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R v Khqustiaan [2022] NSWDC 128

Offender was sentenced following a conviction of transmitting child abuse material on a carriage service contrary to s 477.22(1) of the Commonwealth Criminal Code.

Nature and Circumstances: At least in relation to video 1, the still evokes an adult male’s domination towards a helpless child in forcing the sexual activity. The victims were vulnerable. In particular, the 4 and 5-year-old boys were of an age where, the Court can infer they would not have understood the sexual acts they were involved in and were trusting of the adults in their company. The adults in those videos exploited each child’s vulnerability and took significant advantage of the children. Offender knowingly transmitted this child abuse material and celebrated the obscene abuse of these children. Offender’s transmission of child abuse material involved more than just sending videos. It included messages about what the offender did to a 6-year-old boy. That offender went to considerable effort to conceal their offending evidences the degree and knowledge of their culpability. There was no additional cruelty or violence inflicted upon the child victims. No monetary benefit was obtained through the transmission. The amount of child abuse material transmitted was relatively small. The objective gravity of the offending falls within the mid-range, but towards the lower part of it.

Contrition: Offender said very little expressing concern about the content of the videos found on their device other than an anodyne expression of ‘concern for the victims of these crimes’. It was striking that for someone like the offender, who professed themself to be a victim of child sexual abuse, could not find any more empathetic statement consistent with their declared position of innocence. Offender has no real insight into the harm caused to the child victims by their conduct.

Rehabilitation: The inherent content of the videos that were transmitted, seen in the context of the text messages, evinces a sexual interest in young male children and offender’s denial of that interest, which explains their omission to receive treatment for it, casts real doubt upon their effective rehabilitation. Offender’s rehabilitation prospects are, at best, guarded.

Family and Dependants: Totaan v R discarded requirement for proof of exceptional hardship as an effective precondition. Evidence does not go beyond a generalised statement of aspiration or perhaps expectation of what the offender might provide to the family. No evidence was adduced to identify material benefits that the offender would have been expected to obtain which would be lost or how they would suffer in any tangible non-material sense.

Recognizance Release Order: Offender submitted that it was open to the Court to find that Minehan ‘exceptional circumstances’ exist, which would require the offender’s immediate release on recognisance. Exceptional circumstances were not established. Most significantly, offender’s rehabilitation prospects were guarded. Meaningful hardship would not be visited upon offender’s family through their incarceration. Although COVID-19 is a factor which may work in offender’s favour facing the prospect of incarceration, their position, in that particular respect, is no different to any other offender facing a term of imprisonment.

Offender sentenced to 3 years’ imprisonment to serve a minimum period of imprisonment of 2 years, 1 month and 7 days prior to being released upon entering recognizance of $500 subject to 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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