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District Court
New South Wales
Medium Neutral Citation: R v RS [2022] NSWDC 476
Hearing dates: 24 March 2022
Decision date: 31 March 2022
Jurisdiction: Criminal
Before: King SC DCJ
Decision: Convicted of each offence.
Indicative sentences of imprisonment:
SEQ 001 - Count 1 – 2 years & 3 months
SEQ 009 - Count 2 – 1 year
SEQ 012 - Count 3 – 1 year & 6 months
SEQ 014 - Count 4 – 6 months
SEQ 015 - Count 5 – 6 months
SEQ 017 - Count 6 – 9 months
SEQ 026 - Count 7 – 2 years & 6 months
Aggregate sentence:
Sentenced to a total term of imprisonment of 4 years comprising a non-parole period of 1 year and 6 months, commencing on 28 March 2022 and expiring on 27 September 2023, upon which date he will be eligible for parole, and a balance of term of 2 years and 6 months to commence on 28 September 2023 and to expire on 27 March 2026.
Forfeiture Order signed and placed on the court file.
Catchwords: CRIMINAL - Commonwealth offences – Sentence -
use carriage service to access, possess and transmit child abuse and child pornography material – including aggravated offence - sharing child abuse/ pornographic material in internet chat groups involving two or more people – aggregate sentence
Legislation Cited: Crimes Act 1914 (Cth)
Crimes Legislation Amendment (Sexual Crimes Against Children and the Community Protection Measure) Bill 2019
Criminal Code Act 1995 (Cth)
Category: Sentence
Parties: Regina
RS
Representation: Counsel:
Ms M Jones SC (Offender)
Solicitors:
Mr A Von Treifeldt CDPP (Crown)
Kamy Saeedi Law, Ms J Hickson (Offender)
File Number(s): 2020/00175108
Publication restriction: NPO and suppression orders in respect of the names of the offender and his family
Judgment
1. RS appears for sentence in relation to seven offences:
Count 1, possess child abuse material accessed via carriage service contrary to s 474.22A(1) Criminal Code Act 1995 (Cth);
Count 2, use a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth);
Count 3, use a carriage service to access child abuse material, s 474.22(1) of the Criminal Code Act 1995 (Cth);
Count 4, a further offence of use a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth);
Count 5, use a carriage service to cause abuse material to be transmitted to himself, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth);
Count 6, use a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Criminal Code Act 1995 (Commonwealth).
1. Each of those offences has a maximum penalty provided of imprisonment for 15 years.
Count 7, is commit an offence against s 474.22 of the Criminal Code Act 1995 (Cth) on three occasions, the commission of each offence involving two or more people. This is an aggravated offence, contrary to s 474.24A of Criminal Code Act 1995 (Cth); the maximum penalty provided is 25 years' imprisonment.
1. The offender was committed for sentence on 29 October 2021 from the Queanbeyan Local Court, which was a plea at an early point, although in relation to a strong Crown case. I will allow him a 25% discount for the utility of the plea and the facilitation of justice. He went into custody on 12 June 2020 and was released on 14 June 2020. I will count those as three days of custody.
2. The facts are agreed and are as follows.
EXECUTIVE SUMMARY
1. On 12 June 2020, police executed a search warrant on the home of the offender.
2. Police seized eight devices belonging to the offender that contained child abuse material, Count 1.
3. Analysis of the devices showed the offender had accessed child pornography material (Count 2) and child abuse material (Count 3) using some of those devices.
4. Analysis of the offender's devices showed that he had used a messaging application, "Telegram", to access child abuse material (Count 4), cause child abuse material to be transmitted to himself (Count 5) and transmit child abuse material to others (Count 6).
5. The offender was a member of three "Telegram" chat groups in which the offender either accessed (two occasions) or transmitted (one occasion) child abuse material (Count 7).
OFFENCES - COUNTS 1, 2 AND 3, POSSESSING AND ACCESSING CHILD ABUSE MATERIAL
6. During the execution of the search warrant, police seized and later analysed eight devices on which the offender possessed child abuse material/child pornography material and had used those devices to access child abuse material/child pornography material.
7. The facts contain a summary of the devices and the content of the offending material. I do not propose to repeat the schedule.
BLACK TOWER PC
8. During execution of the search warrant, police seized a Thermaltake PC (Black Tower PC) belonging to the offender.
9. The Black Tower PC contained 1,235 images and 132 videos classified as child abuse material (Count 1).
10. Analysis of the Black Tower PC showed the offender has accessed child pornography material online between 5 June 2016 and 20 August 2019 (Count 2).
11. Child abuse material identified on the Black Tower PC was contained within 17 folders on the device, including folders entitled, "Sorted", "New", "Sportfotos", "To Be Sorted", and "Iam5YO".
12. The folder of "Iam5YO" contained 170 images of a single pre‑pubescent male in various stages of undress and the child engaged in sexual acts with an adult male. Images included the adult male's penis penetrating the child's anus, and the child performing oral sex on the adult male. One image within the series portrays the child holding a piece of paper with "I am 5 years" written on it.
13. Other child abuse material located on the Black Tower PC included images and videos of children between about three and 16 years of age engaged in penetrative sexual acts with adults and other children. Some material included children bound and gagged.
14. The child abuse material located on the Black Tower PC includes at least 50 individual child victims.
15. Also located on the Black Tower PC was an electronic copy of a magazine called, "The Lover", Issue 3, Summer 2016. "The Lover" is a magazine targeted at a homosexual audience that contains articles and imagery relating to sexual relationships between men and boys. An article in the magazine classified as child abuse material entitled, "Old Man and the Boys", for example, includes the following text:
"It was like that back then, it was no big deal that men liked boys. You could also find boys who were available for money in the park Humlegarden. Old man met a 13‑year‑old there who offered him his services."
"So how much does love cost?"
"It costs 10 crowns. "
"Ten crowns! But on Soder Mararstrand I can get boys for 5 crowns."
