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[2025] NSWDC 521
General information, not legal advice.
District Court of NSW
2025-12-09
Newlinds SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Smith [2025] NSWDC 521
Hearing dates: 4 December 2025
Date of orders: 9 December 2025
Decision date: 09 December 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision: (1) For Counts 1 and 2, after deducting 10% for the plea of guilty, there will be an aggregate sentence of imprisonment of 4 years to commence 2 April 2024 and expire 1 April 2028.
(2) The minimum non parole period is 2 years and 6 months, to commence 2 April 2024 and expire 1 October 2026, which is the first date the Offender will be eligible for release.
(3) Pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000, that the Offender is to be a registrable person required to be recorded on the NSW Child Protection Register for a period of 8 years commencing from 1 October 2026, to expire 30 September 2034.
Catchwords: CRIME — Sentence — Child sex offences — Using carriage service to solicit, access, and possess child abuse material — Significant quantity of child abuse material across a number of devices
SENTENCING — Sentencing procedure — Expert reports — Expert opinion — Report of psychologist demonstrated in cross examination to be misleading and containing opinions not based on reasonable grounds — Importance of experts expressing opinions for the purpose of sentencing to exercise caution and care
SENTENCING — Relevant factors on sentence — Moral culpability — Mental health — Remorse and insight — Prospects of rehabilitation guarded — General and specific deterrence given significant weight
SENTENCING — Proper construction of s 3J of Child Protection (Offenders Registration) Act 2000 (NSW) — What are the mandatory requirements for a court in order to comply?
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) s 3C; s 3I
Crimes Act 1914 (Cth) s 16A; s 17A; s 19
Criminal Code (Cth) s 474.22(1); s 474.22A(1)
Child Protection (Offenders Registration) Amendment Act 2024 (NSW) s 3J
Cases Cited: R v Clarkson (2011) 32 VR 361
R v Bredal [2024] NSWCCA 75
R v De Simoni (1981) 147 CLR 383
R v Idaho (a pseudonym) [2025] NSWDC 427
RG v R [2025] NSWCCA 36
R v Porte [2015] NSWCCA 174
Category: Sentence
Parties: Rex (Crown)
Joshua Smith (Offender)
Representation: Counsel:
S Goodwin (Crown)
N Blaker (Solicitor) (Offender)
Solicitors:
CDPP (Crown)
Michael Vassili Lawyers (Offender)
File Number(s): 2024/122093
Publication restriction: Nil
In October 2022, Joshua William Smith (“the Offender”) was 35 years old. He lived with his partner in Layla Park, New South Wales.
One day in October 2022, the Offender’s partner looked through his mobile phone and found several images of naked children. She confronted the Offender and asked him to move out of their shared residence. The Offender apologised and promised that he would get help and would stop looking at photos of naked children. The relationship continued.
About a year later, the Offender’s partner was using the Offender’s mobile phone where she again found images and videos of naked children. She again confronted the Offender and discussed these photos with him. The Offender told her that he was on a waiting list to see a psychologist and the relationship continued.
In March 2024, the Offender and his partner had an argument. The Offender threw his phone onto the bed and told his partner to check it. The Offender’s partner checked the phone and yet again found images of naked children on it.
The Offender’s partner confronted him about what she had found. The Offender told her that he had not mentioned the child-abuse material to his psychologist.
In April 2024, the Offender’s partner decided to inform the police of what was on the Offender’s phone and did so.
On 2 April 2024, New South Wales Police executed a search warrant at the Offender’s premises and located a number of mobile devices. In total, they contained more than 123,000 separate files, most of which contained child-abuse material. He was arrested and charged on that day.
The Offender was charged and originally pleaded not guilty to a number of offences. He has been remanded in custody ever since 2 April 2024.
On 11 August 2025, being the first day scheduled for his trial, the Offender was rearraigned and pleaded guilty to the charges for which he is now to be sentenced. Those charges and the maximum penalties are as follows:
| Count | Offence | Date and description | Maximum penalty | | 1 | Criminal Code (Cth) s 474.22A(1) | Between about 23 June 2020 and 2 April 2024 the Offender possessed child abuse material obtained using a carriage service. | Imprisonment for 15 years and/or 600 penalty units | | 2 | Criminal Code (Cth) s 474.22(1) | Between about 23 June 2020 and 2 April 2024 the Offender accessed, cause to transmit and transmit child abuse material, using a carriage service. | Imprisonment for 15 years and/or 600 penalty units |
Under s 16A(2)(g) of the Crimes Act 1914 (Cth) ("Crimes Act"), the Court must take into account the fact and timing of the guilty plea and the degree to which the facts and timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence. A plea of guilty can also be, in some circumstances, relevant to the subjective question as evidence of genuine contrition.
