R v Richmond-Jones

District Court of NSW|2024-05-27

Solicitors: Ryan Payten Le (Offender) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2023/006270

JUDGMENT

Gary Richmond‑Jones comes before the Court in relation to two matters. The first matter is an offence under s 233BAB(5) of the Customs Act being that on 7 January 2023 Mr Richmond-Jones, who I will refer to as the offender, intentionally imported goods, being tier 2 goods, comprising child abuse material, being reckless to the fact that the goods were tier 2 goods and being good the importation of which was prohibited under the Customs Act 1901 and requisite approval had not been obtained at the time of importation. The maximum penalty for that offence is ten years or up to 2,500 penalty units.
The second matter before the Court is an offence under s 272.20(1) of the Criminal Code. That offence is that between 26 December 2022 and 1 January 2023 in the Philippines, Mr Richmond-Jones, being an Australian citizen, did an act with the intention of preparing or planning an offence involving sexual activity with a child outside of Australia, namely, an offence against s 272.9(1) of the Criminal Code. The maximum penalty for that offence is ten years' imprisonment.
The maximum penalties represent the seriousness with which the Commonwealth Government takes these offences and acts as a critical consideration in my assessment of the appropriate sentence.

Background

Before I set out the details of my sentencing, I want to address some unfortunate background to this matter being resolved.
This matter came before me for sentence on 27 May 2024. The offender gave evidence during that hearing. I adjourned the matter for two days to Wednesday 29 May 2024 for my sentence to be pronounced at 3pm. At 1.37pm on 29 May 2024 the Commonwealth wrote to my chambers stating: "The Crown intends to contend that the evidence by the offender and submissions of counsel for the offender is inconsistent with the plea entered and requests the indulgence of the Court for additional time to address this in written submissions and that the matter be relisted on a future date for continuation of the sentence hearing."
When the matter was in Court that day, I told the Commonwealth that my fairly firm view was that there had been no plea traversal in the evidence given by Mr Richmond-Jones and Mr Flood, who appears for the offender, reminded the Commonwealth that I expressly confirmed that the offender maintained his plea of guilty before the sentence proceedings began. Nonetheless the Commonwealth insisted the matter be ventilated in Court. As a result of that request and as a matter of fairness to the Commonwealth, I ordered the transcript of the sentence hearing and adjourned the matter to the first date suitable to the parties, being today, Monday 12 August 2024, noting that the offender was on remand at that time.
The transcript of the sentence proceedings became available on 21 June 2024 and was immediately provided to the parties. On Friday 9 August 2024 the Commonwealth again wrote to my chambers, this time to say it no longer wanted to be heard about the offender's plea traversal but, instead, made further submissions on penalty. No explanation was given as to why the Commonwealth had changed its mind nor why it took until the last business day before this listing to inform the Court, and presumably the offender, of its change of heart.
Had the Court been advised of this new position earlier it follows that the sentence pronouncement date could have been brought forward, as it was no longer necessary to have both Counsel present for the sentence and for this issue to be heard.
As a consequence of the Commonwealth's conduct, the offender has spent an additional, almost, two months on remand. Being held on remand is significantly more stressful for a prisoner and often means a prisoner misses out on the work and rehabilitation opportunities that a sentenced and classified prisoner has available. This is very disappointing conduct by the Commonwealth. In making this criticism I want to stress that I do not hold either private counsel who appeared in this matter, nor his instructing solicitor, to blame.
I will now move on to the substantive reasons.

