R v Tubby

Catchwords: CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

Legislation Cited: Commonwealth Crimes Act 1900
Commonwealth Criminal Code
Crime (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited: De La Rosa [2010] NSWCCA 194
Hutchinson [2018] NSWCCA 152
R v Bredal [2024] NSWCCA 75

Category: Sentence

Parties: Commonwealth Director of Public Prosecutions (Crown)
Liam Michael Tubby (Offender

Representation: Counsel:
Mr McGuiness for the Crown
Mr Cochrane for the Offender
Solicitors:
Commonwealth Director of Public Prosecutions for the Crown
James Fuggle Rummery Solicitors for the Offender

File Number(s): 2024/00049645

JUDGMENT

Introduction

1. Liam Michael Tubby (“the offender”) appears for sentence in respect of four matters under the Commonwealth Criminal Code (CCC) and a further matter under the New South Wales Crimes Act. The offences are referred to in the exhibits by way of their sequence number. The below table sets out the five offences by reference to the sequence number, the section of the legislation, date of alleged offence, a brief statement as to what constitutes the offence and the maximum penalty. There is no standard non-parole period in respect of the New South Wales matter and there are no matters to be dealt with by way of either a Form 1 under NSW legislation or by way of a section 16BA schedule under the Commonwealth Crimes Act (CCA).

| Seq | Sec | Date | Description | Max term | | 4 | 474.22(1) | 2.5.23-21.1.24 | Transmitted child abuse material (CAM) | 15 yrs | | 9 | 474.22(1) | 4.10.20-5.2.23 | Accessed CAM | 15 yrs | | 11 | 547E(2) | 8.2.24 | Possessed bestiality material | 3 yrs | | 12 | 474.22A(1) | 23.6.20-8.2.24 | Possessed CAM (6818 videos) on a data storage device and used a carriage service to obtain or access the material | 15 yrs | | 16 | 474.19(1) | 10.7.19 | Accessed child pornography | 15 yrs |

2. I take the maximum sentences into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offence so as to assist in arriving at the appropriate sentence.

3. The facts of these matters are set out below. The agreed facts suggest very serious offending extending to the transmission of child abuse material (sequence 4), and accessing and possessing almost 7000 child abuse videos (sequences 9 and 12). Yet the case for the offender in relation to sequence 4 is to rely on evidence of he and his sister on oath suggesting that the material that he forwarded to others had been sent to him in circumstances forming part of blackmail activity requiring him to then forward it to others. As to the accessing and possession of almost 7000 child abuse videos the offender seeks to explain it away as being something that appeared as a link on his screen late at night and which he then stored on the cloud along with his other legal pornography. The contention is that volume of material was barely looked at by the offender, was accessed by him by clicking on a link that had appeared as a link in his snapchat app, and which he stored in his “prawn” folder on his “mega” account, which is cloud based. This leaves sequence 16 as the remaining Commonwealth offence which involved the possession of a small number of videos, namely seven, and the State bestiality charge which the Crown accepts is not the most serious example of such offending.

4. I have set this out at the beginning of these reasons because the accused seeks to persuade the Court that if the facts as contended for by him are accepted then those facts together with his subjective case give a basis for a finding of exceptional circumstances with a consequence of him being released immediately upon a release recognisance order. In short, the argument, which requires considerable examination, is that sequence 4 should be significantly mitigated due to the non-exculpatory duress involved, sequences 9 and 12 should be viewed as matters where the offending has little moral culpability, and with the remaining counts being minor.

The facts and objective seriousness

5. Chronologically the order of the offences is sequence 16, 12, 9, 4 and 11. Sequence 16 is alleged and admitted to have occurred on or about 10 July 2019. It strikes me as odd that sequence 12 is said to have occurred in a date range that commences (23 June 2020) prior to sequence 9 given that sequence 12 is the possession of the material whereas sequence 9 is the accessing of it and one would think logically that in order to possess something you must first access it. Sequence 4 occurs in the period 2 May 2023 to 21 January 2024 and there is then the bestiality charge arising from what was found on the search on 8 February 2024 at the offender’s residence. The facts will be set out in that order.

Sequence 16

6. The offence is accessing 7 videos of child pornography. The access was made by the offender via the “Mega.nz” application. In order to do this the offender created an account on “Mega.NZ” which is referred to as a file hosting application. In this instance therefore, the videos are not possessed by the offender, but rather he gains access to the videos by accessing the file hosting application, and for which purpose he created his account on 10 July 2019. The facts state that the 7 videos were within a folder named “man boy fuck”. The facts are somewhat unclear because for this offence this folder is not described as being the creation of the offender, (which in light of all the facts would seem as a matter of common sense likely, but this sequence is not approached on that basis) but rather a folder which he has accessed, which is different to how the facts are stated for sequence 12.

7. A sample description of one of these files is of a prepubescent child approximately 2 to 4 years old being anally penetrated by an adult male penis.

8. I note the various factors of a nonexhaustive type referred to in Hutchinson [2018] NSWCCA 152. The sample is obviously a grave example of this type of material. The number of videos is small.

