District Court New South Wales Medium Neutral Citation: R v Marsh [2020] NSWDC 72 Hearing dates: 17/12/19, 26/2/20 Date of orders: 26 February 2020 Decision date: 26 February 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to an aggregate term of imprisonment of four years and three months with a non-parole period of two years and nine months. Catchwords: Crime – Sentence - Possess child abuse material - Disseminate child abuse material Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174 Category: Sentence Parties: DPP (Crown) Simon John Marsh (Offender) Representation: Ms S Gul (counsel) for Crown Mr R Baldeo (solicitor) for the Offender File Number(s): 2018/288348 sentence 1. The offender, Mr Simon Marsh, is before the court for sentence in relation to four offences under s 91H of the Crimes Act 1900, those being offences of possess child abuse material, two offences of that kind, and two offences of disseminate child abuse material. In addition, the offender asks the Court to take into account on sentence three offences on a Form 1 document, being one offence of disseminate child abuse material and two offences of possessing child abuse material. 2. The maximum penalty for the various offences is 10 years imprisonment in each case. There is no standard non-parole period applicable. The maximum penalty, of course, is a guide post in the sentencing exercise to which I must have regard. 3. The offender pleaded guilty at the earliest opportunity and I have allowed a 25 per cent discount on account of that plea. 4. The facts on which the offender is to be sentenced are the subject of an Agreed Statement. Those facts, in summary, are as follows: 5. The offender came to light as a result of information provided to the Australian Federal Police by a US law enforcement agency, which advised that on 18 July 2014 an Australian user had uploaded a number of child abuse images to Microsoft Sky drive. Those images were reviewed by Australian Police and investigations were commenced which identified that the images had been uploaded by a person with the username Simon Marsh and an associated email address, "swampy1974@hotmail.com" using a particular Internet Protocol Address. 6. Enquiries by police indicated that the offender was born in 1974 and that the IP address was one that was used by him. Investigations were then transferred to the NSW Police Sex Crime Squad, who in turn forwarded the matter to Mount Druitt Police on 9 November 2015. As a result, on 10 May 2016 police executed a search warrant at the offender's premises in Rooty Hill. Police initially spoke with the offender's father, who indicated that he was not at home but was working at a book store at Sydney Domestic Airport. Police searched the premises in the presence of the father and seized, among other things, a Dell laptop computer. That laptop computer was examined by police on 25 August 2017 and a sample of about 8,000 images from a total of about 36,000 images were analysed. 7. Turning to the sequence 1 offence for which the offender is to be sentenced, of those 8,000 or more images, the estimated number of picture files of interest was between 1,486 and 1,873. One hundred and ninety-four images of the approximate 8,000 were found to meet Interpol Baseline Scale, which I will refer to as "IBS" hereafter, category 1 and a further 177 images were classified as category 2. 8. Category 1 IBS material involves images or videos depicting a real prepubescent child involved in a sex act, witnessing a sex act or whose anus or genital region is the focus of the depiction. Category 2 is defined as all other material which falls under the definition of "child abuse material" but is not within category 1. 9. Examples of images found on the laptop which fell within category 1 included the following: 1. penile penetration of the anus of a prepubescent boy by an adult male; 2. two prepubescent boys performing oral sex on each other; 3. multiple images of prepubescent boys performing oral sex on adult males; and 4. an image of a male baby wearing a nappy but with his penis exposed. 1. The next offence before the court is sequence 8, a possess child abuse material offence. The facts in relation to that are these. 2. The police analysis of the computer to which I have referred already also detected eight written documents of a pornographic nature which met IBS category 2. Those eight items are the subject of this sequence 8 offence for which the offender is to be sentenced. 3. One example was a story entitled 'Mike the Soccer Coach' which was set out in chapters or parts. This document purported to be a novel which graphically depicted frequent sexual intercourse between adult men and male children between the ages of 11 months and 11 years. Part 1 of that material was admitted into evidence on sentence and depicts, in graphic detail, a story involving a 10 year old boy who is subjected to constant sexual abuse by his father and being anally raped by another man, at the invitation of the child's father, to the point where the child becomes unconscious. The document also includes various other graphic and depraved suggestions of child sexual abuse. 