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District Court 2 June 2023

R v RZ

[2023] NSWDC 181

Sexual offences
CRIME PRODUCE CHILD ABUSE MATERIAL.

Citation: R v RZ [2023] NSWDC 181
Court: District Court of New South Wales
Date: 2 June 2023
Judge(s): Mahony SC DCJ

Background

The offender, identified only as RZ, pleaded guilty on 3 May 2023 to seven counts relating to child abuse material. He was aged between 17 and 19 at the time of the offending, which spanned from 29 April 2020 to 10 February 2022. Australian authorities became involved after Luxembourg Police reported that a 10-year-old girl, KB, had been sexually exploited online by an individual in Australia using an Instagram account operated by the offender.

A search warrant executed at the offender's home in February 2022 led to the seizure of multiple electronic devices. Forensic examination revealed a large volume of child abuse material stored across an iPhone, two iPads, a laptop, and a cloud storage application operated under a false username. The offender had also transmitted child abuse material extensively across Instagram, Telegram, and Snapchat.

The offender was born with achondroplasia (dwarfism), left school early due to COVID-19, was unable to obtain employment, and had no prior criminal history. He had spent 243 days on remand by the time of the sentence hearing. A suppression and non-publication order was made anonymising his name, primarily because he was a minor at the time of several of the offences.

Legal Issues

  • What was the appropriate objective seriousness of each of the seven counts, including five Commonwealth offences (maximum 15 years) and two State offences (maximum 10 years)?
  • How should the court treat rolled-up charges when assessing seriousness and structuring sentence?
  • What weight should be given to the offender's youth and immaturity, given that offending straddled ages 17 to 19?
  • How should the court balance general deterrence (of primary importance in child abuse material offending) against the emphasis on rehabilitation for youthful offenders?
  • What discount applied for the guilty pleas, and what additional (non-quantifiable) credit attached to the offender's provision of device passwords?
  • How should aggregate sentences for the Commonwealth and State offences be structured, and how should the principle of totality apply across both sets of offences?
  • Whether a non-custodial outcome was appropriate given the offender's personal circumstances and time on remand.

Decision

Objective Seriousness

The court assessed each count individually. The two State offences (Counts 6 and 7, producing child abuse material) were placed at the low end and towards the middle of the low range of seriousness respectively, having regard to the limited number of videos produced and their content, while noting that Count 7 was aggravated by the offender's threat to expose KB's images to others if her parents contacted him (at [106]-[107]). Count 1 (accessing material) fell below the midrange, in the middle of the low range, given the small number of videos accessed (at [109]). Count 2 (transmitting 13 files on one occasion via Telegram) was below the midrange but in the upper part of the low range, having regard to the depraved content (at [110]). Count 3 (transmitting material to three users over approximately 18 months) fell within the midrange (at [111]). Count 4 (transmitting material to three users including 328 identified files with one user, with conduct persisting until eight days before the search warrant) fell within the midrange and towards its high end (at [113]). Count 5 (possession of over 135 videos and 60 images across three devices and a cloud storage application, partly concealed under a false username) was assessed as just below the midrange but objectively very serious (at [114]).

General and Specific Deterrence

The court confirmed that general deterrence and denunciation are of paramount importance in sentencing for offences involving the production and transmission of child abuse material, describing the conduct as "callous and pernicious" offending that feeds a global market (at [121]). Specific deterrence was also significant given the offender's demonstrated sexual interest in children (at [122]). However, the court accepted that the offender's youth and emotional immaturity had the effect of diminishing his moral culpability and reducing the weight to be given to general deterrence, denunciation, and retribution (at [125]).

Youth, Rehabilitation, and Paedophilic Disorder

The court gave substantial weight to the offender's youth. Following the principles in KT v R and BP v R, it held that rehabilitation must be emphasised when sentencing young offenders, and that the offending was relatively unsophisticated and reflected a large degree of emotional immaturity and an absence of impulse control (at [124]-[125]). At the same time, the court accepted Dr Spencer's opinion that the offender fulfils the diagnostic criteria for paedophilic disorder and is at above average risk of sexual recidivism (at [45]-[47], [126]). Prospects of rehabilitation were described as "guarded" pending treatment, and the sentence was structured to allow an extended period of community supervision (at [126]).

