R v Nieuwenhuys

Source

Original judgment source is linked above.

Catchwords: CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material
CRIME — Child sex offences — Child Protection (Offenders Registration) Act — Registrable offences — Length of reporting period — Relevant considerations
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence of particular importance when sentencing for offences involving child abuse material given the difficulty of detection and the substantial public interest in the promotion of the protection of children from sexual exploitation
SENTENCING — Relevant factors on sentence — Objective seriousness — considerations when sentencing for matters involving child abuse material
SENTENCING — Relevant factors on sentence — Contrition — Where offender gives evidence showing genuine remorse

Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited: Curle v R [2024] NSWCCA 117
Dyball v R [2025] NSWCCA 39
Hutchinson [2018] NSWCCA 152
Public Prosecutions (Commonwealth) v Garside (2016) VSCA 74
R v Bredal [2024] NSWCCA 75
R v Jennings [2026] NSWDC 160
R v Stringer [2025] QCA 81
R v Taiba [2026] NSWDC 303
R v Tyler [2025] NSWDC 572
Vazquez v R [2026] NSWCCA 49
Woods v R [2023] NSWCCA 37

Category: Sentence

Parties: Rex (Cth) (Crown)
Dustin Nieuwenhuys (Offender)

Representation: Counsel:
H Atkinson (Crown)
I Vizintin (Offender)
Solicitors:
Solicitor for Commonwealth Director of Public Prosecutions (Crown)
Bernhaut Solicitors (Offender)

File Number(s): 2025/00181549

SENTENCE

1. Dustin Nieuwenhuys comes before the court for sentence for four offences, three pursuant to s 474.22(1) of the Criminal Code 1995 (Cth) (“Criminal Code”), being sequences 4, 5 and 6, and one pursuant to s 474.22A(1), being sequence 11. Each offence has a maximum term of imprisonment of 15 years and/ or a fine of $281,700.

2. The maximum penalties represent the seriousness with which the Commonwealth Parliament takes each of these offences and they act as guidelines in my assessment of the appropriate sentence to be imposed.

3. I note the offender has spent three months and 17 days (or 109 days) in custody and his sentence will be backdated accordingly to take that into account.

Plea of guilty and contrition: ss 16A(g) and (f) Crimes Act 1914 (Cth) (‘Crimes Act’).

4. The offender has entered a plea of guilty in relation to each of these charges. This represents a significant utilitarian value. Separately, the plea also represents his remorse and contrition. The offender gave evidence before me, which I found very powerful and honest, and I accept he is genuinely remorseful. I accept that a reduction of 25% on the sentence which would otherwise have been imposed is appropriate in the circumstances.

Facts

5. The facts of the matter are relatively lengthy and contained in the Crown bundle at exhibit 1. I am going to summarise them, but I have taken all the facts into account.

6. On April 18 2025, the offender arrived at Sydney International Airport. Upon arrival, he was subject to a baggage examination by Australian Border Force (‘ABF’) officers, and a Nokia X30 mobile phone, which belonged to him, was located in his possession and examined by ABF officers. The offender's phone was found to contain child abuse material and communications, the subject of which are the charges below.

Sequence 4

7. Sequence 4 is a charge of soliciting child abuse material. On 29 November 2023, the offender exchanged a conversation with a user called "JustGreen2022" on Telegram, during which he requested files containing child abuse material. The offender was reckless as to the fact that “JustGreen2022” was a child and solicited an image of the child's penis. I will not set out the detail of the conversation, but I note that within the conversation, the offender described himself as being 20 years of age when in fact he was 36.

8. The person with whom the offender was dealing was someone who described himself as being 14. The pair exchanged messages over a single day. Both the offender and “JustGreen2022” sent one photo to each other. The images that were sent are not described, although at one point, “JustGreen2022” describes as "just your dick", and the offender responding, shortly thereafter, "can I see your dick?"

Sequence 5

9. Sequence 5 is another charge of soliciting child abuse material. This occurred on 25 October 2023. Here, the offender engaged in a Telegram chat with a user utilising a phone number ending in xx893. During this exchange, the offender made requests for files containing child abuse material. He solicited child abuse material by requesting to see a preview of child abuse material available for purchase. The exchange was very short.

10. Again, I will not set it all out, but the offender requested "CP gay" which is a reference to child porn. He asked to see a preview, and the person with whom he was corresponding made an offer of 50 videos for $20 or 150 videos for $35. The offender asked whether the person had PayPal. That is the extent of the interaction. Along with that, the user sent what are described as two “self-destructing” images.

Sequence 6

11. Sequence 6 is a rolled-up charge involving multiple dealings with child porn providers. On 29 March 2024, the offender engaged in a Telegram chat with a user utilising a phone number ending in xx412, during which he made requests for files containing child abuse material. The offender solicited child abuse material by confirming he wanted a preview of the child abuse material, agreeing to purchase it, indicating he made a payment in order to receive it, and continuing to request a link to access the child abuse material.

