The offender was sentenced following a plea of guilty to one count of possessing child pornography obtained or accessed using a carriage service contrary to s 474.22 of the Commonwealth Criminal Code. Offender also sentenced for an unrelated summary weapons offence.
Antecedents: Offender had previously been convicted of two counts of knowingly being in possession of child abuse material and they were required to accept treatment through a Justice Plan. Offender failed to comply with their obligations as a registered person and the supervision period was extended. At least some of offender’s failure was driven by their inability to understand the requirements and consequences of failing to comply and partly attributable to deficiencies in the Justice plan.
Nature and Circumstances: There were 142 images on offender’s phone which constituted child abuse material. The images represent a degree of seriousness at the lowest level. All the images were in Category 1 and were all still images. The ages of the children were between 3 and 12 years. The number of images offender possessed was relatively small. There is no evidence that the images were for the purpose of sale or distribution or that the offender stood to profit. The material was possessed for 1 day or less. These matters point to the very lower end of the scale of objective seriousness.
Mental Condition: Offender was assessed as being intellectually disabled at a moderate level when they were 11 years of age. Offender’s full-scale IQ was measured at 57, a percentile rank of 0.2. Psychologist noted that offender’s verbal ability is at the extremely low borderline range with approximately 95% of adults performing better in verbal comprehension. Offender’s verbal skills remain poor, particularly their ability to think abstractly. Offender was receiving counselling related to gender dysphoria. One of offender’s stated reasons for accessing child pornography is that they were curious to see the genitals of females. This is not the only reason offender accessed the child pornography, but it is along with another of obtaining sexual gratification. The totality of offender’s presentations amounts to exceptional circumstances. Offender is observed to meet the criteria for a paedophilic disorder. Offender’s intellectual difficulty combined with recent gender and sexuality confusion reduces their moral culpability significantly. Offender is not an appropriate vehicle for general deterrence and specific deterrence appears to be a misguided sentencing principle for them.
Contrition: Submissions from the prosecution suggest that offender’s plea is not evidence of remorse. This ignores the intellectual difficulties facing them. The concept of acceptance of responsibility and genuine remorse requires an understanding of why an act is morally wrong. Offender is only at the beginning of being able to grasp the concept that looking at pictures causes damage to the subject of the photo.
Offender convicted without passing sentence. Offender placed on a s 20BY Program Probation Order with conditions for 3 years.
