District Court New South Wales Medium Neutral Citation: R v Martin Stanley CLARIDGE [2017] NSWDC 407 Hearing dates: 3 November 2017 Date of orders: 22 November 2017 Decision date: 22 November 2017 Jurisdiction: Criminal Before: KING SC DCJ Decision: Convicted in respect of each offence. COMMONWEALTH OFFENCES Use carriage service transmit/publish/promote etc child porn SEQ 2 (9/2/15-16/3/15): Sentenced to a term of imprisonment for 3 years from 20/8/16 – 19/8/19 SEQ 3 (20/8/15–30//9/15): Sentenced to a term of imprisonment for 2 years from 20/2/16 – 19/2/18 SEQ 4 (2-20/11/15): Sentenced to a term of imprisonment for 1 year from 20/11/15 – 19/11/16 SEQ 5 (16-20/11/15): Sentenced to a term of imprisonment for 2 years from 20/5/16 – 19/5/18 SEQ 6 (19/11/15): Sentenced to a term of imprisonment for 3 years from 20/11/16 – 19/11/19 NPP: 2 ½ years Parole order: to be released to parole on 19/5/18. STATE OFFENCES Special circumstances found to restore the statutory relationship between the NPP and parole periods. Indicative sentences: SEQ 1 Sexual intercourse with child under the age of 10 years Incitement to commit sexual offence: Imprisonment for 7 years SEQ 13 Produce child abuse material: Imprisonment for 1 year SEQ 8 Possess child abuse material: Imprisonment for 4 years Aggregate sentence: Convicted. Sentenced to a term of imprisonment for 8 years comprising of a NPP of 5 years and 6 months to commence on 19/5/17 and to expire on 18/11/22, and a balance of term of 2 years and 6 months to commence on19/11/22 and to expire on 18/5/25. Eligible for release to parole on 18/11/22. Forfeiture order made pursuant to s23Z(d) - signed and placed on court file Catchwords: Criminal – Sentence after judge-alone trial – Commonwealth and State offences – use carriage service transmit/publish/promote etc child porn - Sexual intercourse with child under the age of 10 years Incitement to commit sexual offence - produce child abuse material - possess child abuse material – subjective matters Legislation Cited: Criminal Code Act 1995 Crimes Act 1914 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP (Cth) v D'Alessandro (2010) VSCA 60; R v Gent (2005) 162 A Crim R 29 R v Thomson and Houlton (2000) 49 NSWLR 383 Pearce (1998) 194 CLR 610 Category: Sentence Parties: REGINA Martin Stanley CLARIDGE Representation: Counsel: CROWN: Mr R Kimbell CLARIDGE: Mr S Fraser File Number(s): 2015/00342695 Publication restriction: NPO in re name of offender's granddaughter Judgment 1. In this matter, Martin Claridge appears for sentence in respect of eight offences. I will refer to the sequence numbers. 2. Sequence 1, incite sexual intercourse with a child under the age of 10 years between 2 November 2015 and 20 November 2015, contrary to s 66A(1)/80G of the Crimes Act 1900. The maximum penalty provided is life imprisonment. It is accepted by the parties that, as it is an offence of incitement picked up by s 80G, that the standard non-parole period which would apply if it was an offence simply contrary to s 66A(1) does not apply. 3. Sequence 13, use child under 14 years to make child abuse material between 28 March and 20 November 2015, contrary to s 91G(1)(a) of the Crimes Act 1900. The maximum penalty is a term of 14 years. 4. Sequence 2, use carriage service to transmit child pornography material between 9 February 2015 and 16 March 2015, contrary to s 474.19(1) of the Criminal Code Act 1995. The maximum penalty is a term of 15 years. 5. Sequence 3 is an offence of the same nature, that is, the transmission of child pornography but between different dates, being 20 August 2015 to 30 September 2015. 6. Sequence 4 is another offence of the same nature: transmit child pornography material between 2 November 2015 and 20 November 2015. 7. Sequence 5 is a further offence of the same nature, between the dates of 16 November 2015 and 20 November 2015. 8. Sequence 6 is an offence of use carriage service to promote child pornography material on 19 November 2015. That offence is also contrary to s 474.19(1) of the Criminal Code Act 1995. 9. Each of Sequences 3, 4, 5 and 6 have the same maximum term of imprisonment as Sequence 2, that is, 15 years imprisonment. 10. Sequence 8, is an offence of possess child abuse material on 20 November 2015, contrary to s 91H(2) of the Crimes Act 1900. The maximum penalty is 10 years' imprisonment. 11. In relation to each of the State offences, there is no legislated standard non-parole period. 12. In respect of Sequence 1, which was Count 1 on an indictment containing two counts, the trial in respect of which commenced on 22 May 2017 as a judge-alone trial, I returned a verdict of guilty on 25 May 2017. 13. In respect of Sequence 13, which was Count 2 on the indictment, the offender on the first day of trial entered a plea of guilty. 14. Both parties accept that, in the circumstances of the plea of guilty to Count 2, a discount for the utility alone of the plea of 10% is appropriate. I accept that submission and a discount of 10% will be provided in respect of Sequence 13. I do not intend to refer to that again. Thomson and Houlton (2000) 49 NSWLR 383 15. In respect of each of Sequences 2, 3, 4, 5 and 6, being all the Commonwealth offences in respect of which he is to be sentenced, pleas of guilty were entered in the Local Court on 18 August 2016. 