Harden v R

1. [1]

   HARRISON CJ at CL: I have had the considerable advantage of reading in draft the detailed and comprehensive judgment of her Honour Natalie Adams J. I agree with her Honour’s conclusions and with the orders she has proposed.

2. [2]

   It will be apparent that her Honour has chosen in the circumstances of this case to endorse and apply the trial judge’s approach extensively to recite the facts that give rise to the multiplicity of counts of sexual or indecent conduct by the applicant against seven male children and the production, solicitation, advertisement and transmission of child abuse material between late 2017 and May 2020. The full extent of the applicant’s criminality could not be comprehended otherwise. I agree with her Honour’s characterisation of the applicant’s offending as appalling and depraved.

3. [3]

   Although the facts of this offending make for uncomfortable and distressing reading, this Court should not attempt in a case such as this, for fear of potentially causing alarm, to draw back from publishing the details of the kind of behaviour for which the applicant was sentenced and against the length of which sentence he now appeals. In terms of general deterrence, if not more broadly, no-one in the community ought to be in any doubt about the consequences of committing crimes of this type against children or about the reasons why the sentence imposed in the Court below was not excessive.

4. [4]

   HAMILL J: I enjoy the great advantage of having read the draft judgment of N Adams J and am grateful for her Honour’s comprehensive summary of the facts and findings of the learned sentencing Judge and careful analysis of the legal issues that arise on this appeal. I have also read the short concurring judgment of Harrison CJ at CL.

5. [5]

   I agree with N Adams J that ground 1 should be upheld and that the Court must move to re-sentence in relation to the Commonwealth offences. I also agree that grounds 2 and 3 are not established. Subject to what follows, I agree with the reasons provided by N Adams J. The matter upon which I will write briefly is not determinative of the outcome, arose during oral argument, and was then subject to notes provided by counsel after the hearing. While I make these separate observations, I do not perceive there is very much between N Adams J and me on this issue.

6. [6]

   The matter concerns the issue of totality and the utility – or “inutility” as it was put by Senior Counsel for the applicant – of adding up the individual indicative sentences and then comparing the accumulated number of years thereby derived with the aggregate sentence imposed. Other than in a case with a very small number of counts (say 2 or 3), I am not persuaded that this arithmetic process is of any assistance to an appellate court in reaching a conclusion as to whether an aggregate sentence is manifestly excessive. Nor do I believe that such a process assists in determining whether or not the principle of totality was properly applied by the primary Judge. N Adams J accepts at [385] that “there are limitations in adopting an arithmetic approach to ascertaining the degree of notional concurrence in an aggravated sentence”.

7. [7]

   In her helpful if rather blunt note, Senior Counsel for Mr Harden submitted:

8. [8]

   I agree with those submissions. I also agree that the submission reflects the principles of totality discussed in cases such as Nguyen v The Queen (2016) 256 CLR 656 at [37], [39] (Bell and Keane JJ), [61]-[64] (Gageler, Nettle and Gordon JJ) and R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]-[16].

9. [9]

   N Adams J undertook a similar exercise in GG v R [2023] NSWCCA 102 at [90] and in R v Stefanac [2022] NSW CCA 129 at [67]-[68]. As I have said, I doubt this is a helpful exercise other than in a case where there are so few counts that the degree of notional accumulation and concurrence can, more or less, be discerned. Sentencing, including the proper application of principles of totality, is more intuitive and instinctive than such a mechanical approach allows. In Stefanac, N Adams J and I reached different conclusions on the issue of totality, with Beech Jones CJ at CL agreeing with her Honour. However, our different conclusions had little to do with this aspect of her Honour’s reasons. Neither the then Chief Judge nor I referred to this part of the judgment.

10. [10]

    More importantly, I agree with N Adams J that the sentencing Judge in the present case did not err in her application of the totality principle in settling on the aggregate sentence for the state offences. The sentencing Judge stated the principle clearly and correctly and the outcome does not suggest a latent error in the application of the principle. I agree with N Adams J, for the reasons her Honour provides, that the sentencing Judge did not err in failing to differentiate between the offending (ground 2) and that the aggregate sentence imposed for the state offences was not manifestly excessive (ground 3).

11. [11]

    As to re-sentencing, I agree with the orders proposed by N Adams J which involve no more than a six-month adjustment to the commencement date of the sentence for the state offences. The aggregate sentences remain the same as those imposed in the District Court. This was a remarkably serious course of criminal conduct. There were multiple victims, egregious breaches of trust of seven children and their families, profound impact on the known victims, and a level of moral and libertine wickedness that the Court rarely encounters. As distressing as they are to recount and to read, it was appropriate that her Honour set out in detail the terrible facts of this case to explain why, even after a substantial discount is applied to the indicative sentences, the total accumulated sentence is as severe as it is.

