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District Court 2 December 2016

R v Atkinson

[2016] NSWDC 456

Sexual offences

Citation: R v Atkinson [2016] NSWDC 456
Court: District Court of New South Wales
Date: 2 December 2016
Judge: Tupman DCJ

Background

The offender came to the attention of police while they were monitoring child pornography websites, where they observed him uploading material using multiple email addresses. On 31 July 2015, Australian Federal Police executed a search warrant at his home, seizing several electronic devices. Forensic analysis of those devices revealed a large volume of child exploitation material across the full range of severity categories on the CETS (Child Exploitation Tracking System) classification scale.

The offender initially denied knowledge of the material but, on the same day as the search, voluntarily approached police to provide further information. He admitted downloading child pornography using the eMule peer-to-peer file sharing application, transferring images to USB drives, and viewing the material for personal pleasure. He provided police with assistance in their investigation.

The offender pleaded guilty in the Local Court and was committed to the District Court for sentence. He faced two counts: one Commonwealth offence of using a carriage service to access child pornography material (over a period exceeding five years), and one New South Wales offence of possessing child abuse material.

  • What was the objective seriousness of the offending, having regard to the nature, volume, and categories of material involved?
  • What weight should be given to the early guilty plea, the offender's cooperation with police, and his personal circumstances including mental health, physical illness, and absence of prior convictions?
  • Whether full-time custody was required, or whether an alternative sentencing arrangement was available or appropriate.
  • How to structure the sentences for one Commonwealth and one NSW State offence in a manner consistent with both sentencing regimes.

Decision

The District Court assessed the offending as sitting in the middle of the range for objective seriousness. The material spanned all CETS categories, including category 5 (the most serious, involving real children in sexual activity with adults) and totalled over 10,000 images and videos. The court noted that some category 4 images, which depicted a young girl involved in sexual activity with two adult males simultaneously, were at the more serious end of that category. The court viewed a representative sample of the material before returning it to police to avoid unnecessary court file exposure.

A significant discount applied to the NSW count for the utilitarian value of the early guilty plea. For the Commonwealth count, the guilty plea was taken into account as a demonstration of willingness to assist the interests of justice. The offender's cooperation with police during and after the search, his absence of prior convictions, and his relatively good prospects of rehabilitation were each treated as mitigating factors. His serious depressive illness and Type 1 diabetes were noted as circumstances that would make custody more onerous.

Despite these mitigating factors, the court concluded that full-time custody was the only appropriate sentencing outcome. The court expressly stated that, even if the total sentence had fallen at or below two years, it would not have referred the matter for an Intensive Community Corrections Order assessment. The court found the nature of the offending required a custodial term, notwithstanding the guidance in EF v R [2015] NSWCCA 36.

To reflect the offender's first time in custody, his medical and psychiatric conditions, and the need for an extended period of community supervision to support rehabilitation, the court adopted a partial accumulation of three months between the two sentences. The overall period of imprisonment was 15 months, with an overall parole period of 15 months.

Orders Made

  • Count 1 (Commonwealth): 12 months imprisonment commencing 2 December 2016, expiring 1 December 2017. No separate non-parole period set, as it forms part of the overall non-parole period.
  • Count 2 (NSW): Non-parole period of 12 months commencing 2 March 2017, expiring 1 March 2018; parole of 15 months commencing 2 March 2018, expiring 1 June 2019. Total term of 2 years and 3 months commencing 2 March 2017.
  • Forfeiture orders made in relation to electronic devices seized during the search warrant.
  • Court recommended that the warrant clearly note the prisoner's demonstrated suicide risk and major depressive disorder, requiring immediate mental health assessment, and that insulin be made available immediately. Placement in the prison hospital system pending classification was also recommended.

Key Takeaways

  • The District Court confirmed that possession and use of a carriage service to access child exploitation material spanning the full CETS classification range, over a period exceeding five years and involving more than 10,000 files, placed the offending in the middle of the range for objective seriousness, even where mitigating factors were substantial.
  • Early guilty pleas operate differently depending on the sentencing regime: under the NSW regime a significant utilitarian discount applied, while under the Commonwealth regime the plea was weighed as evidence of cooperation and willingness to assist justice.
  • Full-time imprisonment was held to be the only appropriate sentencing response for serious child exploitation material offences of this kind, regardless of whether the total sentence might otherwise have brought alternative sentencing options into consideration.
  • Serious mental illness and physical health conditions, while they do not reduce objective culpability, are relevant to the structure of a sentence: the court accounted for these by applying partial accumulation and recommending immediate assessment and medical care on reception into custody.
  • Where an offender spontaneously returns to police during a search to provide admissions and assistance, that cooperation constitutes a meaningful mitigating factor, though it does not displace the requirement for a custodial term for offences of this gravity.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1914 (Cth), s 16A(1) and Part 1B
- Crimes Act 1900 (NSW), s 91A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- EF v R [2015] NSWCCA 36
- R v Porte [2015] NSWCCA 174
- DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74
- Minehan v R [2010] NSWCCA 140
- R v Booth [2009] NSWCCA 89
- R v Thomson & Houlton & Ors (2000) 49 NSWLR 383