Citation: R v Curtis [2025] NSWDC 214
Court: District Court of New South Wales
Date: 27 March 2025
Judge: Noman SC DCJ
Background
The offender was tried before a jury on seven Commonwealth charges related to child abuse material. The jury returned guilty verdicts on six counts: two counts each of causing to transmit and transmitting child abuse material using a carriage service, and two counts of possessing child abuse material obtained using a carriage service. Each offence carries a maximum penalty of 15 years' imprisonment.
The offending arose from an online relationship the offender had conducted with a woman based in the Philippines, referred to in the judgment as "Nhell." Over a period spanning 2021 to 2022, the offender exchanged child abuse material with her via WhatsApp on two separate mobile phones. The possession offences related to material found on those same phones when the offender was stopped by Australian Border Force officers upon his return to Australia in May 2023.
The material involved real children ranging in age from babies to pubescent, and included videos and images depicting penetrative acts. The offender had maintained throughout his police interview and at trial that he had not transmitted or solicited child abuse material, but the jury's verdicts rejected that account.
Legal Issues
- What is the appropriate sentence for six Commonwealth child abuse material offences following a jury trial, having regard to objective seriousness and available subjective factors?
- What weight, if any, should be given to the offender's limited cooperation with police and his agreement to an agreed facts document at trial?
- Whether any mechanism short of full-time imprisonment was appropriate in the circumstances.
- What degree of accumulation was required across six discrete but overlapping offences?
Decision
The District Court sentenced the offender after applying Commonwealth sentencing principles and the objective seriousness factors identified in R v Hutchinson [2018] NSWCCA 152 and Minehan v R [2010] NSWCCA 140. The court found the offending was for personal gratification, involved real children, and included material depicting penetrative acts on very young children. The court rejected the submission that no physical harm was discernible, noting that anal penetration of young children with objects was likely to cause pain or discomfort, even if the material did not depict torture or observable injury beyond the acts themselves.
On subjective factors, the court found the offender had a limited criminal history, suffered from depression and alcohol dependence, and had experienced grief following his wife's death. However, his continued denial of any sexual interest in children, despite nearly two years of conduct demonstrated by the evidence, significantly diminished the weight of that material. The court noted that rehabilitation prospects were accordingly poor, with any criminogenic treatment more likely to occur post-release under parole conditions.
The court gave some limited credit for the offender providing his passwords to investigators and for agreeing to an agreed facts document that spared the jury from viewing source images directly. These steps were characterised as reflecting a willingness to facilitate the course of justice and warranted modest amelioration to sentence.
After considering all available sentencing options, the court was satisfied that no sentence other than full-time imprisonment was appropriate. The court imposed an aggregate sentence, noting that while there was considerable overlap between the material solicited and possessed, the separate criminality of each offence required a degree of accumulation, as a sentence for one offence alone would not capture the totality of the wrongdoing.
Orders Made
- The offender was convicted on all six counts.
- An aggregate sentence of 3 years and 6 months imprisonment was imposed, commencing 24 March 2025 (backdated three days for pre-sentence custody).
- Non-parole period of 2 years, with the offender eligible for parole on 23 March 2027.
- Forfeiture of the two seized mobile phones was ordered by consent.
Indicative sentences forming the aggregate:
- Count 1 (cause to transmit): 2 years imprisonment
- Count 2 (transmit): 9 months imprisonment
- Count 3 (cause to transmit): 2 years imprisonment
- Count 4 (transmit): 9 months imprisonment
- Count 6 (possession): 2 years and 6 months imprisonment
- Count 7 (possession): 2 years and 6 months imprisonment
Key Takeaways
- Under Commonwealth sentencing principles, the maximum penalty of 15 years for child abuse material offences under ss 474.22(1) and 474.22A(1) of the Criminal Code Act 1995 (Cth) provides relevant guidance on the appropriate range, calibrated against the specific objective seriousness of each offence.
- Providing passwords to investigators and agreeing to an agreed facts document that limited jury exposure to source material were treated as utilitarian cooperation warranting modest sentencing recognition, even where the offender contested guilt at trial.
- Where multiple child abuse material offences involve overlapping conduct, the District Court confirmed that considerable overlap between material solicited and material possessed justifies limited accumulation, but some accumulation remains necessary to reflect the discrete criminality of each offence.
- Continued denial of any sexual interest in children, in the face of jury findings supported by extensive communications evidence, substantially reduced the weight available to subjective mitigating factors and undermined the assessment of rehabilitation prospects.
- Sufficient seriousness in the nature of the material depicted and the duration of the offending justified full-time imprisonment as the only appropriate sentencing outcome, with rehabilitative conditions more appropriately addressed through post-release parole supervision.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1) and 474.22A(1)
Cases:
- R v Hutchinson [2018] NSWCCA 152
- Minehan v R [2010] NSWCCA 140