The mandatory discount scheme provided for in the New South Wales legislation does not apply to federal offences, although under that scheme he would be entitled to a 10% reduction in what would otherwise be his sentence for the utilitarian value of the plea, and I see no reason to not afford him that discount.
The parties have not been able to agree as to all of the facts for sentencing. Many are agreed but some are not.
The factual matters about which I am satisfied beyond reasonable doubt, are that, on the various mobile devices in the possession of the Offender at the time of the execution of the search warrant, were approximately 120,000 files, a significant proportion of which containing child abuse photographs and/or videos. It is clear that the Offender had accessed, by swapping images with like-minded individuals, that material and caused it to be downloaded, at least, for his own gratification. He then transmitted much of that material to himself so it could be stored on other devices and USB sticks as a backup. This all occurred over a period of some years leading up to his arrest in 2024.
It is not clear exactly how much duplication there is as between the images, but it is clear that there is a very substantial quantity of at least many thousands of different images and videos involved.
Specifically, I am satisfied beyond reasonable doubt as to the following:
At the time of his arrest, the Offender was in possession of approximately 123,000 files, a significant proportion of which were child abuse material.
Many of the images had been obtained by the Offender causing their transmission to himself. Most of the child abuse material had been obtained by trading and exchanging with other people. The Offender must have provided a large amount of child abuse material to others.
The Offender had accessed all of it and viewed most of it before or after downloading it. All the images downloaded to the USB’s were further “accessed” by the very act of downloading.
In order to obtain the child abuse material, the Offender had actively, over a lengthy period of time, caused child abuse material to be transmitted to himself and had transmitted child abuse material (at the very least by way of trading it/exchanging it with others) at times in chats with multiple participants over a period of over 3 years.
It is necessary to emphasise that the Offender is only being sentenced for the non-aggravated version of s 474.22(1). It is important, when assessing the objective seriousness of the offending and when considering the totality of the criminality involved, that I do not take into account that the sharing with others might have occurred on more than three separate occasions because that would engage an aggravated version of the offence, carrying a greater penalty (s 474.24): R v De Simoni (1981) 147 CLR 383. I proceed on the factual basis that the sharing with others did not occur on more than 3 occasions.
In addition to any other relevant factors, the Court must specifically take into account the matters listed in s 16A(2) of the Crimes Act that are relevant and known to the Court.
The overarching requirement imposed by Part lB is that the Court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence", having considered the non-exhaustive list of matters in s 16A(2) that are relevant and known to the Court.
Section 17A provides that a Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case. However, as the offences are Commonwealth child abuse material offences, there is a presumption of full-time imprisonment unless “exceptional circumstances” are found.
The applicable principles and factors in sentencing for offending involving child abuse material are uncontroversial and well-established.
The objective seriousness of such matters is ordinarily determined by reference to the following factors:
Whether actual children were used in the creation of the material.
The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
The number of items or images possessed.
The proximity of the Offender's activities to those responsible for bringing the material into existence.
The degree of planning, organisation, sophistication and/or deception employed by the Offender in acquiring, storing, disseminating or transmitting the material.
The age of any person with whom the Offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the Offender.
Whether the Offender acted alone or in a collaborative network of like-minded people.
Any risk of the material being seen or acquired by vulnerable people, particularly children.
Any risk of the material being seen or acquired by people susceptible to act in the manner described or depicted.
Any other matter in s 16A of the Crimes Act (Cth) bearing upon the objective seriousness of the offence.
General deterrence is a significant consideration for offending involving child abuse material and the online sexual exploitation of children. This is because of the prevalence and ready availability of child abuse material on the internet, and the need to protect children online from sexual abuse, given their vulnerability.
Specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations. The question of likelihood of re-offending is clearly central to the important consideration of protection of the community from ongoing offending by the offender. General deterrence also has a significant protective factor against other potential offences by other people.
