District Court New South Wales Medium Neutral Citation: R v BL [2021] NSWDC 659 Hearing dates: 26 November 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 87 – 89 Catchwords: SENTENCE – multiple counts of intentionally recording intimate images of children – video recordings taken by hidden mobile smartphone using 'Alfred Camera' app – Bugmy principles – consideration of offender's drug-addiction – prospects of rehabilitation Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A Crimes Act 1900 (NSW) ss 91G, 91P Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Minehan v R (2010) 201 A Crim R 243 R v Booth [2009] NSWCCA 89 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v ABS [2005] NSWCCA 255 The Queen v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: Director of Public Prosecutions (NSW) BL (the offender) Representation: Counsel: Mr D Provera for the offender Mr C James (solicitor advocate) for the Director of Public Prosecutions (NSW) Solicitors: Solicitor for Public Prosecutions (NSW) T & A Legal for the offender File Number(s): 2021/247730 Publication restriction: The names of the offender and complainants have been anonymised to protect the identities of the complainants. Judgment BACKGROUND 1. The offender is before the Court for sentencing, following pleas of guilt, to a range of offences relating to the recording of intimate images of children between 12 February 2020 and 20 August 2020 at Seven Hills. There are three charges under s 91P(1) of the Crimes Act 1900 (NSW) and one charge (the more serious charge) under s 91G(1)(a) of the Crimes Act. 2. The offences with the maximum penalties for the offences may be depicted as follows. Offence Description Maximum penalty SNPP (in District Court) H7693662/5 Intentionally recording intimate image of SB, aged 16, without her consent, when she was naked whilst showering 3 years and/or $11,000.00 fine N/A H7693662/10 Possession child abuse material, namely a video recording depicting a naked 5-year old female child 14 years 6 years H7693662/11 Intentionally recording an intimate image of HB, without her knowledge and consent 3 years and/or $11,000.00 fine N/A H7693662/12 Intentionally recording an intimate image of AB, without her knowledge and consent 3 years and/or $11,000.00 fine N/A CIRCUMSTANCES OF OFFENDING 1. The offender and the Crown agreed to the following facts. 2. The offender in this matter is BL, born 17 June 1993. At the time of the offence, he lived at Seven Hills, with his de facto MB and her five children, SB, HB, CB, RB, and AB. 3. The offender has four children of his own, to an ex-partner. Those children include one of the complainants in this matter, CL. CL resides with her mother but occasionally visits the offender, most recently in March 2020. 4. Sometime around June 2020, RB discovered a phone set to camera mode in the offender's dressing gown pocket on the inside of the bathroom door. RB told HB and MB. MB confronted the offender about this, and he denied any intentional wrongdoing. 5. On 28 July 2020, HB and CB attended Riverstone Police Station in the company of Phillipa Leslie. HB provided a statement indicating she believed the offender had been recording her in the shower. HB and CB did not return to the premises of the offender. Police applied for and were granted an Apprehended Domestic Violence Order for the protection of HB and CB. 6. Police attended the offender's premises on 22 August 2020, and spoke to the offender in the presence of MB. The offender was offered an interview in relation to the allegations and declined. Police requested the opportunity to view the offender's mobile phone, and the offender stated the phone was away being repaired and could not be provided. Police later learned that this was not correct and that the offender did not want the police to have access to his phone. 7. At some stage prior to September 2020, MB began to notice that the offender was making heavy use of his mobile phone, and in particular an app named 'Alfred Camera'. She downloaded a copy of the app to discover how it worked. The app links to 2 devices, one recorder and one receiver. 8. At some stage, MB had opened the app on the offender's phone and discovered recorded photographs and videos of her children naked in the bathroom, showering and sitting around in bedrooms within the house. The images covered the time frame from March 2020 and May 2020. The app and images were linked to the email address of the offender. MB used her own phone to photograph the images on the offender's phone. 9. At around 25 August 2020, MB came to SB and informed SB that she had found the images, and showed them to SB. At the same time, MB confronted the offender about the images and footage. The offender said he had been trying to record MB in the shower in case she had been masturbating without him. 10. On 21 September 2020, MB and SB attended Riverstone Police Station and provided statements. 