Citation: R v Robertson [2015] NSWDC 372
Court: District Court of NSW
Date: 5 February 2015
Judge: Berman SC DCJ
Background
The offender was charged with two offences: using a carriage service to access child pornography (a Commonwealth offence) and possessing child abuse material (a State offence). Police attended his home following a report made by his wife after she discovered he had been accessing such material online. On his return home, the offender admitted to police that he had accessed child pornography on the computer found at the premises.
The offender had been accessing and storing the material for approximately five months. Police examined a random sample of images from his computer hard drive and estimated there were around 1,000 photographs containing child pornography. Critically, approximately 99% of those images fell into the lowest category of seriousness under the Child Exploitation Tracking System, depicting sexually suggestive posing with no sexual activity. Around 1% showed non-penetrative sexual activity or solo masturbation by a child. No images fell into the more serious categories 3, 4, or 5.
The offender had no prior criminal convictions. He entered early guilty pleas to both charges. His personal circumstances included social isolation, depression, and the primary responsibility of caring for his children while his wife managed a significant mental illness.
Legal Issues
- What sentence was appropriate given that the objective seriousness of the offending sat at the lower end of the range for child pornography offences?
- Whether the exceptional hardship to third parties (the offender's mentally ill wife and dependent children) could be taken into account in sentencing.
- Whether a non-custodial outcome, or one combining community service and a suspended sentence, could properly reflect the purposes of sentencing in circumstances this unusual.
Decision
His Honour acknowledged that sentences for offences involving child abuse material are almost invariably severe, and that non-custodial outcomes are rare. However, he emphasised that sentencing must reflect the objective gravity of the specific conduct, and that not all such offences are of equal seriousness. The composition of the offender's collection, with 99% of images in the lowest category and none in the three most serious categories, placed his conduct firmly at the lower end of the scale.
The court drew particular significance from the inference that, over five months of online searching, the offender would inevitably have encountered more serious material. The fact that he chose to save only the least serious images demonstrated deliberate discrimination and was a meaningful factor in assessing objective seriousness.
On the subjective side, the court accepted the offender's genuine remorse, noting that his failure to dissuade his wife from reporting him to police was a concrete demonstration of that remorse. His early guilty pleas attracted a 25% reduction in each sentence. His lack of prior convictions and assessments from both a psychologist and Corrective Services officers placed him at low risk of reoffending. His wife's serious mental illness was treated as sufficiently exceptional to justify taking third-party hardship into account.
His Honour fashioned a sentence that used the two separate charges to achieve what he regarded as the appropriate overall outcome: a suspended term of imprisonment to mark the wrongfulness of the conduct, combined with a substantial community service order to provide real and tangible punishment, while preserving the conditions necessary to continue the offender's rehabilitation.
Orders Made
- Using a carriage service to access child pornography: convicted and ordered to perform 400 hours of community service.
- Possessing child abuse material: sentenced to 18 months imprisonment, suspended on condition of entering a good behaviour bond for the duration of the sentence.
- Conditions of the bond included:
- Continuing psychological treatment with his treating psychologist for the duration of the bond, unless no longer considered necessary or a referral is made.
- Notifying Roads and Maritime Services of the convictions within seven days (given his occupation as a taxi driver).
- Reporting to the Wyong office of Community Corrections within seven days to commence the community service component.
Key Takeaways
- Sentencing courts must still calibrate sentences for child pornography offences according to their specific objective gravity; the general severity of such offences does not override the requirement to reflect the actual seriousness of the individual conduct.
- A finding that 99% of approximately 1,000 images fell into the lowest category of seriousness, with none in the three most serious categories, was treated as a genuinely unusual feature that distinguished this case from the norm.
- The inference that an offender actively chose to save only the least serious material, when more serious images would have been encountered, can weigh in the offender's favour when assessing objective seriousness.
- Exceptional personal circumstances, including a spouse's significant mental illness and the offender's primary role as carer for dependent children, can be taken into account in sentencing, though the threshold for doing so remains high.
- Where two separate charges arise from substantially overlapping conduct, the District Court noted that this can provide sentencing flexibility, allowing a combination of orders that collectively reflect the purposes of punishment, denunciation, and rehabilitation more appropriately than a single order might.
Legislation and Cases Referenced
Legislation:
- Telecommunications legislation (Commonwealth) prohibiting use of a carriage service to access child pornography (specific provision not identified in the judgment)
- NSW legislation prohibiting possession of child abuse material (specific provision not identified in the judgment)
- Child Exploitation Tracking System (classification scale referenced in the judgment)
Cases: No cases were cited in the judgment text provided.