the offender attended three sessions of early intervention therapy with a youth access clinician at Headspace and was then referred to Mr Forster in November 2021 for focused psychotherapy. By the end of 2021, he had attended two sessions of therapy with Mr Forster. In Mr Forster's March 2022 letter, he records that the offender has attended a further three sessions of psychotherapy and has disclosed more detail about the trauma he experienced while growing up. It appears from the Headspace documentation that in recent times, Mr Forster has focused on helping the offender to prepare mentally for possible incarceration.
Mr Jones recorded the offender as presenting with a generally flat and restricted affect and with a depressed mood. Mr Jones noted the offender presented with "themes of anxiety and depression, worry about the future, and feeling depressed about his life, and his history of sexual abuse". Mr Jones noted that there was no evidence of sensory, perceptual, or significant cognitive impairment, and the offender was considered to be in the average range of intelligence with a good level of insight and judgment.
Mr Jones administered a number of psychometric tests to the offender. His results indicated that he was experiencing clinically severe levels of anxiety, and clinically severe levels of depression. Mr Jones recorded that the offender reported feeling sad much of the time, has thoughts of killing himself, but that he would not carry them out. Mr Jones indicates also that testing showed that the offender does experience symptoms consistent with post traumatic stress disorder, but that further testing is required before a diagnosis could be proffered.
Mr Jones in his report does record that the offender indicated in relation to the offending that, "the online discussion he had with others stimulated engagement in the offending behaviour, and that he did obtain sexual stimulation as a result". Mr Jones considered that the offender, " does not have a specific fixation on pre-pubescent children that would be indicative of paedophilia. His sexual attraction towards children is indicative of paraphilia", which I understand to be a more general abnormal sexual practice. Mr Jones formally diagnosed the offender as suffering from an unspecified paraphilic disorder.
I note that Mr Jones states in his report, "anxiety and depression does not explain or account for a sexual attraction, however individuals experiencing anxiety and depression will engage in behaviours that will self sothe(sic)" - (presumably soothe) - "and reduce their level of emotional support". Mr Jones in that regard does refer in his report to the offender's behaviour being, "consistent with research indicating that for some offenders, downloading child pornography may be a way of avoiding or coping with difficult emotional states".
The evidence supports a finding that at the relevant time of the offences, the offender was suffering from significant mental health problems and had done so since 2018. I do not consider however that the evidence goes so far as to engage the well-known principles in DPP v De La Rosa [2010] NSWCCA 194, as in my opinion, the evidence does not establish that his mental health condition contributed to the offending in a material way. I do consider though that I should have some regard to his mental health when determining the appropriate sentence to impose here, on the basis that he had what might be termed fragile mental health as at the time of the offending, and at the current time.
In terms of the offender's attitude to the offence, the sentencing assessment report records that the offender said that he knew that his offending was wrong, and spoke of, "morbid curiosity", driving him to seek child abuse material. The author of the sentencing assessment report was of the opinion the offender, "appeared to lack insight into his offending behaviour". He is recorded in the sentencing assessment report as telling the author, "he accessed and viewed the child abuse material in an attempt to feel something and received no sexual gratification from viewing the material".
Those statements do not sit well with what is contained in Mr Jones' report that some sexual gratification was involved in accessing the material, nor do they sit well with part of the content of his letter to the Court, which is exhibit 7. In that letter, the offender acknowledges that he obtained sexual gratification from the offending. He states, "Even though I received some sexual gratification by watching the material, I still felt bad for the children". The offender does in his letter go on to explain that he feels bad for the children, because he himself had been sexually abused as a child.
The sentencing assessment report does record that the offender showed some insight into the impact of his offending upon the children who were depicted in the material. His letter and an annexure to Ms Lee's affidavit, which was prepared by the offender, is also indicative of the offender having some insight into the destructive nature of his offending. While I am conscious of what the Court of Criminal Appeal has said about placing much weight on self-serving letters from offenders when they are not called to give evidence, I do think his letter to the Court shows some further insight into his offending and the impact child pornography has upon the children who are used to produce it. I note he made a statement that might be thought to be against his interest in relation to conceding he obtained some sexual gratification from the offending. It suggests the content of the letter is reliable.
