Citation: R v Sekulic [2020] NSWDC 209
Court: District Court of New South Wales
Date: 21 February 2020
Judge: M L Williams SC DCJ
Background
The offender, born in 1982, appeared for sentence after pleading guilty to two offences: possessing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), carrying a maximum of 10 years imprisonment; and using a carriage service to make child pornography material available under s 474.19 of the Criminal Code 1995 (Cth), carrying a maximum of 15 years imprisonment. Both offences were uncovered in September 2018 when police attended the offender's premises during an investigation into paedophilia file-sharing platforms.
Police found two hard drives and an iPhone containing hundreds of thousands of files. Of a sample reviewed from the hard drives, a very high proportion was classified as child abuse material across multiple severity categories. The victims were predominantly prepubescent females aged between five and thirteen. The offender had amassed and stored this material over approximately three years.
The offender had no prior criminal history, had worked as a manual labourer, and had a modest educational background. Psychiatric and psychological assessments identified social anxiety disorder, sexual dysfunction disorder, and persistent depressive disorder, with clinicians concluding these conditions contributed causally to the offending. The offender had begun therapy prior to sentencing and was assessed as a low risk of re-offending.
Legal Issues
- What sentences were appropriate for the NSW and Commonwealth offences, taking into account their differing objective seriousness?
- What weight should be given to the offender's mental health conditions as mitigating factors, particularly in relation to specific deterrence and prospects of rehabilitation?
- Whether a finding of special circumstances was warranted, given the offender's mental health needs, his first time in custody, and the likelihood of protective custody conditions?
- How should the sentences be structured to reflect the requirement for partial accumulation across the state and federal offences?
Decision
The District Court assessed the NSW possession offence as above the mid-range of objective seriousness, though not in the high range as the Crown submitted. The quantity of material was vast, the victims numerous and predominantly very young, and the collecting activity extended over three years. The Commonwealth offence, involving the seeding of two video files via a peer-to-peer network, was assessed as low in objective seriousness.
The court found the offender's mental health conditions and their causal link to the offending reduced the weight to be given to specific deterrence, while acknowledging that general deterrence remains of fundamental importance for offences of this type given their increasing prevalence. The offender's early guilty plea attracted a 25% discount on both counts. His recognition of the wrongfulness of his conduct, low recidivism risk, and engagement with therapy were accepted as genuine mitigating factors supporting good prospects of rehabilitation.
The court accepted that special circumstances existed, citing the offender's first time in custody, the established need for ongoing treatment, and the common knowledge that such offenders are typically held in protective custody, making imprisonment more onerous than usual. The court structured the sentences with a degree of accumulation, staggering the commencement dates of the state and federal terms. The effective non-parole period across both sentences was 11 months.
Orders Made
NSW Offence: Possess child abuse material (s 91H(2) Crimes Act 1900)
- Convicted
- Sentence of 20 months imprisonment, commencing 20 March 2020
- Non-parole period of 10 months, expiring 20 January 2021
- Special circumstances found
Commonwealth Offence: Use carriage service to make available child pornography material (s 474.19 Criminal Code 1995 (Cth))
- Convicted
- Sentence of 12 months imprisonment, commencing 21 February 2020
- Released after 7 months on a recognisance of $100, subject to conditions including:
- Good behaviour for 1 year
- Supervision and guidance by Community Corrective Services, including compliance with directions to undertake therapy, treatment, or counselling
Forfeiture orders made pursuant to Short Minutes of Order under both the Crimes Act 1914 (Cth) and the Confiscation of Proceeds of Crime Act 1989 (NSW).
Key Takeaways
- General deterrence is of fundamental importance when sentencing for child abuse material offences, given their increasing prevalence, even where the individual offender presents with significant mitigating factors.
- A causal link between diagnosed mental health conditions and offending behaviour can reduce the emphasis placed on specific deterrence, and may support a finding that prospects of rehabilitation are good.
- Special circumstances were established where the offender was a first-time prisoner with ongoing mental health treatment needs, and where incarceration in protective custody would make imprisonment materially more burdensome than for the general prison population.
- The District Court treated the NSW possession offence as the more serious of the two charges, noting the court was not bound by the Crown's characterisation of objective seriousness and ultimately assessed it below the high range despite the scale of the material involved.
- Where an offender pleads guilty at an early opportunity, a 25% utilitarian discount applies to both NSW and Commonwealth charges, and partial accumulation of sentences can be achieved by staggering commencement dates rather than imposing wholly concurrent or wholly cumulative terms.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code 1995 (Cth), s 474.19
- Crimes Act 1914 (Cth), s 20(1)(b)
- Confiscation of Proceeds of Crime Act 1989 (NSW)
Cases
- Imbornone v R [2017] NSWCCA 144
- R v Qutami (2001) 127 A Crim R 369
- R v De Leeuw [2015] NSWCCA 183
- R v Porte [2015] NSWCCA 174
- R v Martin [2014] NSWCCA 283
- Mouscas v R [2008] NSWCCA 181