AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 10 August 2021

R v Glasheen

[2021] NSWDC 544

Sexual offences
CRIME SENTENCE COMMONWEALTH REGIST ERABLE PERSON PLEA OF GUILTY REMORSE

Citation: R v Glasheen [2021] NSWDC 544
Court: District Court of New South Wales
Date: 10 August 2021
Judge(s): Robinson DCJ

Background

The offender pleaded guilty to using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth). The offending occurred between 12 and 19 July 2020 at the offender's home in Penshurst, Sydney. The offence carries a maximum penalty of 15 years imprisonment.

The offender had prior convictions from 2014 for serious child sexual offending, including using a child under 14 to make child abuse material, and served approximately four and a half years in custody for that conduct. As a result, he was a "Registrable Person" under the Child Protection (Offenders Registration) Act 2000 and subject to a 15-year registration period. Because of those prior convictions, the mandatory minimum sentencing regime under s 16AAB of the Crimes Act 1914 (Cth) applied, requiring a minimum sentence of at least four years imprisonment.

Police discovered the material during a routine compliance home visit. Upon inspecting the offender's laptop, they identified 64 images meeting the Interpol Baseline categorisation for child abuse material, 30 classified as category 1 and 34 as category 2. The material included highly graphic depictions of prepubescent children being sexually abused.

  • Whether the mandatory minimum sentence of four years under s 16AAB of the Crimes Act 1914 (Cth) applied on the facts.
  • How to apply statutory discounts for a guilty plea and assistance to authorities where doing so would reduce the sentence below the mandatory minimum.
  • Whether the mandatory minimum sentencing rationale should also influence the length of the non-parole period.
  • What non-parole period was appropriate having regard to the offender's subjective circumstances, prospects of rehabilitation, and the requirement under s 16(2AAA) of the Crimes Act.

Decision

The District Court found that the mandatory minimum of four years imprisonment applied because of the offender's prior child sexual abuse convictions. Robinson DCJ determined that, absent the mandatory minimum, a head sentence of five years would have been appropriate given the seriousness of the offending, the quantity and nature of the material, and the offender's history. The plea of guilty and other mitigating factors would ordinarily have supported a meaningful reduction below that figure.

However, the court held it could not give full effect to the statutory discount for the guilty plea because doing so would produce a sentence below the mandatory minimum of four years. The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act sets out a specific mechanism under s 16AAC for how discounts interact with the minimum, but the court found the mathematics meant the full discount simply could not be applied in this case. The mandatory four-year term was therefore imposed.

On the non-parole period, the court rejected the Crown's submission that the rationale of the mandatory minimum regime required a proportionately longer non-parole period. Robinson DCJ found that fixing the non-parole period remained a discretionary exercise, consistent with the Explanatory Memorandum accompanying the legislation. The court set a non-parole period representing approximately 66% of the total sentence, reflecting the offender's subjective circumstances, including remorse, some prospects of rehabilitation, and the benefit of treatment programmes identified in evidence.

The court also noted that it did not view the images directly, finding that the written descriptions provided by the Crown were sufficient to form an appreciation of the material and its depravity, consistent with authority from the NSW Court of Criminal Appeal. Viewing the material, the court observed, risks "revictimisation" of the children depicted.

Orders Made

  • The offender is convicted.
  • Sentenced to a total term of imprisonment of four years, commencing 25 July 2020 and expiring 24 July 2024.
  • Non-parole period of two years and eight months, commencing 25 July 2020 and expiring 24 March 2023.
  • The offender is eligible for release on parole at the expiration of the non-parole period, subject to s 19AL of the Crimes Act 1914 (Cth).
  • Parole release recommended to be subject to supervision.
  • Recommendation that the offender undertake any available sex offender programmes while in custody.
  • Forfeiture of the offender's laptop to the Crown pursuant to s 23Z(d) of the Crimes Act.

Key Takeaways

  • Under the mandatory minimum sentencing regime in s 16AAB of the Crimes Act 1914 (Cth), a court cannot reduce a sentence below four years even where an offender is otherwise entitled to a statutory discount for a guilty plea; the discount applies to the extent it can without breaching the mandatory minimum.
  • The District Court confirmed that fixing the non-parole period for a Commonwealth offence remains a discretionary exercise and is not mechanically constrained by the mandatory minimum rationale, consistent with the Explanatory Memorandum to the amending legislation.
  • A sentencing court is not required to view child abuse material in order to sentence for offences involving such material; written descriptions of the images can provide a sufficient appreciation of the nature and gravity of the conduct, and viewing the material risks revictimising the children depicted.
  • Prior child sexual abuse convictions triggering the mandatory minimum regime significantly limit the practical effect of mitigating factors, including genuine remorse and prospects of rehabilitation, on the head sentence.
  • General deterrence is a significant sentencing consideration for child abuse material offences, which the authorities describe as "callous and predatory" due to their exploitation of children.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), ss 16AAB, 16AAC, 16(2AAA), 19AL, 23Z(d)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Migration Act 1958 (Cth)

Cases:
- Hili v R (2010) 242 CLR 520
- Muldrock v R (2011) 244 CLR 120
- Barbaro v R (2014) 253 CLR 58
- R v Pham (2015) 256 CLR 550
- R v Porte [2015] NSWCCA 174
- R v Hutchinson [2018] NSWCCA 152
- Magaming v R [2013] NSWCCA 23
- Dui Kol v R [2015] NSWCCA 150
- R v Cardwell [2021] QCA 112
- R v Delzotto [2021] NSWDC 325
- R v Gent (2005) 162 A Crim R 29
- R v De Simoni (1981) 147 CLR 383
- Imbornone v R [2017] NSWCCA 144
- Little v R [2010] NSWCCA 210
- Minehan v R [2010] NSWCCA 140
- Bahar v R [2011] WASCA 249