12. Again, I will not set out all of the exchange between the offender and the person using the number ending in xx412, but during the conversation there was a negotiation regarding the purchase of the child pornography material, or child abuse material, in which the offender offered to pay $35 for "another thousand" if a link was sent for 800. There is some discussion between the pair as to whether or not the offender actually received any of the child abuse material that he wanted, and he notes at one point that he had paid for 800 videos but was unhappy with what he had received so far, stating "Okay, if it's not extortion, you will be okay that I do not want 1,000 videos, so I don't want to pay the $35. I am happy with our original deal. I would like to receive the link for 800 videos please." Ultimately, he was sent a link to what is described as a “mega-folder”.

13. There is a separate exchange between the offender and a person using a mobile phone number ending in xx069. This occurred between 27 April 2024 and 7 May 2024. During this conversation, the offender made requests for files containing child abuse material. He solicited the child abuse material by requesting it, involving "boy kids". Again, I will not set out the whole exchange, but the offender again negotiated for the price of the child abuse material with the person using the number xx069, and there was exchange about the volume of material and price, the prices ranging from between $40 and $100.

14. The offender at one point asks, "How many videos for $40, and do you have PayPal?" Again, the person with whom the offender is corresponding responds by sending what is described as a mega-folder, or a link to a mega‑folder. My impression of the correspondence between the offender and the user xx069 was that the offender was not particularly happy with the exchange, feeling that he had been “ripped off” - to use his term.

15. There was another exchange between the offender and a different supplier using the number ending in xx483. This occurred between 22 May 2024 and 23 May 2024. Again, the offender solicited child abuse material by confirming he was seeking the material, agreeing to pay for the material, and confirming he had sent money in order to receive it. Again, I will not set out all of the exchange between the pair, which represents that negotiation.

16. But it was not the only time the offender interacted with that person. There was a further exchange on 22 August 2024 where the offender made requests for files containing child abuse material. He solicited the child abuse material by requesting to view it, and to view a channel from which it could be viewed. Links were sent to channels, which had various names, to him, but including "Kids Channel" and "Daily Upload Kids Videos". Previews had been requested of these images and the user xx483 sent three images at one point as well as a link for a Telegram channel for the offender to view.

17. Finally, in terms of sequence 6, there was an interaction between the offender and a user whose mobile phone ended in xx975. This occurred on 22 September 2024. Here, the offender again made requests for files containing child abuse material and solicited that material by requesting to view a particular channel. This was a relatively short exchange with the person over which there was a negotiation about fees and what the type of product was that would be provided to the offender.

Sequence 11

18. Sequence 11 is a different charge, this charge being the one of possessing child abuse material. This was over the period 3 May 2024 and 17 April 2025. The offender possessed a total of 719 files, constituting child abuse material. The files were possessed within a cache folder of the offender's mobile phone, as follows. Of a total of 79,119 images found in the folder, 491 of those depicted child abuse material, and of 7,712 videos, 228 of those depicted child abuse material.

19. The child abuse material possessed by the offender consisted of images depicting children, aged between six months and 14 years of age, engaged in sexual activity, both on their own, with adults, and with other minors. There were also videos depicting children between the ages of two and eight years of age, engaged in sexual activity, both on their own, with adults, and with minors. I have not seen the images myself, but I rely on what is set out in paragraph [29] of the Statement of Agreed Facts, which includes a description of some of those images and videos.

20. The sample includes a 35 second video commencing with a male child, aged four to five years of age, standing holding a white hessian sack. The child lays the sack on a bed made of rusty metal sheets and lies face down on the bed, exposing his bottom. The child looks up at the camera, and holds his bottom cheeks apart, with the focus on the camera on his anus. The child then performs fellatio on an adult's erect penis. Another 20 second video commences with a male child, about three or four years of age, lying on his back on a bed. An adult male inserts the entire length of his erect penis into the child's anus.

21. Another video is 42 minutes and eight seconds. This one commences with a male child, ten to 13 years of age, kneeling down and masturbating. An adult male kneels behind the child, reaches his arm around the child's hips, and rubs the child's penis. The child lies on his back with the adult male performing fellatio on him. The adult male then lies on his back as the child performs fellatio on him. The adult male uses his hand to force the child's mouth down harder onto his erect penis, and the adult male then ejaculates over the child's face.

22. A three minute and 26 second video commencing with a male child, seven years of age, described as child 1, was lying naked on their stomach with a male child, aged 7 years of age, being child 2, penetrating the child's anus with his penis. The children reverse roles, with child 1 penetrating child 2's anus with his penis. There is also a three minute and 23 second video commencing with a male child, 9 years of age, on a train with his school backpack on the seat next to him. On the right of the child, there is an adult male who pulls the child's shorts down and rubs the child's penis.

23. There is an image of a male child, five years of age, with both his hands wrapped around an adult male's erect penis whilst performing fellatio. There is another image, this time of a naked female child, 13 years of age, lying on her stomach on a bed. The child's head is held up, with her mouth open wide, as an adult male with an erect penis stands in front of her.

24. There is a separate image of a naked male child, six to seven years of age, kneeling on the floor, performing fellatio on an adult male's erect penis, as the adult sits on a bed. And there is an image of a female child, two years of age, lying on her stomach, wearing a pink dress that is being lifted to show her exposed bottom. An adult male is inserting his penis into the child's anus.

