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R v Watson (No 2) [2020] NSWDC 582

resentence — 1 charge of accessing child pornography material contrary to s 474.19(1)(a)(i) Commonwealth Criminal Code — 1 charge of causing child pornographic material to be transmitted using a carriage service contrary to s 474.19(1)(a)(iii) Commonwealth Criminal Code — additional State offences — original global sentence imposed 3 years’ imprisonment to be released on recognisance release order after 1 year and 6 months imprisonment — sentence was appealed to Court of Criminal Appeal and Commonwealth charges were remitted to District Court for resentencing — mental condition — s 16A(2)(m) — offender has mild intellectual disability with symptoms of Borderline Personality Disorder — offender has suffered some deprivation in formative years given disadvantageous and traumatic background — offender’s mental health contributed to offending and offender has limited insight and self-regulation skills — nature and circumstances — s 16A(2)(a) — objective seriousness of offending involved offender accessing child pornography material over period of just over two years — material was accessed on 3 different devices and comprised 1 video and 34 images — while offending was not aberration or isolated incident number of images was not great by comparison to other cases — while it constituted serious offending given small number of images involved it was below mid-range for offence pursuant to that section and in upper part of low range of objective seriousness — that material subject to transmission constituted fantasies of offender is irrelevant to assessment of objective seriousness of offending — objective seriousness fell below mid-range for offence under that section — contrition — s 16A(2)(f) — whilst offender expressed remorse in letter to court and pleaded guilty at early opportunity offender failed to demonstrate insight into offending conduct and acknowledge responsibility for it — specific deterrence — s 16A(2)(j) — specific deterrence does have a role to play as offender must understand that if they engage in similar criminal conduct in the future they will face increasingly lengthy periods of imprisonment — general deterrence — s 16A(2)(ja) — based on offender’s mental health issues and diagnoses together with disadvantageous background offender is not appropriate vehicle for general deterrence — rehabilitation — s 16A(2)(n) — offender has complex medical and psychological background which will require great deal of support to enable any rehabilitation — risk of re-offending difficult to assess — nature of offender’s background and fact of criminal conduct over 2 years suggests there is relatively high risk of offender re-offending in absence of adequate support systems in place — offender re-sentenced to 2 years’ and 3 months imprisonment as offender had already served term of imprisonment longer than sentence imposed no recognisance release order imposed
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