12. [12]

    N ADAMS J: The applicant seeks leave to appeal against two aggregate sentences imposed upon him on 13 May 2022 by Judge Huggett (as her Honour then was) at the District Court in Sydney. The applicant was arrested on 8 May 2020 and has been in continuous custody since that date.

13. [13]

    The applicant pleaded guilty in the Local Court to very serious sexual offending against young boys, the production, advertising and publication of child abuse material and the possession of child abuse material including violent sexual assaults on babies and toddlers. One of the victims was his stepson and another was his nephew. Others were members of the soccer team he coached. The offending comprised sexual or indecent conduct by the applicant against seven male children, and the production, solicitation, advertisement and transmission of child abuse material between late 2017 and May 2020.

14. [14]

    To describe the extent of the applicant’s depraved behaviour as appalling would be an understatement. The applicant was not in a position to deny the offending because most of the time after he sexually assaulted Child 1 he digitally recorded the abuse, published it online as child abuse material, used the recording of him abusing the children to trade child abuse material with other offenders and also encouraged other likeminded offenders to obtain more explicit child abuse material in relation to children they had access to by agreeing to perform requested acts on his own stepson. He left a long digital trail.

15. [15]

    The applicant ultimately pleaded guilty to:

    1. (1)

       105 offences contrary to the Crimes Act 1900 (NSW) (“Crimes Act”). They included:

    2. (2)

       In addition to these 105 offences, the applicant asked that 63 further State offences be taken into account on 36 separate Forms 1. [1] Of these offences, 33 were contrary to s 66DA(a), one was contrary to s 66DA(b), 16 were contrary to s 66DC(a) and 13 were contrary to s 61M(2).

    3. (3)

       Nine offences were contrary to the Criminal Code Act 1995 (Cth) (“Criminal Code”). They included:

    4. (4)

       Two offences contrary to ss 474.24A(1)(a)(iii) and 474.22A(1) were put on s 16BA schedules. [2]

16. [16]

    In addition to pleading guilty in the Local Court, his post arrest conduct was such that he received a 40% discount on his sentence. Apart from that factor, the applicant did not present a compelling subjective case on sentence. Although he exhibited remorse, he had limited insight into his offending. Although he had no criminal history at the time of sentence, that was not a mitigating factor in the circumstances. He was raised in a loving family and did well at school. He has no cognitive impairment or mental illness besides having been diagnosed with paedophilia. He knew he suffered from paedophilia when he became the stepfather to the four-year-old victim and when he chose to coach the under six-soccer team.

17. [17]

    The sentencing judge was confronted with a highly complex sentencing task. Not only was she required to sentence the applicant for 114 separate offences (and take into account another 38 charges on multiple schedules), she was required to balance that significant criminality as against the subjective factors to which I have referred. Even having regard to the 40% discount, it was inevitable that a significant term of imprisonment would be imposed.

18. [18]

    For the State offences the applicant was sentenced to an aggregate sentence of 27 years imprisonment commencing on 8 May 2023 and expiring on 7 May 2050 with a non-parole period of 19 years and an aggregate sentence of 5 years and 6 months imprisonment commencing on 8 May 2020 and expiring on 7 November 2025 for the Commonwealth offences for which no non-parole period was set.

19. [19]

    Allowing for some concurrence the applicant’s effective sentence was a non-parole period of 22 years commencing on 8 May 2020 and expiring on 7 May 2042 and a head sentence of 30 years imprisonment expiring on 7 May 2050.

GROUNDS OF APPEAL

1. [20]

   The applicant raises the following three grounds of appeal:

2. [21]

   As for Ground 1, regrettably, the sentencing judge was provided with an incorrect maximum penalty for five of the nine Commonwealth matters. The error was contained in the Crown sentencing summary and not corrected by the applicant’s legal representatives. The Crown properly conceded that, consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, such error requires this Court to re-sentence the applicant in relation to the Commonwealth offences. That concession was properly made for reasons to which I will return.

3. [22]

   The applicant addressed Grounds 2 and 3 together. The nub of this application for leave to appeal is that even having regard to the applicant’s considerable criminality and the multiplicity of charges he faced, the effective aggregate sentence imposed was “unreasonable or plainly unjust”.

Leave

1. [23]

   The applicant initially filed a Notice of Intention to Appeal on 31 May 2022, which expired on 31 May 2023. The Notice of Appeal was not filed until February 2024. Accordingly, the applicant requires leave to appeal out of time. The Crown did not oppose leave being granted.

2. [24]

   The reasons of the sentencing judge were detailed and set out the offending behaviour as contained in the Agreed Facts. They are not available on Caselaw (as is often the case for District Court sentencing reasons). Although her Honour was required to read out her reasons in open court, there was one portion she did not read out due to its distressing nature. Given that this judgment will be published on Caselaw a question arises as to whether it is necessary to include the same degree of detail in the Agreed Facts as her Honour did.

