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[2025] NSWDC 210
General information, not legal advice.
District Court of NSW
2025-03-28
Wass SC DCJ
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Medium Neutral Citation: R v Page [2025] NSWDC 210
Hearing dates: 14 March 2025
Decision date: 28 March 2025
Jurisdiction: Criminal
Before: Wass SC DCJ
Decision: See [122] – [135]
Catchwords: CRIME – Sentencing – Intentionally recording intimate images without consent – Creation of child abuse material – Later possession does not inform creation – Prosecutors must ensure not to lead a judge into error – Unusual case of reckless creation of child abuse material – Gross breach of trust of Airbnb guests
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Doyle v R [2022] NSWCCA 81
KW v R [2013] NSWCCA 31
Matthews v R [2018] NSWCCA 186
R v Edwards (1996) A Crim R 510
R v Gerard [2004] NSWCCA 170
R v HL [2019] NSWDC 41
R v RZ [2023] NSW DC 181
The Queen v De Simoni (1981) HCA 31
Category: Principal judgment
Parties: Rex (Crown)
Matthew Page (Offender)
Representation: Counsel:
M Fleeton (Crown)
M Bowe (Solicitor) (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Michael Bowe Solicitors (Offender)
File Number(s): 2023/163428
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication or broadcast of the name of the child victim.
The offender, Matthew Page (‘the offender’) entered pleas of guilty to 15 offences of intentionally recording intimate images without consent contrary to s 91P(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’). Each offence carries a maximum penalty of three years imprisonment.
He also pleaded guilty to one offence of producing child abuse material contrary to s 91H(2) of the Crimes Act. That offence carries a maximum penalty of ten years imprisonment.
The maximum penalties serve as valuable guideposts in the sentencing exercise.
The offences occurred between 18 March 2021 and 23 March 2023 in relation to a number of victims. The offender was arrested on 22 May 2023 and spent two days in the Manly police cells before being granted bail. I have taken those two days into account in sentencing the offender.
The Crown bundle includes a statement of facts and various victim impact statements, which were read by the prosecutor.
The offender relies on:
The Forensic Psychiatrist report from Dr Olav Nielssen dated 6 December 2024;
A letter from Psychotherapist Ms Tori McCarthy dated 20 February 2025;
A letter from Dr Erin Noonan, treating General Practitioner for the offender’s daughter dated 5 March 2025 outlining her diagnosis;
An undated letter from the offender; and
Various character references.
The statement of agreed facts is incorporated by reference and is part of Exhibit 1. I have taken all matters into account, but the following matters are particularly important in consideration of the sentence to be imposed.
The offender was born in February 1961. He was 60 when he commenced committing these offences. He is now 64.
The offender, his wife and two daughters live in a house at Newport that is subdivided into two parts.
By the time of the offending, the offender and his wife had opened up part of the house to Airbnb. His wife looked after the bookings and managed the Airbnb app. He cleaned the premises. The family were financially stressed at the time, and the offender was also driving for Uber to make ends meet. If he came home late, the offender slept in the spare room which shared a wall with the Airbnb.
On occasion, he heard the private lives of others being conducted in the room beyond his. He readily admitted that he wanted to see what was happening.
He formed the idea to put a camera in the premises.
On 23 February 2021, the offender purchased an IP Security Action Camera Wireless Wi-Fi remote monitoring camera. On 9 March 2021, he purchased a Mini Wi-Fi Spy Camera 1080P Home Security Peephole. Prior to that, he had used an old camera belonging to his daughter to capture what was going on next door.
Over the course of his offending, if the camera stopped working, after the guests had left, the offender would replace it. He did so numerous times to ensure that he had an opportunity to watch what had been occurring. Cameras were placed in various locations such that there was no area of the room or bathroom that was not captured.
The offender used the cameras to make short recordings of what was occurring in the unit. They lasted between 30 seconds and three minutes.
Cleaning the Airbnb provided the offender with access and the opportunity to place cameras continuously in the unit; when he wanted to change an angle or if they broke.
Once the guests left the Airbnb, the offender would look at the files. He would sort through what was captured, discarding empty files and putting into his phone, recordings “of interest”. Whilst overall this took some time, given the vast amount of footage obtained, he would scan the files quickly and then discard what he did not want. The files that interested him were kept so that he could subsequently go back and look at them.
At about 10:00 pm on 3 January 2023, Airbnb guests, JD and MB returned to the Airbnb. JD used the bathroom. Whilst sitting on the toilet, she noticed a small camera attached to the bin. She called MB into the room who confirmed that it was a camera.
Following MB’s call to the police, the two packed up to leave. As they were leaving, they informed the offender that they had found a hidden camera in the bathroom. The offender immediately apologised and admitted that he had done that and that he should not have. The offender asked if they had called the police; they confirmed that they had.
Police arrived shortly thereafter. They were directed to the camera located in the bathroom attached by a wire to the base of the bin. A false bottom of the bin contained two battery packs and a central processor, with a memory card attached. The offender denied all knowledge of the camera to police.
