Seam v R

1. [1]

   N ADAMS CJ at CL: I agree with the orders proposed by McGuire J for the reasons provided by his Honour.

2. [2]

   PRICE AJA: I agree with McGuire J’s reasons and the proposed orders. As his Honour observes at [139] below, the non-parole period of three years represents considerable leniency by the sentencing judge notwithstanding the gravity of the applicant’s offending.

3. [3]

   McGUIRE J: The applicant, Christopher Seam, seeks leave to appeal against the sentence imposed upon him by her Honour Judge Culver in the District Court of New South Wales on 24 September 2024.

4. [4]

   The applicant pleaded guilty on 1 May 2024 to ten counts of procuring the production of child abuse material for use through a carriage service, contrary to ss 474.23(1) and 11.3 of the Criminal Code Act 1995 (Cth) (“Code”), and one count of possessing child abuse material obtained or accessed using a carriage service, contrary to s 474.22A of the Code. Each of those offences carries a maximum penalty of 15 years imprisonment.

5. [5]

   In addition, the applicant asked the Court to take into account, on a s 16BA schedule, two charges of using a carriage service to transmit indecent communication to a person under the age of 16 years, contrary to s 474.27A of the Code, and ten charges of using a carriage service to cause child abuse material to be transmitted to himself, contrary to s 474.22(1) of the Code. The maximum penalty for each s 474.27A offence is ten years imprisonment. The maximum penalty for each s 474.22(1) offence is 15 years imprisonment.

6. [6]

   The sentence hearing occurred on 26 July 2024 and 24 September 2024. The sentencing judge delivered ex tempore remarks on sentence on 24 September 2024.

7. [7]

   The applicant was sentenced to individual terms of imprisonment for each offence, which were partly accumulated and partly concurrent. The effective total head sentence was nine years imprisonment commencing on 22 September 2024 and expiring on 21 September 2033. A single non-parole period of three years was imposed commencing on 22 September 2024. The earliest date upon which the applicant becomes eligible for parole is 21 September 2027.

8. [8]

   The individual sentences imposed for each count were as follows:

9. [9]

   The grounds of appeal for which leave is sought are as follows:

   1. (1)

      The sentencing judge erred in determining the objective seriousness of each offence;

   2. (2)

      The sentencing judge erred in imposing individual sentences that were manifestly excessive; and

   3. (3)

      The sentencing judge erred in breaching the principle of totality.

Factual background

1. [10]

   The sentencing judge made factual findings consistent with the agreed facts tendered on sentence. Those factual findings, which are not challenged in this Court, can be summarised below.

2. [11]

   The relevant conduct giving rise to the charges was committed during the period between 5 August 2020 and 4 May 2023.

3. [12]

   In January 2023, the applicant was identified by a joint task force involving Homeland Security Investigators in the United States of America and the Australian Federal Police as a person believed to be involved in an online child abuse material syndicate. That syndicate involved persons, referred to as “buyers”, procuring child victims, referred to as “sellers”, to produce and distribute child abuse material. As a “buyer”, the applicant communicated directly with female children between the ages of 14 and 17, all of whom resided in the United States of America. Through those communications, the applicant developed personal connections with the children and then suggested that each of them produce child abuse material and transmit that material to him. He suggested particular poses and particular sexual acts from the children, negotiated prices with them for the material and paid the victims upon receipt of photographs and videos.

4. [13]

   In relation to the procurement offences, the applicant engaged with ten individual victims, each of whom were known to the applicant to be under the age of 18 years at the time of the offending. Unbeknownst to the applicant, on some occasions he unwittingly communicated with an adult syndicate facilitator posing as a child. It was, however, an agreed fact that at all times the applicant believed he was dealing directly with the child victims.

5. [14]

   The applicant pleaded guilty to one count of procuring each of the ten victims to produce child abuse material and asked the Court to take into account for each of them the further charge of using a carriage service to cause that child abuse material to be transmitted to himself. In relation to two of the ten victims, the applicant also asked the Court to take into account a further charge of using a carriage service to transmit indecent communication to the child victim.

6. [15]

   During a search of the applicant’s residence on 4 May 2023, he was found to be in possession of a total of 1,023 child abuse material files. Those files were possessed across three different devices. 707 child abuse material files were found on his Mega cloud storage account. 209 were found on his Samsung mobile telephone. 107 were found on his Dropbox cloud storage account. All of the child abuse material possessed by the applicant was procured from the victims of the procurement offences. In addition to depicting those ten victims, the child abuse possessed by the applicant also depicted four additional child victims.

7. [16]

   The applicant’s conduct in relation to the female victim KG is relevant to sequence 31 and items 1 and 2 on the s 16BA schedule.

8. [17]

   The applicant communicated with KG via Telegram Messenger (“Telegram”), a cloud-based instant messaging service application. The applicant took screenshots of some of the chat communications between himself and KG and saved those screenshots to his Mega account.

9. [18]

   During the offending conduct, KG was 14 and 15 years old. The applicant knew her age because in their communications, KG told the applicant “I’m not 16 yet … I’m 14” and in certain of the child abuse material videos, she said that she was 14 and later 15 years old. She also stated her year of birth.