16. I will take into account that pleas of guilty were entered at that time in respect of each of those matters; however, the discount for a plea of guilty in relation to Commonwealth offences is on the basis of the facilitation of justice rather than the utility of the plea. The strength of the Crown case is a relevant factor to take into account. In each case, the Crown case was, in my view, incontrovertible, so, although I take into account that there was a plea, I also take into account that it was in the face of a strong Crown case. 17. In respect of Sequence 8, being the State offence of possess child abuse material, the plea of guilty was also entered on 18 August 2016 in the Local Court. In respect of that offence, I accept that it was entered at the earliest opportunity and that a discount of 25% for the utility of the plea alone has been provided. 18. Before I deal with the facts, I should indicate that on 25 May 2017, in returning a verdict of guilty in respect of Count 1 on the indictment, being inciting sexual intercourse with a child under the age of 10 years, I published lengthy references to the material that was tendered at the trial, being internet conversations, mobile phone conversations and child exploitation images and videos, which I do not intend to repeat. Accordingly, these reasons on sentence should be read in conjunction with the judgment on verdict of 25 May 2017. 19. The facts in short are agreed and are as follows: 1. The offender Martin Claridge was born on 11 November 1960. 2. In March 2015, police located a mobile which belonged to a man called Patrick Hamilton during an unrelated incident. This mobile phone and a second mobile later seized from Hamilton were analysed by the State Electronic Evidence Branch. 3. As a result of the analysis a number of communications made via the social networking application "KIK" between Hamilton and the offender were located. A number of the communications related to the sexual exploitation of children. 4. As a result of these communications, a joint investigation was initiated by Surry Hills Detectives and the New South Wales Police State Crime Command, Child Exploitation Internet Unit (CERU) into the activities of the offender. SEQUENCES 2, 3 AND 4 5. Police investigations revealed that during the course of communications via the "KIK" internet application, the offender had transmitted child abuse material to Hamilton. The chat logs are annexed to the Agreed Facts and I do not intend to refer to them in detail. Sequence 2 related to the period between 9 February 2015 and 16 March 2015. They were internet "KIK" communications, including the transmission of approximately 36 child exploitation images or videos. Sequence 3 related to the period between 20 August 2015 and 30 September 2015. They were communications by mobile phone, in relation to which approximately eight child exploitation images and one video were transferred by the offender. Sequence 4 related to the period between 2 November 2015 and 20 November 2015. These were internet communications using the "KIK" program and no images were transferred during the course of those communications. (I note that the Agreed Facts do not contain the references I have just made to the individual means of communication and images). 6. An Electronic Evidence Analysis Report describing and categorising the child abuse material transferred in the period 9 February 2015 to 16 March 2015 is attached and marked "B" to the Agreed Facts. I have taken account of the schedule and, in particular, the CETS scale classification for the individual files transferred and the description provided in the schedule. SEQUENCE 5 7. In November 2015, as part of the investigation, police began to communicate with the offender using Hamilton's "KIK" identity ("Nolimits Pete") and a fictitious "KIK" identity "CEIU21" or "Mick". 8. In the context of communications via the "KIK" internet application, the offender transmitted child pornography material to an undercover police officer using the fictitious online identity "Mick" in the period 16 November 2015 to 20 November 2015. The chat logs are attached to the Agreed Facts and marked "C". I do not intend to refer to the detail, although I am fully aware of it. SEQUENCE 6 9. On 19 November 2015, during a "KIK" conversation with the fictitious "KIK" identity "CEIU21" or "Mick", the offender promoted child pornography material that could be accessed or seen on an internet website located on the "Darknet". The accused gave instructions to "Mick" and guided "Mick" to the site containing pornographic material (chat log marked "D"). I do not intend to refer to the detail of the chat log, but I am fully cognisant of it. OFFENDER'S ARREST 10. Police continued to investigate the offender. The offence of incite sexual intercourse with a child under the age of 10 years, for which the offender was found guilty at trial, took place between 2 November 2015 and 20 November 2015. 11. The offender was arrested on 20 November 2015 at Westmead. At the time of his arrest, he was in possession of a mobile phone and a "sex aid" and also, although it is not referred to in the Facts, a tube of sexual lubricant which he had described as being for use on the child to whom Count 1 relates. The offender was conveyed to Parramatta Police Station where he was introduced to the Custody Manager and agreed to participate in an ERISP. In the interview, he agreed to being one of the authors of the chat logs and admitted to transmitting child pornography material. 12. A search warrant was executed at the offender's home in Macquarie Street, Sydney. A number of computers, phones and other electronic storage devices were seized by the police. SEQUENCE 8 13. The offender's computers, phones and electronic storage devices were forensically examined by police. Child abuse material was located on: * Apple iPhone 6 seized from the offender on arrest; * Apple iPhone 4S seized during the search warrant; * Apple MacBook Pro seized during the search warrant; * Verbatim external hard drive seized during the search warrant; and * Toshiba 128 megabyte SD memory card seized during the search warrant. 14. The police categorised the child abuse material in accordance with the New South Wales Child Exploitation Tracking System Scale ("CETS"). A categorised summary of material is also attached to the Agreed Facts and marked "D" and I am fully cognisant of its content but do not intend to refer to the detail. 1. The examination indicated that the devices held, inter alia: Category 1 - 5,041 images and 34 videos. Category 1 relates to descriptions of children with no sexual activity. Category 2 - 597 images and 141 videos. Category 2 relates to non-penetrative sexual activity between children or solo masturbation by a child. Category 3 - 2,333 images and 38 videos. Category 3 relates to non-penetrative sexual activity between children and adults. Category 4 - 1,796 images, 398 videos and two pieces of literature. Category 4 relates to penetrative sexual activity involving children or both children and adults. Category 5 - 247 images, 39 videos and 23 pieces of literature. Category 5 relates to sadism or bestiality, sexual imagery involving pain, humiliation or animals. Category 6 - 11 images. Category 6 relates to animation/cartoon/CG depicting CETS scales 1-5. 1. The facts do not refer to the totals but there were more than 10,000 images, 650 videos and 25 pieces of relevant literature. 2. During the course of the trial, to obviate the need for the Court to examine in detail that material which was contained on MFI 4, a hard drive, and a small number of images which had been provided as Exhibit 19, the offender made the following admissions: "1. That there has not been and it is not intended to be disputed that the quantification and categorisation of images, as per the evidence of Detectives Farquharson and Axtons, accurately represents the material seized from the accused and viewed by them. 2. The material includes images and/or videos depicting prepubescent children engaged in sexual conduct with other children or adults, including acts of fellatio, cunnilingus, anal and vaginal penetration by both penis and other objects. 3. A substantial portion of the material categorised as child abuse material in each category involve children who were or appeared to be prepubescent." 1. As a result of that admission, it was not necessary for me, during the course of the trial, to examine the content of MFI 4, and I was only aware of that material which had been provided by way of thumbnails attached to the various communications and a small number of images that were produced in full. 2. For the purposes of sentencing, I have had access to the images which were exhibited during the trial as well as to MFI 4 containing, of course, the bulk of the material. During the course of the sentence proceedings I randomly accessed some of the material contained on MFI 4. In the material that I randomly accessed, the only adults that I observed were adults who were involved in sexual abuse of children also depicted in the videos or images. 3. A significant feature of that which I accessed was that the vast bulk of the material appeared to relate to prepubescent children and a significant quantity to children who might be regarded from their appearance as being toddlers or indeed babies. The material itself was extremely offensive and of a very serious nature. The videos contained evidence of children resisting forceful abuse and in respect of some of the video files they contained audio which resulted in the child's pain being communicated. 4. I return to the Agreed Facts. COUNT 2 (SEQUENCE 13) 15. Four photographs of an infant boy's penis were located on the offender's Apple iPhone 4S which was located during the execution of the search warrant. The photographs were taken by the offender on 29 March 2015 using the phone camera. 1. In relation to Count 1 or Sequence 1, the intended victim was stated to be four years of age. That is well under the age of 10 years to which the section applies. 