District Court New South Wales Medium Neutral Citation: R v Blowers [2020] NSWDC 813 Hearing dates: 14-31 July 2020; 9 October 2020; 20 November 2020 Decision date: 27 November 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to an aggregate term of imprisonment of 5 years; non-parole period 2 years 8 months. Confiscation order for Apple iPhone Catchwords: CRIME – sentence – use carriage service to transmit child pornography material Legislation Cited: Commonwealth Crimes Act Crimes (Sentencing Procedure) Act 1999 Criminal Code (Cth) Cases Cited: Hili & Jones v R [2010] HCA 45; 242 CLR 520 Holder and Anor v R (1983) 3 NSWLR 245 Jimmy v R [2010] NSWCCA 60 Johnson v R [2004] HCA 15; 78 ALJR 616 Lyons v R [2017] NSWCCA 204 Mill v R (1988) 166 CLR 59 Minehan [2010] NSWCCA140 Pearce v R [1998] 194 CLR 610 Porte v R [2015] NSWCCA 174 R v Linardon [2014] NSWCCA 247 Category: Sentence Parties: Regina (Crown) Philip George Blowers (Offender) Representation: Counsel: Ms P McEniery (DPP) Mr G Stanton (Offender) File Number(s): 2017/00294558 Publication restriction: Non publication order of the residential address of the accused Judgment 1. Mr Blowers, my practice is to tell prisoners in advance what their sentence is going to be. I think that is the only humane and decent thing you can do. You are not interested on the intricacies of s 16A of the Commonwealth Crimes Act. I propose to sentence you to five year's imprisonment with a non-parole period of two years, eight months imprisonment. That sentence will commence on the date you came into custody on 31 July 2020. On my orders you will be eligible for release to parole on 30 March 2023, and the sentence I fix will expire on 30 July 2025. I have been told by the Crown that I can fix an aggregate sentence pursuant to the State legislation under Commonwealth enabling powers. I propose to fix 25 indicative sentences, which I will explain, I will not give them to you now, but when I promulgate the formal orders I will give full details for the parties and I will ask my Associate to print out copies of the orders and they can be given to the parties. I now have to give my reasons. 2. Philip George Blowers appears today for sentence in respect of 25 offences after trial, bearing in mind he was found guilty by jury verdicts on 31 July 2020. Three offences are contrary to s 474.24A (1) Criminal Code (Cth) hereinafter to be referred to as "the Code". These are offences of using a carriage service to transmit material, being child pornography material, on three or more separate occasions, on each such occasion involving two or more people. These are offences committed variously between 27 August 2017 and 27 September 2017. Each offence carries a maximum penalty of 25 years imprisonment. These offences overlap with 22 other offences contrary to s 474.19 (1) (a) of the Code. These offences are, using a carriage service to transmit child pornography material on specific days between approximately 29 August 2017 and "on or about" 28 September 2017. Each of these offences carries a maximum penalty of 15 year's imprisonment. 3. The prisoner has been in custody since the verdict of the jury and the aggregate sentence will commence from that date. The accused did not give evidence in the trial, although in the course of the investigation principally denied wrongdoing. He did not give evidence in the sentence proceedings. 4. The facts of the matter are detailed. But I have been greatly aided by the Crown's Statement of Facts. Having regard to the issues of trial and the unanimous verdicts of the jury, for sentencing purposes there can be no dispute as to what the facts are, as was conceded in submissions. 5. In July 2017 the Australian Federal Police received intelligence from the United States, a representative of law enforcement in Georgia, a State of that nation, giving evidence in the trial of the activities of an Australian registered online user of the "Kik" Messenger application using the account name "airCargoMan", with an associated user name of "PB", transmitting child pornography to other users. "Kik" is a Smartphone Messenger application allowing the sending of various types of messages, including messages in video form and digital imaging to individuals, all within particular groups that subscribe to the application. It is very similar to the more popular "WhatsApp" application, controlled as I understand it, by Facebook. Enquiries into the registration of the account of "airCargoMan" led to the identification of an email address subscribed in the name of the prisoner and the identification of his mobile phone number registered to the prisoner's home address. 6. The prisoner was arrested at HMAS Kuttabul at Potts Point on 28 September 2017. He initially provided police with an iPhone 6 and an Apple iPad, neither of which had the "Kik" application downloaded in them. But during the course of the search in his presence, another iPhone, an iPhone 7 that belonged to him, was disclosed by him to be in his possession, although prior to that he had tried to hide it under a hat. That particular iPhone had the "Kik" application downloaded on it. It was readily available on the home screen and was logged into the account of "airCargoMan" with the display name "PB". When spoken to about that mobile phone he admitted a number of matters, including that he owned the iPhone, that he was aware that "Kik" was a messaging app and that the iPhone 7 contained emails sent from him, and to him I assume, by a website called "craigslist" to which regular reference was made in the course of the trial. He said he was "embarrassed" about the "craigslist" messages. He denied knowledge of any particular "Kik" group chat which could be identified in the phone. There was a particular one readily identified as "teenbeastii" and he said he did not recognise the user name or account name "airCargoMan". 7. The phone was forensically examined and it is from this examination there were revealed various "online" typed conversations by the offender under the guise "airCargoMan" from about 27 August 2017 within various group chats or to other individual subscribers. In relation to those communications, many contained child pornography material. A total of 38 unique single images and four unique videos depicting child pornography were transmitted using the account, shared by the accused multiple times across 36 unique chats with individuals or groups of users. There was occasional sharing of such images with other users. The various images that were ultimately identified have been categorised according to what is called the "Child Exploitation Tracking System", otherwise known as the CETS scale. The details of various images sent, their relationship to the charges and their usage are set out with the addenda to the Crown's Statement of Facts. As to this scale of categories of what could be called child pornography, the categories are as follows: 8. Firstly, category 1 is either a single image or a video containing "sexually suggestive posing with no sexual activity". There were 28 images within the various communications by the prisoner, sent by him at various times, sometimes on multiple occasions, that fell within category 1. 9. Category 2 relates to "non-penetrative sexual activity between children or solo masturbation by a child". There was one image that fitted within category 2. 10. Category 3 is concerned with "non-penetrative sexual activity between an adult or adults and a child or children". There were seven images in this category. 11. Category 4 is "penetrative sexual activity between children or a child or an adult and other children or a child". There were two such single images and four videos. 12. There were no images or videos under category 5, which relates to sadism and bestiality. 13. There were no images or videos under category 6 which relates to animated or virtual depictions of children engaged in sexual activity. 14. The Court has been provided with a sample of the material posted by way of still images taken from the images or the videos. There is a table of what is described as the "unique child pornography images and videos" giving descriptions of the activity also provided. That table has the number of times the particular items were transmitted, how many "victims" are depicted and other relevant material to the charges. 15. One of the category 4 videos which shows a prepubescent female child performing oral sex on an adult male in a shower was transmitted nine times. An adult female masturbating and performing oral sex on a male child and at the same time a male child inserting an object into the adult female's vagina was transmitted two times. An adult female performing oral sex on two prepubescent female children was transmitted three times. Finally, a video involving an adult male performing vaginal intercourse with a prepubescent female was transmitted once. There is no evidence available as to how the accused acquired these images. I point there was no evidence, as usually happens in cases of this type, of the prisoner retaining a "library" of these images or related images. 