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District Court 21 January 2021

R v MT

[2021] NSWDC 129

Sexual offences
CRIME SENTENCE INDECENT ASSAULT OF CHILD UNDER 16 PRODUCE CHILD ABUSE MATERIAL POSSESS CHILD ABUSE MATERIAL COMMONWEALTH AND STATE OFFENCES

Citation: R v MT [2021] NSWDC 129
Court: District Court of New South Wales
Date: 21 January 2021
Judge(s): Bourke SC DCJ

Background

The offender, an elderly grandfather, pleaded guilty to eight offences arising from the sexual abuse of his granddaughter (referred to in the judgment as "Laura") and from his possession and production of child abuse material. The offending spanned several years and came to light after an undercover officer from a UK regional organised crime unit identified the offender through communications on messaging applications including Kik, Wikr, and IMGSCR.

When New South Wales police executed a search warrant at the offender's Western Sydney home in July 2019, they found multiple electronic storage devices containing a vast quantity of child abuse material. Among the material were 531 files depicting Laura, of whom 498 constituted child abuse material created over a period spanning approximately 2012 to 2017, during which she was aged between four and nine years.

The eight offences comprised five counts of indecent assault of a child under 16, one count of producing child abuse material, one count of possessing child abuse material, and one Commonwealth offence of using a carriage service to transmit child pornography. The offender pleaded guilty to all counts.

  • What sentence was appropriate across five State indecent assault offences, one State production offence, one State possession offence, and one Commonwealth transmission offence, having regard to the totality principle and the need to avoid double punishment?
  • What discount applied to the plea of guilty for both the State and Commonwealth offences?
  • How should the State and Commonwealth sentences be structured and sequenced to produce a just total effective sentence?
  • What weight should be given to mitigating factors including the offender's age, time in custody, prospects of rehabilitation, and need for treatment?

Decision

The court found that the objective seriousness of the offending was very high. The indecent assaults involved repeated abuse of a young granddaughter in a position of complete trust, the production offending spanned years and generated hundreds of recordings of that abuse, and the possession offending involved an enormous quantity of child abuse material across all severity categories of the CETS scale, including material depicting sadism and penetrative acts involving very young children.

A 25% discount was applied to all eight counts on account of the utilitarian value of the guilty pleas. The court extended the same discount to the Commonwealth matter, consistent with the approach taken for the State offences. Bourke SC DCJ acknowledged mitigating factors including the offender's age, the time he had already spent in custody, his assessed low likelihood of reoffending, and the need for treatment, and weighed these against the gravity and duration of the offending.

For the State offences, the court set indicative sentences for each count and then imposed an aggregate sentence, as permitted under the Crimes (Sentencing Procedure) Act 1999. The aggregate State sentence was structured to commence six months after the start of the separately imposed Commonwealth sentence, to reflect the principle of totality and avoid excessive cumulation.

The total effective sentence, combining the Commonwealth and State terms, was eight years' imprisonment. The offender will be eligible for parole after serving five years, with a parole eligibility date of 17 July 2024.

Orders Made

  • Commonwealth offence (s 474.19 Criminal Code (Cth)): sentenced to imprisonment commencing 18 July 2019 (implied by the State sentence dating from six months later, being 18 January 2020).
  • Aggregate State sentence: head sentence of seven years and six months, with a non-parole period of four years and six months, commencing 18 January 2020.
  • State head sentence to expire 17 July 2027; non-parole period to expire 17 July 2024.
  • Total effective sentence: eight years' imprisonment, with eligibility for parole on 17 July 2024.
  • Indicative State sentences recorded for each of the seven State counts (ranging from two years and six months to four years and six months, with corresponding non-parole periods).
  • Two additional possession offences taken into account on a Form 1 document in connection with the sequence 3 possession count and the sequence 6 indecent assault count.
  • Court directed that the report of Dr Furst be provided to Corrective Services NSW, Justice Health, and Community Corrections.

Key Takeaways

  • The District Court imposed a total effective sentence of eight years with a five-year non-parole period, reflecting the combined effect of State and Commonwealth sentences structured to avoid unjust cumulation.
  • A 25% guilty plea discount applied to both State and Commonwealth offences, with the court treating the discount identically across jurisdictions in the circumstances of this case.
  • Where an offender faces concurrent State and Commonwealth sentences, the sequencing and commencement dates of each term directly affect the total period of incarceration, and the court must have regard to the totality principle across both legislative regimes.
  • Under the Crimes (Sentencing Procedure) Act 1999, the court set indicative sentences for each State count before imposing a single aggregate term, a process required where multiple State offences are sentenced together.
  • Production of child abuse material depicting a known child victim over a sustained period, combined with large-scale possession across high-severity CETS categories, will be treated as among the most serious examples of this class of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 91H(2)
- Criminal Code Act 1995 (Cth), s 474.19
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Hutchinson [2018] NSWCCA 152