R v SW

CATCHWORDS: Use Carriage Service to Transmit Child Pornography - Possess Child Pornography - Offender police officer - Worse case classification of material - Low risk of offending - Suffers from anxiety and depression - Genuine remorse - No prior convictions - Plea of guilty - General deterrance paramount - Low to mid-range objective seriousness - Loss of family, career and reputation - Special circumstances

Crimes Act 1900 LEGISLATION CITED: Crimes Act 1914 (Cth) Criminal Code Act 1995 Crimes (Sentencing Procedure) Act 1999

Cahyadi v R (2007) 168 A Crim R 41 De Simoni (1981) 147 CLR 383 R v Gent (2005) A Crim R 29 Assheton (2002) 132 A Crim R 237 Jones (1999) 108 A Crim R 50 R v Engert (1995) 84 A Crim R 67 CASES CITED: R v Letteri (unrep., NSWCCA, 18 March 1992) Elyard v R [2006] NSWCCA 43 Ryan v Regina (2001) 206 CLR 267 R v Totten [2003] NSWCCA 207 R v Kani [2004] NSWCCA 143 R v Way [2004] NSWCCA 131 Pearce v R (1998) 194 CLR 610 Johnson v R [2004] HCA 15

COUNSEL: Crown: Mr Crowley Defence: Mr Massey

1 On 8 April, 2008, the offender pleaded guilty to the following counts:

Charge 1: Use carriage service to transmit child pornography material Contrary to s 474.19 of the Criminal Code Act 1995. The maximum penalty for that offence is imprisonment for 10 years.

Charge 2: Use carriage service to access child pornography material contrary to s 474.19 of the Criminal Code Act 1995. The maximum penalty for that offence is imprisonment for 10 years.

Charge 4: Possess child pornography contrary to s 91 of the Crimes Act 1900 NSW. The maximum penalty for that offence is imprisonment for 5 years.

2 On 3 August 2007 the offender used the internet from his home in suburban Sydney, New South Wales. During the execution of the search warrant at his home, the offender showed police an upstairs bedside cabinet where there were quantities of compact disks, some of which contained child pornography.

3 On 11 August 2007, police executed a further search warrant at the offender's locker at the Bankstown Police Station. Found in that locker was a video-tape labelled "J Swimming" (the offender's daughter was named J).

4 The police obtained a warrant under the Commonwealth Crimes Act s3LA. The accused then provided passwords to his email accounts. Access to those accounts showed email communications between the offender and a number of other persons globally, showing the exchange of child exploitation material.

5 On the video seized by the police, a male person was depicted, identified as the offender, setting up a video camera. He was touching his genitalia. Subsequently, a 10 yr old girl came into the room removed her swimwear and was then recorded while naked. A second younger girl then entered the room and removed her clothing down to her bare breasts.

6 The offender's wife said that they had lived at the premises for three years with the offender's step-daughter. The offender's wife identified the offender and the two young girls as being her daughter and another one of her daughter's friends. The friend was shown in the video. Subsequent investigations in relation to another video filmed at Port Macquarie identified another 10 yr old girl (Ms SR) having a shower in the bathroom.

7 The offender, was shown covertly setting up the video camera prior to the child entering the bathroom. Further, emails discovered showed the offender forwarding videos of "his daughter's friends" as part of an exchange. Videos depicting Ms SR and Ms RMcD (created in 2006/2007, when the girls were about 8 or 9), and Ms GY (created in 2000/2001), were all found at the offender's home. The video of SR was created in 2001 and was transmitted in October 2007.

8 It appears that the female children being recorded in the bathroom - being the bathroom of the offender - were unaware that they were being video-recorded. That was particularly the case in relation to a 9 yr old girl, Ms RM.

9 The Crown concedes that these images do not constitute child pornography within the provisions of s 91H of the Crimes Act 1900 although it submits that the video of Ms SR which was transmitted to the undercover officer in the US during the transmission the subject of count 1 could be capable of satisfying the definition of child pornography within s 473.1 of the Commonwealth Code.

10 The difficulty as far as the Commonwealth is concerned with the prosecution of this offender in relation to the remaining videos is that other available charges relating to these materials were either not pursued, or not pursued within time. Those are not matters I can take into account - other than generally in relation to the offender's character and the course of conduct in which he was engaged.

11 Hence, these images are not part of the substance of these charges and cannot form aggravating factors for the offence.

12 There were in excess of 7,700 images/still photos recovered from the offender's possession. In terms of classification, there were 4908 depicting child pornography, and one image depicting child abuse. There were 204 videos depicting child pornography and one video depicting child abuse.

13 1670 images of the 4,900 were of pre-pubescent (under 8) children - some including very young children aged between 2 and 3. There were more than 2000 images where the precise subject matter is unclear as to whether there were images of pubescent or pre-pubescent children.

14 Various chat log conversations were identified as between the user of the accounts said to be that of the offender's and various other persons relating to the trading of images concerning pubescent (defined as being from 8 to 14) pre-pubescent (under 8) children.

15 Those records, tendered in relation to the transmission charge, showed a series of conversations and exchanges over a long period of time, expressing a desire for actual or fantasy-type involvement with young girls in a domestic or familial environment.

16 The offender was in possession of, and had transmitted/accessed, still images of child pornography. The offender had thousands of still images which had mostly been "burnt" to compact discs for storage. Other images were stored on the offender's computer hard drive. The offender also had hundreds of videos that had similarly been burnt onto compact discs or stored on his computer hard drive.

17 The offender had labelled many of the records, images and videos in his own handwriting, self-clarifying the material in his possession. The nature and content of the material in the possession of the offender contained images that can be categorised as being in a "worse class" of child pornography. The offender was in possession of, and had transmitted, images including those showing full penetration of very young female children by adults, including in some cases either simulated or oral sexual intercourse, torture/bondage of very young female children, the gross exploitation of children, bestiality (at least suggested in one image that was transmitted) and children in obvious distress.