DISPUTED FACTS

There are factual issues which it is necessary for the Court to resolve as they have a bearing on my assessment of the objective seriousness of the offences. The first issues relate to the quantity of offensive material which falls within sequence 1, the Customs Act offence. The second relates to the number of children the offender sought to be involved in the sexual activity with respect to sequence 5, the Criminal Code offence.
Where there are disputed facts the Crown must prove those facts it wishes to rely upon beyond a reasonable doubt, while the offender need only prove matters on the balance of probabilities. In some cases, it is not possible to ascertain everything that is relevant, especially where an offender chooses not to offer any evidence on the plea, although that was not the case in this matter. Some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed.
By his plea of guilty the offender concedes that he imported what is described as tier 2 good, in this case child abuse material, as defined within s 233BAB(1)(h) of the Customs Act and its regulations. The offender concedes that each of the images and videos referred to in the Agreed Statement of Facts were stored on his mobile phone when he returned from the Philippines to Australia in January 2023.
For an offence under s 233BAB(5) of the Customs Act to be proved, the Crown must prove beyond reasonable doubt that an offender intentionally imported the images and/or videos that form the child abuse material.
While the offender's mobile contained offensive images falling within the tier 2 definition, the offender gave evidence that he was not aware that he was importing the images that had been stored on his phone and which appeared at para 7 of the Agreed Statement of Facts at the time he entered Australia.
The issue to be resolved is whether the Court should assess the offender's conduct in relation to sequence 1 by considering images and videos at para 7, as well as para 14, or simply para 14. It is the offender's submission that if he did not know that the images and videos in para 7 were on his phone then he cannot have intentionally imported them.
The offender gave evidence that while the pictures and videos referred to in para 7 of the Agreed Statement of Facts were on his mobile phone, he had not seen them and was not aware of them, and he was not challenged about this in cross-examination.
The images described in para 7 of the Agreed Statement of Facts are these, firstly, a screen capture of a person described as "Thea the Tondo Girl". This was on a Telegram Channel displaying a prepubescent female aged between 12 and 14 exposing here breasts and vagina. The second image was of a person also described as "Thea the Tondo Girl" and it had 12 images, which included the child sitting on a bed exposing her breasts and vagina, other photos of oral stimulation with her mouth on a male penis and closeup images of genitals. The third series of images was a screen capture of a female aged between 13 and 15 exposing her breasts, laying on her back and a male penis wearing a condom pointed towards her vagina. The fourth group of images involved a female aged between 13 and 15 exposing a breast and displaying the peace sign with her left hand.
The fifth item was a video lasting three minutes and one second which involved a prepubescent female aged between 11 and 13 wearing a pink bra and underwear. The female is seen to take her underwear and bra off and insert her fingers into her vagina. The sixth item was a two minute and 59 second video of a female aged between 14 and 16 lifting a green shirt, exposing her breast and inserting her fingers into her vagina. The seventh item was six minute and three second video, the duration of which involved showing two prepubescent females aged between 12 and 14 wearing a yellow bra and underwear. One female lifts the bra of the other and seductively licks the other child's nipple. The female takes her underwear off and the other female inserts her fingers into the vagina and massages the lips of her vagina.
As I say, that material is set out in the Agreed Statement of Facts, but the issue is not the fact of that material being on the offender's phone but, rather, whether he had seen those videos and had intentionally imported them into Australia.
There are a series of timestamps which I did not read out, but which clearly indicate times recorded after the offender had been placed into custody. Four of the seven images have dates actually postdating the offender's arrest and the seizure of his phone. In other words, the timestamps do not necessarily demonstrate when the offender created or accessed the images.
It is difficult to know what those times mean other than to repeat a phrase that is used in the Agreed Statement of Facts, that is, "some other activity that does not involving viewing the file". Clearly, the Court cannot rely on the dates and times to reflect anything the offender has done with those images and, given the uncertainty as to what those times and date stamps represent, the Court cannot assume that the offender actually accessed the images himself.