2. It has long been recognised that the position occupied by a child in the spectrum of offences covered by the age range, that the younger the child the more serious the offence. The communications made clear that the offender was fully aware of the age of the intended victim. 3. The offender was inciting the identity "Mick" to have full penile penetration of the child. The incitement took place over a period of 18 days and, accordingly, was not fleeting. The offending behaviour only concluded on the arrest of the offender when he attended at the premises of "Mick" for the purposes of participating in the sexual abuse of the child. I am of the view that there was a significant degree of planning in relation to the offence, and of note is that the offender attended the scene with personal lubricant and the sex aid, the use of which he had explained and sent photographs of to "Mick" in messaging him and arranging to attend at "Mick's premises. 4. The offender also understood from the communications that "Mick" was in a position of authority in relation to the victim as her caretaker. While the offence relates to the incitement of "Mick", who was in fact a police officer and in circumstances where there was in fact no child, considering the matters that I have referred to, I accept that the matter falls about the mid range of objective seriousness for such an offence. 5. In respect of Count 2, Sequence 13, the offender had taken four photographs of the genitals of a young male child who would appear to be a baby, that is, a child significantly below the age of 14 years which is relevant to the offence as previously indicated Each of the photographs was a close-up of the infant's genitals. I assess the objective seriousness of that offence as falling below the mid-range of objective seriousness, but not at the lowest end of the range. 6. Sequences 2, 3, 4 and 5 each relate to the transmission of child pornography between specified dates and Sequence 6 relates to the use of a carriage service to promote child pornography. Sequence 6 did not involve the transmission of any material, but the encouragement to "Mick" and the assistance to "Mick" to use his computer to link to a "Darknet" website devoted to child exploitation material. In relation to those offences involving the transmission of pornography, they were in effect the continuation of a course of conduct with the person Hamilton and eventually with the police officer posing as "CEIU21" and "Mick". 7. The communications were, as I have previously stated, variously by way of the Internet or mobile phone and also used the "KIK" programme. Relevant to the seriousness of the offence is that in the images and videos transmitted actual children had been used in their creation and the serious nature of the content of the material, which included very young male and female children, including material relating to babies involved in acts such as anal and vaginal penetration, fellatio, adults ejaculating into the face of young children and the penetration of an adult females genitals by the fist of a very young female. Also relevant is the volume of any child abuse material transmitted on any of the individual occasions. It was at least to two different chat users. 8. The messages sent by the offender in reference to the images and videos transmitted involved discussion of serious child abuse and reference to the offender's granddaughter in that context. 9. There was a level of sophistication employed by the offender in transmitting the material using an encrypted social networking application, "KIK" thereby making detection more difficult. He disclosed in relation to Sequence 6 his use of the child pornography site on the "Darknet" to transmit child abuse material and was able to provide instructions to "Mick" without being able to actually see "Mick's" screen as to how to obtain access to that site so that "Mick" would be able to obtain child abuse material directly from the website. In addition, the offender was operating in a network and actively seeking out like-minded people to transmit child pornography material to. 10. As there is considerable overlap between these offences, I will simply refer to them as each being serious offences and, in general, of at least the mid range of objective seriousness. 11. I acknowledge that there is both overlap and some variation in seriousness between the individual charges. 12. As to Sequence 8, being possess child pornography material, relevant matters to its objective seriousness are of course that actual children were used, the serious nature of the content of the material, including very young children involved in serious and degrading acts including bestiality, the volume of the material to which I have already referred, the fact that the material possessed by the offender was located across six separate devices and that the total amount of material must have been acquired over a period of time. I accept that his purpose for possessing the material was for a combination of his own use and dissemination to other like-minded individuals using encrypted peer-to-peer chats. I accept that his possession of this material falls above the mid range of objective seriousness. THE SUBJECTIVE MATTERS 1. He did not give evidence at trial and did not give evidence on sentence. In relation to subjective matters, the material before the Court is his criminal history, a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report, a Pre-Sentence report, dated 7 September 2017, under the hand of Cathryn Veal, and a psychological report dated 1 September 2017 by Andrew Redden of GEO Group Australia, conducted for the purpose of the Pre-Sentence Report. 2. In addition, tendered on behalf of the offender is a psychological report under the hand of Miriam Wyzenbeek, psychologist, with LSC Psychology. The subjective matters have been drawn from that material. 3. The offender is now 56 years of age. He has no previous criminal convictions in NSW and only one offence in New Zealand, being the equivalent of a PCA offence, which is entirely irrelevant to the sentencing proceedings here. It can have no adverse impact on the sentence. In addition, I note that he has been in custody since his arrest solely in relation to this matter since 20 November 2015, and that the Community Corrections report does not indicate any breach of prison regulations in the intervening period. 4. He was born in New Zealand, and is the older of two children. As a child he was neither exposed to nor experienced any abuse, physical or sexual, or neglect. There is no familial history of substance use problems, mental health issues or crime. He left home when he was around 16 or 17 years of age to join the New Zealand Army. He completed the School Certificate well enough to obtain a university entrance. After leaving school, he completed a Certificate in Telecommunications Level 4 sponsored by the Army. He was a member of the New Zealand Army for approximately eleven years, having roles as an electronics technician and as a soldier, although he never participated in combat. 5. Following the Army, he commenced a career in information technology and he has completed various courses in management, personnel training and logistics. He has been employed in various leadership and managerial positions, initially after leaving the Army being employed for a period of three years as a product manager with the Government Computing Service of New Zealand, then taking up a role in product management with Wyse Technology where he remained for five years. He then joined Securicor and in 1996 as part of his employment with that company he migrated to Australia to lead the sales team. 6. Between 1998 and 2003 he worked for Pacific Advantage and subsequent to that spent two years involved with a start-up company. From 2005 to 2013, he was employed as the Head of Networking Divisions Australia and New Zealand for Alcatel before commencing a role as the Chief Technology Officer at the firm that was employing him at the time of his arrest for this offending. He has no current health problems, never having experienced any serious or chronic medical conditions. He has never been diagnosed with a mental illness nor had any therapeutic contact with a mental health professional. 7. Having been married to his wife for 36 years, there are three now adult children aged between 37 and 30 as a result of the marriage. As a result of his commission of these offences, he and his wife are now separated and he has not received any visits from family or associates since his incarceration. 8. He was not a user of prohibited drugs until approximately 12 to 18 months prior to his arrest, when he commenced binge drinking and using cocaine, approximately 3 grams per week most weeks from Thursday onwards. Substance use had become a feature of his social group. 9. He reported to Ms Wyzenbeek that, associated with the onset of his use of cocaine, he experienced an increase in his sexual disinhibition and sexual arousal to non-normative and deviant sex, feeling "invincible" and unaccountable to anyone. He was at the time of his arrest apparently an active member of multiple sexual fetish groups, participating both on-line and in person. The report contains the following: "While under the intoxicating effects of alcohol and/or cocaine 'he reported being sexually interested in a range of sexual practices involving bondage, sado-masochism, role-playing, bondage, discipline, dominance and submission, toilet play and bestiality'. He also reported regularly participating in 'swinger's parties'. Mr Claridge said that he was particularly sexually aroused as to sexual acts considered by society to be 'taboo' or 'illegal'." 1. That appears to be consistent with the child pornography material he possessed as well as evidence in the trial in relation to his other activities, which was introduced by the Crown at the request of the defence rather than as part of the Crown case. 2. I note that in the Pre-Sentence Report the offender denied any sexual attraction to children, and that in the psychological report of Andrew Redden, he is also recorded as denying being sexually attracted to children. In Ms Wyzenbeek's report the following is recorded: "Mr Claridge denied ever experiencing any sexual attraction to children and stated that he is most aroused to men and women aged between 30 to 50 years. He said that he has never masturbated to child sexual abuse material, but was aroused by the notion of 'participating in something illegal'." 