18 Located within the offender's collection of child pornography images, were 2 videos entitled "Sarah Young boys" and "Becca" which had been created between October 2006 and 25 January 2007. Both these videos contained images of children undressing and showering in circumstances in which the children were unaware that they were being filmed. In addition, within the offender's work area, the AFP located and seized a video labelled "J Swimming" which had been created sometime in 2000/2001. The title relates to his daughter. One image is of Ms GY who was then aged 8 or 9. This video contained images of children undressing, again in circumstances in which the children were unaware that they were being filmed. The particular children were known to the offender at the time of being filmed.

19 Against this background the following specific facts relevant to each charge are agreed:

Charge 1: Use of carriage service to Transmit Child Pornography

20 The agreed facts (Exhibit S2) in relation to count 1 were that images of a pre-pubescent girl wearing a bikini were transmitted from the offender's home computer via the internet. The offender's online conversations indicated that those images were of a 10 year old friend of his 11 year old daughter.

21 The offender accessed the internet through his home computer to transmit 17 images (15 stills and 2 videos) to a person he believed was interested in child pornography. This was done through accessing a chat room so that the offender could seek out other persons interested in child pornography. All of the 17 images transmitted were of children. Of those 17 images, 8 were child pornography material for the purposes of s 473.1 of the Criminal Code. 22 In the course of transmitting the images of child pornography to the undercover investigator in the United States of America, the offender engaged in an on-line conversation with that person. The nature of the conversation demonstrates the offender's attitude to child pornography and offences of the type for which he is to be sentenced. In addition, the offender's comments demonstrate a sexual interest in children and a desire for the offender to act upon such an interest.

23 In particular, during that conversation, the offender:

(a) Expressed statements consistent with a desire to become sexually involved with children ("I would love to have a go I am so horny for it"); (b) Stated that he wished to observe the sexual abuse of a child by another user of the internet ("I recon I would be happy just to watch"... "Please let me know i would love to watch...please"); (c) Revealed that he had videoed his daughter's friend in the shower by way of a concealed camera ("I have videoed my daughters friend in the show once"...[Ok...u set up a secret camera]... "Yes i did, put it under some towels"); and (d) Stated that he had an interest in sexually abusing the girl depicted in the video and photos he transmitted (s3.jpg to Sarah2.wmv referred to at paragraph 5 of the Statement of Facts dated 6 June 2008).

24 The offender denied that he was expressing an interest to become involved, rather, that he was seeking additional information from a person in the form of the undercover agent who engaged him in this conversation. The offender was apparently of the view that that person had known more about that subject than anybody else he had met or come in contact with at that time. An alternative explanation appears to have been, at least inferentially, that the offender was not expressing an actual desire to become so involved but rather being involved in purely conversational and fantasy-type behaviour.

25 I find difficult in accepting the offender's evidence in this regard, certainly that he was simply seeking additional information. I do regard this aspect of his evidence as indicating a minimisation of his involvement and interest in this aspect of the material at that stage of his life.

Charge 2: Use carriage service to access child pornography

26 On 6 August 2007, Mr SW accessed and uploaded images of child pornography to an internet site known as http: //loli-kingdom.com - a site hosted on a computer physically located in Japan.

27 At the time of accessing this site, the offender uploaded several child pornography images to this site, so that they would be made available to other users of the site. At the time of uploading the images the offender "posted" a number of comments with the images he provided. There were at least 7 such images possessed by the offender.

28 The offender indicated that he had child pornography material on hard disk on his computer. Further that he had used the internet to download those images.

29 Further videos and still images also shown as being sent to the offender's email account. 30 These displayed a number of acts as follows:

· 1 x video clip of an adult male performing oral sex on a female child aged 3 to 4 years old; · 1 x still image of a female child aged 3 to 5 years with her legs spread and an adult male penis about to enter the child; · 1 x still image of an adult male penis inside a female child aged 2 to 4 years; · 1 x still image of a 5 to 6 year old female with an adult penis in her mouth; · 1 x still image of a 5 to 6 year old female child playing with an adult penis; · 1 x still image of a 3 to 4 year old female child masturbating an adult male; · 1 x still image of a 9 year old strapped to a weight bench with a dog next to her buttock. This image is part of a known child bestiality series of images; · 8 x still images of the child who the offender said was his daughter's friend. · 1 x video clip of the child who the offender claimed was his daughter's friend. The video clip is entitled "Sarah".

31 The following material was tendered or read on the sentencing proceedings:

32 A pre-sentence report prepared by Mr Phillip Flatman of the Casino Probation and Parole Service dated 2 June 2008 was tendered (Exhibit S4). 33 Also tendered included: · Report of Dr Olaf Neilsen, dated 17 March 2008 (Exhibit S5) · Report of Emma Collins, dated 14 March 2008 (Exhibit S6) · Report of Frederick Joshua, dated 21 May 2008 (Exhibit S7) · Report of Dr Alvin Ng, dated 22 May 2008 (Exhibit S8) · Report of Dr Ian Hayes, dated 3 March 2008 (Exhibit S9) · Report of Helen Murphy, dated 13 May 2008 (Exhibit S10) · Report of Dr Hoque, dated 7 May 2008 (Exhibit S11) · References and testimonials for the offender which speak to his support for and from his family as well as his community and sporting involvement.

35 Federal Agent Green was the case officer in the proceedings who had compiled the brief of evidence.

36 He gave evidence that the titles of the various photographs and videos were in the offender's handwriting. He had prepared a spreadsheet setting material from the loli-kingdom.com website as well as log files setting out the access made by the offender to various sites through his email account, as well as details of his chat room discussions with the American undercover agent.

37 Mr Phillip Flatman of the Casino office of the New South Wales Probation and Parole Service and his supervisor, Mr Bruce Allsop in relation to the preparation and classification of the offender pursuant to the "Static 99" statistical assessment procedure. The material was collected or collated by Mr Flatman and the conclusion made by Mr Allsop.

38 Mr SW is aged 42. He had read and confirmed all the reports of Dr Neilsen and Ms Collins.

Offender's plans 39 The offender understood that he will be sentenced to a term of custodial imprisonment and it seems that the plea was entered with that awareness.

40 Mr SW said that on his release from custody he intended to live with his 26 year old niece, Sandra. She was aware of the circumstances of his offending. However, he thought that that accommodation would be a temporary arrangement as she is getting married. He proposed to get a job in either a meatworks (where he knew some of the employing authorities) or alternatively, in one of the baking shops owned by his sister/niece.

