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District Court 17 October 2025

R v Rousell

[2025] NSWDC 420

Sexual offences
CRIME S ENTENCING C HILD A BUSE MATERIAL

Citation: R v Rousell [2025] NSWDC 420
Court: District Court of New South Wales
Date: 17 October 2025
Judge: Montgomery DCJ

Background

The offender, a 67-year-old Australian citizen with no prior criminal record, was arrested at Sydney International Airport on 27 January 2024 upon returning from a month in the Philippines. Australian Border Force officers discovered child abuse material (CAM) on his mobile phone during an inspection of his belongings.

The matter involved two separate offences charged under different legislative regimes. The first (Sequence 2) was a Commonwealth offence of possessing CAM accessed via a carriage service, covering material stored on the offender's devices between June 2020 and January 2024. The second (Sequence 3) was a NSW State offence of producing CAM, relating to videos and images the offender secretly recorded of his then 14 to 15-year-old stepdaughter using a concealed bathroom camera between March and May 2018.

The offender pleaded guilty to both charges at the earliest available opportunity. He had remained in custody from the date of his arrest and was cooperative with police to a limited degree, providing device PINs and participating in a recorded interview.

  • What sentencing discounts applied under each legislative regime for the offender's early guilty plea and assistance to authorities, given that the Commonwealth and NSW frameworks operate differently.
  • How to structure sentences imposed under both federal and state legislation so that the total sentence remained proportionate and not crushing.
  • What weight to give mitigating factors, including the offender's age, absence of prior convictions, cooperation, and the initial dishonesty about his motivation for offending.
  • Whether the offender qualified as a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW), and for what reporting period.

Decision

Montgomery DCJ convicted the offender on both counts. The court applied a 25% discount to each count for the early guilty plea: on the State count under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), and on the Commonwealth count on the basis of early contrition and the utilitarian value of the plea under s 16A(2)(g)(iii) of the Crimes Act 1914 (Cth). The court accepted the Crown's submission that both pleas were entered against a strong prosecution case.

The court applied a further 2.5% discount to each count for the offender's assistance to authorities in providing device PINs and participating in a police interview. However, the court agreed with the Crown that this assistance was relatively minor, because the CAM was detectable through inspection and forensic analysis of the devices regardless of the offender's cooperation.

The sentencing was complicated by the offender's initial dishonesty about his motivation for the Sequence 3 offending. The court took this into account in its overall assessment of the offender's rehabilitation and remorse, while still acknowledging that his plea and cooperation carried genuine weight. The two sentences were structured to run partly concurrently, with the Sequence 2 term commencing on 1 July 2025 to achieve an appropriate total effective sentence.

The court also registered the offender as a registrable person under the child protection registration regime, imposing an eight-year reporting period.

Orders Made

  • The offender was convicted of both the Sequence 2 (Commonwealth possession) and Sequence 3 (NSW production) offences.
  • Sequence 3 (production, NSW): Maximum term of 2 years and 6 months' imprisonment, backdated to commence 27 January 2024 and expiring 26 July 2026, with a non-parole period of 1 year and 6 months expiring 26 July 2025. Parole conditions recommended, including supervision by Community Corrections, device inspection compliance, attendance at sex offender treatment programs, mental health treatment as directed, and no interstate or overseas travel without written permission from Community Corrections.
  • Sequence 2 (possession, Commonwealth): 1 year and 2 months' imprisonment commencing 1 July 2025, with release on recognizance of $1,000 for 8 months from 1 February 2026 to 30 September 2026, subject to equivalent conditions as those recommended for Sequence 3 parole.
  • The offender's devices were ordered destroyed.
  • A Registrable Person Order was made under s 3C of the Child Protection (Offenders Registration) Act 2000 (NSW), with an eight-year reporting period under s 3I.
  • Copies of the order and Form 3 directed to be provided to the NSW Commissioner of Police and the Secretary of the NSW Department of Communities and Justice.

Key Takeaways

  • The District Court applied two distinct legislative frameworks simultaneously, using s 16A(2)(g)(iii) of the Crimes Act 1914 (Cth) to justify a 25% plea discount on the Commonwealth count in the absence of a prescribed discount provision, and s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the State count.
  • A discount for assistance to authorities will be modest where the evidence was already recoverable by forensic means and the offender's cooperation did not materially advance the investigation; here, the court assessed that contribution at only 2.5%.
  • Where an offender is initially dishonest about motivation for offending, that initial dishonesty remains a relevant sentencing consideration even where guilty pleas are ultimately entered and some cooperation is provided.
  • Producing CAM by covertly filming a child victim within the family home, and retaining that material for years, represents a serious breach of trust that the sentencing framework treats as distinct from, and more grave than, the possession of material sourced elsewhere.
  • Under the Child Protection (Offenders Registration) Act 2000 (NSW), a court sentencing for CAM production and possession offences may make a Registrable Person Order, with the reporting period calibrated to reflect the nature and duration of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.22A(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), ss 16A(2)(g)(iii), 16A(2)(h), 16BA, 3C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 25D, 33
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 3C, 3I

Cases cited:
- Paterson v R [2021] NSWCCA 273
- R v Bredal [2024] NSWCCA 75
- R v Hutchinson [2018] NSWCCA 152
- Small v R [2020] NSWCCA 216
- Tepania v R [2018] NSWCCA 247