25. These are sample descriptions of the material found but are not a description of everything that existed on the offender’s phone. There are more descriptions of more degrading videos to these children set out in the facts. They have all been taken into account.

26. There was a record of interview conducted by the offender with investigators on 12 May 2025, during which time he made admissions regarding his knowledge that there was child abuse material located on his device where the children involved were not of legal age. He stated that he believed the child abuse material on his device involved children aged between 11 and 17. He said that he did not like some of the material on his device, but "Was just stupid enough not to delete it."

Objective seriousness: section 16A(2)(a)

27. Section 16A(2)(a) of the Crimes Act 1914 requires the Court to take into account what is, in effect, the objective seriousness of the particular offences before the Court for sentence. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending itself. I am relying on what has been set out in the Agreed Statement of Facts that I have just referred to.

28. Hutchinson [2018] NSWCCA 152 at [44]-[45] sets out a non- exhaustive list of considerations that the sentencing court should consider when sentencing for matters involving child abuse material. Some of them are relevant in this case, particularly for sequence 11. I will refer to the considerations and whether they apply in this case and how.

29. Whether actual children were used in the creation of the material; - In these cases, it is unclear whether they are in sequences 4, 5, and 6, but they certainly are for sequence 11.

30. The nature and the content of the material, including the age of the children and the gravity of the sexual activity portrayed. I do not have descriptions of the materials for counts 4, 5, and 6, but the content of the material in sequence 11 is very graphic and the children are particularly young in many of the instances that I have referred to.

31. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. This is hard to assess in relation to sequences 4, 5, and 6, given the limited information about them, but certainly in sequence 11, there is clear evidence of harmful and degrading conduct depicted in those images.

32. The number of images and the items of material. It is important to take into account in a case of possession, the significance lying in the number of different children depicted in the images. Here I cannot tell the number of children overall in those 491 images and 228 videos, but I infer from the facts described that it is different children in each of those samples that I have referred to.

33. In the case of possession, the offender’s purpose, whether for personal use or for sale or dissemination; I accept in this case the offender's purpose for possession was for his own personal use and not distribution.

34. …

35. Whether any payment or other material benefit including the exchange of child pornography material was made is something that is relevant here. There is money discussed in sequences 5 and 6. I accept the Crown's submission that the offending at sequence 11 is not mitigated by the fact that the offender did not profit from the offending and did not, it seems, ultimately pay for all of the material. In this case, the offender was not involved in the distribution or sale of child abuse material he had to anyone else. However, he was clearly the buyer of that type of product.

36. The proximity of the offender's activities to those responsible for bringing the material into existence. The submission is made on behalf of the offender by Mr Vizintin of counsel that the offender's offending contributes to the market in which child abuse material is created and disseminated, but he is not responsible for bringing the child abuse material into existence. While I accept that submission as factually true, the reality is that but for people like the offender, a market would not exist, and the children would not need to be abused in the degrading way that I have referred to.

37. I accept that the offending involved limited planning and was unsophisticated. I note in one of the transactions, the offender even uses his own name. There was no deception deployed by the offender in acquiring or storing the material.

38. The age of any person with whom the offender was in communication. This is unclear in relation to sequences 5, 6, and 11, but in sequence 4, the person the offender is communicating with is described as being 14.

39. The offender acted alone and was not in a collaborative network of like minded persons.

40. There was no risk of the material being seen or acquired by vulnerable persons, particularly children,

41. Nor was there any risk of the material being seen or acquired by persons susceptible to act in the matter described or depicted in those images.

42. The Crown submits, as part of its submissions on objective seriousness, that the offender's messages were sent via an encrypted message platform called Telegram. I accept that that is true as a matter of fact, but I do not find that it has particular significance here. Telegram, like WhatsApp, Signal, and Threema, and the like, are commonly used encrypted messaging apps. The fact that the offender used one in this instance is not something I consider particularly relevant.

43. Turning now to the ultimate objective seriousness for each of the particular sequences.

Sequence 4

31. The interaction in sequence 4 is with an actual child and the interaction is slightly longer than sequence 5. It involves the child telling the offender he is a 14 year old boy. The child sent a photo of what he claims is his penis, although, of course, it could be somebody else's. Something which makes it more serious than sequence 5 is that the offender responds by sending a photo of his own penis. No money is discussed in this case.

Sequence 5

32. Sequence 5 is the least serious of the matters before the Court. As I observed during the sentencing hearing, I found it hard to imagine a less serious example of this serious type of offence because the interaction is between the offender and a person offering the child abuse material, not an actual child. The solicitation is limited to a bare ten words by the offender and is limited to an exchange on one day. There is the promise of money being exchanged but it is very small and is not clear if it in fact was paid. The offence provision permits for the imposition of a fine, and this is a rare case perhaps where that would be justified.

Sequence 6

33. Sequence 6 represents a rolled-up charge of multiple offences where the offender is dealing with four different people, on and off, for almost six months between 29 March 2024 and 22 September 2024. There are multiple examples of the offender negotiating both content and fees relating to his obtaining of child abuse material. This included wanting previews of the material and indicating his willingness to pay for 800 videos and his receipt of what is described as a mega link. I accept the Crown's submission that this is a serious example of this type of offending, and I find that it is towards the mid-range for this type of offence.