During argument, counsel appearing for the Crown, Mr Brown, very fairly conceded that if the images were on the offender's phone as a matter of fact but that the Crown could not prove beyond a reasonable doubt that the offender had intentionally imported them, then the images in para 7, which I have described, could not form part of the evidence upon which the offender is to be sentenced.
Having considered the offender's evidence, the date and timestamps and the parties' submissions, the Court's conclusion is that the Crown has not proved beyond a reasonable doubt that the images in para 7 form part of the conduct falling within sequence 1. Consequently, when I consider the images giving rise to the conduct that does fall within sequence 1, it will be limited to the child abuse material described at para 14 of the facts and which I will shortly detail. I based this conclusion on the evidence that the offender gave during the sentence proceedings and the fact that the Crown cannot explain the time and date stamps which are attributed to each of those seven discrete images.
The second issue between the parties which needed to be resolved was whether the number of children the offender was planning to have sexual activity with was one or two. The person with whom the offender was communicating, who I will refer to as "the facilitator", offered images of four children and the offender expressed an interest in two of them. During the course of these interactions between the offender and the facilitator, they use the Telegram communications app. I will not set out all of the communications between the pair but one of the relevant comments was the offender stating, "All gorgeous but Thea would be the pick. Princess is beautiful too."
One interpretation of this statement is that while he had examined the photos of four children, there were two children which caught his eye, Thea and Princess, and that they were the ones that he wanted to have sexual activity with. In response to this statement, referring to Thea and Princess, the facilitator sends prices for both children and the offender writes, "Fantastic. I will book hotel. Any short-term stay around Tondo or can she come to QC?" That is, the offender's reference is to "she" and not "they". The exchange then continues with the facilitator stating, "You need to avail their content first before booking them." The offender responds, "Okay, can do. Will add 1,000 for one month both."
During cross-examination the offender was asked about a statement which he made on Telegram being that he "will add 1,000 for one month both". It was put to him that this was a reference to payment for both children, to which the offender responded that the reference to "both" was not a reference to sexual activity with the two children but rather obtaining online images of both children. I note that in the exchange between the facilitator and the offender, the offender says, "I definitely want to book a girl as well." The facilitator's message to the offender regarding the prices of both Thea and Princess was that he needed to transport money for payment to both. The offender refers to payment for "them". The facilitator's final message to the offender is "Send the payment sir so I can handle the girls."
The combination of the term used by the facilitator of "them" and later "girls" indicates, in my view, that the facilitator's understanding was that both Princess and Thea were being requested by the offender. However, that only represents what was in the facilitator's mind and does not necessarily represent what was in the mind of the offender, which is clearly the critical matter.
The offender never expressly responds to that final message from the facilitator. He does not reply that he is interested in only one child nor is there an express statement or even a strong inference that he wanted both. On that basis, given the high burden of proof that the Crown has that they must prove these matters beyond a reasonable doubt that the offender wanted to engage in sexual activity with both Princess and Thea, I cannot find that that was a fact upon which I can rely for sentencing. This fact ultimately remains neutral because the evidence is ambiguous.
The factual scenario upon which the offender will be sentenced is this, and this is a summary of the detailed statement of facts which runs to some seven pages.
On 18 December 2022, the offender flew with his family to the Philippines. Once there he began communicating using the Telegram communications app using an account known as GRJ, which it will be readily apparent is the offender's initials. On 6 January 2023 the offender returned from the Philippines to Sydney. He did this in order to return to work, but his family remained in the Philippines. On 7 January 2023 the offender arrived at Sydney Airport. At that time Australian Border Force officers selected the offender for examination of his baggage.
As part of the ABF examination the offender's phone was examined. It was found to contain 1,932 video files and 72,948 image files of which the Australian Border Force officers and police ascertain 11 image files and three video files comprised child abuse material. Some of that material is set out in para 7, which I have already referred to and I will not refer to it again as it does not form any basis upon which the offender is to be sentenced. However, in relation to the Customs Act offence, what is important are the images which are referred to in para 14 of the statement of agreed facts.
