District Court New South Wales Medium Neutral Citation: R v Castellarin [2021] NSWDC 571 Hearing dates: 1 October 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [117]. Catchwords: CRIME – SENTENCE – use carriage service to access child pornography material. Legislation Cited: Crimes Act 1914 (Cth) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: Baden v R [2020] NSWCCA 23 DPP (Cth) v Saadieh [2021] NSWSC 1186 Fitzgerald v R [2015] NSWCCA 266 Hili v The Queen (2010) 232 CLR 520; [2010] HCA 45 R v Hutchinson [2018] NSWCCA 152 Valentine v R [2020] NSWCCA 116 Category: Sentence Parties: Director of Public Prosecutions (Cth) (Crown) Daniel Castellarin (Offender) Representation: Counsel: S. Dayeian (Offender) Solicitor/Trial Advocate: N. Ojerholm (Crown) File Number(s): 2019/283885 REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of an offence pursuant to s 474.19(1) of the Criminal Code Act 1995 (Cth) of use carriage service to access child pornography material. The offence was committed between about 22 and 23 May 2019 and the offender was arrested on 11 September 2019. 2. The maximum penalty for the offence is 15 years imprisonment. 3. The offender was born on 7 August 1972 and was therefore 46 years of age at the time of the offence. The sentence hearing 1. The sentence hearing took place on 1 October 2021. The Commonwealth Crown sentence summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows. From July 2018, the offender had been employed by Starboard IT. He had been contracted to Pepper Group as a project manager and had been issued with a company laptop. The offender had assigned a password of his own choosing to the laptop. 2. At 10:00am on 22 May 2019, the offender had downloaded what is known as a "Virtual Machine", which is a virtual computer system that provides the functionality of a physical computer, isolated from the operating environment of the offender's computer. This allowed the user to operate multiple types of operating systems at the same time. 3. At 10:15am, the offender downloaded what is known as a "tor browser". This is software that enables anonymous communication via the internet. Use of this software makes it more difficult to trace the location and internet activity of a user. It also allowed access to parts of the internet that are not indexed by traditional web browsers, such as "Google". 4. Between 11:17am and 2:55pm, the offender downloaded files into a folder which he titled "cul". Many of the files were then loaded into VLC, a multimedia player. A number of other tasks were performed during the same period of time. 5. The following day, the IT Security Manager at Pepper Group received a malware alert in respect of the offender's laptop computer. The alert had occurred on 22 May 2019 at 11.20am and the item in question was a file that appeared to be pornographic in nature ("Cyrielle – French slut"). Several files with similar titles were downloaded around the same time, one of which had indicated that the person depicted was "underage" ("Cyreille 16yo"). 6. The offender's work laptop was confiscated and following analysis was found to contain a significant volume of suspected child abuse material. The company then reported the matter to the NSW Police. 7. Upon investigation, the previously identified folder "cul" was found to contain several sub-folders which contained additional video files, images and password-protected folders. The material was classified according to the INTERPOL Baseline Characterisation Scheme as follows: a. Category 1: 24 videos of varying lengths (from 10 seconds to 24 minutes and 53 seconds, 240 images) b. Category 2: 943 images 1. The child abuse material included depictions of real children and real prepubescent children involved in and witnessing sexual activity, as well as material that focused on the anal and genital regions of these children. 2. Following his arrest on 11 September 2019, the offender participated in a record of interview in which he stated as follows: a. He had never knowingly accessed or downloaded child abuse material. b. He assigned his own password to his work laptop when he was assigned it by Pepper Group and changed it two or three times while working for Pepper Group. c. He believed that other persons had used his laptop but was unable to identify any of these persons. d. He never knowingly gave anyone his password, but someone could have obtained it by watching him enter his password or using a key logger. e. He sometimes left his laptop unlocked at his desk and at home and his laptop would lock itself after a few minutes. f. The child abuse material could have been placed on his work laptop by a person with a vendetta against him. g. Someone could have downloaded the child abuse material on to his work laptop by background hacking off the machine. 1. A search warrant was executed at the home of the offender during which a USB was seized from the offender's bedroom. Located on the USB were: a. A folder titled "Cul" containing a single file named "cul.rar" which was unable to be opened, as it was password protected. It was found to contain data and was created on 7 June 2019. The agreed facts noted that "rar" files are compressed files that can be split into multi-volume archives when dealing with large file sets; and b. A Microsoft word document titled "Onionlogins.rts" that contained Onion browser links with references to children and "dark web" material. 1. Exhibit A included the offender's criminal antecedents which included one offence in 2009 of drive with middle range PCA and one offence in 2017 of stalk/intimidate/intend fear physical etc harm (domestic) for which a s 9 bond was imposed for nine months. 2. Exhibit A also contained a Sentencing Assessment Report ("SAR") under the hand of Ms R Robinson dated 29 September 2021. The author noted that the offender lived with his estranged wife and three teenage sons but had the support of his current partner. The conviction in 2017 followed relationship and parenting disagreements. 3. Under the heading, "Attitudes", the author stated that the offender minimised his involvement in his index offence, stating that he was looking at cyber security material when he came across a hyperlink to the child abuse material which he downloaded out of curiosity. He attributed his offending to a culmination of stress and dissatisfaction in his professional pursuits, a high incidence of pain at the time and difficulties relating to the transitionary period of separating from his wife and beginning his current relationship. 