10. [19]

    Relevant to item 1, the applicant transmitted indecent communication to KG during the period between 30 August 2022 to 10 October 2022 knowing that she was under the age of 16 years. During those communications, he made repeated reference to KG’s breasts and genitals, described how she would feel when she engaged in sexual activity, asked her for descriptions about sexual activity she had engaged in and made reference to her performing fellatio.

11. [20]

    Relevant to sequence 31, the applicant procured KG to produce child abuse material between about 19 May 2022 and 5 October 2022. In his communications, the applicant made specific requests for her to produce particular types of material. Those included specific requests for video material depicting KG doing “something super sexual” in her homecoming dance dress, requests for “homecoming dress porn” and requests that KG talk on the videos about her sexual experiences. During the conversations via Telegram, the applicant discussed making payments to KG for the videos she produced and sent.

12. [21]

    During one of their communications, the applicant requested that KG take a photograph after engaging in sexual activity and send the photograph to him. Following that communication, KG transmitted material to the applicant depicting her lying on her back exposing her genitals with a clear white liquid on her genitals and stomach.

13. [22]

    The applicant’s Mega account and mobile telephone were later found to contain 300 child abuse material files depicting KG. That material included videos where KG addressed the applicant by his first name, a video where the applicant’s first name was written across KG’s inner thighs and genitals, references were made to the applicant “grooming” KG and giving her “lots of gifts” and references were made to KG’s age and year of birth.

14. [23]

    In an interview with American authorities, KG said that she communicated with the applicant via Telegram, was aware that he lived in Australia, believed he was in his 20’s and partially recalled his postcode. She said that she sent him child abuse material in return for money and estimated that she had received approximately $500 to $600 in total from the applicant by way of gift cards sent via Telegram or via international money transfers. Although the agreed facts are silent on the issue, it can be inferred from the circumstances that the victim’s references to payments received are references to amounts in US dollars.

15. [24]

    Relevant to item 2, KG transmitted child abuse material depicting herself to the applicant between about 19 May 2022 and 5 October 2022. 157 files of child abuse material depicting KG were saved in the applicant’s Mega account and an additional 143 child abuse material files depicting KG were saved on his mobile telephone.

16. [25]

    The applicant’s conduct in relation to the female victim JT is relevant to sequence 32 and items 3 and 4 on the s 16BA schedule.

17. [26]

    The applicant communicated with JT via Telegram between about 19 May 2022 and 3 May 2023. During that period, JT was 14 to 15 years old. During their communications, JT told the applicant that she was 14 years old.

18. [27]

    Relevant to item 3, the applicant transmitted indecent communications to JT between about 19 May 2022 and 5 October 2022 via Telegram knowing that she was under the age of 16 years. During these communications, he commented on JT’s breasts, discussed sexual activity, suggested that she engage in sexual activity with other victims, requested “birthday porn” from her, discussed buying her a sex toy and commented that other people were “lucky” to engage in sexual activity with her.

19. [28]

    Relevant to sequence 32, the applicant procured JT to produce child abuse material during the period between about 26 May 2022 and 3 May 2023. In his communications, the applicant made specific requests of JT and gave her specific instructions on the type of material he wanted her to produce. Those requests included asking her to film herself having sex with a man for money, performing fellatio, writing the age “16” on her body whilst “jiggling” her breasts, exposing her genitals, masturbating and showering. The conduct relating to writing her age on her body is consistent with the facts relevant to other victims during which the applicant made similar requests and referred to it as “age play”.

20. [29]

    The applicant set up an under 18 money transfer application known as Revolut, which he used to send payments to JT. During their communications, the applicant regularly discussed payments with JT. Those discussions included the applicant making specific reference to amounts payable for particular sexual acts. They included referring to a $30 payment for a “shower vid”, a $30 payment for a video of “something sexual” involving toplessness or masturbation and a $15 payment for writing her age on her breasts. Other discussions concerning the price and content of videos included the applicant requesting a “toilet selfie”, asking JT how she felt about videoing herself urinating and requesting “another $100 worth of sex/BJ vids” involving a “blowjob” and “facial”.

21. [30]

    Their communications included references to JT’s age. Those communications included the applicant praising JT for letting him see her “underage body” and referencing her attendance at school.

22. [31]

    The communications also establish that often within days of requesting particular content, the applicant would comment on videos he received, indicating that the content had been met with his approval.

23. [32]

    Relevant to item 4, between about 26 May 2022 and 3 May 2023, JT transmitted child abuse material files depicting herself to the applicant. 74 of those files were transmitted via Telegram. 175 files were transmitted and saved by the applicant in his Mega account. 58 files were transmitted and saved on his mobile telephone.

24. [33]

    The applicant’s conduct in relation to the female victim Jizelle is relevant to sequence 33 and item 5 on the s 16BA schedule.

25. [34]

    The applicant communicated with Jizelle, who was approximately 16 to 17 years of age during the offending conduct. The applicant communicated with her via Telegram.

26. [35]

    Relevant to sequence 33, between about 27 October 2022 and 30 November 2022, the applicant communicated with Jizelle via Telegram, procuring her to produce child abuse material.