16. In relation to the three counts of "aggravated transmission of child pornography material", which carries in each case 25 year's imprisonment, Count 1 is concerned with a chat group called "Hiddenfam" in which there were six participants. The participants being selective in terms of who participated by sending coded messages to ensure that. On six occasions the prisoner to this chat group transmitted child pornography over a period of nearly a month. One category 3 image and five category 1 images were transmitted. 17. Count 2 involved a group chat called "famtabo" which consisted of 49 other participants, of which 43 remained consistent participants, the theme of discussion being incest and family taboos. Other users posted images of child pornography, as well as the accused. The accused transmitted child pornography on six separate occasions, all category 1 images. 18. Count 3 was a chat group called "Kidzonly", which consisted of 49 other participants. On 13 occasions the prisoner transmitted child pornography to the group, being one category 4 video, one category 3 image and 11 category 1 images. Other users posted images of child pornography, and special requests were made, such as "cute toddlers", "baby's (sic)" and "anyone trade under 3". 19. I hasten to say these were not requests made by the accused, but made at the time that he was participating in conversations. One need only turn, of course, to the names of the groups, "Hiddenfam" "famtabo" and "Kidzonly" to get an understanding of the flavour of the conversations. There were, as I said earlier, 42 unique child pornography materials, but most were single images and most were category 1 images. 20. With regard to individual counts of transmitting child pornography, that is the offences that carry a maximum penalty each of 15 year's imprisonment, he did so on 22 separate days across 36 individual chats and three group chats, but with individuals participating. He transmitted child pornography on 123 occasions. During individual chats child pornography and adult pornography was traded with discussions about "trading" and themes of incest. One such example of this is in Count 20 in the indictment, in discussions with a person named "Jane Draper". I point out it is unable to be established who that person is, whether it is a male or a female. I appreciate that it could be that the chat involved, as I am about to outline, merely titillation rather than a statement of what was actually happening. But what this chat reveals is this: 21. The accused asked Jane Draper, with whom he obviously had prior connection; "Had a yung (sic) one for real", to which the other party replied; "My daughter". The accused within a minute asked; "How old? Any pic?" To which "Jane Draper" replied; "Started at birth". The accused asked how old the child was of the other party, and the other party said; "Five". "Jane Draper" said that he or she, was "27" and the accused wrote "Wow. horny bitches playing(?) love it". The accused asked; "What do u teach her?" Jane Draper replied; "Everything". The accused asked; "Does she suck cock?" The accused wrote further, "swallow", and Jane Draper replied, "Like a pro". 1. After which the accused sent a pornographic image, a category 1 image, of a naked prepubescent female posing at the beach with breasts and vagina exposed. On the same day, in relation to the same count, the prisoner sent the same image to four other recipients. 2. There were many other similarly, may I call them, depraved communications, between individuals over a range of times, including from the prisoner. I agree with the Crown's submission that the prisoner's comments at various times through various chats represented a callous disregard for the plight of the people who were depicted in the photographs. I should say, in relation to some of the still images I was shown, or forced to view as part of an understanding of the material, that simply describing them as photographs of nude children does not really do justice to the photographs, some of the children are posing with a pronounced exposure of their genitals. 3. The Crown relies too on what was produced at the trial to represent the conduct of the prisoner after being charged, in what is called "post arrest" activity. The user name "airCargoMan" was used in a group chat associated with "teenbeastii" between 19 December 2017 and 4 January 2018. These "airCargoMan" posts each had individual IP addresses related to the various subscriber details. A very strong part of the Crown case, of course, was that with internet communications there were IP addresses associated directly with the prisoner and/or his home address. For the "post arrest activity" one such IP address was a cable net connection in the name of the accused's wife at their home address. Other IP connections were to mobile phone numbers registered or subscribed to the prisoner at his home address and a mobile phone registered in the name of a person living at Macmasters Beach on the Central Coast, who when interviewed by the police had no idea that his name was so being used. Of the three mobile phone numbers identified, they had all been used on the same mobile handset with its unique IMEI, or unique identification number. There were a further 17 mobile numbers used by that handset between 14 November 2017 and 14 May 2019, subscribed in the names of other persons, who when questioned by the AFP denied any knowledge of the "airCargoMan" account. 4. There are a number of matters to be observed about the character of the Crown case against the accused relevant to the assessment of matters pertinent to sentencing. In my view, the Crown case against the accused was overwhelming. There is an expression that was sometimes used within the Roman Empire up until its fall, that "all roads lead to Rome". The facts of the matter are that all the evidence led to the prisoner. The prisoner did not give evidence at the trial, as was his right, but called in his case an expert on the relevant matters. This expert gave evidence that, despite the best endeavours of the Australian Federal Police to detect outside interference with the prisoner's mobile phone existed, it was "possible" that there was in existence some program that nobody knew anything about that could in some way interfere with, or for want of a better word, disturb or "hack" the integrity of the prisoner's mobile phone and internet connections such as to create the various chats and send and receive the various examples of child pornography and pornography that were sent and delivered in the course of the various chats on the "Kik" application, the subject of the charges. The problem with this evidence, of course, is that the person or robot that was responsible for this would have to follow the movements of the prisoner every minute of the day to facilitate the sending of messages that accorded, it would seem, the prisoner's movements. Of course, there is no evidence that this actually occurred, as I have said. The AFP conducted a very thorough examination and no "program" was found that could have done what was alleged as possible by the defence expert. All the evidence pointed in the opposite direction. 5. But there was a more obvious matter that went to the issue of whether the prisoner might have known about the various communications, particularly in late August and September 2017, the subject of the charges. The "Kik" application was on the iPhone 7 that was in the possession of the prisoner when he was first spoken to by the investigators. This was the iPhone that he firstly did not disclose to the investigators was in his possession, and, as I said earlier, to my mind, although it was not left to the jury on this basis, he was trying to hide it at least temporarily. His conduct was not left to the jury as 'consciousness of guilt'. But the fact that he was trying to hide it is entirely consistent with what was disclosed on that phone, and he only disclosed its existence because he had no other choice. With the app on his phone the prisoner could gain access to it, that is, the "Kik" application, any time the phone was in his possession. There is absolutely no basis for concluding that mysteriously on the date that the AFP first spoke to him on 28 September 2017 the app just appeared on his phone to coincide with the arrival of the investigators. It is an admitted fact by the prisoner that in 2017, particularly between July 2017 and September 2017, the date of his arrest, the prisoner had possession of and was the user of that particular iPhone, with a specific IMEI number and a specific