"Yes, but this is Ostermalm. Here it costs 10."
Old man remembers, "The boy was so beautiful and was so smartly dressed that what we did in a nearby doorway was worth the double price."
…
Once, in 1985, he saw a boy walking around alone in an Ikea shop. Old man asked the boy if he knew in which department the hotel rooms could be found. Why, they sold sofas and beds, so wouldn't it be logical to provide hotel rooms as well? The boy said that Scandic Hotel was opposite Ikea. In the end, the two of them checked in there together and had sex.
…
Old man once entered a booth, where a hard little boy‑thing was already poking out from a small knothole from the adjoining booth. Not a sound could be heard from the boy on the other side. But he could feel the twitching desire as he knelt down and started sucking."
TOSHIBA SATELLITE C850-A
16. During the execution of the search warrant, the police seized a Toshiba Satellite C850-A laptop belonging to the offender. The laptop contained 12 images and 32 videos classified as child abuse material, Count 1.
17. Analysis of the laptop showed that the offender had accessed the child pornography material online between 28 June 2017 and 9 July 2017, (Count 2), and that he had accessed the child abuse material online between 30 September 2019 and 13 May 2020 (Count 3).
19. The child pornography material and the child abuse material identified on the laptop contained images and videos of male children between about three and 16 years of age engaged in penetrative sexual acts with adults and other children.
20. The material identified on the Toshiba C850-A includes at least 50 individual child victims.
TOSHIBA SATELLITE C850
21. During execution of the search warrant, police seized a Toshiba Satellite C850 laptop belonging to the offender.
22. The laptop contained one image and 32 videos classified as child abuse material (Count 1).
23. Analysis of the Toshiba laptop showed that the offender had accessed the child pornography material online between 28 June 2017 and 9 July 2017 (Count 2).
24. The child pornography material identified on the Toshiba laptop contained videos of children between about 10 and 16 years of age engaged in penetrative sexual acts with other children, solo masturbation, and bestiality.
25. The child pornography material identified on the Toshiba laptop includes at least seven individual child victims.
ACER ASPIRE CLOUDBOOK
26. During the execution of a search warrant, police seized an Acer Aspire Cloudbook laptop belonging to the offender.
27. The Cloudbook contained 112 images and 32 videos classified as child abuse material (Count 1).
28. Child abuse material identified on the Acer Aspire Cloudbook contained images and videos of children between about two and 16 years of age. Some of the videos depicted children engaged in penetrative sexual acts with adults and other children, sexual acts between male and female children, and solo masturbation.
29. The child abuse material identified on the Cloudbook included at least 50 individual child victims.
ACER ASPIRE
30. During execution of the search warrant, police seized an Acer Aspire laptop belonging to the offender.
31. The Acer Aspire contained three images and 14 videos classified as child abuse material (Count 1).
32. The child abuse material identified on the Acer Aspire contained images and videos of children between about two and 16 years of age engaged in sexual acts with adults.
33. The child abuse material identified on the Acer Aspire includes at least five individual child victims.
SEAGATE EXTERNAL
34. During execution of the search warrant, police seized a Seagate Freeagent Goflex 1.5 terabyte external HDD belonging to the offender.
35. The Seagate external contained 976 images and 77 videos classified as child abuse material (Count 1).
36. The child abuse material identified on the Seagate external contained images of videos of children between about three and 16 years of age. Some of the videos depicted children engaged in penetrative sexual acts with adults and other children, images of naked children with a focus on their genitalia and a comic strip detailing an incestuous relationship between a mother and son.
37. Child abuse material identified on the Seagate external includes at least 50 individual child victims.
WD EXTERNAL
38. During the execution of the search warrant, police seized a Western Digital external hard disc drive belonging to the offender.
39. The WD external contained six images and ten videos classified as child abuse material (Count 1).
40. The child abuse material identified on the WD external contained images and videos of children between about two and 16 years of age. Some of the videos depicted children engaged in penetrative acts with adults.
41. The child abuse material identified on the WD external includes at least ten individual child victims.
HTC SMARTPHONE
42. During the execution of the search warrant, police seized an HTC Smartphone belonging to the offender.
43. The HTC Smartphone contained 276 images and 51 videos classified as child abuse material (Count 1).
44. Analysis of the HTC Smartphone showed that the offender had accessed the child abuse material online between 20 November 2019 and 8 May 2020 (Count 3).
45. The child abuse material identified on the HTC Smartphone contained images and videos of children between about three and 15 years of age. The images and videos depicted focus on the penis and anus of the children and included the forced anal and oral rape of both pre‑pubescent male and female children by adults.
46. The child abuse material identified on the HTC Smartphone includes at least 50 individual child victims.
1. It can be said in respect of the facts so far that the indicated interest is in children between the ages of two and 16, and predominantly male, being both pre‑pubescent and post‑pubescent, and a total so far of 272 victims.
COUNTS 4, 5 AND 6 - TRANSMITTING, ACCESSING AND CAUSING CHILD ABUSE MATERIAL TO BE TRANSMITTED TO HIMSELF
47. Analysis of the HTC Smartphone also showed that the offender used the application, "Telegram". The offender operated an account with the username "DanHoran".
48. On 21 December 2019, the offender transmitted one image of child abuse material to another "Telegram" user, "Dapromax" (Count 6). The image depicted penetrative anal sexual activity between two pubescent children.
49. On 28 January 2020, the offender transmitted one image of child abuse material to another "Telegram" user, "Youngjuicecum" (Count 6). The image was accompanied by the text, "Hey". The image depicted two naked male children holding their own erect penises.
50. On 5 February 2020, the offender transmitted one image of child abuse material to another "Telegram" user, "AndrewAlf" (Count 6). The image was accompanied by the text, "Hey". The image depicted a male child with focus on the anus and genitals.