4. With respect to the USB found in his bedroom containing references to children and dark web material, the offender claimed that he could not remember downloading any material to a USB and "can't imagine his state of mind at the time if he were to have done that". 5. The offender reported to have been taking prescription opioids for pain management at the time of his offending. Contact with his doctor had verified that he had been prescribed slow release opioids for back pain on 28 March 2019. The offender's doctor had stated that if taken for an extended period, or used more than prescribed, this drug could potentially inhibit decision making by producing a drowsy effect on the patient. 6. Under the heading, "Insight into impact of offending", the offender made no mention towards the impact regarding the nature of his offending on the victims depicted in the child abuse material. The offender expressed shame relating to the offence and concern that it has impacted his personal relations by putting shame on his relationship and stress on his children. 7. The author noted that the offender had commenced psychological intervention in September 2019 to help cope with his emotions surrounding the offending, however had ceased that in December 2019. His psychologist confirmed that he had attended eight sessions that focused on his depressive mood and that minimal discussion took place around his offence "as he disclosed his charges not long before ceasing treatment". 8. The offender was assessed as being at a medium-low risk of reoffending and using the Static-99 R actuarial risk assessment tool, he was placed in the Average Risk category. He was assessed as suitable to undertake community service work. 9. The offender had been referred to the NSW Department of Corrective Services for a psychological sentencing assessment and the report was annexed to the SAR. The aim of the assessment was to assist in the prediction of sexual recidivism and to comment on treatment needs for the offender, who was by then 49 years of age. The report noted that the offender does not appear to have any significant substance use issues and that he may have problems with depression and mood instability which requires further treatment with a psychologist. The report concluded that the estimate of average risk based on the Static-99 R factors did not include dynamic risk factors such as intimacy deficits, general and sexual regulation domain which were to be explored further post-sentencing. It was recommended that the offender be referred to a CSNSW psychologist for a comprehensive assessment of his dynamic risk factors to better understand treatment needs, risk management options and referral recommendations. In the event that he received a custodial sentence, the report concluded that the offender will not be considered eligible for sex offender specific treatment programs given his risk rating. He may be found eligible to complete the EQUIPS Domestic Abuse program, either in the community or whilst in custody. It was recommended that he be referred to a psychologist for assistance with his mood and general coping. 10. Exhibit A contained, at tabs six and seven, evidentiary material relating to the downloading of the sexual abuse material. 11. Exhibit B was a bundle of sample images from the child abuse material downloaded by the offender. It was reviewed and returned immediately to the Commonwealth Crown. The offender's evidence 1. The offender tendered a bundle of documents which became Exhibit 1. Exhibit 1.1 was a report from Dr M Sidhu, forensic psychologist, dated 9 September 2021. Dr Sidhu assessed the offender for one hour and 40 minutes via a tele-health platform known as "Coviu". Dr Sidhu took a family history. The offender was born in Toronto, Canada in 1972 and described a loving and nurturing home and family environment, notwithstanding that his parents clashed. He reported a positive relationship with his siblings and parents and speaks to them regularly. He is also on amicable terms with his estranged wife and has a positive relationship with his own three children. 2. After university, the offender obtained a role with IBM and at 24 years of age moved to Australia with his then partner and began working with IBM in Australia. He had constant work, usually as a contractor in the Information Technology field. 3. The offender was currently on a disability support pension from Centrelink for osteoarthritis which affected his neck, back, shoulders and wrists. He suffers from chronic pain. 4. The offender had denied ever attaining, transmitting or disseminating child abuse material and denied having peers or contacts with others who endorsed attitudes or behaviours relating to such material. Dr Sidhu commented that the offender showed an ability to recognise the impact on any child victim and that he showed insight into the impact on potential victims. 5. In respect of the index offence, the offender reported to Dr Sidhu that he was "not thinking" clearly due to prolonged stress involving his marriage and his physical health. He had stated that he previously looked at pornography on work supplied machines but had not ever downloaded it. He denied ever previously accessing or wanting to access child abuse material. 6. Dr Sidhu noted that the offender reported that he did not seek out child abuse material but there were a number of "banners" that popped up and he began downloading them, unaware that it was sexual images of children. 7. When asked why he did not delete the material when he realised he had downloaded child sexual material, the offender stated that in the moment he was "curious" as he had "never seen it before". He stated that the images were titled "sexy teen". He stated that he was "repulsed" by images of pre-pubescent children and that he had "freaked out" so "I just went home". The offender stated that he did not look at all the images, but they had all downloaded onto his computer as it was a .zip file. He denied being aroused by the images. 8. The offender further stated that he "knew it was wrong immediately". 