service number. During this period of time it is safe to conclude beyond reasonable doubt that the app for the "Kik" messenger service was on his phone and accessible by him. 6. There was no evidence that the prisoner was unaware that the app was on his phone apart from his denial of his knowledge of the app which was given on 28 September. That denial was implausible. There is no reason to believe that he would have been unaware of the application being on his phone. Any mobile phone user, and it would appear that the prisoner was a regular user of his iPhone, would have knowledge of or familiarity with the apps that appear on the phone, even if there are many, many apps on the phone. Therefore, all the relevant chats were there for him to see. As I said before in the context of the case that he did conducted, that somehow, remotely, a person or a robot was controlling his iPhone and was able to account for his every move to coincide with the sending of messages and the receipt of messages. That possibility was unbelievable. The facts of the matter are, on his case, he did not notice the messages and he made no enquiries about how the application came to be on his phone and why messages were being sent through the application clearly purporting to come from him. Bearing in mind they were ostensibly sent by his mobile or by the use of his mobile phone using the internet, as the IP evidence demonstrated. That is, IP addresses either connected to him or his wife or his home address. There is a very good reason, of course, for why he never noticed it on his account, if that is the correct way to interpret what he said to the AFP, and that is simply that he did know at all times that it was there, as one would expect that he should have. 7. When one looks at the particular circumstances identified by the Crown to link the prisoner's authorship to the "Kik" messages the prisoner's "fingerprints" were all over the application. The "Kik" account was connected to an email address that he had setup. As I said, the "Kik" application, when operated, related to an IP addresses that were connected to the prisoner directly or indirectly one way or another. As I said, furthermore, there was a connection between the prisoner's activity on the "Kik" app and the use by the prisoner of the "craigslist" site for messages sent by him, and as I would understand it, to him, in relation to sexual activity with either strangers or persons with whom the prisoner did not have a permanent relationship, given at relevant times he was married and living in a suburb of Sydney with his wife. 8. When the prisoner was first spoken to by police he admitted that his iPhone 7 had emails on them connected to the "craigslist" site which were, as I said earlier "embarrassing" for him. One of the background matters to this case, and to my mind it was the obvious chink in the prisoner's armour, so to speak, was that there was evidence before the jury that a particular message sent to the prisoner's wife had been sent to her mistakenly. He made an excuse to his wife that his mobile phone had been hacked and that he was not the author of the message that she received in March of 2017. As it turned out, he had sent many messages of a similar character to the one sent to his wife, through the "craigslist" site. The claim by the prisoner that his mobile phone had been "hacked" was obviously meant to defray what might be thought to be damage to the marital relationship by his wife receiving the message. The claim that his phone had been "hacked", as was his contention at the trial, was obviously untrue. Apart from the similarity between the messages sent to his wife and the messages clearly sent by him to third parties seeking casual sex, being somewhat flexible from time to time as to his age and some of his other personal circumstances, but clearly identifying himself in a range of other ways, there is no evidence of the accused between the date of the communication to his wife and his arrest on 28 September 2017 making any enquiries whatsoever of his mobile phone service provider or any internet provider as to the fact that his phone had been hacked, or taking any steps whatsoever to change email addresses and the like or take any defensive or pre-emptive steps to stop it happening again. I accept the right of the accused not to give evidence or even call evidence, but the absence of any evidence in relation to these matters reflecting any action on his part after the message sent to his wife claiming that his phone had been "hacked" demonstrates clearly that nothing was done. The reason nothing was done was because his phone was not hacked as he described. Rather that he had blundered and sought to make an excuse to his wife in relation to the message that she received. 9. I have not gone through the "web" of material that the Crown presented to demonstrate that the prisoner was connected to the "Kik" application service and/or the "craigslist" account, but the strength of that evidence in connecting the accused to the messages the subject of the charges, is very strong indeed, and that strength was not compromised or displaced by the possibility posited with the jury in the evidence called in the defence case. 10. Regrettably the accused's futile defiance is reflected in the Sentencing Assessment Report prepared by Community Corrections. He denied criminal activity, disputing that he acquired or distributed images and made pronouncements that reek of hypocrisy. He said that child pornography was "horrendous" and that sex with children is "sick and twisted". Of course these comments are objectively correct. But in the circumstances of this matter, noting the facts of the case, I cannot accept that the accused's representations to the Community Justice officer are true. He provides no representations in or out of court during sentencing proceedings to explain how he could not commit these offences. The prisoner was not subject to a "Static-99R" risk assessment report by a psychologist, because apparently he did not meet the criteria for such an assessment due to the nature of the current offences. I am well aware of the fact that in relation to sexual offenders, reference is made to the reality that this actuarial instrument is not suitable for people who gain access to or use child pornography. It seems to me, with respect, that the relevant criteria need to be amended to permit offenders such as this prisoner, who are not charged specifically with sexual assaults but who are charged with purveying material that depicts sexual assaults, as clearly this material does to a large extent, be so assessed. Of course, I am aware of the fact that the actuarial instrument has its limitations. But I have also seen people charged with offences of the type that this prisoner has been charged with, being assessed by that instrument with the relevant qualification being made. 11. I note the prisoner in the Sentence Assessment Report identified the children in the images as "victims" and acknowledged the, "physical and psychological impact on children exploited in child pornography as well as the inappropriateness of engaging in or distributing such material". I also note that he has said that he; "often thought about the children described in the images and how they came to be victims". 1. I can assure the prisoner so do I, as do other judicial officers. The chilling matter in dealing with child abuse or child pornography material is considering the circumstances in which, or the context in which, victims are brought before the relevant camera and particularly what happens to them after they have been before the camera. Or else what other things are done to them in the course of filming them and creating material that is available for public consumption? But, of course, one cannot know. It is clearly the case that young children being brought before cameras to be anally penetrated or vaginally penetrated or to perform fellatio on adult men cannot be doing that voluntarily. I have already, in open court in this particular matter, spoken of the particular experience of mine going back 15 years that still haunts me and shocks me. A grown man filming penile/vaginal intercourse on a three year old girl while her blonde headed two year old brother sat in the background, in the knowledge that he was to be killed by that man within half an hour of the filming finishing. In any event these are the realities of the trade in child pornography and child abuse material. 2. The prisoner told the interviewer from Community Corrections that; "given his views regarding the indecency of child pornography, having young children himself and his belief that adults should protect children he refutes that he would engage in the offences and maintains that he was not the perpetrator". 