51. On 6 February 2020, AndrewAlf sent nine videos of child abuse material to the offender. By engaging in the trade of such material, the offender caused child abuse material to be transmitted to him (Count 5). The videos depicted the anal or oral rape of male children, some pre‑pubescent, by an adult male.
52. On 14 February 2020, the offender transmitted one image of child abuse material to another "Telegram" user, "AlexanderGarcia" (Count 6). The image depicted two naked, pre‑pubescent male children engaged in a sex act.
53. On 24 February 2020, the offender and another "Telegram" user, "LameBlaze", exchanged the following messages:
LB, "Ash here"
D, "Hey :)"
LB "Love your page"
D, "I'm glad. So horny today".
LB, "Same. What you into, perv?"
D, "Boys, all ages".
LB, "Nice".
54. Between 5 April 2020 and 9 April 2020, the offender and LameBlaze exchanged the following messages:
LB, "What's up?"
D, "Hey"
LB, "Horny, and you?"
D, "Always :P"
LB, "Anything to share?"
D, "I've got no link atm"
55. On 9 April 2020, the offender transmitted one graphics interchange format (GIF) of child abuse material to LameBlaze (Count 6). The GIF depicted a male child performing oral sex on an adult male.
56. On 9 April 2020, the offender received one video of child abuse material from another Telegram user, "RankWelling" (Count 4). The video depicted an adult male and a pre‑pubescent male masturbating each other.
57. On 12 April 2020, the offender transmitted one image of child abuse material to RankWelling (Count 6). The image depicted a naked, pre‑pubescent male with a focus on the genitals.
58. On 15 April 2020, the offender transmitted one image of child abuse material to another "Telegram" user, "DeletedAccount" (Count 6). The image was accompanied by the text, "Hey". The image depicted a naked male child about five or six years of age, with a focus on the genitalia.
59. Between 8 April 2020 and 15 April 2020, the defendant received five images and 11 videos of child abuse material from DeletedAccount. By engaging in the trade of material, the offender caused child abuse material to be transmitted to him (Count 5). The videos included the anal and oral rape of pubescent and pre‑pubescent children by adults.
60. Between 15 April 2020 and 17 April 2020, after the first image of child abuse material sent by the offender to DeletedAccount, the pair exchanged the following messages:
DA, "Hey fuck, that's got my cock leaking"
D, "I'm glad :) where are you guys from?"
DA, "Ohio. You? Age?"
D, "I'm in Australia, 22"
DA, "Lol, figures. I'm driving. Tight now. Let me get home and I'll perv out w/u"
D, "Sweet, okay. Just found this on YT" (sends link)
DA, "Kinda rare find on YT"
D, "Hi, any groups?"
DA, "No, I'm looking"
D, "Okay, let me know if you find one"
61. On 28 May 2020, the offender transmitted one video of child abuse material to another "Telegram" user, "AN" (Count 6). The image was accompanied by the text, "Hi". The video depicted the penis of an adult male ejaculating onto face of a sleeping, pre‑pubescent male child.
62. On 28 May 2020, the offender transmitted one image of child abuse material to another "Telegram" user, "PigBoy" (Count 6). The image depicted a naked male child about 12 to 14 years of age.
63. The offender and PigBoy exchanged the following messages:
D, "Hey"
PB, "Hey. Nice"
D, "Hee hee, like him?"
PB, "Yes"
AGGRAVATED OFFENCE - COUNT 7
64. The offender joined and was a member of three chat groups using "Telegram" involving two or more other people in which child abuse material was shared among the members (Count 7).
1. On 25 March 2020, the offender accessed three videos of child abuse material that were uploaded by other users of the chat group called, "Haos Chat" (first instance). Haos Chat contained 81 participants. The videos included male children engaged in solo masturbation.
2. On 25 March 2020, the offender accessed three videos of child abuse material that were uploaded by other users of the chat group called, "FDFDDCC" (second instance). FDFDDCC contained 45 participants. The videos included male children engaged in solo masturbation.
3. On 1 April 2020, the offender joined a group chat called, "Kumpullan" which contained 16 participants. On 13 May 2020, the offender transmitted one image of child abuse material to the participants of the Kumpullan group chat by uploading an image into the chat (third instance). The image depicted a male child about 12 to 14 years of age, with a focus on the anus and genitalia.
ARREST AND RECORD OF INTERVIEW
65. About 7:15am on 12 June 2020, the offender took part in a cautioned record of interview with police in which he stated the following:
* There was child abuse material on his computer in his bedroom upstairs.
* He provided police with his computer password.
* He downloaded the material from the internet.
* The two phones found in his bedroom belonged to him.
* The phones may contain child abuse material in the gallery.
* He had an external hard drive that might contain child abuse material.
* No one else had access to his computer, phones or external hard drive.
* He began downloading or accessing the material when he was 14 or 15 years of age.
* He accesses the material for sexual gratification or masturbation purposes.
* He understood that it is illegal to possess images of a sexual nature of persons under the age of 18.
* He viewed "mainly young teens and boys".
* A "small amount" of the material would be pre‑teen.
* He would save the material to revise for his own use.
* He would repeatedly revisit the saved material.
* He would use Telegram "possibly" to obtain child abuse material.
* There may be child abuse material on two laptops belonging to him.
* He came up with the username "DanHoran".
* He would use the search terms "kids", "gay kids" or search for older teens.
* When asked whether he has an attraction to that age group, he said, "Um, yeah, I'd say so".
* He transmitted child abuse material that he either found on the internet or that other people had sent him.
* He would find chat groups for the sharing of child abuse material using search terms on Twitter.
* In order to remain in a chat group, he would "potentially, sometimes" actively share material.
"I don't often share on groups but usually (the material is) from my own computer".
"I don't particularly like doing it because I...because I know it's a terrible thing...sharing this kind of material...I don't understand what appeals...why it appeals to me, but it does".
