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District Court
New South Wales
Medium Neutral Citation: R v Eggleton [2023] NSWDC 11
Hearing dates: 10 August 2022, 7 December 2022
Decision date: 17 February 2023
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision: Imprisonment for 3 years with a non-parole period of 2 years and 3 months for the offence of possess child abuse material; imprisonment for 9 months for the offence of fail to comply with reporting obligations; imprisonment for 3 years and 9 months with a non-parole period of 2 years and 9 months for the offence of possessing or controlling child abuse material obtained or accessed using a carriage service; imprisonment for 3 years and 9 months with a non-parole period of 2 years and 9 months for the offence of using a carriage service for child abuse material
Catchwords: Possess child abuse material, use carriage service to solicit child abuse material, possess or control child abuse material using carriage service, mandatory minimum terms
Legislation Cited: Crimes Act 1900 (NSW) s 91H(2), s 474.22A(1), s 474.22(1)
Crimes Act 1914 (C'th) s 16AAB, s 16AAC
Child Protection (Offenders Registration) Act 2000 (NSW) s 17(1)
Cases Cited: R v Taylor [2022] NSWCCA 256
Category: Sentence
Parties: Rex (Crown)
Jaymi Joshua Eggleton (Offender)
Representation: Mr Ranken (C'th DPP)
Ms Perera (Solicitor for the offender)
File Number(s): 2021/00218093
Publication restriction: Nil
1. Jaymi Joshua Eggleton, you appear for sentence in relation to four principal offences.
2. First, an offence of possessing child abuse material. This involves a contravention of s91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 10 years. This is sequence 1.
3. Secondly, an offence of failing to comply with reporting obligations. This involves a contravention of s17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). The maximum penalty for that offence is imprisonment for 5 years. This is sequence 3.
4. Thirdly, an offence of possessing or controlling child abuse material obtained or accessed using a carriage service. This involves a contravention of s474.22A(1) of the Criminal Code (C'th). The maximum penalty for this offence is imprisonment for 15 years; and there is a mandatory minimum term of imprisonment for 4 years. This is sequence 4.
5. Fourthly, an offence of using a carriage service to solicit child abuse material. This involves a contravention of s474.22(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 15 years; and there is a mandatory minimum term of imprisonment for 4 years. This is sequence 7.
6. In addition to these four principal offences, you have asked me to take into account, in fixing the sentence for sequence 4, one matter on a s16BA Schedule, which I have certified. That is a matter of using a carriage service to access child abuse material. This is sequence 5.
7. The facts surrounding your offending are contained in an agreed statement of facts which, slightly recast by me as to style, but not substance, are as follows.
8. On 12 November 2011, you were convicted and sentenced in this Court, sitting at Griffith, of seven offences, being: five Counts of indecent assault where the victim was under the age of 10 years; and two Counts of committing an act of indecency with a victim under 10 years of age. For these offences, you were sentenced to terms of full-time imprisonment.
9. A further result of those convictions was that you were placed on the Child Protection Register for 15 years.
10. One of the consequences of being placed on that register was that inspections of your residential premises by police were permitted to ensure that you were complying with applicable conditions. One of those conditions was that you were required to report to police within 7 days any change to relevant personal information.
11. Such an inspection was conducted by police on 16 March 2021.
12. During that inspection, the police examined your Samsung mobile phone, in the course of which they identified Facebook messages that you had been exchanging with "Shane Scruff". These exchanges caused police to suspect that you may have been accessing child abuse material.
13. The police took possession of that mobile phone and then obtained, and reviewed, a Cellebrite download of that phone.
14. As a result of that review, you were arrested on 17 March 2021.
15. At the time of your arrest, you consented to the police seizing a Toshiba laptop and an ASUS computer tower.
16. Also on the date of your arrest, you voluntarily participated in an electronically recorded interview with police.
17. During that (first) interview, you stated that:
1. you met "Shane Scruff" through something referred to as the "Scruff application";
2. you used ice once a week – on Wednesday nights;
3. you only used the Scruff application when you used ice;
4. you only kept "legal" pornography;
5. if you "inadvertently" downloaded child abuse material through something referred to as "Mega", you would delete it off your phone and report it to "Mega"; and
6. you had had your (then) phone for 6 months – but you had "backed up" your phone since you were released from gaol for the sexual offending I have already referred to.
1. After that first interview, you were released, pending further enquiries.
2. On 28 April 2021, your Samsung phone was provided by the investigating police to the NSW Police Digital Forensics Unit.