1. Of course, it could be said that all these matters quoted in the Sentence Assessment Report show some insight. But to my mind they reflect the fact that one can have little confidence at the moment in the prisoner's prospects of rehabilitation. It is one thing to maintain one's innocence, but to express opinions and values inconsistent with the offending in circumstances where the proof of the offending is so overwhelming, where the prisoner has not chosen to walk to the witness box and deny precisely what is alleged against him, is to cast doubt about the sincerity and truth of the stated opinions, which are not on oath and not subject to the test of cross examination. These opinions, of course, should be held by all right minded adults. It seems to me, with the greatest of respect to the author of the Sentence Assessment Report, that the assessment of the prisoner in these circumstances of being "low risk of re-offending", according to the actuarial instrument used by Community Corrections, is somewhat optimistic. This is, in fact, confirmed in my view by the post arrest conduct of the prisoner, to which reference has been made elsewhere, particularly in the Crown's statement of facts. Whilst there is a supervision plan recommended in the report, it is optimistic to think of the prisoner undertaking community based programs for offences of this seriousness. 2. This report contains matters of history, which are dealt with in greater detail in the other material presented by the prisoner. The prisoner was a Major in the Australian Army at the time of his arrest. He graduated from the Royal Military College Duntroon in about 1991 or 1992 and he served in the Australian Army until his discharge in February of 2020. He was suspended from the Australian Army as a result of the charges being brought and since his discharge from the Australian Army has been employed on a casual basis as a dangerous goods delivery driver. He hopes to enter a career in logistics in the future. He has a background in the army of organising logistics for Australian armed services. 3. He has no prior criminal convictions. His history of service and discipline obviously did not stop him offending. But it may assist him in the future to become more pro-social in his conduct. 4. His wife has written a letter to the Court, which I accept to be true. She continues to support him and I note that as a favourable matter for him. The prisoner and his wife have two children, a daughter born in 2014 and a son born in 2018. His wife was pregnant with the second child, in the early stages of that pregnancy, at the time of his arrest. I accept that their lives have been very difficult pending the trial, and since he has been in custody there have been greater difficulties for the wife and the family maintaining contact with him and personally for the wife in looking after the children. 5. Many of these difficulties are related to what we can call COVID-19 issues, which affect many prisoners and which I acknowledge are relevant in this sentencing exercise. Since the COVID-19 restrictions were introduced into our community in mid-March 2020 and thus, of course, into Corrective Services programs and management, there have been many restrictions I am aware of, on personal visits, access to programs and other matters that add to the hardships of custody beyond what can reasonably be expected from the hardship of being incarcerated in normal times. 6. I acknowledge the difficulties to which the prisoner's wife speaks, being a single parent overnight, having to juggle her work and other responsibilities with the care of the children. I acknowledge the prisoner's mother-in-law has an auto-immune disease and other health matters which the prisoner's wife must address. I also note the prisoner's mother, who is the prisoner's surviving parent, is 82 and is described as "very frail and forgetful. She has no other family in her life other than the accused". She is struggling to cope with the accused's incarceration. As I said the prisoner's wife continues to support him and love him. The prisoner's wife acknowledges; "the plight of the children in the photographs, it is sickening and unforgiveable". She noted that she struggled, "every day with reconciling the last few years (of her) life". 1. It was acknowledged in submissions that the circumstances of the prisoner's family, his mother and mother-in-law and wife and children, do not relevantly create "exceptional circumstances" for sentencing purposes as discussed in many decisions both relating to Commonwealth law in sentencing, or State law, but they are still relevant to the mix of matters to be considered by the Court as part of the intuitive or instinctive synthesis of all relevant matters that I am required to undertake. The support of the prisoner's wife, who appeared in my brief observation of her, as an entirely respectable person, I take it, with no prior criminal convictions and a career of her own, is a matter that will assist the prisoner in the future. Notwithstanding his obstinacy in relation to his liability for these offences. Of course, this is not a guarantee of rehabilitation or that the accused will not offend again, as the facts of this matter make clear. 2. I have a psychological report from a psychologist Patrick Sheehan, dated 6 November 2020. As was acknowledged in submissions, this is a document that does not assist the Court very much, providing only some detail further about the prisoner's background, which is uncontroversial, but providing no insight into his offending other than the fact that the prisoner does not suffer any identifiable psychiatric or psychological disorder, or certainly did not at the time of the offending. He does suffer from anxiety arising out of his charging for these offences and his incarceration. That is to be expected. There is no diagnosis of a paedophilic disorder on the basis that the proven facts reveal "no intensive paraphilic interests over at least a six month period". That might be fine in accordance with "DSM-5" criteria I would expect, I have not researched that, but to have an interest in the material that this prisoner sent to other people and was prepared to receive from other people, to enjoy sending it and to communicate with other people in terms illustrated in the earlier facts, reveals a person with significant issues and interests that present him, to my mind, as a danger to children. And a seemingly unrepentant one at that. He is unrepentant having regard to the way the trial was conducted and his attitudes expressed in the reports that have been tendered in these proceedings. He was not grossly thought disordered when interviewed by the psychologist. He had mixed insight. He was "somewhat rigid in affect" but not notably agitated or depressed. Not irritable nor agitated, but embittered and also "pragmatic". 3. This report contains other details of his background that should also be placed on the record. He was born in Kenya to a mother of German descent and a father of British descent, although his mother was born in Tanzania. His father was an engineer and pilot. There was some discord between his parents. His mother had migrated to Australia when he was five. His father was to follow, but tragically he was killed apparently in an aircraft accident weeks before his planned arrival in Australia. No doubt this was a tremendous tragedy for the prisoner's mother and particularly the prisoner to lose his father at such a young age. But he did have a favourable home environment, a positive relationship with his mother, but lamented not having a father. He said he was a well-adjusted child that had no behavioural or emotional difficulties and denied any experiences of child sexual abuse. 4. He joined the army at 21, having completed year 12 in 1987. His initial application for entry to Duntroon was turned down, but he was accepted after undertaking some further training in the community. He became a Captain of the army in 1996 and a Major in 2002. I accept he has worked in traumatic environments such as East Timor, Tonga after a tsunami, also in Border Patrol operations, witnessing the aftermath of capsized vessels. According to the history he has given, he was medically discharged from the army. He obviously, to be fair to him, is an industrious person. He certainly has the capacity to find employment. He has no anti-social peers, apart from the people communicating with child pornography the subject of the charges. He has a strong recreational interest in flying, which was a feature of his communications, I must say, and his identifiable photograph in respect of the "craigslist" material and links in to those messages, sometimes arranging meetings near airports where apparently he had some interests. 