Citation: R v Stopps [2024] NSWDC 582
Court: District Court of New South Wales
Date: 10 December 2024
Judge: Noman SC DCJ
Background
The offender, a 26-year-old man, pleaded guilty in the Local Court to two Commonwealth offences: accessing child abuse material using a carriage service and possessing child abuse material using a carriage service. Both offences carry a maximum penalty of 15 years imprisonment. The matter was committed to the District Court for sentence.
The offending came to light through a police investigation into a New Zealand-based cloud storage service, Mega.nz. On 16 January 2024, police stopped the offender, who provided passwords to his phone and two cloud accounts. A subsequent interview established his sexual interest in the material, despite initial denials.
The accessing offence spanned almost two years from March 2022 until discovery in January 2024, involving 8,067 separate files across two cloud accounts and a Telegram account. The possession offence, measured at the date of discovery, involved 326 child abuse material videos. The material depicted children ranging from approximately six months to 17 years old and included images and videos of extreme severity.
Legal Issues
- What was the appropriate objective seriousness of each offence, having regard to the volume of material, its nature, and the duration of offending?
- What weight should be given to the offender's pleas of guilty, and did those pleas also demonstrate genuine remorse?
- How should subjective factors, including the offender's age, mental health, and prospects for rehabilitation, affect the sentence?
- To what extent should the two offences be served concurrently or cumulatively?
- What aggregate sentence, including a non-parole period, was appropriate?
Decision
Objective seriousness. His Honour found both offences were serious examples of the relevant provisions. The accessing offence was the more serious of the two, given the near two-year timeframe and the volume of 8,067 files. His Honour adopted the offender's own characterisation in submissions, describing the accessing offence as falling towards the low end of the mid-range of objective seriousness, and the possession offence as falling lower than the accessing offence. The described material included children of very young ages, penetrative acts, the use of restraints, and images of deceased children, though the described files were not said to be representative of the entire collection given no formal classification had been carried out.
Pleas of guilty and remorse. His Honour applied a 25 percent reduction to each sentence to reflect early pleas, acknowledging the utilitarian benefit and the acceptance of responsibility they demonstrated. However, the court expressly declined to find that the pleas reflected genuine remorse. Statements made to the psychologist, which were inconsistent with the offender's own admissions to police, were disregarded. His Honour found that the offender's conduct in the interview reflected a pattern of initial denial followed by reluctant acceptance, rather than true contrition.
Subjective factors. His Honour accepted that the offender was 23 when the offending began and that, at 26, rehabilitation remained a significant consideration. However, the court did not accept that the offending reflected immaturity. The offender's mental health issues were noted but were found not to causally diminish his culpability for these offences. Treatment for pre-existing issues was described as more likely to be addressed effectively in the community under parole conditions rather than during custody.
Accumulation and aggregate sentence. His Honour found that a limited degree of accumulation between the two offences was required, as the separate criminality of each offence could not be fully captured within a single concurrent term. An aggregate sentence was imposed, with indicative sentences of three years for the accessing offence and 18 months for the possession offence. The resulting aggregate was three years and two months, with a non-parole period of one year and ten months. The sentence was backdated to the date of arrest, 16 January 2024. His Honour was satisfied that no sentence other than full-time imprisonment was appropriate.
Orders Made
- Aggregate sentence of 3 years and 2 months imprisonment, commencing 16 January 2024
- Non-parole period of 1 year and 10 months, with eligibility for parole release on 15 November 2025
- Forfeiture of the offender's seized phone (consented to by the offender)
- Convictions recorded on both counts
Key Takeaways
- The District Court confirmed that, even where child abuse material is accessed and possessed solely for personal use, the volume of files, the duration of the offending, and the severity of the depicted conduct each bear heavily on objective seriousness.
- A plea of guilty can attract a discount for utilitarian benefit and acceptance of responsibility without the sentencing court also being required to find that genuine remorse is present, particularly where statements to a psychologist contradict admissions made to police.
- Where two offences involving accessing and possessing child abuse material involve discrete criminality, at least a limited degree of accumulation is appropriate so that the sentence for one offence does not entirely swallow the criminality of the other.
- Under Commonwealth sentencing principles, mental health conditions that are not causally connected to the offending do not reduce the objective seriousness of offences that inherently exploit and harm children.
- Rehabilitation remains a relevant sentencing consideration for young adult offenders, but its weight does not override the need for full-time imprisonment where the offending is serious and treatment is more appropriately addressed in the community following release.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 474.22(1) (accessing child abuse material using a carriage service)
- Criminal Code Act 1995 (Cth), s 474.22A(1) (possessing child abuse material using a carriage service)
Cases
No specific cases were cited in the portions of the judgment provided.