Citation: [2025] NSWDC 572
Court: District Court of New South Wales
Date: 5 December 2025
Judge(s): Bourke SC DCJ
Background
The offender pleaded guilty at the earliest opportunity to two Commonwealth offences under s 474.22 of the Criminal Code (Cth). The first offence (sequence 50) involved using a carriage service to transmit child abuse material to himself, consisting of graphic written messages describing sexual acts the offender wanted to perform on a real child. The second offence (sequence 51) involved causing child abuse material to be transmitted to himself, namely three videos of a 13-year-old girl filmed naked in the shower without meaningful consent.
Between June 2023 and February 2024, the offender exchanged messages with a woman ("Amanda") with whom he was in a sexual relationship. Amanda was the mother of several children, including the victim. The offender's messages described in explicit terms sexual acts he wished to perform on Amanda's daughter (aged 12 to 13), included requests for images of the child, and discussed drugging her. Amanda ultimately filmed her daughter naked and sent the videos to the offender.
Two further offences were taken into account on a s 16BA schedule: one of soliciting child abuse material using a carriage service (sequence 52) and one of using a carriage service in an offensive manner involving references to bestiality between adults (sequence 53).
Legal Issues
- What was the objective seriousness of each offence, assessed by reference to the factors in Hutchinson v R [2018] NSWCCA 152?
- What discount should be applied for the offender's early guilty plea, noting that Commonwealth sentencing does not prescribe a fixed utilitarian discount?
- What was the appropriate sentence having regard to the factors in s 16A(2) of the Crimes Act 1914 (Cth)?
Decision
Objective seriousness. Bourke SC DCJ assessed the sequence 50 offence (written messages describing sexual acts with a real child) as "comfortably below the mid range and towards the lower range of objective seriousness." His Honour noted the offending related to a real child and involved graphic descriptions of acts that would have caused cruelty and harm if carried out. However, the material was exchanged only between the offender and Amanda, was not distributed to any third party, involved no actual physical harm to a child, and did not involve any payment or commercial motivation. The offending lacked planning, sophistication, or any collaborative network beyond the two adults.
For the sequence 51 offence (receipt of the three shower videos), the court noted the material depicted a real 13-year-old child naked, was highly invasive of the child's dignity and privacy, and was produced at the offender's instigation. However, the videos did not involve sexual posing or sexually suggestive acts, and the offender was not to be sentenced as though he had created the material himself. His Honour's full sentencing assessment of this count appears in the balance of the judgment (beyond the truncated text available).
Discount for plea. Although there is no legislated discount percentage for Commonwealth offences, his Honour indicated an intention to apply a 25% discount to reflect the offender's plea of guilty at the earliest opportunity, consistent with prevailing appellate guidance.
Section 16A(2) considerations. The court worked through the mandatory sentencing considerations for Commonwealth offences, including the nature and circumstances of the offending, the offender's character, and the matters on the s 16BA schedule. The court treated the maximum penalty of 15 years' imprisonment for each offence as an important guidepost.
Orders Made
- The full sentencing orders are contained in the balance of the judgment, which was truncated in the material available. The court proceeded to sentence the offender on both counts, with the two schedule offences taken into account.
Key Takeaways
-
The District Court provided a detailed, step-by-step application of the Hutchinson factors (nature of the material, whether a real child was involved, number of items, distribution, commercial motivation, proximity to creation, and risk to vulnerable persons) in assessing the objective seriousness of Commonwealth child abuse material offences.
-
A clear distinction was drawn between the written-message offence (sequence 50) and the video-receipt offence (sequence 51): the former was assessed at a lower level of objective seriousness than the latter, even though both fell under the same statutory provision and carried the same maximum penalty.
-
In recognising the offender's earliest-opportunity guilty plea, a 25% discount was applied, confirming that timely pleas continue to attract significant sentencing reductions in Commonwealth prosecutions despite the absence of a fixed statutory percentage.
-
Where the material was exchanged only between two individuals without broader distribution, the Court treated that circumstance as reducing objective seriousness, while emphasising that the involvement of a real child and the capacity of the offending to perpetuate demand for child abuse material nonetheless warranted serious treatment.
-
Little independent weight was given to conduct that was ambiguous or equivocal (such as the July 2023 exchange), even though it was included in the agreed statement of facts, indicating that the characterisation and clarity of material within the statement of facts can shape the sentencing exercise.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 474.22
- Crimes Act 1914 (Cth), ss 16A(2), 16BA
- Child Protection (Offenders Registration) Act 2000 (NSW)
Cases
- Hutchinson v R [2018] NSWCCA 152
- R v Bredal [2024] NSWCCA 75
- R v Daetz [2003] NSWCCA 216
- R v Kelly [1999] 2 All ER 13
- R v Quick; ex parte Attorney General (Queensland) (2006) 166 A Crim R 588
- R v TBE [2024] QCA 204
- Ryan v The Queen (2001) 206 CLR 267