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District Court 11 March 2022

R v Dregmans

[2022] NSWDC 55

Sexual offences
SENTENCING FEDERAL OFFENCE POSSESSION OF CHILD ABUSE MATERIAL OBJECTIVE GRAVITY

Citation: R v Dregmans [2022] NSWDC 55
Court: District Court of New South Wales
Date: 11 March 2022
Judge: Abadee DCJ

Background

The offender pleaded guilty to a single federal offence under s 474.22A(1) of the Criminal Code Act 1995 (Cth): possessing or controlling child abuse material and using a carriage service to obtain or access it. The maximum penalty for this offence is 15 years' imprisonment. The offending occurred between January and March 2021 at a residential address in Willoughby.

Australian Federal Police executed a search warrant at the offender's home on 17 March 2021 and seized a Samsung Galaxy S8 mobile phone. The phone contained a short video depicting a pre-pubescent child (categorised as Category 1 material under the Interpol baseline system) and a separate still image of a pubescent male (Category 2). Both items were received through WhatsApp following a conversation with a contact known as "Ohrin" on the Grindr platform.

A central factual dispute at sentencing concerned the offender's account of why he engaged in the relevant WhatsApp conversation and whether it genuinely reflected a sexual interest in children. The offender maintained that he was attracted to Ohrin and that his statements in the conversation, including references to interest in underage individuals, were fabricated to facilitate further sexual contact with Ohrin rather than expressing a true sexual interest in children.

  • What was the objective gravity of the offending, having regard to the disputed circumstances in which the offender obtained the material and the nature of any sexual interest in children?
  • Whether the offender's account of his motivations could be accepted, given that the prosecution bore no onus to disprove it beyond a reasonable doubt but the court was not required to accept it if the account was implausible or unsupported
  • Whether a sentence other than imprisonment was appropriate for this federal offence, and whether "exceptional circumstances" existed to justify a recognisance release order under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth)
  • Whether, if a term of imprisonment was to be imposed, it could be served by way of an Intensive Correction Order (ICO)

Decision

Abadee DCJ approached the factual dispute with care, noting that under the principles in The Queen v Olbrich (1999) 199 CLR 270, the prosecution was not required to disprove the offender's account beyond reasonable doubt. However, the court was not obliged to accept an account that was implausible or inconsistent with other established facts. The offender's evidence was tested under cross-examination, and his explanations for key statements in the WhatsApp conversation (including that he did not understand "Cp" to mean child pornography, and that he fabricated his expressed interest in underage individuals) were scrutinised carefully.

The court considered the offender's personal circumstances, including his forensic psychological assessment prepared by Ms Delphine Bostock, his guilty plea, his relatively limited prior involvement with such material, and his expressions of remorse. These factors informed the assessment of objective and subjective gravity and the appropriate form of sentence.

On the question of imprisonment, the court accepted the offender's concession that "exceptional circumstances" existed within the meaning of s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), which governs the sentencing of federal offenders. The court agreed with that concession. The consequence of this finding, combined with the peremptory terms of s 20(1)(b)(iii), was that a sentence of imprisonment had to be imposed but the offender was to be released immediately upon entering a recognisance. The court considered it appropriate to attach conditions requiring continued psychological support, supervision by a probation officer, and restrictions on travel, noting these measures addressed the low but not negligible prospect of reoffending.

The court noted that it was unnecessary to resolve the contested question of whether an ICO was available for this offence, though it observed that some support for the prosecution's position on that question appeared in R v Pedersen [2021] NSWDC 535.

Orders Made

  • The offender was convicted of possessing child sexual abuse material and using a carriage service to obtain or access it.
  • Sentenced to two years' imprisonment, with immediate release upon entering a recognisance of $5,000 (without security), subject to the following conditions over a four-year good behaviour period:
  • Receive psychological counselling from Ms Delphine Bostock or a nominated replacement psychologist
  • Submit to supervision by a probation officer and comply with all reasonable directions
  • Not travel interstate or overseas without the written permission of the probation officer
  • Undertake any further treatment or rehabilitation programs reasonably directed by the probation officer
  • Report to the St Leonards Community Corrections Office within seven days
  • The Samsung Galaxy S8 mobile phone was forfeited to the Commonwealth, by consent, pursuant to s 23ZD of the Crimes Act 1914 (Cth)

Key Takeaways

  • Under the federal sentencing framework in Part 1B of the Crimes Act 1914 (Cth), where "exceptional circumstances" are established under s 20(1)(b)(ii), the court must still impose a term of imprisonment but may order immediate release on a recognisance, rather than the offender serving time in custody.
  • A factual dispute at sentencing about the offender's motivations does not require the prosecution to disprove the offender's account beyond reasonable doubt; however, following Olbrich, a sentencing court retains the capacity to reject an account that is implausible or inconsistent with agreed facts.
  • The District Court left unresolved whether an ICO is available as a sentencing option for this category of federal offence, noting only that authority exists supporting the prosecution's view that it is not, without deciding the point.
  • Conditions attached to a recognisance release order can include mandatory psychological treatment, probation supervision, and travel restrictions, where these address the risk of reoffending assessed in the forensic evidence.
  • Possession of child abuse material via a carriage service under s 474.22A(1) of the Criminal Code Act 1995 (Cth) carries a maximum penalty of 15 years' imprisonment, and the sentencing discretion is exercised by reference to the full range of factors in s 16A(2) of the Crimes Act 1914 (Cth), including the nature and extent of the offender's interest in the material.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth) s 474.22A
- Crimes Act 1914 (Cth) ss 16A, 17A, 20, 23ZD
- Crimes Act 1900 (NSW) s 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 67

Cases
- The Queen v Olbrich (1999) 199 CLR 270
- Hili v R; Jones v R (2010) 242 CLR 520
- Boulton v R (2014) 46 VR 308
- Burton v R [2020] NSWCCA 127
- R v De Leeuw [2015] NSWCCA 183
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174
- R v Poynder [2007] NSWCCA 157
- R v Wran [2019] NSWSC 1015
- R v Pedersen [2021] NSWDC 535