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District Court 27 April 2022

R v Khqustiaan

[2022] NSWDC 128

Sexual offences
SENTENCING FEDERAL OFFENCE CONSIDERATION OF MINEHAN FACTORS CRIMES ACT 1914 (CTH) S 20(1)(B)(III) CONSIDERATION OF COMPARABLE CASES

Citation: R v Khqustiaan [2022] NSWDC 128
Court: District Court of New South Wales
Date: 27 April 2022
Judge: Abadee DCJ

Background

Following a five-day jury trial at Parramatta, the offender was convicted of transmitting child abuse material on a carriage service on 3 August 2020, contrary to s 477.22(1) of the Criminal Code 1995 (Cth). The offence carries a maximum penalty of 15 years' imprisonment.

The facts were largely undisputed. Australian Federal Police, acting on information from New Zealand counterparts, deployed an Online Covert Operative who posed as a contact on the encrypted messaging application Signal. The jury determined that the offender, using the alias "Tom" and a mobile phone connected to the Vodafone network, transmitted six videos depicting child sexual abuse to the operative. Five of the six videos were classified at Interpol Category 1, the most serious category, depicting prepubescent children under 13 years engaged in sex acts. The offender also sent text messages of a sexually exploitative nature referencing young children during the same exchange.

The offender denied at interview that he was the person who sent the material, suggesting family members may have used his phone. The jury rejected that account. The sole question at sentencing was the appropriate federal sentence, including whether the statutory threshold of "exceptional circumstances" had been met to justify immediate release on a recognisance release order.

  • What were the nature and circumstances of the offending, including its objective gravity?
  • What personal and subjective factors applied to the offender at sentencing?
  • Whether "exceptional circumstances" existed under s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) and the principles in Minehan v R (2010) 201 A Crim R 243 so as to permit immediate release on a recognisance release order rather than a term of full-time custody.
  • How comparable cases should inform the appropriate head sentence and non-parole period.
  • Whether the court should inspect a photographic booklet of stills from the videos, beyond the agreed written descriptions.

Decision

Objective gravity of the offending

The District Court found the offending to be objectively serious. The videos transmitted included Interpol Category 1 material depicting very young children, some approximately four to five years of age, being subjected to sexual abuse. The Court inspected a photographic booklet of stills at the Crown's request, accepting the Crown's submission that the written descriptions alone did not fully convey the ferocity and dominance exhibited by the adult perpetrators or the very young ages of the victims. The accompanying text messages were also treated as relevant to the offender's course of conduct and to establishing specific deterrence as a significant sentencing consideration.

Subjective factors

The Court considered the offender's personal circumstances, including his background and any available mitigating factors. However, the offender maintained his denial of guilt after conviction, which limited the weight available to rehabilitation as a mitigating consideration. The lack of remorse and ongoing denial also bore on the assessment of specific deterrence and rehabilitation prospects. The Court applied the principle from Bugmy v R (2013) that subjective factors are considered within the broader framework of federal sentencing requirements under s 16A of the Crimes Act 1914 (Cth).

The Minehan "exceptional circumstances" question

Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court may release a federal offender immediately on a recognisance release order only if "exceptional circumstances" exist. The Court applied the Minehan principles and considered comparable District Court decisions involving similar offending. After weighing all relevant factors, the Court found that exceptional circumstances did exist in this case, although the judgment text as provided does not elaborate fully on the specific facts that grounded that finding. The result was a sentence structured so that the offender would serve a period of imprisonment before being released on recognisance to complete the balance of the sentence in the community under supervision.

Comparable cases

The Court referred to a range of comparable decisions in New South Wales, Queensland, Victoria, South Australia, and Tasmania to assess the appropriate sentencing range. This cross-jurisdictional survey reflected the requirement under Hili v The Queen (2010) to achieve reasonable consistency in the sentencing of federal offenders.

Orders Made

  • Head sentence of imprisonment, with a custodial period of 2 years, 1 month and 7 days expiring on 7 April 2024.
  • Upon that date, the offender to be released on a recognisance release order, secured by payment of $500, with the balance of the sentence (10 months and 21 days) to be served in the community under probation supervision and subject to compliance conditions.
  • Non-compliance with the recognisance conditions may result in monetary penalty of up to $1,000, extension of the good behaviour period, re-imprisonment for the unserved balance, or no action, pursuant to s 20AA of the Crimes Act 1914 (Cth).
  • Forfeiture of the following items to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth):
  • Samsung Galaxy S10 (IMEI 354651102602940)
  • SIM card for number 0490487547
  • Samsung Galaxy J9 (IMEI 3528020944788263)
  • SIM card for number 0404174051

Key Takeaways

  • The District Court applied the Minehan v R framework and confirmed that the "exceptional circumstances" threshold under s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) must be genuinely satisfied before a federal offender can be released immediately on recognisance rather than serving a term of full-time imprisonment.

  • Transmission of Interpol Category 1 child abuse material involving very young victims is treated as objectively serious offending, with specific deterrence carrying significant weight, particularly where an offender maintains denial of guilt post-conviction.

  • A sentencing court may inspect photographic stills of transmitted material where written descriptions are argued to be insufficient to convey the true nature of the offending, provided procedural fairness is observed, including offering defence counsel the opportunity to view the material first.

  • Cross-jurisdictional comparison of comparable federal offences is a recognised sentencing tool, consistent with the High Court's direction in Hili v The Queen to promote reasonable consistency in federal sentencing outcomes.

  • Under the federal sentencing regime, devices and SIM cards used to commit carriage service offences are liable to forfeiture to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth) upon application by the Commonwealth Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth) s 477.22
- Crimes Act 1914 (Cth) ss 16A, 16B, 16F, 19AC, 19AF, 20, 20AA, 23ZD
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases
- Bugmy v R (2013) 249 CLR 571
- Chenhall v R [2021] VSCA 175
- Dousha v R [2008] NSWCCA 263
- DPP (Cth) v CCQ [2021] QCA 4
- Gifford v R [2016] NSWCCA 302
- Hili v The Queen (2010) 242 CLR 520
- Imbornone v R [2017] NSWCCA 144
- Minehan v R (2010) 201 A Crim R 243
- Olbrich v R (1999) 199 CLR 270
- R v Cunningham [2006] NSWCCA 176
- R v De Leeuw [2015] NSWCCA 183
- R v Gent (2005) 162 A Crim R 29
- R v Houweling [2021] NSWDC 293
- *R