The possession, transmission, or accessing of child abuse material creates a market for the continued corruption and exploitation of children. It is a crime that is notoriously difficult to detect.
There is a paramount public interest in promoting the protection of children. Online child exploitation offences and offences involving activities such as the production or possession of child exploitation material are not victimless crimes - children continue to be sexually abused and degraded to supply the market. Because of the nature of the internet and its infinite ability to store material, children are forced to suffer the indignity of images of them being available in perpetuity.
The quantity of child abuse material possessed by the Offender was, to say the least, significant. There were at least 100,000 separate files containing child abuse material in the Offender’s possession at the time of his arrest. The material was contained across five separate devices. I am satisfied beyond reasonable doubt that the material was downloaded deliberately by the Offender and was accessed by the Offender for the purpose of his sexual gratification. The period of time during which the material was possessed by the Offender was also significant, being between January 2000 and 21 April 2024 and so it is clear that the offending was not an isolated occurrence. I am also satisfied beyond reasonable doubt that the Offender did not act alone. He was part of chat groups with like-minded people where he would share and download the material. He traded and exchanged the material, and he must have provided a large amount of child abuse material to others. The Offender used hidden encrypted apps to disguise his activities, and he kept material on USB sticks as backup.
The child abuse material depicts real children. The nature of the material is appalling, depraved, and confronting, often involving children as young as 4 to 5 years old engaged in both penetrative and non-penetrative sex acts with adults, which inevitably would have involved considerable pain and humiliation.
On behalf of the Offender, it is submitted that there are no acts of actual violence “outside the acts themselves”. That is true, but in my view, is of little moment. Sexual penetration of a young child is, if nothing else, violent, inevitably very painful, and, to any right-thinking person, a form of torture.
I feel it necessary to set out some examples of what can be seen in the files so as to explain my finding that the offending is objectively extremely serious, with the Offender’s criminality for Count 1 falling well above what might be described as the middle of some sort of range, and in relation to Count 2, falling at the middle of the range. I set out these examples only to demonstrate the disgusting and depraved nature of the images. It is the nature of these images combined with the quantity of images, together with the time period over which the offending occurred that, to my mind, makes the conduct a serious example of this type of offending.
Those examples of material found on the Offender’s devices are as follows:
A video depicting a pre-pubescent female child, aged about 10 years old, naked from the waist down. The child was sitting on a naked adult male with an erect penis. The child grabbed the adult male’s penis and inserted it into her vagina.
A 2-minute video depicting a pre-pubescent female child about 5 years of age. The video shows the adult male inserting his erect penis into the child’s vagina.
A 40 second video depicting a prepubescent female about 13 years of age. The female bends over with her anus and vagina exposed. An adult male inserts an erect penis into her vagina or anus. The video cuts to the child with the erect penis in her mouth before the male has ejaculated.
“The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.”
Section 16A(2)(k) of the Crimes Act emphasises the fundamental obligation of the Court to "ensure the person is adequately punished for the offence". The Court must have regard to the maximum penalties applicable and determine the extent to which the Offender's conduct offends against the legislative object of suppressing the online transmission and possession of child abuse material.
As I have said, general deterrence is of particular significance when sentencing for offences involving child abuse material, given the difficulty of their detection and the substantial public interest in promoting the protection of children in the online environment.
The sentence to be imposed on the Offender must make clear to other like-minded people within the community that offences of this type are considered abhorrent, reprehensible, and totally unacceptable by right thinking members of the community and that offenders will be met with punishment reflective of the broader community's attitude, as expressed by Parliament in the maximum penalties, towards activities involving the online sexual exploitation of children.
There is also a need here for specific deterrence. I am satisfied beyond reasonable doubt that the Offender's conduct discloses that he has a sexual interest in young children. For reasons I will come to, I do not accept the opinion of Mr Albassit, psychologist, that there is an absence of paraphilic disorder, nor do I accept that the offending was not deliberate or sexually motivated. I reject Mr Albassit’s opinion that the conduct of the Offender suggests an absence of paraphilic interest. Whilst there may well be other causes, including the Offender’s diagnosed conditions of Bipolar disorder and PTSD, the root cause of this behaviour must be a sexual interest in children. That is the obvious and inevitable inference from what he did. He has made many promises in the past to stop yet has been unable or unwilling to do so. A significant penalty must be imposed so as to bring home to him the essential need for him to stop this behaviour.
