District Court New South Wales Medium Neutral Citation: R v De Luca [2018] NSWDC 438 Hearing dates: 10 August 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For state offence of possessing child abuse material the offender is sentenced to imprisonment for a period of 18 months with a non-parole period of 12 months. For the Commonwealth offences of transmit child pornography the offender is sentenced to imprisonment for 18 months. For the offences of use a carriage service to make child pornography available and use a carriage service to solicit child pornography in each case the offender is sentenced to 2 years imprisonment. Make a recognizance release order, self in the sum of $1000, that the offender is to be released after 6 months of the Commonwealth sentence. Thus the effective overall sentence taking into account the State offences is one of 3 years with offender being released at the expiry of 18 months. Catchwords: CRIMINAL LAW – Sentence – 16BA Form – Commonwealth and state offences – Transmit child abuse material – Use a carriage service to solicit child pornography – Posses child abuse material – Use a carriage service to make child pornography available. Cases Cited: . Category: Sentence Parties: The Crown Christopher Joseph De Luca Representation: Solicitors: Director of Public Prosecutions (Cth) - Crown Armstrong Legal - Offender File Number(s): 2017/97128 Judgment 1. HIS HONOUR: One of the much less desirable things which the internet has brought about is easy access to child pornography. Before the internet, obtaining and trading in images and videos showing children sexually abused was rare indeed, but nowadays offences such as I am about to describe are relatively commonplace. As has been recognised repeatedly, offences like these cause great harm. When there is a market for people willing to download child abuse material there will be people willing to provide it, and each time that happens, children are harmed, sometimes, as is obvious from the nature of the material itself, significantly so. 2. To many of us who sentence offenders, how anyone can look at more serious examples of child abuse material can be anything other than horrified is difficult to understand. Yet there are people in this world who obtain sexual pleasure from watching children having sex with adults, and even from watching children being tortured and physically harmed. 3. All offences of possessing child abuse material are serious. In this case the offender did more than merely possess child abuse material. He solicited it, he transmitted it and he made it available to others. 4. In March last year the Australian Federal Police became aware of the offender's activities. He had used his correct name and date of birth when signing up to a messenger application which was being used in a suspicious way. Accordingly, police went to the offender's premises, arrested him and conducted a search. They discovered that he was in possession of a mobile phone as well as, most relevantly, a USB stick, a laptop, an SD card and an iPad. Each of those storage devices, including the phone, had child abuse material on it. The numbers are not large when compared with many other offenders, but there were still a significant number. In total there were 39 images and 150 videos, only one of which did not involve an actual child. 5. The material has been categorised by others using the Child Exploitation Tracking System and it is to be noted that the videos and images are spread across the range of categories with the most common being penetrative sexual activity between children, or between adults and children. There are however a number of the most serious forms of child abuse material involving sadism, humiliation or bestiality. 6. What I have said thus far is, as I have mentioned, unfortunately relatively common, but the offender's activities went well beyond simply downloading items from the internet and then possessing them. He is also to be sentenced for other offences as well. He used a carriage service to solicit child pornography. He asked a person who he believed to be 16 to send him some photos, clearly, in context, photos of the 16 year-old's penis. 7. As the Crown accurately points out, another aspect of the offender's solicitation activities is quite serious. This time the offender was in communication with a person he believed to be an adult on a chat service. That person, who went by the user name Daniel Jones, sent the offender an image of a girl who appeared between the ages of ten and 14. He told the offender that that was an image of his niece who was 14 years of age. Daniel Jones told the offender that he was going to be looking after his niece around lunchtime and he could get some pictures for him. The offender asked Daniel Jones to take pictures and videos of him having sex with his niece. He said explicitly, "I want to see you put your dick into her." Things do not get much better when he asked whether the niece has a younger brother. When told that she does and that he is 11 years of age, the offender says, "You could have her and I could have him." 8. On other occasions the offender is asked for images. He was communicating with a person by the user name hash-hash. He was told that this person was 15 turning 16 in the following week. He asked to be sent an image and the 15 year old did so. He said, "Well get those jocks off and show me your dick and juicy hole, sexy." He asked for a "dirty sexy video, baby". I accept the Crown's submission that the offender was not merely soliciting images and videos which are already in existence, but was actually soliciting the abuse of specific children so that videos could be prepared. 9. As far as the offence of transmitting child pornography is concerned, that relates to the offender sending images to HH, the offender sent an image in category 3 in February. In early March he sent an image in category 3 to Daniel Jones, who I have mentioned earlier. And on 16 March the offender sent image to a group chat which had 50 members, although this was an image in the least serious category. 10. Finally, the offence of using a carriage service to make child pornography available, relates to a drop box folder where the offender sent URLs which allowed others with access to the folder to view child pornography. The offender did this a number of times. In contrast to offences that involve transmitting child pornography to a single other person, by putting URLs in a drop box folder, many people can gain access to that material. 11. The offences I have described are serious indeed. Perhaps, and I will make this finding, they are less serious than many other offences of the type I have described, but that is simply because of the numbers involved. Sometimes people are sentenced for offences which involve thousands and thousands of images and videos being possessed or transmitted or made available. I have already spoken about the relatively low numbers in the present matter. 