4. On 20 January 2017, after the seizure of the offender's laptop but before it had been analysed and the child abuse material identified, NSW Police were advised by the AFP that a second notification had been received from the US law enforcement agency to the effect that the offender had again uploaded child abuse material to the internet. Arising out of this second notification, Mount Druitt detectives executed a search warrant at the offender's home on 20 September 2018 and seized a number of electronic devices, including laptop computers, iPads and USB storage devices. 5. Later that day police arrested the offender at his workplace, which was a book store at Sydney Domestic Airport. When cautioned and informed of his rights, the offender said, "I know what this is for." He was taken to Mascot Police Station, where he declined to be interviewed. At that time he was charged with offences arising from the material found on the laptop which had been seized by police back in 2016. 6. Police technical staff conducted an analysis of the additional devices seized from the offender's property on the day of his arrest. 7. That then takes me to the sequence 6 charge which is to be dealt with on a Form 1 document. 8. One of the devices seized was a gold iPad. It was found to contain at least 403 images which fell within IBS scale category 1 and category 2 and one video which fell within category 1. Examples of this material included: 1. realistic computer generated depictions of adults and prepubescent boys engaged in sexual intercourse; 2. Anime/Manga style depictions of adults and prepubescent boys engaged in sexual intercourse; and 3. photographs of prepubescent boys engaged in sexual acts with each other. 1. The offence referred to in sequence 7 is also to be taken into account on a Form 1 document. The facts in relation to that are that one of the devices seized by police on 20 September 2018 was an Acer brand laptop. This was found to contain at least 11 images depicting child abuse material which met IBS categories 1 and 2. Examples included material depicting sexual acts between an adult and a child, as well as photographs of prepubescent boys in sexualised poses. As I have said, this matter will be taken into account on a Form 1 document. 2. The Agreed Facts include paras 31 to 34 which refer to the offender's "online activities" during 2018. These activities came to light after police analysed devices seized from the offender's premises on the date of his arrest. Those analyses revealed that, in summary, the offender's internet history indicated the use of internet applications known as "Tumblr", "Kik" and "Wickr". 3. "Tumblr" is a micro-blogging website involving a network of millions of user-generated personal websites which lets users create and post their own original content. "Kik" is a mobile messaging application which allows users to message each other and share links and files. "Wickr" is an instant messaging application which uses encryption and content expiring messages, photos, videos and file attachments. 4. The offender used the website "Tumblr" to make contact with "Kik" users who also wished to obtain child abuse material. Multiple conversations using "Kik" were located on the offender's laptop, where he had exchanged child abuse material via Dropbox with other users, as well as receiving child abuse material from other users. These "trades" took place between July and September 2018 and, in communications, the offender indicated to others that he wanted to "trade boys only". 5. In the course of those conversations, the offender and the other users discussed having sexual intercourse with children as well as speaking about previous experiences. During that time the offender chatted with at least 20 different people about his sexual interest in prepubescent males. 6. While I have considered this material, I have not treated it as part of the offending conduct for which I must sentence the offender, or as material which aggravates his offending. Rather, I have treated it in accordance with my understanding of authority, as refuting any suggestion that the offences for which I must sentence the offender were isolated or out of character at the relevant time. 7. That brings me to the offence which is described as sequence 10. Between 23 and 29 July 2018, there was extensive conversation between the offender and a person using the name "Luke Bottom 1", who apparently lived near Amsterdam. In online conversations, this person informed the offender that he was 14 years of age. On 29 July 2018 the offender told the person Luke that he is his boyfriend and special boy and, in response to Luke telling the offender that he would like "a dick up my arse", the offender said, "I would love to put my cock in your teen boy hole". The offender also asked whether Luke's parents knew about him, to which the reply was "I would prefer it to be a secret for as long as possible - our sexy little secret". 8. The offender and the person using the name "Luke", exchanged photographs of their faces and explicitly described sexual acts that they wished to do to each other. In one exchange, the person using the name Luke said he wanted the offender to "make my ass bleed". 9. The conversations I have referred to constitute child abuse material and the offender's act of sending the messages amounted to dissemination. As I have said, this is the offence referred to in sequence 10. The person "Luke Bottom 1" has not been identified by police. 