1. Considering the vast bulk of material and its substantial orientation to children, and his conduct in relation to inciting "Mick" to commit offences against a four year old child at which he was intending to attend and participate in, it is clear that the offender's assertions of having no sexual interest in children cannot be accepted. 2. He informed the pre-sentence officer: "'I am horrified and appalled by my actions', but he linked his substance abuse to his offending behaviour, citing 'it reduced his moral compass'. He denied seeking out the child abuse material claiming it would appear on the screen ... When discussing the impact of his actions on others he referred to those depicted in the pictures and spoke of the negative impact on them, broken trust between himself and his family and the wider community." The pre-sentence officer opined under "Assessment": "In relation to his offending it is concerning that he continues to deny any sexual attraction towards children although he did appear to accept responsibility for the majority of his actions. His continued denial of any deviant sexual attraction suggests that his insight into his offending is still in its infancy ...". 1. The report of Andrew Redden includes the following in relation to risk factors: "Although Mr Claridge presented as contrite, his understanding of the impact of his offending behaviour on the victims was somewhat abstract and intellectualised. Though he conceded that his actions were part of the cycle of abuse and helped create demand for the illegal material, he did not convince that he fully understood the ramifications of his offending behaviour on the victims." 1. Ms Wyzenbeek's report contains the following: "He identified ageing, awareness of his own mortality and substance use as factors which had contributed to his increase in diverse sexual acts and deviant sexual arousal and sexual preoccupation. He said that he 'started off with small things', but increasingly pushed the boundaries of what would be moral because he did not perceive there to be any repercussions to himself for his behaviours. He described himself as feeling invincible and as being a master of the universe and these feelings were no doubt exacerbated through his substance use." 1. I note that he also informed Ms Wyzenbeek that he had "inadvertently" shared the images of his granddaughter, S. That is an issue that I dealt with during the course of my judgment, and it is clear that they were not inadvertently shared, but deliberately so. He also informed Ms Wyzenbeek: "Mr Claridge maintained that he did not believe a child would be present when he attended the house. Rather he reportedly believed that it would be various adult men engaging in sexual role play." 1. That was, of course, the defence that he presented during the course of the trial which I had no hesitation in rejecting. 2. Ms Wyzenbeek opined that: "Mr Claridge appears to have a sexual interest in violence, a sexual interest in children and multiple other rare/unusual and socially deviant sexual interests ... Due to his feelings of entitlement, Mr Claridge was unperturbed by the exploitative nature of his graphic sexualised communication about his granddaughter or the other children and his behaviours were further reinforced by the responses of those whom was he was communicating with. In my opinion, he was obtaining sexual gratification and excitement to the explicit nature of his communication, which would have reinforced his sexual response and in turn increased the likelihood of these behaviours being repeated. ... Mr Claridge's offending appears to have been sophisticated in that it incorporated the dark web as well as various other social media platforms. His offending indexes a clear escalation of sexual violence and that he was apprehended when he attended a meeting that had been organised on-line for the purpose of sexually abusing a four year old child. He had in his possession the equipment to carry out the abuse, the same as those discussed in his communication with the assumed identity. To my mind, this indicates an intention on his part to follow through with what he has described as being merely a fantasy-based conversation. Given the information available to me, Mr Claridge may have been under-reporting his sexual interest in children during his interview with me." 1. In the circumstances of the material before the Court, I have no difficulty in finding not that he may have been under-reporting his sexual interest in children, but that he was indeed doing so. 2. Despite the pleas of guilty to many of the offences, I am unable to find in the material before me any genuine evidence of remorse or contrition. A plea of guilty in itself does not necessarily show remorse or contrition and, of course, the offence of inciting was defended at trial. The evidence in relation to all other offences was in my view overwhelming and the pleas do not evidence remorse or contrition. 