The facilitator had sent a number of images to the offender, specifically, two images of a naked pubescent female child aged approximately 12 to 13 with her breasts covered by cartoon symbols. This person was described as "Thea Tondo Girl", which I note is the same description given to a girl in para 7. A second group of images involved two images of a pubescent female child approximately 14 to 16 years of age but clothed and with two images of the same child exposing her cleavage. This person was called Nicole. The third group of images involved two images of a pubescent female child approximately 13 to 15 years of age with her breasts covered by cartoon symbols. Her name was Ailyah. Finally, there was the child described as Princess. The images in this group were three images of a female child approximately 12 to 14 years of age holding a sign that said "Avail walk on Jan 2 2023". They are the images I have taken into account with respect to sequence 1.
One of the critical considerations for sequence 5 is the nature of the activity between the facilitator and the offender. An analysis conducted by the Australian Federal Police officers of the offender's phone revealed that, on 26 December 2022, the offender, while using the Telegram app and using the initials GRJ, had a conversation with the facilitator. I will not set all of the conversation out but I will refer to a number of critical passages. The conversation between the two opened with the offender stating, "Hey, saw your Twitter. Interested. Pinay girls. Loli." It was agreed that "Pinay girls" is a reference to Filipino girls. "Loli" is a reference to Lolita or underage girls.
In response to this opening salvo from the offender, the person with whom he was communicating, who I have referred to as the facilitator, sent two images containing thumbnail previous of videos that appear to show adults and children engaging in sexual activity. This is then followed by a discussion regarding price. The offender responds, "Looks good. I will send soon as I can. I am visiting Philippines. Can I pay GCash with cash somewhere? 7-11 et cetera? Don't want to pay on card."
There is a further exchange with the facilitator to which the offender responds, "Is it possible to find real 13-15 in Manila?" There is then a further exchange between the facilitator and the offender, with the facilitator stating at one point, "Pinay is easy. Pinay chick are fascinated to foreigners." The offender responds to this, "But I want young." The facilitator responds, "Are you for real? I can give you some young chick. How much is your budget?" There is then a further discussion about price.
On 29 December 2022 the offender sent a message to the facilitator informing him that he would be arriving in the relevant area the following Friday. On 30 December 2022 the facilitator then sends the images I have already referred to at para 14. It is at this point that the offender writes to the facilitator that all four of the children are "gorgeous" but that Thea is his choice, while "Princess is also beautiful."
There is then a further discussion between the two about price, with the offender noting at one point, "I need to sneak money away from my wife's view." There is then a further discussion about logistics, with the offender stating at one point, "Fantastic. I will book hotel. Any short-term stay around Tondo or can she come to QC?" The facilitator responded that the offender would need to look at the various photographs first before booking anyone and, in his words, and I think I have already quoted but I quote again, "Avail their content."
The exchange between the facilitator and the offender ended on 1 January 2023 with the facilitator essentially asking for payment so that the children could be organised. There were two further messages sent by the facilitator on 2 January 2023. Importantly, there are no messages from the offender after 1 January 2023. In other words, the relationship appears to end with the offender not responding to the invitations to follow through on the negotiations he had been having with the facilitator as he does not respond to the final messages.
When the offender returned to Australia he was arrested and participated in a record of interview with police during which time he admitted that he had downloaded the Telegram app and that he had communicated with the facilitator and that he had found the link to speak to the facilitator via the social media app called, as it then was, Twitter. The offender made a serious of admissions to police about seeing images of 12 to 16-year-olds available for sexual services and that he was aware that he had child abuse material on his phone. He told police he did not recall having a conversation though with the unknown person I have referred to as the facilitator. He was not completely truthful with police in terms of what would be found on his phone and the nature of his dealings with the person over Telegram. They are the facts before the Court.