The Offender is a 38-year-old man. He is separated from his former partner. He was arrested on 2 April 2024 and has been in custody since that time, referable only to this offending.
On behalf of the Offender, there has been tendered a Report of a psychologist Sam Albassit dated 15 October 2025 and a number of character references.
From that material, I am satisfied as to the following.
The Offender has been diagnosed by Mr Albassit with:
Post-Traumatic Stress Disorder (severe range);
Bipolar Disorder (severe range);
Generalised Anxiety Disorder (severe range).
Mr Albassit considers that these conditions materially contributed to the offending behaviour. In his Report, he states that the Offender’s:
"engagement with child abuse material appears to have occurred during a period of emotional instability and diminished self-control, reflecting an attempt to numb or distract himself from overwhelming internal pain rather than any paraphilic or deviant sexual motivation."
I reject the notion that there is no direct sexual motivation involved. There obviously was and it was deviant, sexual motivation and, in my view, paraphilic. I accept the other identified disorders contributed to the offending, but the direct and immediate cause of the offending was the Offender’s perverted sexual interest in young children. The contribution of the other disorders is material, but the fundamental cause was his sexual motivation, which he was unable to control. I consider the other identified disorders to have a limited connection with the offending but nonetheless take that into account in favour of the Offender as part of the explanation for his conduct.
Mr Albassit prepared a reasonably lengthy Report containing his diagnosis of the Offender, various opinions as to why the Offender did what he did, together with his prognosis, and a treatment plan.
Mr Albassit gave oral evidence and was cross-examined. I was disappointed by Mr Albassit’s evidence, not because I felt he was not trying to assist and tell the truth in his oral evidence, but because the cross-examination exposed what I considered to be a number of significant errors and overstatements of opinion in the written Report which Mr Albassit eventually conceded had to be withdrawn. The upshot of the cross-examination was that large and important portions of the Report were demonstrated, not just to be misleading, but, in many ways, simply wrong. Some of the opinions expressed were not only not based on reasonable grounds but turned out not to be the opinion of Mr Albassit at all.
In particular, in his Report Mr Albassit said the following (my emphasis):
“In this context, the possession and transmission of child abuse material can be understood as an emotionally driven, self-destructive act occurring in compromised emotional regulation and impaired reflective control, rather than a deliberate or sexually motivated offending.
…
Mr Smith’s presentation, history, and disclosures do not indicate features consistent with a Paraphilic Disorder. He does not report persistent sexual arousal patterns, fantasies, or urges towards prepubescent individuals, nor evidence of recurrent, distressing sexual preoccupation with such material. Rather, his behaviour appears situational and emotionally driven, occurring during a period of psychological instability and compromised judgment associated with Bipolar Disorder, PTSD, and chronic emotional dysregulation.
…
The absence of paraphilic interests, coupled with his intact moral reasoning and motivation for change, suggests a strong capacity for rehabilitation.”
In my opinion, Mr Albassit had no reasonable basis to conclude that the conduct of the Offender was “not deliberate or sexually motivated”. It was obviously deliberate conduct and was clearly sexually motivated. Mr Albassit conceded as much in cross-examination. I also consider that his statement that the Offender “did not have any indicative features consistent with a paraphilic disorder” was unjustified and plainly wrong. The fact is the Offender presents with a multitude of features which are consistent with a paraphilic disorder. Finally, the statement “the absence of paraphili**c interests" ought not to have been made. The very offending itself demonstrates paraphilic interests. Mr Albassit was unable to explain why these statements of opinion were in his Report, although he accepted they were not actually his opinions and ought not to have been made.
Mr Albassit was confident in his opinion that a diagnosable paraphilic disorder was not apparent because he identified that some of the features indicative of such a diagnosis were not present, that is there was no physical contact with children and no grooming involved. Mr Albassit conceded that it was not necessary to reach a diagnosis for all of the recognised indicators to be identified, yet his only explanation for his conclusion was the absence of some of them. If correct, his conclusion would mean that any person who’s conduct is limited to large-scale viewing and storing of child abuse material on the internet does not have a paraphilic disorder. That cannot be right.