Early the following morning, police returned and executed a search warrant. The search revealed:
Nine computer files in five-minute increments, starting from 4:33 pm to 12:03 am on 3 January 2023;
A folder which contained 81 files in five-minute increments starting at 12:08 am to 6:57 am on 4 January 2023.
The camera in the bathroom had been placed to capture a person’s genitals.
On 6 January 2023, JD confirmed the image of herself in the bedroom at the Airbnb. The image came from a recording of her getting changed in the bedroom and MB lying on the bed (sequences 24 and 25).
The further relevant recordings were as follows:
18 to 20 March 2021, depicting JA and DA (sequences 1 and 2);
10 to 12 April 2021, depicting AS and DN (sequences 5 and 6);
14 to 16 May 2021, depicting CO and AB (sequence 9);
15 to 17 June 2021, depicting FY (sequence 11);
14 to 16 September 2021, depicting PM (sequence 13);
5 to 8 November 2021, depicting AI (sequence 15); and
12 to 15 December 2021, depicting LH and CW (sequences 17 to 18).
On 27 to 31 December 2022, KK and her 13 year old daughter EH had arranged to attend the Airbnb.
There were two files on the offender’s phone showing EH naked in the bathroom, with exposed genitals. She is clearly identified from the footage as a child.
The material is Category 2 child abuse material. It is accepted that the posing is not in any way sexual. It is classified as child abuse material as it shows a child who is exposing, albeit unwittingly, her genital area and her undeveloped breasts as she asked her mother for a towel.
The offender gave evidence that he did not recall the young girl. He said that they had not had anybody under 18 years of age stay at the Airbnb previously. He was unaware that the mother had brought her daughter.
The offender said that he was unaware that he had captured the images. He said, “I don't remember looking at the young girl or thinking that there was an underage person there.” He accepted that it was amongst “a pile of files with people in it.”
In his evidence, the offender said that he had been advised by police after he had been arrested that he had filmed a 13 year old girl. He said that at the time he was unaware that there was an underage person there. He said that he regretted this and was mortified that there was an underage person in the files.
He retained however, two files of the child naked in the bathroom with exposed genitals asking for a towel, who clearly had undeveloped breasts. It would have been obvious to any careful viewer that she was a child. The offender accepted that he saved the image onto his phone, but in the circumstances that I have described.
There is an issue as to what acts are relevant to a production charge, where possession of the child abuse material has not been charged.
The Crown submitted that I must take into account the dealing by the offender with the footage after it had been filmed. The Crown submitted that the fact that the offender deleted footage of EH that was not intimate and therefore was not child abuse material, is relevant to the charge against him under s 91H(1)(a) of the Crimes Act because it was intended to “encapsulate steps taken by the offender in the production of child abuse material.”
It was submitted on behalf of the offender, that the production of child abuse material is complete once the footage is captured and where the material had not been edited by him and only non-child abuse material had been removed as being “irrelevant”. It was submitted that possession of the material is not relevant to its production, which was unwitting at the time it was filmed. It was accepted that the offender later watched the material (albeit briefly and did not register that it was child abuse material) and that he moved it to a folder, thus deliberately saving the material that he had created. It was submitted however that the act of creating the child abuse material was by that time complete and that all later acts were acts of possession, which have not been charged.
The Crown relied on the definition of “produce”, which includes to film, photograph, print or otherwise make child abuse material. The Crown submitted that installing cameras in the Airbnb and then collating that footage into shorter footage which contained that of the child, all constitutes the production, and not merely the act of installing the camera and obtaining the footage irrespective of what was contained therein.
The Crown submitted that the objective seriousness is higher as the offender had undertaken the collation and editing process of removing extraneous material; more serious than if it had been raw footage that he had not edited or organised; and that there was a deliberateness and a degree of planning to turn the footage into a form of his own ‘pornography’ despite any suggestion that he captured the footage inadvertently, or through recklessness.
Having exercised the leave granted to her to take time to research any relevant authorities (where none had been referred to), the Crown relied on R v HL [2019] NSWDC 41 (‘R v HL’), a decision of Colefax DCJ, in which the offender installed a camera in the bedroom of his 14 year old daughter. The footage was located on his mobile phone. It was submitted that this was considered in the production of child abuse material.
However, a detailed analysis of R v HL reveals the following:
The offender faced charges relating to both production and possession of child abuse material.
The child abuse material were photographs and videos showing that a video had been created by the offender using a camera that he had secreted in his daughter’s bedroom.
It was the creation of the video that constituted the offence of produce child abuse material.
Further photographs and videos found on the offender’s device supported the possession charges.
Videos found on the offender’s hard drive that had been prepared by the use of the secret recording devices installed by the offender within the bedroom, which contained images of children going to the toilet also constituted a possession charge.
In my view, this case does not support the proposition contended for by the Crown, that the way in which the films were dealt with thereafter had any bearing on a charge of producing the material.
R v RZ [2023] NSW DC 181 was determined on the basis that it was only the creation of the video that comprised child abuse material. That similarly relevant District Court decision was not provided by the prosecutor.
In KW v R [2013] NSWCCA 31 (‘KW v R’) (a decision that provides relevant principles that bind me that was also not provided), the Court was careful to distinguish between conduct that amounted to production and conduct that related to possession.
