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District Court 28 June 2024

R v Bowen

[2024] NSWDC 262

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL MANDATORY MINIMUM SENTENCING CRIMES ACT S 16AAB

Citation: R v Bowen [2024] NSWDC 262
Court: District Court of New South Wales
Date: 28 June 2024
Judge: J Smith SC DCJ

Background

The offender, a man aged 54 to 55 at the time of the offending, pleaded guilty to a single count of using a carriage service to access child abuse material, contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth). Between February 2022 and March 2023, he used a mobile phone to search for and download 16 images of child abuse material, 12 of which fell within the most serious category under the Interpol Baseline Scale.

Police executed a search warrant at his home in March 2023, seized his phone, and interviewed him. The offender made admissions in both a preliminary conversation and a formal record of interview, acknowledging he had accessed the material multiple times over approximately 12 to 14 months.

Critically, the offender carried two categories of relevant prior convictions: a 2009 conviction for rape and an indecent act with a child under 16, and 2018 Commonwealth child pornography convictions in the County Court of Victoria. These prior convictions activated the mandatory minimum sentencing provisions under section 16AAB of the Crimes Act 1914 (Cth), which sets a four-year minimum term of imprisonment for repeat offenders in this category.

  • Whether section 16AAB of the Crimes Act 1914 (Cth) applied to the offender, given his prior child sex offence convictions, thereby triggering the four-year mandatory minimum sentence.
  • How to assess the objective seriousness of the offending within the range of such offences.
  • What weight to give to the offender's subjective circumstances, including his deprived background, mental health, criminal history, and ongoing pattern of offending.
  • What discount, if any, was appropriate for the guilty plea and for assistance provided to authorities.
  • Whether the resulting sentence, after discounts, fell below the mandatory minimum and how that interaction should be resolved.

Decision

The court found that section 16AAB applied because the offender's prior convictions included both a state registrable child sex offence and a Commonwealth child sex offence within the meaning of the Crimes Act. This provision requires a minimum non-parole period of two years and a minimum head sentence of four years for offenders in this category.

On objective seriousness, the court placed the offending towards, but not at, the lower end of the range. Relevant factors included the relatively small number of images (16 in total), no dissemination to others, no payment or financial benefit, no proximity to those who created the material, and no planning beyond basic internet searches. However, the court noted that at least two of the images depicted real children in acts of serious sexual abuse.

The offender's subjective circumstances were mixed. His deprived childhood, history of being bullied and sexually abused, and diagnosed mental health conditions reduced his moral culpability to some degree. Against this, his persistent criminal history involving child sex offences, his permanent registration as a child sex offender, his breach of a Community Correction Order during the offending period, and the fact that the current offending began shortly after his release from a Victorian prison for similar conduct all weighed heavily against him.

The court applied a 25% discount for the guilty plea and a separate 5% discount for assistance provided to authorities. These discounts reduced what would otherwise have been a higher head sentence to 3 years and 10 months. The court acknowledged that this fell below the statutory four-year minimum, but the judgment as provided does not fully elaborate the mechanism by which the court resolved that tension, beyond noting it would "return to that in due course." The court set a non-parole period of 2 years and 6 months, with the sentence backdated to commence on 13 April 2023, the date of the offender's arrest.

Orders Made

  • The offender was convicted of using a carriage service to access child abuse material.
  • The offender was sentenced to 3 years and 10 months imprisonment, commencing 13 April 2023, with a non-parole period of 2 years and 6 months expiring on 12 October 2025, and a balance of 1 year and 4 months expiring on 12 February 2027.
  • The offender will first be eligible for release on parole on 12 October 2025.
  • The Samsung A12 mobile phone (exhibit X0001698459) was forfeited to the Commonwealth pursuant to section 23ZD of the Crimes Act 1914 (Cth).
  • The court recommended that the psychologist's report (Anica Spatz, dated 24 April 2024) accompany the sentence papers and be provided to NSW Corrective Services for the purpose of assessing appropriate treatment.

Key Takeaways

  • Under section 16AAB of the Crimes Act 1914 (Cth), an offender who has prior convictions for both a state registrable child sex offence and a Commonwealth child sex offence is subject to mandatory minimum sentencing for a subsequent Commonwealth child sex offence, including a minimum four-year head sentence and minimum two-year non-parole period.
  • The District Court assessed 16 downloaded images, with no dissemination and no financial element, as falling towards the lower end of the objective seriousness range for this class of offending, though not at the very bottom.
  • A guilty plea attracted a 25% discount, and assistance to authorities attracted a further 5% discount, bringing the head sentence to 3 years and 10 months, which sat below the statutory four-year minimum.
  • Prior convictions for child sex offences, commission of fresh offending while subject to a Community Correction Order, and a pattern of reoffending shortly after release from custody were all treated as significant aggravating factors in the sentencing exercise.
  • Where an offender's background includes childhood trauma, isolation, and diagnosed mental health conditions, these matters may reduce moral culpability to some extent, but the court here found they did not displace the weight of the aggravating factors.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth) s 474.22(1)
- Crimes Act 1914 (Cth) ss 16A, 16AAB, 17A, 20(1)(b), 23ZB, 23ZD

Cases:
- Hurt v The King; Delzotto v The King [2024] HCA 8
- Trinh v R [2024] VSCA 61