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R v Horner [2023] ACTSC 23

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

Nature and Circumstances: Offender possessed and accessed relatively few items of child abuse material, being 3 videos, in comparison to the quantity of items possessed by offenders frequently charged with this offence. However, the depravity of the material was not at the low end of offences of this nature. There were two real child victims, who were both very young (approximately 3 to 6 years old) and were shown engaging in offensive and degrading acts. In respect of the possession charge, offender possessed one of the videos for over three years, and one was possessed for two years and six months. The computer on which the videos were located was found in the communal kitchen area of the home, where it could have been accessed by offender’s children. Further, the offences were not isolated: prior to the present offences, the offender had accessed approximately 50 child abuse files, although they had reported a number of those to the eSafety Commissioner. The objective seriousness in respect of each charge is toward the lower end of the range, but not at the lowest end.

Mental condition: Offender has post-traumatic stress disorder arising from abuse that they suffered as a child. Clinical psychologist’s evidence that offender’s mental health was related to the offending in two ways, through offender’s use of pornography as a distraction from negative thought patterns and in ‘reckless and self-destructive behaviour’, is accepted. As a result of both of these factors, there is a ‘moderate to high correlation’ between the offender’s experience of childhood abuse and resulting mental illness with his offending behaviour. Offender’s moral culpability is reduced to a moderate degree.

Offender sentenced to 18 months imprisonment, to be immediately released on recognizance of $100 to be of good behaviour for 3 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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