27. [36]

    In his communications, the applicant made specific requests to Jizelle for the production of child abuse material and he discussed with her the issue of payment. During those communications, Jizelle referred to herself by her age and date of birth, referred to the applicant as her “sugar daddy” and told the applicant “I’m fucking for money”.

28. [37]

    Relevant to item 5, 36 files of child abuse material depicting Jizelle were found saved on the applicant’s Mega account and a further eight files of child abuse material depicting Jizelle were found saved on his mobile telephone.

29. [38]

    The applicant’s conduct in relation to the female victim Mandy is relevant to sequence 34 and item 6 on the s 16BA schedule.

30. [39]

    The applicant communicated with Mandy via an unknown source. Mandy was approximately 16 to 17 years of age during the relevant conduct.

31. [40]

    Relevant to sequence 34, between about 5 August 2020 and 5 September 2020, the applicant procured Mandy to produce child abuse material. In some of the videos produced by Mandy, she referred to the applicant by his first name. In four of the videos, Mandy had her age written across her breasts, chest or abdomen, which is consistent with the applicant’s requests of the other victims for “age play”. In a number of the videos, Mandy made specific reference to the amounts of money the applicant was paying her and referred to her age. She also asked the applicant if he liked “underage girls”.

32. [41]

    PayPal accounts by one of the adult facilitators establish that between 21 June 2020 and 22 November 2020, payments were made by the applicant into a facilitator’s PayPal account with transaction references to Mandy.

33. [42]

    Relevant to item 6, 64 files of child abuse material depicting Mandy were found saved on the applicant’s Mega account. That material had been transmitted to the applicant between about 5 August 2020 and 5 September 2020.

34. [43]

    The applicant’s conduct in relation to the female victim SB is relevant to sequence 35 and item 7 on the s 16BA sequence.

35. [44]

    Between about 22 August 2021 and 18 March 2022, the applicant communicated with SB via email, Snapchat and Kik chat applications. SB was approximately 15 to 16 years of age during the offending conduct.

36. [45]

    Relevant to sequence 35, between about 22 August 2021 and 18 March 2022, the applicant procured SB to produce child abuse material. The material produced by SB included videos with her age written on her breasts, chest or abdomen. A number of the videos included SB referring to her age as 16 and her year of birth.

37. [46]

    During the period 22 August 2021 and 24 December 2021, SB received 22 payments from the applicant totalling USD$409.

38. [47]

    During her interview with American authorities, SB referred to the applicant by his first name and told them that he would send her Amazon gift cards in exchange for videos and photographs of herself taking her clothes off, talking dirty or talking about her age. She also confirmed that the applicant paid her in amounts of about $20 to $25 which he sent via Amazon gift cards, a cash payment application or PayPal.

39. [48]

    Relevant to item 7, 106 files of child abuse material depicting SB were found saved on the applicant’s Mega account. Those images were transmitted to the applicant between about 22 August 2021 and 18 March 2022.

40. [49]

    The applicant’s conduct in relation to the female victim Jasmine is relevant to sequence 37 and item 8 on the s 16BA schedule.

41. [50]

    The applicant communicated with Jasmine via Snapchat. Jasmine was 14 to 15 years of age during the relevant time.

42. [51]

    Relevant to sequence 37, between about 23 January 2021 and 20 March 2022, the applicant communicated with Jasmine, discussing the production of and payment for child abuse material. His communications included specific requests for certain conduct to be filmed, including asking Jasmine “how much is fingering in the shower?”. During some of the procured videos, Jasmine referred to the applicant by his first name and in one of the videos, she wished him a happy birthday. In information referred to American authorities, one of the adult facilitators admitted that a girl using the pseudonym Jasmine worked for him and she received payments through a cash application for child abuse material which she produced. He also confirmed that certain payments received into his account were from the applicant and related to payments for Jasmine and another victim.

43. [52]

    During her interview with American authorities, Jasmine identified herself in videos possessed by the applicant.

44. [53]

    Relevant to item 8, 55 files of child abuse material depicting Jasmine were found saved to the applicant’s Mega account.

45. [54]

    The applicant’s conduct in relation to the female victim Olivia is relevant to sequence 38 and item 9 on the s 16BA schedule.

46. [55]

    The applicant communicated with a person using the username “Rosie Snow” via Snapchat and Kik. As a result of those communications, Olivia was procured to produce child abuse material. Olivia was approximately 14 to 16 years of age during the offending conduct. Although the Rosie Snow accounts were created and controlled by one of the adult facilitators, the applicant was unaware that he was dealing with Olivia through an adult facilitator and believed that he had been communicating with her directly.

47. [56]

    Relevant to sequence 38, the applicant procured Olivia to produce child abuse material between about 20 August 2020 and 26 October 2021. The videos which the applicant procured included Olivia referring to the applicant by his first name, referring to her age and referring to money the applicant was paying her. The applicant also procured two videos where Olivia had written “16” on her breasts.

48. [57]

    When interviewed by American authorities, Olivia said that she had been approached by somebody using fake usernames who had asked her if she wanted to make money by making and sending videos. She told that person that she was 14 and then 15 years of age and was then told about the applicant and that she would make specific videos following instructions received from him. Olivia said that the money that she made depended on the content of the video and gave an example that she was paid about $20 for a video where she showed her breasts. She believed that she received something in the order of $900 in total for the videos she had made.

