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District Court 13 May 2022

R v Tomlinson

[2022] NSWDC 220

Sexual offences
CRIME SENTENCE COMMONWEALTH OFFENCE PREVIOUS OFFENCE REGISTRABLE PERSON MANDATORY MINIMUM SENTENCE

Citation: R v Tomlinson [2022] NSWDC 220
Court: District Court of New South Wales
Date: 13 May 2022
Judge: Sutherland SC DCJ

Background

The offender, a man in his late twenties, appeared for sentencing on a single Commonwealth charge of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth). The offence carries a maximum penalty of 15 years' imprisonment. Because the offender had prior convictions for child sexual offences, a mandatory minimum sentence of four years' imprisonment applied.

The offending came to light on 3 August 2020 when police conducted a routine compliance inspection at the offender's home under the Child Protection (Offenders Registration) Act 2000 (NSW). The offender was a registrable person by reason of 2019 convictions for indecent assault and aggravated acts of indecency involving children. During the inspection, officers observed him using his mobile phone and holding it against his chest to conceal the screen. When they inspected the phone with his consent, they immediately found child abuse material.

A forensic examination of the phone revealed 539 images of child abuse material: 419 categorised as Interpol Baseline Category 1 (depicting real children in sexual acts) and 120 as Category 2. The images involved children as young as one year old. Web history analysis confirmed the offender had deliberately searched for and accessed the material overnight on 2 to 3 August 2020, using explicit search terms targeting young children.

  • What sentence was appropriate given the mandatory minimum of four years' imprisonment under the Criminal Code (Cth) for a repeat child offender?
  • How should the court apply the Bugmy principles (addressing the relevance of deprived background to moral culpability) in the context of a mandatory minimum sentence regime?
  • What discount for a guilty plea was appropriate, taking into account the mandatory minimum?
  • How should the court weigh objective seriousness, subjective circumstances, and the impact of COVID-19 conditions in custody?

Decision

Sutherland SC DCJ assessed the objective seriousness of the offending as falling towards the low end of the mid-range. The court noted the large volume of material accessed (539 images), the very young ages of the children depicted, and the deliberate and targeted nature of the online searches. The offending also occurred against the backdrop of the offender's existing registration obligations, which he was in the process of fulfilling when police attended.

The court considered the offender's difficult personal background, including deprivation and disadvantage, applying the Bugmy principles. While those circumstances were accepted as relevant to moral culpability, their mitigating weight was constrained by the mandatory minimum sentencing framework. The offender's criminal history, which included prior violence and the specific predicate child sexual offences that triggered the minimum sentence, weighed against him.

On the question of the guilty plea discount, the court applied a 20 percent reduction rather than the maximum available 25 percent, having regard to the mandatory minimum of four years. The court arrived at a starting point of five years' imprisonment, reduced to four years after the discount. The court also took into account the additional burden of imprisonment during the COVID-19 pandemic, including prolonged lockdowns and periods of isolation, as a factor making custody more onerous.

A non-parole period of two years was fixed, commencing 15 January 2021 and expiring 14 January 2023, with the balance of term expiring 14 January 2025. The court found that the level of supervision the offender would require on release justified a non-parole period representing half of the total sentence.

Orders Made

  • Total sentence of four years' imprisonment imposed, with a non-parole period of two years.
  • Non-parole period to commence 15 January 2021 and expire 14 January 2023; balance of term to expire 14 January 2025.
  • Forfeiture order made pursuant to s 23(z)(d) of the Crimes Act 1914 (Cth), forfeiting an XTE Optus X Wave mobile phone (exhibit number X0003648286) to the Commonwealth, on application by the Director of Public Prosecutions for the Commonwealth.

Key Takeaways

  • A conviction under s 474.22(1) of the Criminal Code (Cth) where the offender is a registrable person with prior child abuse offences triggers a mandatory minimum of four years' imprisonment, which directly limits the sentencing court's discretion when applying guilty plea discounts.
  • The District Court confirmed that Bugmy principles remain applicable in mandatory minimum sentencing regimes, but their practical mitigating effect is necessarily constrained by the legislative floor.
  • Where a guilty plea discount would otherwise reduce a sentence below the statutory minimum, the court may cap the discount to ensure compliance with the mandatory minimum, even if the offender would ordinarily qualify for a higher percentage reduction.
  • The volume and category of child abuse material, the age of the victims depicted, and the deliberate use of targeted search terms are all relevant factors in assessing objective seriousness within this offence type.
  • Conditions of imprisonment during the COVID-19 pandemic, including extended lockdowns and isolation, were treated by the District Court as a relevant consideration capable of affecting the overall sentencing assessment.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), s 23(z)(d)
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 16C

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Magaming v The Queen (2013) 252 CLR 381
- Bahar v R (2011) 45 WAR 100
- DPP v D'Alessandro [2010] VSCA 60
- Heathcote (a pseudonym) v The Queen [2014] VSCA 35
- Hong v R [2017] NSWCCA 238
- Ingrey v R [2016] NSWCCA 31
- Minehan v The Queen [2010] NSWCCA 140
- R v Callaghan [2006] NSWCCA 58
- R v Delzotto [2021] NSWDC 325
- R v Gent [2005] NSWCCA 370
- R v Glasheen [2021] NSWDC 544
- R v Hurt (No 2) [2021] ACTSC 241
- R v Hutchinson [2018] NSWCCA 152
- R v Large [2021] NSWDC 429
- R v McCall [2022] NSWDC 78
- Dui Kol v R [2015] NSWCCA 150