11. On 22 September 2020, police lawfully searched the premises of the offender. They seized several items, including USBs, an iPad, an Android tablet, SD cards, and a Dove-brand roll of deodorant which had been followed out and a camera placed inside. Police removed the various items and later examined them. 12. The offender was lawfully arrested on 2 November 2020. His mobile phone, a Samsung s9, was seized and later subjected to a Cellebrite examination by police to recover saved images and other data. 13. When Police later examined both the offender's phone and the items received from the offender's home, several recordings were located of the offender (clearly depicted) setting up camera in the bathroom at the offender's home, as well as numerous recorded image or video as follows: CL OFFENCE: Sequence 10 – use child for production of child abuse material 1. One recording shows the offender setting up a camera, exiting the room and returning with a young girl (CL, then aged 5). He then assists CL with getting undressed in view of the camera. The recording continues as CL has a shower and dries off. The recording then shows the offender collecting the recording device and CL and moving to a bedroom. The offender makes CL squat above the camera, displaying her genitals (CL is still not wearing clothing). 2. On 25 September 2020, police attended the premises where MB was staying and showed an image recovered from the offender's seized material. MB positively identified it as a photo of CL, the offender's daughter, standing in the shower. SB OFFENCE: Sequence 5 – intentionally record intimate image without consent 1. 6 images recovered in later analysis of the exhibits show SB (then aged 16) showering naked in the bathroom and using the toilet. HB OFFENCE: Sequence 11 – intentionally record intimate image without consent 1. 14 images recovered in later analysis of the exhibits show HB (then aged 15) showering in the bathroom. A further 4 images show HB undressing and using the toilet. Each set of images appear to be a series of screenshots taken from a continuous film. AB OFFENCE: Sequence 12 – intentionally record intimate image without consent 1. 7 images recovered in later analysis of the exhibits depict AB (then aged 9-10), showering in the bathroom. The set of images appear to be a series of screen shots taken from a continuous film. 2. The offender told the Community Corrections Officer that at the time of the offending, he (and his partner) had been abusing illicit substances; so much so that he asserted to the Corrections Officer that he was unaware of his actions until he viewed the footage. However, according to the Corrections Officer, the offender's assertion was contradicted, when he provided detailed recollections regarding the placement of cameras. 3. He also asserted to the Corrections Officer that he had no sexual intent in his decision to conceal cameras in specific rooms within the residence. Culpability 1. In the hearing, the offender gave evidence that he is of Aboriginal descent. Parts of this evidence which had not previously been referred to in the documents before the Court included that: * in a large family, his mother had children by four different fathers. In terms of his own biological father, he never really knew him, but later discovered that he had died as a result of manslaughter (2013); * housing arrangements were somewhat chaotic; * his mother had a large number of short term boyfriends, but none had any real connection with the offender. Some of his mother's boyfriends were violent towards her and even towards her children, including the offender, although he did not recall to any specific injuries; * his schooling was disrupted; * his mother was a drug addict, regularly using drugs in front of the offender and his siblings; * in September 2010, a young infant son of the offender's was born (the offender having 4 children), but sadly passed away because of Sudden Infant Death syndrome. He has not received specific counselling to help him deal with this grief; * in 2012, he reported sexual assaults perpetrated upon him by a Scout leader (over a range of years from ages of 5 to 13). That perpetrator was convicted and sentenced in 2016 for assaults upon the offender, and other victims. He sought to receive treatment at Mt Druitt (Dr Phillips) but that was unsuccessful as a psychiatrist had moved on. 1. The offender's younger brother, Jacob prepared a typed but unsigned and unsworn statement, referring to the offender's upbringing among a large family (11) and the physical and mental abuse from his mother and the offender being himself a victim of sexual assault. 2. The Corrections Officer also referred to the offender's reporting to her of a significant history of childhood trauma, including sexual assault. THE GRAVITY OF THE OFFENDING Submissions The Crown's submissions 1. It is convenient to reproduce in its entirety the Crown's submissions as to both the relevant factors to assessing the gravity of the offending and how the Crown seeks to apply those factors to the circumstances in this case. The submissions centred around the factors identified by the Court of Criminal Appeal in Minehan v R (2010) 201 A Crim R 243 at [94]. The Crown's position in relation to those factors as applied to the facts in this case was stated as follows: 1. Whether actual children were used in the creation of the material – here, the material involved CL, an actual child. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed – here, the material depicted a very young child (around 5 years old), however the gravity of the sexual activity portrayed is relatively minor, constrained to a recording of the child showering and being touched with a towel to dry off after the shower, and being positioned above the camera such that her genitals were displayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material – there is no particularly heightened degree of cruelty or physical harm apparent from the material. 4. The number of images or items of material (in a case of possession, the significance lying more in the number of different children depicted) – in this instance there is a single video depicting a single child, albeit one lengthy enough to record the shower taken by CL as well as her drying off and subsequent movement to the bedroom. 5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383 – in this matter the purpose of the offender cannot be determined on the evidence; there is nothing that would imply other than it was for the offender's own gratification. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. For sequence 5, I am satisfied beyond reasonable doubt it was for his own gratification. As for the other offences, whatever was his ultimate intention, it was for his private purposes. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission – there is no evidence of any payment here. 8. The proximity of the offender's activities to those responsible for bringing the material into existence – the offender here is the person who bought the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material – there is some evidence of planning and organisation although not extensively. Certainly, within the contents of the material itself, the offender setup the camera, bringing CL into the room to record her showering, and then relocated both the camera and CL into a different room, suggesting a minimal degree of forethought. There was some suggestion that the offender was utilising a camera app on his phone to record and store the material, which was linked to his email address. Additionally, the fact of the other images recovered from the offender's phone, forming the basis for the three charges under s 91P, suggests that there was some ongoing practice of the accused to record images in like manner, although as those images were the subject of other charges care ought be taken not to double-count elements of those offences. 10. Whether the offender acted alone or in a collaborative network of like-minded persons – there is no evidence that the offender acted with anyone else. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children – the material was on the offender's personal device and email, and on the facts were in fact recovered by the mother of HB, AB and SB. It would have been at least theoretically discoverable by the children living within the household, although there is no evidence of a heightened risk of that occurring beyond that. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted – there is no evidence of a risk of the material being seen or acquired by anyone outside those living with the offender. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (NSW) (for State offences) or s 16A Crimes Act 1914 (Cth) (for Commonwealth offences) bearing upon the objective seriousness of the offence – addressed further below. 1. The Crown referred to other authorities, and especially the Court of Criminal Appeal's decision in R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at [66]-[72], to argue the salience of other matters. * The absence of an intention to sell or distribute child abuse material does not mitigate penalty for a possession offence. * The possession of child abuse material is not a victimless crime. Those who possess such material help to create a market for the continued exploitation and abuse of children. It is for that reason that general deterrence is of particular significance. * Evidence of rehabilitation may have reduced significance given the predominance of general deterrence and denunciation in the sentencing process for these offences 1. For the s 91G charge, the Crown submitted that the conduct fell below the mid-range, whilst remaining significant. 