10. I turn then to the offence in sequence 4. This offence occurred on 9 September 2018. On that date the offender sent an image of a prepubescent boy lying naked on a bed with an erect penis to a "Kik" user named "Jordan Joe 16", apparently aged 30. This was sent after "Jordan Joe 16" had asked the offender, "Do you have a fave one that you wank over?" In response, the offender stated that he "wanked" over this image of a male child. After the other person replied with, "OMG he's gorgeous", the offender said, "I love him too" and "I'm 44 and love young boys too". He also said that ages 6 to 12 were for him and "I want to fuck a little boy badly and breed his tight boy hole - seed him with my pedocum". The offender stated that his preferred boy was "slim, smooth and white with blonde hair". Both the offender and the other "Kik" user agreed that they were into "forced", with the offender saying, "Me too, especially rape". The image of the young boy sent by the offender constituted child abuse material and the offender disseminated that material by sending it to "Jordan Joe 16". 11. The offence in sequence 5 is to be dealt with on a Form 1 document and involved a second image of the same naked boy to whom I just referred. This image was also sent on the same day, 9 September 2018. On this occasion the offender sent the image to a "Kik" user with the name "Luke 16171819", purporting to be 33 years of age and said, "I love young boys", this being after he had been asked by "Luke" to see his "fav boy". 12. The image of the young boy constituted child abuse material and the offender disseminated that material by sending it to the other "Kik" user. As I say, that offence is to be dealt with on a Form 1 document. 13. The assessment of the objective seriousness of these offences starts with the maximum penalty of 10 years, which clearly demarks its seriousness. It is to be noted that the penalty for an offence under s 91H(2) was increased in 2008 from 5 years to 10 years imprisonment. In explaining the reason for this increase in penalty, the then New South Wales Attorney-General, the Honourable John Hatzistergos, as his Honour then was, said: "The New South Wales offences are currently split into possession, which carries a five year penalty, and production or dissemination, which carries a 10 year penalty. The bill increases the maximum penalty for possession of child pornographic material to 10 years. These substantial penalties send a strong message to the courts that child pornography should not be tolerated. This penalty reflects the seriousness of this crime. Any person who knowingly possesses images of a child being sexually abused is perpetuating such abuse and also providing a continuing market for such material. The government is of the view that the criminality involved in that behaviour is the same as if the offender had produced the material themselves." 1. In R v Hutchinson [2018] NSWCCA 152, RA Hulme J, Meagher JA and Button J agreeing, set out at para 43 a list of matters designed to assist sentencing judges in determining the seriousness of offences involving child abuse material, that list, of course, being an updated one initially put forward by the Court of Criminal Appeal in a decision called R v Porte [2015] NSWCCA 174. 2. I make the following observations by reference to the matters set out in the Hutchinson decision as compared with the facts in this case. Firstly, the photographic and/or video material offences in this case involved actual children, although the sequence 8, "Mike the Soccer Coach" novella offence did not. While it cannot be known whether the sequence 10 offence involving "Luke Bottom" involved a real 14 year old boy, the offender acted consistently with a belief that he was communicating with a boy. 3. The second factor is the nature and content of the material, including the age of the children and gravity of the sexual activity. Although in this case the content of the Agreed Facts is limited, it is apparent that a range of ages were involved, including one photograph of a baby. The material included images of children being penetrated anally by adults and of boys performing oral sex on adults. 4. Also, the sequence 8 novella offence, although fictional, describes extremely graphic, degrading and violent sexual assaults of a 10 year old boy. Overall, much of the material involves considerable gravity. 5. As to the third factor, which is the extent of any cruelty or physical harm discernible in the material, in this regard, as I have already noted, some of the sequence 1 offence images involved children being anally raped by adults, which is manifestly cruel and likely to have caused pain and physical and mental harm to those children. 6. While the sequence 8 novella offence did not involve a real child, it is expressed in very graphic and violent terms and in language which is clearly aimed at feeding the consumer's lustful enjoyment of child abuse material. Its real evil, in my view, is that it supports the market for those interested in this sort of material. 