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District Court 14 October 2016

R v Gerard Loreto

[2016] NSWDC 252

Sexual offences
CRIMINAL LAW SENTENCING POSSESS CHILD PORNOGRAPHY DISSEMINATE CHILD PORNOGRAPHY

Citation: R v Gerard Loreto [2016] NSWDC 252
Court: District Court of New South Wales
Date: 14 October 2016
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to two charges under s 91H(2) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of ten years imprisonment. The first charge related to possessing child abuse material (17 videos and 146 still images). The second charge related to disseminating child abuse material (four videos).

Police discovered the material on the offender's mobile phone during a lawful inspection of his home under the Child Protection (Offenders Registration) Act 2000 (NSW). The offender initially denied downloading child pornography but admitted to it after police told him photographs of himself appeared among the material.

The material was assessed using the Child Exploitation and Trafficking Scheme (CETS) scale, which categorises child abuse material across six levels of severity. The offender's phone contained material ranging from Category 1 (nudity and suggestive posing) through to Category 5 (sadism, humiliation, or bestiality). The dissemination occurred through the KiK Messenger application, where the offender exchanged Category 4 videos with another user.

  • What was the appropriate sentence for possession and dissemination of child abuse material under s 91H(2) of the Crimes Act 1900 (NSW)?
  • How should the objective seriousness of each offence be assessed, having regard to established sentencing factors?
  • How should the sentences be structured to achieve partial accumulation while accounting for the totality principle and time already spent in custody?

Decision

His Honour applied the multi-factor framework drawn from Minehan v R [2010] NSWCCA 140 and endorsed in R v Porte [2015] NSWCCA 174 to assess objective seriousness. Relevant considerations included the nature and gravity of the material, the ages of the children depicted, the number and variety of images, and the fact that the offender both possessed and actively exchanged material with another person. The exchange on KiK Messenger, where the offender sent four Category 4 videos in return for videos he received, was treated as an aggravating feature of the dissemination charge.

Mitigating factors were also taken into account, including the offender's plea of guilty (attracting a discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and subjective matters addressed in a psychiatric report by Dr Nielssen. The court gave weight to factors such as remorse, personal circumstances, and the absence of any prior relevant convictions.

The sentences were structured to run partially concurrently. His Honour applied the totality principle, drawing on R v Thomson; R v Houlton (2000) 49 NSWLR 383 and R v Borkowski [2009] NSWCCA 102, to ensure the combined effect of the sentences was proportionate to the overall criminality. The date of commencement reflected the offender's time in custody from arrest on 23 October 2015.

Orders Made

  • Count 2 (Dissemination): Fixed term of 14 months imprisonment, commencing 23 October 2015 and expiring 22 December 2016. No minimum term was set for this count.
  • Count 1 (Possession): Non-parole period of 1 year and 1 month, commencing 23 April 2016 and expiring 22 May 2017, with a balance of term of 7 months expiring 22 December 2017 (total term of 18 months).
  • The offender was to be released on parole on 23 May 2017, serving the balance of term for Count 1 on parole until 22 December 2017.

Key Takeaways

  • The District Court applied the established Minehan factors to assess objective seriousness for both possession and dissemination of child abuse material, confirming these factors remain the operative framework in NSW state offence sentencing.
  • Active dissemination through an online messaging application, particularly where material is exchanged reciprocally rather than merely received, was treated as a serious aggravating feature distinct from possession alone.
  • A plea of guilty attracted a sentencing discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), with subjective factors including psychiatric evidence also reducing the sentence from what the objective circumstances alone would have warranted.
  • Partial accumulation of sentences, rather than full concurrency or full accumulation, was adopted to reflect the distinct criminality of each charge while avoiding a combined sentence disproportionate to the offender's overall conduct.
  • Under the totality principle, the sentencing court is required to ensure the overall effect of multiple sentences is proportionate. This decision illustrates how that principle operates in practice through careful structuring of commencement dates and non-parole periods.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 44
- Child Protection (Offenders Registration) Act 2000 (NSW) s 16C

Cases
- R v Porte [2015] NSWCCA 174
- R v De Leeuw [2015] NSWCCA 183
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- Flynn v R [2010] NSWCCA 171
- Wakefield v R [2010] NSWCCA 2
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152
- R v Thomson; R v Houlton (2000) 49 NSWLR 383