9. The offender acknowledged that as an IT worker, it was a stupid decision. He had behaved impulsively and wanted to understand the driver for this and as such was motivated to undergo treatment and thus reduce his risk of reoffending. 10. Following psychometric assessment, the offender was found to have an unusually high score on the inconsistency scale, suggesting a lack of responsiveness to the assessment and possible random responses to questioning. 11. Dr Sidhu recorded that the offender had been increasingly stressed in the months leading up to the offence with the conflicting parenting styles between himself and his estranged wife. He also experienced chronic pain, job dissatisfaction and a loss of motivation to work. Dr Sidhu opined that a culmination of these factors was present at the time of the offending conduct leading to his reckless behaviour. 12. Dr Sidhu conducted a risk assessment based on dynamic factors associated with sexual violence and opined that the offender was currently at a low risk of sexual reoffending. He made a number of treatment recommendations, including psychological intervention. 13. Exhibit 1.2 was a letter from LSC Psychology confirming that the offender had been added to an individual treatment waitlist as of 27 September 2021. The current waitlist period was approximately three to four months. 14. Exhibit 1.3 was a letter from the offender's local medical officer, Dr C Badr dated 24 September 2021, setting out the issues for which the offender is currently on a Centrelink disability support pension. In addition to widespread osteoarthritis, the offender suffered from fibromyalgia, rheumatoid arthropathy, an unrepaired hernia and diverticular disease. He also suffered sleep apnoea. 15. Exhibit 1.4 was a letter from the offender's eldest son dated 27 September 2021 stating that the offending was grossly out of character and that the offender remains a positive influence in his son's life. The letter attested to the remorse shown by the offender for his offending conduct. It also set out that the offender had always provided a good moral compass to him and his brothers and had cared well for them. He had also demonstrated empathy for the victims of child sexual abuse. The offender's oral evidence 1. The offender gave evidence of his work history and acknowledged the agreed facts were correct. The reference to downloading a virtual machine was a work task done frequently in his job as a project manager. It was a cost effective way of testing different programs. He gave evidence that using a virtual machine does not provide anonymity within the computer system being downloaded. 2. The offender gave evidence that the tor browser downloaded by him was a version of internet browser software. He was aware that it was used to access the dark web and had read about it in the context of cyber-attacks by use of malware as part of his security duties. Using the tor browser was not a common occurrence as it was not used on a daily basis. His only use of it was in his involvement on a security team at work. The project in which he was involved had one security team member and he had been asked to be involved in that process one day per week. 3. The offender gave evidence that he had not used the virtual machine to facilitate the download of child abuse material. That occurred as a result of his use of the tor browser, whereby he had followed links to view pornographic material. There were three or four banner links which he followed and the material was downloaded as compressed files, that is, .zip files which contained a number of files. It occurred over one or two hours. 4. The offender gave evidence that a common occurrence in his computer use at work was to create folders titled "cul". Titling a folder "cul" was one step taken before deleting the material within it. It was a reminder to him to delete material which was usually innocent. 5. The offender gave evidence that whilst the agreed facts stated that downloading the material took three hours, it did not occur during the entire period. The compressed files took a long time to download. During that time, he was going back and forth, doing his usual work, or going to lunch. 6. The offender gave evidence that he viewed approximately one third to one half of the images on that day. He gave further evidence that the VLC multimedia player was a default application on the computer used to play videos. He had not downloaded any material to any other device and had not used any other storage, for example, Cloud storage systems. 7. When asked why he had not deleted the material straight away, the offender stated that he had been called into various conferences and had forgotten to delete it. He was asked why he had not been honest in his ERISP interview as to how the material had been downloaded and said that at the time he was embarrassed, scared and appalled at himself. When asked to explain why, he said that he was appalled by his lack of foresight as to the impact on the victims of such material. He now deeply regretted what he did and had insight into the pain and abuse caused to child victims and the long-term effect on victims and the community as a whole of such material. He understood that many people were trafficked around the world and it affected families and the broader community. 8. The offender was asked what was going through his mind at the time and he stated that he couldn't believe the material and kept looking as a matter of fascination. He said this was out of character for him and that his consumption of pain killers had led to his lack of judgment. 9. The offender gave evidence that he had worked for 13 months as a shop assistant following his arrest until the end of December 2020, but his employer was not aware of the charges as she was "very religious", and would have dismissed him had she known. He had not taken steps to find any regular employment. 10. The offender also gave evidence that he was in a relationship although he and his partner do not live together. He had the support of his partner, who knew about the charge. 