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District Court 15 July 2024

R v Holland

[2024] NSWDC 259

Sexual offences
CRIME SENTENCE

Citation: R v Holland [2024] NSWDC 259
Court: District Court of New South Wales
Date: 15 July 2024
Judge(s): Colefax SC DCJ

Background

The offender, a retired security guard in his late fifties with no prior criminal history, appeared for sentencing on two Commonwealth offences. The first was accessing child abuse material using a carriage service (s 474.22(1) of the Criminal Code (Cth)), committed over a period of more than two years between August 2020 and December 2022. The second was possessing child abuse material in the form of data held on a computer, having used a carriage service to obtain or access it (s 474.22A), arising from the contents of his laptop seized during a search warrant executed in December 2022.

Forensic analysis of the laptop revealed 524 images and video files categorised as Category 1 child abuse material under the Australian Child Abuse Categorisation Schema. The material depicted very young children, including toddlers, subjected to serious sexual abuse. The files had been created on the laptop across the two-year period, with significant concentrations of material in certain months, demonstrating the offending was neither isolated nor transitory.

The offender cooperated with police during the search and participated in an electronically recorded interview. He had a significantly dysfunctional childhood, including parental abandonment, and had developed a major depressive disorder around the time of the offending. His subjective circumstances were supported by extensive psychiatric, neuropsychological, and character evidence.

  • What was the objective seriousness of each offence, having regard to the nature and volume of the material, the age of the children depicted, and the circumstances of the offending?
  • What weight should be given to the offender's subjective circumstances, including his childhood trauma, major depressive disorder, absence of prior convictions, and family support?
  • Whether "exceptional circumstances" existed to justify a non-custodial disposition, as that expression is understood following R v Bredal [2024] NSWCCA 75.
  • What sentencing structure was appropriate to balance the need for full-time custody against the risk of relapse of the offender's depressive and anxiety symptoms currently in remission?

Decision

His Honour assessed each offence as objectively serious, though below the mid-range for offences of its kind, and not at or near the bottom of the range. The rolled-up nature of the accessing charge (sequence 2) required the court to consider the cumulative criminality across all episodes, with more episodes increasing objective seriousness. No additional aggravating factors were identified.

The court accepted the psychiatric evidence of Dr Martin, who gave evidence as a genuinely impartial expert, and found the offender's significantly dysfunctional childhood reduced his moral culpability under the principle in Bugmy v The Queen (2013) 249 CLR 571. The major depressive disorder present during the offending period was accepted as a relevant mitigating circumstance. However, the absence of prior convictions was accorded reduced weight, consistent with the approach taken in cases involving offences against children.

His Honour declined to find that "exceptional circumstances" existed within the meaning confirmed by the NSW Court of Criminal Appeal in R v Bredal [2024] NSWCCA 75. However, the court significantly reduced the period of full-time custody the offender must serve before being released on a recognizance release order. This approach was adopted to minimise the risk of a relapse of the depressive and anxiety symptoms currently in remission, and to support the offender's ongoing treatment and rehabilitation.

Two specific defence submissions were rejected. The court did not accept that the offender had excellent prospects of rehabilitation, and found no evidentiary basis for the submission that imprisonment would cause hardship to the offender's wife by forcing her to relocate, noting that his income derived from superannuation payments that would not cease upon incarceration.

Orders Made

  • Sentence imposed for each offence, with full-time custody suspended after 6 months pursuant to s 20(1)(b) of the Crimes Act (Cth).
  • The offender to enter a recognizance in the sum of $500.00 (without security) upon the following conditions:
  • Good behaviour for a period of 2 years 6 months from 12 January 2025.
  • Compliance with the supervision and directions of Community Corrections for the term of the recognizance.
  • Subject to the supervision of a probation officer.
  • Not to travel interstate or overseas without written permission of the probation officer.
  • To undertake such treatment and rehabilitation programs as reasonably directed by the probation officer.
  • Forfeiture order made in accordance with the Short Minutes of Order signed by the court.

Key Takeaways

  • The District Court confirmed that in sentencing for child abuse material offences, the absence of prior convictions carries reduced (though not zero) weight, reflecting the particular seriousness with which offences against children are treated.
  • A significantly dysfunctional childhood, including parental abandonment and resulting psychological harm, can reduce an offender's moral culpability under the principle in Bugmy v The Queen, even in the context of Commonwealth child abuse material offences.
  • Under R v Bredal [2024] NSWCCA 75, the threshold of "exceptional circumstances" required to avoid a period of full-time custody is a demanding one. The offender's psychiatric history and remitted depressive symptoms did not meet that threshold here, though they did justify a substantially shortened period of full-time custody before release on a recognizance order.
  • In sentencing on a rolled-up charge, the court must assess the aggregate criminality across all episodes: the greater the number of contraventions, the more objectively serious the offence.
  • Claims of financial hardship to family members require an evidentiary foundation. A bare submission unsupported by evidence of actual financial impact will not carry weight in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.22(1) and 474.22A
- Crimes Act (Cth), s 20(1)(b)

Cases:
- R v Kaplantzi [2023] NSWDC 42
- Bugmy v The Queen [2013] 249 CLR 571
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Bredal [2024] NSWCCA 75