7. The fourth factor listed in the Hutchinson decision is the number of images or items and, in the case of possession, the number of different children depicted. The largest number of images are those that are the subject of sequence 1 and the images that are the subject of the Form 1 offences. While the numbers involved are certainly less than some of the cases that come before the courts, it is still a very significant quantity and, while the Agreed Facts do not disclose the number of different children, the inference I have drawn from the large number of images is that there must have been a significant number of different children depicted. 8. A fifth factor from Hutchinson is, in the case of possession, the offender's purpose, that is whether it was for his own use or for sale or dissemination. The primary purpose in this case was, I accept, the offender's own use, although it is an agreed fact that there was some dissemination to others. 9. As to the sixth factor, in a case of dissemination, the number of persons to whom the material was sent. The offences of dissemination in this case do not involve sending material to groups of like-minded people but they do involve multiple individuals. 10. The seventh factor discussed in Hutchinson is whether any payment or other material benefit was received, including the exchange of pornographic material. None of the offences for which the offender is to be sentenced involved payment or other material benefit to him. However, as already noted, the Agreed Facts at paras 31 to 34 refer to the offender's online activities in 2018, which are not the subject of any specific charge but which clearly indicate that he was, at that time, involved in exchanges of child abuse material with others. 11. While I do not treat this as increasing the seriousness of the offences for which I must impose sentence, it serves to remove any suggestion that the offender's conduct is mitigated because he did not seek to acquire benefits of this kind. 12. The eighth factor listed in Hutchinson is the proximity of the offender's activity to those responsible for bringing the material into existence. This, as the Crown concedes, is unknown. 13. The ninth factor is the degree of planning, organisation, sophistication and/or deception involved. In this case, although some degree of planning and organisation was involved, it was not greater than that which is inherent in the offences and, as the Crown conceded, the fact that the offender used a Telstra account in his own name shows a lack of sophistication. 14. The tenth factor is the age of any person with whom the offender was in communication. As noted, the sequence 10 offence to which I have referred involved a person who at least purported to be 14 years of age. 15. The eleventh factor is whether the offender acted alone or in a collaborative network of like-minded persons. There is some evidence that the offender exchanged material with other like-minded persons, although, in relation to the offences to which he has pleaded guilty, or which are to be taken into account on sentence, this was limited to the offences that are described in sequence 10 and sequence 4 and to one of the matters on the Form 1 document. 16. The twelfth factor referred to in Hutchinson is any risk of the material being seen or acquired by vulnerable persons, such as children. As to this, there is no evidence to suggest that this risk existed. 17. The thirteenth factor referred to in Hutchinson is any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. Such a risk arises in relation to the sequence 10 offence involving the 14 year old boy. However, that, in my view, is an inherent aspect of this offence and I do not treat it as an aggravating factor. 18. Furthermore in relation to matters affecting the seriousness of the offences, it is relevant to note that the offending cannot be regarded as a temporary lapse of judgment. Rather, it was a course of conduct which took place over a period of about two years. 19. As the courts of this State have said many times, offences involving the possession of child pornography are not victimless. Rather, the possession of such material creates a market for the continued corruption and exploitation of children. It has been said that the possession of child pornography is a callous and predatory crime. What makes the crime callous is not just that it exploits and abuses children, but also because each time the material is viewed the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse and the degradation that it causes. 20. In sentencing for such crimes, it is important to bear in mind that the material cannot come into existence without the exploitation and abuse of children somewhere in the world. Often, this is in underdeveloped or disadvantaged countries. Those who make use of the product feed upon that exploitation and abuse and upon the poverty of the children the subject of the material. It is for these reasons that, in sentencing for offences of possessing and of disseminating child abuse material, general deterrence is of particular significance. 21. Having regard to the circumstances of the various offences and the principles to which I have referred, I regard the objective seriousness of the offences as being as follows: As to sequence 1, as being just below the mid-range. As to sequence 8, I treat as being in the low to mid-range. As to sequence 10, I treat as being in the low to mid-range. As to sequence 4, I treat as being in the lower range. 