49. [58]

    Olivia identified herself in one of the videos which had been sent to the applicant in which the number 16 and her breast size “DD” had been written on her chest.

50. [59]

    Relevant to item 9, the applicant received 27 child abuse material files depicting Olivia. One of those files was received between 1 September 2020 and 26 October 2021 and was saved as part of the chat communication in Snapchat between a person using the username Rosie Snow and the applicant. The additional 26 files of child abuse material depicting Olivia were saved in a folder entitled “Olivia” in the applicant’s Mega account.

51. [60]

    The applicant’s conduct in relation to the female victim Quinn is relevant to sequence 39 and item 10 on the s 16BA schedule.

52. [61]

    The applicant communicated with an unknown person using the username “Lacie Love” via Telegram. As a result of those communications, Quinn was procured to produce child abuse material. Quinn was approximately 16 years of age during the relevant conduct. The Lacie Love Telegram account was controlled and created by an adult male facilitator based in the United States of America. The applicant was unaware that his communications were being passed via the adult facilitator and believed at all times that he was communicating directly with the child victim Quinn.

53. [62]

    Relevant to sequence 39, the applicant procured Quinn to produce child abuse material between about 15 August 2021 and 28 November 2021. In his requests of Quinn, the applicant asked her to prioritise “at least one talking vid”, requested closeups of her sitting on the toilet and asked her to urinate into a cup and show it to the camera. Their communications included Quinn referring to her name and age and referring to the applicant by his first name.

54. [63]

    In her interview with American authorities, Quinn indicated that adult facilitators had passed on requests from “buyers” for specific video content and that she would receive payments from those buyers via the facilitator. She also indicated that she was told the applicant’s first name by one of the facilitators and that she used that name in one of the videos she made for him.

55. [64]

    In one of the communications, the applicant stated “you keep being a good girl for me and I’ll keep rewarding you okay?”. The communications also included discussion about the appropriate amounts to be paid by the applicant depending on the content of the videos.

56. [65]

    Relevant to item 10, 51 files of child abuse material depicting Quinn were transmitted to the applicant between 15 August 2021 and 28 November 2021. Two of those files were saved by the applicant in a Snapchat communication between himself and the username Lacie Love. 49 files of child abuse material depicting Quinn were saved in a folder entitled “Quinn” in the applicant’s Mega account.

57. [66]

    The applicant’s conduct in relation to the female victim LO is relevant to sequence 40 and item 11 on the s 16BA schedule.

58. [67]

    The applicant communicated with LO via Telegram. The applicant took screenshots of some of the chat communications between himself and LO and saved those to his Mega account. During the offending conduct, LO was 16 and 17 years old. The applicant knew her age because there was specific reference to her age in their communications.

59. [68]

    Relevant to sequence 40, the applicant procured LO to produce child abuse material between about 25 September 2020 and 16 January 2022. The material which he procured included two videos in which LO had the number “16” written on her breasts. The video material included LO referring to the applicant’s requests for video content and his payments to her. In one of the videos, LO stated “I think that you paying me makes me feel better about myself”.

60. [69]

    The applicant made numerous payments to LO for the videos he procured, ranging from AUD$8.22 to AUD$55.30. LO received 180 payments from the applicant totalling AUD$1,480.26.

61. [70]

    Relevant to item 11, 104 files were transmitted to the applicant containing child abuse material depicting LO. Those files were saved in a folder entitled in LO’s name in the applicant’s Dropbox account.

62. [71]

    The applicant’s conduct in relation to the female victim known as Friend of LO is relevant to sequence 41 and item 12 on the s 16BA schedule.

63. [72]

    The applicant communicated with Friend of LO via Telegram between about 29 September 2020 and 8 November 2020. The applicant took screenshots of some of the chat communications between himself and Friend of LO and saved those screenshots to his Mega account.

64. [73]

    During the offending conduct, Friend of LO was between 15 and 17 years of age. The applicant was aware of her age because there were explicit references to her age in some of the videos.

65. [74]

    Relevant to sequence 41, the applicant procured Friend of LO to produce child abuse material between about 29 September 2020 and 8 November 2020. Each of the procured child abuse material videos depicting Friend of LO also depicted the victim LO. Those videos included references to the applicant sending the victims money, depicted them handling a quantity of cash and included LO stating that she had received over $600 with more money to come. In one of the videos, LO and Friend of LO had a conversation about them having sex with one another since Friend of LO was 14 years of age.

66. [75]

    Relevant to item 12, during the period between about 29 September 2020 and 8 November 2020, 15 files were transmitted to the applicant containing child abuse material depicting Friend of LO and which also depicted LO. Those files were saved in a folder entitled in LO’s name in the applicant’s Dropbox account.

Possession of child abuse material

1. [76]

   Relevant to sequence 29, the applicant was found to be in possession of 1,023 files of child abuse material when a search warrant was executed at his premises on 4 May 2023. That material had been procured from the 10 victims relevant to the procurement sequences and depicted those victims as well as four additional child victims. Those additional victims were two female children known as Carmen and EL and two male children known as CT and JPM.