9. The Crown places this at the lower level of objective seriousness based on the low number of files. For largely the same reason the same submission is made by the offender. I accept the position adopted by the parties given the low number of videos involved.

Sequence 12

10. This offence is of possessing 6818 videos in the form of data held in a computer or data storage device. Given the number it seems to be the follow-on from sequence 9. So sequence 9 is to access the material whereas sequence 12 is to possess it or have control of it.

11. The agreed fact is of the offender intentionally possessing on his mobile phone 6818 videos of CAM. The agreed facts here specifically refers at par 33.1 to the “man boy fuck” folder on the mega account as “his” (the offender’s) folder (also referred to in sequence 16), where the offender possessed 8 videos of CAM, and at 33.2 states that the offender had accessed these videos on 10 July 2019. In contrast to sequence 16, which was charged as an “access” offence and referred to the same folder created on 10 July 2019, the offence here is of possession. Sample descriptions of these 8 videos are as set out above in connection with sequence 16.

12. Some material or files had been created on 10 July 2019 and were still present on the day of the arrest nearly 5 years later. The fact is that international users accessed the files within the folder created by the offender on two dates in 2023 and on a day in 2024.

13. Within what is described as the offender’s “Prawn/cough” folder on his Mega.NZ account the offender possessed a total of 6802 video files containing CAM. Sample descriptions of this material are set out below in connection with sequence 9. The offender does not dispute this fact, which is agreed. The offender nevertheless gave further evidence concerning this material. That evidence was that the “Prawn” folder is located on the Mega site. The offender gave evidence that the “Prawn” folder was where he stored all of his “18+”pornography. Within that folder is another folder, labelled “Cough”. It is within that “Cough” folder that is found the 6802 videos containing CAM. There is no dispute as to that structure of the filing or data storage on the Mega site. What is disputed is the offender’s evidence as to how the “Cough” folder and its contents came to be stored on the mega site.

14. The offender’s version is that he would often spend time late into the night on the internet playing video games on his laptop, and would also play music on spotify, and would communicate with other people on the “discord” app, and he would also browse, including on tiktok. In doing this there would be 3 desktop screens, and an ipad also in operation, as well as his phone. The picture painted is of a veritable communications centre. It was in these circumstances that the offender stated that he was playing a video game when he received a link in snapchat. The offender opened the link on the mega app and on doing so realised it was CAM. He either does not know or does not remember who sent the link. The offender says he did not look at the CAM in depth, and that he looked later. He did not see all of the content at first; he did see older men doing sexual acts with younger children. These 6802 videos were on the offender’s Mega account from 23 June 2020 until the search warrant was executed on 8 February 2024.

15. In cross examination the offender agreed that the receipt and storage of these 6802 videos had no connection to the blackmail he alleges (which is asserted in relation to sequence 4). The facts do not state how often the “Cough” folder was accessed. In re-examination he stated that he looked at the material “once or twice”. An example of the material in the “Cough” folder is given at [21] below.

16. The offender also saved videos on his phone though these numbered only six. The activities depicted were of the child about 5 masturbating the penis of a child aged about 14; a male adult having anal sex with a child about 8 and of females performing sex acts on prepubescent males.

17. For reasons given in connection with sequence 9, I reject the contention of the offender that the possession of the 6802 videos which came to him via a link on his snapchat app was akin to happenstance, and should be considered less serious as a result, though as will be seen below the accessing and storing of that material can be considered as opportunistic as opposed to actively sought after, which allows a less serious assessment of the matter than otherwise may have been the case.

18. The Crown accepts the connection between this offence and the sequence 9 matter as the large majority of the files are the same in each case.

19. At the same time looking at it in isolation this is as equally serious as the sequence 9 offence given the volume and nature of the material. To the extent the offending overlaps with sequence 9 the principle of totality will play a role. I note the position of the offender is largely in line with this view in this regard.

Sequence 9

20. The offence is accessing CAM. This offence has three components. Firstly 6802 media files containing child abuse material by the mega.NZ application and being the same 6802 files subject to sequence 12; secondly, six videos of child abuse material sent by a deleted account on the Telegram application. These six videos appear to be a different six videos to those referred to in respect of sequence 12 as sequence 12 does not refer to the Telegram app, and no description of those six videos matches that given at par 10 of the facts relating to sequence 9. Thirdly, seven videos and two images of child abuse material from another telegram account.

21. The facts give examples of this material. An example from the mega account (that is, from the 6802 videos in the Cough folder) is of a male child 4-6 years old being anally penetrated by an adult male penis. The child appeared asleep, unresponsive or paralyzed.

22. An example of material from a deleted telegram application which had sent the material to the offender was of an adult male violently anally penetrating a two-year-old male with the child visibly and audibly in distress. It was of two minutes 46 seconds duration. On viewing this material the offender stated to the deleted account user “I bet you want to be the guy in the fourth video” and he “should do some babysitting”.

23. An example from the other telegram account was again videos of adult males forcibly performing anal sex on prepubescent male children. There was also a video of a child performing oral sex on adult males and male children.