66. On 12 June 2020 following the search warrant and the record of conversation, police arrested the offender.
1. In respect of Count 1, there were a total of 2,643 images and 349 videos. In respect of Count 2, there were a total of 310 images and 84 videos.
2. In respect of Count 3, there were a total of 1,247 images and 164 videos.
3. Counts 2 and 3 are essentially a continuing course of conduct. Count 2 relates to the period between 5 June 2016 and 20 August 2019, at which time the legislation used the phrase, "child pornography material". However, that changed, and Count 3 relates to the following period, between 30 September 2019 and 13 May 2020, when the same material previously referred to as "child pornography material" became referred to as "child abuse material". The first period covered in Count 2 was approximately a three-year period, and, as I have indicated, 310 images and 84 videos. The second period, which was approximately seven or eight months, was related to 1,247 images and 164 videos. That is significantly more active in terms of the actual content than the first period. The total between Counts 2 and 3 is a total of 1,557 images and 268 videos.
4. Count 4, on or about 9 April 2020, use a carriage service to access child abuse material, relates to a single video received from RankWelling of an adult male and a child masturbating each other.
5. Count 5, use carriage service to transmit to self, related to the period between 6 February 2020 and 15 April 2020, and in that period, between 8 April 2020 to 15 April 2020, he received five images and 11 videos of naked five- or six-year-old male children involving anal or oral rape of pubescent and pre‑pubescent children by adults.
6. Count 6, use carriage service to transmit, was between 21 December 2019 and 28 May 2020, approximately six months. He transmitted one GIF, seven images, and one video on a variety of dates, being 21 December 2019, 28 January 2020, 5 February 2020, 14 February 2020, 9 April 2020, 12 April 2020, 15 April 2020, and 28 May 2020.
7. Count 7 related to his accessing three videos on 25 March 2020, as part of a chat group involving 81 participants, and on the same date, a different chat group, three videos on the chat group having some 45 participants, and on 1 April 2020, transmitting rather than accessing one image.
8. In addition to the facts that were agreed, the Crown supplied three pages of images, being a total of 27 images of varying sexual content as a sample taken from all of the material that I have referred to. In my view, the sample can be described as a "sanitised" sample. It contained no videos and no information as to when any particular image was taken from the images or from the videos. The manner in which the prosecution elected to describe the material located in the facts was in general by short, anodyne expressions which contained little information beyond such things as the age of the children in the images or videos, whether they were penetrative sexual acts with adults or other children, or solo masturbation or bestiality. There were no descriptions other than the general short descriptions that I've referred to. There was no description, for instance, of what beasts were involved, or how or with whom.
9. In my view, if the prosecution wishes the Court to be fully cognisant of the seriousness of the offences, it needs to ensure that the Court can properly understand the offender's perverted and depraved interests in order to fully understand the accused.
10. A picture has been said to be worth a thousand words, a video could be said to be worth ten thousand words, particularly if it is a video that has audio attached which allows the Court to assess the extent to which the offender is interested in seeing children suffer from sexual misconduct by others. I say that simply to indicate, as I did when the facts were provided, that, I regard the way in which this matter has been presented as being significantly inadequate. That may have been overcome by more extensive descriptions contained in the facts, but as I have said, they were not present.
11. As to the objective seriousness of the offences, in my view, all offences involving child pornography or child abuse material being possessed, accessed, or transmitted, are serious offences. Each time an image or a video is viewed by someone, it in effect constitutes another crime or an ongoing crime against the original subject of the image or video, and those images or videos transmitted through the internet potentially live on forever and become viewed by an endless number of persons who have an interest in such perverted and dark subjects.
12. Each of the offences that offender has pleaded guilty to can be regarded as a serious offence, although clearly there must be a distinction made depending on the nature of the material relating to any particular offence, the quantity of it, and whether the charge is one of possession, transmission, accessing, or as in Count 7, committing an offence against s 474.22 on three occasions, the commission of each offence involving two or more people. In effect, in relation to Count 7, the seriousness of the offence arises from it being in effect networking, not simply transmitting to one another, but networking with like-minded groups, and as previously referred to, a total between three chat groups of 142 participants. Although the number of images was small, each of the three chat groups can be regarded as of a significant size.
13. The objective seriousness of each individual offence needs to be reflected in the eventual sentence to be imposed, but their seriousness must take into account the overall context of the offending behaviour over the period of time that it occurred, being approximately four years.
14. As to the subjective matters, before the Court is the offender's criminal history, which indicates that he has never been convicted of any criminal offence. In that sense, he is a person of good character. However, although the overall offending in relation to these offences relates to, in essence, approximately a four-year period, the material before the Court indicates that he had been in fact accessing, what would have been in the early days called, child pornography, since the age of approximately 14 or 15. He is not being sentenced in respect of any offences other than the offences that I have referred to, but it is however relevant that by his own admission, he has been committing like offences for a significant period of time.
15. Provided to the Court, in relation to subjective matters on his behalf, have been reports from six psychologists and two psychiatrists, as follows. Mr Nesh Nikolic, Psychologist, who provided an undated report, referring to a number of consultations or sessions with the offender between 6 July 2020 and 28 July 2020, when his services were terminated by the offender's mother, on behalf of the offender.
16. Dr Rodney Blanch, Psychiatrist, a report dated 3 September 2020, and a further report of 23 November 2020.
17. David Wakeling, Psychologist, and Ms Jorja Zollinger, in an unsigned report dated 22 December 2020. In the report, it refers to having had two interviews with the offender on 16 November and 3 December 2020, as well as a testing session on 3 December, and an interview with the offender's mother on 3 December 2020.
18. There was a further report from Dr Jeremy O'Dea, Psychiatrist, dated 3 September 2021, relating to a single assessment interview on 22 July 2021, noting that he had access to almost all of the other reports that have been done by others. A further report from Benoit Pillet, ,Psychologist, dated 15 November 21, who had seen the offender on the 17th, 24th, 31st of August and 14 September and 26 October 2021. A further report from Dr Isabelle Bauer, Psychologist, dated 28 February 2022. It related to eight sessions of cognitive behavioural therapy since July of 2021. Also referred to in one or more of those reports was Dr Christian Torres, but there is no report from that person that was tendered to the Court.
