Citation: R v Pollard [2023] NSWDC 36
Court: District Court of New South Wales
Date: 24 February 2023
Judge(s): Mahony SC DCJ
Background
The offender, a 60-year-old man, pleaded guilty to two Commonwealth offences arising from conduct in May 2020 at Malabar, NSW. Police attended his home to conduct a routine inspection under the Child Protection (Offender's Registration) Act 2000 (NSW), as he had been a registerable person on the Child Protection Register since approximately March 2010. During that inspection, officers noticed a locked, password-protected folder on his mobile phone.
After arresting the offender for a separate suspected breach of his reporting obligations, police seized the phone and conducted a forensic examination using Cellebrite software. That examination revealed the secure folder contained a large volume of child abuse material, including 20,850 images and 1,637 video files. A sample of those files disclosed Category 1 and Category 2 material under the Interpol Baseline categorisation system.
The transmission offence (Count 1) related to the offender sending two Category 1 video files, depicting the sexual abuse of prepubescent female children, to another user via the encrypted messaging application Wickr on 6 May 2020. The possession offence (Count 2) arose from the broader contents of the secure folder discovered the following day.
Legal Issues
- The appropriate aggregate sentence for two serious Commonwealth child abuse material offences, each carrying a maximum of 15 years imprisonment
- The weight to be given to the offender's criminal history, including prior convictions for child sex offences involving contact with children
- The relevance of subjective factors including childhood trauma, a partner's serious illness at the time of offending, and expressed willingness to undergo rehabilitation
- The application of a utilitarian discount for a late guilty plea
- The application of the totality principle given the overlap between the two counts
Decision
Mahony SC DCJ imposed an aggregate sentence, noting that while the two offences shared some overlap (the two videos transmitted in Count 1 were also part of the possession material in Count 2), they were distinct criminal acts requiring some accumulation of sentence. The court applied the totality principle to arrive at a sentence that reflected the overall criminality without being crushing.
The offender's criminal history was described as "lamentable," spanning decades and including prior convictions for aggravated indecent assault and indecent assault on a child under 10 years. The Sentencing Assessment Report noted that, despite the seriousness of the current offending, it appeared to represent a de-escalation from prior contact offending. The offender was assessed as a medium risk of general reoffending and above-average risk of sexual recidivism.
The court considered several subjective factors in mitigation: the offender's childhood abuse at a boys' home, his partner's serious illness at the time of the offending, his expressed remorse and insight into the victimisation of the children depicted, and his willingness to engage in rehabilitation. These factors were weighed against the objective seriousness of the offences and the offender's failure, despite apparent stress, to seek legitimate assistance.
A 10% utilitarian discount was applied to each count for the late guilty plea. The indicative sentence for Count 1 was 2 years and 8 months, and for Count 2 was 4 years and 6 months. The aggregate sentence, arrived at after applying the totality principle, was 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months.
Orders Made
- Conviction entered on Count 1: transmitting child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code 1995 (Cth)
- Conviction entered on Count 2: possessing or controlling child abuse material in a data storage device accessed via a carriage service, contrary to s 474.22A(1) of the Criminal Code 1995 (Cth)
- Aggregate sentence of 5 years and 6 months imprisonment imposed
- Non-parole period of 3 years and 6 months, commencing 2 June 2021 and terminating 1 December 2024
- Balance of term: 2 years, commencing 2 December 2024 and terminating 1 December 2026
- Recommendation that the offender undergo rehabilitation for child sex offending, if available, in custody and upon release
- The offender's mobile phone forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth)
Key Takeaways
- An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to provide indicative sentences for each count to maintain transparency, even where a single combined term is ultimately imposed.
- Where two counts share overlapping conduct (here, the same video files appearing in both the transmission and possession charges), the totality principle requires some accumulation but prevents double punishment for the same acts.
- A prior history of contact-based child sex offending is a significant aggravating factor in sentencing for child abuse material offences, notwithstanding a Sentencing Assessment Report characterising the current offending as a relative de-escalation.
- The District Court gave limited weight to the offender's explanation that stress from a family member's illness contributed to the offending, particularly where no steps were taken to seek legitimate support.
- Late guilty pleas attracted only a 10% utilitarian discount, reflecting the timing of the pleas rather than the maximum discount available for early cooperation.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), s 23ZD
- Child Protection (Offender's Registration) Act 2000 (NSW), s 16C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases cited: No cases were cited in the judgment as provided.