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District Court 22 January 2020

R v Buchanan

[2020] NSWDC 6

Sexual offencesFirearms & weaponsPublic order & justice offences
CRIME SENTENCE DISTRIBUTION OF CHILD ABUSE IMAGES NUMBER OF IMAGES RELIANCE ON PSYCHOLOGICAL ISSUES REMORSE

Citation: R v Buchanan [2020] NSWDC 6
Court: District Court of New South Wales
Date: 22 January 2020
Judge: H. L. Syme DCJ

Background

The offender pleaded guilty to three offences arising from his arrest on 1 January 2019 in Surry Hills. Police found a torch-style device combining an electrical stun device (Taser) in a vehicle he was driving. A subsequent search of his mobile phone revealed he had registered with an online dating application without notifying police, in breach of his obligations as a registered child protection offender. The phone search also uncovered the messaging application KIK, through which he had distributed child abuse material the previous day.

On 31 December 2018, the offender had joined a group chat on KIK dedicated to sharing child sexual abuse material. Upon joining, he forwarded a link to a file-sharing service containing a folder of 619 separate images and videos, totalling 7.51 GB in size. The material depicted real children, some as young as five years of age, engaged in serious sexual acts. The offender's apparent motivation was to gain access to further material of the same kind by sharing his own.

The offender also faced breach proceedings for three separate bond matters involving possession of prohibited drugs, arising from orders made approximately two weeks before the commission of the principal offences. He had been in continuous custody since 1 January 2019.

  • The appropriate objective seriousness of each of the three principal offences
  • Whether the offender's psychological condition (diagnosed paedophilic disorder) reduced his moral culpability for the child abuse material dissemination offence
  • How personal circumstances, remorse, and plea of guilty should be weighed in mitigation
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • The appropriate aggregate sentence across all matters, including the breach of bond proceedings

Decision

The District Court assessed the weapons offence as below mid-range seriousness toward the lower end of the scale. Although the offender initially denied knowing the device was a Taser, the court found he was at best wilfully blind to that fact. The court identified specific and general deterrence, and community protection, as strong sentencing considerations, noting the legislative standard non-parole period of five years as a guideline for this type of offence.

The failure to report a newly registered social networking and messaging application was characterised as a serious and complete breach of a specific legal obligation. The offender had the dating application on his phone for approximately two months before police discovered it, despite a 14-day reporting requirement. The court placed this offence below mid-range seriousness but not at the lowest end, particularly noting the significance of an online dating application given the nature of the offences for which he was originally placed on the register.

For the dissemination offence, the court applied the factors identified in Minehan v R for assessing objective seriousness of child pornography offences. The court found several factors elevated seriousness: actual children were used in the material's creation; 619 images and videos constituted a significant volume; dissemination into a wider group increased harm; and the offender's purpose of obtaining further material in return offered no mitigation. The court applied Muldrock v The Queen to distinguish between objective seriousness (assessed without reference to personal characteristics) and moral culpability. While the offender's diagnosed paedophilic disorder could potentially reduce moral culpability, the court found it did not reduce the objective seriousness of the conduct.

The court made a limited finding of special circumstances to allow for a meaningful period of community supervision following release, noting the offender would also remain subject to ongoing reporting requirements under the Child Protection (Offenders Registration) Act. An aggregate sentence was imposed across all matters. The court recommended the offender receive as much pre-release sexual offending counselling as possible.

Orders Made

  • Aggregate term of imprisonment of 4 years, 10 months, commencing 1 January 2019 and expiring 31 October 2023
  • Non-parole period of 3 years, 4 months; first eligible for parole on 30 April 2022
  • Indicative term for possession of weapon: 1 year, 1 month
  • Indicative term for failure to comply with reporting obligations: 1 year, 4 months
  • Indicative term for distribution of child pornography: 3 years, 9 months (text truncated in source)
  • Indicative terms for three breach of bond (possess prohibited drug) matters: 2 months each

Key Takeaways

  • Objective seriousness under Muldrock v The Queen is assessed solely by reference to the nature of the offending, not the personal characteristics of the offender. A psychological condition such as paedophilic disorder may bear on moral culpability but does not reduce objective seriousness.

  • In assessing child abuse material dissemination offences, the District Court applied the Minehan v R framework, treating the involvement of real children, the volume of material, and the breadth of distribution as factors increasing objective seriousness.

  • An offender's purpose in distributing child abuse material (here, to obtain further material rather than for financial gain) did not operate as mitigation; the court treated the exchange dynamic as consistent with, not separate from, the nature of the offending.

  • Failure to notify police of a newly registered online application under child protection reporting obligations was treated as a serious breach, particularly where the application was relevant to the offender's original registration offences.

  • A limited finding of special circumstances is available where an offender will require significant supervision upon release, even where the sentence already provides a substantial period post-custody.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39
- Minehan v R (2010) 201 A Crim R 243
- (Cth) v De La Rosa [2010] NSWCCA 194
- R v Lawrence [2005] NSWCCA 91
- The Queen v De Simoni (1981) 147 CLR 383