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R v Kember [2022] ACTSC 153

The offender was sentenced following pleas of guilty to 2 counts of using a carriage service to solicit child pornography contrary to s 474.19(1) of the Commonwealth Criminal Code (Counts 1–2), 1 count of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code (Count 4), 1 count of using a carriage service to procure a person under the age of 16 years contrary to s 474.26(1) of the Commonwealth Criminal Code (Count 3), 1 count of using a carriage service to transmit indecent material to a person under the age of 16 years contrary to s 474.27A(1) of the Commonwealth Criminal Code (Count 5), and 1 count of possessing child abuse material obtained using a carriage service contrary to s 474.22A of the Commonwealth Criminal Code (Count 6).

Nature and Circumstances: In respect of Counts 1, 2 and 4, victims were aged between about 13 and 16 years. Offender requested nude images of the victim in a way that can only be regarded as manipulative. Material was mostly referred to as Category 1 with a single Category 2 image sitting at the border of Categories 1 or 2. Offender did not attempt to gain any material benefit from images or participate in the trade or dissemination of child abuse material and did not rely on anonymity. Offending did not involve threats and there was no attempted progression towards physical activity. Count 2 appears to have had a significant impact on the victim. Counts 1 and 2 sit below the mid-range of seriousness. Images in Count 4 consist only of the victim in her swimmers which she posted on her social media account and falls at the lower end of seriousness. Count 3 is at the lower end of the range of seriousness because the victim was over the age of 15, the attempt to procure occurred on one day only and consisted of two messages which were not graphic, there was no attempt to engage in sexual activity when offender met the victim and the offender’s intention may be regarded as being short-lived. Count 5 falls at the lower end of the range of objective seriousness as offending occurred on two occasions only with the indecency relating more to the topic of conversation than the identity of the participants. Count 6 is at the lower range of seriousness because the images were in the lowest category and the victims were likely between 15 and 18. The so-called ‘groupie culture’ of the BMX sport, in which the offender competes, does not exculpate the offender but does explain that their offending was opportunistic rather than predatory.

Guilty Plea: The plea was entered on the day on which the matter was listed for hearing. In the case of the victim who provided a victim impact statement, she was put through considerable distress in preparing to give evidence at the trial. Because of the number of offences and the complexity of the sentencing exercise, the discount in relation to each offence various within the range of 10 to 15 per cent.

Antecedents: Offender told psychologist that they were a witness to domestic violence between their parents and was neglected by their mother during their formative years (ages 3 to 11) due to her drug problem. Offender had a childhood of significant deprivation and there is some causal connection with their offending in a limited sense. Offender’s abuse history has likely contributed to their vulnerability for offending.

Family and Dependants: Offender’s father is suffering from Alzheimer’s disease and his condition is deteriorating. Offender plays an important role for their father in that context as offender is their father’s only connection to his past, is his immediate family and is his only family support. Any lengthy period of imprisonment would carry a significant risk that offender’s father would lose any cognitive connection with his past and may deteriorate more rapidly as a result.Offender sentenced to imprisonment for 3 years to be released after 8 months on recognizance of $2,000 to be of good behaviour for 2 years.

Offender sentenced to imprisonment for 3 years to be released after 8 months on recognizance of $2,000 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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