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District Court 22 November 2019

R v Vouden

[2019] NSWDC 779

Sexual offences
CRIMINAL LAW SENTENCE REPEATED ACCESS TO MATERIAL POSSESS CHILD ABUSE MATERIAL OFFENDERS MENTAL CONDITION AFFECTED MOTORCYCLE ACCIDENT

Citation: R v Vouden [2019] NSWDC 779
Court: District Court of New South Wales
Date: 22 November 2019
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to four offences involving child abuse material across two separate periods of offending. The first period ran from October to November 2015, when he used a carriage service to access child pornography on an Apple iPad Mini (Sequence 4) and possessed child abuse material on that device and a mobile phone (Sequence 5). The second period arose in late December 2018, when police found further child abuse material on a mobile phone and a Samsung tablet seized from him (Sequences 1 and 2).

The material across all devices predominantly depicted female children aged between approximately five and sixteen years, either undressed or clothed in ways that accentuated their genital areas. None of the images depicted physical abuse, torture, or children engaged in sexual activity. The devices also contained adult pornography.

The second instance of offending occurred while the offender was on bail for the first. The offender attributed his conduct to drug abuse. Relevant to the sentencing exercise, he had suffered a traumatic brain injury in a motorcycle accident that produced lasting neurological problems requiring ongoing treatment.

  • What was the appropriate sentence for each offence, having regard to objective seriousness, the offender's personal circumstances, and the totality principle?
  • What weight should be given to the offender's traumatic brain injury in assessing the severity and conditions of any custodial sentence?
  • What discount was appropriate for the pleas of guilty, and was there sufficient remorse to treat that as a mitigating factor?
  • How should State and Commonwealth sentences be structured to reflect appropriate concurrency and accumulation?

Decision

The District Court placed each offence in the lower range of objective seriousness. Both the Crown and defence agreed on this characterisation for Sequences 1 and 2 given the relatively low number of files. For Sequences 4 and 5, the court acknowledged the repeated website access (including 832 visits to a single album page) and the volume of approximately 1,000 images on the iPad, but accepted that the images did not involve the most serious categories of abuse material and that there was no dissemination.

The offender's traumatic brain injury was a significant factor in the sentencing exercise. The court accepted that his neurological condition made a custodial sentence more onerous than it would be for a person in ordinary health. This was treated as a mitigating factor going to the conditions of imprisonment rather than to culpability.

The court applied a 25 per cent discount to the sentences to reflect the utilitarian value of the guilty pleas, consistent with the approach in R v Thomson and Houlton. However, the court found only limited remorse on the offender's part, noting that his expressed explanation of drug use fell well short of genuine insight into the harm caused to the children depicted in the material.

Both the Crown and defence noted the overlap in material between Sequences 4 and 5, and between Sequences 1 and 2. The court applied the principles from R v Porte regarding concurrency and accumulation between State and Commonwealth sentences, arriving at a structured sentencing arrangement designed to reflect totality without double punishment.

Orders Made

  • State offences (aggregate sentence): 12 months imprisonment commencing 28 December 2018, expiring 27 December 2019. No non-parole period was set.
  • Sequence 5: 9 months imprisonment (component)
  • Sequence 1: 4 months imprisonment (component)
  • Sequence 2: 4 months imprisonment (component)
  • Commonwealth offence (Sequence 4): 18 months imprisonment commencing 28 June 2019, expiring 27 December 2020.
  • The offender was to be released on a recognizance release order in the sum of $100 from 27 January 2020.

Key Takeaways

  • The District Court treated a traumatic brain injury causing lasting neurological impairment as a mitigating factor at sentencing, on the basis that it rendered imprisonment more burdensome than it would be for an offender in ordinary health.
  • A 25 per cent discount for guilty pleas was applied in accordance with the principles in R v Thomson and Houlton, reflecting utilitarian value rather than remorse, where remorse was assessed as limited.
  • Where child abuse material does not depict torture, physical abuse, or active sexual activity, and the offender did not disseminate the material, the offending may fall toward the lower range of objective seriousness, though this remains a fact-specific assessment.
  • Offending committed while on bail for similar charges did not automatically aggravate the sentence in this case, as no submission to that effect was advanced by the Crown.
  • Under R v Porte, the principles governing concurrency and accumulation between State and Commonwealth sentences require careful attention to ensure the overall sentencing package reflects totality.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.19(1) (use of carriage service to access child pornography)
- Crimes Act 1900 (NSW), s 91H(2) (possess child abuse material)
- Crimes Act 1914 (Cth), s 16A (sentencing of federal offenders)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Hutchinson [2018] NSWCCA 152
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- R v Porte [2015] NSWCCA 174