41 He further intended to continue the counselling with Dr Ian Hayes, which he had started in December 2007. He has weekly sessions with a psychologist, Ms Helen Murphy. He had been attending that with counselling with his wife.

42 He said he was working with a charitable group with the Uniting Church in Casino, although he had not informed the authorities of that church of his involvement these offences.

43 He also drew considerable assistance and support from his local Catholic priest, Father Slack at Casino, and proposed that that contact would continue. He had informed Father Slack of the matters relating to his offending.

44 The offender said he started viewing adult pornography when he suspected his wife of having other relationships or another relationship. Their physical relationships then ceased and he started to access adult pornography. Over a number of years, that eventually descended into accessing child pornography sometime around 1999-2000. He said that was a time of intense loneliness for him, other than his close relationship with his daughter. With that background, it is perhaps bizarre that the offender became involved in accessing child pornography, indeed to the extent of trading such images.

45 The offender acknowledged that his addiction had become very powerful and that he had gotten rid of cameras and computers and intended to remain without those items.

46 While the sections of the sample videos and still videos were played in court. I observed that the offender averted his eyes from the images on numerous occasions. He acknowledged the depravity of what he had done and the scene with which he had been associated.

47 What has occurred is a matter of not only embarrassment, in my view, to him but of complete distress. Whether that is part a reason for the depression from which he suffers is unclear to me - that is not my field of expertise. But it does seem to me that he presents as someone with at least two sides to his personality, the public persona and the private persona which very few people saw.

48 Mrs C, one of the offender's older sisters, was present throughout the proceedings. She also gave evidence confirming the offender's account of his dysfunctional and abusive family upbringing as well as the importance of the offender's family to him and the impact of the offences and court proceedings on him.

49 Mrs C also said that she was a practice nurse at the Casino Medical Centre. She had been aware from the time of the DOCS intervention following the offender's apprehension that the offender was forced to leave his home with his wife and daughter and come to Casino.

50 She arranged, through one of the doctors in Sydney, for him to see the psychiatrist, Dr Hayes, and also the psychologist, Ms Murphy. She noted that he was vigilant about going to his appointments and would ensure that he would continue to do so in the future.

51 Having seen and observed Ms C as she gave her evidence, I have no doubt that she is genuine about that and has the personal resources and commitment to the offender, as well as to her family, to ensure that that happens.

52 My C confirmed that the offender was regarded very well by his family, in particular by her children. She was particularly emphatic in her evidence that she would ensure that the offender would continue to have treatment and to mix with appropriate people to ensure that there will be no future re-offending.

53 Dr Neilsen assessed the offender at being at low risk of offending. He confirmed that the offender had been very traumatised by these proceedings. Dr Neilsen considered that there was some reasons for some guarded optimism for the offender's future based on the fact that he had a history of appropriate adult relationships which could be repeated.

54 Dr Neilsen assessed the risk of any further contact offences as being quite low. In particular he thought that the short term risk of any re-offending was not great, but, given the extent of the offender's behaviour, there was a "tail of long term risks".

55 Dr Neilsen confirmed that the "Static 99" psychological tool was a very basic statistical tool, but that on the other tools available, he would also assess the dynamic risk of offending as being low.

56 Ms Collins referred to the absence of any sexual offending history by the offender.

57 She gave evidence of a different statistical tool, the "SVR 20" psychological tool which would assess the risk of sexual violence offences reoccurring as being low.

58 In terms of her interview and a report which she prepared, Ms Collins was not aware of some of the relevant features which discovered when the offender was apprehended, namely, some of the items with which he was apprehended. She said that to give a complete picture and a complete opinion, she may have to have those matters further investigated, they may well have been relevant to a full assessment of the risk of the offender's re-offending. But she did not think that that would have a great deal of impact on his prospects of rehabilitation.

59 Ms Collins said that the risk of sexual violence offences (by which I understand her to mean contact offences) reoccurring was low.

60 Ms Collins said the major problem surrounding future treatment of the offender was the fact there were limited facilities for his supervision in the Casino and North Coast area. The other problem to which Ms Collins made reference was the mood swings and depression suffered by the offender. To be fully effective, Ms Collins thought that the offender might need to relocate to Sydney so that he could receive weekly counselling and close supervision by the Probation and Parole Service.

61 Ms Collins was cross-examined by the Crown Prosecutor at some length as to matters which had not been raised with her by the offender and of which she was not therefore necessarily aware. She thought that those matters may well indicate a lack of insight and a lack of acceptance by the offender of some aspects of his conduct and prior behaviour. I must say that is consistent with my observation of the offender.

62 Ms Collins also expressed the opinion that the offender's daughter had a strong and protective influence over the offender. She considered that the offender should to be close to his family. She was certainly of the view that that was something that he would pursue. Again, that is consistent with my observations of him and the distress that he has experienced by being separated, particularly from his daughter.

63 As I have said, Ms Collins gave evidence in relation to the two psychological tools, the Static 99 and the SVR-20 tool. She said that those two were the best - particularly the SVR-20 tool, was the best available tool at the present time for the assessment of risk against known categories; however, she agreed that neither of those matters address the internet or solely child pornography offences which may be relevant to the people in the classification of the offender. I will indicate my findings on that when I come to the overall consideration of that matter.

64 Also tendered were a substantial number of references (Exhibit S22) from members of his family and friends. These all set out their high regard for the offender and that these offences were out of character for the individual they knew.

65 The pre-sentence report indicated that the offender, age 42, experienced in his youth a history of personal and family abuse by his father which ultimately led to the separation of his parents. He had a number of operations to his genitals at the age of 9. That resulted in him being disfigured and experiencing difficulties as a child, particularly at school. He also experienced a scarring to his genitalia in an operation which led to personal and relationship difficulties.

