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District Court 24 October 2025

R v Kinnaird

[2025] NSWDC 501

Sexual offences

Citation: R v Kinnaird [2025] NSWDC 501
Court: District Court of New South Wales
Date: 24 October 2025
Judge: Baker SC DCJ

Background

A 53-year-old Sydney man was found guilty by jury of three Commonwealth offences under s 474.22(1) of the Criminal Code Act 1995 (Cth), each involving the use of a carriage service in connection with child abuse material. The offending occurred over a period of approximately five days in March 2023. The offender had no prior criminal history and denied any involvement at trial, claiming his phone had been remotely hacked by an unknown actor. The jury rejected that account.

The offending arose through a Kik Messenger conversation between the offender and a co-offender, MT, who was in a relationship with a woman whose two daughters, aged 9 and 12, lived with him intermittently. MT was arrested on 9 March 2023 following a police operation targeting the online sharing of child abuse material. Following MT's arrest, the two children disclosed that MT had sexually abused them.

Count 1 involved the offender accessing three videos depicting the rape of prepubescent children sent to him by MT. Count 2 involved the offender transmitting an image of two young children to MT. Count 3, considered the most serious, involved the offender expressly requesting child abuse material from MT while falsely representing that he had a teenage daughter he intended to sexually abuse, thereby inducing MT to transmit further material depicting the sexual abuse of his two stepdaughters.

  • What were the objective circumstances and seriousness of each of the three offences, including the proximity of the offending to real identified child victims?
  • What weight should be given to the offender's subjective circumstances, including his lack of criminal history, given that he was convicted after a trial and denied involvement?
  • Whether the three Class 2 registrable offences under the Child Protection (Offenders Registration) Act 2000 (NSW) should be treated as a single offence for the purpose of specifying the reporting period, or whether a 15-year reporting period applied.

Decision

Baker SC DCJ identified the offender's awareness that MT was contemporaneously sexually abusing two real, identified children as a significant aggravating feature. The court found beyond reasonable doubt that, based on the content of the communications and identifying features visible in the material, the offender must have known MT had access to his stepdaughters and was committing sexual acts upon them. This proximity between the offender's conduct and the creation of child abuse material by an active abuser elevated the gravity of the offending, particularly in relation to Count 3.

Count 3 was placed in a distinct and higher category of seriousness. The court found that the offender had deliberately cultivated a false impression of having a daughter available for sexual exploitation in order to encourage MT to send further material. The sophistication of this conduct, combined with the offender's knowledge of two real, proximate victims, made Count 3 materially more serious than Counts 1 and 2.

On sentencing generally, the court applied Part 1B of the Crimes Act 1914 (Cth) and considered all relevant factors under s 16A(2), including the offender's age, lack of criminal history, personal circumstances, and the harm to child victims. Because the offender was convicted after a trial in which he denied all involvement, no leniency for a guilty plea was available, though the court noted first-offender status remained relevant.

Regarding the registrable person order, the court declined to exercise its discretion to treat the three offences as a single registrable offence, which would have reduced the reporting period from 15 years to 8 years. The court found the offences were distinct in conduct, involved different aspects of the statutory prohibition, and that the criminality of Count 3 in particular, including its sophistication and connection to real, identified victims, militated strongly against treating them as one.

Orders Made

  • The offender was sentenced on all three counts, with the sentence backdated to commence on 5 April 2025 to account for two months of pre-sentence custody.
  • A Registrable Person Order was made under the Child Protection (Offenders Registration) Act 2000 (NSW).
  • The reporting period was set at 15 years, with the court declining to treat the three Class 2 registrable offences as a single offence under s 2E of the CPOR Act.
  • Written notice of reporting obligations and consequences was to be provided to the offender while in custody.
  • A copy of the order was to be provided to the Commissioner of Police and the supervising authority for the offender.

Key Takeaways

  • The District Court treated the offender's knowledge that child abuse material was being created contemporaneously by an active abuser of identified, proximate victims as a significant aggravating factor, distinguishing the offending from more typical carriage service offences involving pre-existing material.

  • Under s 2E of the Child Protection (Offenders Registration) Act 2000 (NSW), a court retains discretion to treat multiple registrable offences as a single offence for reporting period purposes, but that discretion will not be exercised where the offences are distinct in conduct, involve separate victims, and reflect a higher level of criminality.

  • Sophistication in the commission of a child abuse material offence, such as actively deceiving a co-offender to induce the production of further material, is a factor that weighs against a finding that offences should be treated as a single registrable offence.

  • A conviction after trial, where the offender denied all involvement and the jury rejected that account, does not preclude the court from recognising first-offender status as a mitigating factor in the overall sentencing assessment.

  • Where three offences are created by the same statutory provision but involve materially different conduct (accessing, transmitting, and causing transmission), the similarity of the legislative source does not necessarily make it appropriate to treat them as a single offence for registration purposes.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), Part 1B, s 16A(2)
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 2E, 3I
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Minehan v R [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152