2. For the s 91P charges, with reference to similar principles applicable to the earlier charge, the Crown submitted that for each offence, the conduct fell below the mid-range and identified the following matters: * The extent of the material was limited to a relatively few still images of the victims in the shower. There is no depiction of direct sexual abuse beyond this. * In the instances of the offences against SB, she was young (aged 16) but older than either AB or HB. There are only 6 images pertaining to SB. * In the instances pertaining to AB and HB, there are more images but each set appears to be a depiction of a single incident. There are more images per set as compared to the offence against SB, and the victims were young. * There is no evidence of the offender seeking any profit or having any other motive beyond personal gratification in the taking of the offences – it is reported that he has made claims he was trying to record his partner, the mother of AB, SB and HB, as per paragraph 8 of the agreed facts. In the Crown submission there would not be much weight put on that suggestion, and even if accepted, it would neither excuse nor lessen the seriousness of the offences, nor would it really amount to evidence of some other motive beyond personal gratification. Having heard the offender and considered the Crown's submission, I agree with it. * There is no evidence of the offender working in concert with any other person or any distribution of the images. The offender's submissions 1. The offender's Counsel invokes Bugmy principles [1] as reducing the offender's culpability and lessening the force that would otherwise apply to the sentencing considerations of general deterrence, retribution and denunciation. As was emphasised in Bugmy, the mitigating effects of an offender's deprived background do not lose their force where the offender has committed serious offences in the past. The effects of profound deprivation do not diminish over time. 2. Although it was not expressly adverted to by the offender in his Counsel's written submissions, it may be said that childhood disadvantage has likely contributed to the offender's recourse to drugs and his development of a drug addiction which, as will be later indicated, the offender attributes as an explanation for his offending. As Wood J observed in R v Fernando (1992) 76 A Crim R 58 ('Fernando'), albeit more in relation to alcoholism, where addiction arises from social disadvantage, it can have a mitigating effect, since it reflects: "..the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them reinforcing their resort to alcohol and compounding its worst effects." 1. As indicated, this is not entirely applicable to the offender. Nevertheless, it would be hardly surprising if an offender, of this one's background of disadvantage would, in the absence of proper treatment, resort to drugs. Particularly pertinent in this regard, with respect, was the observations of Simpson J (as her Honour then was) in R v Henry (1999) 46 NSWLR 346 at [337]-[340]. 2. The offender's Counsel did not differentiate between the offences. He submitted that each of the offences fell at the low to mid-range of offending for each of the offences. Consideration 1. It can be accepted that the offender has had a deprived childhood. He has been exposed to and even been a victim of domestic violence and even more appallingly, sexual assaults by a man who was supposed to be a community leader. He has been a victim of personal violence and sexual violence. 2. Drug addiction might be regarded as a vexed factor in mitigation since, as Spigelman CJ held in Henry, it always begins with the person choosing to take the drug. But the capacity of a person to choose can, as Simpson J held in the same case, be attenuated. 3. Even where Bugmy principles may be engaged, and where a certain leniency may be extended on account of an offender's drug addiction, if an offender has, in the past, failed to participate in treatment programmes the impact of that original position of disadvantage will be reduced. In Henry, Simpson J emphasised that for drug addiction to augment the consideration of rehabilitation as a sentencing factor, there would need to be positive prospects for the cure of the addiction. That evidence is not present here. Where that occurs, greater significance is attached to the need to protect the community. 4. Given his past extensive history, repeated opportunities to demonstrate rehabilitation I consider that Bugmy principles and what I consider to be the related feature of a drug addiction partly stemming from his background of disadvantage moderate, but only to a degree, his culpability for the offending. General and specific deterrence and the other considerations of retribution and denunciation are commensurately reduced, but not to a very substantial degree. 5. I have substantial reservations about the offender's explanation for his offending. I place weight upon the Corrective Officer's opinion about the offender's propensity to minimise his offending, which accorded with my own observation whilst he gave evidence. I agree that his explanation, especially in relation to sequence 5, is untenable. 