In terms of the future and risk of reoffending, the psychologist, Mr Jones, considered that the offender has a low risk of committing further offences. To manage and decrease his risk of recidivism, Mr Jones considers that the offender should engage in cognitive behavioural therapy and enter into treatment that specifically addresses sexual offences and their associated risk factors. The author of the sentencing assessment report considered the offender has a medium to low risk of reoffending, and noted that he expressed a willingness to engage in intervention.
I am required under s 16A(2)(h) of the Crimes Act to consider any cooperation with the authorities that the offender has engaged in. The agreed facts demonstrate that the offender made substantial admissions when first spoken to by police, and provided the police with the password to his mobile phone. I have had some regard to that assistance he provided to the police in arriving at the appropriate sentence to impose here.
The offender entered his pleas of guilty at an early point in time in the Local Court, and under s 16A(2)(f), I am to have regard to the timing of the plea and the degree to which his pleas have benefitted the community. Given the early entries of the pleas of guilty, I propose to provide the offender with a 25 per cent discount of his sentence. Overall, I consider that the evidence shows that the offender over time has developed insight into the serious nature of his offending, and the impact child pornography has on the vulnerable children who are exploited in its production. I consider on balance that there is some genuine remorse by the offender.
I turn then to his prospects for rehabilitation, a factor to be considered under s 16A(2)(j) of the Crimes Act. In assessing his prospects of rehabilitation and its relevance to sentencing, I have had regard to the content of s 16A(2AAA) of the Crimes Act in considering my approach to that issue. I have noted the limited discussion of the provision by the Court of Criminal Appeal in the recent decision in Dark v The Queen [2022] NSWCCA 52. The offender has good prospects of rehabilitation in my opinion. He is young, has no prior record, has some family support, and has commenced treatment with mental health professionals, and his risk of reoffending, in my opinion, overall is relatively low. In that regard, I have considered the risk assessments of both Mr Jones and that of the author of the sentencing assessment report.
There is uncontested evidence before me about the lengthy delay and difficulties associated with the sex offender specific programs that are available to eligible inmates in custody. That evidence establishes that the COVID‑19 pandemic has caused a backlog of referrals to such programs, and they are still not being conducted on a face-to-face basis. It is well known that COVID‑19 has made the conditions of custody more difficult for inmates and has reduced the availability of rehabilitation programs within the custodial environment. I have had regard to those matters when considering the appropriate sentence to impose here. The offender has spent some two days in custody, being initially bail refused upon his arrest. I have had regard to that and will commence his sentence from 21 March 2022.

Consideration of sentencing factors

When considering the issues of accumulation and concurrency of the sentences to be imposed, I have had regard to s 19(1) to (4) of the Crimes Act. I have had specific regard to s 19(5) which provides as follows, "An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for another Commonwealth child sex offence". Subsection 6 provides that subsection 5 does not apply if the Court is satisfied that imposing the sentence in a different manner would result in sentences that are of a severity appropriate in all the circumstances. There is no issue that the offences here are Commonwealth child sex offences. I consider here, when I have regard to all the matters relevant to the instinctive synthesis of sentencing, that some modest level of accumulation is appropriate. The offences were committed over a limited number of days, they were all concerned with child pornography, and given the nature of the offending, there was clearly some overlap between them.
When imposing sentence, I will utilise the aggregate sentencing provisions, noting that they are available to be used when sentencing for Commonwealth offences, see DPP v Beattie [2017] NSWCA 301 applying comments by the High Court in Putland v The Queen (2004) 218 CLR 174. As the higher Courts have consistently said, general deterrence is the primary factor when sentencing for child pornography offences. That is for a number of reasons.
Such offending is now conducted on an international basis through the misuse of the internet and is becoming increasingly prevalent. It is difficult offending to detect with the advent of encrypted messaging applications, and what is sometimes referred to as, "the dark web". The possession of such material creates a market for the continued abuse and exploitation of vulnerable children. The children who are sexually abused and exploited in the creation of such material are innocent victims and Courts must do what they can to protect them by imposing sentences that act as a meaningful deterrent for such offending.