3. On 16 July 2021, that Unit provided investigating police with the results of its examination of the phone, including an expert's report.
4. After the investigating police examined the material from that Unit, they obtained a search warrant for your residential premises on 29 July 2021 and that warrant was executed on 30 July 2021.
5. During the execution of that warrant, you identified a USB stick to police that contained child abuse material.
6. At the completion of the execution of the search warrant, you were again arrested and taken to Granville Police Station where you participated voluntarily in a (second) electronically recorded interview.
7. In the course of that (second) interview, amongst other things, you stated:
1. that you would search for "a lot of young nudes or family nudists on natural nudist sites" - but that you thought that was legal because it did not involve sexual acts;
2. that when you used ice, it overtook your self-control and you would "get on the computer" and start searching and storing material that you found;
3. at answer 58 you said: "I don't like how mentally screwed I've become from what I've been through as a kid and whatever else and I, I was, I was trained to believe that this is fine, right? I was there to serve older men";
4. at answers 61 to 62, you said: "And I know, like I said, it is illegal. But I'd rather see it than go out and do it";
5. that you would view material on your mobile phone on what was described as a "Tor browser", but otherwise on the computer;
6. that you remembered snapshots from a movie in a locked storage which you referred to as a "Hidden Cabinet" about two children engaging in sexual activity;
7. that some of the child abuse material movies came from what is described "an Onion address" ;
8. that you viewed the material on the USB stick by plugging it into your mobile phone or plugging it into the computer; and that there were about 50 videos of "mixed child content" on it;
9. that you had the USB stick for about 4 to 5 weeks and that you had last viewed it about 2 and half weeks before [presumably 30 July 2021], and when you were last using ice;
10. that you had sought and received a referral from Mr Tim Robbins, "psychiatrist", to "deal with [your] issues" – I pause to observe that a referral to a psychiatrist or a psychologist was a condition of two community correction orders which were imposed upon you in the Parramatta Local Court on 8 June 2021 when you were sentenced for two (earlier) offences of failing to comply with reporting regulations;
11. that there is a Snapchat that wasn't on [your] "form"; and
12. that you used ice with "Natalie" and created the Snapchat so that you could film "funny videos with Natalie", but you hadn't used it since.
1. I earlier mentioned that, during the execution of the search warrant at your residential premises on 30 July 2021, you provided the police with a USB stick which contained child abuse material.
2. A subsequent examination of that USB stick identified 313 videos that contained child abuse material.
3. Of those 313 video files:
1. 187 files primarily depicted prepubescent children engaged in sexual acts – variously "solo", with other children or with adults. Two of those video files involved an adult engaging in a sex act with a baby;
2. 126 files primarily depicted pubescent children engaged in sexual acts, either "solo" or with adults; and
3. some of the videos already referred to included children in sexual poses.
1. The Agreed Statement of Facts does not describe, with any more particularity, the "sexual acts" or "sexual act" in those videos. These expressions cover a wide variety of criminal activity of varying seriousness. The Court is further not assisted in assessing the gravity of the sexual misconduct depicted by the use of the Interpol Baseline Categorisation System. That would not have been the case if the CETS were still being used. I have not, therefore, speculated further adversely to your interests about the nature of the child abuse material. These observations are equally applicable to other references to child abuse material which I shall later refer to in these remarks where no further particularity is given.
2. It is the possession of these 313 video files which is sequence 1.
3. I earlier mentioned that the police, at some point, seized and examined the contents of your Samsung mobile phone. There is some inconsistency in the Agreed Statement of Facts as to when that item was seized: [4], [5] and [17] state it was seized on 16 March 2021 when an inspection was conducted by police at your residential premises; whereas [15] states it was seized on 30 July 2021 when the search warrant was executed at those premises. The inconsistency, however, does not presently seem to me to be of any significant consequence. I mention it for completeness.
4. What is of consequence is what was found on that mobile phone.
5. One thing that was found by police upon inspection was that, on 7 July 2021, you had joined Snapchat (a date which is not consistent with the phone being seized by police on 16 March 2021 and remaining constantly thereafter in police possession). In breach of your obligations under the Child Protection Register, you had not reported this fact to police within 7 days of your joining that application.
6. It is this failure to report that is sequence 3.
7. Another thing found by police when they examined your Samsung mobile phone concerned the "Hidden Cabinet" folder (which was a password secure folder) which you had mentioned in your second interview with police.