22. The offender's subjective circumstances have been placed before the court by means of a psychological report, a Sentencing Assessment Report and in oral evidence given by the offender. He is now 46 years of age and, prior to his arrest, he lived with his father, his mother having passed away in 1999. He has no prior convictions. 23. He attended primary school and high school in Rooty Hill and obtained his HSC. After school, he attended a TAFE institution at Mount Druitt and obtained a library practice diploma after two years of study. Since then he has been employed in numerous book shops and, for the period of six years before his arrest, he was an employee of a book shop at Sydney Domestic Airport. 24. Although the offender told the psychologist that he was able to initiate and maintain friendships at school, he had, as an adult, experienced much more difficulty in developing friendships, partly, he reported, because he believes he is gay and was uncertain about the process of forming intimate relationships. 25. As a result, he had experienced isolation and loneliness in his 30's and 40's, as a result of not being able to form appropriate intimate relationships with others. He told the psychologist that this may underpin some of the offending behaviour in which he engaged online. He told the psychologist that initially he had accessed mainstream adult gay sites with no intention of accessing child pornography and claimed never to have been attracted to children or young people. 26. He also told the psychologist that in 1999, when he was aged about 25, he met an adult male on an online gay site and that after arranging to meet with the man he was subjected to a violent sexual assault. The offender also told the psychologist that in 2004 he commenced his first serious intimate relationship which lasted about two years and was devastated when his partner broke up with him and took up with a new partner. I note that this evidence, however, is inconsistent with the report to the Community Corrections Officer, who was apparently told by the offender that he had never been in an intimate relationship. 27. The offender's physical health has generally been good. Although he was diagnosed with epilepsy at age 12, this has been well controlled by medication and he has had very few seizures. In May 2016, however, the offender was diagnosed with depression and anxiety and consulted with a psychologist and also used anti-depressant medication. He has some history of suicidal ideation and has engaged in some self-harm, including in April 2019 when he expressed an intention to take his own life by slashing his arms. This, however, apparently was interrupted by his father's actions. 28. The psychologist reports that testing indicates the offender to have had clinical levels of depression, anxiety and stress, although these are consistent with his current circumstances. 29. In December 2018 the offender commenced specific sex offender counselling and, as at September 2019, he had participated in about 15 hours of this treatment. The treatment is aimed at addressing a range of issues, including consideration of how the offender's own behaviour was abusive, understanding how it may have affected victims, taking responsibility for that behaviour and considering ways to ensure that it does not reoccur in the future. According to the psychologist, the offender understands and acknowledges his offending behaviour was wrong and unacceptable. She expressed the opinion that the offender does not engage in minimisation or denial or exhibit attitudes or behaviours that are supportive of sexual abuse of children. 30. She concluded that the offender clearly acknowledges that images of children posted online are not victimless. She also formed the view that the offender was ashamed of his behaviour and that he had demonstrated remorse for the harm that his behaviour had caused to his family. The psychologist further states that the offender has demonstrated a number of protective factors, including a "growing insight" into his offending, acknowledgement of responsibility for the offences and remorse for the harm his actions have caused. 31. This, however, is not consistent with the conclusions expressed in the Sentencing Assessment Report. In that document the Community Corrections Officer stated that the offender appeared to lack insight into the severity of his offences and their impact on victims, in that he stated, "I was only watching the material" and that he did not engage in any acts of touching children. 32. The psychologist's report states that the offender described his behaviour as selfish and wrong and that he is appalled at the decisions he made at the time of the offences. The psychologist concludes that the stressors of the offender's isolation and inability to form meaningful intimate relationships had greatly affected his mental health. 33. The psychologist concludes that the offender is a gay man whose primary sexual interest is in adult males younger than himself but that he does not meet the diagnostic criteria for paedophilia. She concludes that his offences were "opportunistic", that he is a low risk of re-offending, and has good prospects of rehabilitation, largely, it would seem, due to the fact that he has engaged in some treatment and now understands that child abuse images involve and affect real children. 