11. The offender gave evidence that he had been honest when speaking to Dr Sidhu and that in the future he would undergo psychological counselling. He was presently on a waiting list at both his own surgery and with LSC Psychology for intervention. Also, his partner was a social worker and had been a big help to him. 12. The offender also gave evidence that he had been honest with the Community Corrections Officer who had prepared the SAR. 13. The offender gave evidence that he had been unable to afford treatment for a long time after his arrest because of his poor financial position. He had, at first, attended treatment at the Hunters Hill Medical Practice but had been told that he needed to see someone more specialised in sexual offending. That person cost $400 per hour, which he could not afford. 14. The offender gave evidence that his children were now aged 19, 16 and 13 years. They were quite young when he had separated from his wife in 2017. She had suffered chronic fatigue syndrome and he was the active parent. They decided to continue the arrangement to live together so that he could contribute to the house and cook and clean for the children as well as pay for food and bills. 15. In cross-examination, the offender gave evidence that he wanted to have treatment to understand why he offended. He was on the waitlist at LSC, however, he may have to sell possessions that he no longer needed to pay for the treatment. 16. The offender was asked about the USB found in his bedroom which included a "Cul" folder. It was put to him that the agreed facts stated that the USB contained links to the dark web and to child abuse material. He could not recall where that data came from. 17. The offender was also cross-examined on the material in tab six and seven of Exhibit A as to the data downloaded by him. It was clear that the download occurred by use of the tor browser. It was put to the offender that he knew that the browser could be used to hide activity and that it was fair to say that he thought he probably would not be caught. The offender gave evidence that he was aware that he could be caught. It was put to him that he was using the tor browser to hide his online activity, however he said that he didn't think he would need to hide it. 18. The offender gave evidence that he was aware that child abuse material was illegal and it involved children under the age of 18 years. He was referred to material in tab seven which clearly identified children under that age, including children aged 16 and 11 years. It was put to him that he told Dr Sidhu that he knew that looking at the child abuse material was wrong, with which he agreed. He said, however, that he was repulsed when he got to a certain point. He agreed that on the day in question he spent three hours looking at the material but with certain breaks. He further agreed that he had taken no steps to delete the material, either on 22 May or 23 May 2019. On 23 May, his computer had been used between 8:17am and 10:55am. It was put to the offender that he had left the material on his computer so he could return to it. He answered, "No, that was not necessarily what I intended." It was then put to him that he was not too concerned about being detected because of the technology that he had used, with which he agreed. 19. The offender gave evidence that he had been prescribed codeine and Targin but that he could not remember what he was taking at the time of the offending. His back pain had meant that he was working shorter hours. 20. It was put to the offender that he was still able to download and use the tor browser software and that he knew what he was doing. The offender stated that he believed that his judgment was impaired. It was then put to him that he told Dr Sidhu that he knew it was wrong and the offender agreed. 21. There was no re-examination. The Crown submissions 1. The Crown relied on a detailed outline of written submissions in which it set out well established general principles in sentencing for Commonwealth offences and for offences involving child abuse material. The Crown also referred to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), which amended the Crimes Act 1914 (Cth) in relation to sentencing federal offenders for Commonwealth child sex offences. The amendments became operative on 20 July 2020. In particular, the presumption in favour of an actual term of imprisonment for child sex offences imposed by the amendment to s 20(1)(b) does not apply in relation to the present sentence, as the amendment commenced on 23 June 2020 in respect of offences committed on or after that day. 2. The Crown set out the following general sentencing principles for this type of offence: a. A term of imprisonment will ordinarily be expected for such offending. b. General deterrence is the primary sentencing consideration for offending involving child pornography and has been described as the paramount consideration. c. Less or limited weight is given to an offender's prior good character. d. Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as an accessible means of allowing people to access and obtain child pornography. e. Offending involving child pornography is difficult to detect given the anonymity provided by the internet. f. The possession of child pornography material creates a market for the continued corruption and exploitation of children. g. 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. h. The harm done to the children exploited has been described as profound, exacerbated by the continued circulation of images on the internet indefinitely. 1. The Crown submitted that the fact that an offender does not pay to access child pornography or was not involved in the distribution or sale of child abuse material does not mitigate the offending. 