6. I did not consider there to be much difference, ultimately, in the positions of the Crown and the offender. For each of the offences, I consider that they fell below the mid-range of offending but not at the lowest end of the range. Aggravating factors 1. The Crown relied upon two aggravating factors. First, the offending occurred whilst the offender was subject to conditional liberty (CSP Act, s 21A(2)(j)). 2. Secondly, in the case of the victims SB, HB and AB, the offending occurred in their home. In the case of CL, the offence occurred (as is plain in the material) while the victim was in a home with the offender, her father, and would be entitled to expect a level of security and safety (CSP Act, s 21A(2)(eb). 3. I accept these factors apply. SUBJECTIVE CASE Age and background 1. The offender was aged 26 or 27 at the date of the offending. I have referred to much of his background when considering his culpability earlier in these remarks. 2. Much of his background emerged from the content of the sentencing assessment report (SAR) prepared by the Community Corrections Officer of the Clarence Parole Unit; in addition to unsworn statements from the offender and his younger brother, Jacob, and as indicated that background was substantially elaborated in this hearing. 3. The offender told the Community Corrections Officer that he did not intend on resuming his relationship with that partner, he has in fact kept in regular contact during his period of incarceration. He repeated that evidence today. 4. Reflecting upon his conduct in a letter of apology furnished to the Court, the offender said: "I had hit rock bottom in my life due to family breakdown, family deaths, being victim of sexual assault. Instead of seeking help I turned to drug (sic) which I know was one of the worst decisions/chapter in my life. I accept I had a problem and wasn't thinking properly." 1. At the time of the offending, the offender was estranged from the mother of his biological children; though he remained in contact with his children. He resided with his partner and her children. 2. The offender was unemployed at the time of his offending and was reliant upon New Start benefits from Centrelink. 3. The offender told the Corrections officer that he retained the emotional support of his brother; a belief borne out by Jacob's letter. He intends on working with Jacob's epoxy flooring business on release. Upon his release, however, he has no anticipated residential options. Prior convictions 1. The offender has a lamentable prior record for someone of his relatively young age, featuring offences for drug possession and supply, assault, domestic violence (and contravention of domestic violence orders) and robbery. 2. The subject offences are the first of the sexual offences. 3. This is not a record that entitles the offender to any leniency in that respect. Institutionalisation 1. The offender's Counsel calculated that since he first went into custody in July 2012, he has been in custody for 40.42% of that period. The offender submits that he is at risk of institutionalisation. 2. This submission is a double-edged sword. Whilst it might be accepted that the prospect adverted to is detrimental to his rehabilitation, the offender's record augments the sentencing concern about protecting the community. As previously noted, the fact that this offending occurred whilst he was out on parole aggravated the offending. I regard this circumstance of institutionalisation as neutral to the choice of sentencing option, although it has a potential impact on consideration of whether the non-parole period might be altered. Pleas 1. The offender is entitled to the 25% discount on his pleas for each of the offences. Remorse/contrition 1. The offender supplied to the Court a written letter of apology in which he expressed his remorse. 2. The Community Corrections Officer recorded the offender's propensity to blame others for his drug use but, having said that, reported that he had accepted full responsibility for the outcome of his actions and, moreover, felt "disgusted" in himself. In Court today, he said he felt ashamed and disgusted in his actions. 3. The Corrections Officer noted that he accepted the charges; whilst maintaining that he was not sexually attracted towards children. He said his intention was to capture images of his partner and attributed this desire to what the Corrections Officer characterised as a 'substance abuse paranoia'. It was only a co-incidence that the images were all of children and not his partner. As I have said, I am sceptical about this explanation and specifically reject it in the case of sequence 5. Rejection of that explanation casts a more general doubt in relation to the other offences. At any rate, it was for his private consumption and gratification. 4. The Corrections Officer did note that the offender displayed insight into his actions; acknowledging that he was in a position of power and that his behaviour was likely to have confused the children. But offset against that positive view was the circumstance that the offender minimised long term impacts of his offending; especially on the youngest of the victims. 