19. I note in respect of Mr David Wakeling and Ms Jorja Zollinger that they are specialists in the assessment of autism, and the conclusion of their lengthy report and testing was that they found on testing that the offender did not meet the criteria for diagnosis of an autism spectrum disorder.
20. In relation to each of those reports, I indicate that I have read them all, despite having to wade through often repeated material, extracted by one expert from another's report, or alternatively repeated by the offender or the offender's mother on another occasion. The Court was essentially swamped by the bulk of material provided on behalf of the offender, but I have made the effort to read it in its entirety.
21. In addition to that material, the offender's mother, KS, a mental health nurse, who has in the past worked with rape victims, was called to give oral evidence as well as providing to the Court a reference dated 28 February 2022. There is also a reference of MS also dated 28 February 2022, MS being the biological father of the offender, and a reference from BP, dated 28 February 2022, being the offender's step-father, as well as a reference from Darren Gimber, an employer of the offender from July 2019 to August 2020 when the offender was employed at Lake George Hotel in respect of bar, food and customer service. Subjective matters are taken from this material.
22. The offender is the third of four children to his biological parents, having an older brother and an older sister and a younger brother approximately 18 years of age who suffers from Autistic Spectrum Disorder. The younger brother is a half-brother. The younger brother was apparently born with some impairment to his brain and has ongoing difficulties as a result, particularly in relation to learning. His father is over 60 years of age and moved to London some seven or eight years ago, where the offender believes he manages a health firm of doctors and nurses.
23. His mother, who is approximately 60 years of age, was born in the United Kingdom and is currently acting for ACT Health, managing therapists in the drug and alcohol section, as well as in the past working for the Rape Crisis Centre in Canberra. His parents separated when he was about four years of age, and his mother then commenced a relationship with his stepfather when he was about five. He refers to his stepfather as working in the area of disability, and being very caring.
24. He was born in Bywong, near Bungendore, and attended the Bungendore Primary School, then Daramalan College, a private Catholic co-educational college in Canberra, where he completed Year 12 with an ATAR that was only in the high 50s. After leaving school he did nothing for some two or three years but had a part-time job in a café in Bungendore before moving to Melbourne to live with his stepfather's sister, where he spent the first few months looking for work unsuccessfully, became depressed and then refused to do anything. It was eventually suggested that he start a university course and he enrolled in an associate degree in IT at RMIT. He lasted approximately a year before dropping out and returning to Bungendore. On his return, he met up with some friends but spent most of his time in his room on his computer. If I didn't refer to it earlier, his younger brother, as a result of his difficulties, suffers from seizures to which the offender was exposed.
25. He states he was bullied a lot in high school which he believes was because of his physical appearance. He started going online and into chat rooms, being those mostly relating to young teenagers who were gay. He was struggling with his sexual identity as to whether he was gay or not, but eventually became aware of his own sexual interests in males which drew him to mainly gay pornography.
26. He claims that at the age of 14, he arranged to meet an adult male he had met on a chat website who lived in Canberra, and it was arranged that the male would collect him from his school and take him back to the male's premises. He claims that when there, they sat at a piano, and the male began touching him before eventually performing anal intercourse on him for about half an hour to an hour, when he was then returned to school where he was picked up by his mother. He did not report the event to anyone, except perhaps people he met later through the internet application "Grindr", after he had attended college.
27. It appears that his desire to meet with the adult male was to investigate his gender preferences by way of sexual contact, although anal intercourse may have been beyond his expectation when making the arrangements. The action of the adult male has been described as "rape", but there is almost no information in any of the material provided to any of these psychologists or psychiatrists as to actually what occurred other than what I have just referred to. They appear to have simply accepted the statement without seeking any detail.
28. He did not say anything about this event until he was arrested for these charges and first told his mother, and as result eventually reported it to the police about a week before his first consultation with Dr Jeremy O'Dea, reporting it apparently, as referred to by Dr O'Dea, because "My family thought it would be a good idea." It would seem that it was referred to the police for the purposes of it being the subject of reporting to the Court. The offender informed Dr O'Dea that he did not know the details of the accused, so there was apparently little expectation of anyone being prosecuted for the historic offence.
29. I note that his biological father, MS, who in his reference on behalf of the accused has indicated that he has a high regard for his son and will remain supportive of him despite the offending. In his letter to the Court Mr MS twice referred to the rape as an "alleged" rape which seems to imply that the offender's biological father implicitly has some doubts as to whether it was rape or consensual activity that went further than expected.
30. From his early 20s on, the offender has engaged in sexual activity with a number of adult males as arranged through online chat groups. These appear to be essentially one-off meetings conducted in hotel rooms rather than ongoing relationships. He apparently suffers from significant anxiety regarding sexual contact with others. He identifies as having a predominant, if not exclusive, adult-male sexual orientation but remains uncomfortable with adult males.
31. He denied to Dr O'Dea an awareness of a sexual attraction to males or females under 16 years of age. However, he said that from 14 to 20 years of age, he had accessed pornography on a regular basis, masturbating once or twice a week, and gravitating to daily as he grew older in his 20s. He accessed pornography depicting deviant sexual activity throughout his teenage years, mostly being males his age. He claimed that he never started out looking at children. He would normally start out looking at
"Adults...and it goes to teenagers...young teenagers...from 14...male children (...), 11...12...13...I don't think that they were ever attractive to me, but I did have it on my computers...same with 10 and under".