Mr Albassit’s evidence was disappointing. This Court routinely relies heavily on reports such as Mr Albassit’s for the purpose of the very difficult and nuanced exercise of determining an appropriate sentence for offenders.
Such reports are more often than not received on an unchallenged basis and the Court ordinarily, in those circumstances, proceeds upon, not just the factual accuracy of matters set out in the report, but also that the opinions expressed are not just the genuine opinions of the author, but are reasonably based.
It is very important that professionals providing such opinions to the Court understand the importance of their role in the administration of justice and the significant weight that is often given to their opinions.
Professional people providing opinions to a Court for the purpose of sentencing need to be conscious that caution and care must be taken before any opinion is expressed. This is particularly so of psychologists who strictly are not qualified to provide opinions as to medical diagnoses, but routinely do in sentence hearings, knowing that such opinions are usually acted on.
In my opinion, the Offender clearly has paraphilic interests.
I have no doubt that those interests, whether they be a diagnosable mental health condition or not, were the driving force in the offending.
The Offender experienced significant childhood trauma including:
Sexual abuse at age 8 by an older female;
His subjective belief as to severe emotional deprivation and criticism from his father;
Persistent bullying throughout his schooling;
Development of self-harm behaviours and suicidal ideation from age 15.
The Psychological Report establishes the required causal nexus between this trauma history and the offending. Mr Albassit specifically notes the "developmental pathway linking trauma exposure to emotional dysregulation, impulsivity, and maladaptive coping behaviours that culminated in his offending conduct." I accept that part of his evidence.
While childhood trauma does not excuse criminal behaviour, it provides important context for understanding the offending and reduces moral culpability: RG v R [2025] NSWCCA 36 at [78].
While the Offender’s guilty plea was entered at the District Court stage rather than Local Court, it still demonstrates acceptance of responsibility and saved the community the cost of a trial.
The utilitarian value of the plea should be recognised, particularly given it spared the need for technical evidence about the material's nature and content.
It is true, as the Crown points out, that the plea was in the face of an overwhelmingly strong Crown case. However, the reason the case was so strong was because of the full admissions made by the Offender.
Mr Albassit’s Report records the Offender demonstrated "genuine remorse for his offending behaviour" and "expressed a strong awareness of the seriousness of his actions and the impact they may have had on victims."
The Offender’s statement in his ERISP that "the thought of it in the real world, I wouldn't think of it" demonstrates clear cognitive understanding of the wrongfulness of his conduct. His expressed desire to "get the help that he knows he needs" shows genuine commitment to rehabilitation.
I accept that the Offender is generally remorseful and understands the reasons his conduct is wrong. He knows he needs help if he is to change his ways.
The character references from Neil Smith (father), Sudarini Smith (mother), and Josephine Smith (sister) demonstrate strong family support despite their shock at the offending. Each family member commits to supporting the Offender’s rehabilitation.
Upon release, he will have:
Stable accommodation in the family home;
Ensuring engagement with psychological counselling;
Employment in the family carpentry business.
The Offender has no prior criminal history at age 38. His work history demonstrates consistent employment in carpentry, including obtaining trade qualifications and working in the family business for seven years.
While good character carries less weight in child exploitation matters given the need for general deterrence (R v Porte [2015] NSWCCA 174 at [71]-[72]), it remains relevant to overall assessment and rehabilitation prospects.
It is not to be overlooked that the Offender’s partner had, over a number of years, confronted him with his offending and the Offender had repeatedly promised her that he would stop and seek treatment for what he acknowledged to her was a problem.
The Offender did neither. He continued to offend and sought no treatment, or if he did, he gave incorrect histories to those treating him, including that he had stopped his involvement with child abuse material..
It is against that background that the important question of his prospects of reoffending needs to be considered. There is a paucity of evidence against which to judge the question.
That is not to say that I consider the Offender has no prospects of rehabilitation. Of course, he does. However, on the evidence before me, I have no information to make any judgement as to the likelihood or otherwise of him being rehabilitated. Accordingly, I proceed upon the basis that his prospects of rehabilitation must be guarded and, therefore, his chances of reoffending are relatively high.
This is an important factor to be taken into account on sentencing because, firstly, it is necessary to give significant weight to the principle of specific deterrence, and secondly, there is a necessity to protect the community from further offending by the Offender.