Guilty Plea Discount and Other Mitigating Factors

The court assessed the utilitarian discount for the guilty pleas at 25% for each count (at [119]). The court accepted the offender's in-court acknowledgment that his earlier denials of sexual interest in children to the Sentencing Assessment Report author and Dr Spencer were untrue, and accepted his explanation that fear of physical harm in custody (because of his dwarfism) motivated those denials (at [49], [119]). The court found he had expressed genuine remorse and contrition. The provision of device passwords was treated as limited assistance to law enforcement warranting some (non-quantifiable) credit (at [120]).

Aggregate Sentences and Totality

The court sentenced the offender by way of aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Applying the totality principle, it imposed a 6-month aggregate sentence (non-parole period of 3 months) for the two State offences commencing 3 September 2022, and an aggregate sentence of 2 years and 9 months for the five Commonwealth offences commencing 3 December 2022, with a recognizance release order operative after 18 months. The total effective sentence was 3 years imprisonment with a non-parole period of 21 months (at [132]-[133]).

Orders Made

  • Conviction recorded on all seven counts.
  • State offences (Counts 6 and 7): Aggregate sentence of 6 months imprisonment, with a non-parole period of 3 months commencing 3 September 2022 and expiring 2 December 2022; balance of term 3 months.
  • Commonwealth offences (Counts 1 to 5): Aggregate sentence of 2 years and 9 months commencing 3 December 2022; recognizance release order operative from 2 June 2024 and expiring 2 September 2025, on conditions including good behaviour, supervision by Community Corrections, no interstate or overseas travel without permission, and participation in directed treatment and rehabilitation programs.
  • Total effective sentence: 3 years imprisonment with a non-parole period of 21 months; eligible for release on 2 June 2024.
  • Forfeiture orders under s 23ZD of the Crimes Act 1914 (Cth) in respect of an iPad Mini, HP Laptop, iPad, and Apple iPhone.
  • Suppression and non-publication order made anonymising the offender as "RZ", to apply in New South Wales until further order.

Key Takeaways

  • General deterrence and denunciation remain of paramount importance in sentencing for child abuse material offences, reflecting the serious harm caused to real child victims and the global market fed by online transmission (at [121]).

  • Where an offender was a minor for part of the relevant conduct, courts must give substantial weight to rehabilitation over retributive sentencing objectives, even where the offending is serious and straddled into adulthood (at [124]-[125]).

  • A diagnosis of paedophilic disorder and an above-average Static-99R recidivism risk score does not preclude a finding of some remorse or rehabilitation potential, but will limit the optimism of that finding and influence how a sentence is structured, particularly in relation to the length of the supervision period upon release (at [126]).

  • Denials made to forensic and correctional assessors prior to sentence can be revisited and explained in evidence, and a court may accept a plausible explanation (here, fear of physical harm in custody) for those denials when assessing subjective factors such as remorse (at [49], [119]).

  • Under s 16A(2AAA) of the Crimes Act 1914 (Cth), a sentencing court must have regard to the objective of rehabilitating the offender, including by structuring the non-parole period and any supervision conditions to allow sufficient time for participation in treatment programs such as the High Intensity Sex Offender Program (at [126]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987
- Court Suppression and Non-Publication Orders Act 2010
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Crimes ( Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth)

Cases
- BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159
- CDPP v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170
- CW v R [2022] NSWCCA 50
- KT v R (2008) A Crim R 51; [2008] NSWCCA 51
- R v Burton [2020] NSWCCA 127
- R v Cahyadi [2007] NSWCCA 1
- R v Clarkson (2011) 32 VR 361
- R v Edwards [2019] QCA 15
- R v Hutchinson [2018] NSWCCA 152
- R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174