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R v Barnes [2022] NSWDC 397

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 and 1 count of possessing child abuse material in the form of data held in a computer or storage device obtained using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. An additional child exploitation offence was taken into account under s 16BA.

Nature and Circumstances: Offender’s mobile phone contained 3 images of child abuse material and within an encrypted application a further 24 unique images. The images are categorised as category 1. In this case there were actual children used. The imagery is very disturbing. It is not the most depraved material in that it does not show graphic acts of sexual intercourse beyond borderline instances, but the imagery goes well beyond simple sexual posing to sexual interaction between actual children and also children and adults. There is no overt cruelty on display. The number of images for this type of offending is small. There is no suggestion of offender having disseminated this material to others or of being part of a group circulating the imagery. The soliciting count is in the low range but by no means at the lowest level. It persisted over 4 days and so cannot be said to have been some kind of impulsive urge. The level of conversation is fairly mild.

Mental Condition: Following son’s injury, offender suffered a worsening of mood and attempted an overdose. Psychologist considers that offender is clinically depressed and meets the criteria for a major depressive disorder and there is an issue of excessive intake of alcohol. Psychologist expressed that offender does not present paedophilic disorder. Psychologist states that there is a risk of further emotional collapse if there is a custodial sentence.

Family and Dependants: In 2018, offender’s son suffered a significant head injury. Offender’s son could not identify someone to provide assistance if offender again went into custody. There is a risk offender’s son may suffer seizures. Offender’s son is significantly impacted by the head injury and is dependent on support. There is concern that if offender is jailed there will be a moderate risk of self-harm. There will be significant hardship placed on offender’s son who is in need of care if offender is not available.

Contrition: Offender attempted to minimise their offending. Offender refers to it as role-playing or fantasy but did admit it turned sexual. Offender maintained it all occurred on the one day which is false. Offender’s comments reflect that they have a genuine sense of remorse and regret and some understanding of their wrongdoing. However, it cannot be ignored that they made a suggestion that the photos were of their children and denied knowing where they may have come from. This evidence is plainly very conflicting.

Offender sentenced to imprisonment for 9 months to be released immediately on recognizance of $500 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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