2. In assessing the objective seriousness of the offence, the Crown relied on the following list of relevant matters, distilled in the Court of Criminal Appeal's decision in R v Hutchinson [2018] NSWCCA 152: a. whether actual children were used in the creation of the material; b. the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed; c. the extent of any cruelty or physical harm, occasioned to the children that may be discernible from the material; d. the number of images and items of material – in a case of possession, the significance lying in the number of different children depicted; e. in the case of possession, the offender's purpose, whether for personal use or for sale or dissemination; f. in the case of dissemination/transmission, the number of persons to who the material was disseminated/transmitted; g. whether any payment or other material benefit (including the exchange of child pornography material) was made, provided or received for the acquisition or dissemination/transmission; h. the proximity of the offender's activities to those responsible for bringing the material into existence; i. the age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender; j. the degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material; k. whether the offender acted alone or in a collaborative network of like-minded persons; l. any risk of the material being seen or acquired by vulnerable persons, particularly children; m. any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted; and n. any other matter in section 16A of the Crimes Act (for Commonwealth offences) bearing upon the objective seriousness of the offence. 1. Here, the Crown relied on the following factors relevant to the assessment of the objective seriousness of the offending: a. The material accessed by the offender depicted an unknown number of actual children, including prepubescent children; b. The offender downloaded a large amount of child abuse material over a relatively short period of time (24 videos and 1,183 images); c. The Crown submits that the offender accessed the child abuse material for his own sexual gratification; and d. The offending conduct was sophisticated. The offender took steps to conceal his conduct from his employer, by downloading a virtual machine and tor browser, both of which are designed to make activity (both online and on a computer generally) more difficult to trace. Had it not been for one file triggering a malware alert, it is unlikely that the offending would have been detected. 1. The Crown conceded the offender had entered his plea at the earliest reasonable opportunity and was therefore entitled to a utilitarian discount on sentence. However, the Crown submitted that the court may accept the offender's plea was in some part "a recognition of the inevitable". 2. The Crown relied on the following submissions in respect of the matters outlined in s 16A(2) of the Crimes Act 1914 (Cth): Need for specific deterrence: s 16A(2)(j) 1. The Crown submitted there was a real need for the sentence to reflect an appropriate level of specific deterrence and that the court would infer that the offender engaged in the offending conduct for his own sexual gratification. Need for general deterrence: ss 16A(2)(ja) and (2)(k) 1. The Crown submitted general deterrence is of fundamental importance in sentencing because of the significant public interest in protecting children from sexual exploitation and abuse. Offences of this type are increasingly prevalent in the community, facilitated by the internet allowing easy access to child abuse material. Such offending is difficult to detect given the relative ease and anonymity with which such crimes are committed. The offender's character, age, antecedents and background: s 16A(2)(m) 1. The offender is now 49 years of age and has no criminal antecedents. The Crown submitted that it is well established that good character has limited weight in the sentencing exercise here. The Crown submitted that the offender's health, including mental illness, should be taken into account but will not mitigate an otherwise appropriate sentence. 2. The Crown submitted that the court would not accept the account of the offending given by the offender to Dr Sidhu, given that a USB was found in his bedroom which contained a folder titled "Cul" which consisted of a .rar file that was unable to be opened and a word document that contained tor browser links with references to children and "dark web" material. The contents of this USB, together with the offender's actions, were submitted to cast doubt on his account to Dr Sidhu that he did not seek out the material, but rather downloaded material in respect of which "banners popped up" and he was then "curious". 3. The Crown noted that Dr Sidhu stated that the offender had a "history of poor sexual boundaries relating to previously looking at pornography whilst at work". The Crown also noted that the offender did not appear to have engaged in counselling or sought treatment since the offending conduct until 27 September 2021 when he requested to be placed on the waitlist at LSC Psychology. Prospects of rehabilitation: s 16A(2)(n) 1. The Crown submitted that the offender's prospects of rehabilitation must be considered in conjunction with any treatment undertaken by him since being charged with the offence. The Crown submitted that as a general proposition a person who sought and is undergoing treatment, and evinces an intention to continue with treatment, is usually viewed by the courts as having greater prospects of rehabilitation. It was relevant that Dr Sidhu's report identified two risk factors in relation to the offender, namely problems with self-awareness and problems with stress and coping. The Crown further submitted that the offending arose from some degree of sexual deviance and the offender does not appear to have recognised a disorder. 2. For the purpose of consistency in federal sentencing, the Crown annexed to its written submissions a schedule of cases to provide some guidance as to the applicable unifying principles, notably the paramountcy of general deterrence and denunciation, relying on Hili v The Queen (2010) 232 CLR 520; [2010] HCA 45. 3. In her oral submissions, the Crown rehearsed her submissions in respect of the offender's remorse and prospects of rehabilitation. The Crown submitted the court would be guarded as to the offender's prospects, as he had been minimising his offending. To arresting police, he denied the offence and alleged that his computer had been hacked. To the author of the SAR, he stated that he had been looking at cyber security issues and in his evidence and to Dr Sidhu he gave a version that the "banners popped up and included files titled 'sexy teens'", which he believed involved developed teenagers with pubic hair. However, the files by title included references to 16 year old and 11 year old children. Notwithstanding that, the offender continued to download the child abuse material for a period of four hours without many breaks, despite knowing it was wrong. 