12. I mentioned that the offender pleaded guilty at the earliest opportunity to all of these offences. The sentence that I will impose upon him will be thus 25% less than it would otherwise have been. 13. I should also note that there is a significant overlap between some of the offences. In particular, on a 16BA schedule is an offence of using a carriage service to access child pornography material. Given that almost all child pornography material these days is accessed over the internet there is a substantial overlap between the offence on the schedule and the State offence of possessing child abuse material. 14. The offender has no previous convictions and is a man of otherwise exemplary character. Consistent with his character he has expressed his remorse for his misconduct in a convincing and substantial way. I note that he was not called to give evidence, instead he wrote a letter which I have read. The Crown took no objection to its tender so I will accept that the offender is deeply remorseful for what he has done and has displayed a great deal of insight into why it is that he is offending is as serious as it is. 15. The offender has faced a few challenges in life. He was sexually abused himself as a child. When he was 11 his father died suddenly of an asthma attack and not surprisingly he has been deeply affected by that loss. His family are also Jehovah's Witnesses, a religion where, I am told, homosexuality is not looked upon terribly favourably. At the time he committed these offences he was depressed and using drugs. The latter of course is not a mitigating feature, but the fact that the offender was depressed at the time does affect his moral culpability. 16. These were not sophisticated offences. As Ms Cameron pointed out, he used his own name and correct date of birth, which made his exposure much more likely. 17. Because offences of this kind are so common, the courts have been able to develop matters to be considered in assessing the gravity of offences of this type. 18. The nature of the material: As I have mentioned in only one case was there not an actual child used in the creation of material. The age of the children was described by the offender himself as ranging from infants up to 16. The sexual activity is, in the case of most of the offences, serious, showing children having sex or adults have sex with children, but there are a significant number of photographs and images which are even worse. I have referred to the number of items or images possessed. There is no suggestion that each of the images or videos involved large numbers of children being abused. 19. I have to be careful when I consider whether the material is for the purpose of sale or further distribution because the offender faces specific offences because of his distribution of some of the material. There is no evidence of course that he tried to sell any of it, and thus he will not profit from it. The material was possessed for only a relatively short time, but as the Crown points out there is no suggestion that the offender was going to voluntarily give up his activities, it was only the intervention of police which has caused them to come to an end. 20. The material was transmitted to a relatively small number of people, although made available to a drop box folder which potentially could have been accessed by large numbers of people. 21. The offender did not display any great sophistication. There is no evidence that there was any powerful encryption used, and as I have mentioned more than once already, he used his own name and date of birth. He did act to some extent as part of a collaborative network of like‑minded persons as the Commonwealth offences make clear. 22. There is no suggestion that there was any risk that any of this material would be seen by vulnerable persons, and there was no suggestion that, apart from the Commonwealth offences involving transmission and making available, other people might tempted to act to act in the manner depicted in the images and videos. 23. The offender has been undertaking counselling. The person providing that counselling has provided a report to the Court. Consistent with the remorse expressed by the offender in his letter to me, the report notes the insight and progress that the offender has achieved. I am able to assess his prospects of rehabilitation as good. For that reason I take into account also in making that finding, the personal deterrent aspects of the sentence I will shortly announce. 24. In Ms Cameron's helpful submissions she conceded that full time imprisonment was required. That is an appropriate concession, even given the offender's difficulties in life, his remorse and his likely rehabilitation. The objective gravity of his offending is such that nothing less than full time imprisonment is appropriate. 25. I have left the most important feature to last. It concerns general deterrence. The courts must do what they can to protect vulnerable children. Many children are exploited by evil people who satisfy the demand of offenders such as Mr De Luca. If there is no demand for child pornography then there will be fewer children abused. The courts must impose sentences upon those who possess, solicit, transmit and make available child pornography which will deter others who may be tempted to act in that way in an effort to reduce the enormous harm which children suffer. There is no good reason that I could identify which would suggest that the offender is not an appropriate vehicle for a sentence containing full measure of general deterrence being imposed upon him. 26. I impose sentence as follows. 27. For the State offence of possessing child abuse material, a sentence of imprisonment of 18 months with a non-parole period of 12 months. That is to date from 10 August 2018, today's date. 28. I made finding of special circumstances in that matter because of the sentences I will now announce on Commonwealth matters. 29. For the transmit offence, I impose a sentence of imprisonment of 18 months, and for the use and solicit offences I impose sentences of imprisonment of two years, each of the Commonwealth sentences to date from 10 August 2019. 30. I make a recognisance release order, self in the sum of $1,000, that the offender is to be released after 6 months of the Commonwealth sentences such that he is to be released on 9 February 2020. 31. Taking into account the State offences, the overall sentence is imprisonment for three years, with the offender to be released from prison after the expiry of 18 months. He is to be of good behaviour for the remainder of his sentences a period of 18 months. 32. I will make the order forfeiting the storage devices. 33. Mr De Luca I've got to explain the nature of my sentence. It's probably pretty clear to you what's happened. The most important date you want to know is the date that you can first be released from custody, which is 18 months from today, 9 February 2020. But once you are released from custody, you're still serving your sentence in the community for another 18 months, and if you commit further offences of any kind then you can be returned to custody to continue serving your sentence. Do you understand that? ********** 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: 01 February 2019