24. The offender stated (to I infer the provider) “I’d love to see you with a kid in person”.

25. The Crown submission is that this is a rolled up count encapsulating 3 occasions of accessing CAM between 23 June 2020 and to August 2022. The Crown relies on the large number of files involved and that it was a continuing course of conduct over a significant period. In other words, whilst the facts refer to three occasions of access, the submission is that the access continued on an ongoing basis over a two year period.

26. The Crown relies on the self evidently serious nature of the imagery which I accept. It is dehumanizing and brutal and extending to toddlers as young as 2. That there is not present some other features referred to in Hutchinson such as torture does not mitigate the matter but simply demonstrates that one can envisage even worse treatment.

27. The accused makes the point that the agreed facts do not make it expressly clear the number of times the material was accessed. It is difficult to accept that this material was only viewed on the occasion they were initially accessed. All of the surrounding facts and circumstances going to the behavior of the offender allow in my view for a finding beyond reasonable doubt that he was accessing this material more than on the initial occasion though it does remain the fact that just how often it was viewed cannot be said.

28. The argument of the offender to the effect that he was somehow the victim of circumstance concerning the 6802 files in the “Cough” folder does not withstand scrutiny. His account is that he stores in his Prawn folder 18+ pornography, implicitly if not expressly arguing that he is not interested in the CAM. Yet as the other offending demonstrates, he is no stranger to CAM, albeit the balance of CAM is minimal without being negligible in number. On his own account, in respect of the 6802 files (the Cough file) knowing that the link that appeared on his screen contained CAM, he saved it to his folder of pornography on the Mega site. On his own account he later accessed it “once or twice”. The fact is, not only did he store it knowing the nature of it, but he kept it for more than 2 years (sequence 9) and for more than 3 ½ years (sequence 12). I observed the offender say in his evidence that he accessed the material “once or twice”; in my view that description was not intended as a statement of precision, but rather was a more generic statement. Favourably to the offender the precise number of times the material was accessed cannot be stated; at the same time I am satisfied beyond reasonable doubt that it was more than “once or twice” following the initial viewing when the link arrived late at night.

29. What we are left with in respect of sequence 9 is the access occurring over a lengthy period and more frequently than just on the three occasions in question though just how much more frequently cannot be determined and therefore favors the offender; the CAM in question are extreme examples of child abuse albeit that more extreme examples can be envisaged. I accept the Crown’s submission that this is offending which is a serious example of its type. The contention of the offender is to similar effect, that is that the offending is in the mid range of objective seriousness. Although my findings of fact are adverse to the offender, I would adopt the assessment of the offending being in the mid range of objective seriousness, noting my finding below at [84] of the initial accessing being opportunistic.

Sequence 4

30. The offender transmitted 43 videos and three images of child abuse material to telegram uses. The detail in the facts suggests the number is 48 videos and 3 images, however it may be some were the same. The lower number of 43 is what will be taken into account.

31. This offence is of the offender having received the child-abuse material himself then forwarding or transmitting it to other users of the telegram account. This is a rolled up offence as there were five different transmissions of videos and or images, and one occasion of transmission of CAM by way of written communications. It is noted that the conversation as to bestiality is relied on only as context evidence.

32. Examples of what was being transmitted include anal penetration of a three-year-old by an adult male penis; and a group of 4-10-year-olds performing oral and anal sex on each other.

33. The offender engaged in conversation with the other account user agreeing with the idea about how good it would be to engage in such activity.

34. The facts then set out lengthy passages of conversation between the offender and another account user concerning sexual activity with children including a supposedly 13-year-old brother of the deleted account user. The conversation is explicit and concerns children as young as two and as to raping them in public toilets. There is also reference to the other person’s mother.

35. The conversations are so depraved that to suggest that some person free of any paraphilic interest as the offender contends would seek to please some unknown person by acting in this way is rejected. That conclusion is supported by the psychological assessment of Mr Whittingham that states the offender developed paraphilic interests (see page 7 of the report).

36. As with sequence 16 the Crown recognizes the modest number of videos involved. At the same time it shows an involvement in this type of conduct beyond just personal satisfaction but rather promoting it to others. It occurred over a period of five months. That period was from May to October 2023 in respect of transmitting the videos and the imagery; the conversation relied on occurred later, on 20 and 21 January 2024. The CAM involved is in line with the earlier matters and is severe.

37. The accused makes the point that it cannot be established that the different identified users are not the same person.

38. It is for this sequence 4 that the offender seeks to rely on non-exculpatory duress, specifically that he says that in respect of the five occasions between May 2023 and October 2023 that CAM was transmitted he did so because he was imposed upon to do so and was told that if he did not transmit it as instructed then a photograph of the offender naked and revealing his face and with an erect penis would be distributed on the Internet. The evidence of the offender was that he had forwarded that photo to somebody he thought that he could trust but rather they blackmailed him to hold some material that he never wanted to be a part of.