66 Due to his medical condition he experienced sexual difficulties in his marriage, including low testosterone and low libido. I accept his evidence in that regard. I felt he was genuine about that and it can well be imagined that the impact on him of a perceived breakdown in a relationship with his wife would have had a very considerable impact indeed and may well have provided some explanation, certainly not a justification, but some explanation for his pursuit of adult pornography. However, the sad and probably inevitable result as far as this offender was concerned was that descended into the child pornography area which was what has lead him before this court.

67 The offender is now separated from his wife and 12 yr old daughter and lives with his sister. He apparently has good support form his family members and maintains an amicable relationship with his wife and, as I have said, a very close relationship with his daughter. His sister remained in court throughout the proceedings.

68 The offender left school in Year 10 and worked as a printer. He and his wife operated a dive shop for a period.

69 The offender joined the New South Wales Police in 2003. He resigned from the police due to these offences.

70 The offender has suffered from anxiety and depression for a long period of time, and that led to social isolation with him being unable to confide in anyone or discuss his offending behaviour.

71 Full details are set out in the medical reports. In summary, the offender has a lung disease, sarcoidosis, hypercalcemia, lytic lesions in the lumbothoracic spine. He takes medication to treat his auto-immune disease. He also receives medication for moderate depression.

72 The offender was very distressed when discussing his behaviour and expressed remorse not only for the actions themselves, but particularly for the effect of his actions on the victims. He said that he felt unable to control himself.

73 During his oral evidence, he spontaneously addressed the parents of his daughter's friends of his own initiative - expressing what appeared to be genuine remorse.

74 The application of various risk assessment tests placed him in the "medium low risk" category.

75 The psychological tools used to make these assessments were criticised by the Crown.

76 Dr Neilson maintained his opinion after extensive cross-examination by the Crown that the offender was at low risk of re-offending. He considered that the offender also had good prospects of rehabilitation based. The factors relevant to that are on his extensive and close family ties and support as well as the prospects of employment and accommodation with his niece Recommendations

77 The pre-sentence report recommends the offender's participation in intensive psychological counselling and possible medication for his obsessive-compulsive condition.

78 An offender may be eligible for the CUBIT program in the event that a 20 month custodial period was imposed; alternatively lower risk category inmates are eligible for the CORE 8-10 month program which would follow a period of 15 months in custody.

79 The offender was not seeing a psychiatrist prior to his apprehension.

Different factors under Commonwealth and State legislation relevant to sentence 80 The offences under the Commonwealth legislation are more serious not only in terms of the maximum penalties prescribed but also the activities prohibited - although the Crown argues to the contrary.

81 The factors relevant to the Commonwealth offences are set out in section 16A of the Commonwealth Crimes Act. Those relevant to the state offence are set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 NSW.

82 The approach to be adopted where there are such multi-count, mixed jurisdictional counts with different penalties and different statutory and other relevant sentencing considerations was set out in the decision of Cahyadi v R (2007) 168 A Crim R 41.

83 The particular factors which I regard as being applicable pursuant to s 16A of the Crimes Act 1914 (Cth) are:

CRIMES ACT 1914 - SECT 16A (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct; (d) the personal circumstances of any victim of the offence; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (g) if the person has pleaded guilty to the charge in respect of the offence--that fact; (h) the degree to which the person has co operated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

Section 21A(3) Crimes (Sentencing Procedure Act) 1999 Aggravating Factors

84 All these offences involved and required considerable planning and premeditation - particularly those offences involving the downloading, labelling, storing and trading of materials the subject of these offences.

85 Clearly the offender would have had to search out and access those sites as well as the chat groups where he conducted some of the discussions recorded. The evidence indicates that that took place over a considerable period of time.

86 The offender's evidence made it clear that there was a considerably detailed process involved in accessing material on the internet, downloading it, burning it onto discs, then storing those discs separately and using them for his own gratification and for the purposes of trading.

87 In that regard the offender gave evidence that he had not gone back into those discs, he had simply stored them and kept them. There is no way of having that matter finally determined unless there is expert evidence about access to them otherwise than appears on the logs and exhibits as have been tendered in these proceedings. Nevertheless it does seem to me to be strange that a person of the offender's intelligence and his considerable resourcefulness would have maintained such a collection - particularly when one looks at the transcript to the various conversations which took place in the chat logs - without having further contact with it.

88 As I will say when I deal with the classification of these matters, the particularly distressing factor, as far as a judge such as myself is concerned, or indeed anybody viewing this material, are the substantial number of images of actual or simulated violence to young children, and particularly the images of torture, bondage, let alone bestiality.

89 While there was no direct violence involved to the offender's daughter and her friends, the images in which the offender traded and which he viewed included a substantial number of images of actual or simulated violence to young children.

90 The offender is aged 42 and is married with one dependent child. The offender does not have any prior criminal convictions. He was, at the time of committing these offences a serving police officer in the NSW Police. Some of the material was found in his police locker in the station in which he was then serving.

91 The Crown submits that this is a factor relevant to the sentencing of the offender as the offences were committed by an offender who had sworn an oath to uphold and enforce the law.

92 The Crown submits that whilst the offender might in some respects be viewed as a person of prior good character, such a consideration must be viewed in light of the fact that:

· The offender had previously engaged in other offensive and sexually exploitive conduct with respect to young girls (see further below); and · The child pornography images in the possession of the offender had necessarily been obtained by the offender over a lengthy period of time; and · These considerations must be viewed against the background of the authorities cited below that less weight is attached to prior good character for child pornography offences: see Gent at [62].

93 There were some items of women's underwear and related photographs also contained in the locker. These matters were not disclosed to some of the psychiatrists and psychologists he consulted nor were all aspects of the offender's videoing of his daughter's friends.

94 It seemed to me there is a difficulty that I must be acutely aware of in this sentencing exercise and that is the fact that the videos of the other young girls, the friends of the offender's daughter, are not the subject of specific charges save and accept in the way I have outlined earlier in relation to the transmission charge. Care must be taken by a judge in my position to ensure that the provisions of De Simoni (1981) 147 CLR 383 are not infringed in circumstances that I have outlined them. Plea of guilty

95 The offender pleaded guilty on 8 April 2008 at the first opportunity. There is no issue that the full discount should be applied to both the Commonwealth and State offences. The offender's remorse and contrition, expressed in his evidence in court and in the various reports was in my view, genuine and not contrived.