5. I accept however, that the offender is remorseful. Prospects of rehabilitation 1. The Corrections Officer considered that the offender was only of 'Average' risk of sexual recidivism. The Officer was concerned about the offender's declared intention to have an on-going relationship with his former partner's children. 2. Jacob indicated that when the offender was last released in 2019/20, he, the offender, renewed contact with old friends, who Jacob disapproved of. According to Jacob, even the offender felt that it was difficult to move on given his contact with those people. Jacob generously indicated that he would ensure that, upon the offender's eventual release, he would support the offender in the way of employment and emotional assistance or guidance. 3. During his time in custody, he has been employed as a peer support officer assisting other inmates with administrative tasks. He has not, however, behaved without blemish in custody: twice he has refused to provide urine samples when requested and he incurred penalties for this conduct. Today, in Court, the offender sought the justify this, to some degree; harking back to his being a victim of sexual assault. 4. The offender himself acknowledged to the Corrections Officer that his chronic substance abuse represented a risk for him in a community setting. The Corrections Officer referred to the offender stating his willingness to participate programs, including cognitive behavioural change to address his offending behaviour and reported his particular interest in engaging in interventions relating to his illicit substance abuse and mental health. 5. In respect to the efficacy of supervision, the Corrections Officer regarded the offender's past response to supervision as being poor. He had, reportedly, failed to fully engage in offence targeted programs, especially in relation to his chronic substance abuse. 6. The Corrections Officer assessed him as being at a 'Medium/High' risk of re-offending according to the LSI-R. 7. The Corrections Officer also referred the offender for assessment of the likelihood of re-offending of a sexual nature. This was done by use of the 'Static-99R' instrument. That instrument uses the offender's index offences. Applying that metric, the offender fell in the 'Average' risk range, relative to other male sexual offenders. The report noted that there were several treatment options, including, relevantly for an offender at an Average risk, a 'Medium Intensity Sex Offender Program', which is usually of three years duration. However, custodial sex offender programs were not available at Clarence Correctional Centre. 8. In his letter of apology to the Court, the offender said he accepted that he had a severe problem with the drugs 'Ice' and 'GBH' (presumably a reference to the party drug 'GHB'). But he referred to courses that he had done when in custody, had turned to religious faith and was debt free. He also spoke of his re-engagement with counselling services to assist him with his mental health issues. He believed he now had a clearer perspective on life. He declared his intention to cut all contact with 'negative' people. 9. The offender relied upon certificates of completion for a variety of courses he had undertaken this year, including 'EQUIPS Domestic and Family Violence', 'Work and Development Order', 'BSI Learning Certificate II in Skills for Work and Vocational Pathways', The Salvation Army 'Positive Lifestyle Program for Individuals'. The offender's behaviour will be better equipped to resolve conflicts in the future. To support his assertion about turning to religious faith, he produced a certificate indicating that he was baptised in July this year. 10. The Crown acknowledged the offender's engagement with training and counselling whilst in custody, but emphasised that this had to be set against a background of his criminal history and expressed reservations arising from the SAR about conflicting accounts from the offender as to what had occurred and foregone opportunities to facilitate his own rehabilitation. I accept those reservations. I am not so convinced about the significance of the Crown's point about the offender denying an actual sexual interest in the children and place weight upon the extra and special report about his low risk of sexual recidivism. 11. I find that his rehabilitation prospects are reasonable. INSTINCTIVE SYNTHESIS 1. In R v Booth [2009] NSWCCA 89 at [40]-[44], Simpson J (as her Honour then was) said with respect to an offence similar to the current s 91G(1)(a) offence (citations omitted): "39 A number of previous decisions of this and other appellate courts have found that, in respect of offences of child pornography, general deterrence is, at least, a significant element of the sentencing process …., indeed, general deterrence was said to be "the paramount consideration"….. 40 I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime. 41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material. 