GENERAL PRINCIPLES FOR SENTENCING COMMONWEALTH OFFENCES

The offender is to be sentenced for an offence against Commonwealth law which requires the consideration of the Court of pt 1B of the Crimes Act noting that the Court must impose a sentence which is of a severity appropriate in all the circumstances of the offence. Section 16A(2) of the Crimes Act requires the Court to consider the matters listed in that section to the extent that they are relevant.

SECTION 16A MATTERS TO WHICH COURT IS TO HAVE REGARD WHEN PASSING SENTENCE

With respect to s 16A(2)(a), the Court is required to consider the objective circumstances of the offence. 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.
Sentencing principles for an offence of s 233BAB(5) of the Customs Act are set out in cases such as Minehan v R [2010] NSWCCA 140 and also R v Hutchinson [2018] NSWCCA 152. Having determined that the offender's conduct with respect to sequence 1 is limited only to those images at para 14 of the agreed statement of facts, I have considered Minehan and Hutchinson.
In summary, para 14 includes two images of a naked pubescent female aged between 12 to 13 with her breasts covered by a carton symbol, two further images of a pubescent female aged 14 to 16 clothed and two images of the child exposing her cleavage. There were two images of a pubescent female aged 13 to 15 with her breasts covered by a cartoon symbol and three images of a female child aged 12 to 14 holding a sign that said, "avail walk on Jan 2, 2023".
The images depict child abuse material of four children. As opposed to cartoons, for example, these were actual children. The images are clearly used for the purposes of arranging for the offender to engage in sexual activity, which is a matter relevant to sequence 5, as well as what gives rise to sequence 1.
I have not seen the images myself and I am required to assess the matter based purely on the descriptions that are set out in the statement of agreed facts. The children are described to be aged between 12 and 15, so towards the upper end for images falling within tier 2. There is no sexual activity occurring within the photographs. Only two photographs have a child completely naked.
Two images involve a child's cleavage, but they are partly covered. There are seven images which are described of a pubescent female child, including the one holding up the sign. All of the images involve, as I say, actual children. The images do not depict any violence or torture or actual sexual intercourse or sexual activity between the child and any other person or object.
The purpose for the child abuse material being sent to the offender is clearly in order for him to engage in some king of sexual gratification ultimately with these children. There was some payment made for the acquisition of the material as agreed between the parties and this equated to about $AUD25. This would entitle the offender to have access to that material for about one month.
It is unclear what the relationship was between the facilitator and the children but there was clearly some relationship given that he offered to provide these children to the offender. Nothing is known about the facilitator. In my view, there was clearly some relationship between the facilitator and the children given that he appears to have them available. I have considered the degree of planning and sophistication which would have been required to obtain and store the material. The storage may well have occurred on the offender's phone automatically but the offender was aware of the presence of the images at paragraph 14. He had viewed them, he made a selection for them, which is relevant to sequence 5, and he did not delete them.
He has admitted that he intentionally imported these items into Australia. There was communication between the offender and the facilitator over about a five-day period. In other words, it was not a spontaneous decision to obtain and keep those photos. There was a conscious decision to receive the images and to communicate with the facilitator. The offender acted alone and there is no evidence anyone other than the offender saw the images. The Court is not required to rate where on a continuum of seriousness any particular offence sits but, when one takes into account the matters set out in a case such as Minehan and Hutchinson, this offence would appear to fall towards the lower end of objective seriousness.
With respect to sequence 5, this is an offence pursuant to s 272.20 of the Criminal Code. The section creates an offence which appears to be infrequently prosecuted. In fact, this appears to be the first time it has been prosecuted in New South Wales. The section creates an offence in these terms: A person commits an offence if: (a) the person does an act; and (b) the person does so with the intention of preparing for, or planning, an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.
Each of those different sections I have referred to relates to a different type of sexual activity.
Section 272.8 creates the offence of engaging in sexual activity with a child outside of Australia and carries a maximum penalty of 25 years. Section 272.10 is an aggravated version of that offence and carries with it a maximum penalty of life imprisonment. Section 272.9 is the offence of sexual activity other than sexual intercourse with a child outside Australia. This carries a maximum penalty of 20 years. I note this is the underlying offence that the offender has been prosecuted for in this matter. The offence of s 272.11 creates the offence of persistent sexual abuse of a child outside of Australia and carries with it a maximum penalty of 30 years' imprisonment, while s 272.18 creates the offence of benefitting from offences again div 272 of the Criminal Code and has a maximum penalty of 25 years.
The reason that I have set each of those sections out is to indicate that the offence committed by this offender is an example of the least serious charge which is potentially brought within the ambit of offences under s 272.20 of the Criminal Code, that is, the offence of sexual activity but not sexual intercourse outside of Australia.
As submitted by Mr Flood, this necessarily reduces the objective seriousness of his conduct, noting it would have been more serious if he was planning to engage in one of the other offences I have set out.
Little is known about the sexual activity that was planned but there is no doubt, in my view, the offender knew his plans to engage in sexual activity with children was illegal and he gave evidence that this was part of the reason why he sought to cover his tracks by paying for the services in a way which could not be detected.
The offender had some role in being responsible for the selection of the child in that he chose the potential victim or victims from photos that had been sent to him. It was submitted in mitigation that the conduct occurred on four days over a period of one week. While that is true, and accepting he had no direct contact with the potential victim or victims, the reality is that an offence of this nature does not require much in the way of planning. The fact that he did not use sophisticated means to conceal his offending is also of not great significance, in my view.
I accept that the level of sophistication and planning was minimal in that there had been no agreement to actually meet the child nor book a motel nor was a precise time agreed.
The offender voluntarily withdrew from the offending in that he simply never followed through with the inquiries that he had initially made, and the matter rested with the facilitator trying to confirm what arrangements were to be in place. This is important because it means that it is not the case that the planning ceased because of the intervention of law enforcement but rather it would seem the offender having second thoughts about whether he really wanted to pursue this criminality.
This is an important factor to reduce the objective seriousness of his conduct. Written submissions provided to the Court assert that the conduct was, in part, effected by the offender's use of alcohol and that he had been drinking at the time the offences occurred. I am not prepared to accept this as a mitigating factor. This offence, sequence 5, occurred in circumstances where the contact with the person who would supply these children occurred over several days. It was not a spontaneous or one-off series of interactions. The offender engaged with the facilitator on four separate occasions several days apart. The offender's conduct demonstrates a desire to obtain access to the child or children for the purpose of his own sexual gratification and he cannot seek to justify or minimise this appalling conduct by blaming alcohol.
I have also considered his moral culpability in the circumstances of this case, and I have not found that it is reduced to any degree for reasons I will detail later.