96 In relation to the Commonwealth offences, the plea had considerable value in facilitating the interests of justice and his willingness to facilitate those interests. In terms of the State offence, there was considerable utilitarian value in the plea and it was a further indication of remorse. Relevant to all the charges is the fact that the plea, given the length of any trial which would have been held, the impact on the time and resources of both the court and the various prosecutorial and law enforcement agencies. A trial of these matters would also have meant that particular care would need to have been taken with any jury to ensure that only proper matters were admitted and that a proper and dispassionate consideration of the evidence was carried out.

97 I do not regard the plea as appropriate to alter the nature of the sentence to be imposed (for example, from a custodial to a non-custodial sentence) having regard particularly to the principles of general and specific deterrence which I am required to consider and the overall factual circumstances of the case.

98 I would specify that the discount applicable to the head sentence which would otherwise be imposed on each count will be 25%. Law General Deterrence

99 The first thing that should be stated is that these are not victimless crimes. There would be no market for those who create pornography by abusing children if there were no users.

100 General deterrence is the paramount sentencing consideration for these types of offences: R v Gent (2005) A Crim R 29, at [100]. Offences of this nature primarily require the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. 101 The Crown submits that the sentences to be imposed upon the Offender must make clear to other like-minded persons within the community that these types of offences are abhorrent and that Offenders will be met with condign punishment to reflect the community's attitude to child pornography. In that regard, the Crown submits that the only appropriate sentences here are custodial sentences. Further, the Crown submits that any custodial sentences imposed upon the Offender must include a significant period of actual full-time custody: see s 17A Crimes Act; s 5(1) Crimes (Sentencing Procedure) Act 1999 NSW.

102 Offences of this type are becoming increasingly prevalent in the community: see Assheton (2002) 132 A Crim R 237 at [35]. The advent of the internet has facilitated the prevalence of child pornography as it has provided a widespread medium that allows people to easily access, transmit and obtain possession of child pornography: see Jones (1999) 108 A Crim R 50 at [2]. The internet provides an anonymous forum for people such as the Offender to commit child pornography offences in privacy and with relative anonymity.

103 That is particularly the case when those offences occur, and involve, international contacts. Those become expensive matters for the law enforcement agencies and that is a price that the community has to bear. It is, however, of less significance in the long-term cost the community has to bear of children being exposed in this kind of activity. The repeated experience of judges of this court including myself is that day after day we see young children turning into adults, turning into offenders who have been in some way shape or form the subject of either child abuse or unfortunate behaviour when they have been exposed at an early age to these sort of matters. I should, however, emphasise that the offender is not charged with any aspect of child abuse. There is absolutely no evidence of that in his past. Nevertheless, the public interest considerations in ensuring that internet and related accessing offences are condemned, particularly because of its impact on the children involved, must be reflected in the sentence imposed.

104 Offending is difficult to detect, however, the internet is widely available and makes offences such as these easy to commit from within the home. The widespread availability of the internet and the difficulty of detecting offences, together with the relative ease by which child pornography can be accessed or distributed, require that offences such as these call for a significant component of general deterrence.

105 The authorities referred to establish that the following factors are relevant to the assessment: · Nature of victim · Age of children · The involvement of the offender with the victim · Acts displayed · Number of images · Period of time over which the images were collected and received

106 In R v Gent (2005) 162 A Crim R 29, the NSWCCA, per Johnson J (McClellan CJ at CL and Adams J agreeing), noted at [99], that a range of factors would bear upon the objective seriousness of an offence of possession or importation of child pornography, including: '[99] As cases such as Liddington , Jones , Assheton and R v C make clear, a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include: a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed; b) the number of images or items of material possessed by the offender; c) whether the possession or importation is for the purpose of sale or further distribution; d) whether the offender will profit from the offence.

It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised.'

107 The Crown submits that these factors would also be applicable to the consideration of the objective seriousness of offences of accessing or transmitting child pornography material under Part 10.6 of the Commonwealth Criminal Code as well as the s 91H Crimes Act offence. The Crown further submits that each of the offences committed by the offender are objectively very serious. I will deal with these factors in terms of my overall consideration of the sentence to be imposed.

108 Counsel for the offender submits that the offender as a former police officer will be held in protection and therefore in conditions inferior to those affecting the general prisoner population.

109 While I accept that it is more likely than not that the offender will be held in protection, I do not have evidence of the inferiority or otherwise of such conditions, insofar as those conditions may affect the additional impact of any sentence.

110 I accept that there will be restrictions on the offender by virtue of his past employment and the nature of these offences. However, as I understand the evidence from the probation and parole authorities, the nature of the offences are such that he is likely to be assessed as suitable for either CUBIT or CORE programs. Indeed, this is a submission advanced on his behalf.

111 The offender also raises the issue of his depression as a mental illness needing to be taken into account, pursuant to the principles established in R v Engert (1995) 84 A Crim R 67 and R v Letteri (unrep., NSWCCA, 18 March 1992). In this respect, Dr Neilson's evidence was that the offender's depression was not linked to any cause of the offences.

112 Here I think it is clear that the offender does suffer from depression. However I do not regard the evidence as such to diminish the offender's culpability, nor such as would impact on the application of the principles of general or specific deterrence.

113 I accept, however, that the addiction from which the offender suffered was a powerful one, that there was a degree of self-loathing and distress on his part as he realised what he was involved in and how much further his participation in pornography at all levels was in complete contrast to his life as a family man, a father and as a serving police officer. The offender also submits that he has good prospects of rehabilitation, based on the principles set out in Elyard v R [2006] NSWCCA 43.

114 Here I consider it clear on the evidence that the offender's past conduct and behaviour was blameless until his involvement in this kind of offence.

115 The professional opinions and evidence make it clear that that past conduct and behaviour, as well as the expression of views about his future, are indicative of his present and genuine desire to remain free of not only the addiction, but also the circumstances in which he would pursue that addiction. That is also consistent with the present and genuine expression of intention on the offender's behalf.

116 Nevertheless, I think I have to be guarded about any findings that the offender, on his own, will be able to withstand the addiction, and the lifestyle which produced it, in the future unless he both receives and maintains professional support and assistance from those close to him.

