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Local Court 27 May 2011

Police v Sidney Lee Burchett

[2011] NSWLC 15

Sexual offences
CRIMINAL LAW CHILD PORNOGRAPHY DISSEMINATE CHILD PORNOGRAPHY POSSESS CHILD PORNOGRAPHY SENTENCING PRINCIPLES

Citation: Police v Sidney Lee Burchett [2011] NSWLC 15
Court: Local Court of New South Wales
Date: 27 May 2011
Judge(s): Magistrate Theo Tsavdaridis

Background

The offender was charged with one count of disseminating child pornography and two counts of possessing child pornography, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The offences occurred between May 2009 and July 2010. Police came to identify the offender after executing a search warrant on the home of two other individuals who were under investigation for child sexual assault offences, during which Yahoo chat logs were discovered on seized computers.

Those chat logs revealed extensive online communications between the offender and numerous other users over a period of years. A subsequent search warrant executed over the offender's own premises in July 2010 led to the seizure of two computers containing thousands of additional chat logs and a substantial volume of child exploitation images and videos. The offender conceded that he was the author of the chat logs and that the communications encouraged the sexual abuse of children, though he maintained they were a form of fantasy engagement rather than a precursor to actual offending.

Originally facing nine charges, the offender entered guilty pleas to three sequences following charge negotiations on the sixth court occasion, with the remaining six charges withdrawn. The case then proceeded to sentence.

  • Whether online chat communications, in which the offender described or sent child exploitation material to others, could constitute "dissemination" of child pornography under s 91H(2) of the Crimes Act 1900 (NSW)
  • What discount, if any, should apply to the guilty pleas given the late stage at which they were entered and the context of charge negotiations
  • How to assess the objective seriousness of the offences, including the volume and nature of the material possessed
  • Whether full-time imprisonment was appropriate, or whether a suspended sentence was available
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole period and balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Magistrate Tsavdaridis found the dissemination charge was properly grounded in the chat log evidence. The offender had transmitted child exploitation material and sexually explicit references to children through Yahoo chat communications with other users. The Magistrate assessed the objective seriousness of the conduct as significant, taking into account both the volume of material (154 images and 16 videos on one computer, 122 images on another) and the deeply disturbing nature of the chat log exchanges, some of which appeared to encourage real-world abuse of identified children.

On the question of the guilty plea discount, the Magistrate applied a 20% reduction for the utilitarian value of the pleas. The reduction was modest rather than the maximum available, consistent with the established principle that the value of a plea is diminished when it is delayed and entered only after charge negotiations, following authority including R v Thomson; R Houlton (2000) 49 NSWLR 383, R v Stambolis [2006] NSWCCA 56 and R v Borkowski [2009] NSWCCA 102.

The Magistrate declined to suspend the sentences, finding that no penalty other than full-time imprisonment was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999. General deterrence and denunciation were identified as the dominant sentencing considerations, and the Magistrate expressed the view that a suspended sentence would deprive the sentences of their deterrent effect.

Special circumstances were found to justify a departure from the standard statutory ratio between non-parole period and balance of term. Two factors supported this: the offender's first time in custody and the need for extended post-release supervision to support rehabilitation. The two possession sentences were made wholly concurrent with each other and partially accumulated on the dissemination sentence.

Orders Made

  • Sequence 1 (Disseminating child pornography): Convicted and sentenced to 2 years' imprisonment commencing 27 May 2011, with a non-parole period of 14 months (expiring 26 July 2012) and a balance of term to 26 May 2013.
  • Sequence 2 (Possessing child pornography): Convicted and sentenced to 2 years' imprisonment commencing 27 August 2011, with a non-parole period of 14 months (expiring 26 October 2012) and a balance of term to 26 August 2013.
  • Sequence 3 (Possessing child pornography): Convicted and sentenced to 2 years' imprisonment commencing 27 August 2011, with a non-parole period of 14 months (expiring 26 October 2012) and a balance of term to 26 August 2013.
  • Sequences 2 and 3 were wholly concurrent with each other and partially accumulated on Sequence 1.
  • Overall effective non-parole period: 17 months, with earliest release date of 26 October 2012.
  • The offender to be subject to supervision on parole following release.

Key Takeaways

  • Online chat communications transmitting child exploitation material or descriptions of such material to other users can form the factual basis of a dissemination charge under s 91H(2) of the Crimes Act 1900 (NSW).
  • A guilty plea entered late in proceedings, and only after charge negotiations resulting in the withdrawal of multiple charges, will attract a reduced utilitarian discount. The Local Court applied 20% in these circumstances, drawing on Court of Criminal Appeal authority on delayed pleas.
  • Where general deterrence and denunciation are the dominant sentencing objectives, a sentencing court may decline to suspend a custodial sentence on the basis that suspension would undermine the sentence's deterrent effect.
  • Special circumstances sufficient to vary the statutory non-parole ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can arise from a combination of first-time custody status and the need for extended post-release supervision directed at rehabilitation.
  • The volume of material possessed, the nature of the communications, and the extent to which the offender's conduct appeared to encourage or facilitate the abuse of real children were all treated as relevant to the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91H, 91FA, 91FB
- Criminal Procedure Act 1986 (NSW), ss 260, 267, 289A, 289B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 44, 58

Cases
- Cahyadi v R [2007] NSWCCA 1
- Han v R [2009] NSWCCA 300
- Hejazi v R [2009] NSWCCA 282
- Mill v R (1988) 166 CLR 59
- Minehan v R [2010] NSWCCA 140
- R v Bloomfield (1998) 44 NSWLR 734
- R v Boney [2008] NSWCCA 313
- R v Booth [2009] NSWCCA 89
- R v Borkowski [2009] NSWCCA 102
- R v Crump (unreported, 30 May 1994, NSWCCA)
- R v Dib [2003] NSWCCA 117
- R v Doan (2000) 50 NSWLR 115
- R v Fidow [2004] NSWCCA 172
- R v Gent [2005] NSWCCA 370
- R v King [2004] NSWCCA 444
- R v Oliver [2003] 1 Cr App R 28
- R v Reyes [2005] NSWCCA 218
- R v Saddler [2008] NSWDC 48
- R v Stambolis [2006] NSWCCA 56
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
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