Victim

I must take into account the personal circumstances of the victim, which is s 16A(2)(d) of the Crimes Act. I am also required to take into account any injury, loss or damage resulting from the offence, a consideration of s 16A(2)(e) of the Crimes Act, and also s 16A(2)(ea) which talks of any individual who is a victim of the offence suffering harm as a result. In considering those three sections I note that nothing is known about the victims who appear in the images sent to the offender.
Mr Flood concedes that it is an inescapable conclusion that child abuse material causes serious harm to the children who are its victims. There is no doubt there would have been psychological harm to any child involved in this appalling behaviour. These children are young, vulnerable and, I infer, involved in this activity for economic reasons. The amounts the offender, or anyone in his position, are paying for these services are, certainly by Australia standards, tiny. The figures referred to in the facilitator's messages for Thea and Princess are about 2,500 Philippine pesos for two hours of their time. This equates to about $AUD65. In my view, this is a gross example of exploitation, but I note in this case there was, in fact, as the offence makes clear, no actual culmination of the events the offender and the facilitator had discussed.

Contrition for the offence

I am required to take into account the degree to which the person has shown contrition for the offence, a consideration of s 16A(2)(f) of the Crimes Act. The offender gave evidence before the Court in which he expressed his contrition and remorse for the conduct for which is he being sentenced. The offender stated that he regards his conduct as having been unacceptable and that approaching vulnerable in the way he sought to do should be stamped out. I note also in his evidence that he admitted being dishonest with some of the answers that he gave to police when he was initially interviewed by them regarding these matters, and he explained having done so as a combination of being tired from 48 hours' travelling and partly being in shock and the natural inclination not to divulge any information that was unnecessary.
He also gave evidence that, while his phone had a substantial amount of photographic evidence and videos on it, it is only a small fraction of that material which gives rise to these offences.
I found the offender to be an honest and candid witness in his evidence and I accept that he is remorseful. This is also an important consideration when it comes to his rehabilitation of which I believe he has good prospects.

Guilty plea

I am required to take into account s 16A(2)(g) of the Crimes Act, that is, the fact that the offender pleaded guilty to these charges. He did so on 7 February 2024 while the matter was in the Local Court just over a year after he was charged. As this is a Commonwealth offence, the New South Wales early appropriate guilty plea regime does not apply, so there is no mandatory minimum discount for a plea of guilty in the Local Court of 25%.
It was submitted by Mr Flood that the offender should receive a discount for his plea of guilty of 30% in part based on a Victoria decision of Worboyes v The Queen [2021] VSCA 169. In Worboyes v The Queen the Victorian Court of Appeal discounted the offender's sentence by 30% to take into account not only his plea of guilty but to incentivise other accused to plea guilty during the COVID-19 pandemic in order to ease the Court's backlog of cases. The offender's submission in this matter is that he should also have been incentivised to plead guilty in order to clear the post-pandemic backlog and that this warrants a 30% discount rather than 25%. I do not accept that submission.
It is a matter of public record that Victoria had amongst the harshest lockdown restrictions in the world as a result of the pandemic and the Worboyes decision was handed down in that context. In this case the offender was not charged until January 2023, well after the height of the pandemic. Once he did enter his plea in February 2024, 13 months after he was charged, his matter was listed for hearing in this Court within three months. In other words, not only did he not personally suffer any pandemic delay but there does not appear to have been any ongoing COVID backlog which required an accused to be "incentivised" with a plea discount beyond the usual 25%. On that basis I am not persuaded the offender should receive anything more than a 25% discount.

COOPERATION WITH THE LAW ENFORCEMENT

I have also taken into account s 16A(2)(h) of the Crimes Act, that is, the degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence. It was submitted that the offender has cooperated with law enforcement agencies because he participated in a record of interview with the police and he made some admissions regarding his knowledge regarding the existence of child abuse material on his phone and that he was in communication with an unknown person regarding the purchase of sexual services from a child. I accept that and I accept this has a small mitigating impacting on his sentence, but I note that the offender was not entirely honest with investigators and did not divulge what ultimate became many of the facts before the Court for sentence.