Sequence 11

34. Sequence 11 is clearly the most serious of the offences and I have dealt with it in some detail already, with reference to the decision of Hutchinson. This offending is a serious example and I find it to be in the middle of the range.

Assistance to authorities: s 16A(2)(h)

35. I accept that the offender participated in a record of interview with investigators and he made immediate - although not entirely accurate - admissions concerning the existence of child abuse material on his phone. I do note that this was probably something that he said, given it was inevitable in circumstances where the Australian Border Force had his phone, that they would discover the material that he gave admissions about. Nonetheless, he did cooperate, and that is something which I take into account in reducing the sentence from what I otherwise would have imposed. But I am not going to specify a particular percentage of discount.

General and specific deterrence: ss 16A(2)(j) and (ja) of the Crimes Act

36. I have considered these two sections which refer to general deterrence and specific deterrence. General deterrence remains of particular importance when sentencing for offences involving child abuse material, given the difficulty of detection and the substantial public interest in the promotion of the protection of children from sexual exploitation. The sentence to be imposed upon the offender must make clear to other like-minded persons within the community that offences of this type are abhorrent, and that offenders who participate in such offences will be punished appropriately.

37. There will be some reduction, albeit moderate, for the role of general deterrence based on the reduction of the offender's moral culpability, which I will deal with shortly. I accept that specific deterrence is also reduced because of his reduced moral culpability. I also accept his time in custody will have a specific deterrent effect for him.

The character, antecedents, age, means and physical or mental condition of the offender: s 16A(2)(m) of the Crimes Act

38. Mr Nieuwenhuys is now 39 years of age, and he was 37 at the time of the offending. He has a limited criminal history. There are no offences in New South Wales, and those that appear on a Victorian record are over 20 years old. I find that he is entitled to leniency.

39. However, relying on the authority of the Director of Public Prosecutions (Commonwealth) v Garside (2016) VSCA 74 at 63, factors including a lack of prior offending, mature age (when relevant), familial support, and remorse and prospects for rehabilitation must be given less weight than they ordinarily would when the Court is sentencing for possession and accessing child abuse material, as such offenders generally have similar backgrounds and are often of prior good character before coming to court.

40. Also as part of my consideration of s 16A(2)(m) I was provided with material which is now part of exhibit 2 on behalf of Mr Nieuwenhuys. This included a report from a psychologist by the name of Dr Emma Collins, who is a clinical and forensic psychologist. Dr Collins is well qualified and has produced a thorough report, considering the offender's background and mental health issues. At paragraph [13] of her report, she states:

"In summary, Mr Nieuwenhuys experienced a difficult upbringing, characterised by family violence, hardship, and parental substance dependency. The instability in the home meant that he had to take on greater responsibility, with parentified behaviours from around 11 or 12 years old. Furthermore, he left home at 17 due to the developmental adversity he experienced, and the impact it was having on his mental health. Ultimately, Mr Nieuwenhuys' account of his childhood highlights several traumatic events that continue to affect him."

41. Dr Collins goes on to state that:

"Mr Nieuwenhuys has a primary sexual interest in Asian males between the ages of 16 to 20. He has some interest in males up to 30 years of age, but attraction declined with increased age over time. He also reported some sexual interest in males between the ages of 11 and 15."

42. Mr Nieuwenhuys said to Dr Collins that he is not attracted to their features, but rather males of that age remind him of his own sexual behaviour, and the positive sexual activity that he engaged in with others between 12 and 15 years of age.

43. Dr Collins refers to the fact that Mr Nieuwenhuys advised her that he had begun using illicit drugs at approximately 12 or 13 years of age. He started smoking marijuana on a couple of occasions. However, he did not begin to use it regularly until he was 15. He recounted smoking on a daily basis from 15 to 25 years of age, and he stopped in 2012 when he moved to Sydney. He indicated to Dr Collins that he began to use methamphetamine once or twice a month for sexual enhancement as he got older. He said that his partner was unaware of this at the time. His use escalated around 2024 and he was using methamphetamine on most days. That use continued up to May 2025, when he was arrested on these charges.

44. The offender told Dr Collins that he engaged in a stimulant treatment program at St Vincent's Hospital, following his release from custody for these matters. He has attended seven group sessions as well as individual counselling. He also told Dr Collins he was referred to what is known as dialectical behavioural therapy, or DBT, in early 2026. However, he has only attended a couple of sessions of that. The offender explained to Dr Collins that he had several therapeutic commitments at the time and could not attend more, although he had wished to do so.

45. Dr Collins says this at paragraph [33]:

"Mr Nieuwenhuys's current presentation of complex post-traumatic stress disorder and generalised anxiety disorder with additional features of depression meet the criteria for a mental health impairment, in s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 [NSW]. Mr Nieuwenhuys has an enduring presentation of developmental trauma, which is clinically impairing and substantially impacts his emotional functioning, judgment, and behaviour. In addition, he has features of comorbid anxious mood and depressive symptoms which were first observed in adolescence. His low mood is currently sub-clinical, but there have been episodes of major depression, largely in the context of relationship problems in the past. Encouragingly, Mr Nieuwenhuys is in a stable and supportive current relationship which is positively contributing to mood management."

