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District Court 9 March 2021

R v Houweling

[2021] NSWDC 293

Sexual offences
CRIME POSSESS CHILD ABUSE MATERIAL ACCESS CHILD ABUSE MATERIAL SENTENCING R ELEVANT FACTORS ON SENTENCE NATURE OF CHILD ABUSE MATERIAL LOW LEVEL POSING BY CHILDREN

Citation: R v Houweling [2021] NSWDC 293
Court: District Court of New South Wales
Date: 9 March 2021 (revised; amended order 25 February 2021)
Judge: Haesler SC DCJ

Background

The offender, a serving police officer at the time, surrendered his iPhone and accompanied police to his Wollongong home in March 2020, where electronic devices were seized and their contents extracted using Cellebrite forensic software. Analysis of those devices produced two charges under the Commonwealth Criminal Code, each carrying a maximum penalty of 15 years imprisonment.

The first charge (Sequence 1) related to ten still images of child abuse material that had been downloaded and stored on his phone. The second charge (Sequence 2) related to 227 still images and seven videos of child abuse material in animated form, found in cache files, indicating the material had been accessed but not downloaded, over a two-month period via a pseudonymous Twitter account.

The offender pleaded guilty at the Local Court. In evidence at sentencing, he acknowledged a sexual interest in young children dating from puberty and accepted that, until approximately one year before his arrest, he had managed to confine that interest to his thoughts alone. A forensic psychologist diagnosed him with paedophilic disorder and gave evidence about his progress toward rehabilitation.

  • Whether full-time custodial sentences were required for either or both offences, having regard to the threshold in s 17A of the Crimes Act 1914 (Cth)
  • How to assess the objective seriousness of offences involving animated (rather than real) child abuse material
  • Whether the number and nature of images in Sequence 1 crossed the custodial threshold under s 17A
  • Whether Sequence 2 warranted a different sentencing outcome given evidence of escalation into more deviant conduct
  • Whether a community service work order could lawfully be imposed as a condition of a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth), and the correction of that error under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Sequence 1: No custodial sentence required. Haesler SC DCJ found that, while the ten downloaded images constituted child abuse material used for prurient purposes, this represented the minimum number of images for such an offence. The material was not distributed and its nature, while serious, did not place children at risk of significant harm through its circulation. The court was not satisfied that the custodial threshold under s 17A of the Crimes Act 1914 (Cth) had been crossed.

Sequence 2: Custody required, but immediate release on recognisance. The animated material in Sequence 2 was more serious. The forensic psychologist characterised it as an escalation into increasingly deviant illicit behaviour, a finding supported by the nature of the content itself, which included sophisticated cartoons depicting very young children being penetrated, including one video involving multiple penetrations and one image depicting a gun pointed at a child. Although no actual children were depicted, the court drew on Martin v R [2014] NSWCCA 124 for the proposition that animated material can be treated as less serious than material involving actual children, while remaining a serious offence in its own right. The offender's status as a sworn police officer at the time aggravated the offending. A sentence of one year and seven months imprisonment was imposed, with immediate release on recognisance.

Sentence correction: community service condition removed. After the original sentence was delivered, the CDPP notified the court that community service work could not lawfully be imposed as a condition of a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). The court relisted the matter under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Haesler SC DCJ expressed some scepticism about the error, finding the reasoning in Adams v Carr (1987) more consistent with the NSW legislative scheme for community service. However, as both parties were in agreement, the court amended the order by consent, extending the recognisance period and removing the community service condition.

Orders Made

Sequence 2 (amended orders):

  • Convicted and sentenced to imprisonment of 1 year and 7 months
  • Directed to be released forthwith upon entering a recognisance under s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $400, on the following conditions:
  • To be of good behaviour for 2 years from the date of the order
  • To appear to receive sentence if called upon for any breach within that period
  • To accept supervision of Community Corrections for as long as deemed necessary
  • To continue engagement with current sex offender program, or another as directed, and not leave without permission of Community Corrections
  • To participate in a comprehensive risk assessment with a Community Corrections Senior Psychologist
  • To report to Wollongong Community Corrections within 7 days

Key Takeaways

  • The District Court confirmed that animated or cartoon child abuse material falls within the definition in the Commonwealth Criminal Code and can constitute a serious offence, even where no actual children were involved in its production. The court accepted that such material may properly be treated as less serious than material depicting actual children, but emphasised this distinction does not greatly diminish its gravity.

  • Under s 17A of the Crimes Act 1914 (Cth), a custodial sentence is not automatically required for child abuse material offences. The court assessed the minimum number of images in Sequence 1, the absence of distribution, and the nature of the material as collectively insufficient to cross the custodial threshold.

  • Evidence of escalation in the nature and type of material accessed can weigh significantly in assessing objective seriousness. The forensic psychologist's characterisation of Sequence 2 as reflecting escalating deviance was central to the court imposing a custodial (though immediately suspended) sentence for that charge.

  • A serving police officer's breach of the law in committing these offences was treated as an aggravating feature, given the offender's sworn duty to uphold the law and awareness of the legal consequences.

  • Community service work cannot be imposed as a condition of a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). Where such an error is identified, the court may correct it under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including by consent of the parties.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1)(a)(i), 474.22A(1), 473.1
- Crimes Act 1914 (Cth), ss 16A, 17A, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Cases:
- Adams v Carr (1987) 26 A Crim R 372
- De Leeuw v R [2015] NSWCCA 183
- Dimech v Watts [2016] ACTSC 221
- DPP (Cth) v D'Alessandro (2010) 26 VR 477
- Gent v R [2005] NSWCCA 370
- Innes v R [2018] NSWCCA 90
- Martin v R [2014] NSWCCA 124
- Minahan v R [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152
- R v Shambayati [1999] QCA 102