2. [77]

   The possessed child abuse material was saved in three different locations. 707 files were saved on the applicant’s Mega account. 209 files were saved on his Samsung Galaxy mobile telephone. 107 files were saved on his Dropbox account.

3. [78]

   The child abuse material was not described in the agreed facts by reference to the CETS (Child Exploitation Tracking System) scale or the COPINE (Combating Paedophile Information Networks in Europe) scale. Rather, samples of the possessed child abuse material were described by reference to descriptions of the conduct depicted. The sentence proceedings proceeded on the basis that the material was best understood by reference to those descriptions.

4. [79]

   The Mega account contained files depicting KG (32 image files and 125 video files), JT (63 image files and 112 video files), Jizelle (11 image files and 25 video files), Mandy (30 image files and 34 video files), SB (70 image files and 36 video files), Jasmine (21 image files and 34 video files), Olivia (14 image files and 12 video files), Quinn (10 image files and 39 video files), Carmen (12 video files), EL (22 image files and 12 video files), CT (22 video files) and JPM (one video file). The 23 video files depicting CT and JPM also depict Quinn and were saved in a folder entitled “Quinn”. Seven of the files depicting Jizelle also depicted JT. EL is depicted in eight files engaging in sexual activity with one of the adult male facilitators.

5. [80]

   The Samsung mobile telephone contained files depicting JT (35 image files and 23 video files), Jizelle (two image files and six video files) and KG (17 image files and 126 video files).

6. [81]

   The Dropbox account contained files depicting LO (55 image files and 49 video files) and Friend of LO (seven image files and eight video files). Twelve of the files depicting Friend of LO also depict LO and were saved in a folder in the Dropbox account entitled in LO’s name.

7. [82]

   It is unnecessary to repeat the detailed descriptions of the sample material set out in the agreed facts. It is sufficient to note that the child abuse material possessed by the applicant depicted children engaged in one or more of the following activities: masturbation; digital penetration; exposing breasts, buttock, vagina and anus; touching and shaking exposed breasts; sexual intercourse with adult males; posing in underwear with words written on the child such as “enter here”; undressing; imitating oral sex with various objects; posing naked; sexual intercourse with male child victims; performing oral sex on male child victims; engaging in sexual activity, including penetration and oral sex, with multiple other child victims, both male and female; performing oral sex on adult males; and urinating. The depiction of numbers either written on a piece of paper or written somewhere on the child’s body was a common aspect of the child abuse material possessed. In circumstances where the victim had also said their age during a video, the written number correlated with that stated age.

Ground 1: Error in determining objective seriousness

1. [83]

   The applicant submitted that the sentencing judge erred in assessing the objective seriousness of each offence. In essence, the complaint is that the judge ranked the offences into categories of seriousness but failed to take into account matters that were known which ought to have resulted in each offence being assessed as in the low range of objective gravity.

2. [84]

   Further, the applicant submitted that there is little to differentiate between each procurement offence. In particular, he contended that the victims were of similar ages, that they were all in the higher end of the age category, that the duration of the offending and the number of images involved was similar and that little is known about the nature or content of the child abuse material which the applicant procured apart from the described samples relating to the possession offence. He submitted that, in light of the contended absence of differentiating factors, there was an insufficient basis for the varying levels of objective serious which her Honour found.

3. [85]

   The applicant submitted that, for similar reasons, the possession charge ought to have been found to have fallen in the lower level of objective seriousness.

4. [86]

   The respondent submitted that the sentencing judge correctly applied the relevant law in assessing objective seriousness and that there was sufficient differentiation, arising from the ages of the victims, the duration of the conduct, the number of files involved and the other objective circumstances, to justify the findings of objective seriousness for each of the procurement offences. In addition, the respondent submitted that the finding of objective seriousness was appropriate for the possession offence given the ages of the victims, the number of victims, the fact that they were all actual children and the graphic content of some of the possessed items as described in the sample material in the agreed facts.

5. [87]

   In relation to the manner in which the sentencing judge dealt with the procurement offences, namely by way of categories, the respondent submitted that at the sentence hearing both the Crown and the defence made submissions as to the assessment of objective seriousness in global terms. Neither party sought to make submissions as to the assessment of each individual procurement offence.

6. [88]

   The characterisation of the objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. As was stated in Mulato v R [2006] NSWCCA 282 at [37], this Court is very slow to determine such matters for itself or to set aside the judgment made at first instance by a judge exercising a broadly based discretion. The issue to be determined on appeal is whether or not the particular characterisation given by the sentencing judge was open in the circumstances. The assessment of objective seriousness is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”).

7. [89]

   Although the assessment is an evaluative task which may be susceptible to different views, it is not the function of this Court to substitute its own view of objective seriousness for that of the judge at first instance: Taitoko v R [2020] NSWCCA 43 at [87].

8. [90]

   Objective seriousness is not capable of categorisation according to a mathematical formula: FL v R [2020] NSWCCA 114 at [59]-[60]. Rather, assessing objective seriousness of offending should be done intuitively and based upon the general experience of the courts in sentencing for a particular offence: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13].