46. Dr Collins goes on to refer to the offending behaviour, and she refers to the fact that the offender told her that he described, in a reminiscent-like interest, seeing males around the ages of 12 to 15 having sexual experiences, because this reminded him of his own sexual origins.

47. She said that "Mr Nieuwenhuys demonstrated a romanticised view of the material he accessed," which I infer is a reference to the material before the Court. Dr Collins goes on to say:

"But he was unable to display victim empathy when explored. He denied any sexual interest in images that involved sexual sadism or sexual activity with pre pubescent children but said that he received varied sexual images. It is also noted that Mr Nieuwenhuys was engaging in daily ice use at the time of the offences."

48. At paragraph [35], Dr Collins states:

"Mr Nieuwenhuys endorsed a high degree of shame and self-loathing regarding his offending behaviour. Mr Randall noted that Mr Nieuwenhuys's feelings of self-hatred are being targeted in therapy, as noted above, and there is a greater capacity to sit with shame and negative emotions which will help address offence specific needs."

49. Dr Collins goes on to provide a risk assessment, which examines recidivism and intervention needs using what are described as reliable and valid instruments. There are some caveats with the analysis that Dr Collins provides where she states that "There is not yet a widely accepted actuarial assessment tool that is routinely applied in assessing internet sexual offences." Nonetheless, she goes on to state that, "The offender received a score of two on the child pornography offender risk tool assessment." Dr Collins stated that there was one missing item that could not be scored based on the offence information available. A score of two represents the median score on this index, which is indicative, in her findings, of an average risk.

50. She describes that the offender suffers from several specific risk factors, including that he has few close supports, that he has some assessed problems with impulsivity, and the presence of deviant sexual interests. She says that he presents with moderate treatment needs which can be addressed through offence-specific intervention. Overall, she says this, at paragraph [44]:

"Mr Nieuwenhuys meets the criteria for a mental health impairment, according to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 [NSW], based on complex PTSD and generalised anxiety disorder with additional features of depression. It is evident that his developmental trauma, poor self-worth, relationship trust, and abandonment issues, and his romanticised perception of his own early sexual experiences all contributed to his offending, and which was further exacerbated by heavy ice use. Mr Nieuwenhuys's treatment needs are currently being well managed in the community and the risk of recidivism will continue to reduce unless he lapses back into ice use or disengages from therapy."

51. The report was, as I say, very thorough, and I have certainly given it a considerable amount of consideration as part of the offender's subjective case, and I will come to it again in a moment.

52. Also part of exhibit 2 is a brief letter from Dr Braden Vernon, who sets out the number of treatment sessions he has had with the offender to assist him in dealing with his psychological issues. Dr Vernon is a psychotherapist, and he saw the offender on 12 occasions during 2025 to not only talk about child abuse material but also the offender's use of illicit substances.

53. The offender is currently seeing Mr Graeme Randall, who produced a report dated 14 August 2026. Interestingly, contrary to Dr Collins' findings, Mr Randall quotes the offender as only reporting mental health concerns surrounding his drug abuse, and some mild anxiety and depression while at school. He has provided 14 counselling sessions to date, or possibly 15 now. He recommends the offender have treatment of perhaps 20 to 25 sessions, which the offender said to me during his evidence that he would be more than happy to comply with. Mr Randall reports the offender's active engagement with the therapy, and the fact that the offender has developed significant insight, and I certainly accept Mr Randall's conclusions.

54. There are clear urinalysis results which have been provided to the Court, and a letter of support from the offender's husband, all of which is important for me to take into account when I assess the appropriate sentence. It is certainly excellent that he has that family support, albeit relatively limited, according to Dr Collins. It is also excellent that he has clean urines.

55. In addition to that written material, the offender gave evidence at the sentence hearing which I found very helpful and honest, and I place a lot of weight on what he told me with respect to his remorse and the insights he has now, and also his desire to improve himself and not to reoffend. I have no hesitation in accepting his evidence.

56. It is submitted by the offender that the evidence demonstrates that his moral culpability should be reduced due to both the childhood deprivation and mental health issues.

Childhood deprivation

57. Dealing first with the issues of childhood deprivation, it is well established that the disadvantaged background of an offender may mitigate the sentence that would otherwise be appropriate. This assessment is made by reference only to matters subjective to the offender. An offender's moral blameworthiness cannot be assessed by reference to factors unrelated to him, such as the purpose of sentencing. If moral culpability is reduced, then a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing.

58. Reduced moral culpability may mean that the extent to which the conduct is denounced is less than in a case where the offender has a "normal" or "advantaged" background. On the other hand, the reduction in moral culpability may be offset by the weight afforded to general deterrence and/or the protection of the community. Even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more of the purposes of sentencing, the offender's background of disadvantage must be given full weight in every sentence.

59. I accept the submission made on behalf of the offender that there has been relevant disadvantage and that does serve to lessen moral culpability to some degree.

