Citation: R v Monohan [2020] NSWDC 611
Court: District Court of New South Wales
Date: 14 September 2020
Judge(s): Grant DCJ
Background
The offender, a 24-year-old man employed at an early childhood care centre, pleaded guilty to one count of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth). The offending occurred throughout January 2019, when he used a Samsung mobile phone to access an overseas image-hosting website containing galleries of child pornography.
Police received a tip-off and executed a search warrant at the offender's home. He cooperated fully, provided access to his devices, participated in a recorded interview, and made extensive admissions about the nature of the material he had accessed and his reasons for doing so.
The website contained galleries of images identifiable by title, including the ages of those depicted. The offender accessed images of girls aged 13 to 16, though he stated he was primarily attracted to girls aged 15 to 20 and had accessed images of 13 and 14-year-olds out of curiosity rather than attraction. The court accepted that explanation on the available evidence.
Legal Issues
- How objectively serious was the offending, having regard to the nature, content, and quantity of the material accessed?
- What weight should be given to the offender's subjective circumstances, including his cooperation, guilty plea, and prospects for rehabilitation?
- Whether the threshold under s 17A of the Crimes Act 1914 (Cth) was crossed, requiring a sentence of imprisonment rather than a community correction order.
- What form of sentence was appropriate, specifically whether a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) was available and appropriate.
Decision
Grant DCJ characterised the offending as falling at the lower end of objective seriousness, though not at the least serious end. The images totalled only 14 in number, were classified as category 2 material (illegal under NSW law but below category 1 in severity), were accessed over a single month, and were not possessed for sale or distribution. Save for two images depicting self-masturbation, the sexual activity depicted was at the low end of the scale. The court nonetheless emphasised that accessing such material is not a victimless crime: possession sustains demand and perpetuates harm to the children depicted.
The court considered the offender's subjective case, including his full cooperation with police, his early and genuine guilty plea, his remorse, and his rehabilitation prospects. His employment at a childcare centre was a relevant aggravating feature, given the proximity to children that role involved.
Grant DCJ rejected the Crown's submission that the offending was objectively serious in the sense that would warrant immediate full-time custody. However, the court was satisfied that the s 17A threshold had been crossed and that no sentence other than imprisonment was appropriate. A community correction order alone was not a reasonably open disposition on these facts.
The court imposed a sentence of nine months imprisonment but ordered the offender's immediate release on a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). That mechanism allows a court, where it considers imprisonment appropriate in principle, to release the offender on conditions rather than require the sentence to be served in custody.
Orders Made
- The offender was sentenced to nine months imprisonment.
- Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender was released forthwith on a recognisance release order, on a surety (without security) of $1,000, on condition of good behaviour for two years.
- Pursuant to s 23ZD of the Crimes Act 1914 (Cth), on the application of the Director of Public Prosecutions and by consent, a Black Samsung Galaxy S5 mobile phone (property seizure number X0002557878) was forfeited to the Commonwealth.
Key Takeaways
- The District Court confirmed that accessing child pornography via a carriage service is not a victimless offence: the material's continued existence online causes ongoing harm to the children depicted, regardless of whether images are downloaded, sold, or distributed.
- Objective seriousness in child pornography access cases is assessed by reference to factors including the nature and gravity of the material, its classification, the number of images, the duration of offending, and whether commercial purposes were involved.
- Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court that determines imprisonment is the only appropriate sentence may nonetheless release an offender immediately on a recognisance release order rather than impose full-time custody.
- The absence of a forensic extraction of the device did not undermine the sentencing process where the offender's own admissions provided the evidential foundation for the facts.
- The offender's employment in a childcare setting, giving him regular proximity to young children, operated as an aggravating feature in the assessment of the overall circumstances of the offending.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 474.19(1)(a)(i)
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 17A, 20(1)(b), 23ZD
Cases
- R v Port [2015] NSWCCA 175
- Xiao v R (2018) 96 NSWLR 1
- R v Booth [2009] NSWCCA 89
- DPP (Cth) v Garside [2016] VSCA 74
- Parente v R [2017] NSWCCA 285
- R v Moon [2000] NSWCCA 534
- DPP (Cth) v Zarb (2014) 46 VR 832
- R v Riley [2007] QCA 391
- Fedel v R [2015] NSWCCA 286
- DPP v Smith [2010] VSCA 215
- R v De Leeuw [2015] NSWCCA 183
- R v Verburgt [2009] QCA 33
- R v Dore [2006] QCA 386
- R v Wharley [2007] QCA 295
- R v Richardson; ex parte A-G (Qld) [2007] QCA 294
- R v Salsone; ex parte A-G (Qld) [2008] QCA 220
- R v Sykes [2009] QCA 67
- DPP (Cth) v Walls [2014] VSCA 323