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District Court 20 January 2023

R v Mannah

[2023] NSWDC 96

Sexual offences
CRIME SENTENCE COMMONWEALTH OFFENCES

Citation: R v Mannah [2023] NSWDC 96
Court: District Court of New South Wales
Date: 20 January 2023
Judge: Bourke SC DCJ

Background

The offender was a police sergeant employed in the transit police who also volunteered for COVID-19 hotel quarantine duties during 2020 and 2021. Following telephone and internet interception warrants, investigators identified approximately 5,000 images meeting the definition of child abuse material associated with his mobile phone service and home internet connection between August 2020 and January 2021. He was arrested in January 2021.

The offender stood trial before a jury in September 2022. The jury acquitted him on a second count but convicted him on count 1: using a carriage service to access child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code. That offence carries a maximum penalty of 15 years' imprisonment.

The sentencing remarks address the appropriate penalty, taking into account the nature and volume of the material accessed, the offender's personal circumstances, and the requirements of the Commonwealth sentencing framework.

  • How the objective seriousness of the offence should be assessed given the volume, nature, and content of the material
  • Whether the offender's status as a serving police officer constituted an aggravating factor
  • How mitigating factors, including mental health, remorse, and rehabilitation prospects, should be weighed
  • What sentence was appropriate under the Commonwealth sentencing framework, including the proper relationship between the head sentence and any recognisance release order

Decision

Objective seriousness: The court found the offence was a serious example of its kind, though not the most serious that could be imagined. The 5,000 images were accessed over more than five months, constituting a course of conduct rather than an isolated act. The vast majority depicted real children posing in a sexually suggestive manner; a smaller number depicted explicit sexual activity including penetrative conduct. The court assessed the offender's moral culpability as moderate and placed the offence somewhat below the mid-range of objective seriousness, but not in the low range.

Aggravating factors: The offender's position as a police sergeant was treated as a significant aggravating factor. He held a position of public trust and was bound by oath to uphold the law, factors the court regarded as materially worsening the offending. The duration of the conduct and the deliberate searching behaviour also told against him.

Mitigating factors: The court accepted several matters in mitigation, including that the material was accessed for personal use only, that it was not saved, sold, or disseminated, and that there was no financial motivation. The offender had no prior convictions. Expert evidence from Dr Nielssen did not support a finding of a specific paraphilic attraction to prepubescent children. The court also gave weight to the offender's cooperation and the steps he had taken toward rehabilitation.

Sentence: Applying the Commonwealth framework under s 16A of the Crimes Act 1914 (Cth), and noting that there is no predetermined ratio between a head sentence and a recognisance release order in Commonwealth matters, the court imposed a 12-month term of imprisonment with release after four months on a Recognisance Release Order.

Orders Made

  • The offender was sentenced to 12 months' imprisonment, backdated to commence 19 January 2023, expiring 18 January 2024.
  • Release by Recognisance Release Order after four months (release date 18 May 2023), for a period of two years, on security of $100.
  • Conditions of the Recognisance Release Order:
  • Be of good behaviour and not commit any offence
  • Be subject to supervision by a probation officer
  • Comply with any referral to a Corrective Services NSW forensic psychologist for sex offender supervision assessment
  • Undertake treatment or rehabilitation programs as directed by the probation officer
  • Obey all reasonable directions of the probation officer
  • Not travel interstate or overseas without written permission of the probation officer
  • Forfeiture of the mobile device used to access the material, with the Crown to preserve family photographs before destruction.

Key Takeaways

  • A serving police officer's breach of public trust was treated as a significant aggravating factor in sentencing for a child abuse material offence, even where the conduct occurred privately and off duty.
  • The District Court assessed objective seriousness by reference to factors identified in R v Hutchinson [2018] NSWCCA 152, including the volume of material, the proportion depicting real children, the nature and gravity of the conduct shown, whether the material was disseminated, and the duration of the offending.
  • Accessing child abuse material without paying for it does not mitigate the offence, because even passive access feeds the market for such material.
  • Under the Commonwealth sentencing framework, no fixed or default ratio applies between the head sentence and the non-parole period or recognisance release order; the sentencing court must weigh all relevant facts and circumstances individually.
  • Harm to child victims depicted in such material is presumed, and the court noted the additional harm arising from the possibility that material may remain in circulation, causing ongoing shame and distress to victims as they age.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 474.22(1)
- Crimes Act 1914 (Cth), s 16A, s 20(1)(b)

Cases
- Hili and Jones v R [2010] 242 CLR 520
- R v Clarkson [2011] 32 VR 361
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174
- R v Skinner [2016] 126 SASR 120
- Totaan v R [2022] NSWCCA 75
- Western Australia v Collier (2007) 179 A Crim R 310