As offences under Subdivision D of Division 474 of the Code, Counts 1 and 2 are relevantly ‘Commonwealth child sex offences’ within the meaning of the Crimes Act. The effect of s 20(1)(b)(ii) is that, if a court determines to sentence a Commonwealth child sex offender to imprisonment but release them on a recognizance release order, there is a presumption that they will serve some period of actual imprisonment unless there are “exceptional circumstances” that justify the offender being released immediately on a recognizance release order. This amendment was intended to ensure “that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes”.
The meaning of “exceptional circumstances” has recently been considered in the decision of R v Bredal [2024] NSWCCA 75 where Dhanji J (with whom Harrison CJ at CL and Button J agreed) set out the relevant principles at [58]-[64] of his Honour’s judgment.
The offences are serious examples of this kind of offending, and on the basis of the material, there are no exceptional circumstances warranting immediate release of the Offender.
I am satisfied that, having regard to the nature of the offending, the considerable objective seriousness of that offending, the significant need for both general and specific deterrence, the applicable maximum penalties and what I consider to be the risk of him reoffending balanced against what I consider to be a not overly powerful subjective case of the Offender, notwithstanding his good prior record, remorse and contrition, his mental health conditions together with his difficult childhood, that appropriate indicative sentences, before the 10% discount, are 3 years and 2 years respectively. After deduction of 10% for the guilty plea with some rounding in favour of the Offender, my indicative sentences are:
Count 1 – 2 years’ and 8 months’ imprisonment
Count 2 – 1 year and 9 months’ imprisonment.
While s 19(5) of the Crimes Act creates a presumption against cumulative or concurrent sentences in respect of the two Commonwealth offences, s 19(6) provides that the presumption does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of the severity appropriate in the circumstances, provided it gives reasons for doing so. I am so satisfied.
There is here a significant overlap between Counts 1 and 2 because a large amount of the accessing and transmission offending involved child abuse material that was necessarily already in his possession.
For these reasons, I consider that there should be a significant, although not total, amount of accumulation between the sentences. I have decided to impose an aggregate sentence of 4 years. I am satisfied this aggregate sentence is the appropriate punishment for the offending and is proportionate to the criminality involved.
There will be a non-parole period of 2 years and 6 months. I have adjusted the standard non-parole period provided by the State regime in his favour because I consider that a longer period under supervision will assist his chances of rehabilitation.
The sentence will be taken to commence on 2 April 2024.
The Child Protection (Offenders Registration) Amendment Act 2024 (NSW) came into effect on 29 September 2025. This Act made significant amendments to the Child Protection (Offenders Registration) Act 2000 (NSW).
Relevant to this case, s 3C, as amended, requires a sentencing court to make a registrable person order in respect of people sentenced for a registrable offence on or after 29 September 2025. Section 3-I requires that the Court's order must specify a reporting period calculated in accordance with s 3-I depending on the class of registrable offences for which a person is sentenced and other matters.
Here, Count 2 was an offence committed prior to 29 September 2025 and was a registrable offence prior to the commencing of the amending Act. It follows that, the Offender having pleading guilty to that offence and a sentence having being passed, I must make a registrable person order against the Offender. Section 3-I provides that, it being a class 2 offence with the Offender having only ever been found guilty of a single class 2 offence, the reporting period must be eight years.
I therefore propose to make such an order specifying a period of eight years to commence on the first day the Offender becomes eligible for parole.
I have previously tried to construe s 3J of the provisions so as to work in circumstances where an offender is not present in Court but rather is attending via AVL: R v Idaho (a pseudonym) [2025] NSWDC 427 (“Idaho”). At the risk of repetition, I consider the only mandatory requirements to be the verbal explanation required by s 2(b) and arranging the provision of documents as required by s 2(a).
The question boils down to this; is the mandatory requirement imposed by the use of the word “must" in any way circumscribed by the proviso "including if the person is not physically present in the court" and/or the provision of subs (4).
The word “may" in subs (4) either leaves the question of such requirements to the discretion of the Court or rather might mean the “may” is directed to a choice between a subs (a) requirement or a subs (b) requirement. By reference only to the words used, I tend to think it is the latter. If that be right, subs (4) may cause real, practical, and logistical issues for both the Court and Corrective Services. However, where the words are judged in their context and by reference to their purpose, I consider the former construction the better one.
