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District Court 21 May 2015

R v SCHIPANSKI

[2015] NSWDC 381

Sexual offences
CRIMINAL

Citation: R v Schipanski [2015] NSWDC 381
Court: District Court of New South Wales
Date: 21 May 2015
Judge: Judge S Norrish QC

Background

The offender pleaded guilty to four offences arising from his use of a peer-to-peer file-sharing programme called eMule at his home in Broken Hill. Over a period of approximately three years, he accessed and downloaded child pornography using a carriage service. When police executed a search warrant in December 2013, they found child abuse material stored across a personal computer tower, a USB flash drive, and fourteen CDs and DVDs.

The offending spanned one Commonwealth offence under s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth), carrying a maximum of 15 years imprisonment, and three State offences under s 91H(2) of the Crimes Act 1900 (NSW), each carrying a maximum of 10 years. The State charges reflected possession of material stored on three separate repositories: the USB drive, the PC tower, and the CD/DVDs respectively.

The offender had no prior convictions. He gave evidence at sentencing, and the court heard detailed submissions about his mental health and intellectual functioning, which were central to the sentencing exercise.

  • How should the principle of totality apply where multiple charges arise from closely related conduct involving both downloading and storing child abuse material?
  • What weight should be given to mental disability or impaired cognitive functioning as a mitigating factor in sentencing?
  • Whether a non-custodial or suspended sentence was appropriate, or whether the objective seriousness of the offending required full-time custody.
  • What sentence structure was appropriate under s 20 of the Crimes Act (Cth) 1914 to accommodate the offender's circumstances while reflecting the gravity of the offending?

Decision

Judge Norrish found that the four offences, while closely related, were not duplicative. The Commonwealth charge captured the act of accessing and downloading material over three years, while the three State charges captured deliberate retention and storage of selected material. The offender's own evidence confirmed he actively chose what to keep for future viewing, which increased the totality of the criminality beyond what any single charge alone would reflect.

The court examined the downloaded material against the CETS (Child Exploitation Tracking System) scale, which categorises child exploitation material across six levels of severity. The bulk of the material fell at the lower end of the scale, though some reached higher categories. The court noted, in plain terms, that even category-one images represent the exploitation of a real child and should not be treated as trivial.

The offender's mental disability was accepted as a significant mitigating factor, reducing both his moral culpability and, to some extent, his prospects of rehabilitation through conventional means. The court also took into account the absence of prior convictions, the early plea of guilty, and the genuine remorse displayed during the search and at sentencing. General deterrence retained significant weight given the widespread harm caused by the market for such material.

Balancing these factors, the court imposed a sentence under s 20 of the Crimes Act (Cth) 1914 on the Commonwealth count, which permitted a period of imprisonment followed by conditional release on a recognisance. The State offences were dealt with concurrently, consistent with the totality principle.

Orders Made

  • On the Commonwealth offence (count 1): sentence of 2 years and 3 months, commencing 21 November 2015 and expiring 20 February 2018, pursuant to s 20 of the Crimes Act (Cth) 1914.
  • The offender to be released after serving 9 months (on 20 August 2016) upon entering a recognisance of $200 to be of good behaviour for 1 year and 6 months.
  • Conditions of the recognisance include: supervision by NSW Community Corrections for 1 year and 6 months; reporting to Community Corrections within 48 hours of release; compliance with all reasonable directions.
  • Forfeiture order under s 23ZD of the Crimes Act (Cth) 1914: the black Thermaltake computer tower, the Lexar USB flash drive, and the 14 CDs and DVDs forfeited to the Commonwealth.
  • [The precise orders on the three State counts are not fully reproduced in the provided text, though the judgment refers to concurrent sentences consistent with totality.]

Key Takeaways

  • Where an offender downloads material over an extended period and then selectively retains it across multiple storage devices, the totality of the criminality is greater than if only a single charge had been laid; each charge adds something distinct to the overall picture of offending.
  • Mental disability that affects an offender's moral culpability can operate as a meaningful mitigating factor in child exploitation material sentencing, without displacing the need for general deterrence.
  • Under s 20 of the Crimes Act (Cth) 1914, a sentencing court can impose a term of imprisonment coupled with conditional release on a recognisance, providing a structure that balances punishment, supervision, and rehabilitation for offenders with particular vulnerabilities.
  • The CETS scale assists courts in assessing the comparative gravity of child abuse material, but the District Court emphasised that even material at the lowest category involves the real-world exploitation of a child and carries inherent seriousness.
  • A plea of guilty, no prior criminal history, and demonstrated remorse remained relevant mitigating factors, but did not displace a term of actual custody where the offending was sustained over approximately three years and involved deliberate daily engagement with prohibited material.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1914 (Cth), ss 20, 23ZD
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- DPP v De La Rosa [2010] NSWCCA 194
- Hili and Jones v The Queen [2010] HCA 45
- Minehan v R (2010) 201 A Crim R 243
- Pearce v The Queen (1998) 194 CLR 610
- R v Gent [2005] NSWCCA 370
- R v Thomson and Houlton [2000] NSWCCA 309