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District Court 9 July 2024

R v McCann

[2024] NSWDC 493

Sexual offences

Citation: R v McCann [2024] NSWDC 493
Court: District Court of New South Wales
Date: 9 July 2024
Judge: Montgomery DCJ

Background

The offender, a man born in February 1973, appeared for sentencing on two offences committed in November and December 2022, when he was 49 years old. He had a prior criminal history directly relevant to the current charges: in 2018, he was sentenced to nine months imprisonment for possessing, distributing, and accessing child abuse material, and as a consequence became a registered person on the Child Protection Register.

In November 2022, the offender used a laptop computer to navigate a publicly accessible website that hosted both adult pornography and child abuse material. He navigated to user profiles on the site with names plainly referencing children and child sexual abuse, and the thumbnails visible on those profiles depicted children in sexualised poses or engaged in sexual acts. He also used his mobile phone to search for terms explicitly referencing child sexual abuse. When police attended his home in December 2022 to inspect his electronic devices, they discovered these activities.

At the time of his arrest, the offender had also failed to report, as required under his registration obligations, that he was using an internet connection subscribed in his sister's name and that he had previously created and maintained a profile on the same website. He had been reminded of those obligations less than four months before his arrest.

  • Whether the offender's access to child abuse material via a carriage service was intentional or inadvertent, given his submission that he had navigated to the relevant content unintentionally.
  • How to apply the mandatory minimum sentencing provisions under Commonwealth law (s 16AAB of the Crimes Act 1914 (Cth)) to the child abuse material offence (Sequence 4), including whether any threshold exceptions applied.
  • How to sentence separately for the State offence of failing to comply with reporting obligations (Sequence 5) under the Child Protection (Offenders Registration) Act 2000 (NSW), which carries no equivalent mandatory minimum.
  • What weight to give to subjective mitigating factors, including the offender's early guilty plea, steps toward rehabilitation, and the hardship he suffered in custody, including sexual assaults experienced while imprisoned.

Decision

Montgomery DCJ rejected the offender's submission that his access to child abuse material had been inadvertent. The court found beyond reasonable doubt that the offender had intentionally navigated within the website to user profiles whose names plainly referenced children, while using an automatically encrypting browser. His mobile phone searches for terms explicitly describing child sexual abuse reinforced this finding. The court accepted, however, that the evidence did not establish beyond reasonable doubt that the offender had opened and viewed the internal content of the profiles, as opposed to the titles and visible thumbnails.

On the Commonwealth offence (Sequence 4), the mandatory minimum head sentence of four years imprisonment applied under s 16AAB of the Crimes Act 1914 (Cth). The court considered the relevant Commonwealth sentencing framework in detail, including the structure of non-parole periods under that legislation. A 25 percent discount for the utilitarian value of the early guilty plea was applied in calculating the final sentence.

For the State offence (Sequence 5), the court sentenced separately, applying the considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including denunciation, punishment, deterrence, and recognition of harm to victims. The sentence for this offence was structured to run with substantial concurrence alongside the Commonwealth sentence.

The court acknowledged a number of subjective considerations, including the offender's guilty plea at the first available opportunity, some evidence of rehabilitation, and the significant hardship he had experienced in custody, including sexual assaults. Notwithstanding those factors, full-time imprisonment was determined to be the appropriate disposition for both offences.

Orders Made

  • The offender was convicted of Sequence 4 (accessing child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code (Cth)) and sentenced to imprisonment for 3 years, 1 month, and 15 days, commencing 12 December 2022, with a non-parole period of 1 year and 6 months expiring 11 June 2024 and a balance term expiring 26 January 2026.
  • The offender was convicted of Sequence 5 (failing to comply with reporting obligations, contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW)) and sentenced to a fixed term of imprisonment commencing 12 January 2024 and expiring 11 July 2024.
  • The offender became eligible for release to parole on 11 July 2024 and, until 26 January 2026, must comply with all reasonable directions of Corrective Services, including requirements of any mental health plan and directions to specialist forensic psychological services.
  • The court recommended that Community Corrections be provided with the forensic psychologist's report of Ms Kris North dated 8 December 2023 and directed to arrange appropriate psychological treatment for the offender.

Key Takeaways

  • Intentionality in accessing child abuse material can be inferred from the surrounding circumstances, including the names of profiles navigated to, visible thumbnails, encrypted browser use, and corroborating search activity on other devices, even where there is no direct evidence that content within profiles was opened and viewed.
  • Under s 16AAB of the Crimes Act 1914 (Cth), the mandatory minimum head sentence of four years applies to offences of accessing child abuse material via a carriage service, and Commonwealth and State sentencing frameworks must be applied separately and distinctly when an offender is sentenced for offences from both jurisdictions arising out of the same facts.
  • A 25 percent discount for a guilty plea entered at the first available opportunity is available under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was applied here even within the constraints of the Commonwealth mandatory minimum.
  • Prior registration on the Child Protection Register and a recent reminder of reporting obligations are relevant to assessing the seriousness of a failure-to-report offence, and a partial admission in a police interview that contradicts the agreed facts carries limited mitigating weight.
  • Hardship suffered in custody, including sexual assaults experienced while imprisoned, was recognised as a relevant subjective consideration in sentencing, though it did not displace the court's conclusion that full-time imprisonment was required.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(2AAA), 16A(3), 16AAB(1), 16AAB(2), 16AAC(2), 16AAC(3), 16AB(2), 17A, 19AB(1), 19AB(3), 19AC, 19B, 20(1)(a), 20(1)(b)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(a)

Cases:
- Crane v R [2024] NSWCCA
- Hurt v R; Delzotto v R [2024] HCA 8
- Phibbs v R [2023] VSCA 123