3. There have been many statements by the courts in relation to the seriousness of the production, possession and dissemination of child pornography. In relation to this offender, he produced child pornography, although only four images of the one child, but he was a collector of a significant quantity of material and he was encouraging of others to obtain such material, and supplied others with such material as well as inciting "Mick" to engage in sexual abuse of a most offensive nature with a four year old female. I do not intend herein to repeat the many statements that have been made in such cases as to the relevant factors to take into account, such as in R v Gent (2005) 162 A Crim R 29 and the statement of Morden ACJO in R v Stroempl (1995) 105 CCC (3rd) 187, which was referred to in R v Jones with approval (1999) 108 A Crim R 50 by Kennedy J who went on to say: "The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children in the end are the victims." 1. Johnson J also in that case set out the various factors as to the objective seriousness, and I have had regard to those. There are many like statements contained in the case law. 2. Under s 21A(3) and (f) of the Crimes (Sentencing Procedure) Act and s 16A(2)(m) of the Crimes Act 1914, the good character of an offender is a matter that is to be taken into account in mitigation of penalty. However, it is well established that good character may carry less weight in relation to this class of offence, or these classes of offences, because they are frequently committed by persons of otherwise good character; DPP (Cth) v D'Alessandro (2010) VSCA 60; 26 VR 477. "Positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography. Significant weight is to be given to general deterrence and correspondingly less weight to matters personal to the offender." (R v Porte [2015] NSWCCA 174 at 126). 1. Where there is a course of conduct over a period of time of offences of a related nature, demonstrating a particular orientation or interest such as the abuse of children, individual offences cannot be seen as "out of character" or necessarily "opportunistic". The period over which these offences were committed was approximately nine months. 2. In relation to reoffending and rehabilitation, I note that the Pre-Sentence Report classified him as at a low to medium risk of reoffending. The psychological report of Andrew Redden assessed him as being a low risk relative to other adult male sex offenders. 3. Ms Wyzenbeek assessed him on the basis of Static-99R, which has not been specifically validated with Australian samples but which is still said to have some reliability, as being a risk level 3, which is the equivalent to an average risk for being charged or convicted for another sexual offence. In relation to the Risk of Sexual Violence protocol, which she administered, she opined that he presents with moderate to high levels of dynamic risk factors for sexual recidivism. On that basis, she assessed him as being at overall moderate risk of sexual recidivism. I accept on the basis of those assessments that he is overall a moderate risk of sexual recidivism. 4. As to rehabilitation, I note that the reports in general indicate that he is prepared to participate in programs designed to assist with rehabilitation and to reduce the risk of reoffending, however, I note that in the absence of the offender genuinely coming to terms with acknowledging his own sexual deviancy, particularly in respect of children, that rehabilitation is a moot point and it cannot be said in those circumstances that there is a good prospect of rehabilitation. 5. In relation to offences such as these, not only is specific deterrence an important factor, but general deterrence is a very important factor considering the ways in which the internet can be used to promote and distribute material such as this, and also where such offences are generally difficult to detect. 6. For the purpose of sentencing for the State offences, I have had regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and I have taken into account the s 21A aggravating factors in subs (2) and mitigating factors in subs (3). I have taken into account in respect of the Commonwealth matters, s 16A of the Crimes Act 1914, in particular subs (1) that in determining the sentence to be passed the Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. I have further taken into account the matters contained in subs (2). 7. In sentencing an offender, whether an offence is contrary to New South Wales legislation or to Commonwealth legislation, the sentence must reflect the objective seriousness of the offence and its circumstances as well as reflecting the need for general and specific , and must meet the fundamental purpose of punishment, that is, the protection of society. 