39. Significantly upon the offender’s arrest on 8 February 2024 he gave a version of events to the police. That version included telling police that he had put images of himself on an onlyfans page but without showing his head and he had sent nude photos showing his head to one or two people between 2018 and his arrest. It was one of these people who then engaged in the alleged blackmail and is said to be a person by the name of Brandon Lane. He at first thought the blackmail threat was a joke but was told they were serious and he was then scared. He told police the person’s name was Brandon Lane and that he was from either Bathurst or Orange and was a real estate agent. He had met Brandon Lane over the Internet and had never physically met him. In his evidence he was asked if others blackmailed him and he said yes. He said he was under the impression that they knew Brandon Lane and they said to him that he knows what they want and to send it to the telegram account. He also said that Brandon Lane would send the usernames that he should send it to. He named some people that he was told by Brandon Lane to send the material including a man named Fynn.

40. He said that he first received the image of himself that he had sent, that is as I understand it he received the naked photograph of himself back prior to the Lismore floods in February 2022 and possibly in 2021. He did not tell anybody expressly but rather put a message on Instagram and Snapchat saying that if you receive a message from a particular account do not look at it and delete it. He did not have the courage to go to the police or his family about it.

41. In cross-examination it was put to the offender that there was no blackmail involved and he rejected that.

42. The offender’s sister gave evidence. She is three years younger than him and is presently at university in Canberra. She gave evidence that a few years ago she received a message or had seen posted by her brother a black screen stating that he was being blackmailed and that some people have nude images of him and to please ignore it. She said that was in about 2022 prior to the floods. Whilst her recollection of this message or post was not precise she was firm in stating that there was reference to blackmail.

43. She also gave reference as to receiving Exhibit 3 which is a Facebook message from Brandon Lane. It is dated 13 March 2024 so more than two years after the alleged threat and blackmail.

44. The message was as follows:

Hi sorry you don’t know me but I am friends with Liam and I’m just a bit concerned he hasn’t opened or replied to my messages for nearly a month and was just wanting to see if he’s okay I’m worried about him.

45. The chronology of this alleged blackmail is unconvincing. The threat is said to be made prior to February 2022 and yet no material is demanded to be forwarded until May 2023. The email of concern at least on its face of Brandon Lane is five months after the last of the transmissions of videos, and just over one month after the offender was arrested and lost access to the internet. It could well be that the message from Brandon Lane was a genuine inquiry as to the offender’s well being.

46. Favourable to the offender is the fact that he did give his version of events when first interviewed by police and he did make reference I find to his sister and others of blackmail at about the time he says the threat was made.

47. The difficulty for the offender is the disconnect between the timing of the threat and any action taken in response to it. Further only three of the five transmissions are said on the facts to come from “babyboi685”, which as I understand it is meant to be Brandon Lane, or at least a source connected to him, though I note the offender's evidence that others blackmailed him. A further difficulty is that the scheme seems to make no sense; the illegality involved in forwarding the material to the offender so he can forward it to others seems to be conduct constituting an offence just as much as if the person sending it to the offender sent it directly to the person the offender is sending it to. Further still it may well be and I accept that as the sister says there was some talk of blackmail of the offender; that does not connect it to what happened in May to October 2023.

48. For these reasons I am not satisfied that the conduct constituting sequence 4 was a result of non-exculpatory duress. In making that finding as noted I do accept the evidence of the sister but the evidence does not rise to a level that would satisfy me that was connected to the conduct of sequence 4.

49. The conclusion I reach is that bearing in mind the nature of the material, the volume of it and the number of transmissions that it falls below the mid range but is nowhere near approaching the lowest range.

Sequence 11

50. This is under the State legislation and is to possess bestiality material of 114 media files again by the mega nz site.

51. In this offence there were 114 media files of which 56 were unique. There is a nine minute 59 second long video of two adult females with a male dog with the dog having vaginal sex by penetrating the vagina with the dog's penis, ejaculating and then licking the woman’s vagina. The same is on a second video involving a horse.

52. The Crown says that there is a low level of sophistication in the possession of the material, presumably given the name of the folder, which was “bestiality”. The Crown position is this is not the most serious example of offending of its kind.

53. The offender relies on the number of individual files and the period of possession (though that cannot be determined on the agreed facts). That point must be to suggest it is not known just how long the material had been on the phone.

54. I take a different view to the parties. This is not an animal licking the genitalia of a human but of vaginal penetration of a woman by a dog and by a horse. How much worse could it be? We do not know on these facts whether or not the women were consenting, but there must be cases where to subject yourself to this treatment, and to be subjected to it, is without consent or occurs in circumstances of exploitation, so there is a need for additional deterrence as a result, beyond that which would signal the opprobrium of society to such conduct. The matter is a serious one, tempered by the relatively low number of files. I find it to be approaching the mid range of objective seriousness.

Subjective case

55. The offender was born on 25 September 2000 and so is presently 24 years old and at the time of his arrest on 8 February 2024 was 23 years old. The offender has no criminal history. There is therefore a basis for leniency due to these offences being the first offences of the offender though it should also be noted that this offending occurred in the date range viewed overall commencing in 2019 and ending in 2024.

