R v Barnes [2022] NSWDC 397

District Court New South Wales

Medium Neutral Citation: R v Barnes [2022] NSWDC 397 Hearing dates: 29 August 2022 Date of orders: 7 September 2022 Decision date: 07 September 2022 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [39] Catchwords: CRIME — Child sex offences — Child abuse material — Using carriage service for child abuse material CRIME — Child sex offences — Child abuse material — Dissemination/Possession Legislation Cited: Commonwealth Criminal Code Act 1995 (Cth) Crimes Act 1999 (NSW) Cases Cited: Minehan [2010] NSWCCA 140 Totaan v R [2022] NSWCCA 7 Gordon [2009] QCA 209 Cook [2018] TASCCA 20 Cardwell [2021] QCA 112 Category: Sentence Parties: Regina (Crown) Barnes (Offender) Representation: Healy Solicitor for the Commonwealth Director of Public Prosecutions

Davies Counsel for the offender

Johnston Solicitor Instructing Counsel for the Offender - Northern Rivers Law File Number(s): 2021/00141162 Publication restriction: Unrestricted

Reasons on Sentence 1. Phillip James Barnes ("the offender") appears for sentence for 2 contraventions of the Commonwealth Criminal Code ("CCC"), being: 1. Soliciting child abuse material using a carriage service in contravention of section 474.22 (1) which has a maximum penalty of 15 years imprisonment; and 2. Possessing child abuse material in the form of data held in a computer or data storage device and using a carriage service to obtain or access the material in contravention of section 474.22A(1) which has a maximum penalty of 15 years imprisonment. 2. Additionally there is a matter to take into account pursuant to section 16BA of the Crimes Act (Cth) ("CCA"), being a contravention of section 474.27A(1) of transmitting indecent material to someone the offender believes to be under 16 where the offender is over the age of 18. The maximum sentence for this offence is 10 years imprisonment. In respect of this offence it is to be taken into account when sentencing for the section 474.22(1) offence so that the penalty may be increased for the principal offence by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution, whilst ensuring that the sentence remains proportional. 3. I note the maximum sentences referred to above and take them into account as legislative guideposts indicating the seriousness with which the offending is viewed by the legislature to assist in determining the appropriate sentence. 4. The offender was born on 31 August 1956 so is now 66 years old. He was arrested on 19 May 2021 and spent 42 days in custody. The offender was not on conditional liberty at the time of the offending.