1. However, he went on to acknowledge that having found them he downloaded them, claiming that most of the stuff he had looked at after downloading it. He claimed to have downloaded through the internet, something referred to as the Clearnet, and also from the dark web. He said he had the child abuse material all over his computers,
"I think I was just careless about it. I don't think I was sexually interested (in the child abuse material). I always wanted to clean it up...and get rid of it...but it was everywhere..."
1. He also claimed to others that it had been his intention to consolidate all the pornographic and child abuse material onto one device so that he could delete it all in one swoop because, in effect, he knew it was wrong and he did not want to have it anymore.
2. The claim that he needed to transfer it onto one device to delete it defies common sense. The material was distributed over some eight devices. If he didn't want to have it, all he had to do was delete it from the individual device. It would be a total waste of time and effort to transfer it all to one device to then delete it from that device.
3. That denial of common-sense places a question mark over the confidence that the Court can place in what the accused has said in evidence when he gave evidence on sentence, or to any of the various psychologists or psychiatrists that he has consulted. That he was not interested in young children, in my view, is contradicted by the significant quantity of such material that he was in possession of and which he transmitted and obtained.
4. Indeed, when searching the internet, he would use such search terms as "kids", "gay kids", or search for "older teens". That he knew what he was doing was wrong is evidenced by his statement, and during the interview with police, when he said,
"I don't particularly like doing it because I know it's a terrible thing...sharing this kind of material. I don't understand what appeals, why - why it appeals to me, but it does."
1. I also note that although it has been submitted on his behalf that he was entirely cooperative with police when they conducted the search warrant, identifying his equipment and providing passwords, and matters of that nature, the interview itself indicates that he was not entirely forthright. He was of course required by law to provide the passwords - that would have been committing a further criminal offence if he had not done so. However, he did provide them.
2. But in terms of what material he had, he used such expressions that I've already referred to as, "the phones, they contained child abuse material." "The external hard drive might contain child abuse material." "A small amount of the material would be pre-teen." He would use Telegram "possibly" to obtain child abuse material and "there may be child abuse material on the two laptops", and that in order to remain in the chat group he would, "potentially, sometimes" actively share material.
3. In my view. the interview as referred to in the agreed facts, or those parts of it which I referred to, indicated a certain reluctance to be fully forthright. That reluctance is not unusual in relation to offenders caught out so badly, and in relation to such embarrassing topics as child pornography or abuse material.
4. Although the content of his electronic devices demonstrates a significant interest in perverted and degrading material of a serious nature in relation to children as young as two, the offender denies ever having converted his interest in that material into an interest in actual physical contact in the real world with children, and I note, that there is no evidence that he has ever taken that further step, and that he appears to have confined himself to what he could find by way of the internet.
5. The offender is said to not smoke, to only rarely drink alcohol, and not to use illicit substances on a regular basis, and he did not relate the index sex offences to the use of either alcohol or illicit substances.
6. He is said to have been suffering from anxiety and depression for a number of years, and at the time he was seen by Dr O'Dea. He was prescribed the antidepressant medications Escitalopram and Lexapro. He is said to have experienced suicidal ideation since his school days. He has not spoken to anyone about that issue until being charged with these offences and obviously during his lengthy and repeated consultations with various psychologists and psychiatrists. However, at the time he was seen by Dr O'Dea his moods were observed to be relatively stable with no ongoing suicidal urges, although he had problems with sleep and feeling tired. He apparently has no other general medical problems.
7. He has been said in the past to have heard voices by way of conversations taking place inside his head; however, the voices did not command him or say other things typical of schizophrenia. He said he had in the past had some visions, seeing someone for a small period of time, this starting when he was in high school, but while the voices were still going, there had been no visual hallucinations for a long time.
8. Dr O'Dea found that he was a healthy young man who had difficulty engaging in detailed discussion regarding his predicament and overall sexuality, that he displayed limited insight into his behaviour in relation to sex offences but expressed remorse and contrition in relation to the sex offences and his commitment to understanding and controlling those behaviours. Dr O'Dea opined that he appeared of adequate intelligence, and other material before the Court indicates that he is better than 75% of his peers in term of intellect.
9. Dr O'Dea did not diagnose him as suffering from a psychotic illness such as schizophrenia or an obsessive-compulsive disorder or a major neurodevelopmental disorder such as Autistic Spectrum Disorder, as I have previously referred to. He had consulted a specialist who found that he did not qualify as suffering from Autistic Spectrum Disorder.
10. Dr O'Dea opined that on the basis of what was said to be a sexual assault at the age of 14 years with subsequent nightmares and flashbacks, and he has then reported periods of derealisation and disassociation that this
"would be consistent with a psychiatric diagnosis of PTSD, with his reported "voices" and "visions" best understood as associated with this condition rather (than) as being indicative of a psychotic process."
1. Doctor O'Dea clearly left the word "than" out of his report.
2. Dr O'Dea found on the basis of the offender's psychosexual history and his conduct in relation to these matters, involving children ranging from three to sixteen years, and the general case that individuals are likely to choose the kind of pornography that corresponds to their sexual interests, that the offender would meet the psychiatric diagnostic criteria for a Paraphilic Disorder, Paedophilia. Sexually attracted to male children. Not limited to incest; so called homosexual paedophilia. And as he reported a predominant focus on male children aged from approximately 14 to 18 years, he would also meet the diagnostic criteria for an additional diagnosis of homosexual hebephilia (sexual attraction to postpubescent male children). He opined that this combination of homosexual paedophilia and hebephilia appear to have been, to date, Mr RS's predominant, if not exclusive sexual orientations.
3. Dr O'Dea opined that persons with those sexual orientations often give a history of being sexually abused and/or sexually assaulted as children. He also said,
"Nevertheless, whilst sexual assault and/or sexual abuse as a child, can and does have significant impact on an individuals' subsequent sexual development and relationships, it would not be considered to causally redirect the sexual orientation of an adult male to children...