56. The offender is entitled by reason of his early plea and its utilitarian value to a discount on his sentence of 25%.

57. A sentencing assessment report was prepared and was dated 4 February 2025.

58. He has an employment history but is presently unemployed. He lives with his parents.

59. The offender expressed remorse and a desire to address his behaviour. He identified the effect it had on the victims.

60. He is suitable for community service work.

61. He was assessed as a low risk of reoffending.

62. There was also a structured case note written by a psychologist with the New South Wales Corrective Services.

63. The report notes the offender would not be suitable for Corrective Services sex offender programs but would have access to psychological services. Significantly the report is very qualified by saying that ongoing risk management would incorporate consideration of dynamic risk factors which have yet to be examined. It is said such an assessment will occur after sentence. Depending on the outcome certain services may be available.

64. In broad general terms the report does state that the child pornography re-offence rate is 6.8% over 4.1 years.

65. As I understand that it means approximately seven people out of 100 reoffend in the following four years; that is 93 do not.

66. A psychological report of a Dr. Alexi dated 23 February 2024 was relied on. This is just 15 days after arrest. The reason for the referral was to provide an autism spectrum disorder assessment and provide evidence of difficulties that can be associated with such a diagnosis.

67. It notes there is no official diagnosis but he was seeking help with anxiety. His brother had been diagnosed with depression and ASD.

68. As to his history, reference is made to his pro social family but that he had difficulty at school with his learning but no behavioural issues. He referred to being sexually assaulted in year 12 by another student. He struggled to make long-term friends and since leaving school all his friends have been online. He is now not allowed on the Internet so has contact with one friend by telephone. Just why he could not meet with that person or other people is not clear for his ASD does not seem to be so severe as to suggest that is not possible.

69. On the DASS test he was within the severe range for depression and anxiety and normal for stress.

70. Testing was done for autism. The result of those tests and the clinical interview and other information was a finding of a classification of ASD level II without an accompanying language or intellectual impairment. The conclusion was the offender requires support for both social communication and interaction and for repetitive, restrictive patterns of behaviours.

71. This conclusion was based on difficulty initiating social interactions and avoidance of social gatherings. There were difficulties in nonverbal communicative behavior such as eye contact and difficulties in integrating verbal and nonverbal communication. This appears to be another way of referring to missing social cues. There is also a dislike for change and a tendency to become hyper fixated with his interests. There was sensitivity to sounds and lights and touch.

72. The symptoms impair his social and occupational functioning.

73. The report then gives recommendations to deal with the autism.

74. The offender relied upon a psychological report dated 18 December 2024 of David Whittingham, forensic psychologist. The offender’s background is free of any substance abuse or violence and was one with apparent broader positive prosocial family support.

75. The offender however did have a history of social difficulties such as recognizing social cues and appropriate interpersonal boundaries and with limited communication outside his fixated interests. There were sensory issues. He suffered bullying. He claims to be the victim of a sexual assault in 2018. He engaged in an online social media environment exposing him to dysfunctional peers. There was sexual preoccupation with fixation on what is called normative pornography, which I take to be a reference to what is referred to in the facts above as “18+”.

76. A mental state assessment notes a flat mood and a difficulty in sustaining attention. There was mixed insight.

77. Psychometric testing was undertaken.

78. The conclusion reached was that there appeared to be evidence of symptomatology consistent with autism spectrum disorder without accompanying intellectual impairment, social anxiety disorder and pedophilic disorder. At page 6 of the report at par 4 in reference to the suggested pedophilic disorder it is stated "As evidenced by arousing fantasies, urges or behaviours towards a pre pubescent child and he is experiencing significant problems as a result of these desires and specifier non exclusive with sexual attraction to adults and children".

79. In respect of autism it is said to be evidenced by matters such as insisting on sameness, fixated interests, his reactivity to sensory input and it is noted that symptoms present in early development and cause significant impairment in social, occupational or other areas of functioning.

80. It is said by this report (at page 7) that the offending appears strongly influenced by contributions of these autism vulnerabilities and certain personality traits. It is said to be “characterised by vulnerabilities of ritualised patterns and inflexible adherence to routines, by abnormal fixed interests”. The “abnormal fixed interests” are said to be “online sexualised communication that developed into child exploitation interest”, and developed into paraphilic interests. Query just what is the routine here being referred to apart from an excessive use of the Internet.

81. The effect of this report is to suggest that due to the offender’s autism and general social disconnection the offender was vulnerable to becoming part of an unhealthy relationship which became habitual.