3. [25]

   Courts are put in a difficult position when sentencing serious child abusers such as the applicant. In the interests of open justice, the court is required to publish its reasons for imposing any sentence, but describing the child abuse material in this appeal will no doubt cause distress to some readers.

4. [26]

   I have arrived at the conclusion that it is necessary to include the contents of the Agreed Facts for each count, including the applicant’s online exchanges with other child abuse material users, for a number of reasons. First, as stated above, some of the more distressing facts relate to the Commonwealth offences in relation to which this Court will be required to re-sentence the applicant. Secondly, there is public interest in setting out the details of the offending behaviour in order to understand why such a high sentence was imposed and why it is said to be manifestly excessive. Thirdly, as her Honour noted in her reasons, the applicant’s lack of insight into his offending is apparent from his attempts in cross examination to downplay his interest in the child abuse material which included the violent sexual abuse of babies and toddlers. His evidence sits uneasily with the conversations he had with other likeminded offenders necessitating the need to recount some of those conversations.

5. [27]

   Finally, it is necessary to extract the Agreed Facts as they appear in the Remarks on Sentence for every count in order to address Ground 2. Part of that ground is a complaint about the lack of differentiation between the findings and indicative sentences on the 105 counts when regard is had to the facts of each of those offences.

6. [28]

   None of the child abuse material (referred to by the sentencing judge by the acronym CAM) was tendered, rather the Interpol Baseline Categorisation Scale was used to differentiate between different types of illegal and non-illegal CAM. The categories are:

   1. (1)

      Category 1 CAM which encompasses material involving a real prepubescent child under 13 years of age involved in a sex act, witnessing a sex act, or the material is focused or concentrated on the anal and/or genital region;

   2. (2)

      Category 2 CAM which encompasses material involving a real prepubescent child under 18 years of age but not younger than 13 years of age involved in a sex act, witnessing a sex act or the material is focused or concentrated on the anal and/or genital region; and

   3. (3)

      Categories 3 and 4 encompass respectively non-illegal material indicative of an interest in children and ignorable material such as adult pornography and bestiality with adults.

The material before the sentencing judge

1. [29]

   The proceedings on sentence were conducted on 3 February 2022. They were adjourned for submissions until 7 February 2022. The proceedings were then adjourned for sentence until 21 April 2022 but then adjourned until13 May 2022.

2. [30]

   The Crown sentence bundle was tendered on 3 February 2022 and included the following documents:

   1. (1)

      Crown sentence summary;

   2. (2)

      Notice of Committal dated 1 July 2021;

   3. (3)

      An amended Charge Certificate dated 4 June 2021 (22 pages) listing the charges to which the applicant pleaded guilty in the Local Court;

   4. (4)

      Agreed Facts dated 29 June 2021 plus undated Supplementary Agreed Facts (62 pages);

   5. (5)

      Annexures A-J to the Agreed Facts excluding annexures B, D and F (33 pages);

   6. (6)

      The 38 Forms 1 (71 pages);

   7. (7)

      The s 16BA Forms (5 pages);

   8. (8)

      An updated master copy of the table of offences (58 pages);

   9. (9)

      A letter from the AFP and undertaking and statement (not part of the appeal book).

3. [31]

   In addition, Victim Impact Statements were tendered from the parent or parents of Children 1, 2 and 4.

4. [32]

   The applicant relied upon three expert reports:

   1. (1)

      Dr Emma Collins Psychologist dated 30 September 2021;

   2. (2)

      Dr Richard Furst, psychiatrist, dated 21 January 2022; and

   3. (3)

      Supplementary report of Dr Richard Furst, dated 28 January 2022.

5. [33]

   The applicant provided a handwritten letter to the court. He also gave evidence at the proceedings on sentence and was cross-examined.

6. [34]

   MFI 5 in the appeal book (pages 629 to 752) was a series of emails between the parties and her Honour’s associate seeking clarification of details in the various schedules tendered on sentence after she reserved.

The facts

1. [35]

   The sentencing judge found the facts comprising the offending from the above documents. Given the sheer number of charges, the Agreed Facts pertaining to each individual offence was in relatively brief terms. It is important to note that her Honour did not summarise any of the facts of any of the sexual assault offences; rather, she extracted all of the details provided in relation to each offence in the Agreed Facts in full. Given that her Honour was conscious to consider each charge separately, she was alive to the fact that the lack of detail in the Agreed Facts might make that difficult. In that regard, her Honour noted the following at [43]:

2. [36]

   I propose to summarise her Honour’s reasons in some detail in order to set out the relevant objective and subjective factors before turning to consider the respective submissions. It is unavoidable that this summary will be lengthy to reflect the material before her Honour.