Mental health

60. With respect to Mr Nieuwenhuys’ mental health and whether it contributes to the commission of the offence in a material way; this is something with which I do not agree with the submission made on his behalf.

61. An offender's moral culpability may be reduced, and the need to denounce the crime may be reduced in an appropriate case. 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 appropriate. It may mean that a custodial sentence on a person with a mental health issue weighs more heavily. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community and in those circumstances, specific deterrence may result in an increased sentence. None of these principles is an absolute.

62. What is recognised is the potential effect in any given case of a mental health disability. Too often, the mere fact of mental illness is advanced in this Court as necessarily calling for a more lenient sentence, but there is no such presumption. It remains necessary for the sentencing court to examine the relevant factors in each case and to determine whether the mental condition has the consequences that are contended for.

63. Dr Collins summarises the offender as presenting with complex PTSD and a generalised anxiety disorder, which I accept. But as the Crown observed, the report does not go so far as to expressly conclude that these conditions materially contributed to the offending, nor that he was even suffering from the effects of these two matters at the time.

64. Dr Collins refers to developmental trauma, which I have already taken into account. She refers to poor self-worth, relationship issues to do with trust and abandonment, and his romanticised perception of his own youthful experiences, as contributing to the offending. With the greatest respect to Dr Collins, who is very well qualified, I did not understand from her report how those conditions contributed to his repeated willingness to access, use, and pay for child pornography over many months, nor explain the desire to possess the appalling material I have detailed above in the context of sequence 11.

65. It is significant that there are no contemporaneous records to support Dr Collins' conclusions, and instead she relies on the offender's own self reporting. While I accept Dr Collins' conclusions regarding the offender's mental health now, and accept they form an important part of his subjective case, I do not accept that it reduces his moral culpability. However, I accept a custodial sentence will weigh more heavily on him and that his mental health does make him a less appropriate vehicle for general deterrence and reduces the need for specific deterrence to some degree.

Prospects of rehabilitation: s 16A(2)(n) of the Crimes Act

66. I have considered his prospects for rehabilitation, as I am required to do. I note also s 16A(2AAA) of the Crimes Act, which states that the sentencing court must have regard to the objective of rehabilitating a person. This includes considering whether it is appropriate to impose conditions about rehabilitation or treatment options when ultimately making an order and when determining the length of any sentence or non-parole period or recognizance release period, including sufficient time for the purpose of undertaking a rehabilitation program.

67. I accept that the principal purpose of rehabilitation, in this context, is to protect the community by ensuring that the offender does not reoffend. This is a critical consideration. As set out in the reports I have referred to, and in the evidence given to me by Mr Nieuwenhuys, he has been proactive and diligent in his rehabilitation. I accept Mr Vizintin's submission that the successful and maintained level of engagement the offender has had with his treating psychologist is admirable, and I conclude from his evidence that he has had some success so far, but it is not finished. There is still some concern for the Court, given Dr Collins' risk assessment of him and his ongoing interest in people aged between 11 and 15. Nonetheless, I find that he has reasonably good prospects for rehabilitation.

Comparative cases

68. The Crown provided four comparative cases; three from New South Wales and one from Queensland, all of which are appellate authorities. It is useful to refer to them in some detail. In Woods v R [2023] NSWCCA 37, the offender pleaded guilty to one offence of using a carriage service to solicit child abuse material, contrary to s 474.22(1) of the code. An offence of grooming a person under 16 was considered on a s 16BA schedule. There, the offender was sentenced to nine months' imprisonment but immediately released on a recognizance.

69. Both instances of offending involved sexually explicit communications with a police officer who had assumed an online identity of a 14 year old female child, including sending and requesting nude photographs. There were compelling subjective circumstances. The offender was 30 years old, he lived at home, he had some mild intellectual or learning disabilities. He had no criminal history and no paedophilic tendencies.

70. In Curle v R [2024] NSWCCA 117, the offender had pleaded guilty to three counts, one of possessing child abuse material contrary to s 474.22A of the code, and two counts of either accessing or transmitting child abuse material, contrary to s 474.22. The offender was sentenced to imprisonment of two years and five months, with a non-parole period of one year and six months. Count 1 in that matter involved the possession of over 600 files of child abuse material with victims ageing in range from two to 13. The material included children posing, engaging with sexual acts with other children and adult males, including penetrative and oral sex. Count 2 was the downloading of 1,333 child abuse material files over a month and count 3 was the transmission of 114 files containing child abuse material which had been obtained over a two month period.

71. The offender there was aged 53. He had no children and no criminal history. He had an early exposure to alcohol and domestic violence as a child, including experiencing abuse and interrupted school attendance. As an adult, he was diagnosed with a depressive illness and experienced periods of homelessness.

72. In Dyball v R [2025] NSWCCA 39, the offender had appealed against sentence in that matter which had a combination of state and Commonwealth offences. The appeal was upheld in relation to manifest excess for the state offences, and the Court of Criminal Appeal resentenced the offender to be released after two years on a recognizance release order as part of an aggregate term of imprisonment of three years for the Commonwealth offences.

