Citation: R v Apps [2024] NSWDC 205
Court: District Court of New South Wales
Date: 3 June 2024
Judge: Scotting DCJ
Background
The offender, a 40-year-old Australian security guard, was intercepted by Australian Border Force officers at Sydney International Airport on 9 June 2023 upon returning from a trip to the Philippines. Officers examining his mobile phone discovered 607 image files of child abuse material, evidence of transmitting such material via Telegram, and text messages in which he offered to pay to procure young girls for sexual intercourse.
The offender pleaded guilty in the Local Court to possessing child abuse material on his device and transmitting child abuse material using a carriage service. He also asked the court to take into account two further Commonwealth offences on a section 16BA schedule: importing child abuse material and accessing child abuse material using a carriage service.
The matter came before the District Court for sentencing. The offender had been in custody since the date of his arrest.
Legal Issues
- What aggregate sentence was appropriate for the federal child sexual offences, having regard to the matters listed in section 16A of the Crimes Act 1914 (Cth)?
- What discount was warranted for the guilty plea, taking into account both its utilitarian value and the offender's willingness to facilitate the course of justice?
- Whether the offender's mental health diagnoses reduced his moral culpability and established a causal connection to his offending conduct.
- Whether a non-custodial sentencing option was available, and what conditions should attach to recognisance release.
Decision
Plea discount: The court found that the Crown case was strong and that the guilty plea saved the need for witnesses at trial. The plea demonstrated acceptance of responsibility, remorse, and a willingness to facilitate the course of justice, warranting a 25 per cent discount (at [6]).
Objective seriousness: The 607 image files depicted female children aged between five and 11 in sexualised poses. The offender transmitted 196 images to another person via Telegram, accompanied by messages indicating sexual interest in the children depicted (at [42]-[43]). Count 5 involved an offer of $2,000 per child for the procurement of females under 12 for sexual intercourse, sent days before his departure to the Philippines (at [44]). The court treated general deterrence as a paramount consideration for this category of federal offending (at [48]).
Mental health: The court expressed reservations about the psychologist's diagnoses, noting they were based solely on the offender's self-reported history without independent verification (at [39]). The court rejected the psychologist's acceptance of the offender's claim to have no sexual interest in children, finding the objective circumstances of the offending pointed to the opposite conclusion (at [39]). The court was not satisfied that a causal connection between the offender's mental condition and his offending was established, or that his moral culpability was reduced (at [53]).
Sentence: An Intensive Corrections Order was not available for these offences (at [10]). The court was satisfied that no penalty other than imprisonment was appropriate (at [57]). An aggregate sentence of 2 years and 6 months was imposed, commencing 9 June 2023 (at [60]). The court ordered recognisance release after 15 months, on 8 September 2024, with conditions including supervision by Community Corrections and participation in treatment or rehabilitation programs (at [61]).
Orders Made
- The offender was convicted on all counts.
- An aggregate sentence of 2 years and 6 months was imposed, commencing 9 June 2023 and expiring 8 December 2025.
- The offender was ordered to be released on 8 September 2024, after serving 15 months, upon entering a recognisance of $1,000 to be of good behaviour for 2 years.
- Conditions of the recognisance included: supervision by a Community Corrections Officer; compliance with all reasonable directions from Community Corrections; no overseas or interstate travel without written permission from Community Corrections; and participation in such treatment or rehabilitation programs as directed by Community Corrections.
Key Takeaways
- For Commonwealth child pornography offences, the District Court confirmed that general deterrence is a paramount sentencing consideration, consistent with intermediate appellate authority (at [48]).
- A guilty plea to federal offences attracts a discount that reflects both its utilitarian value and the offender's willingness to facilitate the course of justice; here, the strength of the Crown case was relevant to assessing that willingness, and a 25 per cent discount was allowed (at [6]).
- Where a psychologist's diagnosis rests entirely on the offender's self-reported history without independent corroboration, a sentencing court may decline to accept those opinions, particularly where the objective facts of the offending contradict the offender's stated motivations (at [39]).
- An absence of established causal connection between a mental health condition and the offending conduct will ordinarily preclude a finding of reduced moral culpability, even where some psychological symptoms are accepted (at [53]).
- Under section 67 of the Crimes (Sentencing Procedure) Act 1999, an Intensive Corrections Order is not available as a sentencing option for offences of this kind, leaving full-time imprisonment as the only custodial form (at [10]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code 1995 (Cth)
- Customs Act 1901 (Cth)
Cases
- Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
- Bugmy v The Queen (1990) 169 CLR 525
- Cameron v The Queen (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Le v R [2022] NSWCCA 243
- Minehan v R (2010) 201 A Crim R 243
- Power v The Queen, (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Hutchinson [2018] NSWCCA 152
- R v Olbrich (1999) 199 CLR 270
- R v Porte [2015] NSWCCA 174
- Xiao v R (2018) 96 NSWLR 1