That being said, it is becoming increasingly recognised in clinical settings that the focus on internet pornography by males through their formative sexual years can and does have significant, and often negative impact, on their developing sexuality. Ready access to the entire range of sexuality activity through internet pornography can precipitate and intensify an underlying sexual deviance, such as in RS's case, homosexual paedophilia and/or hebephilia, further complicating the problems in the development of real life adult sexual relationships...
Redirection of paedophilic and hebephiliac sexual orientation has been found relatively resistant to psychiatric and/or psychological treatment to date."
1. He goes on to say, however, that they can be successfully modified and controlled with specific and assertive psychiatric treatment, particularly in the community. Such treatments usually involve the prescription of testosterone lowering medications and psychotherapeutic interventions. He provides information as to what may assist the offender in that regard. He also states,
"Notwithstanding the difficulties with risk assessment and prediction in general, and risk assessment and risk prediction of adult men engaging in further sex offending behaviours in the community in the long term, and the specific difficulties with risk assessment and prediction regarding men who have engaged in internet child pornography access repeating this offending behaviour, or progressing to more so called "hands-on" sex offending, patients such as Mr RS, with a specific and significant homosexual paedophilic and/or hebephiliac component to their sexuality would be considered to have a significant risk of engaging in homosexual paedophilic and/or hebephiliac behaviours in the community in the long term that would require assertive and long term psychiatric treatment and management. as previously detailed."
1. And finally, he states that there are,
"… no effective treatment programs for Mr RS's homosexual paedophilia or hebephilia in custody, with his risk profile and treatment needs unlikely to be altered on his release from custody, if so detained."
1. I have already referred to the offender's biological father as being entirely supportive of the offender, as is his mother, who has attended many of the consultations that he has had with psychologists or psychiatrists and provided to them knowledge of his past history. I accept that the offender is genuinely remorseful and contrite in respect of this offending, and whatever the outcome of these proceedings, that support from his mother, his step‑father, and his biological father will continue.
2. If I didn't refer to it before, since being arrested in respect of this matter, he has had at least eight sessions of cognitive behavioural therapy since July of 2021 with Dr Isabelle Bauer, and some consultations with Mr Nesh Nikolic between 6 July 2020 and 28 July 2020, an unfortunately short period.
3. The report from Dr Bauer only provides the information as to her having had consultations, with a number of mental health treatment plans. It does not provide any information as to any progress or benefit obtained by such attendance.
4. I note that his mother refers to noticing a change in his behaviour from about the age of 14, which would appear to be consistent with his becoming aware or concerned about his sexual preferences and what may have occurred when he arranged to meet with the male at the age of 14. I accept that in the light of his PTSD and sexual orientation as referred to by Dr O'Dea that those matters operate to reduce his moral culpability, which must be taken into account in determining the sentence, in particular, Dr O'Dea's statement that focus on internet pornography by males through their formative sexual years can and does have a significant and often negative impact on their developing sexuality. Although it has frequently been noted, an offender's demonstration of those interests, as demonstrated by this offender's access and dealing with the material he has dealt with, may often lead to conversion to actual activity of the same type in what I may call the "real world" or the "physical world". The offender has not yet reached that stage., although he is now some 26 years of age and was approximately 25 years of age at the time that he was arrested.
5. The Court is required by part IB Crimes Act 1914 (Cth) s 16A(2) to impose a sentence or make an order that is of a severity appropriate to all the circumstances of the offence/s, of course, having regard to those matters set out in s 6A(2). Relevant to that, as has been frequently expressed, is the quantity of the child abuse material, the nature of it, the age of the children involved, the quantity of it, and the level of perversion or depravity displayed by it, as well as whether there is evidence of being involved with it for financial reward. I note there is no evidence of being involved for financial reward in respect of this offender. I have had reference to all of the cases that have been referred to or provided by the Crown and by Ms Jones SC on behalf of the offender.
6. In my view, in relation to this matter, and as observed on a number of occasions in the caselaw, sentencing for offending of this nature must provide for general deterrence as well as specific deterrence, and in my view, that cannot be achieved in this matter, considering the seriousness of the overall offending, without the imposition of an actual term of imprisonment, contrary to the submissions made on behalf of the offender by Ms Jones SC.
7. In summary, Count 1 related to the offender possessing child abuse material on eight separate devices on the day of the search warrant. He possessed a total of 2643 images and 349 videos classified as child abuse material.
8. Count 2 related to the offender having accessed child abuse material online, using three devices, between 5 June 16 and 20 August 19, being 310 images and 84 videos.
9. Count 3 relates to the offender having accessed child abuse material online, using two devices, between 30 September 2019 and 13 May 2020, being 1247 images and 164 videos. I note that in effect Counts 2 and 3 were really a continuing course of conduct.
10. Count 4 relates to a single video of a child abuse material the offender received via the application "Telegram" on 9 April 2020.
11. Count 5 relates to the offender having received five images and 20 videos of child abuse material from two unknown persons via "Telegram" between 6 February 2020 and 15 April 2020.
12. Count 6 related to the offender having himself transmitted seven images, one video and one GIF of child abuse material to nine separate recipients, using "Telegram" between 21 December 2019 and 28 May 2020.
13. Count 7 is an aggravated offence whereby the offender participated in three chat groups for the purpose of sharing and accessing child abuse material between 25 March 2020 and 13 May 2020. I have previously referred to the number of participants in the three chat groups as being in total 142.
14. There was overall a total of 272 victims aged between two and 16. They were predominately male, both pre-pubescent and post pubescent. Contained in the material were images that suggested bondage/torture or bestiality of an unspecified nature and sexual penetration of very young children anally, vaginally and orally.
15. I take into account the maximum penalties provided by the sections as previously referred to, being 15 years maximum referable to Counts 1 to 6 and 25 years in respect of Count 7. It is perhaps fortunate for the offender that he was detected at the time that he was detected, because the legislature has taken a dimmer view of matters such as this particularly since the Royal Commission. and the legislature has laid down some minimum terms which are not short, however they do not apply at present, and I have ignored those.
