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R v Gundry [2021] NSWDC 238

The offender was sentenced following pleas of guilty to 3 counts of using a carriage service to access child pornography material contrary to s 474(19)(1) of the Commonwealth Criminal Code. Further offences were taken into account pursuant to s 16AB. Additional State offences were taken into account.  

Nature and Circumstances: On 20 separate occasions, offender used phone to purchase total of 17000 images and videos. Many were of the worst level of depravity. Conduct was not isolated; it occurred over a period of two and a half years. The crimes are not victimless and the offender contributed money to entities profiting from the sales.  

Contrition: Offender had sufficient insight into offending behaviour as early as 2018 during the commission of offences to seek treatment even though offender did not disclose offending conduct to psychologist. There has been no suggestion of further offences being committed since release on bail. Contrition has been demonstrated by early plea.  

Mental Condition: Offender has diagnosis of Klinefelter’s Syndrome, recurrent major depressive disorder, gender dysphoria and paraphilia. Sexual deviance was primary cause of offender’s actions in obtaining the child abuse material in the first place and depressive disorder, chronic mood disturbance, and the effects of testosterone exacerbated their paraphilia. Offender’s condition would pre-dispose them to being teased, bullied or ridiculed and would probably increase risk of being sexually exploited or abused by other inmates so that a custodial sentence would be more onerous. Crown submission that there was a logical flaw in the argument that gender dysphoria was the cause of offender’s attraction to child abuse material rejected given the unchallenged history and diagnosis. There is no evidence that because of mental illness offender presents danger to community and no basis for application of proposition that considerations of specific deterrence may result in an increased sentence  

Offender sentenced to 18 months imprisonment to be released on recognizance release order after 6 months.    
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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