Further, in that case the careful prosecutor was clear to ensure that the sentencing judge did not fall into error by reminding his Honour that whilst child abuse material created by the offender showed the offender digitally penetrating the victim, the offender was not being sentenced for a case of sexual intercourse but rather an aggravated indecent assault. The principled approach by the prosecutor ensured that his Honour did not fall into sentencing error of the kind identified by The Queen v De Simoni (1981) HCA 31 reported in 147 CLR 383.
In my view, although they often coincide and have done in the cases referred to, possession is not an element of the production of child abuse material. It requires only that the material be filmed, photographed or otherwise made. That might be done in a way where a person never has possession of the material. For example, a web cam may capture images that are recorded elsewhere. A person might make the material but not possess it.
I have not sentenced the offender for his ongoing possession of the child abuse material in circumstances where, unlike the case in R v HL relied on by the Crown, the offender has not been charged with possession of the material. I am of the view that it would be in error to do so. That said, it is accepted by the plea that the offender was aware that he had created what turned out to be child abuse material. That is clear by the fact that he looked through the files and did not discard them.
The production of the child abuse material was a serious breach of EH’s privacy but in accordance with his evidence, he had no idea a child was in the Airbnb, had no sexual interest in children and had no intention of producing child abuse material. Rather, it was an unintended consequence of filming the whole of the apartment in which EH stayed and in that respect, it was highly reckless. The reality is he did produce such material and it was a gross breach against EH. It is serious for that reason but not as serious as an offence where child abuse material is deliberately produced to serve a market for such material and which is so damaging and insidious for that reason.
It is relevant that the material was not created for sexual gratification, nor indeed was it for the offender’s personal use. Rather, he thoughtlessly kept the footage once created, despite having no sexual interest in the material.
It is important to sentence the offender only for the creation of the material. The circumstances of the creation of the material are as I have described. The creation was deliberate, but it was done so in a highly unusual case where the offender had no real purpose in capturing the material, which was created as part of the wholesale filming of the Airbnb, not knowing at the time that the child was present, but nonetheless keeping the footage.
The Crown’s submission that the criminality goes beyond mere recklessness or inadvertence, because the offender saved and edited the footage, in my view, goes to the issue of possession. There is no doubt that the creation of the footage was reckless and inadvertent, rather than deliberate.
I accept the offender’s evidence that he had no sexual interest in underage people and that he is sexually interested only in adult females. That is confirmed by the lack of any child abuse material in any of the offender’s laptops, phones, USB devices or any other electronic devices that were seized by police. He has no criminal record in any respect, including in respect of young people.
The other videos on the offender’s phone were deliberately made. They depicted people in intimate positions including using the toilet, getting changed or engaging in sexual intercourse. Over the course of the investigation, 16 victims were identified. The videos were filmed in their entirety. The offender then edited them only to show persons in intimate or private moments such as sexual intercourse or using the bathroom.
The videos captured the bathroom and bedroom from multiple angles. There were six known cameras which covered every section of the internal part of the Airbnb, leaving the guests with no area of privacy.
All recordings captured both audio and video.
The statement of facts, other than in one respect, does not otherwise reveal what each footage depicted; only that each of the victims had identified themselves within the Airbnb. For the reasons that I will come to in respect of objective seriousness, I am not prepared to assume what was in the footage, other than as most generally described, other than in the case of JD and MB where their actions are described. The reference to sexual intercourse in the statement of facts makes clear that there must have been one piece of footage depicting that act, but I am unable to say which one.
The offender captured the footage in order to watch it for his sexual purposes, in the following circumstances:
The filming was attended with a purpose to watch the material for his own use, not for dissemination to others.
He filmed the adult victims in each case with an intention to watch the footage and to obtain sexual gratification from it; and
The production of the child abuse material, of which there is one example, occurred because EH was caught up in the deliberate filming of guests in general where the offender had no intention of capturing a child. The criminality attaches to filming and therefore producing material that was, as it transpired, child abuse material, rather than a deliberate attempt to create child abuse material. That matter has removed it from the ordinary cases of this kind in a sense that it was not motivated by the wish to create child abuse material but rather was the result of filming what he believed at the time to be intimate adult acts. The fact that the offender viewed the EH material and did not delete it is to be seen in the context of his evidence that he did not realise what he had.
The offender spoke to Dr Nielssen about creating his own pornography. He had watched legally and readily accessible pornography for a number of years. He found, in his state of mind at the time, that such legal pornography was not providing the satisfaction he needed. His offending was sparked by looking for new material that no one else had. Satisfaction was found on making, collating and viewing the illegal recordings obtained by hidden cameras. At the time “the satisfaction was that no one else had it.”
The offender accepted that a significant amount of his time was spent saving and editing out the extraneous material. He readily accepted that it was not a spontaneous or spur of the moment trigger needing immediate satisfaction but rather, he became obsessed with the process of obtaining and editing material which in turn provided satisfaction.
The offender did not understand these triggers at the time. He has obtained this insight as a result of professional intervention and counselling. The offender now has good insight into the great invasion he carried out on the victim’s privacy and that he has provoked serious trauma.