117 There is reason to believe that such facilities will not be available to him in Casino on a professional level. However, that is where his family and social support systems are in existence. It would seem that both are necessary for him to proceed satisfactorily before there can be any certainty as to his prospects for not offending.

118 Until that is clear, there is some risk of the offender re-offending, unless he is supervised and those close to him accept the need for a structure to be put in place, such that he does not have contact with young people in the categories of those involved in these images which were in his possession that he was trading.

119 The Crown relies on the offender's evidence and his comments in support of the submission that the offender has attempted to minimise his involvement in the relevant offences. The offender is an intelligent man with considerable experience in the various worlds in which he had moved - both publicly and privately. His presentation in the witness box demonstrated both aspects of that presentation - as well as an awareness of the power of the addiction he had had and the causes of that addiction.

120 The offender has acknowledged the extent of the compulsion he experienced, both to Mr Flatman and in his evidence. I do not think that, on his own, he will necessarily have the emotional resources to withstand that addiction in the future if there is a deterioration in his support or social structure.

121 The evidence as to his risks of re-offending by the witnesses put forward is, in part, intuitive and, in part, based on psychological and psychometric tools which are to some extent rudimentary, based on broad classifications and reliant on the input of broad fields of data which in some respects is collected without verification from the offender. Nevertheless those tools are all there is at the moment in this developing area. The Crown does not advance any other objective means of assessment to determine the risk.

122 The Crown places great emphasis on the 3 videos of the friends of the offender's daughter being in his possession and clearly made by him.

123 The factors I have set out are also relevant to consideration of the offender's character. The general approach to the issue of character was considered by the High Court in Ryan v Regina (2001) 206 CLR 267.

124 It does seem to me that I am entitled to take into account the good character that the offender had prior to these offences occurring, but that that would seem to have ceased following the break-up of his marriage, or his perception of the break-up of his marriage, from about 1997. Thereafter, it does seem to me that he lived a double life. Included in that double life was the entirety of the time that he was in the police force of New South Wales. It seems to me there are difficulties in taking that service into account as an entirely mitigating factor, but I do take it into account overall in the sentence that will be imposed.

125 Dr Neilson's evidence that some research indicates that those of prior good character (which is how I regard the accused until at least 1997) have better prospects of rehabilitation or lower likelihood of re-offending than those who have prior records. I will deal with this further under special circumstances.

126 I then turn to the question of the assessing the objective seriousness of the offences. I must say this is a matter which has given me some difficulty because there are three separate offences involving three separate kinds of criminality. Taking into account the context of the material which is different in relation to each of the three counts; the ages of the children involved, again which is different; the kinds of acts displayed, which is again different, it does seem to me that when that is balanced and looked at against the total background of the facts and the circumstances of the offender, particularly in the circumstances he was then in and how that continued, bearing in mind the matters that I have set out, that the charges do not come within the high range or mid range as has been strenuously advanced by the Crown. Nor do I think it can be simply classified as low range.

127 It does seem to me this is somewhere in between low to mid range to the extent that that classification is relevant as it can only be to the determination of the sentence. As I say, a complete assessment of that would require a minute examination of the evidence in relation to each of the three counts. I have set out the facts earlier in these remarks, and as I say, different matters would impact to form to give a lower assessment to some of them and a higher assessment to others, and sometimes internally within the same consideration going to each of the factors.

128 It must be noted that the offender was not charged with creating pornography, nor in the commercial trading of this material. Those matters thus do not arise for consideration.

129 What he was involved in, in terms of the transmission offence and the access offence, were matters which at most could be said to have been for the purposes of trading. There was no commercial motivation other inferentially in that regard, I would have taken a very different view on the matter had that been the case. This does not seem to have been part and parcel of an overall or wider spread conspiracy, save and accept that the offender was clearly involved with chat rooms and the content of his discussion with the undercover agent in America does seem to indicate a familiarity with that vocabulary and language which does seem to suggest a prior association with that kind of world.

130 The offender has been assessed as unsuitable for either a community service order or a periodic detention order. I do not think that a fine or a suspended sentence is an appropriate vehicle to indicate the community's disapproval of this offence nor the principles of general or specific deterrence.

131 In terms of the transmission charge, the offender clearly participated in the international trade of child pornography material. He thereby contributed to creating a larger market for such material. During the course of committing the transmission offence, he also revealed an intention to engage in the abuse of children and to participate in the abuse of children by others. This may well have been a fantasy, but there was very specific and directed conversation, and references to real people.

132 The enormous number of images of child pornography possessed by the offender, depicting thousands of different children, places the offender's conduct in a very serious category of offending. The fact that the offender also had hundreds of videos of child pornography is also a matter that reflects the objective seriousness of the offender's conduct.

133 The remaining images are of persons not known to the offender. Nevertheless, as is frequently said in offences of this nature, these are offences which generate suffering, not only to the young children involved, but also to those with whom they are associated. Further, the transmission and exchange of this material only feeds the powerful addictions and commercial motivations of those involved with this insidious industry.

134 In terms of the factors relevant to the assessment of the criminality of this matter, the victims are essentially in two categories. The first includes most of the relevant images found, some of which are in the "worst case" category. The number of children and their ages, and the period of time over which it was downloaded and was saved.

135 The second include the images of the offender's daughter's friends. Those were all people known to the offender who were obviously in his home as part of an arrangement of implicit trust. I specify again, those materials are relevant only to his character and his course of conduct.

136 As I understand the position, none of the girls were aware of the videos. Given the relationship between the girls and the offender's daughter, it would be artificial to think that these girls would not have known, at least in general terms, at some time what had occurred. However, on the evidence available to me, they do not appear to have suffered any particular trauma arising out of their unwitting involvement.

137 These images do not constitute child pornography within the provisions of s 91H of the Crimes Act 1900. However, the video of Ms SR which was transmitted to the undercover officer in the US (during the transmission of the other material the subject of count 1) showed the young girl undressing, then naked, with close lingering shots of her buttocks and rear groin area. Fortunately, her face was not identified. The video was clearly voyeuristic and a gross invasion of her privacy. That breach was exacerbated by her image being transmitted to others.

