AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 28 March 2025

R v Brooks

[2025] NSWDC 354

Sexual offences
STRONG SUBJECTIVE CIRCUMSTANCES ADVANCED AGE HEALTH ISSUES “EXCEPTIONAL CIRCUMSTANCES”

Citation: R v Brooks [2025] NSWDC 354
Court: District Court of New South Wales
Date: 28 March 2025
Judge: Sutherland SC DCJ

Background

The offender, a man born in August 1953, appeared for sentencing following guilty pleas to three Commonwealth offences involving child abuse material. Police executed a search warrant on his Cooma residence in June 2023, seizing a desktop computer, a USB drive, and an external hard drive. Those devices contained a total of 212 files of child abuse material, depicting children ranging from infants to approximately 14 years of age.

The offending spanned roughly two years. The first count involved transmitting child abuse material via a Dark Web chat application in June 2022. The second count related to accessing child abuse material on the day of the search, with the offender admitting to regularly using the application for text-based roleplay. The third count concerned possession of child abuse material found across the seized devices.

Each offence carries a maximum penalty of 15 years' imprisonment under the Commonwealth Criminal Code. Both the Crown and the defence agreed that the objective seriousness of the offending fell toward or below the mid-to-low range, and the court accepted that assessment.

  • What was the appropriate objective seriousness of the three offences, considered individually and as a course of conduct?
  • What weight should be given to the offender's strong subjective circumstances, including advanced age and significant health issues?
  • Whether "exceptional circumstances" existed within the meaning of s 20 of the Crimes Act 1914 (Cth) to justify a recognizance release order rather than a term of full-time custody.
  • What conditions should attach to any recognizance order?

Decision

Sutherland SC DCJ assessed the objective seriousness of the offending as falling below the mid-range, consistent with the parties' agreed position. The total number of files (212) was substantially lower than in many comparable cases, and several of the bookmarked images depicting the most serious conduct were cartoons or animations rather than images of real children. These factors moderated the objective gravity of the offending without excusing it.

The court gave significant weight to the offender's subjective circumstances. The offender was 70 at the time of the offending and 71 at sentence. A psychological assessment from a clinical and forensic psychologist was tendered, addressing his background and health. His advanced age and health issues were treated as central to the sentencing exercise, though the precise content of that report was not detailed in the available portions of the judgment.

His Honour found that the combination of the below-midrange objective seriousness and the strong subjective circumstances, particularly the offender's age and health, amounted to "exceptional circumstances" for the purposes of s 20 of the Crimes Act 1914 (Cth). That provision permits a federal offender to be released immediately upon entering a recognizance, rather than serving full-time imprisonment, where exceptional circumstances are established.

Accordingly, the court imposed a two-year term of imprisonment but ordered the offender's immediate release upon entering a recognizance in the sum of $1 for two years. The release was subject to conditions including good behaviour, supervision by a probation officer, compliance with rehabilitation and treatment directions, and a restriction on interstate and overseas travel without the probation officer's permission (with an express carve-out for travel into or through the Australian Capital Territory).

Orders Made

  • A two-year term of imprisonment imposed, commencing 28 March 2025 and expiring 27 March 2027.
  • Immediate release upon the offender entering a recognizance in the sum of $1 for two years, subject to conditions including:
  • Good behaviour
  • Supervision by a probation officer
  • Compliance with all reasonable directions of the probation officer, including participation in treatment or rehabilitation programs
  • No interstate or overseas travel without the probation officer's permission (travel into or through the Australian Capital Territory excepted)
  • Attendance at the Community Corrections office in Cooma within 7 days of the date of sentence
  • Forfeiture orders made by consent on application by the Commonwealth Director of Public Prosecutions under s 23ZD of the Crimes Act 1914 (Cth), forfeiting to the Commonwealth:
  • HP Pavilion all-in-one personal computer (item JB008)
  • Verbatim 16GB USB drive (item JB004)
  • Seagate external hard drive (item 001)

Key Takeaways

  • The District Court confirmed that "exceptional circumstances" under s 20 of the Crimes Act 1914 (Cth) can be established by a combination of factors, including below-midrange objective seriousness and strong subjective circumstances such as advanced age and significant health issues, even in cases involving child abuse material.

  • A sentence below full-time custody for child abuse material offences is not precluded as a matter of principle; the statutory requirement for exceptional circumstances demands a careful weighing of all relevant factors on the facts of each individual case.

  • Where bookmarked or possessed material includes animated or cartoon depictions rather than images of real children, that distinction is relevant to objective seriousness, though such material still constitutes child abuse material under the Commonwealth Criminal Code.

  • The total volume of files, while not determinative, forms part of the objective seriousness assessment; courts in this jurisdiction regularly encounter cases involving substantially higher quantities, and a comparatively lower volume can inform the gravity analysis.

  • Sutherland SC DCJ declined to identify the specific Dark Web applications or platforms used in the offending, endorsing the view previously expressed in R v Hunter [2022] NSWDC 631 that naming such platforms risks facilitating access by others with similar inclinations.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), ss 3E, 16A, 17A, 20, 23ZD
- Criminal Code Act 1899 (Qld)

Cases:
- Crowder (a pseudonym) v The King [2024] VSCA 211
- DPP (Commonwealth) and DPP (Vic) v Garside [2016] VSCA 74
- DPP (Cth) v Gregory (2011) 34 VR 1
- DPP (Cth) v Zarb [2014] VSCA 347
- Elwdah v R [2024] NSWCCA 150
- Gulyas v Western Australia [2007] WASCA 263
- Imbornone v R [2017] NSWCCA 144
- Jackson v R [2020] NSWCCA 230
- Markarian v The Queen (2005) 228 CLR 357
- Mertell v The King [2022] ACTCA 69
- Minehan v R [2010] NSWCCA 140
- R v Bredal [2024] NSWCCA 75
- R v Cardwell [2021] QCA 112
- R v De Simoni (1981) 147 CLR 383
- R v Fuller [2010] NSWCCA 192
- R v Howard [2024] NSWDC 514
- R v Hunter [2022] NSWDC 631
- R v Pacey [2025] NSWDC 53
- R v Porte [2015] NSWCCA 174
- R v Qutami (2001) 127 A Crim R 369