AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 27 September 2024

R v EC

[2024] NSWDC 458

Sexual offencesPublic order & justice offences
CRIME SENTENCE CHILD PORNOGRAPHY SHARING OF INTIMATE IMAGES “REVENGE PORN” IMAGE BASED ABUSE

Citation: R v EC [2024] NSWDC 458
Court: District Court of New South Wales
Date: 27 September 2024
Judge: Anderson SC DCJ

Background

The offender appeared before the District Court for sentencing on seven offences, with one additional matter taken into account on a schedule. The offences spanned both Commonwealth and NSW law and fell into two broad categories: child sexual abuse material, and the non-consensual distribution of intimate images.

The image-based offences involved two female victims. The first victim, referred to as LH, was 16 years old when a covertly captured naked image of her was shared on the Discord platform without her knowledge or consent. The second victim, BP, had voluntarily sent sexually explicit photographs of herself to the offender during their relationship when she was 17. After the relationship ended, the offender uploaded those images to Discord on two separate occasions approximately 18 months apart, attaching degrading captions.

Police executed a search warrant at the offender's home and forensically examined his laptop, locating 6,208 files of child abuse material. The material depicted prepubescent girls aged between five and 15 years engaged in a range of sexual activity, from posing to explicit sexual acts. The files were organised into named sub-folders.

  • What sentences were appropriate across the dual sentencing regimes, being the Commonwealth framework under the Criminal Code Act 1995 (Cth) and the Crimes Act 1914 (Cth), and the NSW framework under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What guilty plea discount applied to the Commonwealth offences, given the NSW Early Appropriate Guilty Plea (EAGP) regime does not strictly apply to those charges?
  • How should the court structure consecutive sentences to achieve totality while reflecting the distinct character of each offence?
  • What conditions were appropriate for the partial recognizance release order attached to the principal sentence?

Decision

The court applied a 25% discount for the guilty plea to both the NSW and Commonwealth offences. Although the NSW EAGP regime does not strictly govern Commonwealth matters, the court found no reason to apply a different discount and recognised the utilitarian value of the plea as relevant under ss 16A(2)(f) and (g) of the Crimes Act 1914 (Cth).

For the four minor drug and therapeutic goods offences brought as summary matters via s 166 of the Criminal Procedure Act 1986 (NSW), the court convicted the offender but imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This reflects that those matters, while dealt with by the District Court, remained subject to Local Court sentencing constraints.

The court structured the sentences for the more serious offences cumulatively. The two-month term for using a carriage service to transmit child abuse material (sequence 1) was followed by a four-month term for distributing intimate images without consent (sequence 2), with those sentences commencing on staggered dates. The two-year term for possessing child abuse material (sequence 7) commenced at the expiry of the earlier sentences.

For the possession offence, the court ordered that after 12 months of actual custody the offender be released on a recognizance of $500 for the remaining 12 months. That release was made subject to supervision by a Probation and Parole officer, compliance with directions, completion of a sexual offence rehabilitation program, and a restriction on interstate or overseas travel without written permission.

Orders Made

  • The offender was convicted of all offences.
  • Sequences 3, 4, 5 and 6 (drug and therapeutic goods offences): convicted, no further penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Sequence 1 (transmitting child abuse material via carriage service): two months' imprisonment, commencing 25 September 2024, expiring 24 November 2024.
  • Sequence 2 (distributing intimate images without consent): four months' imprisonment, commencing 25 October 2024, expiring 24 February 2025.
  • Sequence 7 (possessing child abuse material): two years' imprisonment, commencing 25 November 2024, expiring 24 November 2026.
  • After 12 months of sequence 7, the offender to be released on a recognizance of $500 for the remaining 12 months, subject to conditions including: good behaviour; supervision by a Probation and Parole officer; compliance with reasonable directions; completion of a sexual offence rehabilitation program; and no interstate or overseas travel without written permission. Release date: 24 November 2025.
  • The offender's mobile phone and HP laptop, seized on 13 March 2023, forfeited to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth).
  • The report of Dr Kim Dilati to be provided to Corrective Services to assist with management of the offender in custody.
  • On 10 October 2024, Order 6 was amended by consent under ss 19AHA(1)(a) and (c) of the Crimes Act 1914 (Cth) to clarify that the orders capture the entirety of s 20(1B) of that Act.

Key Takeaways

  • A 25% guilty plea discount, ordinarily applicable to NSW offences under the EAGP regime, was extended by the District Court to Commonwealth offences where no reason existed to depart from that figure, with the utilitarian value of the plea treated as a relevant factor under the Crimes Act 1914 (Cth).
  • Where Commonwealth and NSW offences are sentenced together, each set of charges remains governed by its own legislative regime, requiring the court to apply two parallel sentencing frameworks within the same proceeding.
  • Non-consensual distribution of intimate images and covert capture of a minor's naked image were treated as distinct and serious offences warranting separate, cumulative custodial terms, even where the conduct arose in the same general factual context.
  • Possession of child abuse material involving 6,208 files depicting young children attracted the principal sentence of two years, structured with a 12-month non-parole period followed by conditional release on recognizance, with rehabilitation conditions attached.
  • Under s 23ZD of the Crimes Act 1914 (Cth), electronic devices used in the commission of Commonwealth offences were forfeited to the Commonwealth upon application by the Commonwealth Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1), 11.1
- Crimes Act 1914 (Cth), ss 16A(2)(f) and (g), 16BA, 19AHA, 20(1)(b), 20(1B), 23ZD, 39
- Crimes Act 1900 (NSW), s 91Q
- Criminal Procedure Act 1986 (NSW), ss 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- Bugmy v R (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
- Minehan v R [2010] NSWCCA 140