AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 18 April 2024

R v Turner

[2024] NSWDC 214

Sexual offences
CRIMINAL SENTENCE POSSESS CHILD ABUSE MATERIAL OBJECTIVE SERIOUSNESS OF OFFENCES NO EVIDENCE OF FURTHER DISSEMINATION OFFENCES DISPUTE D, “IT’S NOT ABUSE”

Citation: R v Turner [2024] NSWDC 214
Court: District Court of New South Wales
Date: 18 April 2024
Judge(s): King SC DCJ

Background

The offender, a 39-year-old man from Port Macquarie, was sentenced on a single charge of possessing child abuse material (CAM) contrary to s 91H(2) of the Crimes Act 1900, which carries a maximum penalty of 10 years' imprisonment. Police executed a search warrant at his home in December 2022 following intelligence about suspicious online activity. Upon being told police were searching for CAM, he immediately disputed that the material constituted abuse, stating that the laws were "unjust" and "bullshit."

Police located 7,458 images across two devices: a portable storage device containing 2,699 images and a mobile phone containing 4,759 images stored in a Photofast application. A random sample of the material was reviewed and categorised under the Interpol baseline system, revealing Category 1 material (real prepubescent children under 13 involved in or witnessing a sexual act) and Category 2 material (other illegal files involving children under 16). The sampled images included depictions of children engaged in sexual acts with adults.

The offender had entered his plea in the Local Court at Port Macquarie, attracting a 25 per cent discount for the utility of the plea. He had spent two days in custody at the time of arrest.

  • What was the objective seriousness of the offence, having regard to the volume, nature, and categorisation of the material?
  • What weight should be given to the absence of aggravating factors such as dissemination, payment, or participation in an offending network?
  • How did the offender's mental health, limited criminal history, and disputed remorse bear on the appropriate sentence?
  • Whether the offence crossed the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 requiring a sentence of full-time imprisonment.

Decision

The District Court assessed the objective seriousness of the offence as significant, given that the material involved real children, included prepubescent victims under 13, and depicted serious sexual acts. However, the court identified no aggravating factors: there was no evidence of dissemination, payment, participation in an offending network, cruelty, or bestiality. The court also declined to treat the use of the Photofast application as evidence of premeditated planning, finding it a commonly available app not specifically associated with CAM.

On the question of subjective matters, the court considered psychological and psychiatric material, including reports from psychologist Laura Durkin and psychiatrist Dr B Parsonage. The offender had a very limited criminal history, with only minor offences from 2003 and 2005, and was treated largely as a person of prior good character. However, King SC DCJ observed that good character carries reduced weight in CAM offending given the strong need for general deterrence, citing Mouscis v R (2009) NSWCCA 181.

The offender's mental health was a significant consideration, with the court finding it reduced his moral culpability to a meaningful degree. His prospects of rehabilitation were described as very guarded, and the court was direct in noting community concern about his attitudes, expressed both at the time of the search and through material found on his devices supporting those convicted of child abuse offences. Despite this, the court concluded the offence did not cross the s 5 threshold for full-time imprisonment, principally because of the mental health findings.

The court imposed a Community Corrections Order for three years, with conditions including supervision by Community Corrections Services for the full term and compliance with any directions to undertake assessment, therapy, treatment, or counselling.

Orders Made

  • The offender was convicted of the offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900.
  • Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, a Community Corrections Order was imposed for a period of three years, commencing 18 April 2024.
  • Standard conditions applied: the offender must not commit any offence and must appear before the court if called upon.
  • Additional condition: the offender is to be subject to the supervision and guidance of Community Corrections Services, including compliance with any directions to undertake examination, assessment, therapy, treatment, or counselling, for the duration of the order or such period as that service deems necessary.
  • Two days of pre-sentence custody (8 to 9 December 2022) were taken into account.

Key Takeaways

  • The District Court confirmed that objective seriousness in CAM possession cases is assessed by reference to factors including whether actual children were depicted, the ages of those children, the nature of the acts shown, the volume of material, whether payment was made, and whether dissemination occurred, drawing on the framework in Minehan v R (2010) NSWCCA 140.
  • Where no aggravating factors are present, even a large collection of serious material (here, 7,458 images) does not automatically require full-time imprisonment, provided other sentencing considerations weigh sufficiently against that outcome.
  • Under Mouscis v R, good character is a mitigating factor that carries less weight in CAM offending than in other offending categories, given the primacy of general deterrence in this area.
  • Mental health findings can reduce an offender's moral culpability and contribute to a conclusion that the s 5 imprisonment threshold is not crossed, even where rehabilitation prospects are assessed as very guarded.
  • An offender's explicit and ongoing rejection of the characterisation of the material as abusive, both at the time of the search and through supporting ideological content on his devices, was treated as highly relevant to the assessment of remorse and contrition, with the court finding those matters substantially absent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8(1)

Cases
- Minehan v R (2010) NSWCCA 140
- Mouscis v R (2009) NSWCCA 181