138 The girls are not "victims" in the strict sense under s 21A, and for that reason, appropriately, no Victim Impact Statements were filed. Similarly, the parents of SR, are not strictly victims in these circumstances. Nevertheless they were entitled as parents to rely on the fact that their respective daughters were going to the home of a friend where the father-figure present could be trusted. The fact that he was a police officer was something which they could have been expected to rely on, and in which they could have had trust, to ensure that the safety of their daughters.

139 However, I must specify that I am not taking the matter into account as aggravating factors, but being relevant to his prior character and to the possibility of his re-offending.

140 I have set out the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed. On any view the material was graphic, explicit and degrading. It involved substantial numbers of children engaged in actual and (presumably) simulated acts of grossness and depravity - see below.

141 The children involved in the images were mainly pubescent and pre-pubescent - some as young as children aged 2-3. The level of depravity involved in involving children in these kinds of offences, let alone considering the long term and widespread likely emotional damage - and worse - to those involved, is something which must be the subject of condign punishments whenever the courts are called upon to impose sentences for offences of this nature.

142 The acts displayed included acts of bestiality and of cruelty. Whether those acts were simulated or real is not for me to determine, but the acts displaying children involved in oral sex of people, particularly adult males, do not appear to be other than real, graphic and disgusting.

143 The number of images involved as set out above is substantial and displays not only a careful process of acquisition, but also of storage and access. It is unclear precisely how long these images were collected and received but the sheer volume of the images suggests that there was a substantial period of time involved. There were also graphic chat-room discussions such as those to the undercover agent clearly based on that collection. I have difficulties accepting the offender's evidence that he was involved in that particular discussion simply because he wanted to find out more about the subject matter. That is inconsistent with the kind of language used. Although it might have been the stuff of fantasy, there was to me a real demonstration of an enthusiastic desire to become further involved.

144 There is then the separate consideration of the exchange of those materials on an international level. The offender did provide some of the material to others by transmitting it to the undercover police officer in the USA and by accessing the website, 'lolikingdom.com' and uploading material that would then be publicly available. While I accept that the material was not transmitted for the purposes of sale, strictly defined, although it was done in some cases for the purposes of trading and, inevitably, further distribution.

145 The scale of images found within the offender's possession makes it clear that he had been collecting these images over a period of time and that the nature of his offending was neither spontaneous nor impulsive.

146 The content of these videos indicates that the offender has had a long term voyeuristic interest in children in a sexualised sense. There is no evidence - indeed, all the evidence is to the contrary - that that interest extended to any acts of actual physical abuse. The offender did not see anyone professional for treatment in relation to his addiction prior to his apprehension. The offender accepted that he was suffering depression from 1997 but did not commence treatment December 2007.

147 I do not consider on the evidence available to me that the offender's mental and emotional condition was such as to reduce the moral culpability of the offender.

148 As a consequence of his offences he has apparently lost his family, career and reputation. He last saw his daughter 10 months ago. That is a loss he feels keenly.

149 The loss of his career as a police officer and associated superannuation benefits has resulted in the offender now being on Centrelink benefits. Balanced against that is the fact, as I have indicated earlier, that the offender as a police officer was a person on whom the other parents of the children involved could rely, as could the community in a more general sense. The fact that some of the material involved was stored in the offender's police station is an aspect of the offender's overall activity consistent with either the powerful nature of the addiction involved or of reckless and arrogant risk-taking behaviour or possibly a desire to be apprehended.

150 It was submitted that the incarceration of the offender in the NSW corrective system is likely to be harder than for the average prisoner both by virtue of his status as a former police officer and given the general nature of the offences.

151 This is a difficult area given the state of the evidence and the realities of the correctional system and the offender's circumstances. The Court of Criminal Appeal has made it clear (R v Totten [2003] NSWCCA 207, R v Kani [2004] NSWCCA 143, and R v Way [2004] NSWCCA 131) that protective custody of itself does not lead to mitigation of an otherwise appropriate sentence. Further, that, absent specific evidence, the courts should be wary of making an assessment that an offender's time in custody will be more onerous than would otherwise be the case for the general prison population.

152 The offender also has the significant health problems that he does requiring constant medication and treatment. There is no evidence that that medication and treatment will not be available to the offender in the correctional system, but nevertheless I am of the view that his period in gaol will be harder than would normally be the case for prisoners generally by virtue of his general medical condition and the specific debilitating conditions he has - his sarcoidosis.

153 In coming to the conclusions and sentences I will impose I specify that I have taken into account in relation to the Commonwealth offences the factors set out in section 16G of the Commonwealth Crimes Act, in particular, that I have imposed a sentence which is of appropriate severity in all the circumstances. In relation to the state offence I have taken into account the factors set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 NSW. I have specified the factors about and in the course of submissions.

Sentencing for Multiple Offences: Commonwealth and State offences

154 Where sentencing for more than one offence, the preferable course is to fix an appropriate sentence for each offence and then determine whether to order the sentences to be served concurrently or cumulatively in order to arrive at the appropriate total sentence to reflect the criminality before the court: Pearce v R (1998) 194 CLR 610. However, in a suitable case a sentencing judge may arrive at an appropriate result by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed: Johnson v R [2004] HCA 15.

155 Those statements of general principle are complicated by the fact that a sentence for a Commonwealth offence requires a total sentence to be imposed and then the non-parole period. By contrast, the state sentencing procedure requires the nomination of the non-parole period and then the balance of the term or parole period.

156 Here it is urged by the Crown, on instructions from the Commonwealth DPP, that the most serious offence is the state offence. That would have the effect of attracting the imposition of the higher ratio pursuant to the NSW Crimes (Sentencing Procedure) Act. I disagree. True it is that the facts relevant to the state offence involve a greater number of images but in my view, the reality is that the criminality involved in transmitting and accessing child pornography is of a higher order. The maximum penalties established for the Commonwealth offences are also twice that for the State offences.

157 There are separate offences involving different kinds of offences and criminality. As I have already indicated, I consider that the facts in relation to each offence disclose a discrete and different kind of criminality.