82. A notable feature of the case is just how young the offender was when he began to engage in this online activity and it is accepted that he may well have and in fact did become consumed by that online environment. Quite clearly his descent into that world either simply became out of control and or was one that he, as the facts plainly suggest, gained significant sexual gratification from

83. The report then sets out appropriate treatment into the future both in and out of custody

Consideration

84. As can be seen from the earlier consideration of the agreed facts together with the additional evidence of the offender, the offender has advanced a case with two distinct limbs. The first is to argue that sequences 4, 9 and 12 should be viewed factually in a way that would see the seriousness of them objectively being significantly reduced. For the reasons given earlier that argument largely though not entirely fails. That it does not entirely fail is because of my finding in respect of sequence 9 and 12. Whilst I am not satisfied that the offender had come to access and possess the 6802 CAM videos in the almost blame free way argued for by the offender, but rather knew at all times since he received them what they were, retained them and accessed them on more than one or two occasions, I do accept that that file was received by him in the way he described, and so the offence can be viewed, at least in its beginning, as opportunistic. By accepting that the offence was an opportunistic one at least at the point that he first became aware of that link and stored the cough file in his prawn folder on mega, it is not a case where he has sought out that volume of material. That conclusion is consistent with the quantity of videos relevant to the other offending. Putting aside the bestiality material, the number of videos or images involved in the other sequences is quite small. In sequence 16 it was 7, in sequence 9 putting aside the 6802 videos it was 13, in respect of sequence 4 it was 48 videos and 3 images, in sequence 12, again putting aside the 6802 videos it was 13. In respect of the bestiality it was 56 unique images.

85. It is when the matter is viewed that way that the case for the offender is the most persuasive. If the 6802 videos are excluded the position is that over a period of almost 5 years the offender has accessed on a number of occasions, and that cannot be determined with accuracy, 81 videos and 3 images of CAM and 56 unique images of bestiality.

86. Whilst the offender has had some success in seeking to minimise the seriousness of the offending, the fact remains that the offender possessed and accessed the 6802 files of CAM. The offender also plainly has a paraphilic interest. This is borne out by the agreed facts, and is most apparent in his conversations in 2023 and 2024 set out at [21] and [32] et seq of the agreed facts, and is the opinion of the psychologist whose report he tenders, at page 7 of the report of Mr Whittingham. This all goes to show that the offending being dealt with is serious.

87. The second limb of the offender’s argument was to seek to rely on favourable findings as to the objective seriousness of the offending, together with the offender’s state of mental health, to argue this was a case of exceptional circumstances. The factual findings made are not as favourable to the offender as has been contended for, and thus that argument is weaker than contended for.

88. The offender relies on the state of mental health of the offender and relies on the principles set out in De La Rosa [2010] NSWCCA 194. There is no dispute as to the diagnosis of autism spectrum disorder, and that the offender suffered severely from depression and anxiety. I accept those conditions will make custody more onerous for the offender. I also accept the evidence of the offender that he was sexually assaulted in 2018 whilst at school. The evidence in this regard goes no further than such an assault occurred and it has not been suggested that it in some way contributed to the offending.

89. It is in the report of Mr. Whittingham that there is a basis to submit that there is a causal connection between those conditions, and in particular the autism, and the offending and that has been set out at [80] above. What is not recognized by the offender is the fact of the offender developing paraphilic interests. Rather what is focused on is that is it is a trait of autism that abnormal fixed interests develop, which in this case happened to be parahpilic; see page 7 of the report of Mr Whittingham. In general terms as I understand the psychological and psychiatric evidence in this case a person who suffers autism may adopt ritualized patterns of behavior, be inflexible and to put it broadly has difficulty in socializing. Mr Whittingham states that the offender’s condition is characterized by abnormal fixed interests which is a reference to the online sexualized communication that developed into a child exploitation interest. I do not understand the report to be saying that a person who suffers autism is overly sexualized or develops interest in child exploitation material. Rather the report is to the effect that the vulnerabilities of the condition can lead a person to become fixated on a matter, or may develop interests in things that are abnormal. There are any number of abnormal things that do not enter the field of child exploitation material. What is left hanging by the evidence is a more detailed consideration of why the abnormal fixed interest was the child exploitation material. The answer to that in my view, based on the whole of the evidence and the communications it bears out, is because the offender derived sexual gratification from that material, something best borne out by his own conversations set out in the agreed facts. The suggestion that such extreme communications were entered into because the offender was a “people pleaser” or “to keep the conversation going” is rejected.

90. The result then is that I do accept that there is some connection between the offending and the conditions that have been established but that the offending has also been influenced by a predisposition of the offender which reflects his paraphilic interest, consistent with the view expressed by Mr. Whittingham. The result of that is that in line with De la Rosa there should be a lessening of the moral culpability of the offender but the sentence needs also recognize that he has this paraphilic interest. There are therefore factors which would see a need to both lessen but at the same time increase the weight that may be placed on deterrence both general and specific. It is disadvantageous to the offender that he fails to properly recognize that interest, though there was some recognition of it in the Sentencing Assessment Report. The offender’s repeated rejection in cross examination of having any sexual interest was notable, even moreso when that rejection was followed by agreement that he acted so as to see the photos.