34. In his evidence on sentence the offender said he had told the psychologist the truth, he is appalled at his offences, and did not fully appreciate the full effect on children at the time. He claimed this realisation came to him about a week before he was arrested and denied that he probably would have continued to offend but for police intervention. 35. Regrettably, in my opinion, I can give very little credit to these claims. The prevalence of child pornography and child sexual abuse generally, and the publicity that it has achieved in recent years, is well known and would have been well known to the offender. The fact that many of the images he possessed depicted real children being raped or otherwise degraded must have made the real harm to children obvious and, indeed, given the offender's interest in material such as the 'Mike the Soccer Coach' novella, this form of degradation was, in my view, a large part of his attraction to this type of material. I do not accept, therefore, that the offender did not understand the harm to children associated with the material which he dealt with. 36. Nor do I accept that the offender had formed an intention to stop this type of offending as he suddenly realised it was wrong. This claim is powerfully contradicted by the fact that, even after police seized devices from his home in May 2016, the offender continued to access and upload child abuse material and did so right up until only days before his arrest. Given the continuing nature of his offending, despite police intervention, I have difficulty in accepting that there is any real remorse. While he expressed remorse to the psychologist, in my view this is more likely to be a self-serving statement aimed at acquiring a benefit on sentence. 37. For these same reasons, but particularly the fact that the offender continued his actions after police seized his devices in May 2016, I am unable to form the conclusion that his prospects of rehabilitation are good. It is positive that he has engaged in treatment and that, according to the psychologist, he has "growing insight" into his offending behaviour. Regrettably, however, the ready availability of child abuse material and the apparent ease with which it can be accessed via the internet, leads to the conclusion that there is a very real risk the offender will, in the future, again give into the temptation to indulge in similar offending. 38. Perhaps the greatest deterrent in his case, however, is the fact that he is now aware, as all like-minded people should be aware, that police agencies all over the world are constantly engaged in detecting and investigating child abuse material and that there is a significant possibility that in communicating online with a person purporting to be a child, that in fact the offender may well be communicating with an undercover police officer. Nonetheless, the importance of personal deterrence and general deterrence remains an important factor in sentencing for these offences. 39. There is no doubt that these offences require the imposition of a full time period of imprisonment and no submissions were made to the contrary. In formulating the sentences, I have had regard, in addition to the matters I have mentioned already, to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 40. I intend to impose an aggregate sentence. Had I not done so, then the sentences that I would have imposed for the individual offences are those that I will now refer to. 41. The indicative sentences are these: For sequence 1, imprisonment for three years and six months. For sequence 8, imprisonment for three years. For sequence 10, taking into account the three matters on the Form 1, imprisonment for a term of three years and three months. And for sequence 4, imprisonment for a period of two years 10 months. 42. In determining the overall sentence, I must, of course, take into account the principle of totality and determine the extent to which those sentences ought to be concurrent or cumulative and to what degree. In my view, a degree of concurrency is required in order to avoid a sentence that might be described otherwise as "crushing". However, the fact that the offending occurred over a significant period of time and continued, despite police involvement in 2016, means that some accumulation is appropriate. 43. I find special circumstances for varying, to some degree, the ordinary ratio between head sentence and non-parole period. Special circumstances, in my view, are made out in this case, based on the fact that this is the offender's first time in custody and also on the basis that it will be important for him to be monitored as to his adjustment into society upon his release on parole. 44. Instead of the sentences I have indicated, I impose an aggregate sentence in the form of a head sentence of four years and three months and a non-parole period of two years and nine months. Each of those will date from 12 October 2019, which is when the offender was taken into custody as a result of a breach of bail concerning these matters. In setting that commencement date, I have also taken into account the one to two days that the offender spent in custody bail refused between his arrest and 12 October 2019. The head sentence, therefore, will expire on 11 January 2024 and the non-parole period will expire on 11 July 2022. ********** 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 April 2020