After police intervened in January 2023, the offender’s family relationship deteriorated further. He was sleeping in the spare room. With his triggers and addiction unchecked, and with no opportunity to take advantage of the Airbnb (which had been shut down), he filmed his 21 year old neighbour through a window and her kitchen door on a number of occasions, over a six day period. The offender voluntarily ceased this offending, but only after the neighbour had become aware, at least to some extent, of what he was doing.
The offender said that he thought better of it and realised the idiocy of the act. He appreciates now that it is far more than idiocy. It is a gross breach of trust. He deleted the footage with no attempts to go through it or edit it.
On 4 April 2023, when the last incident was being filmed, MW was exercising in her home. She noticed the offender’s phone was pointed at her from a window next door. She called out. The offender took the phone away without being identified. Thirty minutes later, the offender came to her home and gave an explanation designed to exculpate him. In addition, he said, making it abundantly clear that he knew that what he was doing was seriously wrong, “You must think I’m a creep or a perve.” MW brushed it off and said, “No worries it’s okay.”
Contained on another mobile phone were 32 videos filmed over six days (sequences 37, 38 and 39). They showed seven events, of the offender’s neighbour MW, filmed through his window. He captured intimate events where MW was inside her own home, either partially naked, in underwear, in her pyjamas, or in shorts and a singlet. A friend of MW, OL, was also identified.
The offending against the offender’s neighbour was both brazen and opportunistic. By this time, the police had been to the offender’s home some months before, had gathered up all the offender’s cameras, recording equipment, and any files on which they were stored. He knew that he had been discovered but was still in such a heightened state, that he continued offending nonetheless.
The offender had in that first instance, in January 2023, denied his offending to police. That denial was obviously false. It was a futile denial, where he had already admitted his offending to the last guests that he had offended against, and where those items had been seized by police.
That makes the offending against his neighbour and her friend extremely serious and it is highly relevant to whether or not, given the opportunity, the offender will offend again. It also brings into stark relief the dire situation that the offender was in, such that his offending occurred where there was an extremely high likelihood that he would be discovered, which in fact he was. The neighbour only had to glance in the direction of his house to see the phone sitting up, facing her window. It is clear evidence that he was, at that time, at the mercy of the trigger and the author of his own demise.
The offender explained that the offending against the neighbour occurred in circumstances where police had taken away the thing that was providing relief from stress and feeding his addiction, and that he turned to it to fill a void.
The offender described this time as distressing and surreal. He does not now recall the detail of what he said to police when he denied the offending in January, but simply accepts that he must have said it, given that it was on the body worn camera filmed by police.
All videos were obtained by the offender without the knowledge or consent of those filmed. Indeed, the victim impact statements make clear that the victims were mortified having been recorded. Their expressions, as one victim put it, were ones of “rage and heartbreak”, and they are understandable. The offending has had ongoing negative effects, matters to which I will return.
The offences to which the offender has pleaded guilty are serious and demonstrate a pattern of behaviour to video record for the purposes of producing images of guests of the Airbnb in intimate poses without their knowledge or consent.
That said, the offences in question cover a vast array of potential offending and these offences are to be considered in that light. The following matters are relevant:
In all cases, other than MW, the victims of the filming are strangers to the offender. They were not aware at the time that they were being filmed. They were not being made to perform, but rather they were carrying out their daily lives, falsely believing that they were not being watched. The Crown submitted that despite the lack of clarity in the statement of facts, I would assume that on more than one occasion, the footage obtained was of people having sexual intercourse. This would be a matter that would render the offending more serious. I am not prepared to accept that submission without legal authority or evidence that this was the case. Despite the prosecutor submitting that such legal authority existed, and my granting liberty to provide further submissions, neither authority nor further submission on the issue was forthcoming. Given the terms of the statement of facts, I have taken into account that there was one occasion where the victims were engaging in sexual intercourse, but I am unable to say which one. The offending has nonetheless caused harm to all of the victims, where they now appreciate the gross invasion of their privacy that has occurred.
The offending continued over a two year period from March 2021 until April 2023.
The offender went to some trouble to offend in all cases but that of MW and her friend, setting up multiple cameras in the home and buying bespoke items for that purpose. It showed a level of planning and some sophistication, such that the offending was not discovered for two years. It was not spontaneous, but was planned in response to a period of particular stressors to a point where it triggered the filming for the purposes of voyeurism after the guests left. In the case of the neighbour MW, it involved placing his phone camera against a window and filming whatever occurred.
All victims, not just MW, were filmed in their homes. In each case, other than MW, where it was her actual home, they were in a home for themselves that they had rented for the duration of their stay. Despite it not being a permanent home, they had a right to, and the expectation of, complete privacy.
The videos were not shared with anyone. They were kept for the offender’s personal gratification. Whilst I accept that the offender does not have a particular sexual interest in children, in the case of EH who was only 13, the footage was captured as with all footage and kept. As for the remainder of the footage, the filming occurred for the purpose of the offender having the intimate images for his own sexual gratification.
