Citation: R v Tham [2017] NSWDC 40
Court: District Court of New South Wales
Date: 27 January 2017
Judge: Berman SC DCJ
Background
The offender was charged with using a carriage service to access child pornography (a Commonwealth offence) and possessing child abuse material (a State offence). Police identified his IP address through a peer-to-peer file-sharing network used to distribute child pornography, and executed a search of his home on 29 January 2015. Officers recovered multiple storage devices containing over 100,000 files of child abuse material, including images and videos depicting children in the most serious categories of abuse, as well as four bottles of steroids.
The offender, a man of otherwise good character with strong workplace and family relationships, had been raised in Malaysia and had no history of prior offending. He explained that difficulties with sexual function had initially led him to adult pornography, and that his interest had gradually escalated to child pornography, which he ultimately sought out deliberately. He rationalised his conduct by telling himself the children depicted were not real people.
The offender had himself been seriously and repeatedly sexually abused by a male cousin from approximately age seven to age ten. A psychologist's report noted that he had a conflicted understanding of the harm done to him, including physical responses during the abuse that caused him lasting guilt and confusion. The court found this personal history was a significant factor in assessing the appropriate sentence.
Legal Issues
- What sentence was appropriate for the Commonwealth offence of using a carriage service to access child pornography and the State offence of possessing child abuse material?
- What weight should be given to the offender's early guilty plea in reducing the sentence?
- How should the offender's own history of childhood sexual abuse bear on the sentencing exercise?
- Whether the sentences for the State and Commonwealth offences should be served concurrently or with some accumulation.
- Whether special circumstances existed to justify a variation to the standard ratio between the non-parole period and the head sentence for the State offence.
Decision
The court imposed full-time custodial sentences for both offences, consistent with the parties' agreement that imprisonment was required. Berman SC DCJ observed that general deterrence is a paramount consideration in offences of this kind, because offenders who access child pornography create demand that drives the abuse of real children in the production of that material. Full-time imprisonment is ordinarily warranted absent exceptional circumstances.
The offender's early guilty plea attracted a sentence reduction of approximately 25 percent, recognising its utilitarian value for the State offence and the facilitation of justice for the Commonwealth offence. Four steroid possession offences were taken into account on a Form 1 for the State matter.
The offender's history of childhood sexual abuse was treated as a significant mitigating factor, not in the sense of excusing the conduct, but in explaining why he had greater difficulty than most in appreciating the harm caused to the children depicted. The court accepted that he was genuinely remorseful, had engaged meaningfully with psychological treatment, and had taken concrete steps to remove internet access from his home environment.
A finding of special circumstances was made in relation to the State offence, justified by the benefit the offender was deriving from psychological treatment and the assistance that an extended parole period would provide for his rehabilitation on release. The Commonwealth and State sentences were ordered to run with a degree of accumulation, reflecting the distinct forms of criminality involved in each offence.
Orders Made
- Commonwealth offence (using a carriage service to access child pornography): fixed term of 18 months' imprisonment commencing 27 January 2017.
- State offence (possessing child abuse material): non-parole period of 18 months with a head sentence of 3 years, commencing 27 April 2017; eligible for release to parole on 26 October 2018.
- Special circumstances finding made in respect of the State offence.
- Forfeiture of items specified in the forfeiture order to the Commonwealth.
Key Takeaways
- General deterrence is a paramount sentencing consideration for child pornography offences, because accessing such material creates demand that directly funds and motivates the abuse of children in its production.
- Full-time imprisonment is ordinarily warranted upon detection of these offences, absent exceptional circumstances, and the sentencing court here treated that principle as non-negotiable despite significant mitigating factors.
- An offender's own history of childhood sexual abuse can constitute a significant mitigating circumstance where it demonstrably impaired the offender's capacity to appreciate the harm their conduct caused, though it does not reduce the primacy of general deterrence.
- A finding of special circumstances may be made where ongoing psychological treatment creates a need for an extended period of supervised parole to support rehabilitation on release.
- Where a single course of conduct gives rise to both Commonwealth and State child pornography offences, some degree of accumulation between the respective sentences may be appropriate to reflect the distinct criminality involved in each charge.
Legislation and Cases Referenced
Legislation:
- Commonwealth and State provisions creating the offences of using a carriage service to access child pornography and possessing child abuse material (specific sections not identified in the judgment).
Cases:
- The judgment references decisions of the NSW Court of Criminal Appeal addressing sentencing considerations for child pornography offences, but no specific cases are named in the text provided.