91. All of the offences except sequence 11 are CCC matters, so that the CCA applies. Accordingly the sentence must be of a severity appropriate in all the circumstances. The Court must take into account the factors listed in section 16A to the extent that they are known and are relevant. As noted at the beginning of these reasons there is a presumption in favor of full-time imprisonment unless exceptional circumstances are shown; this is in respect of sequences 4, 9 and 12. Those provisions do not apply to sequence 16. For sequence 11 it is the State legislation and in particular section 3A and section 21A of the Crime (Sentencing Procedure) Act which need to be considered.

92. There is no dispute that the authorities recognize that in sentencing for child abuse material matters general deterrence is a significant consideration. The description of the CAM in this case involving real children as young as two years old emphasizes why this is so. Simply put if there is no market for such material those children would not be so hideously damaged.

93. The Crown based its submissions on those matters set out in section 16A CCA that it considered relevant. The nature and circumstances of the offending have been canvassed above in detail. The need to ensure adequate punishment is a statutory embodiment of the principle of proportionality. There is as earlier noted the need for deterrence both general and specific. That there has been some lessening of moral culpability due to the connection between the offender’s mental health and the offending as found above does not of course remove the need for those considerations to be given some weight but rather simply tempers it.

94. The offender entered his plea at the first available opportunity. This entitles him in accordance with statutory provisions in New South Wales to a 25% discount in respect of sequence 11. The Crown does not argue against the same discount applying to the Commonwealth offences and it will be applied.

95. The question of remorse is not altogether straightforward, despite the SAR recording an expression of remorse, a recognition of the impact on the victims, and a desire to address the behaviour. This is because of his rejection of the opinion that he suffers a paraphilic condition, a view of the offender that I take to extend to a denial of having a paraphilic interest. The offender denied in cross examination that he had a sex interest in children, when in my view the evidence overwhelmingly shows that he does. On the other hand as the agreed facts make clear he was immediately cooperative with the police and complied with the section 3LA order. The extent of this cooperation and the extent of his frankness with police is difficult to assess. Paragraph 40 of the agreed facts sets out parts of the interview with police. Further parts of that interview were raised in the offender's oral evidence. Those additional matters raised in evidence allowed for the submission that the idea of blackmail had been raised at that stage. The parts of the interview extracted for the agreed facts would not give that impression. Putting aside the matters to which the blackmail is relevant which is sequence 4, there is about the matters set out in paragraph 40 a distinct flavor of minimizing the offending and his own disposition. For example, the explanation of some of his conversations that he was trying “to keep the conversation going”. I find that the offender does regret what he has done but also form the view overall that he lacks insight into his offending and that his acknowledgment of wrongdoing or remorse is not as fulsome as it could be which is a concern. This concern is heightened by the evidence given by the accused that when asked about the impact of his offending on its victims he in effect said he had not given it consideration and that it had “slipped his mind”. I accept that shows him to be very frank in some respects but is in my view evidence that is damaging to his case.

96. The offender is entitled to some leniency based on his lack of any criminal record. He comes from a pro social background and his prospects for rehabilitation and not reoffending are enhanced by those matters. At the same time the period of this offending was approaching five years and whilst the submission of the offender that the facts do not allow for determining precisely just on how many occasions the offender accessed this material, what can be said is that his interest in it was long-standing and from a young age.

97. The Crown at [49] of his written submissions accepts that it is open for the Court to find some degree of causal connection between the offender’s mental health and that his participation in some of the charged offending. The concession does not extend to the offences of possession. In my view In the way discussed above the causal connection can be seen to be present in respect of all of the offending.

98. As to rehabilitation it is important to note section 16A (2AAA) CCA which especially requires the Court when sentencing for Commonwealth sex offences to have regard to the objective of rehabilitating the offender. One way of doing this is by setting the length of any non-parole period or pre-release recognizance period in a way that permits a greater time of supervision in the community. The material of the offender sets out the proposed treatment in the community and in my view it is appropriate that that course be adopted and the period in custody be shortened as a result should exceptional circumstances not be made out.

99. It remains to consider whether the offender has made out his contention that his case is one of exceptional circumstances. This consideration applies particularly to the Commonwealth offences because unless exceptional circumstances are found in respect of sequences 4, 9 and 12 the legislation does not permit him to be released upon a release recognizance order immediately.

100. By reason of the provisions of section 20 if the Court determines a total sentence of three years or less and the Court cannot release the offender immediately unless there are exceptional circumstances.

101. Before determining the question of exceptional circumstances it is necessary to determine firstly whether a term of imprisonment should be imposed and if so of what duration. There is no argument that the conduct of the offender can only suitably be sentenced by way of a term of imprisonment. Taking all the matters set out above into account I set out in the table below the indicative sentences of each of the CCC offences as well as the term of imprisonment in respect of the State matter sequence 11. For convenience a reference to the assessment of objective seriousness is also included as well as the maximum term, the relevant section Of the legislation and a brief description of the offence.

| Seq | Sec | Description | Max term | Obj Ser | Ind / disc | | 4 | 474.22(1) | Transmitted child abuse material (CAM) | 15 yrs | Below mid | 2 y / 18m | | 9 | 474.22(1) | Accessed CAM | 15 yrs | Mid | 2 ½ y / 22m | | 11 | 547E(2) | Possessed bestiality material | 3 yrs | Approaching Mid | 1y / 9m | | 12 | 474.22A(1) | Possessed CAM (6818 videos) on a data storage device and used a carriage service to obtain or access the material | 15 yrs | Mid | 2 ½ y/22m | | 16 | 474.19(1) | Accessed child pornography | 15 yrs | Low | 6m / 4½m |

102. Dealing firstly with the State matter there will be a term of imprisonment of nine months with a non-parole period of six months. That sentence will date from today 2 May 2025.

