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District Court 13 May 2021

R v Gundry

[2021] NSWDC 238

Sexual offences

Citation: R v Gundry [2021] NSWDC 238
Court: District Court of New South Wales
Date: 13 May 2021
Judge: M L Williams SC DCJ

Background

The offender, a 38-year-old man with no prior criminal history, pleaded guilty to one State offence of possessing child abuse material under the Crimes Act 1900 (NSW) and three Commonwealth offences of using a carriage service to access child pornography material under the Criminal Code (Cth). Four further offences of attempting to use a carriage service were taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth).

The offending involved the purchase of access to a members-only child exploitation website operating through a server in Moldova. Between January 2017 and August 2019, the offender made multiple purchases totalling approximately AU$2,654 and US$293, obtaining over 26,000 images and 87 videos depicting children aged between 4 and 15 years. The material ranged across all classification levels on the CTS scale. Police located additional material on an iPad seized during a search of the offender's family property.

The central issue at sentence was whether the objective seriousness of the offending, weighed against a detailed and powerful subjective case, warranted a term of full-time imprisonment. The proceedings extended over three days.

  • Whether the objective seriousness of the offending required a term of full-time imprisonment
  • How to weigh significant subjective mitigating factors, including diagnosed mental health conditions, Klinefelter's Syndrome, prospects of rehabilitation, and the prospect of protective custody conditions
  • The appropriate discount for an early guilty plea (agreed at 25%)
  • How to structure the aggregate sentence across State and Commonwealth offences, including accumulation and the application of totality principles
  • The treatment of schedule matters under s 16BA of the Crimes Act 1914 (Cth) by analogy with the Form 1 guideline for State offences

Decision

Williams SC DCJ imposed terms of imprisonment on all offences but structured the sentences so that the offender would be released on licence after serving five months of custody. The court acknowledged the objective seriousness of offending that involved systematic, paid access to a large volume of child abuse material over more than two years, and emphasised that such conduct contributes directly to the global demand for the sexual exploitation of children.

At the same time, the court gave significant weight to the offender's subjective circumstances. These included a diagnosis of Klinefelter's Syndrome (a genetic condition involving an extra X chromosome), a longstanding history of depression, social isolation, and other co-morbid conditions including ADHD and agoraphobia. Psychiatric and psychological evidence supported the view that the offender's mental health conditions contributed meaningfully to the offending and that his prospects of rehabilitation were good.

The court applied a 25% discount to both the State and Commonwealth sentences for the plea of guilty. The aggregate Commonwealth sentence was set at 18 months, with the non-parole period structured so that the offender would be released after five months. The State sentence of 12 months ran partly concurrently and partly accumulated, with its non-parole period expiring in August 2021. The court also took into account time already spent in custody following the offender's arrest in August 2019 and before he was granted bail in November 2019.

Release on licence was made conditional on good behaviour and ongoing supervision by Community Corrective Services, including compliance with any directions to undertake assessment, therapy, or treatment.

Orders Made

State (NSW) Offence (Sequence 4):
- Convicted of possessing child abuse material
- Term of imprisonment of 12 months, commencing 19 March 2021
- Non-parole period of 5 months, expiring 18 August 2021
- 25% discount applied for guilty plea

Commonwealth Offences:
- Convicted of each offence
- Indicative sentences of 12 months each for sequences 10, 1, and 21 (each taking into account corresponding schedule matters)
- Aggregate sentence of 18 months' imprisonment, commencing 19 February 2021
- Release after 5 months (18 July 2021) on recognisance of $100, subject to:
- Good behaviour for 13 months
- Supervision and guidance by Community Corrective Services, including compliance with directions to undertake therapy, treatment, or assessment
- Forfeiture of items listed in the Crown's Forfeiture Order, pursuant to s 23ZD of the Crimes Act 1914 (Cth)
- Non-publication orders (dated 11 December 2019) to remain in force for 5 years in relation to any information that could identify the website associated with the proceedings

Key Takeaways

  • The District Court confirmed that offending involving repeated, paid acquisition of large volumes of child abuse material across multiple classification levels is objectively serious, given its direct contribution to global demand for child exploitation.
  • A substantial subjective case, including diagnosed psychiatric and genetic conditions, a history of social isolation and depression, strong prospects of rehabilitation, and an absence of prior criminal history, can result in a structured short custodial term rather than an extended period of full-time imprisonment, even where the offending is serious.
  • Under s 16BA of the Crimes Act 1914 (Cth), the court treated schedule offences by analogy with the Form 1 guideline established for State offences in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146.
  • Totality and accumulation principles applied to produce an overall sentence that reflected the full criminality of the conduct across both State and Commonwealth offences, while avoiding a disproportionate aggregate term.
  • Time spent in pre-sentence custody (from arrest to bail) was taken into account by backdating the commencement date of the sentence, consistent with standard sentencing practice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code (Cth), s 474.19(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AC, 20(1)(b), 23ZD
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- DPP (Cth) v Guest [2014] VSCA 29
- DPP v Garside [2013] VSCA 74
- Fitzgerald v R [2015] NSWCCA 266
- Markarian v The Queen (2005) 228 CLR 357
- Minehan v R [2010] NSWCCA 140
- Muldrock v The Queen (2011) 244 CLR 120
- R v De Leeuw [2015] NSWCCA 183
- R v Henry [1999] NSWCCA 111
- R v Hutchinson [2018] NSWCCA 152
- R v Pham [2015] HCA 39
- R v Porte [2015] NSWCCA 174
- R v Wagner [2018] NSWCCA 124
- Why v R [2017] NSWCCA 101
- Several unreported District Court decisions cited on sentencing statistics