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District Court 12 March 2020

R v Glenn

[2020] NSWDC 44

Sexual offences

Citation: R v Glenn [2020] NSWDC 44
Court: District Court of NSW
Date: 12 March 2020
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty to two charges: possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) and using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). The offending came to light following a search warrant executed by the NSW Joint Anti-Child Exploitation Team in November 2018, which resulted in the seizure of a mobile phone and a computer tower from the offender's residence.

The seized devices contained thousands of files of child pornography material. Nine video files were stored on the mobile phone, eight of which were classified at Category 4 on the Child Exploitation Tracking System (CETS) scale, representing penetrative sexual activity between adults and children. A Mega cloud storage link accessible via the phone contained 695 unique image files and 1,123 unique video files, with 371 classified at Category 4 and eight at Category 5.

The offender, a 34-year-old chef, had no prior criminal record for similar offending. He had engaged in approximately 21 counselling sessions with a specialist counsellor following his arrest, and offered evidence of remorse, family support, and progress in rehabilitation. Three further offences were placed on a schedule under s 16BA of the Crimes Act 1914 (Cth) to be taken into account on sentence.

Legal Issues

  • What was the objective seriousness of each offence on the CETS scale?
  • What weight should be given to general deterrence versus the offender's subjective circumstances, including remorse, rehabilitation, and personal hardship?
  • Whether a non-custodial sentence such as a Community Correction Order was available or appropriate for the State offence.
  • Whether special circumstances existed justifying a variation in the ratio of non-parole period to total sentence.
  • How to structure and accumulate the State and Commonwealth sentences consistently with totality principles.

Decision

Objective seriousness: The court assessed the Sequence 2 offence (possession of child abuse material) as falling below the mid-range of objective seriousness but within the upper part of the low range (at [73]). The Sequence 3 offence (using a carriage service to access child pornography material) was assessed as falling within the mid-range, and within the middle of that mid-range, reflecting the large volume of material, the depravity of the content, the involvement of children as young as four years old, and a protracted pattern of offending rather than isolated conduct (at [85]).

General deterrence and sentencing principles: The court confirmed that general deterrence is of paramount importance when sentencing for child pornography offences (at [75]). The court adopted the principle from R v Booth that possession of child pornography is a callous and predatory crime, and that each instance of access perpetuates the exploitation of children. The offender's good character was accorded little weight, consistent with established authority. The absence of a causal link between the offender's diagnosed anxiety and depression and his offending conduct also limited the mitigating value of those circumstances (at [80]).

Custodial sentence and Community Correction Order: The court rejected the submission that a Community Correction Order was appropriate for the State offence. Applying R v Porte, the court found that proceeding by way of a CCO would allow concepts of general deterrence and denunciation to "slip through almost without trace" (at [81]). The court was satisfied that no penalty other than imprisonment was warranted.

Discount, special circumstances, and totality: The offender received a 25% utilitarian discount for his early guilty plea across both offences (at [77], [94]). Special circumstances were found to exist for the Sequence 2 sentence, given that it was the offender's first time in custody, his need for ongoing treatment for anxiety and depression, and the importance of continuing his counselling (at [82]). Applying totality principles, the sentences were made partly cumulative to produce an effective total sentence of 2 years and 8 months with a non-parole period of 1 year and 8 months.

Orders Made

  • Convicted of possessing child abuse material (s 91H(2) Crimes Act 1900 (NSW)) and using a carriage service to access child pornography material (s 474.19(1)(a)(i) Criminal Code 1995 (Cth)).
  • Sequence 2: 9 months imprisonment with a non-parole period of 5 months (commencing 12 March 2020, expiring 11 August 2020); balance of term 4 months, expiring 11 December 2020.
  • Sequence 3: 2 years and 3 months imprisonment commencing 12 August 2020, expiring 11 November 2022.
  • Recognisance Release Order for Sequence 3: release after 1 year and 3 months (11 November 2021) on security of $500 for a period of 1 year.
  • Effective total sentence: 2 years and 8 months imprisonment with a non-parole period of 1 year and 8 months.
  • Three s 16BA schedule offences taken into account on sentence for Sequence 3.
  • Forfeiture of the Google Pixel 2 mobile phone and LG Hunt Key computer tower to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth).

Key Takeaways

  • General deterrence is the paramount sentencing consideration for child pornography offences, and the courts will give it precedence over an offender's subjective circumstances, including remorse, rehabilitation, and personal hardship (at [75]).
  • A Community Correction Order is unlikely to be an appropriate sentencing outcome for serious child abuse material offences; the District Court held that such an order would fail to give adequate effect to general deterrence and denunciation (at [81]).
  • Under the CETS scale framework applied in this decision, even material classified at Categories 1 and 2 possesses significant gravity, meaning the proportion of lower-category material does not automatically produce a low range assessment of objective seriousness (at [84], [88]).
  • The absence of a medically established causal link between an offender's mental health conditions and the offending conduct limits the mitigating weight that can be attributed to those conditions in the sentencing process (at [80]).
  • Where an offender is sentenced for both a State and a Commonwealth offence, the sentences must be structured so that no Commonwealth sentence commences after the end of the State sentence, and totality requires careful calibration of any accumulation to achieve a result that is just and not crushing (at [103]-[104]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code 1995 (Cth)

Cases
- Baden v R [2020] NSWCCA 23
- DPP v Swingler [2017] VSCA 305
- Fitzgerald v R [2015] NSWCCA 266
- Hoskins v R [2016] NSWCCA 157
- R v Booth [2009] NSWCCA 89
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v De Leeuw [2015] NSWCCA 183
- R v Edwards (1996) 90 ACrimR 510
- R v Gent [2005] NSWCCA 370
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174
- Xiao v R [2018] NSWCCA 4