8. Once access was gained to that folder, the following five videos, containing child abuse material, were found:
1. a movie of a prepubescent boy and a prepubescent girl engaging in numerous sex acts, including "actual sexual intercourse";
2. a movie of an early pubescent female performing fellatio on an adult male;
3. a movie of an adult male engaging in "sexual intercourse" (penetrative sex) with a prepubescent female;
4. a movie of an adult male engaging in sexual intercourse (fellatio and digital penetration) with a prepubescent female;
5. a movie of an adult male receiving fellatio from a prepubescent female.
1. I also earlier mentioned that, at the time of your first arrest on 17 March 2021, an ASUS computer tower was seized.
2. On inspection, the tower was found to have two "parts".
3. The first "part" had:
1. 6 images of prepubescent children engaging in sexual acts and posing; and
2. 14 images of pubescent children engaged in sexual activity.
1. The second "part" had 28 images containing child abuse material, of which the following three samples were described in the Agreed Statement of Facts:
1. one image was that of a partially clothed prepubescent child, exposing her genitalia to the camera whilst touching it;
2. another image was of a naked prepubescent female "straddling" a naked adult male – and they appeared to be engaging in "sexual intercourse"; and
3. another image was of a clothed prepubescent female child performing fellatio on an adult male.
1. It is the possession of the material I have just described on your Samsung mobile phone and on the two parts of the computer tower which is sequence 4.
2. But what is contained in sequences 3 and 4 is not all that was found by police on that Samsung phone.
3. An examination of that phone also revealed that, on 2 October 2020, you exchanged a message with an unknown person in which you asked that person to send you videos that person might acquire of "little girls" "getting used by their dad".
4. It is that message which is sequence 7.
5. Finally, the examination by police of the Samsung phone also revealed a quantity of thumbnail images containing child abuse material. This material had been accessed (by you) in mid-July 2020, October 2020 and mid-January / early February 2021. A dip sample of those thumbnail images identified 60 child abuse images. The Agreed Statement of Facts does not meaningfully describe any of those samples.
6. It is the accessing of that material by using a carriage service which is sequence 5.
7. It is necessary for the Court to make an assessment of the objective seriousness of each of the principal offences for offences of their kind. In this regard, sequences 1 and 4 are somewhere equidistant between the middle and the bottom of the range (another way of putting it is that those offences are of moderate objective seriousness); and sequences 3 and 7 are towards the bottom of the range (another way of putting of it is that those offences are less than of moderate objective seriousness, but not the least serious).
8. By having regard to the nature of the matter in sequence 5, and, in particular, because of the absence of any meaningful description of the relevant material, it will result in only a very slight increase in the sentence for sequence 4.
9. Your subjective circumstances were provided to the Court through:
1. a sentencing assessment report dated 2 August 2022;
2. a report by Ms Godbee, psychologist, dated 29 June 2022;
3. Corrective Services case notes and other documents;
4. a Certificate of Achievement regarding ice use;
5. a letter from solicitors (not acting for you in these proceedings but) retained by you to act "… in relation to an [otherwise unidentified] Civil Matter"; and
6. your sworn oral evidence.
1. The sentencing assessment report, of particular significance, noted that:
1. you have no post-release accommodation options, notwithstanding the support of your sister who lives in Sydney;
2. you appeared to minimise your responsibility for your offending by attributing your actions to the influence of illicit substances;
3. you were at a high risk of reoffending; and
4. "… there are no sex offender specific treatment programs available in the community for offenders with [your] level of risk".
1. Ms Godbee provided her usual thorough and transparently impartial report.
2. In the section entitled "Background History", Ms Godbee, of particular significance, noted that:
1. you had childhood difficulties arising from the separation of your birth parents and the violence you subsequently experienced from your stepfather;
2. you began running away from home at age 10; and
3. you experienced multiple instances of sexual abuse throughout your childhood, including:
1. sexual abuse by an uncle when you were aged 14; and
2. leaving home at age 14 and thereafter supporting yourself through sex work – which, on occasions, exposed you to violence and exploitation (including on one occasion by a teacher)
1. In the section entitled "Education and Employment History", Ms Godbee, of particular significance, noted that:
1. you had significant difficulties at school, such that you left school at the end of Year 9;
2. you started work at age 13, but you have only had a very limited work history; and
3. you are hopeful of recovering meaningful compensation from a civil action to be brought as a result of your alleged sexual abuse by a teacher (cf [48(e)] above);
1. In the section entitled "Medical History", Ms Godbee, of particular significance, noted your long-term history of epilepsy.
