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District Court 18 May 2018

R v Quinn

[2018] NSWDC 362

Sexual offences
SENTENCING — MULTIPLE OFFENCES COMMONWEALTH OFFENCES STATE OFFENCES POSSESS CHILD PORNOGRAPHY PRODUCE CHILD PORNOGRAPHY

Citation: R v Quinn [2018] NSWDC 362
Court: District Court of New South Wales
Date: 18 May 2018
Judge(s): M L Williams SC DCJ

Background

The offender, a man born in 1970 with no prior convictions, pleaded guilty to three offences arising from the discovery of child abuse material on multiple electronic devices at his home in Granville. Police attended on 27 May 2017 following a tip-off and, with the offender's cooperation, located child abuse images and videos across two external hard drives, an Apple iPhone, and a Nokia mobile phone. In total, between 2,800 and 3,400 child abuse images were identified across the devices, spanning both category 1 and category 2 material under the Interpol characterisation system.

The three charges were: using a carriage service to access child pornography under s 474.19 of the Criminal Code (Cth), carrying a maximum of 15 years imprisonment; and two counts under s 91H(2) of the Crimes Act (NSW) for possessing and producing child abuse material, each carrying a maximum of 10 years. There was no evidence of file sharing or involvement in dark web networks.

The offender had worked for Australia Post for over a decade before his employment was terminated as a result of the court proceedings. Psychological evidence indicated a depressive disorder, some autistic traits (though no formal diagnosis), and a low to moderate risk of reoffending. Both parties accepted that a term of full-time imprisonment was the appropriate outcome.

  • What head sentences and non-parole periods were appropriate across three offences involving both Commonwealth and State legislation?
  • To what extent should the sentences for the use of a carriage service (Commonwealth) and the possession offence (State) be concurrent, given they arose from the same course of conduct?
  • Whether special circumstances existed under the State sentencing regime to justify a longer-than-standard supervision period on parole.
  • Whether a term of imprisonment was warranted for the production offence, given the overall sentencing exercise.

Decision

The District Court proceeded to sentence having regard to both s 3A of the Crimes Act (NSW) and Part 1B of the Crimes Act (Cth). Williams SC DCJ accepted the general principle, drawn from R v De Leeuw [2015] NSWCCA 183, that an immediate custodial term is ordinarily required for this type of offending unless exceptional circumstances exist. General deterrence was identified as a paramount consideration, consistent with the weight given to it in the relevant appellate authorities.

On the question of concurrency, the Court accepted the submission that the sentences for the use of a carriage service and the possession offence should be wholly or substantially concurrent. The reasoning was that both offences arose from the same course of criminal conduct, and the sentence for one could encompass the criminality of the other, following the principle in R v XX (2009) 195 A Crim R 38.

The Court found special circumstances warranted in relation to the State offences. The offender's good prospects of rehabilitation, the fact that this was his first time in custody, and a mental health condition that would make imprisonment more onerous collectively justified a departure from the standard ratio between the non-parole period and the balance of the sentence.

For the production offence, the Court was not satisfied that a further term of imprisonment was justified. Having regard to the totality of the sentencing exercise, a good behaviour bond was imposed for that count rather than a custodial term.

Orders Made

  • Possess child abuse material (s 91H(2) Crimes Act NSW): 15 months imprisonment commencing 18 May 2018, with a non-parole period of 9 months expiring 17 February 2019; offender eligible for parole on that date; special circumstances found.
  • Use carriage service to access child pornography (Criminal Code (Cth)): 15 months imprisonment commencing 18 May 2018; offender to be released on 17 February 2019 after serving 9 months upon entering a recognisance of $100 with a condition of good behaviour for 6 months, expiring 17 August 2019.
  • Produce child abuse material (s 91H(2) Crimes Act NSW): No term of imprisonment imposed; good behaviour bond of 6 months from 18 May 2018 under s 9, with conditions to appear before the Court if called upon and to be of good behaviour; special circumstances found.
  • Forfeiture order made in relation to the devices.

Key Takeaways

  • An immediate custodial term is ordinarily warranted for child abuse material offences involving a carriage service, absent exceptional circumstances, consistent with the principles affirmed in R v De Leeuw and the line of appellate authority following it.
  • Where multiple offences arise from a single continuous course of conduct involving the same material, sentencing courts may impose wholly or substantially concurrent sentences so that one sentence encompasses the criminality of the related offending.
  • Special circumstances can be established by a combination of factors including first-time custody, a treatable mental health condition that increases the burden of imprisonment, and genuine prospects of rehabilitation, without any single factor being determinative.
  • A sentencing court may decline to impose a further custodial term for one offence in a series where the total sentence, viewed as a whole, adequately reflects the overall criminality, particularly where the totality principle supports restraint.
  • Cooperation with police, absence of prior convictions, remorse, and engagement with a rehabilitation program are relevant subjective factors, but do not displace the primacy of general deterrence in child abuse material sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.19 (use of carriage service to access child pornography)
- Crimes Act (NSW), s 91H(2) (possess and produce child abuse material); s 3A (purposes of sentencing); s 9 (good behaviour bonds)
- Crimes Act (Cth), Part 1B (sentencing of federal offenders); s 16B

Cases:
- R v De Leeuw [2015] NSWCCA 183
- R v XX (2009) 195 A Crim R 38
- Pearce v The Queen (1998) 194 CLR 610
- Xiao v R [2018] NSWCCA 4
- R v Freedman [2017] NSWCCA 201
- Burbridge v R [2016] NSWCCA 128
- Fitzgerald v R [2015] NSWCCA 266
- R v Porte [2015] NSWCCA 174
- Minehan v R [2010] NSWCCA 140
- DPP (Cth) v D'Alessandro [2010] VSCA 60
- R v Zamagias [2007] NSWCCA 17