AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 24 April 2025

R v Turnbull

[2025] NSWDC 137

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL

Citation: R v Turnbull [2025] NSWDC 137
Court: District Court of New South Wales
Date: 24 April 2025
Judge(s): Priestley SC DCJ

Background

The offender, a 31-year-old Aboriginal man working as a steel fixer, was sentenced for two offences under the Commonwealth Criminal Code. The first was accessing child abuse material using a carriage service (section 474.22(1)), and the second was possessing child abuse material on data storage devices where a carriage service had been used to obtain or access the material (section 474.22A(1)). A third, related offence was placed on a schedule to be taken into account during sentencing for the accessing charge.

The offending centred on a cloud-based storage service, Mega.nz, as well as two Samsung mobile phones and a Snapchat account. The Mega account contained nearly 17,000 files, of which over 2,300 were identified as child abuse material. The offender accessed the Mega site across 77 sessions over approximately one year. Snapchat records revealed he had also negotiated to purchase child abuse material commercially, communicating about specific categories and prices with suppliers.

Police arrested the offender on 4 July 2023 after executing a search warrant at his residence. He cooperated immediately, provided device passcodes, and made admissions on arrest. He remained in custody for 119 days before being released on bail.

Legal Issues

  • What was the appropriate objective seriousness of the two counts, including the effect of the schedule matter on the sentence for count 1?
  • Whether the possession offence (count 2) was more serious than the accessing offence (count 1)?
  • Whether the offender's subjective circumstances, including background disadvantage, mental health, and other factors, reduced his moral culpability or rendered him unsuitable as a vehicle for general deterrence?
  • Whether "exceptional circumstances" existed to justify releasing the offender on a recognisance order rather than imposing a full-time custodial sentence?
  • What aggregate sentence, including non-parole period, was appropriate after applying a 25 percent discount for an early guilty plea?

Decision

Objective Seriousness: The court found the offending was serious across both counts. The material involved actual children, depicted penetrative sexual assaults on prepubescent children including toddlers, and was accessed with regularity over an extended period (at [13], [18]). The organisation of the offending, including maintaining a structured cloud account with labelled folders and conducting commercial negotiations via Snapchat, added to its gravity (at [20]-[21]).

Relative Seriousness of the Two Counts: The court accepted the Crown's submission that count 2 (possession) was the more serious offence, but only modestly so. The Snapchat communications demonstrated active participation in a commercial marketplace for child abuse material, going beyond passive internet access, and count 2 involved two devices (at [24]-[25]). The overlapping nature of the offences tempered the impact of the schedule matter on the sentence for count 1 (at [25]).

Subjective Circumstances: The court accepted that the offender had a troubled upbringing involving family violence, early exposure to pornography, and substance abuse from a young age, but declined to characterise his background as one of profound social disadvantage (at [49]). It accepted diagnoses of major depressive disorder and substance use disorder, but found those conditions were not causative of the offending to any significant extent (at [50]). The offender's nearly two years of abstinence from drugs since entering custody was viewed as a basis for guarded optimism about rehabilitation (at [65]).

Exceptional Circumstances: The offender advanced nine factors said, in combination, to constitute exceptional circumstances justifying immediate release on recognisance. The court rejected this argument. It found that, while the factors had some substance individually, they were of the kind commonly encountered in sentencing proceedings and did not, in combination, produce an exceptional or unusual situation (at [68]-[69]). The court noted that the argument for general deterrence was not weakened by the absence of a paraphilic disorder and may, if anything, be strengthened by it (at [60]).

Sentence: Applying a 25 percent discount for the early plea, and the principle of totality given the overlapping and course-of-conduct nature of the offending, the court imposed an aggregate term of 27 months imprisonment. The offender is to be released on recognisance after 51 weeks, with an 18-month supervision period to support treatment and continued abstinence (at [71]).

Orders Made

  • The offender is convicted of the offences under sections 474.22(1) and 474.22A(1) of the Commonwealth Criminal Code.
  • The offender is sentenced to an aggregate term of 27 months imprisonment, commencing 26 December 2024 and expiring 25 March 2027.
  • The offender is to be released after 51 weeks (on 18 December 2025) on a recognisance of $1 for a period of 18 months (expiring 25 June 2027), on conditions including:
  • Good behaviour
  • Supervision by a probation officer
  • Compliance with all reasonable directions of the probation officer
  • No interstate or overseas travel without the written permission of the probation officer
  • Participation in such treatment or rehabilitation programs as the probation officer directs
  • A forfeiture order was made in accordance with a separate short minute of order.

Key Takeaways

  • Active commercial engagement in the marketplace for child abuse material, including negotiating content and price via a messaging platform, elevates the objective seriousness of a possession offence beyond cases involving passive internet access (at [24]).

  • A combination of commonly encountered subjective factors does not automatically constitute "exceptional circumstances" under the Commonwealth sentencing framework. The District Court found that nine factors advanced by the offender, including background disadvantage, mental health difficulties, remorse, and early plea, did not reach the threshold individually or in combination (at [68]-[69]).

  • The absence of a diagnosed paraphilic disorder does not necessarily reduce the weight given to general deterrence in child abuse material offences. The court reasoned that where no inherent attraction to such material is established, general deterrence may be correspondingly more important (at [60]).

  • Where an offender's mental health conditions are not found to be causative of the offending to any significant extent, those conditions do not operate to reduce moral culpability in a marked way, though they remain relevant to prospects of rehabilitation and the conditions of any supervisory period (at [50], [64]).

  • Under section 16A(2AAA) of the Commonwealth Criminal Code, courts must have regard to rehabilitation including available treatment options. Here, the court structured an 18-month recognisance period specifically to support the offender's access to treatment and to maintain abstinence from substance use (at [65], [71]).

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code

Cases
- Bredal [2024] NSWCCA 25
- Chantler [2024] NSWDC 164
- Nafarette [2022] NSWDC 225
- Nasrallah [2021] NSWCCA 207
- Pedersen [2021] NSWDC 535
- R v Hutchinson [2018] NSWCCA 152
- R v TBE [2024] QCA 204