2. In the section entitled "Substance Use History", Ms Godbee, of particular significance, noted:
1. your abuse of alcohol since the age of 12;
2. your abuse of cannabis since the age of 13 and ice since your early twenties; and
3. that you have not used illicit substances or alcohol since you have been in custody following your arrest for these current offences – but that you misguidedly (my word) believed you can continue to maintain abstinence on your ultimate release without external intervention.
1. In the section entitled "Psychological Assessment", Ms Godbee, of particular significance, noted that:
1. you have not, to date, had contact with any mental health professional because you "did not trust people" – although you would now be prepared to engage with the psychologist to whom you were referred under the Community Corrections Order to which I have earlier referred, but were unable to actually contact because of COVID-19 pandemic restrictions;
2. you suffered from PTSD as a result of a violent sexual assault when you were 16 years old;
3. you use your "… experiences of sexual abuse to justify [your] offending behaviour…"; and
4. "It is likely that [your] experiences of abuse did normalise sexually exploitive behaviour, but [your] attitudes towards [your] experiences are problematic and related to [your] offending".
1. In the section entitled "Social / Relationship History", Ms Godbee, of particular significance, noted that:
1. you don't have any close friends and are only supported by your sister;
2. you use a homosexual dating site to meet men, and that some of your behaviour with the men you meet on that site involves incest or you being a child – which Ms Godbee says is "… indicative of deviance";
3. you use ice to heighten your sexual appetite;
4. you began accessing pornography and learnt to masturbate at 11 years of age; and that your choice of pornography type was indicative of your "… deviant interest in underage people…"; and
5. you suggested that your sexual interest in pre-pubescent children (both male and female, with a preference for female) was related to your abuse of ice. In this regard, Ms Godbee noted: "Mr Eggleton suggested that this sexual interest was solely related to ice abuse. However, I note that he has convictions for contact offending against a 6 year old girl which predated his ice use. It appears that Mr Eggleton has a range of deviant sexual interests, including female children, male children and incest".
1. In the section entitled "Offending Behaviour", Ms Godbee, of particular significance, noted:
"… Mr Eggleton attributed his offending to his ice use and said that he does not feel the need to engage in intervention for his drug use. It is my opinion that he requires drug intervention, as well as intervention to address his deviant sexual interests and challenge his distortions about the appropriateness of sex with children".
1. In the section entitled "Risk Assessment", Ms Godbee, of particular significance, noted that you were "… assessed as being at Well Above Risk of committing a further sexual offence…".
2. Ultimately, Ms Godbee, under the heading "Formulation and Recommendation", wrote:
"[49] From Mr Eggleton's account, he was physically abused by his stepfather and his emotional needs were inconsistently met by his mother, both of which predisposed him to difficulties regarding his emotions and behaviours. Mr Eggleton was sexually abused on several occasions throughout childhood, and this contributed to distorted beliefs about sexual abusive as fun, beliefs about others as untrustworthy, a pattern of disinhibited sexual behaviours (such as sex at school), and a tendency to base his self-worth on his sexual abilities. It appears that Mr Eggleton also developed a deviant sexual attraction to children. He engaged in contact sexual offending at age 19, precipitated by this deviant attraction and his distorted beliefs about sex, as well as his use of his own abuse experiences as an excuse for his behaviour.
[50] After his custodial sentence for his contact offending, Mr Eggleton began abusing ice and began using this drug to fuel his sexual interests. He became sexually preoccupied and was engaging in deviant roleplays, then began accessing deviant materials. Mr Eggleton's drug and sex focused lifestyle impacted his capacity to find employment, develop prosocial relationships and adhere to his reporting conditions. These facts, as well as his distortions and deviance, led to his index offending.
[51] It is recommended that Mr Eggleton is considered for the custodial-based sex offender treatment program to challenge his distortions about sexual offending, reduce his deviant sexual interests and improve his interpersonal functioning. Mr Eggleton further requires intensive drug and alcohol treatment, and it is suggested that he is referred to a residential program upon release to help him transition back to the community."
1. I accept, on the balance of probabilities, all that Ms Godbee has written (which I note is not inconsistent with the sentencing assessment report), notwithstanding, that in some respects, your oral evidence was problematic.
