R v Rampton [2020] NSWDC 571

Citation: R v Rampton [2020] NSWDC 571
Court: District Court of New South Wales
Date: 3 July 2020
Judge: Haesler SC DCJ

Background

The offender, a 31-year-old man, was sentenced for two offences: possessing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), and using a carriage service to access child pornographic material under s 474.19 of the Criminal Code 1995 (Cth). He was arrested on 3 April 2019 after police conducted a mandatory inspection visit at his home, as required under the Child Protection Offenders Registration Act 2000 (NSW). He had been placed on the Child Protection Register in February 2018 following prior convictions for similar offences, for which he had previously served a gaol term.

During the inspection, police examined the offender's mobile phone and found 22 images and two videos of child abuse material. They also identified that he had accessed Twitter accounts known for disseminating such material, with screenshots showing access on 1 April 2019. The offender cooperated with police and made admissions about joining and subsequently leaving those accounts.

The offender entered a guilty plea at the earliest opportunity. The delay in bringing the matter to court was not of his making.

Legal Issues

What was the appropriate sentence for each offence, having regard to both State and Commonwealth sentencing principles?
How should prior convictions for similar offences affect the sentence?
What weight should be given to the offender's mental health conditions, the availability of treatment, and the strength of his prosocial support network?
Were the INTERPOL Baseline Classifications sufficient to assess the objective seriousness of the material, or was direct judicial inspection of the material necessary?
How should the sentencing structure balance punishment, deterrence, community protection, and rehabilitation, particularly through the use of a recognizance release order for the federal offence?

Decision

Objective seriousness and the INTERPOL classification problem

Haesler SC DCJ found that the statement of agreed facts provided insufficient detail for the court to assess the seriousness of the material from written descriptions alone. The judge observed that the INTERPOL Baseline Classification system, which uses only two categories, may assist police in cross-jurisdictional communications but does not provide courts with enough information to make an objective assessment of seriousness. This effectively compelled the judge to view the material personally, a course the court noted was regrettable but necessary in the circumstances. Having viewed the material, the court assessed it as clearly constituting child abuse material involving the exploitation of real children, though the quantity was low compared with many other cases.

Aggravating factors and the significance of the prior record

The court identified the offender's prior convictions and registration as significant aggravating factors. Relying on Veen v The Queen (No 2) (1988) 164 CLR 465, Haesler SC DCJ held that while criminal history cannot produce a sentence disproportionate to the gravity of the current offences, the history demonstrated that these offences were not uncharacteristic aberrations and warranted additional emphasis on retribution, deterrence, and community protection. The court also noted the offender's use of Twitter accounts as evidence of willingness to associate with networks known for distributing child abuse material, though there was no evidence of direct communication with other users.

Subjective factors and the structure of the sentences

The offender received a 25% discount for his early guilty plea across both sentences. The court accepted there was some evidence of remorse, though it acknowledged this was tempered by the fact the offender was caught in the context of mandatory monitoring. Mental health conditions were taken into account, and the court found that the appropriate treatment was better delivered in the community than in custody, given that the sentence length would not permit access to relevant custodial programs. The offender's strong prosocial support was also treated as a mitigating factor.

Sentencing structure

For the NSW offence, the court imposed a sentence of imprisonment with a non-parole period reflecting time already served. For the Commonwealth offence, rather than imposing a straightforward custodial sentence, the court used a recognizance release order under s 21B of the Crimes Act 1914 (Cth) to facilitate early supervised release into the community. This structure was intended to maximise the period of supervision and monitoring, which the court regarded as central to community protection in this case.

Orders Made

NSW offence (s 91H(2) Crimes Act 1900): Conviction entered. Sentence of 1 year and 10 months imprisonment, commencing 3 April 2019, with a non-parole period of 1 year and 4 months (expiring 2 August 2020); total sentence expiring 2 February 2021.
Commonwealth offence (s 474.19 Criminal Code 1995): Conviction entered. Sentence of 1 year and 10 months imprisonment, commencing 3 June 2020 and expiring 2 April 2022, with release directed after 4 months (on 2 October 2020) upon the offender entering a recognizance under s 21B of the Crimes Act 1914 (Cth) in the sum of $100, subject to conditions including: good behaviour for 2 years; appearing for sentence if called upon for any breach; accepting supervision and guidance from Community Services NSW (including compliance with a Mental Health Plan and psychological treatment); and reporting to Community Services Wollongong within 7 days of release.
The offender was reminded of continuing obligations as a registrable person under the Child Protection Register, separate from the sentences imposed.
Forfeiture order: The offender's LG mobile phone (serial number 507KPSL00706, IMEI 352514070070069) was ordered forfeited pursuant to s 23ZD of the Crimes Act 1914 (Cth) on the application of the Commonwealth Director of Public Prosecutions.

Key Takeaways

The District Court held that the INTERPOL Baseline Classification system, using only two categories, was insufficient to enable a court to assess the objective seriousness of child abuse material from classification alone, and that inadequate written descriptions in agreed facts may compel a judge to personally view the material.
General deterrence remains a paramount sentencing principle in child abuse material offences, reflecting the role of consumers in sustaining the market for material that involves the real exploitation of children.
Prior convictions for similar offences, combined with registration on the Child Protection Register, constitute significant aggravating factors that justify greater emphasis on retribution, deterrence, and community protection, within the constraint that the sentence must remain proportionate to the current offending.
Where custodial treatment programs are unavailable due to the length of the sentence, a court may structure the sentence to favour supervised community release, thereby maximising monitoring over the offender for a longer period.
Under HT v The Queen [2019] HCA 40, procedural fairness ordinarily requires that the parties, including the defence, have the opportunity to view child abuse material that a court will assess; however, where the defence declines that opportunity having been sufficiently instructed, no practical injustice necessarily follows.

Legislation and Cases Referenced

Legislation
- Child Protection Offenders Registration Act 2000 (NSW), s 16C
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Code 1995 (Cth), s 474.19
- Crimes Act 1914 (Cth), ss 16A, 21B, 23ZD

Cases
- Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477
- DPP v De La Rosa [2010] NSWCCA 155
- HT v R [2019] HCA 40
- Minehan v R [2010] NSWCCA 140
- R v Booth [2009] NSWCCA 89
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174
- R v Verdins [2007] VSCA 102; (2007) 16 VR 269
- Veen v The Queen (No 2) (1988