See full judgment: Austlii.
The offender was sentenced following pleas of guilty to 1 count of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to groom a person believed to be under 16 years of age contrary to s 474.27(1) of the Commonwealth Criminal Code, and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Offender also sentenced for a state sex offender reporting obligation offence.
Nature and Circumstances: The solicitation count is a relatively low level example of the offence as it was confined to a single day and 2 conversations. The transmission offence concerns the transmission of 4 image files and 22 video files. The images and videos exchanged are shocking. There is no suggestion that offender stood to profit. It is still lower level offending relative to much of what the courts see. The possession offence concerned 2,542 child abuse material files. While the quantum is far from the largest that comes before the Court, it is significant. 122 of the files were Category 1 and the remaining 2,420 were Category 2. The material in the files is abhorrent. This is assessed as low to mid-range. The grooming offence is a low to moderate example of the offence.
Rehabilitation: Offender has insight beyond the consequences of their actions to themselves and their loved ones; they speak of their time in custody together with their new medication as giving them ‘the capacity to finally think of children in a paternal way, as opposed to sexually’. Offender expresses a degree of contrition for their offending. Offender pleaded guilty at the first reasonable opportunity. Offender has provided considerable assistance to the authorities above and beyond their guilty plea. Although prospects of rehabilitation must make way for the overwhelming force of general deterrence, that is not to say that the steps taken towards rehabilitation should not be taken into account. Regard is had to the programs offender has completed during their time in custody, some of which include programs aimed at managing their mental health.
Antecedents: Offender was 23 years old at the time of offending and is now 25 years old. Offender has a relevant but not extensive criminal history. Offender was previously convicted and sentenced on 6 counts of indecent treatment of a child under 16 years. These matters make it necessary that specific deterrence assume significant weight in determining offender’s sentence.
Mental Condition: Psychologist diagnoses offender with borderline personality disorder, attention deficit hyperactivity disorder, generalised anxiety disorder, and alcohol use disorder. Psychologist opined that offender’s sexual abuse by their father would have significantly influenced the development of deviant sexual preferences and unstable mental health. Limbs 1, 3, and 5 of Verdins are enlivened. Offender’s moral blameworthiness is reduced, as is the need for general deterrence in sentencing them. THe impact of the prison environment is also taken into account.
Minimum Sentence: As offender has previously been convicted in respect of registrable child sex offences, the effect of Crimes Act 1914 s 16AAB is that the court must impose a minimum sentence of four years imprisonment in respect of the federal counts. In assessing any reduction to this minimum under s 16AAC, the approach taken is to assess all relevant considerations except the guilty plea and cooperation, then apply s 16AAC to determine if further reductions are needed to move below the prescribed minimum. Offender’s cooperation was meaningful.
Offender sentenced to 4 years and 9 months imprisonment with a non-parole period of 2 years and 5 months.
