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District Court 17 June 2026

R v Burke

[2026] NSWDC 194

Sexual offencesPublic order & justice offences
SENTENCING POSSESS CHILD ABUSE MATERIAL PLEA OF GUILTY IMPRISONMENT

Citation: R v Burke [2026] NSWDC 194
Court: District Court of New South Wales
Date: 17 June 2026
Judge: Noman SC DCJ

Background

The offender, who had prior convictions for possession of child abuse material and failure to comply with reporting obligations, was subject to a three-year Extended Supervision Order (ESO) imposed in February 2024. The ESO contained detailed conditions restricting his use of electronic devices, social networking applications, encrypted messaging services, and certain categories of online content. He was released from custody on 17 June 2025.

Within days of his release, the offender began installing a range of applications on his mobile phone, including encrypted messaging apps, social networking platforms, and a dating app, without the required approval. On 23 August 2025, Community Corrections attended his residence and conducted a physical search of his phone. The offender acknowledged having accessed several applications and repeatedly expressed remorse. The phone was seized for forensic examination.

A Cellebrite download of the device revealed extensive activity in breach of the ESO, including the use of search terms associated with child sexual abuse, access to pornographic material without permission, use of an alias on Instagram, and possession of six images classified as child abuse material (four in Category 1 and two in Category 2).

  • Whether the offender's conduct amounted to three separate breaches of his ESO under s 12 of the Crimes (High Risk Offenders) Act 2006 (NSW)
  • Whether the offender possessed child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW)
  • What aggregate sentence was appropriate, having regard to the guilty plea, prior record, personal circumstances, the Form 1 offence, and the principles of totality and proportionality
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the sentence
  • Whether a lifetime registration order should be made under the Child Protection (Offenders Registration) Act 2000 (NSW)

Decision

The offender pleaded guilty at the Downing Centre Local Court on 5 March 2026 and received a 25% discount on sentence. The court sentenced him on three ESO breach offences (with a fourth taken into account on a Form 1) and one offence of possessing child abuse material. The court noted the prior history of similar offending, including an earlier sentence for possession of child abuse material, and emphasised the need for personal deterrence given the pattern of reoffending while on supervision or parole.

The court assessed the seriousness of each offence individually before arriving at an aggregate sentence. The ESO breaches involved a systematic and escalating pattern, including installation of prohibited apps within two days of release, use of encrypted messaging services, access to restricted material, and the use of an alias on Instagram. The court noted that notional accumulation was required across the sequences, moderated by the principle of proportionality.

On the question of special circumstances, the court accepted that the offender was socially isolated, lacked sustained professional treatment, and that an extended parole period might marginally assist rehabilitation and reduce the risk of institutionalisation. Although it noted that previous supervision had not prevented reoffending, the court made a finding of special circumstances, varying the statutory ratio between the non-parole period and the total sentence to approximately 58%.

The court observed that the offender would remain on the ESO until 2027, the mechanism by which the current offending was detected. Following from the child abuse material conviction, the offender was also placed on the Child Protection Register for life, activating mandatory reporting conditions and police inspection powers.

Orders Made

  • The offender was convicted of all four offences for sentence.
  • An aggregate sentence of 3 years imprisonment was imposed, commencing 2 September 2025.
  • Non-parole period: 1 year and 9 months, with eligibility for release to parole on 1 June 2027.
  • Indicative individual sentences (each reduced by 25%): Sequence 1 (including Form 1 offence): 20 months; Sequence 4: 18 months; Sequence 5: 22 months; Sequence 6: 18 months.
  • Special circumstances found; non-parole period to total sentence ratio set at approximately 58%.
  • The offender was made a registrable person for life under s 3C(1)(a) of the Child Protection (Offenders Registration) Act 2000 (NSW).

Key Takeaways

  • The District Court confirmed that multiple distinct breaches of an ESO, each targeting a different condition, can support separate charges and warrant notional accumulation of sentence, subject to an overall proportionality assessment.
  • Under s 12 of the Crimes (High Risk Offenders) Act 2006, the maximum penalty for failing to comply with an ESO or interim supervision order is 5 years imprisonment; each breach was treated as a discrete instance of criminality with an additional Form 1 offence moderately increasing the sentence.
  • A guilty plea entered at the Local Court stage attracted a 25% discount, and an aggregate sentence was imposed rather than individual consecutive terms, reflecting the interrelated nature of the offending.
  • Special circumstances were found, despite a prior finding of special circumstances having yielded limited benefit due to reoffending on parole, because the court considered that any mechanism offering additional support or reducing institutionalisation risk warranted recognition.
  • Lifetime registration as a registrable person under the Child Protection (Offenders Registration) Act 2000 was ordered following conviction for possession of child abuse material, bringing with it mandatory reporting obligations and police inspection powers.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), s 10A, s 12
- Crimes Act 1900 (NSW), s 91H(2)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C(1)(a)

Cases cited: No cases were cited in the portions of the judgment provided.