42 What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes. 43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material. 44 It is for that reason that this is a crime in respect of which general deterrence is of particular significance…" 1. The offence in Booth was a statutory analogue of s 91G. The current offence inherently involves the exploitation and abuse of a child. 2. In R v ABS [2005] NSWCCA 255 at [26], Buddin J, with whom Brownie AJA and Latham J agreed, said: "Offences involving acts of significant sexual exploitation against children are almost without exception met with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance." 1. I take into account the maximum penalties for the three offences and, in the case of the s 91G offence, the statutory non-parole period. 2. Weighing the matters under s 3A of the CSP Act, although slightly moderated, on account of the offender's background of disadvantage and connected addiction which contributed to the offending, general and specific deterrence remain very significant considerations. Retribution and denunciation are also of significance having regard to the abuse and exploitation of the children. It is also of particular importance for offending of this kind to impose a sentence which will reflect the harm to the victims, and the violation of their dignity. There was no specific evidence from the victims, but for offences of this kind, it may be presumed that harm has been occasioned. Although there are some positive indications, from this year especially, that the offender is taking steps to reform himself and has developed insight and demonstrated remorse, set against the other matters I have referred to, these are of subsidiary significance. 3. I am satisfied that the s 5 threshold has been crossed. Time in custody 1. The offender has spent 1 year, 3 weeks and 2 days in custody. That is partially referable to his offending conduct. 2. The offender's circumstances are complex. All offences occurred between 12 February 2020 and 21 September 2020. He was subject to parole from an unrelated offence for all of the offending period. He also appeared in the Local Court in relation to a further offences (charged on 31 January 2020) for which he was convicted and received a further sentence of imprisonment. That sentence was stayed, so he was also on conditional liberty for that offence for the entirety of the offending period. Further still, he was on conditional liberty for a further offence and also on conditional liberty in respect to that charge during the entirety of the offending period. 3. The offender's Counsel submits, with reference to the totality principle, that it would be inapposite for there to be complete concurrency in backdating in a way that would negate the parole. He submitted that the Court might adopt something of a rough and ready measure by pinpointing a date in 2021, perhaps in March. The Crown did not disagree. Doing the best I can I propose to backdate the sentence to 1 March 2021. Special circumstances 1. The Court is, as indicated, encouraged by signs of the offender's progress whilst in incarceration this year, an especially difficult year for all inmates. The Court has also noted the support that the offender has received from his younger brother, both emotionally and in terms of prospects of future employment. 2. In recognition of that progress, the desire to minimise the risk of institutionalisation and in the hope that his rehabilitation will be further assisted by a longer period of supervision, the Court finds that there are special circumstances. Totality 1. Although the offences are the same for three of the four charges, it cannot be said that there is a single course of conduct which would fully admit of concurrency. Some accumulation is necessitated. But some is required having regard to the underlying similarity of at least 3 of those offences. The s 91G offence is in a separate category of offence. I am conscious of the need to impose an aggregate sentence reflecting the criminality overall. Indicative sentences 1. I propose to order an aggregate sentence. 2. Taking into account the guilty pleas, the indicative sentences are as follows: H7693662/5 1 year and 1 months H7693662/10 2 years and 3 months (NPP of 1 year and 1 months) H7693662/11 1 year and 1 months H7693662/12 1 year and 1 months 1. Mr [BL], please stand. 2. You are convicted of each of the offences being H7693662/5, H7693662/10, H7693662/11, H7693662/12. 3. Taking into account your guilty pleas I sentence you to an aggregate period of imprisonment of 4 years, commencing on 1 March 2021 and expiring on 28 February 2025, with a non-parole period of 2 years, expiring on 28 February 2023, after which you will be eligible for release. 4. I direct that the COVID-19 forms relevant to in person attendances on this sentencing hearing be destroyed. ********** Endnote 1. Bugmy v The Queen (2013) 249 CLR 571 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: 07 December 2021