103. In respect of the Commonwealth matters there will be an aggregate sentence of three years. That aggregate sentence will date from 2 September 2025, with the intent that there be a degree of concurrency between the State and Commonwealth sentences.

104. As the sentence for the Commonwealth matters is no more than three years the Court must by s19AC set a recognizance release order, which is an order made under s20(1)(b). Generally, by that section where a person is sentenced to imprisonment the Court may order the person be released upon giving certain security either immediately or after serving a specified period of imprisonment. Where the sentence includes a sentence for a child sex offence, as is the case here, the offender may be released immediately only if the Court finds there are exceptional circumstances. If the Court is not satisfied there are exceptional circumstances then the person must serve a specified period in custody prior to being released on a recognisance release order.

105. What may constitute exceptional circumstances was considered in R v Bredal [2024] NSWCCA 75. To paraphrase what was said in that decision at paragraphs [58]-[65] it is for a Court to determine whether there are exceptional circumstances dependent on the facts of each particular case. To be exceptional does not require the circumstances to be unique or unprecedented but it cannot be one that is regularly or routinely encountered. Exceptional circumstances can be made out where there are a number of factors relied upon none of which in isolation may constitute exceptional circumstances but when taken together may do so.

106. The argument of the offender that this was a case of exceptional circumstances rested in part in establishing the matters of blackmail and the more innocuous interpretation of accessing the link with the 6802 files. That factual scenario has not been made out though it has not been altogether unsuccessful as discussed above. The argument was also contingent on the Court’s view of the mental health of the offender. The argument no doubt extends to saying if those matters had been favorably determined then the balance of the charges involved fairly minimal numbers of videos.

107. It may well be that if each of those matters had been made out to the extent that they were contended for by the offender that a case of exceptional circumstances could have been established. On the findings that I have made above I do not consider that exceptional circumstances have been established. The fact as found is that the offender had access to a large number of CAM files over a significant period. He took part in transmitting some of that material.

108. This is not a conclusion that is reached with any sense of satisfaction. I accept that the offender is a person who due to his mental health and the lifestyle he has led has seen him become socially disconnected and living life in effect by the Internet in large part. The argument for exceptional circumstances is not without some attraction. However, in short the facts as found are not out of the ordinary and a subjective case based on mental health is common. These factors, on the facts of this case, neither in isolation nor in combination give rise to exceptional circumstances. Further the offender does not recognise his paraphilic interest and has limited insight into just what it is that is the damage that he is taking some part in creating. These facts and the facts overall run counter to a result of lenience such as the offender argues for. In reaching that conclusion the arguably favourable risk assessment and likelihood of reoffending of the offender is noted, as are the qualifications to that assessment as stated in the structured case note.

109. The period of imprisonment that will need to be endured prior to being released on a recognizance release order will be eight months from the date of commencement of the Commonwealth sentence so that the overall time of imprisonment will be 12 months. The mandatory conditions required by section 20 will be imposed. This will include that he be of good behavior and also be subject to the supervision of a probation officer for a period of two years and four months.

110. I note that the effect of these orders will be that the overall term of imprisonment is a head sentence of three years and four months and in effect a non-parole period or a period of imprisonment before release on a recognizance release order of a period of 12 months made up of four months in respect of the State offence prior to the commencement of the Commonwealth sentence and then eight months thereafter. The effect of the order is that the offender will be subject to supervision for a period of two years and four months. This is a period in which under that supervision the recommendations for therapy as set out in the reports of Dr. Alexi and Mr. Whittingham can be pursued. It also allows the prospect of the recommendations contained in the sentencing assessment report (Structured case note) also being attended to which deal more directly with the identified risk needs relating to the risk of sexual offending

Orders

1. The offender is convicted of the offences set out at [102] above.
2. In respect of sequence 11 the offender is sentenced to a term of imprisonment of 9 months with a non parole period of 6 months, to date from 2 May 2025.
3. In respect of sequences 4, 9, 12 and 16, and noting the indicative sentences set out above, the offender is sentenced to an aggregate term of 3 years imprisonment to date from 2 September 2025 and expiring 1 September 2028 and with the offender to be released after 8 months, on 1 May 2026, to be released on recognisance of $1 for a period of 2 years four months, expiring 1 September 2028 with the following conditions:

(a) To be of good behaviour. (b) Be subject to the supervision of a probation officer appointed in accordance with the order; and (c) Obey all reasonable directions of the probation officer; and (d) Not travel interstate or overseas without the written permission of the probation officer; and (e) Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

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