4. Further, on the following day, the offender logged on to his computer again and did not remove the material or alert the authorities. He had refused to disclose the password to the USB found in his bedroom. However, a tor browser had been used to browse the dark web in respect of that data. 5. The Crown rehearsed its submission that the failure of the offender to seek treatment until very recently was of some concern. Further, there was no evidence of any changes made in his personal life with respect to either his relationship or work. The Crown submitted it was clear the offending involved some degree of sexual deviance. General deterrence was important in sentencing here, notwithstanding that the offender was on medication, he was still working albeit with diminished hours at the time of the offending and he knew that it was wrong. The Crown submitted there was no evidence to establish that the offender was not an appropriate vehicle for general deterrence. 6. In response to a submission made on behalf of the offender, it was submitted that the offence concerned access to child abuse material and transmission was not relevant to the consideration of objective seriousness. The objective seriousness was increased by the offender's conduct to avoid detection. As an experienced IT worker he was well aware of the use of software, for example, a tor browser, to avoid detection and keep such activities hidden. Notwithstanding the offender's claim that this was a one off aberration and had never occurred before 22 May 2019, the circumstances strongly suggested that he was no stranger to the use of the tor browser for this purpose. For example, on the USB found in his bedroom, there was a file with the same title, i.e. "cul". That data included a .rar file which meant the size of the file was irrelevant given that it was a compressed file. 7. The Crown submitted it was important here that software had been used to hide the offender's conduct and that the data downloaded contained a "huge amount" of child abuse material of which the offender by his own admission viewed between one third and one half thereof. The offender's submissions 1. The offender also relied on a detailed written outline of submissions in which he conceded that no penalty other than a term of imprisonment was appropriate. In assessing the objective seriousness of the offending, the offender referred to the non-exhaustive list of relevant matters adumbrated by RA Hulme J in R v Hutchinson (supra). He submitted the offending lacked sophistication or any involved planning. The offender used a work issued laptop, whilst in the workplace away from privacy, knowing malware alerts would be monitored. It was submitted there was no evidence that the virtual machine was used to commit the index offence. It was also not known from the agreed facts if or how the use of a virtual machine assisted in the commission of the index offence. 2. It was submitted the offending occurred on a single day between 11:17am and 2:55pm on 22 May 2019. The folders contained 240 images and 24 videos classified as Category 1 and 943 images classified as Category 2. 3. The offender submitted that of the 1,207 videos and images, it was not known what other material were contained in the folders other than child abuse material, including pornography depicting adults. It was further not known how many of the videos and images the offender opened and viewed. 4. It was further submitted that it was unknown whether the material was downloaded as a single file or if there were multiple downloads. It was submitted that if the material were downloaded as a single download, this was significant in terms of objective gravity, especially given the fact that the offending occurred on one occasion. It was further unknown from which website the material is downloaded and what the offender did to get to the point where he clicked on a link or links to enable the download. 5. In respect of the USB found in the offender's bedroom, it was submitted that the file size equated to 56.97 megabytes and accordingly was very small in size. No child abuse material was located in the accused's home. This indicated that the offending on 22 May 2019 was a one-off incident. It was further noted that the offence was one of access. The offender did not solicit the material from another person, nor did he transmit the material to anyone. Thus it was submitted the offence sits at the lower end of objective seriousness for offences of its type. 6. In respect of the offender's subjective case, the submissions outlined matters raised in the report of Dr Sidhu (Ex 1.1). It was submitted that the offender had insight into his offending and was a low risk of future offending. It was further submitted that the report established that the offender had shown insight into the impact of his offending on potential victims and the broader impact of child abuse material. 7. It was submitted the offender engaged in pornography use at work on the day of the offence by reference to the stressors in his life, namely his marriage and physical health, and not caring about the consequences of accessing pornography at work. The explanation he gave to Dr Sidhu was that he did not seek out child abuse material, but rather engaged in reckless downloading that led to him accessing and viewing child abuse material. He was both "repulsed" and "freaked out" when he saw the images, which were all downloaded into a .zip file. 8. It was submitted the offender was motivated to explore further psychological treatment which was a positive sign for his prospects of rehabilitation and risk of reoffending. 9. Having regard to s 16A of the Crimes Act 1914 (Cth), it was submitted that the following mitigating factors were relevant: a. the offender has pleaded guilty at the first available opportunity and is entitled to a 25% discount to reflect its utilitarian value, b. there is evidence of remorse through his plea of guilty, c. the offender's limited criminal history does not relate to sexual offending, d. the personal circumstances of the children depicted are not known, and e. the offender has good prospects of rehabilitation, noting the report of Dr Sidhu and the support of his family. 1. It was further submitted that the COVID-19 pandemic and its impact on the state prisons was relevant to sentencing, as it would make any term of imprisonment more onerous. 