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District Court 24 November 2022

R v Selby

[2022] NSWDC 583

Sexual offences
CRIME SENTENCE POSSESS OR CONTROL CHILD ABUSE MATERIAL S16BA SCHEDULE OFFENCE

Citation: R v Selby [2022] NSWDC 583
Court: District Court of New South Wales
Date: 24 November 2022
Judge: Mahony SC DCJ

Background

The offender, born in 1979, pleaded guilty to eight offences under the Criminal Code 1995 (Cth) involving child abuse material. The offending spanned approximately seven years, from May 2014 to September 2021, and involved multiple encrypted and social media platforms including Wickr, Telegram, Facebook Messenger, Grindr, and Snapchat.

Australian Federal Police executed a search warrant at the offender's Surry Hills residence on 17 September 2021, seizing his iPhone and laptop. A recorded interview was conducted at that time. Analysis of the devices revealed the child abuse material underlying the charges, as well as communications with other individuals discussing and exchanging that material.

The offender was arrested and spent 42 days in custody before being granted Supreme Court bail on onerous conditions, including home detention and a requirement that he only leave his residence in the company of his husband. Police regularly exercised an enforcement condition attached to that bail.

  • What aggregate sentence was appropriate across eight counts, each carrying a maximum of 15 years imprisonment, where the offending spanned several years and involved multiple platforms and categories of material?
  • How should the court treat a scheduled offence under s 16BA of the Crimes Act 1914 (Cth) in the aggregate sentencing exercise?
  • Whether the statutory ratio between head sentence and non-parole period should be varied in the circumstances.

Decision

Mahony SC DCJ imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Each offence carried a maximum of 15 years imprisonment. The material involved was of the most serious classification under the Australian Child Abuse Categorisation Schema (ACACS), with several items rated Category 1. The offending included possession, access, transmission, solicitation, and production of child abuse material, the last involving an intention that the material be used by another person to commit a further offence.

The court accepted the guilty pleas and took into account a scheduled offence (Sequence 10: transmission of child abuse material on 28 February 2020) in accordance with s 16BA of the Crimes Act 1914 (Cth), certifying that it had been considered when sentencing on Sequence 12. The court also noted that the definition of "child abuse material" in the Criminal Code was expanded on 21 September 2019 to absorb what had previously been defined as "child pornography material," which affected how the earlier counts (Sequences 5 and 9, predating that amendment) were characterised.

The court determined that a departure from the standard statutory ratio between the head sentence and non-parole period was warranted, imposing a non-parole period of 2 years against a total term of 4 years. The non-parole period was backdated by 42 days to account for the time already spent in pre-sentence custody.

Orders Made

  • Conviction recorded on all eight counts (Sequences 1, 2, 5, 9, 11, 12, 13, and 14) pursuant to the relevant provisions of the Criminal Code 1995 (Cth).
  • Aggregate sentence of 4 years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 13 October 2022 and expiring 12 October 2026.
  • Non-parole period of 2 years, commencing 13 October 2022 and expiring 12 October 2024; balance of term of 2 years to expire 12 October 2026.
  • Scheduled offence (Sequence 10) certified as taken into account under s 16BA of the Crimes Act 1914 (Cth) in relation to the sentence on Sequence 12.
  • Forfeiture order made under s 23ZD of the Crimes Act 1914 (Cth) in respect of the offender's iPhone and laptop computer.

Key Takeaways

  • The District Court applied the aggregate sentencing regime under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to a series of Commonwealth child abuse material offences spanning multiple platforms and several years.
  • Under s 16BA of the Crimes Act 1914 (Cth), a court sentencing for a principal offence may take into account a scheduled offence admitted by the offender and certify accordingly, which the court did here in relation to Sequence 12.
  • A non-parole period shorter than the standard statutory ratio was imposed, reflecting the court's assessment that special circumstances existed warranting departure from that default.
  • Pre-sentence custody of 42 days, including a period on strict home detention bail, was backdated against the commencement of the sentence.
  • The definitional expansion of "child abuse material" under the Criminal Code on 21 September 2019 (to absorb the former category of "child pornography material") affected the characterisation of offences that predated the amendment, though not their maximum penalties.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.19(1), 474.22(1), 474.22A, 474.23(1), 473.1
- Crimes Act 1914 (Cth), ss 16BA, 23ZD
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases cited:
- DPP v Smith [2010] VSCA 215
- Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140
- R v Burton [2020] NSWCCA 127
- R v Cahyadi [2007] NSWCCA 1
- R v Edwards [2019] QCA 15
- R v Fuller [2010] NSWCCA 192
- R v Hutchinson [2018] NSWCCA 152