9. [91]

   In determining objective seriousness of the offences, her Honour correctly took into account and applied the non-exhaustive list of factors relevant to assessing child abuse material offending set out in R v Hutchinson [2018] NSWCCA 152 (“Hutchinson”) at [45]:

10. [92]

    In applying those factors, her Honour found that each of the offences involved a real child victim and that “the fact of real victims contributes individually to the seriousness of each offence”. In relation to the nature and content of the material, including the age of the children, her Honour noted that the victims were aged between 14 and 17 years. Her Honour observed that, although those ages were towards the higher end of the age category contemplated by the offence provisions, there was increased objective seriousness associated with the serious sexualisation of the youngest of the child victims. The youngest of those victims, who were each 14 years of age, were KG, JT, Jasmine and Olivia. Her Honour did not accept the submission made on behalf of the applicant below that the gravity of the sexual activity involved was “typical” for offences of this kind. Rather, her Honour found the material involving group sex, urination and “age play” were degrading and debasing and added to the objective gravity of those offences. Her Honour also took into account the duration of the conduct relevant to each offence.

11. [93]

    Additionally, her Honour gave careful consideration to the number of images relevant to each procurement offence and to the number of images involved in the possession offence.

12. [94]

    Proper regard was had to the applicant’s motive. Her Honour found that there was no evidence of any commercial advantage or attempt to disseminate the images which were procured and possessed. However, her Honour found that that did not detract from the seriousness of the offending. The sentencing judge held, correctly, that by producing and possessing such material, the applicant contributed to the creation of a market for child abuse material.

13. [95]

    Reports from Dr Olav Nielssen, forensic psychiatrist, dated 2 July 2024 and 3 September 2024 were tendered on behalf of the applicant. Her Honour gave those reports careful and appropriate consideration. Dr Nielssen diagnosed the applicant with anxiety disorder and paraphilia disorder in the form of voyeurism. He was of the opinion that the applicant’s mental capacity and decision-making ability were not reduced by his mental health issues, but that the applicant’s “familiarity with the format” was likely to have had the effect of normalising the situation and contributed to his willingness to pay for performances by girls who had identified themselves as underage. Having considered the psychiatric reports, her Honour found that the applicant’s psychiatric conditions did not explain his specific and repeated requests for victims to engage in “age play”. Additionally, her Honour found that the applicant’s psychiatric conditions did not reduce the objective gravity of the offending, but operated to reduce his overall moral culpability to some extent. That reference does not suggest that her Honour incorrectly took moral culpability into account in determining objective seriousness. As was made clear in DG v R [2025] NSWCCA 137 at [137], the assessment of moral culpability does not inform or play any part in the assessment of objective seriousness. Her Honour also noted that the “age play” aspect of the applicant’s offending warranted further focus in the applicant’s future rehabilitation.

14. [96]

    In relation to the issue of payment for the material, the sentencing judge noted that the applicant had paid the victims to procure and transmit the material to him. Her Honour noted that the applicant had reported to Dr Nielssen that he had spent approximately $100,000 on recorded sexualised performances over a period of four years and that he estimated about 15% of that related to the indexed offending.

15. [97]

    On the issue of proximity, her Honour found that the applicant was directly involved in the direction, production and dissemination of the child abuse material. That finding arose from the evidence establishing that the applicant communicated directly with the victims, developed personal connections with them, suggested and requested specific content and negotiated prices with them. Her Honour noted that, although adult facilitators were involved at varying levels, their involvement was unknown to the applicant who believed at all times that he was dealing directly with the victims. Her Honour also noted that the applicant was aware of the ages of the victims.

16. [98]

    On the issue of planning and sophistication, her Honour found the offending to be unsophisticated and held that it did not involve any particular planning.

17. [99]

    Her Honour found no evidence of any risk that the child abuse material would have been seen or acquired by vulnerable persons or seen or acquired by persons susceptible to act in a similar manner.

18. [100]

    The sentencing judge found that the sexualisation of children was well known to cause long-lasting psychological harm, particularly in cases such as the present where there was evidence of degrading behaviour including urination videos and videos involving children writing their ages on their breasts or on their bodies. Her Honour noted that the Court could take into account such likely psychological harm despite the absence of evidence of specific harm to the victims.

19. [101]

    Having considered and applied those factors, the sentencing judge found that each of the offences were “inherently serious.”

20. [102]

    In relation to the procurement offences, sequences 37 and 38 were found to be the most objectively serious. Her Honour described sequences 37 and 38 as “very serious” and found them to be well within the mid-range of objective seriousness.

21. [103]

    Sequences 31 and 32 were described as “serious” and the next most objectively serious of the present offences. Her Honour found that sequences 31 and 32 fell within the mid-range of objective seriousness.

22. [104]

    Sequences 33, 35 and 40 were found to be the next most serious and found to fall just under the mid-range of objective seriousness.

23. [105]

    Sequences 34, 39 and 41 were found to be the least serious and found to fall in the low range of objective seriousness but not at the lowest end of that range.

24. [106]

    In relation to possession offence, her Honour found that it fell well into the mid-range of objective seriousness.

25. [107]

    The very experienced sentencing judge categorised objective seriousness by grouping similar offences within differing bands or ranges. The following table sets out those groupings, ordered from those found to be the most to those found to be the least objectively serious and includes reference to differentiating features of each offence.