5. He married his wife in 2012 and he speaks of some marital difficulties, which I need not place on the record, which he said were "a source of regret". But he does wish to continue a relationship with his wife and children. The matter has been the subject of investigation by Family and Community Services for risk assessment and risk management. I hasten to say this is a pre-emptive measure as there is no evidence of the prisoner sexually abusing his own children. 6. He denied sexual preoccupation to the psychiatrist, which does not accord with the evidence in the trial. Although he was a regular viewer of pornography in the workplace in the Army he said that he was concerned with that material sparingly on the internet. He has no substance use or abuse issues. There are some body injuries, but there is no evidence of brain injury. He suffers from sleep apnoea. He has reported a recent diagnosis disorder of insulin resistance, currently treated with medication. He does not meet the criteria as a result of his life experiences for post-traumatic stress disorder. 7. He said that he had been the subject of bullying and harassment in the workplace in 2011 for which he received psychological assistance. Since being charged in relation to the current matters it is reported that he has attended upon 78 treatment sessions to treat anxiety arising out of the charges. He was initially diagnosed by that treating psychologist as having an adjustment disorder, but that was observed to "resolve". 8. He has been assaulted in custody in August 2020, but he has, "adjusted by approaching the experience through his professional training and is able to recognise the discipline routine and command structure of the Correctional system". He tries to make himself useful in the "wing" and is a regular attendee to the chapel. He appears to be, "coping well under difficult circumstances". 1. With regard to the submissions that were put to the Court, based upon the material available to it, counsel for the prisoner in his oral submissions referred to Mr Sheehan's report, noted its limitations, but relied upon the background information. He acknowledged that there are obvious difficulties that exist for the sentencing exercise arising from the report, because it does not provide any guidance in relation to the prospects of rehabilitation of the prisoner. It was submitted that the prisoner respected the verdicts of the jury. It might be said, although I do not hold that against him, that his reaction to the verdicts of the jury and what he said in open court, which I questioned him about in the absence of the jury, do not reflect that. But that might have been something said in the heat of the moment. It was accepted that the offences were "serious" and "horrific" and there was a right for the community to be aggrieved that a person in his position had committed these offences. That is entirely correct. It was conceded that good character was of lesser weight for offences of this type, however, it was irrelevant, and I agree with that submission too. The prisoner had ostensibly been a good servant of the Commonwealth, as it was described, and the letter from his wife shows his relationship with her and his children was a worthy one. I accept that as so. There were hardships for his wife, but as I have said they were not exceptional circumstances. The prisoner was, in fact, a man of good character who had fallen from grace in a "spectacular way". 2. Whilst in custody COVID-19 restrictions were significant, and I accept that this was so. There were restraints upon personal contact and difficulties with communicating with his children even by video link. His imprisonment would be more onerous for him, because of his lack of experience of being in gaol and the COVID-19 restrictions. 3. The prisoner submitted through his counsel there were two problems arising from the prisoner's convictions. There was the difficulty contacting family and colleagues to seek support in relation to character evidence; there have been no character witnesses called. But no inference should be drawn adverse to the prisoner by absence of the evidence. I accept that is so. But that having been said, the absence of evidence means that there is no evidence on a particular aspect of the matter. 4. The second problem, it was conceded, was the absence of any psychological explanation for the prisoner's conduct. It was submitted in the main that the Crown's written submissions, which were available to the defence, were fair and thorough, and I accept that that is so. There was no major disagreement with them. 5. In relation to the issue of character and antecedents arising under s 16A (2) Commonwealth Crimes Act, whilst character may have less weight it must be given some weight, and I accept that that is so. 6. It was conceded that a full-time term of imprisonment that involved a non‑parole period was appropriate, having regard to the totality of the criminality. It was submitted that in assessing the objective criminality of each of the offences I should bear in mind that the offences were committed over one month, which was a limited period of time. There were a limited number of images. Some images were duplicated, that is, sent on many times. Many of the images, in fact most of them, were still images not videos and were of a low "category". This was not of a worst case situation, it was suggested to be about "mid-range", by reference to legislation that has no bearing upon this particular sentencing exercise, but which has become common parlance in sentencing from time to time in both State and Commonwealth matters. It was also suggested that I should have regard to the categorisation of images as relevant to the objective assessment of the offending, given that the majority of the images were in the lower range of the scale. 7. There was obvious weight, it was conceded, to be given to both general and personal deterrence. In relation to specific deterrence, not knowing his prospects of rehabilitation presented a challenge. With regard to general deterrence, this was a primary matter and there was no evidence of any reduction of moral culpability, and I accept that that is so. The post arrest conduct, it was submitted, can only go to the issue of remorse and rehabilitation, and in that regard the submissions of the Crown were accepted. 8. With regard to the structure of the sentence, it was submitted that there should be an aggregation. The defence was not against the categorisation of the offending by the Crown. But it was to be borne in mind that I was sentencing a prisoner who was now 50 years of age and any sentence of imprisonment on him would be "harsh and oppressive". I would point out, of course, I do not have a transcript from last Friday and relying upon my notes, I hope I have fairly reflected the oral submissions of learned counsel for the prisoner which were articulate and thorough. 9. This turns me then to the Crown written submissions, if I might deal with those at the moment before I come to some other material which is the comparative cases that have been provided by the Crown. Bearing in mind the concessions of the defence, which were very proper and even-handed, and having regard to the observation I made earlier, that the Crown submissions, to my mind are very thorough and fair, there is little need for me to examine them in detail. 10. I have taken into account all the pre-sentence custody. I acknowledge that I am required to sentence the prisoner by regard to Part 1B of the Commonwealth Crimes Act, particularly have regard to the principles set out in s 16A. Section 16A (1) of that Act requires me to fix sentences that reflect a "severity appropriate in all the circumstances of the offence", and s 16A (2) refers to a range of matters that I must have regard to, if they arise in the case. I am taken to the general principles that are laid down in a range of authorities in respect of cases of this type where people are dealing with, transmitting, possessing or creating child pornography offences. I appreciate, of course, that that is a more serious offence to create child pornography material than possess it. All these cases are matters of degree. There could be circumstances of transmission of child pornography material that are as egregious as producing it. I acknowledge that there can be, with regard to the range of activity, a hierarchy of seriousness. 11. Some of the principles summarised by the Crown are: the requirement that a term of immediate imprisonment will ordinarily be expected for such offending; general deterrence is a primary sentence consideration; less or limited weight is to be given to the prisoner's prior good character. It should be acknowledged that child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography. That is reflected, I hasten to say in this Court, with the increasing number of cases of this type. Offending involving child pornography is difficult to detect given the anonymity provided by the internet. The use or possession of child pornography creates a market for the continuing corruption and exploitation of children. We are not dealing with victimless crimes here. Even if the prisoner is not the person who has recruited the children or exploited them personally himself, he does exploit them by sending their images to other people. 