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District Court 29 April 2019

R v Roberts

[2019] NSWDC 282

Sexual offences
SENTENCE

Citation: R v Roberts [2019] NSWDC 282
Court: District Court of New South Wales
Date: 29 April 2019
Judge(s): Priestley SC DCJ

Background

The offender pleaded guilty to four offences involving child abuse material: two Commonwealth offences of using a carriage service to transmit and access child pornography (under s 474.19(1) of the Commonwealth Criminal Code), one aggravated Commonwealth offence of committing those acts on three or more occasions involving two or more people (under s 474.24A(1)), and one State offence of possessing child abuse material (under s 91H(2) of the Crimes Act 1900 (NSW)).

The offending occurred between November 2017 and January 2018. The offender used a messaging application called "Kik" to transmit and receive child abuse material, including images and videos classified at the most serious levels of the Child Exploitation Tracking System (categories 3, 4, and 5, covering non-penetrative and penetrative sexual acts involving children). He was also a member of two group chats with up to 50 members each, through which he both transmitted and accessed material.

A large volume of child abuse material was also found stored across six of the offender's personal electronic devices, including an iPod touch, iMac, three Samsung phones, and an iPhone. The total number of identified victims across all devices exceeded 500. The offender conceded, during the sentencing hearing, that the material was of the most depraved and degenerate kind.

  • What were the appropriate individual sentences for each of the four offences, having regard to objective seriousness, maximum penalties, and relevant sentencing principles?
  • How should the sentences be structured, including the degree of accumulation or concurrency between them?
  • What non-parole period applied to the Commonwealth offences?
  • What orders were warranted for the forfeiture of the electronic devices on which the material was stored?

Decision

Priestley SC DCJ sentenced the offender on all four counts, structuring the sentences so that they accumulated upon each other in sequence. The sentencing judge noted the significant volume and gravity of the material across all offences, with the offending involving hundreds of identified victims, group participation, and material at the highest severity classifications. The judge accepted the offender's concession that the content was of the most depraved kind, which meant the court did not need to view sample material directly.

The four sentences were imposed as follows: 18 months for the State possession offence, 18 months for the accessing offence, two years for the transmitting offence, and two years for the aggravated s 474.24A offence. Each sentence was ordered to commence upon the expiry of the one before it, creating a fully accumulated sequence running from 29 April 2019 to 28 October 2023.

For the three Commonwealth offences, the court imposed a single non-parole period of two years and three months, commencing on 29 October 2019 (the date the first Commonwealth sentence began). The court also ordered the forfeiture of all six electronic devices to the Commonwealth upon the application of the Director of Public Prosecutions, pursuant to s 23ZD of the Crimes Act 1914 (Cth).

Orders Made

  • The offender was convicted and sentenced on each of the four counts:
  • State possession offence (s 91H(2) Crimes Act 1900 (NSW)): Fixed term of 18 months, commencing 29 April 2019, expiring 28 October 2020
  • Accessing offence (s 474.19(1) Criminal Code (Cth)): 18 months, commencing 29 October 2019, expiring 28 April 2021
  • Transmitting offence (s 474.19(1) Criminal Code (Cth)): Two years, commencing 29 October 2020, expiring 28 October 2022
  • Aggravated offence (s 474.24A(1) Criminal Code (Cth)): Two years, commencing 29 October 2021, expiring 28 October 2023
  • A single non-parole period of two years and three months imposed for the Commonwealth offences, commencing 29 October 2019 and expiring 28 January 2022
  • The following electronic devices were forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth):
  • Apple iPod touch (serial number CCQTF0ZU)
  • iMac computer (serial number C02FIC0689HJQ)
  • Samsung S6 mobile phone (IMEI 3590930551165080/06)
  • Samsung A-plus (IMEI 3543586868361515)
  • Samsung Note 3 mobile phone (IMEI 659093/05/516508/0)
  • Apple iPhone (IMEI 35698106142522)

Key Takeaways

  • The District Court treated full accumulation of sentences as appropriate where multiple distinct offences involved different conduct, different platforms, and different legal provisions, even within a broadly connected course of offending.
  • Where an offender concedes that child abuse material is of the most depraved kind, that concession can be sufficient to enable the sentencing court to assess objective gravity without needing to view the material directly.
  • Under s 474.24A(1) of the Commonwealth Criminal Code, the aggravated offence of committing a carriage service child pornography offence on three or more occasions involving two or more people carries a maximum term of 25 years imprisonment, reflecting Parliament's recognition of organised or repeat conduct as substantially more serious.
  • A single non-parole period may be imposed across multiple Commonwealth sentences where those sentences accumulate, with the non-parole period commencing from the start of the first Commonwealth sentence.
  • Forfeiture of electronic devices used to store or transmit child abuse material was ordered as a matter of course upon the prosecution's application under the relevant Commonwealth legislation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Commonwealth Criminal Code, ss 474.19(1), 474.24A(1)
- Crimes Act 1914 (Cth), s 23ZD
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Fitzgerald v R [2015] NSWCCA 266
- Lyons v R [2017] NSWCCA 204
- Markarian v The Queen (2005) 228 CLR 357
- Minehan v R [2010] NSWCCA 140
- Mouscas v R [2008] NSWCCA 181
- R v Gent (2005) 162 A Crim R 29
- R v Linardon [2014] NSWCCA 247
- R v Martin [2014] NSWCCA 283
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Weininger v The Queen (2003) 112 CLR 629
- Xiao v R [2018] NSWCCA 4