R v Tham [2017] NSWDC 40

District Court New South Wales

Medium Neutral Citation: R v Tham [2017] NSWDC 40 Hearing dates: 27 January 2017 Date of orders: 27 January 2017 Decision date: 27 January 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For the Commonwealth offence of using a carriage service to access child pornography I impose a fixed term of imprisonment of 18 months.

For the State offence of possessing child abuse material I impose a non-parole period of 18 months with a head sentence of three years.

I order that the various items referred to in the forfeiture order are to be forfeited to the Commonwealth. Catchwords: CRIMINAL LAW – Sentence – Commonwealth and state offences – Use carriage service to access child pornography – Possess child abuse material – Offender a victim of sexual assault Category: Sentence Parties: The Crown Nicholas Tham Representation: Counsel: Mr J Tyler-Stott - The offender

Solicitors: Director of Public Prosecutions (Cth) – The Crown File Number(s): 2015/28044

SENTENCE 1. HIS HONOUR: One of the puzzling features that offences involving child pornography present is this:, how can a person gain sexual gratification whilst what he or she is watching a child being harmed?. Yet, as is distressingly commonly the case, that is precisely what many people, usually men, in the community experience as they see children engaged in sexual activity, even sexual activity involving bestiality and sadism. 2. In the present case the offender Nicholas Tham accessed and possessed and viewed child pornography for at least two years, fooling himself that the children involved in the production of the material were not real people but were merely two dimensional objects. Through this means he says he was able to reconcile what he clearly understood to be his illegal activities. He himself was the victim of sexual abuse as a child. One of the harms that sexual abuse causes to children comes from the fact that children often gain physical enjoyment from the abuse perpetrated upon them. That appears to have happened in Mr Tham's case, something which has caused him guilt and confusion in his later years. Thus the offender had a greater difficulty than most in appreciating the harm which was being caused to the children depicted in child pornography he was accessing, possessing and viewing. That is a significant matter in determining the appropriate sentence which I will impose in the present case. 3. The offender's IP address was identified by investigators as being used to access a particular form of peer-to-peer file sharing software used for the sharing and trading of child pornography. Thus on 29 January 2015 both Commonwealth and State police officers went to the offender's address. They searched his premises and discovered a large number of storage media as well as four bottles of steroids. An investigation of the various storage media revealed that there were more than 100,000 files and articles of child pornography material. It is the unfortunate task of many police officers to have to view such material and categorise it for the benefit of the Court. The Court greatly appreciates the distressing work that such officers perform. In the present case, sensibly, the officers have not viewed every one of the files to which I have referred. They have viewed samples of the material and so in many cases the material has gone uncategorised. 4. What was revealed was that the offender possessed significant quantities of child abuse material in the most serious category, that is files containing photographs and videos depicting children involved in bestiality and sadistic sexual activities. It is likely that had the entirety of the material been categorised many more such files would have been identified. Some of the material was of course in less serious categories but this was certainly not a case where the offender was unwilling to view child pornography in the most serious category. 5. He explained how he began to commit such offences. He began experiencing difficulty gaining an erection, this was of course of some distress to him. He viewed adult pornography but then found that his interest in risky sexual behaviour exposed him, at first unwillingly, to child pornography. However once he had viewed such pornography and had gained sexual gratification from it he began to seek it out deliberately to the extent that he would spend about 50% of his time viewing adult pornography and 50% of his time viewing child pornography. 6. The offender pleaded guilty at the earliest opportunity to the two offences for which I must sentence him. His plea of guilty to the State offence has a utilitarian benefit. His willingness to facilitate the course of justice in the Commonwealth offence is also to be recognised. Accordingly the sentences I impose upon the offender will be approximately 25% less than they would otherwise have been. When I sentence him for the State matter I will take into account four offences of possessing steroids on the Form 1. 