12. It was noted amongst the general principles to be applied there is a paramount public interest objective in promoting the protection of children, as the possession of child pornography is not a victimless crime. Children are sexually abused in order to supply the market. All this is self-evidently true. Even if they are children in Romania or Germany or Thailand or the Philippines or China or wherever, the fact that their images are produced here in Australia means that harm is being done to people from those places. The harm that will be caused to the children exploited is "profound", and that harm is exacerbated by the continuing circulation of images on the internet indefinitely. Once something escapes to the internet it is seemingly unrestrained. The fact that the prisoner did not pay to access child pornography websites or, was not involved in the distribution or sale of pornography, which is the case here, does not mitigate the offending. But then again, having said that, one would have thought that providing material for profit would aggravate the offending. 13. The maximum penalty for each of the offences, are properly to be regarded as yardsticks for the appropriate sentence. One has to assess the seriousness of particular offending within the range of offences of the type with which the prisoner is charged. It should be said in fairness that when one looks at cases like Minehan [2010] NSWCCA 140 and the other decision of Porte v R [2015] NSWCCA 174, referred to in the Crown's written submissions, which I think contains the very learned judgment from Johnson J, adopting what is said earlier by R A Hulme J, those cases involve possession of child pornographic material, thousands of images, very different from the situation here. In any event Minehan was a case with various Commonwealth and State offences charged. That judgment was given by R A Hulme J and there are some criteria or non-exhaustive list of factors. I will run through them, because it is worth doing so for the purposes of this sentencing exercise. 14. Firstly, were actual children used in the creation of the material? In this case, yes. The nature and the content of the material and the gravity of the sexual activity portrayed; largely it was at a lower level, particularly the category 1 material, but the category 4 material was grossly offensive by definition. I have to have to consider any physical harm occasioned to the children. It is difficult to know, but one might have thought that some of the category 4 material reflected significant physical harm to the child. 15. As to the number of images or items of material, here the images in their number were relatively small. The material was for "personal use" and dissemination, but not for sale. In relation to the dissemination of material the number of persons to whom the material was disseminated is a relevant matter, and I have noted that from the information provided by the Crown. Whether there was any payment made for the material I am unable to say. Although it is pointed out, not to pay for access to child pornography material or not being involved in the distribution and sale of such material, does mitigate the offending. The proximity of the offender's activities to those responsible for bringing the material into existence is not known. I would suspect it is remote. The limited images I have seen suggest victims who have been photographed or filmed overseas. The degree of planning, organisation and sophistication is limited in this particular matter 16. The age of the people with whom the prisoner was in communication I am unable to say. I would have to assume that they were adults, I cannot point to any suggestion that he was communicating with children. But he was communicating with very depraved people, as "Jane Draper's" communications make clear. Whether the prisoner acted alone or in a collaborative network depends upon the facts of each case. The involvement of the prisoner in chat sites as reflected in Counts 1 to 3, the aggravated form of the offence, show a large number of people within reason. There is no evidence of the material being acquired by vulnerable persons. But again when material escapes into the internet who knows who gets access to it. I cannot conclude that there is a risk of the material being acquired by persons susceptible to act in the manner described or depicted. But then again people who watch this sort of material, one might imagine, would have a predilection towards behaving that way if they have the opportunity. I cannot conclude that beyond reasonable doubt. 17. Of course, there are other matters that arise in this case under s 16A. So far as the facts and circumstances of the matter are concerned, I have set that out in the summary of facts and made other comments about the character of the offending. 18. I have taken into account the detail the Crown has provided of the number of times images were transmitted. The people that were involved. The character of some of the chats and the like. With regard to Counts 4 to 25, the non-aggravated offences, the prisoner transmitted child pornography material on 123 occasions. He variously transmitted to 30 individual users and three separate group chats, as I said. That is a substantial network to whom the material was sent. 19. By reference to s 16A(2)(c), the offences seen together represent what could be called a "course of conduct" and, of course, the Crown's observations at [23]-[28] as they particularly detail the character of the offending, represent fairly the facts of the matter. 20. So far as the circumstances of the victims, loss damage or harm caused, matters arising under sub para (d) and (e) of the subsection, are unable to be identified. But clearly, as was earlier said, these are not victimless crimes. You only have to look at the images to see the foul exploitation of these children. 21. There is no contrition expressed by the prisoner in any way, shape or form. He does not get extra punishment for that, but it is not a relevant mitigating matter for the purposes of this sentencing exercise. (See s 16A(2)(f)). There was no acknowledgment of guilt at any point and no expression of remorse by the prisoner at any stage of the proceedings. He was fully entitled to defend the charge, or the charges brought against him, but that is a right that does not of itself inherently reflect any contrition or remorse on his part. To my mind there must be an element of personal deterrence in the sentence I impose to deter this prisoner from further offending of this type, notwithstanding his prior good character and his reputation within his community before he was charged in relation to these matters (See s16A(2)(j)). Of course, as the Crown correctly points out, general deterrence is of fundamental importance in sentencing for these matters, and I need not say any more about that. 22. I have had full regard to the prisoner's character, age, antecedents and background, as a relevant matter. The Crown cautions against hearsay representations in this regard in third party reports. But there is nothing exceptional about his history that would cause one to doubt the truth of what is reported by him and others about him, so far as his background is concerned. 23. I have taken into account his health. But there is nothing significant in the health matters. I have already reflected upon the correctness of the submission made, acknowledged by the defence, that his prior good character whilst relevant is of lesser significance in offences of this type. The truth of the matter is the vast majority of people charged with possession of child abuse material and child pornography material are people without prior criminal convictions in my experience. 24. As to his prospects of rehabilitation as they arise for consideration under s 16A(2)(n) and, as is reported by the Crown, s 16(2AAA) Crimes Act, one has to have a guarded approach to this matter given the absence of contrition and the character of the offending. There is, to be fairly said, a stable context from which the prisoner comes. Then again I note in relation to that aspect of the matter it did not prevent the prisoner from offending in the manner with which I am concerned. I note the newly introduced s 16(2AAA), as it is cited in the submissions by the Crown, states: "In determining the sentence to be passed or the order to be made in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person including by considering whether it is appropriate to take into account such of the following matters that are relevantly known to the court. Firstly, when making an order to impose any conditions about rehabilitation or treatment options, and secondly, in determining the length of sentence a non-parole period to include sufficient time for the person to undertake a rehabilitation program". 