Accordingly, the offence under s 91H(2) in respect of EH is not a typical offence for which the legislature envisaged, where children are filmed in the context of the deliberate making of child abuse material. It is, in that sense, less serious than one often sees for offences of this kind. This is primarily because of the nature of the recording, but also because of the lack of intention when the offender created it. It was created as a result of his intention to film adults. Whilst I am mindful that the child abuse material once captured was kept, I am also mindful that I am sentencing the offender for his production of material. His lack of intention but the high level of recklessness in the production, where all people were being filmed, has meant that this matter is extraordinary in consideration of matters of this kind. The age of the victim, the nature of the footage, the fact that it was not otherwise disseminated, and the fact that it was recorded on only one occasion are all relevant features in the assessment of objective gravity.
In the case of MW, her harm was heightened because the offender lived next door and was known to her, and by reason of the number of recordings. In some respects, however, the offender’s actions were less intrusive, having been filmed through an open window into MW’s house. It occurred despite the earlier intervention of police.
In the case of the filming within the Airbnb, it is also a serious breach of trust and indeed, even more so, as the offender’s access to the victims was obtained by reason of his ownership of the house and where the installation of the cameras left the guests with no private space. There is no finding of a breach of trust in respect of MW, but there is such a finding in respect of all Airbnb guests.
The Crown submits that the harm in respect of MW and AS is significant, and more than one would expect, so as to aggravate the offending.
AS describes fear and anxiety in needing to protect her identity. Her identity has been protected. Once a positive person, AS has been deeply affected with some effects still surfacing. She has sought out counselling, particularly in light of preparing her victim impact statement and for the Court proceedings. She has problems sleeping and relaxing due to anxiety and stress. This has affected her eating patterns. She expresses a range of negative emotions. She has trust issues, particularly staying at Airbnb type accommodation. She has developed anxiety around people where her work involves face-to-face customer service. The offending negatively affected her ability to travel for her employment for a period of time and to progress her career. Unfortunately, AS has misunderstood or been misinformed, and believes that the videos of herself have been uploaded onto the internet. This is not so. The unchallenged evidence from the offender is that he did not do so and there is nothing in Exhibit 1 that makes one think that he did. Accordingly, so far as I know, can I reassure her about that as best I can, so that her concern and hypervigilance can abate. Much of her fear and anxiety comes from worrying about a situation that has not occurred.
MW has been left with feelings of intense anger, anxiety and a profound sense of embarrassment and shame. Although the feelings are not constant, they are regular. Her sense of privacy and confidence has been shattered. She is extremely anxious as she comes and goes from her house, worrying she will encounter the offender. Her trust in the offender has been completely betrayed and has negatively affected the relationship of the families. The neighbouring window is a constant reminder of the violation that shattered her sense of security and trust. She is overwhelmingly angry about the pall it has cast over her childhood memories. The offender’s family, with whom she had been very close, can barely speak to her now. Her feelings have interrupted her sleep and she feels sick on many occasions replaying the details of the crime in her head. She unnecessarily blames herself, where it was her privacy that was so invaded. For a while, therapy provided some relief before she took a welcome break overseas. She is bereft that she is more comforted, calm and happy away from her own home. In short, the offender has destroyed what was once a safe and happy place.
Unsurprisingly, the victim impact statements disclose feelings of betrayal, anxiety, embarrassment and violation. I have read them and taken them into account. They are cogent and compelling expressions of the harm done. I do not see the need to identify any of the victims other than by their initials. Open justice is not served by putting the names to the offender’s conduct. The harm done to them has been considerable and I do not wish to publicise their grief and distress. The protection of EH’s identity is mandated by law.
Unfortunately, this is the kind of harm that is to be expected from this kind of conduct. That is why terms of imprisonment are set as the maximum penalty. In my view, the harm caused is no more than what is to be expected in cases of this kind. That is not to underestimate the harm that has been done. The offender’s conduct involved blatant, ongoing, insidious and disgraceful breaches of the victim’s privacy and their lives have been detrimentally affected.
The offender was born in February 1961. He is now 64 and was 60 to 62 years old at the time of the offending.
He has no criminal antecedents and has never been in custody prior to his arrest.
He suffers from mental health issues.
They include a depressive illness and a voyeuristic disorder, which includes a pornography addiction. That addiction had its genesis in childhood, when he was experiencing childhood challenges and was in no position to make mature decisions about viewing pornography.
Prior to his arrest, but after he was discovered, the offender had some sense of his mental health issues. He had examined his own thoughts, he had been to his General Practitioner and he had started to see a psychologist. Unfortunately for his neighbour, it took his arrest and two days spent in the Manly police cells to stop his offending altogether.
When he was offending, the offender had little idea that he was using pornography and the offending, so as to obtain pornography that no‑one else had, as a coping mechanism and as relief from anxiety, depression and stress. He had little insight into the fact that he was isolating himself from family and friends and had been offending to cope with the situation he was in at the time: including his loss of self-esteem and financial worries that attended his loss of employment.
