Citation: R v Smith [2025] NSWDC 521
Court: District Court of New South Wales
Date: 9 December 2025
Judge: Newlinds SC DCJ
Background
The offender was 35 years old when, in April 2024, New South Wales Police executed a search warrant at his home following a report made by his partner. She had discovered child abuse material on his devices on three separate occasions between 2022 and 2024. On the last occasion, the offender threw his phone to her and told her to check it, at which point he also admitted he had not disclosed the material to his psychologist.
Police located multiple mobile devices and USB sticks containing approximately 123,000 files, a significant proportion of which were child abuse material. The court found the offender had acquired most of this material by trading and exchanging it with others over more than three years, had actively caused it to be transmitted to himself, and had backed up much of it across multiple devices.
The offender was charged with two federal offences: possessing child abuse material obtained using a carriage service, and accessing, causing to transmit, and transmitting child abuse material using a carriage service. He pleaded not guilty initially, then entered guilty pleas on the first day of his scheduled trial in August 2025.
Legal Issues
- What aggregate sentence was appropriate for two serious Commonwealth child abuse material offences, taking into account the quantity of material, the offender's subjective circumstances, and the utilitarian value of a late guilty plea?
- How much weight should be given to expert psychological evidence that was shown under cross-examination to be misleading and not based on reasonable grounds?
- What is the proper construction of s 3J of the Child Protection (Offenders Registration) Act 2000 (NSW), including its mandatory requirements, and what period of registration on the NSW Child Protection Register was required?
- To what extent could the court take into account the offender's pattern of sharing material with others, given the constraint imposed by the principle in R v De Simoni that sentencing must not treat the offender as guilty of a more serious, aggravated version of the offence?
Decision
The court assessed the objective seriousness of the offending as significant. The quantity of material was very large, the offender had actively participated in a network of like-minded individuals over several years, and he had taken deliberate steps to back up and preserve the material. The court applied the De Simoni principle and proceeded on the basis that sharing with others occurred on no more than three occasions, because accounting for more would have engaged the aggravated offence under s 474.24 of the Criminal Code (Cth), which carries a higher maximum penalty.
On subjective matters, the court considered the offender's mental health, his remorse and insight, and his prospects of rehabilitation. Those prospects were assessed as guarded. The court gave significant weight to general and specific deterrence, denunciation, punishment, and protection of the community, consistent with established principles for child abuse material offences. The court noted the prevalence of such material online and the vulnerability of children as factors requiring firm deterrent sentences.
The court examined the expert psychological report provided for sentencing in some detail. Cross-examination of the psychologist revealed that parts of the report were misleading and that certain opinions were not based on reasonable grounds. The judgment emphasised that experts providing opinions for sentencing purposes must exercise caution and care, and that the weight given to such evidence will be diminished where it does not withstand scrutiny.
A 10% reduction was applied for the utilitarian value of the guilty plea, even though the mandatory New South Wales discount scheme does not apply to federal offences. The court found that full-time imprisonment was required and imposed an aggregate sentence of four years, with a non-parole period of two years and six months, backdated to the date of arrest.
Orders Made
- Aggregate sentence of imprisonment of 4 years, commencing 2 April 2024 and expiring 1 April 2028, for Counts 1 and 2 (after a 10% reduction for the guilty plea).
- Non-parole period of 2 years and 6 months, commencing 2 April 2024 and expiring 1 October 2026, being the earliest date of eligibility for release.
- The offender is to be recorded on the NSW Child Protection Register as a registrable person for a period of 8 years, commencing 1 October 2026 and expiring 30 September 2034, pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000 (NSW).
- The Court Registry was directed to provide copies of the Registrable Person Order to Corrective Services, the NSW Commissioner of Police, and the supervising authority of the offender. Corrective Services was directed to provide a copy to the offender.
Key Takeaways
- The District Court confirmed that the De Simoni principle operates to prevent a sentencing court from treating an offender as if guilty of an aggravated version of an offence when that person has only been charged with the non-aggravated form, even where the underlying facts might otherwise support the higher charge.
- Expert reports prepared for sentencing are not immune from close scrutiny. Where cross-examination reveals that an expert's opinions are misleading or lack reasonable grounds, the court will reduce the weight afforded to those opinions accordingly.
- General deterrence carries significant weight in sentencing for child abuse material offences, given the prevalence of such material online and the need to protect children from sexual exploitation.
- Under s 3C of the Child Protection (Offenders Registration) Act 2000 (NSW), a court imposing sentence for relevant offences must make a Registrable Person Order specifying the duration of registration on the NSW Child Protection Register, with the court here applying the proper construction of s 3J as part of that process.
- A late guilty plea, entered on the first day of trial, still attracted a 10% utilitarian discount in this federal offending matter, even though the New South Wales mandatory discount scheme does not apply to Commonwealth offences.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth) ss 474.22(1), 474.22A(1), 474.24
- Crimes Act 1914 (Cth) ss 16A, 17A, 19
- Child Protection (Offenders Registration) Act 2000 (NSW) ss 3C, 3I, 16C, 17, 18
- Child Protection (Offenders Registration) Amendment Act 2024 (NSW) s 3J
Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Clarkson (2011) 32 VR 361
- R v Bredal [2024] NSWCCA 75
- R v Idaho (a pseudonym) [2025] NSWDC 427
- RG v R [2025] NSWCCA 36
- R v Porte [2015] NSWCCA 174