1. Of course, there are no "special circumstances" required to be considered under Commonwealth legislation. That is a particular aspect of State legislation in s 44 Crimes (Sentencing Procedure) Act 1999. But in this particular matter, matters that are relevant to "special circumstances" in State sentencing arise for consideration here in fixing a non-parole period and also in the context of the particular provision to which I have just referred and other matters. It seems to me that there needs to be an adjustment of the relationship of the minimum term to the balance of the sentence to permit the prisoner the opportunity for rehabilitation in the community. He has the potential for rehabilitation given his discipline in the past and his qualifications from the past. It is just that at the moment he does not display it. In fixing the non-parole period I am including for consideration, amongst other things, sufficient time for the prisoner to undertake appropriate rehabilitation programs. It is highly likely however, I do not know for sure, that he will be required to undertake programs in custody before his parole can be considered by the Commonwealth authorities. If that is the way in which the system still operates in over two years' time. 2. The Crown invites me, by reference to the decision of Hili v R and Jones v R [2010] 242 CLR 520, particularly at [48]-[49] to have regard to comparative sentences. The Crown very kindly provided me with four judgments of intermediate appellant courts, two from Queensland, two from New South Wales. There is an obligation for the Crown to ensure that Federal sentencing across the Commonwealth of Australia, making allowance, of course, for different sentencing practices in each State and Territory, are consistent. There is no point in sentencing offenders in New South Wales in a different manner than they may be sentenced in Queensland or Western Australia when they offend the same legislative provisions. The Crown concedes that the cases that I have been provided may provide some guidance as to the range of sentences, but none of them are equally comparable. They also provide some underlying principles. 3. The Crown referred the Court to a selection of comparative cases, being decisions of the New South Wales Court of Appeal and the Queensland Court of Appeal. In fact in relation to one such case, that is the decision of Lyons v R [2017] NSWCCA 204, which I will come to in a moment, the Crown made a specific submission that I should have regard to that authority not only for comparative sentencing purposes, but also to principles in it that reflect the need for each offence to be assessed individually as to its seriousness. The Crown accepted, of course, that 22 individual offences of like character were of similar seriousness, but with regard to the aggravated offences the Crown said that Count 1 was less serious than Count 2, and Count 2 was less serious than Count 3. In other words Count 3 was the most serious offence, which I think was conceded by counsel for the prisoner. 4. Returning, however, to comparative matters. In fairness, the Crown pointed out that because of the way in which the prisoner was charged involved the unusual situation where instead of having one charge that covered a period of time, there were 22 individual charges for individual days. The authorities provided little assistance in relation to Counts 4 to 25. But they were probably of more assistance to the aggravated offending, that is, in Counts 1 to 3. 5. In this regard I note in the decision of Lyons, to which I referred, the offender was sentenced in relation to six counts involving one State offence of possession of child abuse material and five Commonwealth offences, that is either transmitting child pornography material or making available child pornography material, as well as one offence of the aggravated form of the offence under the same provision as Counts 1 to 3 have been brought. The sentence in the District Court was set aside because of a disregard by the sentencing judge to "totality principles" and a failure to appropriately distinguish between the objective seriousness of each individual offence. So, in other words, the Court of Criminal Appeal reduced the sentence imposed at the District Court. The sentence fixed by the Court of Criminal Appeal was six years, four month's imprisonment with a non-parole period of three years, six months. The various offences, other than the aggravated offence, involved varying numbers of images either transmitted or made available, and I note that the sentences imposed by the Court of Criminal Appeal in relation to the individual offences. The aggravated offence, however, involved a total of 861 recipients from four emails with links to a total of 38 active Cloud storage sites with 215 child pornography files, the majority being categories 1 or 4. Of course, putting aside different subjective matters relating to each offender, the field of recipients in relation to that one count far exceeds the total number of recipients in relation to the three counts with which I am now concerned, and, of course, the number of child pornography images is again significantly greater in the one count. 6. The other New South Wales authority referred to was R v Linardon [2014] NSWCCA 247. I should point out in relation to Lyons and Linardon, that both offenders pleaded guilty and received appropriate discounts, in Linardon's case of 20%, in Lyons' case of 25%. In Linardon the offender was sentenced in relation to five offences. This was the subject of an appeal by the Crown. One offence was a State offence of possessing child abuse material. As I have said, a common feature of the offending with which this prisoner is charged, although the prisoner himself is not charged with possession of child pornography images. There were three offences concerned with using a carriage service to transmit child pornography material or access it, and there was one offence of aggravated form of transmitting child pornography material on three or more occasions to two or more people. I have had regard to the sentence for the aggravated form of the offence and note on three separate occasions the prisoner in that matter forwarded 71 child pornography files to a total of ten separate email accounts. The indicative sentence for that offence imposed by the sentencing Judge was three years, and that was not disturbed by the Court of Criminal Appeal. But the sentence in relation to Count 4 which involved direct contact with the child was substantially increased. Again, the aggravated form of the offence involved a greater number of child pornography files than that in which the Court is currently concerned. I note in the context of other offending that there was a significantly larger number of images either possessed or transmitted at various items. 7. In relation to the counts which were concerned with using a carriage service to transmit indecent communication to a child under the age of 12, with which this prisoner is not charged, the child was sent 99 child pornography files. The majority being categories 3 and 4 with 13 child pornography chat sessions between the offender and the child. The State offence of possessing child abuse material, which attracted a sentence of two year's imprisonment, involved the possession of 4,530 child pornography images or child abuse images and 40 child pornography videos. This illustrates what I was saying earlier that many of these other cases involve substantially greater numbers of images than transmitted by this prisoner. But then again, these people had pleaded guilty, and I would expect, had been acknowledged for their remorse, amongst other mitigating factors. 8. So far as the oral submissions of the Crown are concerned, I have not dwelt upon them, because they really reiterated what was eloquently placed within the Crown's written submissions. The Crown, however, particularly reminded me in oral submissions that I was required to have regard to s 19 Commonwealth Crimes Act, particularly s 19(5) and s 19(7). S 19(5) had a presumption in favour of accumulated sentences, and s 19(7) required the Court to give reasons for setting aside that presumption. 9. That brings me to the issue of totality of criminality. As I said, I propose to fix an aggregate sentence to reflect the totality of the criminality of the prisoner. I am sentencing the prisoner for 25 offences, each with a significant maximum penalty, as I have outlined. The criminality for sentence extends over a month. I have assessed the criminality of the offending in the context of the assistance provided to me in the comparative sentencing cases, for the limited extent that they do assist me, and the application of general principles for aggregation, some of which are set out below. 