The offender’s vulnerability to using pornography in that way had its genesis in his teenage years when he first experienced pornography. That occurred not just in the context of normal sexual teenage experiences, but where he was a loner and an outsider, where he was excessively bullied, where he suffered from dyslexia making school more difficult, and where he had no friends. He found that situation very distressing. He became further isolated, spending time on his own and with little parental support, he took extended time away from school. It was in that situation that he obtained access to print media pornography and viewed it for extended periods to obtain relief whilst he was at home alone.
Despite early success in various hospitality roles, including where he worked hard in family businesses, he ultimately fell into despair by reason of failed employment opportunities. He had a short period of time in a difficult career of business brokering, particularly during the 2008 financial crisis, where expectations of those selling did not match those buying. For 12 months from 2016, he had what he described as a dream job working in a “pacific business investment facility” funded by the Department of Foreign Affairs and Trade. Unfortunately, the program was cancelled in 2017, and the offender returned to business broking, which by this time was highly pressured and extremely stressful. He was trying to deal with difficult clients, and to pay the mortgage on unreliable and variable income. As COVID-19 approached when these offences were committed, the business had broken down altogether.
By this time, the offender was despondent and depressed. He felt shame in not being able to support his family. His depression grew to a point where, as he put it, it was a “gnawing black hole in the pit of [his] stomach” as he faced the prospect of paying the next month’s bills.
Once a person who had been gregarious and a good communicator, the offender became isolated. He was not seeing his friends and became remote from his family.
He returned to looking at “regular pornography” as a distraction and coping mechanism.
He explained that he progressed from watching legal pornography to producing his own material, given that he had the opportunity. The Airbnb was not set up for him to offend, rather to get income for the family. He did not think it through until he heard some guests one night. He was attracted to producing the material that was not available to him (or to anyone else) online. It fed a voyeuristic desire.
The offender has been treated since August 2024 for sexual compulsivity disorder. This disorder directly gives rise to and contributed to the offending. He uses the pornography as a maladaptive coping mechanism.
In those circumstances, the offender’s moral culpability for his offending is reduced, as is the Court’s need to denounce the conduct so strongly. Punishment is important, but the need for it will be tempered in a case of a person who suffers from such a disorder.
Any long term full-time imprisonment will weigh heavily on the offender, not only because it will be his first time imprisoned at the age of 64, but also because of his mental health issues.
At the age of 64, the offender has no previous convictions. He is otherwise a person of good character. His family and friends are aware of his offending and are pro-social, positive influences on him. He is utterly remorseful for his offending, as shown by his plea of guilty, his letter to the Court, and his evidence.
The offender listened to the victim impact statements as they were read out in Court. He was deeply upset and was profoundly sorry for what had taken place. He said that he now understands, with the benefit of work with a psychiatrist, psychologist and therapist, the trauma that he has caused his many victims. He volunteered in his evidence, in order to allay some victim’s concerns, that he has not disseminated any of the material.
As for the offending against his neighbour and her friend, he accepts that he offended notwithstanding that the police had come to the house in January 2023 and had executed a search warrant taking many electronic items. He regarded that, at the time, as a surreal experience. He had not come to terms with what he had done.
I accept that the offender is now highly remorseful for his offending against his 21 year old neighbour on six occasions between 4 March and 4 April 2023.
With professional assistance, the offender now has good insight into the fact that he has irreparably altered his neighbours’ experience of living in the home and has destroyed the once close relationship he had with the family over many years. He has apologised through intermediaries and in Court on sentence. He feels understandably, terrible. It is a terrible thing that he has done, not only harming his 21 year old neighbour directly, but all members of both families in his self-centred and obsessive pursuits.
The offender now has good insight into the triggers that caused him to offend, where he was using the material, and more so the obtaining of the material, as coping mechanisms for depression and the inadequacy that he felt, in order to deflect or distract from his situation and to avoid reality. He understands now that he fell into a cycle of addiction, which he was not aware of at the time.
The offender has not reoffended since his arrest. He has, at all times, complied with his bail. He is appropriately medicated for depression and his libido. He has been undertaking counselling, discussing his motivations and understanding its genesis in childhood experiences. He is coming to terms with the betrayal, not only of his victims, but to his wife, family and friends. He says that he will not reoffend.
He is now working in the building industry, something that he has done little of in the past. He finds it fulfilling and that he has some talent in that regard. It is also providing some income to decrease his stresses.
In short, he is insightful and aware of his condition. He has sought out treatment, which is going well. He has done all that can be expected of him in response to his offending. Due to his offending, he can no longer work as an Uber driver and the Airbnb has had to be closed. He now works full time as a labourer on construction sites, which will be a protective matter.
As to his risk of reoffending in the circumstances described, the offender has been the subject of a police search and seizure. He has now disclosed fully to family and friends the extent of his offending. He was arrested, taken into custody, charged, and he spent two days in the Manly police cells considering his situation, a matter that he described as “waking from a stupor.” He has accepted full responsibility for his actions. He has engaged for a significant period with professional help. That help is of a high quality and is ongoing. He is properly medicated, which supports the cognitive therapy with which he is engaged. He is taking meaningful steps towards repairing the relationship with his family and friends. He is engaged in stable employment. He is mindful of the precarious nature of his position and the need to maintain the supports that are now in place.