158 In my view these factors require that the sentences imposed be marked by some degree of partial accumulation which I consider should be of the order of six months in relation to each of the offences. Special Circumstances

159 It was urged upon me by Counsel for the offender that I find special circumstances based on the offender's age, the fact that he has no prior offences and the availability to him of a supportive family and real prospects of employment and assistance. I think he is also an intelligent man who realises that he will have but one opportunity to re-establish his position with his daughter, family and community.

160 The expert evidence appears to be that he has a low risk of re-offending. That is a view which I have hesitated before accepting. I have some concerns that that risk will only be at that level in the event that the offender remains in contact with his family who will provide him with close, essentially supervisory accommodation and employment, emotional support and an insistence that he attends the professional psychiatric and psychological assistance he has recently commenced.

161 Balanced against those factors are the facts that the offender proposes to live in the small town of Casino where it is likely that he will experience some social ostracism and where there are not the state agencies available to ensure a constant monitoring of his progress. However, if he was to move to Sydney where such services are available - to the extent that they are - through state government agencies, he would lose the real benefit and advantages of his family support on all levels. I consider that his isolation in those circumstances coupled with his existing depression and other medical and associated problems may well mean that he would spiral downwards towards compulsive and addictive behaviour.

162 In general in sentencing in relation to Commonwealth matters, an appropriate non-parole period falls between 60 and 66 and 2/3 % of the head sentence although this is not an absolute rule. The state ratio as prescribed by s44 of the Crimes (Sentencing Procedure) Act is 75 % unless varied following a finding of special circumstances.

163 Here I have found such circumstances to exist warranting the adjustment of that proportion.

164 Balancing all those factors I indicate that the statutory and other ratios applicable in relation to each offence should be varied such that the non-parole period should be 62% of the head sentence in each case - although this is not a strict mathematical exercise. That reflects my assessment that the Commonwealth offences are the more serious of the charges, the different principles inherent in the Commonwealth and State regimes and the different range of adjustments inherent in those offences.

165 As I have set out above, I am required to sentence the offender in accordance with the provisions of s 16G of the Commonwealth Crimes Act.

166 The offender was in custody on these offences for 4 days. The sentence will commence with effect from 16 June 2008.

167 After indicating the proposed sentence, the Crown reminded me of the impact of the provisions of s 19AB(1)(d) of the Crimes Act 1914 Cth which effectively requires that where a court is sentencing on a federal sentence which exceeds in aggregate three years, the courts must fix a single non-parole period in respect of those sentences. This would effectively require the aggregation of the two non-parole periods. This can be achieved in these circumstances by imposing in relation to counts 1 and 2 a non-parole period of two years imprisonment to commence from 16 June 2008 and to expire on 15 June 2010. The imposition of a further fixed term of imprisonment of fourteen months to be served on a non-parole basis in relation to count 3 to date from 16 June 2009 and to expire on 15 August 2010 will maintain the effect of these sentence on that count which was the maximum that I thought appropriate for Mr SW to serve in respect of that sentence. The imposition of a fixed term does, I am satisfied, do justice to the offender and also to the structure of this difficult legislation. The total effect of the sentence would therefore be that Mr SW would serve a head sentence of three years and three months imprisonment commencing on 16 June 2008 and expiring on 15 September 2011 with a non-parole period of two years and two months imprisonment, commencing on 16 June 2008 and expiring on 15 August 2010.

Charge 1: Use Carriage Service to Transmit Child Pornography Material Section 474.19 Criminal Code Act 1995.

The offender is sentenced to a term of imprisonment of 2 and ½ years commencing from 16 June, 2008 and expiring on 15 December 2010.

Charge 2: Use Carriage Service to Access Child Pornography Material Section 474.19 Criminal Code Act 1995.

The offender is sentenced to a term of imprisonment of 2 and ½ years commencing from 16 March 2009, and expiring on 15 September 2011.

Single non-parole period for Charge 1 & 2 pursuant to s 19AB(1)(d) Crimes Act 1914 (Cth)

The offender is sentenced, in respect to charge 1 & 2, to a single non-parole period of 2 years, commencing from 16 June 2008 and expiring on 15 June 2010.

Charge 4: Possess Child Pornography Section 91 Crimes Act 1900 NSW.

The offender is sentenced to a fixed term of imprisonment of 14 months commencing from 16 June 2009 and expiring on 15 August 2010.

The total sentence will be a head sentence of 3 years and 3 months imprisonment, commencing on 16 June 2008 and expiring on 15 September 2011, with a non-parole period of 2 years on the Commonwealth charges, with the fixed term imposed for the State charge commencing from 16 June 2009 and expiring on 15 August 2010.

Recommendations as to treatment while incarcerated.

(i) the offender be processed quickly and that the Correctional authorities consider in terms of the offender's classification and location, the fact that he was a former police officer, the nature of the offences and the offender's current medication and medical needs - including his treatment by Dr Joshua.

(ii) the offender be considered for placement on the CUBIT or CORE programme at the first available opportunity.

On his release to parole, the offender will need to comply with all directions of the NSW probation and parole service including:

a) Compliance with any programme nominated by that service b) Compliance with a supervised program established or put in place by that service. c) Provision of details of his place of address and place of employment within 7 days of arranging such accommodation and employment d) Details of any electronic equipment that he may purchase or utilise other than for banking or commercial purposes. Section 166 Certificate

Two further offences (which were commenced out of time and the charge number details of which are on the court record) are dismissed.

A copy of these remarks on sentence should be forwarded to Dr Hayes, Ms Helen Murphy, the Casino Office of the New South Wales Probation and Parole Service.

The Crown has sought a forfeiture order in relation to the computer hard drive and the disks involved. That is not opposed by the offender.

Instructions have also been received from the offender's wife - who is apparently a part-owner of the hard drive to consent to that order provided that she receives copies of family and other personal photos and images on the computer.

I will make that order to take effect from when the offender's wife receives the personal and other images requested.

29/08/2008 - Delete name to reflect non-publication order - Paragraph(s) 3, 18. 01/09/2008 - Amendments re non-publication order - Paragraph(s) 40, 48, 49, 51, 52, 167

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.