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R v Burch [2020] ACTSC 192

sentence — possessed child abuse material, being data held in a computer or contained in a data storage device, which had been obtained or accessed using a carriage service offence contrary to s 474.22A of the Commonwealth Criminal Code, used a carriage service to transmit child exploitation material offence contrary to s 474.19(1) of the Commonwealth Criminal Code (now repealed) — guilty plea — s 16A(2)(g) — sentencing judge allow discount if plea demonstrated remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice — Crown submitted timeliness of the plea and strength of the Crown case were relevant to an assessment of the subjective value of the pleas — 25% discount for each pleas of guilty — nature and circumstances of the offence — s 16A(2)(a) — in relation to Count 1, offending not isolated and material fell into CEM Categories 1, 3 and 4 — gravity of sexual activity portrayed in material ranged in seriousness and some were very serious — images depicted “prepubescent” girls and a “young boy”, at most 6 children were involved — no evidence of possession for sale or distribution, no evidence risk of others accessing material — any offence involving children of this nature is to be considered serious — in relation to Count 2, communications with 4 people and several communications with 2 of those persons over period of approximately 10 weeks, although not consistently — insufficient evidence that any receiver of material was under 18 years old, content of transmissions highly offensive, offender aware conduct was criminal — no evidence of transmission for sale or distribution, offence unsophisticated without a secure IP address and password protected access to material — not a victimless crime as cause indirect harm by inciting fascination with deviant behaviour which possesses an indirect risk of harm (potentially very serious harm) to children and encourage unhealthy and disrespectful attitude to children — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — well established general deterrence is paramount sentencing purpose related to offences of this kind and purpose of personal deterrence also looms large — in this case, general deterrence is important sentencing purpose — also important sentence operates to provide some level of personal deterrence and support any possible rehabilitation by offender — having regard to objective seriousness of offence, not abundantly clear that only appropriate way in which a sentence could be served is by way of full-time imprisonment and while general deterrence remains primary sentencing purpose, that purpose may be able to be adequately met while other purposes (including rehabilitation) are met by ordering service of sentence by intensive correction order — COVID-19 — offender assessed as suitable for intensive correction order — sentencing judge noted that ordinarily they would not consider an intensive correction order would be an adequate punishment for this offence, given significant objective seriousness of offence and fact offender continues to lack insight into their conduct and continues to attempt to rationalise it — however in circumstances that any imprisonment would be attended by additional constraints because of current COVID-19 pandemic, proceed to impose intensive correction order — in custody, offender would be significantly more restricted than would ordinarily be the case, particularly in relation to visits, and they would run a higher risk of contracting the disease — risk very largely addressed by strict visiting or lack of visiting conditions that operate within prison at the moment and will presumably continue to operate for indefinite future — sentence — imposed 12 months’ imprisonment that “despite having significant reservations about doing so” is to be served by way of intensive correction in the community, good behaviour order for a period of 2 years with community service condition and engage in assessment for a sex offender program and undertake program if suitable to do so
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