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District Court 15 October 2020

R v Loyson

[2020] NSWDC 864

Sexual offencesFraud & dishonesty

Citation: R v Loyson [2020] NSWDC 864
Court: District Court of New South Wales
Date: 15 October 2020
Judge: ML Williams SC DCJ

Background

The offender, a 26-year-old Belgian national, arrived in Australia in November 2018 on a temporary working visa. Before arriving, he had registered a website that operated as a commercial platform for distributing child abuse material. Customers entered credit card details and received links to files containing the material.

Over approximately ten months, the offender accumulated at least 2,344 files of child abuse material and earned approximately USD $19,730 from 344 transactions. He also used Snapchat and Tumblr to promote sales and to distribute individual files to other users. Australian Federal Police identified the website in early 2019, and an undercover officer made two purchases before police executed a search warrant at the offender's Sydney hostel room in April 2019.

The offender cooperated at the time of arrest, providing passwords to his devices and social media accounts, and participated in a police interview. He appeared for sentence having pleaded guilty to multiple charges under the Criminal Code (Cth), including using a carriage service to access, supply, transmit, and make available child pornography material, and a separate money laundering charge.

  • What aggregate sentence was appropriate for a series of Commonwealth child abuse material offences and a money laundering offence committed for financial gain?
  • What discount applied to reflect the utilitarian value of the guilty pleas, following the approach confirmed in Xiao v R [2018] NSWCCA 4?
  • How should the two schedule matters (under s 16BA of the Crimes Act 1914 (Cth)) be taken into account on sentencing?
  • How did subjective factors, including the offender's mental health, foreign national status, protective custody conditions, remorse, and rehabilitation prospects, bear on the sentence?
  • Whether the sentencing court should view sample material or rely on detailed descriptions in the agreed facts.

Decision

The District Court accepted that a term of full-time imprisonment was unavoidable. Both parties agreed on this point and on the commencement date of 8 April 2019, when the offender was first taken into custody. A 25% discount for the utilitarian value of the guilty pleas was applied, consistent with the approach to Commonwealth matters following Xiao v R.

On the question of viewing sample files, the Court declined to do so. Following the guidance in R v Hutchinson [2018] NSWCCA 152, the Court proceeded on the basis of the detailed descriptions in the agreed facts, noting that Crown Prosecutors had provided sufficient particulars to allow the Court to assess the nature and severity of the material without viewing it directly.

The offending was treated as serious in objective terms. It involved a degree of planning, was sustained over many months, was carried out for financial gain, and encompassed material across multiple CETS categories. The two schedule matters were taken into account on count 7, following the approach to Form 1 matters in State proceedings established in the guideline judgment of the Chief Justice. Some accumulation of sentences was warranted to reflect the separate criminality of each offence, though the Court applied a degree of concurrency as well.

The offender's subjective circumstances were given weight, albeit with appropriate caution in relation to the psychologist's report, as flagged in Imbornone v R [2017] NSWCCA 14. Relevant factors included his long-standing social anxiety, his genuine remorse, his early guilty plea and cooperation with authorities, his lack of any criminal history, and the particular hardship of custody as a foreign national held in a special management area due to genuine safety concerns. Rehabilitation was also identified as an important consideration.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences (after 25% guilty plea discount) were:
  • Count 005: 11 months
  • Count 006: 13 months
  • Count 007 (including s 16BA schedule matters 009 and 013): 30 months
  • Count 008: 18 months
  • Count 010: 18 months
  • An aggregate sentence of 4 years' imprisonment was imposed, commencing 8 April 2019.
  • A non-parole period of 2 years and 6 months was set, expiring 7 October 2021.
  • Forfeiture orders were made under s 23ZD of the Crimes Act 1914 (Cth) in respect of two Apple iPhones and an Apple laptop.
  • An existing non-publication order relating to the offender's website address was lifted.

Key Takeaways

  • Distributing child abuse material commercially via a purpose-built website, sustained over many months and generating substantial income, was treated as a serious example of this class of offending, warranting full-time custody.
  • Under the approach confirmed in R v Hutchinson [2018] NSWCCA 152, a sentencing court may decline to view sample child abuse material where the agreed facts contain sufficiently detailed descriptions, and the Crown cannot point to anything material that the descriptions fail to convey.
  • A 25% discount for the utilitarian value of an early guilty plea applies in Commonwealth sentencing matters, consistent with Xiao v R [2018] NSWCCA 4.
  • Schedule matters under s 16BA of the Crimes Act 1914 (Cth) are to be taken into account at sentencing in a manner analogous to Form 1 matters in State proceedings, following the guideline judgment in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146.
  • Hardship arising from protective custody and the absence of community support, combined with genuine remorse, early cooperation, and no prior criminal history, were treated as mitigating factors, though they did not displace the need for a substantial term of imprisonment.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 474.19(1)(a)(i), 474.19(1)(a)(iii), 474.20(1), 400.6(1)
- Crimes Act 1914 (Cth), ss 16BA, 23ZD

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Burbidge v R [2016] NSWCCA 128
- Columbus v R [2007] QCA 396
- Fitzgerald v R [2015] NSWCCA 266
- Imbornone v R [2017] NSWCCA 14
- Mara v R [2009] QCA 208
- R v Dennison [2011] NSWCCA 114
- R v Dittman [2017] QCA 302
- R v Hutchinson [2018] NSWCCA 152
- R v Martin [2014] NSWCCA 283
- Xiao v R [2018] NSWCCA 4