7. As with many people who offend in this way, the offender is of otherwise good character. He is hard working, he is well liked by his colleagues, his friends and his family. He was brought up in Malaysia by parents who offered him love and affection. His relationship with his father was more difficult than that with his mother because the offender believed that he had trouble gaining his father's approval and avoiding disappointing him. 8. His parents did not perpetrate any form of abuse against him, and he was not exposed to any hardship or trauma. But he was abused, as I have already mentioned, by a male cousin of his from when he was about seven to when he was about ten. This was serious sexual abuse and it occurred regularly. 9. As a psychologist whose report was tendered today states, the offender had a conflicted view about the sexual abuse perpetrated against him. He has since his arrest been seeing a psychologist regularly and this has been helpful both in understanding the harm that was caused to him and the harm that he caused to others through providing a demand for the awful material of the type which he possessed. 10. He expressed his shame about what he had been doing, consistent with the offender effectively fooling himself as he was viewing the child pornography that he was not harming anyone and realising now just how wrong that attitude was. I am satisfied that he is remorseful. He has taken steps to rehabilitate himself. He and his partner have arranged things so that the offender has no access to the internet at home. He has been seeing a psychologist regularly and has engaged with treatment to a significant degree. 11. In this case there is agreement between the parties as to what form of sentence I should impose upon the offender. The offender understands that he must go to gaol. 12. General deterrence is of prime importance in cases of this kind. Although it is difficult to be accurate, particularly as many of the images and videos have been unclassified by the prosecution, it is undeniable the number of children harmed in the production of the child pornography which the offender viewed is enormous. What people like the offender do is create a demand for child pornography, a demand which is satisfied by evil people who abuse children simply so that they can satisfy that demand. That is why when offenders are detected the authorities make it clear that unless exceptional circumstances exist, fulltime imprisonment is ordinarily warranted. As I have made it clear there was no submission that any form of alternative to full time imprisonment is to be imposed. 13. A number of decisions of the Court of Criminal Appeal have outlined the various considerations which should be addressed in determining the sentence to impose upon someone for offences of this type. Here I have already referred to the nature of the material, some of it was less innocuous than other material. There is a bit of a trap in the way offences are often categorised with category 6 not being more serious than category 5. The offender had comics depicting child sexual abuse but no real children were harmed in the production of that material. The contrary is the case for the vast bulk, however, of the material the offender possessed. 14. The ages of the children are important too. In this matter they varied from infancy to about 15 years of age. Again it is astounding that anyone can gain sexual gratification from watching an infant being sexually abused, but the courts know to their great concern that that is often the case. 15. The offender possessed a large number of images and videos but there was no suggestion that he possessed them other than for his own sexual gratification. I have mentioned the offender's prior good character but many cases remind me that less weight is to be given to that matter. 16. But overriding the various considerations to be taken into account is this; it is the role of the courts to protect members of the community, especially those who are most vulnerable. Here many vulnerable children, both in Australia and overseas, have been harmed. The courts must do what they can to reduce the demand for such awful material. One way that the courts respond is to impose significant sentences on those who create the demand for that material. What the courts are trying to do is to remove the market for child pornography. 17. I will impose separate sentences for both the State and Federal offences. Although the vast bulk of the child pornography which the offender possessed was obtained using a carriage service, there are different forms of criminality involved and as Mr Tyler-Stott said there should be a small level of accumulation. 18. The sentences I impose thus are as follows: 19. For the Commonwealth offence of using a carriage service to access child pornography I impose a fixed term of imprisonment of 18 months to date from today, 27 January 2017. 20. For the State offence of possessing child abuse material I impose a non-parole period of 18 months with a head sentence of three years to date from 27 April 2017 thus the offender's non-parole period will expire on 26 October 2018 on which date the offender is eligible to be released to parole. 21. As is obvious I have made a finding of special circumstances for the State offence, they relate to the offender's benefit that he's obtaining from psychological treatment which will assist in his rehabilitation upon his release from custody. 22. I order that the various items referred to in the forfeiture order are to be forfeited to the Commonwealth. 23. KANAGASABAPA: Thank you your Honour. 24. HIS HONOUR: Thank you gentlemen for your assistance today I'll now adjourn.