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District Court 15 June 2020

R v Ebejer

[2020] NSWDC 473

Sexual offences
CRIME P OSSESS CHILD ABUSE MATERIAL RELEVANT FACTORS ON SENTENCING VICTIM AN ASSUMED ONLINE IDENTITY YOUNG IMMATURE OFFENDER UNDIAGNOSED MENTAL CONDITIONS

Citation: R v Ebejer [2020] NSWDC 473
Court: District Court of New South Wales
Date: 15 June 2020
Judge: Haesler SC DCJ

Background

The offender, a 19-year-old male, came under police investigation in November 2018 after a police officer using an Assumed Online Identity (AOI) sent him a friend request on Facebook. The AOI represented itself as a 14-year-old girl. Over several weeks, the offender engaged in a series of online conversations across Facebook Messenger, Skype, and related platforms, during which he sent sexually explicit images and videos of himself, transmitted child pornography material, and repeatedly sought to arrange a meeting for sexual activity.

When police arrested and searched the offender in January 2019, child abuse material was found across five of his electronic devices. The material totalled 292 items in Interpol Baseline Category 1 (depicting real prepubescent children in or witnessing sexual acts) and 112 items in Category 2 (other child abuse material illegal in New South Wales). The offender made admissions during the arrest process and ultimately pleaded guilty to six offences, three of which came before the court for sentencing on 15 June 2020.

The three offences sentenced were: possessing child abuse material (s 91H(2) Crimes Act 1900 (NSW)); using a carriage service to procure a person apparently under 16 for sexual activity (s 474.26(1) Criminal Code Act 1995 (Cth)); and using a carriage service to transmit child pornography material (s 474.19(1)(iii) Criminal Code Act 1995 (Cth)). Three further Commonwealth offences were taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth).

  • What was the objective seriousness of the offences, given that the apparent victim was a police AOI rather than a real child?
  • Whether the offender's personal moral culpability was reduced by the involvement of an AOI.
  • What weight should be given to the offender's youth, immaturity, undiagnosed mental health conditions, and strong prosocial support network in mitigation.
  • Whether a custodial sentence was necessary, having regard to general deterrence and community protection, or whether a non-custodial outcome was appropriate.
  • How to structure the sentence across the NSW state offence and the two Commonwealth offences, including the application of the Commonwealth sentencing regime.

Decision

His Honour found that the objective seriousness of the procuring and transmission offences was reduced, to a degree, by the fact that the apparent victim was an AOI rather than a real child. No actual child was harmed during the course of these offences. The court also noted that it was the AOI, rather than the offender, who initiated the original contact and later renewed conversation. However, consistent with the approach in Gajjar v R (2008) 192 ACR 76, the offender's moral culpability was held to be no less than if a real child had been involved, because he believed throughout that he was communicating with a 14-year-old girl.

On the child abuse material offence, His Honour emphasised that general deterrence is a paramount consideration in such matters, noting the international nature of the child pornography problem and the harm caused to children depicted in such material. While the number of images was accepted as relatively limited compared with many such cases, the majority fell within the most serious category. There was no suggestion the offender had created the material or that the offending involved significant planning or sophistication.

In mitigation, the court placed considerable weight on the offender's youth and social immaturity, his undiagnosed mental health conditions, and the strong prosocial supports available to him, including family. His Honour accepted that the offender had a limited appreciation of real human interaction and appeared to regard his online conduct as normal. His early plea of guilty and admissions to police were also taken into account.

Ultimately, the court determined that a non-custodial order was appropriate for the NSW offence, and structured the Commonwealth sentences with an immediate release on recognizance. His Honour made clear that the leniency extended on this occasion reflected the specific mitigating circumstances and would not be available again.

Orders Made

  • Possess child abuse material (Sequence 5, NSW offence): Convicted. Community Corrections Order for three years, with conditions including supervision by Community Corrections NSW, reporting to the Wollongong office within seven days, good behaviour, and participation in psychological treatment programs and risk assessment as directed.
  • Use carriage service to procure a person apparently under 16 for sexual activity (Sequence 6, Commonwealth offence, incorporating Sequence 4, 7 and 8 on the s 16BA schedule): Convicted. Sentenced to imprisonment for one year and six months, commencing 15 June 2020.
  • Use carriage service to transmit child pornography material (Sequence 9, Commonwealth offence): Convicted. Sentenced to imprisonment for nine months, commencing 14 June 2021.
  • Total accumulated sentence: one year and nine months, expiring 14 March 2022.
  • Immediate release directed upon the offender entering a recognizance under s 21B Crimes Act 1914 (Cth) in the sum of $400, with conditions including: good behaviour for two years; acceptance of supervision by Corrective Services NSW for two years; reporting to Wollongong Community Corrections within seven days; compliance with treatment programs; and no interstate or overseas travel without written permission from the parole officer.
  • Forfeiture order made under s 23ZD in accordance with the form filed by the CDPP.
  • The offender was noted to be a registrable person under the Child Protection (Offenders Registration) Act 2000, with registration and reporting obligations arising automatically.

Key Takeaways

  • The District Court confirmed that an offender's moral culpability for online grooming and procuring offences is not diminished merely because the apparent victim was a police AOI rather than a real child, provided the offender believed they were communicating with a child. This is consistent with the approach in Gajjar v R.
  • Where no actual child is harmed because the "victim" is an undercover operative, the objective seriousness of the conduct is nonetheless assessed as serious, though the absence of real-world harm to a child remains a relevant factor in calibrating that seriousness.
  • General deterrence is a paramount sentencing consideration for child pornography and online child exploitation offences, reflecting both the international scope of the problem and the harm caused to children depicted in such material.
  • Youth, immaturity, undiagnosed mental health conditions, and strong prosocial support can operate in mitigation and, in appropriate circumstances, support a non-custodial outcome even for serious child exploitation offences, though the court's language made clear such outcomes are not the norm.
  • Under the Commonwealth sentencing framework, the court may impose a recognizance release order allowing immediate release from custody, subject to conditions including supervision, good behaviour, and participation in treatment programs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code Act 1995 (Cth), ss 474.19(1)(iii), 474.26(1), 474.27A
- Crimes Act 1914 (Cth), ss 16BA, 20(1)(b), 21B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Gajjar v R (2008) 192 ACR 76
- Tector v R [2008] NSWCCA 151; 186 ACR 133
- Porte v R [2015] NSWCCA 174
- Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477
- R v Hutchinson [2018] NSWCCA 152
- R v Verdins (2007) 16 VR 269
- Markarian v The Queen (2005) 228 CLR 357
- Attorney General's Application No. 1 (2002) 56 NSWLR
- Dennison v R [2011] NSWCCA 114
- KT v R (2008) 182 ACR 571
- R v Lamella [2014] NSWCCA 122
- R v