73. There were two offences, sequence 1 being an offence of accessing child abuse material, and sequence 2, possessing child abuse material. Sequence 1 involved the offender having 29 files of child abuse material on two mobile phones. The files contained material including various aged children engaging in penetrative sexual activity. The offence also included transmitting a 30 second video of a sexualised child and soliciting a naked photo from a 16 year old. Sequence 2 involved 36 child abuse material files on two phones and one hard drive belonging to the offender. The material contained real and animated pre-pubescent children posing and engaging in sexual activity with adult males.

74. In terms of subjective factors, the offender was 56 years of age with some minor previous traffic offences. He had some prospects of rehabilitation and family hardship. He admitted that he had been viewing child abuse material for about ten years. It was found that he had some prospects for rehabilitation.

75. Finally, the Queensland authority of R v Stringer [2025] QCA 81. The offender pleaded guilty to two counts contrary to s 474.22, one of transmitting child abuse material and another charge of soliciting child abuse material. He was sentenced to a term of three years for count 1 and eight months for count 2, to be served concurrently, and released on a recognizance after six months. An appeal against sentence was dismissed.

76. There, the offender transmitted text-based child abuse material, expressing a desire to sexually abuse young children, including drugging and raping them. He encouraged another male to locate children for that purpose and discussed, in graphic detail, the acts to be undertaken with those children. The offender had sought child abuse material files from other people. He was 37 and a contributing member of society with a good work record and no criminal history.

77. He had sought therapy post-arrest to get support with his own childhood sexual abuse. I note that he had post-traumatic stress disorder. There was also a prospect of his deportation which would impact on his family. The submission on behalf of the offender in that case was that there were mitigating circumstances which reached the threshold of exceptional circumstances, but that argument was rejected.

78. I have also reviewed the public defender's tables for matters involving both offences, and I have reviewed several District Court decisions handed down by my colleagues, including R v Taiba [2026] NSWDC 303, a matter dealt with by his Honour Judge Newlinds SC, as well as a separate matter dealt with by his Honour Judge Bourke SC in the case of R v Tyler [2025] NSWDC 572, and a separate case heard by her Honour Judge Noman SC, which was R v Jennings [2026] NSWDC 160. Given the constraints of time, I will not summarise those matters, but I have certainly considered them.

79. What can be seen from all of these matters is that every case turns on its own facts and circumstances when deciding the appropriate penalty. The objective circumstance of every case is different; the subjective circumstance of every offender is different. Each of those decisions are cases that I have taken into account in reaching my decision regarding the appropriate sentence for the offender.

Child Protection (Offenders Registration) Act 2000 (NSW)

80. Given the nature of these offences, the Child Protection (Offenders Registration) Act 2000 (NSW) will apply. I note that it was amended, and I am sentencing Mr Nieuwenhuys at a time when the amendments have come into effect. The Act requires that the sentencing court make a registrable person order in respect of Mr Nieuwenhuys. Interestingly, it only applies to sequences 4, 5, and 6, as they are within class 2 of the registration regime. Sequence 11 was not a registrable offence at the time. As findings of guilt will be made in relation to sequences 4, 5, and 6, the Court is required to specify a reporting period, the default period being one of 15 years.

81. However, under s 2E, a discretion exists for the Court to treat more than one of those registrable offences as a single registrable offence and therefore set the reporting period at only eight years. The Crown submits it would not be appropriate to do so - that is, to treat sequences 4, 5, and 6 as a single offence - because they did not occur in close proximity to one another. On the contrary, Mr Vizintin submits that I would consider s 2E as being satisfied because the offences are of the same kind and close together in terms of time.

82. Section 2E(2) states that the matters that may be relevant to a decision to treat offences as a single offence include:

(a) Whether the offences are of the same kind: and here they are. (b) Whether the offences were committed against the same person: here they are not. (c) Whether the offences were committed at the same time or close together in time. Reasonable minds may differ as to whether a six month gap from the beginning of sequences 4 to 6 is close together in time. (d) Other matters prescribed by the regulations which I note at this point do not have any considerations set out.

83. It is finely balanced, but I find the offending is close in time, and I am not going to order that the reporting period be 15 years. Rather, I am going to find that it should be eight years because the offences were not committed against the same person, the offences were reasonably close in time, and they were of the same kind.

Determination

84. I must set a sentence which is of a severity appropriate in all the circumstances, as set out in s 16A(1) of the Crimes Act. The starting point here is that there are four offences and each of them have 15 years' imprisonment as a maximum penalty, as well as significant fines which can also be imposed. Clearly these are very serious offences generally and the conduct of the offender is abhorrent, and it cannot go without significant punishment.

85. The offender does present with a reasonably strong subjective case, and his moral culpability has been reduced for the reasons I have set out. I certainly accept that he is committed to doing everything he can to rehabilitate himself and to change whatever is within his character or make up that causes him to have acted in this way. I accept that his prospects of rehabilitation are good, although I am somewhat guarded about his prospects of reoffending. He does have a committed husband, and that is certainly important. But for the offending, he has done well to overcome his difficult childhood and drug abuse.