The offender has been taking appropriate medication for some time now without issue. I am mindful of the fact that after the police came to the house, but before he was arrested, he had been to see his General Practitioner and obtained some medication, but nonetheless went on to stop taking that medication and offend against his neighbour. Like any mental health condition, it can take some time for a person to accept proper treatment. It is unfortunate in the extreme that his initial engagement with the police only led to denials both to police, to his neighbour and indeed, to himself, provided no insight into the value of his medication, and led to further offending on a number of separate occasions.
However, I am assessing the offender as I find him today and I am satisfied that if he continues with treatment, that he is very unlikely to reoffend. His prospects of rehabilitation and remaining in treatment are also, in my view, very high. In those circumstances, I doubt that the Courts will ever see the offender again.
Part of that risk assessment involves the consideration of the offender’s good character. He has no prior offences and otherwise, has lived a pro-social and responsible life.
The Crown initially submitted that in respect of the child sex offence, pursuant to s 21A(5)(A), good character is not relevant and cannot be taken into account as a mitigating factor if I was satisfied that it had assisted in the commission of the offence. There is no evidence that the offender’s good character was used to let out the Airbnb or to enable him to obtain or to install the cameras. On taking that matter up with the prosecutor, the submission was withdrawn.
Accordingly, I have also considered the offender’s good character in all matters. It affords him some leniency as a first offender for the Airbnb matters. I do not regard him, strictly speaking, as a first offender for the final films that were taken of his neighbour.
In respect of his good character, I have read in detail the testimonials put forward on his behalf. One of the authors, a Senior Counsel, also gave evidence as to the matters in his letter. He is a man of high integrity and repute. He is aware of the nature of the charges and has read the statement of facts. He has known the offender for two decades. The two engage in recreational pursuits. Their families are also friendly. They regularly visit each other’s homes. The offender was described as a person who is generally well mannered and well liked. To his observation, the offender is otherwise a very good family man and other than for these offences, I am satisfied that that is so. The witness corroborated the offender’s evidence of financial struggles, and his willingness to try and work hard to see his way out of them. When the offending first came to light in January 2023, the offender told him what had occurred. He was understandably shocked and said that this was not the man that he knew, particularly when he went on to reoffend after disclosing the Airbnb matters to him. The offender has been shunned and avoided by many friends. Although the witness in no way condones what has occurred, the offender still has his support. That will be a protective mechanism against further offending.
The offender’s youngest daughter lives with the offender and his wife. She suffers from tuberous sclerosis, a rare genetic disorder that causes non-cancerous tumours to grow in her major organs; her brain, her heart, her kidneys and her lungs. The condition results in seizures from time to time, about which she understandably worries. She relies particularly on the offender for her emotional support, when she suffers from panic attacks, where she is under stress and cannot sleep.
As to the hardship to the family more generally, the offender is currently working full-time and his wife is working part-time. They are making ends meet on both incomes.
Matthews v R [2018] NSWCCA 186 makes clear that although hardship to a family and dependents must be exceptional before it justifies a discrete and substantial component of leniency, if it is not exceptional, it still may be taken into account as part of the offender’s subjective case.
I have had regard to the R v Edwards (1996) A Crim R 510, particularly the judgment of Gleeson CJ at 515:
“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed sending a person to prison will more often than not cause serious or even extreme hardship, to another person. They may be the sole source of income, they may be carers of disabled or infirm family members.”
Indeed, in my view, it is that fact that often deters offending. Only where such circumstances are “highly exceptional” and where it would be inhumane to refuse to do so, will that factor alone result in a lesser sentence where an otherwise appropriate term of full time imprisonment is to be imposed.
However, as Hodgson JA made clear in R v Gerard [2004] NSWCCA 170, in that case the imprisonment of a child’s parents, although not exceptional, could be taken into account as one subjective circumstance but not as a matter resulting in a substantial reduction or elimination of a term of imprisonment. I have also had regard to Doyle v R [2022] NSWCCA 81 in that regard.
I am not satisfied that the situation regarding the offender’s young adult daughter is one that justifies a finding that the offender’s situation is special or exceptional, much less highly exceptional, such that a term of imprisonment that might otherwise be necessary would not be imposed. It does however remain a consideration in the offender’s subjective case that I have taken into account.
Given that the offending was so compulsive, the sentencing of this offender does not provide an appropriate vehicle for general deterrence. I doubt that a person in the offender’s position, with his mental health issues, would think about any likely consequences (and indeed in this case the offender did not), much less, sentences that are received by others in a similar situation.
I am satisfied that the sentence that I will impose will deter the offender from ever offending again. Indeed, for the reasons I have already mentioned, I believe that he is already deterred from any further offending.
Wherever an offender is to be sentenced for more than one offence, principles of totality apply. The same mental health issues were occurring. In some cases the offending was the same, but because it involved more than one person, two charges were laid. The offending was in all cases similar. Accordingly, there will, where relevant, be a high degree of concurrency.
However, due regard needs to be had to the separate instances of offending where the offender had the opportunity to desist from that offending, but did not. Further, the sentence must acknowledge the separate harm done to each victim, each time the offender offended.
Consideration needs to be given to the overall offending.