2. The offender advocated a sentence of a term of imprisonment with immediate release under a recognizance release order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). It was submitted a longer period of supervision was required as a result of: a. his need for ongoing psychological treatment, b. this being the offender's first custodial sentence, and c. hardship in custody due to the COVID-19 pandemic, the offender's medical issues, and the inevitability of him being placed in protective custody with other sex offenders. 1. In his oral submissions, counsel for the offender addressed the Crown submission that the offender had minimised his conduct. It was submitted that the evidence established that he clicked on multiple links or banners to access the material and that he had admitted that he accepted his conduct was wrong. It was submitted that the offender had explained in detail the offending and why he denied it to police. It was submitted he was therefore not minimising his conduct, but rather accepted it, and wanted to make a change in his life. 2. In addressing the Crown submission relating to sexual deviance, counsel highlighted that this was one period of offending over a period of three hours in which child abuse material was downloaded. Whilst the Crown also relied on the evidence concerning the USB found in the offender's bedroom at home, it was submitted this did not amount to a finding of sexual deviance nor was it relevant to his prospects of rehabilitation or risk of reoffending. There was no evidence as to whether there was child abuse material on the USB and no finding could be made of any ongoing sexual deviance, particularly given the evidence that the offender created "cul" files to be deleted. It was submitted that it was not necessarily inappropriate material on the USB. 3. In relation to the steps taken by the offender to hide his identification by use of a tor browser, it was submitted that the offending was committed in a workplace and not at home. There was a risk of detection because the offending lacked supervision. 4. Counsel for the offender noted that the legislative amendments referred to by the Crown relate to offences after 23 June 2020 and the legislation is not retrospective. 5. Counsel rehearsed his submission that the offender was entitled to a 25% utilitarian discount for his plea of guilty. In response to the Crown submission that this was in recognition of the inevitable, it was submitted that the sentencing court was unable to judge the strength of the Crown case merely by reference to the agreed facts. The plea of guilty of the offender in this case assisted the administration of justice. 6. In regard to the Crown submission relating to the USB found in the offender's bedroom, it was submitted the court was not in a position to know merely by reference to the size of the file what data was contained in the file. With respect to the offender's familiarity with the dark web and use of the tor browser, it was submitted that this was software used in the offender's work as an IT contractor. It was a way to access data without being detected and was used for work purposes, not only for access to child abuse material. 7. Counsel referred to the comparative cases relied on by the Crown. It was submitted that none of those cases in Annexure B to the Crown submissions were analogous to the situation here where the offending occurred on one occasion only. 8. Finally, counsel rehearsed his submissions that in order to progress the offender's rehabilitation, a longer period of supervision was required. Determination 1. Section 16A(1) of the Crimes Act 1914 (Cth) ("the Act") provides that in determining a sentence in respect of a federal offence, the court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. In assessing the objective seriousness of the offending here, I have had regard to the list of relevant matters adumbrated in R v Hutchinson (supra). This was serious offending. The offender downloaded a large amount of child abuse material comprising 24 videos and 1,183 images over a four hour period. That material involved actual children involved in and witnessing sexual activity, as well as focusing on the genital regions of those children. 2. I accept the Crown submission that the offending conduct here was sophisticated. The offender used a tor browser both to conceal his conduct from his employer and make the process of downloading difficult to trace by the authorities. It was only discovered by virtue of one file triggering a malware alert. I am satisfied that the material was accessed for the offender's own sexual gratification and was stored on his work computer overnight and not deleted prior to its detection the following day. 3. I do not accept the submission made on behalf of the offender that the offending lacked sophistication or any involved planning. Given the offender's experience in the IT industry, and his participation in the security committee overseeing the employer's systems, I am satisfied the offender intentionally embarked on accessing the material and that he gave a version to Dr Sidhu of his involvement that minimised it to a significant degree. Clearly, he must have known the title of the files downloaded by him referred to 16 year old and 11 year old children. Not only did the offender continue to download the material over a period of four hours whilst attending to other tasks from time to time, he also failed to remove the material on the following day. Having viewed a sample of the material (Ex B) I have no hesitation in confirming the pornographic nature of the material and the depravity of the sexual activity portrayed therein involving children of a very young age. 4. I take into account the following matters pursuant to s 16A(2) of the Act: Section 16A(2)(a) – the nature and circumstances of the offence 1. This has been outlined above in my assessment of the objective seriousness of the offending. As outlined above, accessing child abuse material creates a market for corruption and exploitation of children often in third world countries which lack appropriate safeguards for the protection of children, and it is not a victimless crime. The courts have long recognised the profound harm caused to the