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District Court 24 January 2020

R v Mirigliani

[2020] NSWDC 21

Sexual offences

Citation: R v Mirigliani [2020] NSWDC 21
Court: District Court of New South Wales
Date: 24 January 2020
Judge: Hatzistergos DCJ

Background

The offender, Matthew Mirigliani, pleaded guilty to three offences involving child exploitation material (CEM). All offending took place at his home in Earlwood, New South Wales, between October 2017 and December 2018. Australian Federal Police executed a search warrant at his residence in December 2018 and located CEM across three devices: a Samsung tablet, a Samsung Galaxy Note, and a MicroSD card.

The offending spanned possession, transmission to himself via a cloud storage platform, and transmission to another person via the messaging application KIK. The material ranged from Category 1 to Category 5 on the CETS (Child Exploitation Tracking System) scale, with the most serious examples including images and videos depicting penetrative sexual activity and sadism involving pre-pubescent children and infants.

The offender co-operated with police, disclosed the location of the devices, admitted knowledge of the material, and participated in a record of interview. He provided a letter of apology and gave an account of how his exposure to CEM began when he was a teenager and escalated over time into a compulsion.

  • Whether each count fell within the low, mid, or high range of objective seriousness, using the CETS scale categories as a reference point
  • Whether the offender's anxiety constituted a mental health condition sufficient to reduce moral culpability
  • Whether the offender's caring responsibilities for a family member constituted a mitigating factor
  • How to balance the guilty plea, remorse, and contrition against the objective gravity of the offending
  • How to structure sentences for concurrent state and Commonwealth offences to achieve an appropriate overall sentence

Decision

Hatzistergos DCJ assessed the objective seriousness of each count by reference to the CETS scale categories, the volume of material, and the nature of the offender's conduct. Count 1 (possession) was placed in the mid range of objective seriousness given the volume of material across multiple devices and its spread across Categories 1 to 5. Count 3 (transmission to another person) and Count 6 (transmission to himself) were placed in the low to mid range, reflecting that the transmission was of a smaller number of files but still included Category 4 and 5 material.

On the question of anxiety as a mitigating factor, the court declined to find reduced moral culpability. While the offender's anxiety was acknowledged, the court found it did not rise to the level of a recognised mental health condition significantly causally connected to the offending in a way that would diminish culpability under the relevant authorities. The submission was described as having been faintly pressed, and the court was not persuaded by it.

The court accepted the offender's remorse and contrition as genuine, supported by his co-operation with police, early guilty plea, and letter of apology. These factors were given weight in mitigation. The offender was a first offender with no prior criminal record, which also operated in his favour.

The caring responsibilities the offender had for a family member were considered but carried limited weight as a mitigating factor in the circumstances. The court took into account the principles of totality and concurrency in structuring the final sentence, and the requirement under both Commonwealth and State sentencing legislation to consider all relevant factors including general deterrence and specific deterrence, given the serious nature of offences involving the sexual exploitation of children.

Orders Made

• Count 1: 10 months imprisonment commencing 31 January 2020 and expiring on 30 November 2020, with a balance of 8 months commencing 1 December 2020 and expiring on 30 July 2021, at which time the offender becomes subject to a statutory parole order

• Count 3: 6 months imprisonment commencing 31 October 2020 and expiring on 30 April 2021

• Count 6: 15 months imprisonment commencing 1 March 2021 and expiring on 31 May 2022

• Offender to be released subject to recognisance release from 30 July 2021 upon giving surety (without security) in the sum of $500 on condition that:
- The offender be of good behaviour for the balance of the term of the sentence
- The offender accept the supervision of Community Corrections NSW

Key Takeaways

  • The District Court applied the CETS scale as a structured framework for assessing the objective seriousness of CEM offences, with the volume of material, its spread across categories, and the offender's active conduct all informing placement within the sentencing range.
  • Anxiety alone, without evidence establishing it as a recognised mental health condition with a significant causal connection to the offending, will not readily attract a finding of reduced moral culpability under the relevant sentencing principles.
  • A genuine early guilty plea, co-operation with police at the time of arrest, and demonstrated remorse through a letter of apology each operated as mitigating factors, consistent with the approach taken in comparable CEM sentencing decisions.
  • Where an offender faces concurrent State and Commonwealth CEM offences, the sentencing court must apply both Commonwealth (Crimes Act 1914 (Cth) s 16A) and State (Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A) sentencing criteria and structure the overall sentence in accordance with totality principles.
  • Caring responsibilities for a family member may be raised in mitigation but, as this decision illustrates, such a factor carries limited independent weight and will not substantially reduce an otherwise appropriate sentence for serious child exploitation offending.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), s 91H(2)
  • Criminal Code Act 1995 (Cth), s 474.19(1)
  • Crimes Act 1914 (Cth), Pt 1B, ss 16A, 17A, 19AC(1), 20
  • Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, ss 3A, 5, 21A, 23
  • Crimes (Administration of Sentences) Act 1999 (NSW), s 158

Cases