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R v Henderson [2023] ACTSC 110

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender’s devices contained 1,715 files of child abuse material. Offender transmitted 68 files of child abuse material as well as what is described as ‘text-based child abuse material’. Of the 1,715 files, there were 397 that were described as ACACS Category 1 videos, 1.067 Category 1 images, 27 Category 2 videos, and 224 Category 2 images. There are 1,000 individual child victims largely between 1 and 10 years of age. The material is rightly described as ‘highly depraved’. Offender’s denials that they had ‘any personal interest’ in child abuse material stand quite at odds with the facts.

Mental Condition: Offender has a history of mental health concerns and has had dealings with ACT mental health programs. Psychologist report ‘diagnoses’ offender as having symptoms consistent with post-traumatic stress disorder with moderate symptoms and major depressive disorder with recurrent moderate symptoms and anxiety. Psychologist opines that the mental impairment of offender would have ‘some effect’ on their capacity to exercise appropriate judgement. However, psychologist does state that offender was aware that their conduct was morally wrong and criminal, but, they did not give that aspect ‘much consideration’. Psychologist stated that offender would be at high risk of suicide if incarcerated. Offender has been willing to engage in treatment. The diagnoses do not reduce offender’s moral culpability.

Character: The Crown submits that good character should be given less weight in offences of this type, given that they are frequently committed by persons that are of good character. The logic of this is not understood.  Good character is what it is. In the frequency of offending of a particular type where persons of good character are involved, one would have thought as a matter of logic that simply meant that in such sentencing exercises, good character will more frequently arise for consideration. It should not reduce its significance in the individual case, if one is to give individualised justice to a particular offender. Of course, where good character is an enabler of offending, taking advantage of good character in those circumstances obviously requires less weight to be given to that feature. But these offences can be committed by anybody with access to a computer or a mobile phone irrespective of their background. Offender’s prior good character is taken into account.

Offender sentenced to 2 year and 4 months imprisonment to be released after 10 months on recognizance of $500 to be of good behaviour for 2 years.
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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