26. [108]

    Relevantly, her Honour departed from the submission made below on behalf of the Crown that all of the offending should be assessed as at least above the mid-range of objective seriousness. In so departing, her Honour made findings which were favourable to the applicant. A number of her findings of objective seriousness accorded with the applicant’s submission below that the offences fell “at the lower end of the range of objective seriousness”.

27. [109]

    The assessment of objective seriousness of the procurement offences was undertaken appropriately by reference to the relevant factors. Sequences 37 and 38, which were assessed as the most serious, featured victims who were amongst the youngest of the victims (being 14 to 16) and toward the highest end of the duration of offending (being approximately 14 months each). Sequences 31 and 32, which were found to be less serious, had shorter durations than sequences 37 and 38. Sequences 33, 35 and 40, which were found to be less serious again, featured older victims (being 15 to 17) and sequences 33 and 35 had shorter durations. The sequences found to be the least serious, sequences 34, 39 and 41, featured older victims (being 15 to 17) and had relatively short durations (being 1 month to 3 months).

28. [110]

    The features of the possession offence, sequence 29, which her Honour correctly took into account in assessing its objective seriousness included the number of files possessed (namely 1,023 files), the duration of the offending conduct during which the material was possessed being a period of two years and seven months, the highly sexualised and at times degrading content, the number of real child victims and the ages of those victims.

29. [111]

    Her Honour correctly approached the assessment of objective seriousness. She engaged correctly in the required evaluative exercise and carefully considered the application of each of the factors in Hutchinson and the features of the offending conduct relevant to the assessments.

30. [112]

    The findings of objective seriousness were well open to her Honour. Ground 1 has not been made out.

Ground 2: Error in imposing individual sentences that were manifestly excessive

1. [113]

   By ground 2, the applicant contends that the individual sentences imposed for the substantive offences were each manifestly excessive.

2. [114]

   The sentences imposed for sequences 37 and 38 were three years imprisonment each. The sentences imposed for sequences 31 and 32 were two years and six months imprisonment each. The shortest sentences imposed, for sequences 34, 39 and 41, were 18 months imprisonment each.

3. [115]

   The applicant submitted that the longer sentences, those for sequences 37, 38, 31 and 32, were outside the discretionary range available to the sentencing judge. However, the applicant accepted that the submission had less force when considering the shortest sentences imposed, namely those for sequences 34, 39 and 41.

4. [116]

   In support of this ground, the applicant relied on the same submissions concerning objective considerations made in respect of ground 1. In terms of subjective considerations, the applicant submitted that the sentences were manifestly excessive when considering that the sentencing judge accepted that the applicant’s mental health issues reduced his moral culpability and that as a result, there was less need for general and specific deterrents and the applicant’s conditions of custody would be more onerous because of his mental health issues.

5. [117]

   At the time he was sentenced, the applicant was 28 years of age. He had no prior criminal convictions and was otherwise a person of good character. He was found to have cooperated with the police regarding access to the material stored on his electronic devices. He was entitled to, and received, a 25% discount for his early guilty plea for each offence. The sentencing judge found that the applicant was contrite and remorseful, had favourable prospects for rehabilitation, had a low risk of re-offending, had undertaken intensive counselling and responded well to treatment and had served a form of quasi-custody in circumstances where there had been some delay in his prosecution.

6. [118]

   The respondent submitted that the sentences imposed could not be said to be unreasonable or plainly unjust. It submitted that the sentencing judge had proper regard to the Hutchinson factors, made appropriate findings as to objective seriousness, had appropriate regard to the scheduled offences, was mindful of the separate and distinct conduct represented by the primary and scheduled offences notwithstanding factual overlaps and appropriately took into account the maximum penalties and relevant sentencing principles.

7. [119]

   In addition, the respondent submitted that the overall sentence involved a significant degree of leniency in that a single non-parole period was imposed that represented a mere one third of the total effective head sentence.

8. [120]

   When asked during the hearing in this Court whether there was any complaint about the non-parole period, counsel for the applicant frankly conceded that there was not by stating, “Not really, if I can be blunt. … not really is the short answer. And not really is the long answer perhaps as well … It’s very unusual.”

9. [121]

   In relation to the sentence for the possession offence, counsel for the applicant submitted that although there were four additional child victims depicted, the material was otherwise identical to the material that had been procured. Counsel, however, conceded that the possession of child abuse material has been acknowledged to have significant and ongoing psychological impacts on child victims.

10. [122]

    The respondent submitted that the evaluative judgment made by the sentencing judge was based on the facts and circumstances of each offence, addressed all relevant considerations and did not result in individual sentences that could be said to be unreasonable or plainly unjust. The respondent relied on its submissions in relation to objective seriousness in further response to ground 2.

11. [123]

    In order to succeed on this ground, the applicant must demonstrate that the sentence imposed was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

12. [124]

    The relevant principles are well established and were summarised in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42]. Those principles include that there is no single correct sentence and that sentencing is not a mathematical exercise but rather an evaluative and discretionary one. A sentence for each offence is required to be reached by balancing many different and often conflicting features: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27].

13. [125]

    Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and in application of principle. Mere disagreement by fellow judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive: TH v R [2025] NSWCCA 121 at [4].