SPECIFIC DETERRENCE

I am required to take into account s 16A(2)(j) of the Crimes Act, being the deterrent effect that any sentence or order may have on the person. This consideration refers to specific deterrence. This is not a significant consideration when it comes to the offender given that he is 57 years of age and at the time of offending was 56 and when he has virtually no criminal history and, with the exception of a breach of bail in connection with this offence, the matters on his criminal history are completely different and are over 30 years ago. For the purpose of sentencing him, I am going to treat the offender as if he does not have a record and afford him the full leniency a first time offender would receive.

GENERAL DETERRENCE

I must also take into account the deterrent effect that any sentence or order under consideration may have on other persons, a consideration of s 16A(2)(ja). This section refers to the Court's consideration of general deterrence. I accept the Crown's submission that general deterrence is a key consideration in sentencing offenders for offences of this type. It must be made absolutely clear to the general public that child exploitation is unacceptable in whatever forms it takes. I must also take into account s 16A(2)(k), that is, the need to ensure that the person is adequately punished for the offences.
It was conceded by Mr Flood that the offender must be adequately punished for both offences but, with respect to sequence 5, he must receive a sentence of imprisonment. With respect to sequence 1 I do not consider that the threshold of s 17A has been crossed and I will return to that shortly.

SUBJECTIVE CASE

I am required to take into account the character, antecedents, age, means and physical or mental condition of the offender, a requirement of s 16A(2)(m) of the Crimes Act. This section really deals with the offender's subjective case. The offender tendered an affidavit from his solicitor, Mr James Payten, as part of his subjective case but the issue that affidavit addressed fell away and was no longer relevant at the time of the sentence hearing.
Also tendered on his behalf were two letters of support from the offender's younger sister and his father. There was no evidence from his wife. I have taken those letters of support into account as they are important matters the Court can consider when it comes to his prospects of rehabilitation and to further demonstrate that the conduct before the Court is an aberration from the offender's usual behaviour. The offender also tendered a report from Ms Thea Gumbert, forensic psychologist, dated 2 May 2024. Ms Gumbert's report was received by the Court without objection and she was not required for cross-examination.
The offender gave evidence that he told Dr Gumbert the truth during his consultation with her and I accept that. There was no suggestion in the report that the offender has any mental health issues or suffered any issues of childhood deprivation. It was not suggested to me that there was any causal link between the offending conduct and any underlying mental health or childhood deprivation issues such as to reduce his moral culpability or objective seriousness of the offending. There is nothing in either the report or any of the other subjective material which would justify a reduction in the offender's moral culpability generally.
According to Ms Gumbert's report there are no issues of drug or alcohol abuse, gambling or antisocial conduct, all of which makes the conduct before the Court more inexplicable, notwithstanding the submission that he was using alcohol to a large degree at that time. There is nothing in the report that leads the Court to conclude that issues of general deterrence or specific deterrence should have any lesser role to play in this matter. As part of the subject case the offender also gave evidence. I have already referred to that and I note that I accepted that he was remorseful and contrite in relation to this conduct. This is an important consideration as well when it comes to s 16A(2)(n), the prospects of rehabilitation.
Ms Gumbert assessed the offender as an average risk of sexual recidivism but a low risk of general criminality or harming others. Based on Ms Gumbert's report and the offender's evidence in Court, which included his willingness to potentially engage in relevant counselling, including for sex offenders, and the family support of his father and sister, I find the offender has good prospects of rehabilitation, noting in particular that he has committed to re‑entering the community and working again and being a productive member of society. In making this finding about rehabilitation I have taken into account s 16A(2AAA) of the Crimes Act which emphasises the need for the sentencing court to have regard to the offender's rehabilitation.
The need for rehabilitation is clearly critical, notwithstanding that this is the offender's first offence for an offence of this type or for any other sexual offence. I accept Ms Gumbert's recommendation that he undergo counselling for sexual offenders and will incorporate that into my final orders. However, I am not going to make any orders regarding drug or alcohol programs. I have taken s 16A(2AAA) into account when it comes to setting the sentence for sequence 5.
I am also required to take into s 16A(2)(p) of the Crimes Act, that is, the probable effect that any sentence or order under consideration would have on the person's family or their dependants. This is an important point. The offender has always been employed and has always earnt a good salary and provided for his family. His absence is clearly making matters difficult for his wife and children and he gave evidence about this before me. I have taken this into account as a mitigating factor.