8. In respect of the New South Wales offences, I am satisfied pursuant to s 5 that no penalty other than imprisonment is appropriate. No submission to the contrary has been made on behalf of the offender. In relation to the Commonwealth offences, I form the same view and no submission to the contrary has been made. 9. In relation to the Commonwealth offences, I intend to set individual terms of imprisonment. The terms will differ to reflect my perception of the varying seriousness of the individual offences, and there will be some accumulation between the offences, although I will still take into account the totality as required by Pearce (1998) 194 CLR 610 , and in addition of course, the pleas of guilty. 10. In relation to the New South Wales offences, I intend to impose an aggregate sentence, so in respect of each of those offences I will first give an indicative sentence and then the aggregate sentence. There will also be also some accumulation in relation to the aggregate sentence on the sentences imposed for the Commonwealth offences. 11. First of all, in relation to Sequence 4, being use carriage service to transmit child pornography material, s 474.19(1), the sentence is a term of imprisonment for one year commencing on the date that he was arrested, 20 November 2015. That will expire on 19 November 2016. 12. In respect of Sequence 3, being a further offence of transmit child pornography, the sentence is a term of imprisonment of two years. It will commence three months later than the last imposed sentence, that is, it will commence on 20 February 2016 and expire on 19 February 2018. 13. In respect of Sequence 5, being a further offence of use carriage service to transmit child pornography, the sentence is two years' imprisonment. It will commence three months after the last imposed sentence, that is, is will commence on 20 May 2016 and expire on 19 May 2018. 14. In relation to Sequence 2, being use child under 14 years to make child abuse material, the term of the sentence is three years. That will commence on 20 August 2016, that is, three months after the last imposed sentence, and it will commence on 20 August 2016 and expire on 19 August 2019. 15. In relation to Sequence 6, being use carriage service to promote child pornography material, the sentence is three years' imprisonment. It will commence three months after the last imposed sentence, that is, it will commence on 20 November 2016 and expire on 19 November 2019. 16. In relation to the State offences, in respect of Sequence 13, being the offence of use child under 14 years to make child abuse material, allowing for the 10% utility discount, the indicative sentence is one year of imprisonment. 17. In relation to the offence being Sequence 8, possess child abuse material, allowing for 25% utility discount, the indicative sentence is four years' imprisonment. 18. In relation to the offence being Sequence 1, of incite sexual intercourse with a child under the age of 10 years, the indicative sentence is seven years' imprisonment. There is, of course, no discount in respect of that matter as it was defended at trial. 19. The aggregate sentence in respect of the New South Wales offences is a non-parole period of five years and six months with a balance of term of two years and six months, giving a total sentence of eight years. That is a sentence of eight years with a non-parole period of five years and six months. The sentence will commence one and a half years after the last imposed Commonwealth sentence. That is, it will commence on 19 May 2017. He will first be eligible for parole on 18 November 2022 and the balance of term as stated was two years, six months. The eight year sentence will expire on 18 May 2025. 20. I return briefly to the Commonwealth sentences. Having provided those sentences, I am required to provide an order for parole, that is, a single order for parole in relation to the five offences. The non-parole period will be two and a half years. Although it will be of no effect in relation to the Commonwealth offences, I order his release on parole on 19 October 2019. 21. I note that in determining the non-parole period and the balance of term in relation to the State offences, I have found special circumstances to take into account the total term of imprisonment including the Commonwealth offences, so that the total period before becoming eligible for parole in relation to the State offences restores the total non-parole period to the balance of term for the State offences to effectively the statutory relationship, on my calculations, approximately one month less than if I restored the statutory relationship for the State offences. 22. Effectively, taking into account the start of the Commonwealth offences and the conclusion of the maximum term of imprisonment for the State offences, it is the equivalent of approximately a seven year non-parole period with a nine and a half year maximum term being ordered, or alternatively, a seven year non-parole period with a two and a half year parole period. 23. I am of the view that the two and a half year parole period is adequate in the circumstances to deal with any issues of rehabilitation and any directions as to psychological or psychiatric counselling and/or treatment to deal with the offender's perceived problems, both in relation to offences of this nature and in relation to the use of prohibited drugs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2018