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District Court 20 March 2025

R v Brimble

[2025] NSWDC 135

Sexual offences

Citation: R v Brimble [2025] NSWDC 135
Court: District Court of New South Wales
Date: 20 March 2025
Judge: R Tupman DCJ

Background

The offender pleaded guilty in the Local Court to two Commonwealth offences involving child abuse material. The first (Sequence 2) involved using the Telegram messaging application to cause child abuse material to be transmitted to himself on 15 June 2023. The second (Sequence 7) involved possessing child abuse material on a mobile phone and external hard drive seized when police executed a search warrant at his home on 14 September 2023.

A third offence (Sequence 5) was taken into account as a schedule matter under s 16BA of the Crimes Act 1914 (Cth). That offence related to earlier transmissions of child abuse material via the encrypted messaging application Line between March and April 2022, where the offender used a secondary account under the name "Tom Price" to send material to himself.

The offending involved the purchase of videos depicting the sexual abuse of real children, predominantly girls aged between four and ten. The material ranged in seriousness, with the most serious video depicting the sexual assault of an apparently unresponsive prepubescent girl aged between four and six.

  • What was the objective seriousness of the offending, taking into account the nature, volume, and circumstances of the child abuse material involved?
  • What weight should be given to mitigating factors including guilty plea, remorse, age, health, good character, rehabilitation, and the unlikelihood of re-offending?
  • Whether the combination of subjective factors amounted to "exceptional circumstances" justifying a recognisance release order rather than a term of full-time imprisonment, despite the Commonwealth prosecution's submission that full-time imprisonment was warranted.

Decision

Her Honour assessed the objective seriousness of the offending as sitting in the low to mid range. While the volume of material was substantial (over 190 videos in relation to Sequence 2 alone), her Honour noted that the offending did not involve the offender directly abusing children or producing material. The most serious individual item, the video of an apparently unresponsive young child being sexually assaulted, elevated the gravity of that sequence.

On subjective matters, her Honour accepted a range of mitigating factors as genuinely established. These included the offender's early guilty plea, demonstrated remorse, previously good character, age (described as middle-aged to older), health issues, engagement in sex offender and psychological treatment, and a low risk of re-offending as assessed by relevant reports. Her Honour also accepted that the offender had blocked the overseas contact in July 2023, prior to his arrest, as some indication of withdrawal.

Her Honour acknowledged the general principle that full-time imprisonment ordinarily follows convictions of this kind, referencing the prevalence of such offending among middle-aged to older Australian men. However, the combination of subjective factors was found to constitute an exceptional case warranting a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). This conclusion was reached despite the Commonwealth's submission that full-time imprisonment was the appropriate outcome.

Her Honour declined to describe the content of the child abuse material in the published judgment, expressly to avoid any risk that the judgment might become a vehicle for secondary dissemination or gratification by members of the public accessing published court decisions.

Orders Made

  • The offender was convicted on both substantive counts.
  • For Sequence 2 (taking into account Sequence 5): sentenced to 15 months imprisonment, commencing 20 March 2025.
  • For Sequence 7: sentenced to 12 months imprisonment, commencing 20 March 2025.
  • Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender was released forthwith on a recognisance release order, entering into a recognisance of $500 for a period of two years, subject to:
  • Good behaviour for the period of the recognisance;
  • Continuation of sex offender and psychological treatment with the treating psychologist for the length of the prison term;
  • Supervision by NSW Community Corrections;
  • A prohibition on accessing any online pornography sites, in Australia or overseas, during the term of the sentence.
  • A forfeiture order was made in respect of the seized electronic devices.

Key Takeaways

  • The District Court confirmed that, while full-time imprisonment is the ordinary sentencing outcome for child abuse material offences of this kind, a recognisance release order remains available where an accumulation of subjective factors constitutes exceptional circumstances.
  • Mitigating factors such as early guilty plea, genuine remorse, demonstrated rehabilitation, low risk of re-offending, good character, age, and health issues can, in combination, satisfy the exceptional circumstances threshold, even where the Commonwealth prosecution opposes that outcome.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a recognisance release order for Commonwealth child sexual offences carries mandatory conditions prescribed by s 20(1B), in addition to any further conditions the court imposes.
  • The sentencing court declined to reproduce descriptions of child abuse material in its published reasons, citing the risk that publicly accessible judgments could be used for secondary dissemination or gratification, a noteworthy exercise of judicial discretion in managing the publication of sensitive material.
  • Objective seriousness was assessed by reference to factors including the volume of material, the ages of victims depicted, the degree of violence or degradation involved, whether the offender directly produced or commissioned material, and the commercial nature of the transaction with the overseas supplier.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 20(1)(b), 20(1B)

Cases:
- R v Bredil [2024] NSWCCA 75
- R v Cardwell [2021] QCA 112
- R v Hutchinson [2018] NSWCCA 152