16. It has been noted on many occasions that offences of this nature are extremely easy to commit by way of our modern resources, the internet and extremely difficult to detect.
17. As to assessing the physical harm or fear or distress of the victims, that has been made very difficult by the way in which the Crown has presented the material, as I have previously referred to, but I accept that even from the limited sample provided of images only, it is likely that there are significant levels of distress discernible at least from the videos that the offender was in possession of.
18. Each time this offender viewed the material, he was in my view victimising again any child recorded in it, and again victimising the child when he obtained it from some other source or supplied it to some other interested person. I accept that some of the material possessed by him must have been examples of the most depraved forms of child abuse material even in the absence of a proper sample.
19. I note that there is no evidence that the offender paid for or received any payment for any of the material and while doing so may be an aggravating feature, the absence of that feature does not mitigate the offending. Whether or not there is a payment or sale of the material, the offender's conduct has encouraged the demand for and continuation of the child abuse material market. It has been noted in the past, as I have referred to, offences of this nature are becoming increasing prevalent because of the advent of the internet and I also note that child abuse material offending fuels the fantasies of child sexual assault offenders and may stimulate persons with pederastic inclinations to commit such acts on viewing the material. It is pernicious and may promote a distorted view of reality where children are seen as appropriate sexual partners for adults. I decline to waste time quoting the actual cases that support those statements.
20. This offender was motivated by sexual gratification, as indicated by what he informed the police of in his interview and also with respect to what he informed various psychologists and psychiatrists of. As I have previously noted, there is however in effect a significant degree of overlap between the various offences, and the sentence to be imposed will require a degree of concurrency but must also allow for some accumulation in the circumstances where I intend to impose an aggregate sentence. I also note that where the objective gravity of the offending is such that a sentence of full-time imprisonment is inevitable, I must take account of s 16A (2AAA) which states,
"In determining the sentencing to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court,
(a) when making an order- to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non-parole period-to include sufficient time for the person to undertake a rehabilitation program."
1. That subsection was introduced to the Crimes Act (Cth) in 2020 and became operative in July 2020. The explanatory memorandum to the legislation, the Crimes Legislation Amendment (Sexual Crimes Against Children and the Community Protection Measure) Bill 2019 (255) to (258) states,
"255. This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing Commonwealth child sex offenders. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity.
256. This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program.
257. The new subsection 16A(2AAA) of the Crimes Act requires the court to have regard to the objective of rehabilitation when determining the sentence to be passed or order to be made. Under proposed subsection 16A(2AAA) the court will have to consider if it would be appropriate to make orders imposing conditions about rehabilitation or treatment options. A 55 further consideration is whether the sentence or non-parole period provides sufficient time for the person to undertake rehabilitation. For example, generally a non-parole period of 18 months to two years is necessary for offenders to complete a sex offender rehabilitation program while in prison.
258. In taking these matters into consideration the court is only required to have regard to what they consider appropriate, taking into account such matters as are relevant and known to the court. There is no requirement for the courts to conduct independent enquiries into rehabilitation options for a particular offender."
1. I note Dr O'Dea's opinion that an appropriate program is not available to the offender whilst in custody, but in my view, to reflect the objective seriousness of these offences and to provide both specific and general deterrence, allowing that there can be some reduction in the leave for general deterrence because I have made a finding of low moral culpability in respect of this offender, considering his history, a term of full time imprisonment must be imposed. But I have taken into account the purposes of s 16A (2AAA) as referred to in determining the sentence. I have also had regard to all of the cases that have been referred to me by the parties before making any determination of sentence. I do not intend to waste the parties' time by itemising those cases.
2. Taking all of those matters into account, including the 25% discount that I referred to at the commencement of these reasons, I will provide the following indicative sentences. In relation to:
3. Count 1, the indicative sentence is imprisonment for two years, three months. Count 2, the indicative sentence is one year.
4. Count 3, the indicative sentence is one year and six months.
5. Count 4, the indicative sentence is six months.
6. Count 5, the indicative sentence is six months.
7. Count 6, the indicative sentence is nine months, and
8. Count 7, the indicative sentence is two years, six months.
9. The aggregate sentence, particularly taking into account what I have said in relation to 16A (2AAA) and what I see as a guarded prospect of rehabilitation in the absence of significant ongoing assistance, is an aggregate sentence of four years with a non-parole period of one year. six months to allow for a much more significant period on parole of two and a half years. The sentence will be. as I previously referred to. backdated by three days from today to take account of the time in custody when arrested. So. the sentence of four years will commence on 28 March 2022. The non-parole period is one year. six months. meaning that the offender will be first eligible for parole on 27 September 2023. The balance of term is two years. six months. The total sentence of four years will accordingly expire on 27 March 2026. Now. is there any significant matter that I have failed to mention?
JONES: Could your Honour just excuse me? I just want to...
HIS HONOUR: Yes.
JONES: Sorry your Honour, nothing no.
HIS HONOUR: Alright, Mr Crown?
VON TREIFELDT: Just one matter, your Honour, that is, the application for a forfeiture order by the Crown. …There is a draft forfeiture order at Tab 6 of the Crown bundle if that assists your Honour, otherwise I have copies that I can hand up that are not attached to the binder.
1. HIS HONOUR: Alright, I order pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth subject to the retrieval by agreement of certain information from those items. That is, by agreement between the parties of certain information from the items to be specified. One HTCU11 mobile phone - I take it that is a number 356133085018413. Two, a black tower PC CA1C200M1NN00LG000038. Three, a Toshiba C50AXD287137Q. Four, a Toshiba satellite C850 4C399460R. Five, an Acer Aspire Cloud Book 53705729023. Six, a Seagate hard drive NA0MERS5, Acer Aspire 02401941. Western digital hard drive WD3600E1MSBK-01.
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Decision last updated: 13 October 2022