The maximum penalties have been taken into account as legislative guideposts. I have considered the tables of cases I was referred to by the Crown and on behalf of the offender. Many of the cases referred to in those schedules involve much more serious offending than that involved here. It must always be remembered that sentencing involves instinctive synthesis of a number of factors which often pull in different ways. There can be no doubt that the only appropriate penalty to impose here is one of imprisonment. See in that regard s 17A of the Crimes Act.
It is clear that in relation to the offences under s 474.22(1) of the Code, that an intensive correction order is not an available sentencing option should the overall aggregate sentence be less than three years. That is because those offences are specifically nominated in s 67 of the Crimes (Sentencing Procedure) Act as being offences to which an intensive correction order may not be imposed.
The Crown argued that an offence under s 474.22A, although not specifically nominated in s 67, the terms of the provision mean that it too cannot be the subject of an intensive correction order. No submission was advanced to the contrary on behalf of the offender, and I do not consider I need resolve the issue for the purposes of imposing sentence here.
The thrust of the argument that was advanced to me was directed to whether or not this was a case where I would find, "exceptional circumstances", within the meaning of s 20(1)(b)(ii) of the Crimes Act, and immediately release the offender on a recognisance. Section 20(1)(b)(ii) of the Crimes Act relevantly provides, "Where a person is convicted of a federal offence or federal offences, the Court before which he is convicted may, if it thinks fit, 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 para (a) of the provision." The provision, though, goes on in subparagraph (b)(ii) to state, "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 subs 19AF(1)," or (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."
Here, only if the Court is satisfied that there are exceptional circumstances within the meaning of that provision can the Court release the offender on such a recognisance without requiring him to serve a specified period of imprisonment.
The parties referred me to two New South Wales District Court decisions of my brother judges on the question, and research done on my behalf by my Associate located a Victorian County Court decision last year dealing with the issue. I propose to now consider those decisions.
The first decision is of Judge Berman in R v Pederson [2021] NSWDC 535. That decision did not involve child pornography offences but did involve a Commonwealth child sex offence of using a carriage service to groom a child under 16 years of age for sexual activity. There was an offence on a schedule under the Crimes Act which his Honour was asked to take into account in sentencing the offender. That was an offence of using a carriage service to transmit an indecent communication to another person under the age of 16. I note his Honour found that the offence was engaged in for sexual gratification.
His Honour found exceptional circumstances when sentencing the offender in that case. His Honour considered that a combination of factors led to his finding of exceptional circumstances. Those factors appear to be that the offender was 61 years of age and was a man of good character, he pleaded guilty at the earliest opportunity, that he was remorseful and had good prospects of rehabilitation, the consequences that would befall the offender's family if he was incarcerated, the impact of the COVID‑19 pandemic upon offenders sentenced to full-time custody, what his Honour considered were the unusual circumstances of the offence, and that the offender had not sought to misrepresent who he was to the child and there was no repeated contact between the offender and the persons to whom he was communicating.
In R v Dregmans [2022] NSWDC 55, Judge Abadee found exceptional circumstances when sentencing an offender for a single offence of possess or control child abuse material under s 474.22A of the Commonwealth's Code. It appears, from a reading of the judgment, that the Crown, in effect, accepted that it was open to his Honour to find exceptional circumstances in that case.
His Honour considered that the Crown's concession was appropriately made, noting the offending was at the low end of the scale of seriousness, the offender was a person of good character with good prospects of rehabilitation, was at a low risk of reoffending and had suffered extra‑curial punishment through media coverage of the proceedings. I acknowledge that the offending in that case appears to be less serious than the offending here.
In DPP v Joner‑Collins [2021] VCC 2046, her Honour Judge Sexton also found exceptional circumstances for the purposes of s 20(1)(b)(ii) of the Crimes Act. Her Honour was there sentencing an offender for possessing or controlling child abuse material obtained or accessed using a carriage service. The Crown opposed the course her Honour took in that case.