TOTALITY

I am also required to take into account the concept of totality because there is more than one offence for which the offender is to be sentenced. In this case both offences are connected in terms of their timing. They overlap in terms of their nature in that two of the images that appear in sequence 1 are the children referred to in sequence 5. I have also taken totality into account as an appropriate way to mitigate the sentence in accordance with the authorities on this point of totality.

Determination

I have considered the cases the parties have provided to me, as well as the Public Defenders Chamber's table of comparative cases with respect to offences under s 233BAB(5) of the Customs Act. There was no table for offences under s 272.20(1) of the Criminal Code.
With respect to s 17A of the Crimes Act, taking into account the matters I have set out above with respect to sequence 1, I do not consider a full-time custodial sentence is necessary. The offender's primary submission was that an appropriately severe sentence would be a condition of release under s 20(1)(a) of the Crimes Act. In my view the offence is more serious than that.
I had raised with the parties whether a relatively small fine may be appropriate. The offender submitted it could be appropriate if I found the files in para 7 did not form part of the offending conduct in sequence 1. The Commonwealth's initial written submission was that full-time imprisonment was appropriate for both offences, similarly, in its further submissions which were provided to the Court, which are now MFI 6. In those submissions the Commonwealth's submission was that irrespective of whether I found the images described in para 7 as part of sequence 1 or not, a fine is inappropriate, although I note those recent submissions fell short of expressly stating that a custodial penalty was the only option.
During the sentence hearing counsel who appeared for the Commonwealth made a submission about the appropriate penalty in the context of para 7. At transcript p 27 line 37 it was submitted that if the offender did not deliberately import the images in para 7: "I think my learned friend is correct in saying that the threshold would not be crossed because of the relatively small number of files and given the files were directly related to sequence 5. Even if your Honour did arrive at the conclusion that the threshold was crossed, you would probably be looking at a concurrent sentence given the almost complete overlap between the offending."
There is a hierarchy of penalties the Court can impose. There is a discharge without conviction; there is a bond without conviction, a bond with conviction; there is a fine; there are community orders picked up by s 20AB of the Crimes Act and at the top of that hierarchy is imprisonment. The Court must consider what is appropriate in every single case, taking into account objective circumstances and subjective circumstances. Imprisonment is a last resort. I note that a fine is expressly provided for with the Customs Act offence at sequence 1 of up to 2,500 penalty units. I also note the Crown bundle coversheet does not acknowledge this.
At the time of the offending conduct a Commonwealth penalty unit was worth $275, meaning the maximum penalty which could be imposed for a breach under that section was, at the time, $687,500. Section 17A has not been crossed in relation to sequence 1. Having considered all of the available sentence options, in my view, the appropriate penalty for sequence 1 is a fine. It is necessary for there to be some discrete punishment for this offence. A further recognisance release order or even a lengthening of a recognisance would, in my view, be of no utility.
I accept the offender is not in a position to pay a fine while he is in custody and may have difficult financial circumstances when he is released but I have taken this into account in the fine I am going to impose. With respect to sequence 5 and sequence 1 I have taken into account the 25% discount. With respect to sequence 5 I am satisfied that no sentence other than full-time custody is appropriate.

Orders

I make the following orders: 1. You are convicted of both of these offences. 2. With respect to sequence 1, you are fined the amount of $2,100, being roughly ten penalty units less the discount of 25%. 3. With respect to sequence 5, you are sentenced to a term of imprisonment of two years. The sentence is to date from 31 July 2023 and will expire on 30 July 2025. 4. With respect to sequence 5, pursuant to s 20(1)(b) of the Crimes Act, after a period of 14 months you are to be released on a recognisance in the sum of $500 for the remaining ten months of that sentence. There will be terms attaching to that recognisance. They are: firstly, you are to be of good behaviour; secondly, you must be subject to the supervision of a probation and parole officer appointed in accordance with this order; thirdly, you must obey all reasonable directions of a probation officer; fourthly, you are not to travel interstate or overseas without permission of the probation officer; and, fifthly, you must undertake a rehabilitation program designed for offenders convicted of sexual offences, in addition to any other rehabilitation program that the probation officer directs to be undertaken. You are to be released onto this recognisance from custody on 30 September 2024. 5. Finally, pursuant to s 23ZD of the Crimes Act and upon an application of the Commonwealth Director of Public Prosecutions, the mobile phone belonging to the offender and seized by the Australian Border Force on 7 January 2023 is forfeited to the Commonwealth. They are my orders and they are my reasons for sentence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2024

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (3)