I will make a registrable person order under the CP(OR) Act, making you a person required to be recorded on the NSW Child Protection Register for a period of 8 years commencing from 30 September 2026. The end date of the reporting period may be automatically extended for a number of reasons, including if at any time you are in custody.
You will be subject to reporting obligations throughout your reporting period, under which you have an ongoing obligation to make reports of particular information to police within a particular time period.
A written notice of your reporting obligations will be provided to you to sign, acknowledging that you have been notified of your various reporting obligations. You should read the document carefully and seek legal advice if you do not understand it. It is very important that you clearly understand your obligations.
Your reporting obligations include that you will need to make an initial report to a police station, attending in person with identification documents, within 5 days after your release from custody (30 September – 6 October 2026), or otherwise after the date of sentence. You must complete an initial personal information report, providing various personal information, including with respect to your address, tattoos or identifying marks, your work, your club or organisation affiliations, vehicles you use, your use of communication devices and communications services, any prior criminal record or time in custody in NSW or elsewhere, your passport details, any travel outside NSW and any contact or residence with a child.
Throughout your reporting period you must then further report in person to a police station within a specified period of time if there are any changes to relevant reportable circumstances. You must also report in person to a police station to complete an annual report each year.
You must also report information to police with respect to any intended international travel, or travel within Australia outside NSW, and after returning to NSW.
During the reporting period, you may also, without notice, be subject to checks by police to ascertain if you are complying with your reporting obligations. Under s 16C of the CP(OR) Act, police hold powers to enter properties or vehicles to conduct these checks and may require you to cooperate in police gaining access to data held in any electronic devices.
Sections 17 and 18 of the CP(OR) Act provide for offences of failing, without reasonable excuse, to comply with reporting obligations, or of furnishing false or misleading information in connection with complying with reporting obligations. Such offences are punishable by imprisonment of up to 5 years or a fine of $50,000, or both.
For those reasons, my orders are as follows:
For Counts 1 and 2, after deducting 10% for the plea of guilty, there will be an aggregate sentence of imprisonment of 4 years to commence 2 April 2024 and expire 1 April 2028.
The minimum non parole period is 2 years and 6 months, to commence 2 April 2024 and expire 1 October 2026, which is the first date the Offender will be eligible for release.
Pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000 (NSW), that the Offender is to be a registrable person required to be recorded on the NSW Child Protection Register for a period of 8 years commencing from 1 October 2026, to expire 30 September 2034.
Direct the Court Registry to provide a copy of the Registrable Person Order to Corrective Services and direct Corrective Services to then provide a copy of the Registrable Person Order to the Offender.
Direct the Court Registry to provide a copy of the Registrable Person Order to the NSW Commissioner of Police and to the supervising authority of the Offender.
**********
R
Smith [2025] NSWDC 521
(2011) 32 VR 361
(1981) 147 CLR 383
Such offending is not mitigated by the fact that an offender did not profit from the offending, did not pay for material, or was not involved in the distribution or sale of the child abuse material.
As I have said, as to accessing the child abuse materials on the various devices, there is a significant degree of doubling up. There are, however, many thousands, perhaps tens of thousands, of individual files that are separate examples of child abuse material.
I reject Mr Albassit’s opinion to the contrary and, whilst I accept that the Offender does suffer from PTSD and bipolar disorders and that the emotional deregulation caused by them was a contributing factor to the offending, I consider the position to be simply that the root cause of the offending was the fact that the Offender has a deviant, sexual interest in young children.
This leads to a real difficulty in the prognosis and recommended treatment sections of Mr Albassit’s Report. His diagnosis, insofar as it rules out a paraphilic disorder, must be rejected. Upon that basis, his prognosis and treatment plan must also be rejected because they both proceed on a false premise, viz. that all that needs to be treated are the PTSD and bipolar disorders.
That all being said, I accept that the moral culpability of the Offender is reduced by the contribution of his mental illness to the offending. The need for specific deterrence is also somewhat moderated given the mental health drivers. However, the fact is the Offender has some form of paraphilic disorder, whether or not he strictly meets the diagnosable criteria. In lay terms, he is a paedophile. In the context of his failed past attempts to stop, unless and until that is properly treated, he presents an ongoing danger to the community, which factor pulls very much in the opposite direction to the finding of reduced moral culpability which I have just made.