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R v Tomlinson [2022] NSWDC 220

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

Nature and Circumstances: Offender accessed 539 images of child abuse material, a significant number of images. This sequence is a rolled-up count involving more than 1 instance of offending. The 2 instances were less than an hour apart. The nature and content of the material is highly depraved. It involved children as young or younger than 1 year old. Actual children were used in the creation of the material and there are multiple child victims depicted. Offender intentionally accessed material of such a level of depravity. There was little sophistication or organisation involved. The material was not accessed for further dissemination or sale and offender did not stand to profit from the offence. Offending falls within the mid-range of objective seriousness, albeit towards the lower end.

Minimum Sentence: Bahar should not be followed in relation to provisions such as s 16AAC. It is a matter for the Court of Criminal Appeal, and not for a judge at first instance in this jurisdiction to so determine.

Cooperation: Offender submits that providing their mobile phone to police is an indication of cooperation with law enforcement agencies. This is not a particularly significant factor given that offender was a registrable person at the time and was required to provide access to their mobile phone and other electronic items.

Antecedents: Offender witnessed domestic violence against their mother when they were a child and experienced homelessness at age 14. The Bugmy principles have some role to play in the instinctive synthesis. Offender has a not inconsiderable criminal history which includes offences of a similar nature and disentitles them to leniency.

Rehabilitation: Offender’s criminal history must lead to the conclusion that offender has poor prospects of rehabilitation. Offender has prior convictions for contact child sexual abuse offences, which demonstrates a clear sexual interest in children and there is nothing to suggest they do not remain sexually attracted to child abuse material and thus would not reoffend.

Offender sentenced to 4 years imprisonment with a non-parole period of 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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