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District Court 8 October 2021

R v Yates (a pseudonym)

[2021] NSWDC 701

Sexual offences
CRIME POSSESS CHILD ABUSE MATERIAL USE CARRIAGE SERVICE RELEVANT FACTORS ON SENTENCE

Citation: R v Yates (a pseudonym) [2021] NSWDC 701
Court: District Court of New South Wales
Date: 8 October 2021
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym "Bill Yates," was discovered by his wife in June 2020 after she found thousands of deleted and active images on his computer. The material included images sorted into files under children's names, photographs taken of young girls in public locations, and a folder containing sexually explicit images of prepubescent girls. The matter was reported to police following the wife's consultation with a psychologist.

Police attended the premises, seized devices, and interviewed the offender. Examination of seized material revealed further offending. The offender had been consuming child abuse material for many years prior to detection, downloading it from the dark web, and had also used his access to children who stayed overnight in his home to photograph them and, on some occasions, assault them.

The offender pleaded guilty in the Local Court to 12 offences spanning State and federal law, including multiple counts of possessing child abuse material, using children under 14 to make child abuse material, indecent assault of children under 16, and using a carriage service to transmit child abuse material. The matter came before Haesler SC DCJ for sentencing.

  • What aggregate sentence was appropriate for the State offences, taking into account the number, volume, and seriousness of the child abuse material possession counts and the contact offences against identified child victims?
  • What sentence was appropriate for the federal carriage service offence?
  • How should the standard non-parole periods applying to several offences inform the indicative sentences?
  • What weight should be given to the offender's abuse of trust, the vulnerability of the child victims, the volume of material held, and the Form 1 matters (additional admitted offences taken into account on sentence without conviction)?
  • Whether the Interpol two-category grading system adequately assists courts in assessing the relative seriousness of child abuse material.

Decision

Haesler SC DCJ found the offending to be serious across every category. The possession counts involved enormous volumes of material: one device alone held at least 1,000 category 1 images, 5,000 category 2 images, and 200 videos depicting children as young as seven engaged in sexual intercourse with adults. Other seized devices included a manual titled "How to Practice Child Love," over 300,000 images on a portable hard drive, and CDs containing thousands of images, with random samples showing all fell into category 1.

The contact offences were treated as a gross breach of trust. The child victims were prepubescent girls who had been permitted by their parents to stay overnight in the offender's home. The offender photographed them while they were sleeping, showering, or otherwise unaware, and in some instances physically assaulted them to facilitate photography. His Honour noted that the children's unawareness of the offending did not mitigate the conduct; rather, it underscored the need to account for their vulnerability in the sentencing exercise.

His Honour made an adverse observation about the Interpol two-category classification system currently used by Australian police. The system, comprising only a "baseline" category 1 and a broader "other" category 2, was criticised as inadequate for enabling meaningful comparison of seriousness across the wide spectrum of material that courts regularly encounter. His Honour noted that the former 10-point Copine scale, and the five-point SAP or Oliver scale used in England and Wales, provided far more granular tools for evaluating relative gravity.

For the State offences, an aggregate sentence of 14 years' imprisonment was imposed with a non-parole period of 10 years, commencing 23 July 2020. The federal carriage service offence attracted a separate sentence of 18 months, which was subsumed within the State sentence. A modest finding of special circumstances was made, producing a balance of term of four years beyond the non-parole period. The offender was also warned of the possible application of the Crimes (High Risk Offenders) Act 2006.

Orders Made

State offences (indicative sentences forming the aggregate):

  • Offence 1, possess child abuse material (with Form 1 matters): 2 years 3 months
  • Offence 2, possess child abuse material (with Form 1 matter): 2 years 3 months
  • Offence 3, possess child abuse material: 1 year 6 months
  • Offence 5, use child under 14 to make child abuse material: 5 years 3 months, non-parole period 3 years 11 months
  • Offence 6, indecent assault of a person under 16: 3 years, non-parole period 2 years 3 months
  • Offence 7, indecent assault of a person under 16: 4 years 6 months, non-parole period 3 years 4 months
  • Offence 8, use a child under 18 to make child abuse material: 3 years 4 months, non-parole period 2 years 6 months
  • Offence 9, indecent assault of a person under 16: 4 years 6 months, non-parole period 3 years 4 months
  • Offence 10, indecent assault of a person under 16 (with Form 1 matter): 5 years 3 months, non-parole period 3 years 11 months
  • Offence 11, use child under 14 to make child abuse material: 2 years 3 months, non-parole period 1 year 8 months
  • Offence 12, use child under 14 to make child abuse material: 3 years 9 months, non-parole period 2 years 9 months

State offences aggregate sentence: 14 years' imprisonment; non-parole period of 10 years commencing 23 July 2020, with eligibility for parole consideration from 22 July 2030; balance of term commencing 23 July 2030 and expiring 22 July 2034.

Federal offence (Offence 4): 1 year 6 months' imprisonment commencing 23 July 2020, expiring 22 January 2022; no non-parole period fixed, sentence subsumed within the State aggregate.

Other: Registrar directed to forward the forensic psychologist's report to Corrective Services; offender warned of potential application of the Crimes (High Risk Offenders) Act 2006, s 25C.

Key Takeaways

  • The District Court treated the combination of an enormous volume of child abuse material across multiple devices, a lengthy period of offending prior to detection, and direct contact offences against children in the offender's care as cumulatively serious factors warranting a substantial aggregate sentence.

  • Abuse of trust was given significant weight where child victims were permitted by their parents to stay overnight in the offender's home, and the offending occurred in that context of responsibility and vulnerability.

  • A modest finding of special circumstances was made, extending the balance of term beyond the standard ratio, reflecting the rehabilitation considerations relevant to this offender.

  • Haesler SC DCJ expressly criticised the Interpol two-category classification system for child abuse material as insufficiently granular to assist courts in comparing and grading relative seriousness, contrasting it unfavourably with the former 10-point Copine scale and the five-point SAP or Oliver scale used in England and Wales.

  • Under s 289B of the Criminal Procedure Act 1986, the court accepted that reviewing and summarising a representative sample of child abuse material, rather than the entire volume, was an appropriate and sufficient procedure for sentencing purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 91G(1)(a), 91H(2), 578
- Criminal Code Act 1995 (Cth), s 474.22(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 289B

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney