Citation: R v Castellarin [2021] NSWDC 571
Court: District Court of New South Wales
Date: 22 October 2021
Judge: Mahony SC DCJ
Background
The offender, a 46-year-old IT project manager, was charged with using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth). The offending occurred on 22 and 23 May 2019 and was discovered after an IT security alert was triggered on a company laptop issued to him by his employer.
Analysis of the laptop revealed that the offender had downloaded anonymising software, including a virtual machine and a Tor browser, before accessing and downloading a significant volume of child abuse material. The material was classified under the INTERPOL Baseline Characterisation Scheme and included Category 1 material (24 videos and 240 images) and Category 2 material (943 images), depicting real prepubescent children.
A USB drive seized from the offender's bedroom contained a password-protected compressed folder and a document with references to dark web links relating to children. The offender denied knowingly accessing the material and offered various alternative explanations, including the possibility that someone else had used his laptop or planted the files.
Legal Issues
- What sentence was appropriate for an offence of using a carriage service to access child pornography material under s 474.19(1) of the Criminal Code, carrying a maximum of 15 years imprisonment?
- What weight should be given to the offender's denial of deliberate wrongdoing and his minimisation of involvement?
- How should the offender's personal circumstances, including his medical condition, mental health, and prospects of rehabilitation, affect the sentence?
- What mitigating effect, if any, should be given to the hardships caused by the COVID-19 pandemic on the prison population?
Decision
His Honour found that the offending was serious and deliberate. The use of a virtual machine and Tor browser to anonymise internet activity indicated a planned approach rather than accidental access. The offender's explanations in his record of interview and later account to the Sentencing Assessment Report author were inconsistent and unconvincing, and the court found that his minimisation of the offending was a significant feature of the matter.
The court considered the offender's personal circumstances, including a prior domestic violence conviction, his reported use of prescription opioids for back pain, and his psychological history. His Honour accepted that the opioid use could have impaired his decision-making to some degree, but did not treat it as a substantial mitigating factor. The offender's failure to engage meaningfully in psychological treatment and his lack of insight into the harm caused to the children depicted in the material were noted as adverse factors.
His Honour was satisfied that no sentence other than imprisonment was appropriate, having regard to the maximum penalty of 15 years as a guidepost reflecting Parliament's view of the seriousness of such offending. The court accepted that the offender had reasonable prospects of rehabilitation, given his family and partner support, though this was tempered by his ongoing minimisation. The sentence was moderated to account for the additional hardships imposed on prisoners by COVID-19 conditions, including lockdowns and restricted access to programs and visits, in accordance with the approach taken in Valentine v R and DPP (Cth) v Saadieh.
His Honour expressly stated that the password-protected USB found in the offender's bedroom, for which he had not been charged, was given no weight in sentencing.
Orders Made
- The offender was convicted of using a carriage service to access child pornography material, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth).
- A sentence of 18 months imprisonment was imposed, commencing 22 October 2021.
- A recognizance release order was made under s 20(1)(b) of the Crimes Act 1914 (Cth), providing for release after nine months (on 21 July 2022), upon entering a recognizance of $100 with a condition of good behaviour for nine months, without security.
- The release order was set to terminate on 21 April 2023.
Key Takeaways
- The District Court confirmed that use of anonymising tools such as Tor browsers and virtual machines to access child abuse material is a significant indicator of deliberation and planning, relevant to the assessment of objective seriousness.
- Minimisation of offending and a failure to engage meaningfully with psychological treatment were identified as factors weighing against a more lenient sentence.
- Where a defendant has not been charged with conduct evidenced by seized items, the sentencing court will not take that conduct into account, as Mahony SC DCJ made explicit in relation to the USB drive.
- Hardship caused to prisoners by COVID-19 restrictions, including lockdowns and reduced access to programs and family visits, remained a recognised mitigating factor at the time of sentencing, following the approach in Valentine v R and DPP (Cth) v Saadieh.
- A sentence of 18 months with release after nine months was imposed for a single offence involving a substantial volume of Category 1 and Category 2 child abuse material, against an offender with limited but relevant prior criminal history.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 474.19(1)
- Crimes Act 1914 (Cth), s 17A, s 20(1)(b)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
Cases
- Baden v R [2020] NSWCCA 23
- DPP (Cth) v Saadieh [2021] NSWSC 1186
- Fitzgerald v R [2015] NSWCCA 266
- Hili v The Queen (2010) 232 CLR 520; [2010] HCA 45
- R v Hutchinson [2018] NSWCCA 152
- Valentine v R [2020] NSWCCA 116