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23 November 2022 — R v Finch [2022] NSWDC 578 — carriage service offence — sentence — nature and circumstances — hardship — rehabilitation

The offender was sentenced following a plea of guilty to 1 count of using a carriage service to make available child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offending comprised 7 messages left on 6 occasions over a 3-month period, each of which constituted child abuse material. It was ‘highly graphic, depraved and explicit descriptions of sexualised activity between adults and children, and incest.’ There were no actual children involved, no images of children transmitted or disseminated, the offending was entirely unsophisticated in that except for the use of a pseudonym on one occasion, offender used their own phone and was easily identified, they were acting alone, and the bulk of offending occurred between midnight and 7am at times when the offender was engaged in a drug-fuelled binge on cocaine. Offender’s motivation was born out of their desire to obtain drugs. The objective seriousness of the offending fell in the middle of the low-range.

Hardship: Offender rose to public prominence by means of their career as a professional footballer. Offender’s standing in the community meant that they were subjected to intense media scrutiny following their arrest and during their interactions with the criminal justice system. That scrutiny could only be described as above and beyond the usual media coverage of offending of this type. Whilst on the whole it was accurate coverage, in much of it an average reader could easily infer that offender was a paedophile with an active sexual interest in children. That is a direct consequence of the language offender used. The fact of the media coverage being out of proportion is taken into account. The nature of the reporting could lead would lead to a risk of custodial retribution and enduring damage to offender’s reputation. A further relevant factor is the loss of offender’s employment prospects.

Rehabilitation: Offender was addicted to cocaine. Given the risk of relapse for any addict, offender’s prospects of rehabilitation must be somewhat guarded however they are determined to do their best in that process. Offender is genuinely remorseful for their offending conduct and has expressed genuine contrition for it. Offender has low prospects of recidivism for offending of this type. Reporting will impede offender’s recovery from their ongoing mental health and drug related problems.

Offender sentenced to 2 years of imprisonment to be released immediately on recognizance of $1000 to be of good behaviour for 2 years with conditions.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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