2. In all of the circumstances, I regard your prospects for rehabilitation as being poor.
3. Insofar as sequences 1, 4 and 7 are concerned, general deterrence is the primary sentencing consideration. However, specific deterrence and the protection of the community are considerations which are also fully engaged. And although I have expressed the view that your prospects for rehabilitation are poor, rehabilitation, nevertheless, is still of some relevance.
4. Insofar as sequence 3 is concerned, both general and specific deterrence are the primary sentencing considerations; but rehabilitation, although of reduced significance, is still of some relevance.
5. You pleaded guilty at the first available opportunity. Insofar as the State offences are concerned (that is, sequences 1 and 3), you are entitled to an effective reduction of each sentence of 25 per cent.
6. However, in relation to the Commonwealth offences (that is, sequences 4 and 7), the consequence of the early plea needs to be considered in the context of sections 16AAB and 16AAC of the Crimes Act 1914 (C'th).
7. The combined operation of those sections means that, because of your prior conviction for a relevant child sexual abuse offence, I am required to impose a head sentence for each of sequences 4 and 7 of at least 4 years imprisonment, unless I am satisfied that it is appropriate to reduce the sentence for either of those sequences because you have:
1. pleaded guilty; and / or
2. relevantly cooperated with law enforcement agencies in the investigation of the relevant sequence.
1. In the circumstances, I am of the opinion because of your plea of guilty in each case that it would be appropriate to reduce the sentences for each, and both, of sequences 4 and 7 by 25 per cent. The discount gives effect to your facilitation of the course of justice.
2. However, I am not persuaded that it would be appropriate to (further) reduce the sentence for either sequence because of any cooperation with law enforcement agencies in the investigation of the offence. In this context, it was submitted on your behalf that, especially by reference to you providing the USB stick on 30 July 2021, you had meaningfully cooperated with law enforcement agencies. I have not accepted that submission because:
1. in all probability, the police would have found that USB stick during the execution of the warrant in any event; and
2. the seriousness of the offending is such that it would not be appropriate to further reduce the sentence over and above the discount for the early plea. In other words, to further reduce the sentence would be to result in an inadequate sentence given the seriousness of the offending.
1. I have earlier noted that, insofar as sequences 4 and 7 are concerned, the Commonwealth Parliament has (recently) provided for a "mandatory minimum term". Such a statutory provision has been described in R v Taylor [2022] NSWCCA 256 as "a relatively rare phenomenon" (per Simpson AJA at [6], with whom Davies and Wilson JJ relevantly agreed).
2. I have also taken what was said by Simpson AJA in Taylor at ibid [59] to [69] into account in fixing the head sentence for those two sequences.
3. For each principal offence, no sentence other than one of full time imprisonment is appropriate. By having regard to totality I am (just) satisfied that they should be served totally concurrently.
4. Jaymi Joshua Eggleton, in relation to sequence 1, and after taking into account the discount of 25 per cent, I sentence you to a term of imprisonment of 3 years; (the pre-discount period being 4 years)
5. I fix a non-parole period of 2 years 3 months to date from 30 July 2021 and which will expire on 29 October 2023.
6. I fix a balance of 9 months to date from 30 October 2023 and which will expire on 29 July 2024.
7. In relation to sequence 3, after the discount of 25 per cent, I sentence you to a fixed term of imprisonment of 9 months to date from 30 July 2021 and which expired on 29 April 2022 (the pre-discount period being 12 months)
8. In relation to sequence 4, after the discount of 25 per cent, I sentence you to a term of imprisonment of 3 years 9 months (the pre-discount period being 5 years)
9. I fix a non-parole of 2 years 9 months to date from 30 July 2021 and which will expire on 29 April 2024.
10. I fix a balance of 12 months to date from 30 April 2024 and will which will expire on 29 April 2025.
11. In relation to sequence 7, after the discount of 25 per cent, I also sentence you to a term of imprisonment of 3 years 9 months.
12. I again fix a non-parole period of 2 years 9 months to date from 30 July 2021 and which will expire on 29 April 2024.
13. I again fix a balance of 12 months to date from 30 April 2024 and which will expire on 29 April 2025.
14. Pursuant to s.23ZD of the Crimes Act 1914 (C'th) and s.18(1) of the Confiscation of Proceeds of Crimes Act 1989 (NSW), by consent, I make the Forfeiture Order in each of the documents so entitled, signed by me, dated today - sealed copies of which are to be sent by the Registry to the parties.
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Decision last updated: 17 February 2023