Sentencing statistics have some limited relevance, although it is important to note that each case very much depends on its own facts. It is particularly important to review them with some caution where there are so few similar cases. Of the three offenders that were convicted and sentenced in the District Court for s 61P offences, a full time custodial sentence was imposed in one case; resulting in an 18 month head sentence with a non‑parole period of 12 months. Two cases resulted in an ICO being served for a duration of 12 months and 15 months respectively.
Of the one count of producing child abuse material, 130 offenders were convicted in the relevant period. Only 12 cases resulted in a Community Correction Order and one case resulted in a Conditional Release Order without conviction. The remainder resulted in terms of imprisonment.
While similar cases have been useful in considering the exposition of the various principles, ultimately, each case turns on its own particular facts.
The production of child abuse material, generally speaking, is an extremely serious matter because of the damage it does to those who are filmed. That is why it has a maximum penalty of 10 years imprisonment. Almost always the films are made for sexual gratification, the child victims are extremely vulnerable, and are often made to perform serious sexual acts, or are filmed deliberately, at the very least, to expose their genitals or in sexual poses.
This is not such a case. The offender has no sexual interest in children. This matter is unusual because of the way the material came into existence. It occurred because of the offender’s absolute of lack of regard for a young victim’s privacy in pursuit of other criminal activity.
I am satisfied that unlike many offenders for offences of this kind, he did not set out to exploit EH. That has been an important defining matter in the ultimate balancing exercise, whilst taking into account all other relevant matters.
As to whether the s 5 threshold has been crossed, in my view, it has been a very finely balanced exercise. I have taken into account the fact that the offending against EH has taken place in the context of other offending and in that sense, it is not a one-off event. It is, however, a single count of its kind and it is in that sense, and in the way described, an aberration.
I am not to sentence the offender to a term of imprisonment in any matter unless it is the only appropriate sentence. For that offence, I am not satisfied that it is so.
The offender is sentenced to a Community Correction Order for a period three years. It will have the following conditions:
He is to be of good behaviour during a term of the order.
He is to be called up for resentence in the event of any breach.
It will be a supervised order. He is to report to St Leonards Community Corrections within seven days to understand his obligations under the order.
He is to obey the directions of the Community Corrections office, including in respect of the following matters:
(a) He is to continue in treatment; (b) He is to take his medication as prescribed; (c) He is to own and use only one mobile phone and one laptop at any one time; (d) He is not to own or operate any cameras other than the one that is contained on his mobile phone and his laptop; (e) He is to provide up to date information about that phone and laptop to Community Corrections in writing; (f) He is never to have involvement in any guest accommodation including, but not limited to, Airbnb either directly or indirectly; and (g) He is to abide by any existing Apprehended Violence Orders.
The 15 counts of intentionally recording intimate adult images are serious examples. They involve a deliberate and planned course of action over a period of two years, in gross breach of trust against victims who expected privacy and should have had it. In respect of the Airbnb matters, it is a formal finding of a breach of authority and trust. That deliberation makes the offending more serious than the production of the child abuse material.
In each case, other than the production of the child abuse material, I am of the view that no other sentence other than a term of imprisonment is appropriate. It will be an aggregate sentence. I indicate the following sentences:
In respect of sequences 24 and 25 involving JD and MB, in each case I indicate a term of imprisonment of four months.
In respect of sequences 1 and 2 involving JA and DA, in each case I indicate a term of imprisonment of three months.
In respect of sequences 5 and 6 involving AS and DN, in each case I indicate a term of imprisonment of three months.
In respect of sequence 9 involving CO and AB, in each case I indicate a term of imprisonment of three months.
In respect of sequence 11 involving FY, I indicate a term of imprisonment of three months.
In respect of sequence 13 involving PM, I indicate a term of imprisonment of three months.
In respect of sequence 15 involving AI, I indicate a term of imprisonment of three months.
In respect of sequences 17 and 18 involving LH and CW, in each case I indicate a term of imprisonment of three months.
In respect of sequences 37, 38 and 39 involving MW and her friend, in each case I indicate a term of imprisonment of eight months.
The indicatives of four months regarding JD and MB take into account that the victims were aware at the time that they had been offended against. It had occurred in respect of specified intimate acts and where they were distressed about the situation, had to call police and were confronted by the offender.
The eight month indicatives in respect of MW and her friend takes into account that the offender was known to his victim, where she resides in close proximity to him, and where he persisted in spite of police intervention.
It is appropriate that I consider now whether an Intensive Correction Order can be made.
Taking into account all matters, the offender is, in my view, at almost no risk to the community now, notwithstanding that he is still receiving treatment and that his issues have not entirely resolved. His rehabilitation is almost certainly best served by allowing that intensive treatment to continue.
It is in the best interests of community protection that the offender continue in his treatment and his employment. That treatment is best carried out in the community. I have had regard to issues of community safety pursuant to s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and all other purposes of sentencing and I find overall that the appropriate sentence is one that sees the term of imprisonment of two years and ten months carried out in the community pursuant to an Intensive Correction Order. It will have the same conditions as the Community Correction Order.
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Amendment to cover sheet
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Page [2025] NSWDC 210