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District Court 24 August 2023

R v Orvad

[2023] NSWDC 495

Sexual offences

Citation: R v Orvad [2023] NSWDC 495
Court: District Court of New South Wales
Date: 24 August 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to one count of possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth). The offence carries a maximum penalty of 15 years' imprisonment. The conduct spanned from June 2020 to March 2022, during which the offender accumulated material across three separate devices using the internet.

Police executed a search warrant on the offender's home in March 2022 and seized the devices. The offender was arrested in July 2022 and remained in custody from that date. The agreed facts before the court included more than 90,000 files of child abuse material, systematically organised across two hard disk drives and an iMac computer, involving both images of real children and animated or cartoon material.

The offender also asked the court to take into account, under a s 16BA schedule pursuant to the Crimes Act 1914 (Cth), a further offence of transmitting and causing to transmit child abuse material using a carriage service. That schedule offence related to transmissions in April 2017 and February 2020 via iChat conversations, during which the offender both sent and received child abuse material.

  • What was the appropriate sentence for large-scale possession of child abuse material obtained via carriage service, taking into account the volume, nature, and organisation of the material?
  • How should the court weigh the objective seriousness of the offending against significant mitigating factors, including an early guilty plea, remorse, rehabilitation efforts, and previously good character?
  • What weight should be given to the s 16BA schedule offence (transmission) when formulating the sentence for the principal possession offence?
  • Whether a full-time custodial sentence was the only appropriate penalty, and how the non-parole period should be structured.

Decision

Haesler SC DCJ assessed the objective seriousness of the offending as high. The volume of material (over 90,000 files), its systematic organisation, the graphic nature of many images including penetrative acts involving very young children, and the presence of real children in much of the material all weighed heavily. The court drew on the guidance in R v Booth [2009] NSWCCA 89, noting that possession of child pornography is regarded by the community as callous and predatory, and that each act of access perpetuates and encourages the abuse of real children.

The court also addressed the animated and cartoon material. While cartoons do not involve the exploitation of real children, the court relied on Holland v R (2005) 154 A Crim R 396 for the proposition that criminalising fantasy images reflects the need to shield the community from harm and children from exploitation. The court noted that such material caters to a distorted view of reality in which sexual acts involving children are treated as appropriate.

On the mitigating side, the court accepted the utilitarian value of the early guilty plea and applied a 25% reduction to the sentence that would otherwise have been imposed. The offender's remorse, engagement with psychological treatment, rehabilitation prospects, and previously good character were all acknowledged. However, the court found that these positive factors had to be weighed against the need for appropriate punishment and the importance of general deterrence in offences of this kind.

The court concluded that a full-time custodial sentence was the only appropriate penalty. Both the sentence length and the non-parole period reflected the seriousness of the offending and the applicable sentencing principles, synthesised together through what the court described as the instinctive synthesis approach.

Orders Made

  • The offender was convicted and sentenced to 3 years and 4 months' imprisonment, commencing 12 July 2022.
  • A non-parole period of 2 years was fixed, running from 12 July 2022 and expiring 11 July 2024, on which date the offender is to be released to parole (subject to s 19AL of the Crimes Act 1914 (Cth)).
  • The sentence concludes on 25 November 2025.
  • An order for forfeiture of the three devices was made under s 23ZD of the Crimes Act 1914 (Cth), to lie in the court for 28 days to allow the offender to retrieve any material not the subject of criminal proceedings.
  • A child protection registration order was made under the Child Protection (Offenders Registration) Act 2000 (NSW), the court having found a possible risk to the sexual safety of children generally.
  • A copy of the psychologist's report was directed to accompany the warrant to the correctional facility.

Key Takeaways

  • The District Court confirmed that possession of large volumes of systematically organised child abuse material, including graphic images of real children, will attract a significant full-time custodial sentence even where substantial mitigating factors are present.
  • A 25% reduction for an early guilty plea was applied, consistent with the utilitarian value of the plea, while the court treated remorse and rehabilitation prospects as part of the broader instinctive synthesis rather than as discrete additional discounts.
  • Under the s 16BA schedule mechanism in the Crimes Act 1914 (Cth), a court may take a related offence into account when formulating the sentence for the principal offence, without imposing a separate penalty for the schedule matter and without double-counting it.
  • Animated and cartoon child abuse material, while not involving the direct exploitation of real children, was treated as a serious aggravating feature, consistent with the policy rationale articulated in Holland v R that such material caters to distorted attitudes about children and sexual conduct.
  • Positive personal antecedents, remorse, and demonstrated rehabilitation do not displace the primacy of general deterrence and appropriate punishment in sentencing for serious child abuse material offences; they are weighed together with those other principles in the overall synthesis.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.22(1)(a)(iii), 474.22A(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17, 19AL, 23ZD
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
- Dennis v The Queen [2017] VSCA 251
- DPP v Smith [2010] VSCA 215
- Hili v The Queen (2010) 242 CLR 520
- Holland v R (2005) 154 A Crim R 396
- Hutchinson v R [2022] VSCA 217
- R v Booth [2009] NSWCCA 89
- R v De Leeuw [2015] NSWCCA 183
- R v Hutchison [2018] NSWCCA 152
- R v Martin [2014] NSWCCA 283
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
- Totaan v R [2022] NSWCCA 75