Her Honour found that while the offender was to be sentenced for possession on one day, the possession was not an isolated event. 11,493 files found on three of the offender's devices were found to be child abuse material. Paragraph 15 of her Honour's judgment contains a breakdown of the type of material and the files. A reading of that paragraph shows that the files the subject of that offender's charge was not only much greater in number than here but also of much greater seriousness. By way of example, I note there were some 58 files involving sadism or bestiality of real children. I note two thirds of the files did involve animated images, which might be thought to lessen their seriousness. Her Honour noted that there had been some exchange of the material but that it had not been for money. Her Honour considered that the level of objective seriousness was, "significant".
In terms of the offender's subjective case in that case, the offender was about to turn 29 as at the date of the sentence and had no criminal record. The offender had pleaded guilty in that case at an earlier opportunity and her Honour considered the offender had genuine remorse. Her Honour considered the offender had assisted the authorities through making admissions, assistance in locating the material, including providing a password when required to access the device.
The offender in that case had a difficult childhood and had been badly beaten by his father when he was around seven or eight. Her Honour found that the offender had been sexually abused by a neighbour from a young age and introduced to pornography, including child pornography, by that person. The offender had attempted suicide when 16 or 17. The sexual activity with the neighbour continued until three years before sentencing.
The offender in that case, as a young person, was diagnosed with depression but did complete year 12 and certain certificates in accounting. Due to COVID‑19, the offender had lost his employment. The offender at the time of sentencing was in a supportive relationship with a female who was pregnant with his child.
There was expert evidence that the offender's sexual development in that case was, "contaminated", because of his sexual abuse as a child. Her Honour found that the history of sexual abuse as a child provided an explanation for and had contributed to the criminality and impaired his ability to appreciate the wrongfulness of his conduct. Her Honour considered that the offender's background of sexual abuse reduced his moral culpability for his offending.
In summary, her Honour found exceptional circumstances at para 99 of the judgment, being the combination of the offender's, "personal history of clinical difficulties and underlying vulnerabilities and challenging childhood and home life against a background of ongoing sexual abuse from the age of five or six to your early 20s, with the perpetrator of that abuse introducing you to child and adult pornography in your sexually formative years and normalising your abuse and that depicted in the child exploitation material."
The offending in Collins was considerably more serious than here, in my opinion, and while the subjective case, when compared with that of the offender here had some similarities, it would appear to have, perhaps, more unusual features than this offender's.
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.
In coming to that view of the term, "exceptional circumstances", I have received assistance from the decision of the Queensland Court of Appeal in R v Tootel [2012] QCA 273, which concerns the construction of a somewhat similar provision to s 20(1)(b)(ii) of the Commonwealth Crimes Act found in the Queensland Penalties and Sentences Act. See in particular the discussion at paras 18 to 25 of that decision. In my opinion, this notion of exceptional circumstances is consistent with the explanatory memoranda concerning the introduction of the provision which contains the following, "The term exceptional circumstances under paragraph 20(1)(b)(ii) is deliberately not defined given the variable circumstances which may militate against or support a sentence of imprisonment, it would impose practical constraints if exceptional circumstances was defined. Firstly, 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. Second, the list of factors said to constitute exceptional circumstances, even if stated in broad terms, will have the tendency to restrict rather than expand the factors which might satisfy the requirements of exceptional circumstances".
Here, in my opinion, the combination of the following factors amounts to exceptional circumstances within the meaning of the provision, accepting that no one factor itself is exceptional. The relatively low level of objective seriousness of the offences, the offender's relative youth, in particular at the time of his offending, his difficult early life, in particular, the conduct of his father, which involved his exposure to sexualised conduct and pornography, the fact he was the subject of child abuse himself at the age of 12, his fragile mental health state as at the time of the offending, his assistance to the authorities upon his arrest, his early plea of guilty, his good prospects for rehabilitation, his relatively low risk of reoffending, the need for the offender to engage in rehabilitative programs, and the difficulty in engaging in such programs in a custodial environment during the COVID-19 pandemic, the arduous conditions of custody that now exist as a consequence of the COVID‑19 pandemic.
I have placed considerable weight in coming to this conclusion on his difficult early life, the fact that I accept that he was the victim of child abuse when 12, and the impact of COVID‑19 on the conduct of rehabilitative programs in the custodial environment, and the more arduous custodial conditions inmates are facing due to COVID-19 restrictions.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (3)

Cases Cited (10)

Cited By (4)