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District Court 12 April 2024

R v Robertson

[2024] NSWDC 258

Sexual offences

Citation: R v Robertson [2024] NSWDC 258
Court: District Court of New South Wales
Date: 12 April 2024
Judge(s): Sutherland SC DCJ

Background

The offender appeared before the District Court for sentencing on his third occasion for offences relating to child abuse material. He had previously been sentenced in 2015 (a suspended 18-month term with community service) and again in 2022 by Bright DCJ (an effective aggregate of four years with a two-year minimum term). He was released on parole and under a Commonwealth recognizance on 21 June 2022.

Within 24 hours of his release, the offender presented to Calvary Mater Hospital Mental Health Service, reporting suicidal thoughts and stating he did not feel ready to be released. He spent approximately two weeks in the Mental Health Unit before being discharged to temporary housing in the Newcastle region. Despite these steps, he subsequently relapsed into accessing child abuse material online.

Police discovered five images on the offender's mobile phone during a compulsory compliance check under the Child Protection (Offenders Registration) Act 2000 (NSW). The images were cartoon depictions (not real children), accessed via ordinary Google searches without any attempt at concealment. The offender cooperated fully and confessed when police attended.

  • Whether the statutory minimum term of four years under the Commonwealth Criminal Code applied, given the offender's prior conviction for the same category of offence.
  • How to balance the offender's significant mental health history, his immediate attempts to seek help upon release, and his plea of guilty against the seriousness of the repeat offending.
  • The appropriate weight to give prospects of rehabilitation in light of the pattern of reoffending.
  • How to structure the sentence to account for the interaction between the Commonwealth and State offences.

Decision

Sutherland SC DCJ found that the statutory minimum of four years imprisonment applied to the Commonwealth offence, given the prior conviction. However, his Honour acknowledged that the objective seriousness of this particular offending was at the lower end of the scale: only five cartoon images were involved, no real children were depicted or harmed, and the offender made no attempt to conceal his activity.

The court placed considerable weight on the mental health context. The offender's immediate presentation to a psychiatric service upon release, his documented depression, and his stated unreadiness to re-enter the community were treated as genuine mitigating circumstances rather than mere excuse. His Honour also gave weight to the early plea of guilty and to the expert reports from clinical psychologist Dr Paul Pusey, both from 2022 and 2024.

The court acknowledged the tension between the principle that sentences should not be increased simply because an offender is difficult to rehabilitate (consistent with the principle in Veen v The Queen (No 2)), and the reality of a third occasion of similar offending. His Honour expressed measured hope for rehabilitation while recognising the community's legitimate concern at the pattern of conduct.

The sentence was structured to satisfy the four-year mandatory minimum for the Commonwealth offence, with orders for supervision, a recognizance, and conditions directed at supporting the offender's rehabilitation following release.

Orders Made

  • Conviction and sentence imposed for the Commonwealth offence of possession of child abuse material obtained using a carriage service (s 474.22A(1), Criminal Code Act 1995 (Cth)), with the four-year statutory minimum applied.
  • The related State offence dealt with as a related matter under s 166 of the Crimes (Sentencing Procedure) Act (NSW).
  • A recognizance release order with a supervision period of 18 months and conditions including compliance with directions of a probation officer.
  • A surety of $500 fixed.
  • A copy of Dr Paul Pusey's 2022 and 2024 reports directed to be forwarded to Justice Health for consideration of post-release assistance needs.
  • Forfeiture of the Samsung mobile phone seized by police in July 2022, pursuant to s 23ZD of the Crimes Act 1914 (Cth).
  • No order as to costs.

Key Takeaways

  • Where a prior conviction for a relevant Commonwealth child abuse material offence exists, the four-year statutory minimum under the Criminal Code Act 1995 (Cth) applies to a subsequent offence, regardless of the comparatively lower objective seriousness of the later conduct.
  • Immediate and genuine attempts to access mental health services upon release from custody can constitute a relevant mitigating factor in sentencing, even where the offender subsequently reoffends.
  • The principle in Veen v The Queen (No 2) (1988) 164 CLR 465 was engaged: a sentence cannot be elevated beyond what is proportionate to the current offending merely because the offender has a history of similar conduct.
  • The District Court treated the absence of real children in the material, the lack of concealment, and full cooperation with police as factors bearing on the lower end of the objective seriousness scale, within the constraints imposed by the mandatory minimum.
  • Post-sentence orders, including referral of psychological reports to Justice Health and structured supervision conditions, reflected the court's focus on supporting rehabilitation within the community following release.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.22A(1)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12, s 166
- Crimes Act 1914 (Cth), s 23ZD
- Crimes Act 1900 (NSW)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Callaghan v R [2006] NSWCCA 58
- Delzotto v R [2024] HCA 8