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District Court 20 August 2021

R v Large

[2021] NSWDC 429

Sexual offences

Citation: R v Large [2021] NSWDC 429
Court: District Court of New South Wales
Date: 20 August 2021
Judge(s): Montgomery DCJ

Background

The offender, a 60-year-old man at the time of offending, was sentenced for two federal child abuse material offences committed in July 2020. Australian Federal Police received a referral in June 2020 relating to a user uploading child abuse material online. A search warrant executed at the offender's home in July 2020 resulted in the seizure of multiple digital devices, including smartphones and USB drives.

The offender had a prior criminal history involving child sexual abuse offences committed in 2001, for which he was convicted in 2003. Those earlier offences involved physical contact with a 12-year-old victim, including the use of a knife, and resulted in a custodial sentence of 18 months with a six-month non-parole period, as well as a good behaviour bond. He had subsequently completed a Community Based Intensive Treatment (CUBIT) program for sex offenders between 2005 and 2006.

The present offending involved using the encrypted messaging application Telegram to transmit a MEGA file-sharing link containing child abuse material to another user, and separately possessing a substantial collection of child abuse material on devices stored at his home. The material accessed using carriage services included content sourced from platforms such as Telegram, MEGA, Facebook, and Memory Zone.

  • What was the appropriate sentence for the distribution offence under s 474.22(1) of the Criminal Code Act 1995 (Cth), which carries both a maximum penalty of 15 years and a mandatory minimum of 4 years imprisonment?
  • What was the appropriate sentence for the possession offence under s 474.22A of the Criminal Code Act 1995 (Cth), carrying the same penalty range?
  • How should the aggregate sentence be structured, including the non-parole period, having regard to federal sentencing principles, the offender's prior convictions for child sexual abuse, and the mandatory minimum sentencing provisions?
  • Whether the requirement under s 16AAB of the Crimes Act 1914 (Cth) to specify commencement and completion dates for each individual offence within a single aggregate sentence was satisfied.

Decision

Montgomery DCJ convicted the offender of both offences and imposed a single aggregate sentence of imprisonment. The distribution offence (Sequence 4) involved the transmission via Telegram of a MEGA link containing, at minimum, two Category 1 files under the Interpol Baseline categorisation system. Category 1 is the most serious classification, covering material depicting prepubescent children under 13 years engaged in or witnessing sex acts. The possession offence (Sequence 6) involved a large volume of material spanning the full age range from infants to 14 years, with the majority depicting children under 11.

The sentencing judge took into account the offender's prior offending against a child in 2001, his completion of rehabilitation programs, and relevant personal circumstances. The mandatory minimum penalty provisions under the Crimes Act 1914 (Cth) applied given the nature and circumstances of both offences.

Montgomery DCJ expressed the view that the aggregate sentence structure satisfied the requirement under s 16AAB to indicate commencement and completion dates for each offence, but provided indicative dates in the alternative in case that view was wrong. For Sequence 4, the indicative head sentence ran from 27 July 2020 to 14 March 2023; for Sequence 6, from 27 July 2021 to 26 January 2025.

Orders Made

  • The offender convicted of the distribution offence (Sequence 4, s 474.22(1) of the Criminal Code Act 1995 (Cth)).
  • The offender convicted of the possession offence (Sequence 6, s 474.22A of the Criminal Code Act 1995 (Cth)).
  • Aggregate sentence of imprisonment of 4 years and 6 months, backdated to 27 July 2020 (date taken into custody), expiring 26 January 2025.
  • Non-parole period of 3 years, 3 months and 10 days, expiring 5 November 2023; balance of term of 1 year, 2 months and 20 days.
  • The offender directed to accept supervision and guidance of Community Corrective Services.
  • Forfeiture order made under s 23ZD of the Crimes Act 1914 (Cth) in favour of the Commonwealth over all seized digital devices (three USB drives and three smartphones).
  • Recommended parole and supervision conditions to include: participation in child sexual assault and child abuse material rehabilitation programs; prohibition on unsupervised contact with persons under 16; prohibition on electronic or written communications with persons under 16; prohibition on possession or viewing of child abuse material; compliance with all Child Protection Register requirements.

Key Takeaways

  • The District Court applied the mandatory minimum sentencing provisions under the Crimes Act 1914 (Cth) to both the distribution and possession of child abuse material obtained via carriage services, reflecting the federal statutory framework that constrains judicial discretion in this category of offending.
  • A prior conviction for contact child sexual offending is a significant factor in federal sentencing for child abuse material offences, and the court's reasons demonstrate it will be weighed carefully alongside any subsequent rehabilitation.
  • Under s 16AAB of the Crimes Act 1914 (Cth), the court expressed the view that an aggregate sentence can satisfy the requirement to specify indicative commencement and completion dates for each constituent offence, though the court provided alternative indicative dates out of an abundance of caution.
  • Category 1 material under the Interpol Baseline 4 Tier Categorisation System represents the most serious classification, depicting prepubescent children under 13 involved in sex acts, and the presence of such material is treated as a significant aggravating feature of the objective seriousness of both distribution and possession offences.
  • Forfeiture orders covering all devices used to access or store child abuse material are a standard component of the orders made on sentence for these offences.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A, 474.29AA
- Crimes Act 1914 (Cth), ss 3, 16A, 16AAB, 16AAC(2), 17A, 19, 20, 20AB(1), 23ZD
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Judiciary Act 1903 (Cth), s 68

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- Ohania v R [2017] NSWCCA 268
- R v De Leeuw [2015] NSWCCA 183
- R v Delzotto [2021] NSWDC 325
- R v Hutchinson [2018] NSWCCA 152
- R v Large (unreported) NSWDC, 23 October 2003