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District Court 18 August 2016

R v Ian Macgillivary

[2016] NSWDC 312

Sexual offences
CRIMINAL LAW SENTENCE PLEA OF GUILTY 1 IMAGE ONLY IMPORTANCE OF GENERAL DETERRENCE

Citation: R v Ian Macgillivary [2016] NSWDC 312
Court: District Court of New South Wales
Date: 18 August 2016
Judge(s): Tupman DCJ

Background

The offender, an Australian citizen who had lived in the United Kingdom for approximately 20 years, arrived at Sydney International Airport on 13 February 2016 after being refused entry to the Philippines. He had travelled from Melbourne to Manila the previous day but was turned back, apparently because of a prior criminal record in the UK. On his incoming passenger card, he denied bringing prohibited items or illegal pornography into Australia.

Australian Border Force officers searched his luggage and examined a Microsoft Surface Pro 4 tablet. On the tablet, they found a recorded video of the offender's session on an online webchat platform called Omegle. The recording captured the offender interacting via text with a girl, assessed to be aged between ten and twelve, whom he encouraged to engage in sexual activity. The child complied for just over three minutes before ending the transmission. The offender had used a program to record the session, and the recording had been made in January 2016.

The offender pleaded guilty to intentionally importing child exploitation material into Australia, contrary to s 233BAB(5) of the Criminal Code. He appeared before the District Court for sentencing.

  • What was the appropriate objective seriousness of the offending, given that only one image (a single video file) was imported?
  • How should the offender's prior UK convictions for indecent assault and possession of child pornography be weighed?
  • What significance attached to the fact that the offender was on conditional release in the UK at the time of the offence?
  • What weight should be given to general deterrence in sentencing for this class of offence?
  • What conditions, if any, should be attached to the recognisance release order?

Decision

Tupman DCJ assessed the offending as falling at the bottom of the range for importation of child exploitation material. The primary reasons were that the tablet contained only one video file (duplicated in a second file), that the relevant child-exploitation content formed just over three minutes of a ten-minute recording, and that there was no evidence of any other pornographic material on the device. Her Honour found the importation arose incidentally from the offender being returned to Australia after being refused entry to the Philippines, rather than as a deliberate act of bringing material into the country for distribution or other calculated purpose.

Her Honour classified the material as Level 2 on the Oliver Scale, characterised by solo activity involving a child, rather than Level 3 as the agreed facts asserted. She noted that this classification error had been made by both parties and corrected it as part of the sentencing exercise.

Despite the offence sitting at the lower end of the range, her Honour identified several aggravating features. The offender had a directly relevant prior criminal record in the UK from 2012, including indecent assault and numerous charges of possessing child pornography. Significantly, he was on conditional release in the UK at the time of the offence, which her Honour treated as a serious aggravating circumstance. General deterrence was identified as an important sentencing consideration for this class of offending.

The offender received some credit for his early and consistent cooperation with authorities and his plea of guilty. Her Honour also noted his age (67), his health circumstances, and that he had a residence to return to in the UK. Weighing all factors, Tupman DCJ imposed a sentence of 14 months imprisonment, with release on recognisance after seven months, subject to conditions directed at reducing any risk of reoffending while the offender remained in Australia.

Orders Made

  • The offender was convicted of intentionally importing child exploitation material contrary to s 233BAB(5) of the Criminal Code.
  • Sentenced to 14 months imprisonment, commencing 13 February 2016 and expiring 12 April 2017.
  • Recognisance release order of seven months, commencing 12 September 2016, in the sum of $500, subject to the following conditions:
  • Accept supervision of NSW Community Corrections and obey all reasonable directions.
  • Not access the website Omegle.
  • Not access any other websites for the purpose of communicating with persons who appear to be under 18, or for the purpose of accessing child pornography material.
  • Forfeiture order made in terms of short minutes provided to the Court.

Key Takeaways

  • The District Court confirmed that objective seriousness for importation of child exploitation material must be assessed by reference to the specific circumstances of the importation, including the number of images and the manner in which the material came to be imported.
  • A directly relevant prior criminal record, particularly one involving child pornography offences, operates as a significant aggravating factor in sentencing for this class of offence.
  • Being on conditional release in another jurisdiction at the time of the offending was treated as a further aggravating circumstance, increasing the moral culpability of the offender.
  • General deterrence carries substantial weight in sentencing for offences involving child exploitation material, even where the quantity of material is at the lower end of what could be charged.
  • Where the agreed facts contain an error in classifying material on the Oliver Scale, the sentencing court is not bound by that agreed classification and may correct it as part of its own assessment.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 233BAB(5) (intentionally importing child exploitation material; maximum penalty 10 years imprisonment)
- Crimes Act 1914 (Cth), s 16A (factors in sentencing for Commonwealth offences)
- Crimes Act 1914 (Cth), s 20(1)(b) (recognisance release orders)

Cases:
- Decisions of the NSW Court of Criminal Appeal and a comparable Western Australian court concerning sentences for similar offences were referred to in submissions, but no specific citations were recorded in the judgment.