86. However, notwithstanding his strong subjective case, I have concluded that the threshold imposed by s 17A of the Crimes Act has been crossed and no other sentence other than one of imprisonment can be imposed, apart from sequence 5. I was initially of the view that it was not met for sequence 4 either; however, having considered the parties' submissions further and reviewing the comparative cases closely, I have reflected on that and I have considered that the threshold for sequence 4 has also been met. There is no doubt that a full-time custodial sentence is warranted for sequences 6 and 11.

87. The operation of s 19AC(1) of the Crimes Act requires the sentencing judge to determine whether or not the sentence will exceed three years before considering whether to impose a recognizance release order. I find that the sentences will be three years or less and I will impose a recognizance release order. Section 20 of the Crimes Act sets out when an offender can be conditionally released after conviction. I have taken into account s 20(1)(b)(ii)(iii) of the Crimes Act and note the reference to "exceptional circumstances".

88. In Vazquez v R [2026] NSWCCA 49, the Court of Criminal Appeal held that there is no statutory presumption that offenders being sentenced for a Commonwealth child sexual abuse offence must be sentenced to an actual term of imprisonment, unless there are found to be "exceptional circumstances". I have considered whether there are exceptional circumstances, noting that that term is not defined in the Act. Rather, it is a discretionary judgement based on the factors of the case which are before the Court.

89. A combination of factors, each perhaps not in itself exceptional, may demonstrate that the circumstances of the case are exceptional: R v Bredal [2024] NSWCCA 75. I conclude, based on the following, that notwithstanding Mr Vizintin's powerful submissions, a further period of actual custody is required.

90. To address Mr Vizintin's specific submissions on the topic, I find the assistance the offender provided to law enforcement important, and I accept he is remorseful and taking considerable and commendable efforts towards rehabilitation. I also accept that he would continue this treatment if he were not required to serve a period of actual imprisonment. While I also accept the general deterrence and specific deterrence are moderated to some degree, I do not accept there is a nexus between his defined mental condition and his offending on my reading of Dr Collins' report. The objective seriousness of his conduct is significant and that is important in my determination of this matter.

91. As with any sentencing exercise, there are matters that pull in different directions, and I certainly have no hesitation in accepting Mr Vizintin's submission that his rehabilitation will be interrupted by a further period of custody. However, the rehabilitation of the offender is not the sole matter for consideration by the Court.

92. Mr Nieuwenhuys has spent 109 days in pre-sentence custody, and his sentence will be backdated to take that into account. His sentence will commence on 10 May 2026. The time served in custody will be 50% of the head sentence. This represents the minimum time to be served for offences of this nature and has taken into account the specifics of this suite of offences and his subjective circumstances. I find that Mr Nieuwenhuys will benefit from a longer period of time on his recognizance to ensure that he continues to see Mr Randall for counselling and that he is supervised by community corrections. This is also his first time in custody.

93. In determining the aggregate sentence, I have given consideration to the principles of totality, given that the offences relate to the same broad episode of offending and are the same type of offending. I am satisfied that the imposition of a penalty of appropriate severity does not require the sentences to be fully accumulated, but there should be some degree of accumulation for those reasons. A recognizance release order under s 20(1)(b) of the Crimes Act requires the Court making the order to attach certain conditions to it, which I propose to do.

94. I am going to give a series of indicative sentences for sequences 4, 6, and 11, noting that these are reduced by 25% as a result of the utilitarian benefit of the plea.

95. For sequence 4, there is an indicative sentence of four months.

96. For sequence 6, an indicative penalty of 18 months imprisonment.

97. For sequence 11, two years imprisonment.

Orders

95. I make the following orders:

96. You are convicted of each of the four offences before the Court.

97. With respect to sequence 5, you are fined $1,500.

98. With respect to counts 4, 6 and 11, you are sentenced to an aggregate term of imprisonment of 3 years to commence from 10 May 2026 and expire 9 May 2029.

99. After serving 1 year and 6 months in custody, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), you are to be released on a recognizance release order on 9 November 2027, in the sum of $100. You will be on that recognizance for a period of 1 year and 6 months, to expire on 9 May 2029, on the following conditions:

(a) To be of good behaviour. (b) To report to the nearest Community Corrections office within 7 days of your release from custody. (c) To be subject to the supervision of a probation officer as long as the community corrections deems that necessary. (d) To obey all reasonable directions of the probation officer. (e) To resume treatment with Mr Graeme Randall, psychologist, or similar provider (f) To abide by any treatment plan as directed by Mr Randall or the probation officer. (g) To submit to any other treatment plan as directed by the probation officer. (h) not travel interstate or overseas without the written permission of the probation officer.

5. I make a forfeiture order with respect to the Nokia X30 mobile phone that had been seized pursuant to s 23ZD of the Crimes Act.
6. Pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000 (NSW), the offender is to be a registerable person, required to be recorded on the NSW Child Protection Register, for a period of 8 years commencing 9 November 2027 to expire on 8 November 2035.
7. I direct that the District Court Registry provide the registrable person order and the form 3 documents to Corrective Services. A copy is also to be provided to Mr Nieuwenhuys. I also direct the Registry to provide a copy of the registrable person order and the form 3 document to the New South Wales Commissioner of Police and the supervising authority of the offender, being Community Corrections.

Child Protection (Offenders Registration) Act conditions read to offender by his Honour.