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R v Cusack [2021] ACTSC 75

The offender was sentenced following pleas of guilty to 1 count of possession of child abuse material accessed using a carriage service to obtain the child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to access child abuse material contrary to s 474.19(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.  

Nature and Circumstances: The same files are common to each of the offences. The essential difference between the possession charge and the use of a carriage service charges are that the latter refer to accessing the material while the first relates to the keeping of the material. The length of time covered by the access charges is almost 5 years. The number of files and their content render the three offences to be well above medium objective seriousness. It must be appreciated that every time one of these images is downloaded its purveyor or producer is encouraged to abuse another child. The damage to the children would not have ceased when the abuse stopped. In some cases it will affect the whole of the child’s life. It is not enough to say that offender did not themselves physically abuse any child.  

Antecedents: Court is confronted with a person of good upbringing, a sound education and steady employment. In other words, a person who is otherwise a decent and contributing member to society. But then this person delves into child abuse material and destroys practically all positive ingredients of the past.  

Mental Condition: Clinical psychologist says offender’s judgment was severely compromised by depression and that access to the illegal material was a method of self-soothing and as a distraction from their depressive mood. Sentencing judge found the concept of watching the sexual abuse of children as a salve to a depressed mood to be somewhat difficult to understand. Sentencing judge was bound to respect the opinion of the clinical psychologist in particular where there is no opposing opinion.  

Offender sentenced to 2 years imprisonment to be released on recognizance release order after 2 months.
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