victims of this crime which is exacerbated by the continued circulation of images on the internet indefinitely. It is pernicious offending, which is difficult to detect. Section 16A(2)(e) – the injury, loss or damage resulting from the offence 1. As outlined above, great harm is caused, both physical and psychological, to the victims of child pornography. The courts have long held that such damage may be profound – see Fitzgerald v R [2015] NSWCCA 266. Section 16A(2)(f) – the degree to which the person has shown contrition for the offence 1. Notwithstanding that the offender initially denied the offending to police, and has minimised his conduct to Dr Sidhu, I accept that the offender now has insight into his offending and has shown insight into the impact of his offending on potential victims and the broader impact of child abuse material on the community. I accept that he has demonstrated some contrition for his offending. Section 16A(2)(g) – if the person has pleaded guilty to a charge in respect of the offence 1. The offender pleaded guilty at the earliest opportunity and is entitled to a 25% utilitarian discount on sentence. Notwithstanding that it was entered in the face of a strong Crown case, the entry of the plea has assisted the administration of justice by the avoidance of a lengthy trial process. Section 16A(2)(j) – the deterrent effect that any sentence or order under consideration may have on the person 1. I accept the Crown submission that an inference may be drawn that the offender engaged in the offending conduct for his own sexual gratification. I also accept the submission there is a real need for an appropriate level of specific deterrence in that the offender must understand the full gravity of his offending and the harm done to the most vulnerable people, namely, children, to facilitate that offending; and that any repeat offending would result in increasingly severe sentences being imposed upon him. Section 16A(2)(ja) – the deterrent effect that any sentence or order under consideration may have on other persons 1. I also accept the Crown submission that general deterrence is of fundamental importance in sentencing for accessing child abuse material offences. There is a significant public interest in protecting children from sexual exploitation and abuse, and offences of this type are increasingly prevalent in the community, facilitated by the internet allowing easy access to such material. Such offending is difficult to detect, particularly given the use of software programs that allow access to the dark web and the anonymity with which such crimes are committed. A clear message must be sent to likeminded members of the community that Parliament has prescribed lengthy terms of imprisonment as maximum sentences and that courts will, in appropriate cases, impose condign punishment on offenders, as a deterrent to others – see Baden v R [2020] NSWCCA 23 at [43] where Bell P referred to the need to protect children from predators using electronic facilities, and for sentences of appropriate severity to be imposed. Section 16A(2)(m) – the character, antecedents, age, means and physical or mental condition of the person 1. The offender is 49 years of age and is otherwise of good character, which carries limited weight in the sentencing exercise here. I note the opinion of Dr Sidhu that the offender had a "history of poor sexual boundaries relating to previously looking at pornography whilst at work." However, I am satisfied the offender has insight into his offending and his medical condition requiring ingestion of analgesics provided context in which the offending took place and meant that he was a low risk of reoffending. 2. I am not satisfied that there is a causal link between the offender's physical and mental health and his offending conduct. Section 16A(2)(n) – the prospect of rehabilitation of the person 1. The offender has the support of his family and partner, and notwithstanding that the offending bespeaks sexual deviance, I am satisfied that he has reasonable prospects of rehabilitation provided he engages with appropriate intervention. 2. I have taken into account the maximum penalty of 15 years imprisonment prescribed for an offence pursuant to s 474.19(1) of the Criminal Code. The maximum penalty reflects the seriousness with which Parliament regards such offending, and is a guidepost in the sentencing process. 3. I wish to make it clear that in sentencing the offender I have not taken into account in any way the USB found in his bedroom, the contents of which remain unknown, and of which he has not been charged. 4. Pursuant to s 17A of the Act, after having considered all other available sentences, I am satisfied that no other sentence is appropriate than a sentence of imprisonment. 5. I have taken into account the hardship suffered by the prison population caused by the COVID-19 pandemic. Steps taken by Corrective Services in New South Wales to minimise the risk to inmates have had significant impacts on their wellbeing, and are likely to do so for some time – see Valentine v R [2020] NSWCCA 116 at [60] and [61]. These onerous conditions include lockdowns, limitations on access visits and to education programs which are known to create additional hardship to both young and first time offenders – see DPP (Cth) v Saadieh [2021] NSWSC 1186. I have taken this hardship into account in mitigating the offender's sentence. 6. I therefore intend to impose a sentence of 18 months imprisonment on the offender, to be released upon entering a recognizance release order for his release after nine months of that period. Orders 1. I hereby order as follows: 1. You are convicted of the offence of use carriage service to access child pornography material, pursuant to s 474.19(1) of the Criminal Code 1995 (Cth). 2. I sentence you to a term of imprisonment of 18 months, to commence on 22 October 2021. 3. I make a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), for you to be released after nine months of that term, that is on 21 July 2022, upon entering into a recognizance self in the amount of $100 on the condition that you be of good behaviour for a period of nine months, without security. That release order will terminate on 21 April 2023. ********** 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: 22 October 2021