10. I have had regard to a number of things, including the number of images transmitted, the number of persons involved in the relevant chat sessions, the number of victims involved, the time over which the particular offence was committed and the number and character of the images by reference to CETS categories. Although, that is not necessarily definitive of the significance or the seriousness of the offending, as the Crown points out. 11. The Crown, as I said earlier, submitted that Counts 1 to 3 were in ascending order of objective seriousness and I accept that submission, and I note the period of time over which they were committed. I note that Count 3 is more serious, because it involved more chats, more images and included one category 3 image and one category 4 image, described in tab 5 of the Crown's bundle. The 22 other offences were committed over much the same period of time, but each committed on separate days. A chart provided by the Crown at tab 4 of the Crown bundle sets out a number of images, the number of individual child victims, the CETS categories and the number of individual recipients. 12. Nearly all the individual offences in Counts 4 to 25 are worthy of a term of imprisonment if they stood alone, except for perhaps two counts where there was only one recipient with one image sent. They must fall at the lowest end of seriousness of offending, having regard to the number of images, the number of recipients and the fact that in two of the counts category 1 images, that is single images, were sent. Count 25, I should point out, involves one recipient and one message, but it involves category 4 material under the CETS categorisation. That is more serious than the other two offences to which I referred. The other offences vary in seriousness and I have tried to reflect in the indicative sentences with some variation, having regard to the various factors such as the number of recipients, the number of images, the categories of images and the like. The scope of the offending in those counts is comparatively limited by reference to cases of high authority such as Porte and Minehan. I have noted that earlier when I referred to those cases. 13. In fixing an aggregate sentence and fixing the indicative sentences I have had regard to the dicta in Pearce v The Queen [1998] 194 CLR 610, as per the majority at [45], where in a conviction appeal, for reasons which were pertinent to the way in which the matter had been dealt with in the Court of Criminal Appeal, the majority of the High Court said that a Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence then consider questions of accumulation, concurrency and then totality. 14. There are also the statements of high principle in Mill v The Queen (1988) 166 CLR 59, at pp 62-63, and of course the observations, that I mentioned in submissions to Mr Stanton of learned counsel, in Holder and Anor v R (1983) 3 NSWLR 245 at 260. There the learned Chief Justice, to my mind, expressed the most practical application of the principle of totality that I have read. He said inter alia: "The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentence is appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate in a broad sense, the overall criminality involved in all of the offences and having done so, will determine what, if any, downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences (sic) in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentence. The effect of this practical consideration is always to produce an ultimate aggregate which is less than which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone". 1. I pause for a moment to point out now that there is a presumption in favour of just adding up sentences in the way judges in Texas have been doing apparently for many years, fixing sentences ultimately that far outlive the life expectancy of the offender. 2. There are many other authorities dealing with totality of criminality. I particularly note the High Court judgment in 2004 of Johnson and the very learned judgment in Jimmy of the New South Wales Court of Criminal Appeal, particularly of Campbell JA, Howie and Rothman JJ, where they discuss at some length also the concept of parity of sentencing. 3. As I said, I am required to have regard to s 19(7) of the Act, and the presumption that I have earlier referred to. "Section 19 (5) of the Act does not apply if the court is satisfied that imposing the sentence in a different manner would result in sentences that are of severity appropriate in all of the circumstances". 1. I am satisfied that the sentence that I propose is of a severity appropriate in all of the circumstances, and that wholly accumulative sentences should not be imposed. Firstly, having regard to the proper consideration of the principle of totality of sentencing and the manner in which it can be practically administered, as discussed in Holder, and also having regard to matters that obviously must fashion the sentence, such as relevant to objective facts (the offending overlaps) and relevant mitigating matters. The aggravated offences completely overlap in time the 22 individual offences the less serious offence. Although it reflects greater criminality, there is a need for consideration, as was discussed in Pearce, of a high degree of concurrency in the calculation of the sentences. I appreciate that some of the offences involve multiple sendings of child pornography material and I have sought to distinguish the individual offences in Counts 4 to 22 by reference to the consideration of the number of images and the number of recipients. This is not an appropriate case in all the circumstances for accumulation of each sentence that I impose. 2. Thus, I have concluded that I should fix the sentence that I foreshadowed to the prisoner by regard to the evidence available to me and all the submissions that have been made by the parties to the issues that I have to address. 3. You don't have to stand up, Mr Blowers, because it is pointless you standing up in a room some distance away from me. 4. In respect of all the counts in the indictment you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 you are sentenced to an aggregate sentence of five year's imprisonment to commence on 31 July 2020 expiring 30 July 2025. I fix a minimum term of non-parole period of two years eight months, imprisonment commencing on 21 July 2020 expiring, on my calculation, on 30 March 2023. The indicative sentences I impose are as follows: In relation to Count 1; an indicative sentence of two years, three months imprisonment. In relation to Count 2; an indicative sentence of two years, six months imprisonment. In relation to Count 3; an indicative sentence of two years, nine months imprisonment. In relation to Count 4; an indicative sentence of 12 months' imprisonment. Count 5; six months imprisonment. Count 6; 12 months imprisonment. Count 7; 12 months imprisonment. Count 8; nine months imprisonment. Count 9; 12 months imprisonment. Count 10; nine months imprisonment. Count 11; six months imprisonment. Count 12; nine months imprisonment. Count 13; eight months imprisonment. Count 14; six months imprisonment. Count 15; nine months imprisonment. Count 16; 12 months imprisonment. Count 17; six months imprisonment. Count 18; six months imprisonment. Count 19; one year, three months imprisonment. Count 20; nine months imprisonment. Count 21; one year, nine months imprisonment. Count 22; 12 months imprisonment. Count 23; one year, six months imprisonment. Count 24; one year, six months imprisonment. Count 25; 12 months imprisonment. 1. I point out, as I said in the course of my judgment, in relation to Count 25 there was one recipient and one file but that was a category 4 video, the character of which I have already summarised. 2. Do you understand the sentence I have imposed, Mr Blowers? 3. OFFENDER: Yes, your Honour. 4. HIS HONOUR: The minimum term you will serve on the orders I have made, subject to your rights of appeal and the Crown's rights to appeal is two years eight months from the day you came into custody. Whether you are released to parole at the end of your non-parole period will depend on a range of factors to be considered by the releasing authority. 5. Which would be, Ma'am, the Commonwealth Government or the New South Wales Parole Authority, do you know? 6. IBBETT: The Commonwealth Parole, your Honour. 7. HIS HONOUR: The Commonwealth organisation will decide that matter. 8. I also confirm the forfeiture order which I pronounced earlier. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2021