14. [126]

    Consistent with her Honour’s findings as to objective seriousness, longer sentences were imposed for those offences which were considered the most objectively serious. Those offences featured victims who were amongst the youngest and durations which were amongst the longest.

15. [127]

    In the circumstances of the present offending, her Honour’s assessments of the objective seriousness of each offence, when taken into account with the maximum penalties, the other objective circumstances and the applicant’s subjective circumstances, justified each of the sentences imposed.

16. [128]

    The criminality involved in the possession of child abuse material is not wholly encompassed in the criminality involved in the procurement offences. The applicant’s conduct in saving the child abuse material in three different locations and with some in named folders indicate that his possession was not a mere passive receipt. Additionally, there were four child victims depicted in the possessed child abuse material that were in addition to the ten victims involved in the procurement offences.

17. [129]

    Possession of child abuse material is a callous and predatory crime, not just because of the exploitation and abuse of children but because each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes: R v Booth [2009] NSWCCA 89 at [39]-[44]. The undoubted long-term harm done to the child victims goes beyond the acts themselves and extends to psychological harm from the knowledge, as they grow older, that the material may remain in existence, heightening the shame and distress associated with being exploited when young and vulnerable: R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294 at [69]. For those reasons, the sentencing judge was required to give, and gave, appropriate recognition to general deterrence, although reduced to some extent due to subjective circumstances, when sentencing the applicant for the possession offence.

18. [130]

    In light of the maximum penalty for each offence of 15 years imprisonment and the surrounding circumstances, the applicant has failed to demonstrate that the individual sentences imposed were unreasonable or plainly unjust. Accordingly, ground 2 has not been made out.

Ground 3: Error in breaching the principle of totality

1. [131]

   The applicant submitted, in support of ground 3, that the individual sentences were accumulated in such a manner as to arrive at a total head sentence that was crushing. Although the applicant conceded that some degree of accumulation was warranted and that the single three-year non-parole period was lenient, he submitted that the overall term of nine years imprisonment resulted from a process of excessive accumulation of the individual sentences.

2. [132]

   Further, the applicant submitted that all of the offending involved a similar course of conduct in that the material was procured, transmitted and possessed in a similar fashion. In addition, the applicant submitted that there was a large degree of factual overlap, as was found below by the sentencing judge, between the procurement offences and the transmission offences to be taken into account on the schedule. He further submitted that the fact that the material was transmitted and possessed added little to the criminality of the applicants’ actions in procuring that material.

3. [133]

   The applicant also pointed to what was asserted to be a gap between the starting dates of the last procurement sentence and the possession sentence of almost a year. The last procurement offences, namely sequence 38, resulted in a sentence commencing on 22 July 2029 and the possession offence, namely sequence 29, resulted in a sentence commencing on 22 May 2030. The applicant submitted that this gap was particularly excessive given the identical nature of the material procured that formed part of the possessed child abuse material. Further, the applicant submitted that the sentence for the possession offence did not start to run until almost six years after the first procurement sentence had commenced.

4. [134]

   The respondent submitted that the applicant had failed to point to any particular error of the House v The King type in the sentencing judge’s application of the totality principle. In considering the issue of totality, the respondent submitted that the sentencing judge referred to and correctly took into account ss 19(5) and 19(6) of the Crimes Act 1914 (Cth). The respondent submitted that her Honour also took into account that the subsections did not apply if the Court was satisfied that imposing the sentence in a different matter would still result in sentences that are of a severity appropriate in all of the circumstances.

5. [135]

   The respondent submitted that when considering the nature and circumstances of each offence, the maximum penalties and the relevant scheduled offences, the applicant had not demonstrated that the sentence imposed was disproportionate, unreasonable or plainly unjust.

6. [136]

   In sentencing the applicant, the sentencing judge appropriately took into account that the overall sentence must be just and appropriate to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.

7. [137]

   As the applicant has correctly conceded, some degree of accumulation was warranted in the present case. That accumulation was warranted because of the separate and distinct conduct involved in each offence and the separate victims involved in each of the procurement offences. Additionally, accumulation was warranted because of the additional criminality involved in the possession offence, the impact of that offence on each of the victims and the fact that the possessed child abuse material depicted four additional victims not otherwise represented in the procurement offences.

8. [138]

   In light of the maximum penalties and taking in account the objective and subjective circumstances, the applicant has failed to demonstrate that the total effective sentence is disproportionate to his total offending. The graphic and explicit requests by the applicant for material he procured, his frequent payments to numerous child victims for the production of the material and the graphic and degrading nature of much of the material which he procured and later possessed, fortifies that conclusion. Further, the period of time over which each of the offences was committed and the total period of time over which the material was possessed adds significantly to the objective seriousness and further justifies the sentencing judge's approach to totality.

9. [139]

   Accordingly, the applicant has failed to demonstrate that the sentence imposed on him was unreasonable or plainly unjust. Rather, it would seem that the approach to totality resulted in sentences that were within range together with a non-parole period which represented considerable leniency in all the circumstances of the case.

10. [140]

    Accordingly, ground 3 has not been made out.

Orders

1. [141]

   For the above reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal; and

   2. (2)

      Dismiss the appeal.