Citation: R v Dorsett [2024] NSWDC 641
Court: District Court of New South Wales
Date: 16 September 2024
Judge: King SC DCJ
Background
The offender, a man born in 1989, appeared for sentencing on three charges arising from his use of two MEGA cloud storage accounts to access and possess child abuse material, as well as bestiality material, over a period spanning from June 2020 to August 2023. Police executed a search warrant at his home in August 2023, seizing his mobile phone and accessing both MEGA accounts pursuant to a compelled access order.
The primary MEGA account contained 35,339 media files, of which a sample of 1,000 was examined to protect investigators. Of that sample, 665 were unique video files of child abuse material, almost entirely depicting prepubescent children, including infants subjected to severe physical and sexual abuse. A second, smaller account contained 15 unique child abuse material files. The same large account also held two videos of bestiality material.
The offender made a series of denials and minimisations upon arrest and throughout proceedings, claiming he had not used MEGA for years, that he had not watched child abuse material, and that he deleted files depicting prepubescent children or torture when he encountered them. These claims were inconsistent with the evidence and were rejected by the court in its assessment of remorse and contrition.
Legal Issues
- What was the appropriate objective seriousness of each offence, having regard to the quantity and nature of the material and the offender's role in accessing and possessing it?
- How should the two Commonwealth offences (access and possession) be sentenced given the substantial factual overlap between them?
- What weight should be given to the offender's denials and minimisation when assessing remorse and contrition?
- What sentencing structure, including any accumulation, was appropriate across the three offences?
- What discount applied for the guilty plea in respect of each charge?
Decision
Objective seriousness. The court assessed the two Commonwealth offences at the lower end of the mid-range of objective seriousness, acknowledging both aggravating and mitigating factors. The volume of material was very large, the content included images in the highest category of depravity, and the victims were almost entirely prepubescent children. Against that, the offender was a consumer rather than a producer or distributor, and only a sample of the total files had been examined. The court noted that internet-based child abuse material offences are prevalent, international in character, and difficult to detect, reinforcing the need for general deterrence.
The bestiality offence. The quantity of material was very small (two files), though the content was described as depraved and highly offensive. The court placed this offence at the lower end of objective seriousness, consistent with the limited scale of possession.
Overlap between Commonwealth offences. The court found a significant factual overlap between the access and possession charges, given that both arose from the same conduct across the same accounts and period. It dealt with them by way of an aggregate sentence, assigning an identical indicative sentence of three years and six months to each, and reflecting the overlap by limiting the degree of accumulation in the final aggregate term.
Remorse and subjective matters. The offender's persistent denial and minimisation undermined any finding of genuine remorse or contrition. The court acknowledged subjective factors but found them insufficient to substantially reduce the sentence. A longer parole period was imposed specifically to ensure ongoing psychological or psychiatric treatment through Community Corrections supervision.
Orders Made
- For the NSW offence of possessing bestiality material (s 547E(2), Crimes Act 1900): six months' imprisonment, commencing 16 September 2024, expiring 15 March 2025.
- For the two Commonwealth offences (ss 474.22(1) and 474.22A(1), Criminal Code (Cth)): aggregate sentence of four years' imprisonment, with a non-parole period of two years commencing 16 September 2024 and expiring 15 September 2026; balance of term expiring 15 September 2028.
- The aggregate sentence was made entirely concurrent with the six-month bestiality sentence.
- A 25% discount was applied to each offence for the utilityof the guilty plea (and, for the Commonwealth offences, for facilitation of the course of justice).
- A forfeiture order was made in respect of the mobile phone.
Key Takeaways
- Where a substantial factual overlap exists between Commonwealth offences of accessing and possessing child abuse material via a carriage service, an aggregate sentencing approach is available and the degree of accumulation may be limited to reflect that overlap.
- The volume of material, the age of victims (particularly prepubescent children and infants), and the severity of the depicted conduct are all relevant to assessing objective seriousness, but the offender's role as consumer rather than producer or distributor is a mitigating factor.
- Persistent denial and minimisation of offending, where contradicted by the evidence, will weigh against a finding of genuine remorse and may reduce the weight given to subjective mitigating factors.
- A longer parole period may be imposed where the court identifies a need for ongoing psychological or psychiatric treatment and structured supervision to address the risk of reoffending.
- Under the sentencing framework applied here, a 25% plea discount applied to both the utility of the plea and facilitation of the course of justice for the Commonwealth charges, following the approach in Lazarus v R [2023] NSWCCA 214 and R v Hutchinson [2018] NSWCCA 152.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 474.22(1) and 474.22A(1)
- Crimes Act 1900 (NSW), s 547E(2)
- Crimes Act 1914 (Cth), ss 3E and 3LA
Cases
- Lazarus v R [2023] NSWCCA 214
- R v Hutchinson [2018] NSWCCA 152