Citation: R v Bentley [2024] NSWDC 266
Court: District Court of New South Wales
Date: 2 May 2024
Judge: King SC DCJ
Background
The offender, a registered child protection offender following convictions in 2017, appeared for sentence on five offences involving child abuse material. Police discovered the material during an authorised inspection of his residence in Port Macquarie in June 2020 and following a subsequent arrest in September 2021. The offender cooperated with police, consented to examination of his devices, and directed officers to downloaded files.
The five offences spanned two separate factual episodes. The first two (Sequences 2 and 3) involved using a carriage service to access child abuse material in June 2020, discovered on a laptop and an external hard drive. The remaining three offences (Sequences 8, 9, and 13) arose from a later investigation and included both accessing and possessing or controlling child abuse material obtained via a carriage service.
All five offences were brought under the Commonwealth Criminal Code and each carried a maximum penalty of 15 years' imprisonment. Because the offender had prior relevant convictions, three of the five offences attracted a mandatory minimum term of four years' imprisonment under s 16AAB of the Crimes Act 1914 (Cth).
Legal Issues
- Whether each offence warranted a custodial sentence and, if so, at what level given the seriousness of the material involved
- How s 16AAB of the Crimes Act 1914 (Cth) applied, including which offences attracted the mandatory minimum four-year term and which did not
- How the sentences across five separate offences should be structured and aggregated under s 16AAB(2)
- What discount, if any, applied for the early guilty plea
- What weight to give subjective factors, including the offender's personal circumstances and history
Decision
King SC DCJ characterised the offending as serious. Some of the material was described as "of the highest degree of offensiveness and depravity," and the fact that the offender had prior relevant convictions significantly aggravated the overall picture. The material included images and videos of prepubescent children depicted in sexual or exploitative contexts, with 15 separate instances of access recorded in Sequence 3 alone.
On the question of the mandatory minimum, the court found that Sequence 2, which predated the introduction of s 16AAB, was not subject to the mandatory four-year term. Sequence 3 and each of Sequences 8, 9, and 13 were subject to it, either because of the timing of the offending or because of the offender's prior relevant convictions. The court applied s 16AAB(2) to structure the aggregate sentence across all five offences.
The court accepted a 25% discount for an early guilty plea across all offences. Although there was a notable delay between the September 2021 arrest and the February 2023 committal for sentence, the court treated the plea as having been entered at the first reasonable opportunity, attributing the delay to the complexity of the brief and the time needed to examine multiple devices.
The individual sentences were structured to commence at staggered intervals, each starting six or three months after the preceding sentence. This produced a total effective sentence of seven years, running from 22 September 2021 to 21 September 2028, with a non-parole period of four years and eight months. The offender's first parole eligibility date was set at 21 May 2026.
Orders Made
- Sequence 2: sentence commencing 22 September 2021, expiring 21 June 2022 (nine months)
- Sequence 3: three-year sentence commencing 22 December 2021, expiring 21 December 2024
- Sequence 8: three-year sentence commencing 22 June 2022, expiring 21 June 2025
- Sequence 9: three years and nine months commencing 22 December 2022, expiring 21 September 2026
- Sequence 13: five years and three months commencing 22 June 2023, expiring 21 September 2028
- Total effective sentence: seven years (22 September 2021 to 21 September 2028)
- Non-parole period: four years and eight months; first eligible for parole 21 May 2026
- Forfeiture orders made in respect of the hard drive, laptop, microSD cards, and associated adaptors
Key Takeaways
- Under s 16AAB of the Crimes Act 1914 (Cth), the mandatory minimum four-year term applies only to offences committed after the section's commencement; here, one of five offences predated that commencement and was sentenced without the mandatory minimum.
- Where an offender has prior relevant convictions for child abuse material offences, subsequent offences under ss 474.22 and 474.22A of the Criminal Code attract the four-year mandatory minimum, materially constraining the sentencing court's discretion at the lower end.
- A 25% discount for an early guilty plea was available even where the period between arrest and committal for sentence exceeded twelve months, provided the delay was attributable to the complexity of the investigation rather than any failure by the offender to engage with the process.
- The District Court applied s 16AAB(2) to aggregate five separate sentences by staggering their commencement dates, producing a total effective term of seven years across offences that individually attracted sentences ranging from nine months to five years and three months.
- Prior convictions for like offences featured prominently as an aggravating factor, reinforcing the court's view that the offending warranted meaningful cumulation rather than wholly concurrent sentences.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), s 16AAB
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Child Protection (Offender Registration) Act 2000 (NSW), s 16C
Cases:
- DPP (CBH) v Beattie [2017] NSWCCA 303
- Patel v The Queen [2022] NSWCCA 93
- Pearce v The Queen [1998] HCA 57
- R v Delzotto [2022] NSWCCA 117
- R v Bentley (District Court (NSW), Toner J, 1 March 2017, unreported)