Remarks on sentence

1. [37]

   Her Honour sentenced the applicant on 13 May 2022.

2. [38]

   I propose to use the word “applicant” rather than “offender” for consistency when recounting the findings of the sentencing judge verbatim. Otherwise, I have used the same footnotes and largely the same language as her Honour did, although I have summarised and re-worded portions of the reasons.

3. [39]

   Her Honour commenced her reasons by noting that the seven young male victims would be referred to as Child 1, Child 2 etc. At the relevant time, Child 1 was the applicant’s stepson and Child 7 was his nephew. Child 2 through to Child 6 were friends of Child 1 (and Child 3 and Child 6 are brothers). The applicant was also the soccer coach of Child 1, Child 2, Child 3 and Child 5.

4. [40]

   Her Honour then provided a document headed “Table A” which sets out for each offence the sequence number, the short form of the offence and relevant section of the Crimes Act or Criminal Code under which the offences were laid, the maximum penalty and for the state offences and any applicable standard non-parole period. I have incorporated the contents of that schedule into these reasons for ease of reference.

5. [41]

   Her Honour then made a number of general observations relevant to the sentencing exercise.

6. [42]

   First, her Honour noted the “almost insurmountable” task of sentencing an offender for so many serious offences charged under different legislation, with different maximum penalties and some overlapping criminality.

7. [43]

   Secondly, her Honour noted the large number of uncharged offences referred to in the Agreed Facts particularly in relation to Child 1 and to a lesser extent Child 2 and Child 3. She noted (uncontroversially) the bases upon which such evidence is usually relevant but observed that the “number and gravity” of the offences before her were such that the uncharged acts assumed “little to no relevance”.

8. [44]

   Thirdly, her Honour noted the large number of matters to be taken into account on Forms 1. She did not outline the facts in relation to those 38 schedules but would have regard to their “nature and gravity.” Her Honour was satisfied that it was “appropriate and proper” to take those offences into account in relation to the nominated principal offences but observed that it would have been preferable had they been placed on fewer schedules in relation to Child 1. Her Honour then correctly stated the applicable law as to how to treat those matters by reference to cases such as Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 and Abbas (and Ors) v R [2013] NSWCCA 115.

9. [45]

   Fourthly, her Honour noted that she had had regard to, inter alia, the Judicial Commission sentencing statistics, and the “Comparative Cases filed on behalf of the Offender” which was compiled using the sentencing tables available on the Public Defenders’ website. After noting the use of such material, her Honour observed:

10. [46]

    Her Honour then indicated that due to the large number of offences she proposed to make her findings of objective seriousness after recounting the facts of each offence or groups of offences. Her Honour then went on to express how she proposed to address the objective seriousness of each of the offences:

11. [47]

    Her Honour then went on in some detail to consider the relevant factors she had regard to when assessing the objective seriousness of each of the 114 offences. She noted that age is an element of each offence and not to be double counted but observed (correctly) that the actual age of a victim relative to the applicant’s age and the victim’s respective vulnerability remained a relevant consideration. She also observed that the further removed a child was from the upper age limit for each offence, the more serious it was.

12. [48]

    In addition to age, her Honour noted the significance of the relationship between the applicant and each victim. It varied as between the children, but the common feature was that each parent trusted the applicant to care for their son when in his company and the applicant exploited that trust. To varying extents the children were each under the applicant’s care, supervision and/or authority. The offences committed against Child 1 were committed in his own home by the applicant who was his stepfather. Those committed upon Children 2 to 6 occurred in a context whereby those children were in the applicant’s home having been invited over. The offending in relation to Child 7 occurred in a context in which the applicant was minding him. Her Honour noted that she would not “double count” these features.

13. [49]

    Her Honour went on to note that all of the offending had to be considered in the context that the applicant knew of his sexual attraction to boys before Child 1 became part of his life, when Children 2 to 6 were invited to spend time at his home and when he was minding Child 7. Although there was no planning per se, there was no need for any because the applicant created an environment where he could offend, conceal and re-offend as and when he desired for his own sexual gratification. In the circumstances, his lack of planning afforded him little mitigation.

14. [50]

    There was no violence or threats of violence, but none was needed. Some offences occurred when a child was sleeping or preoccupied playing Fortnite (an online game). Further, over time, Child 1 became so accustomed to what the applicant was doing that force, violence or threats was not in fact needed. Her Honour then quoted McCallum J (as her Honour then was) in R v BA [2014] NSWCCA 148 at para [33] to the effect that lack of violence is not a mitigating factor:

15. [51]

    Her Honour then noted that the majority of the “contact” offences (sexual assaults) were captured within video recordings so the approximate duration of each offence could be ascertained, although typically several contact offences were committed in the one episode in which CAM was produced. Her Honour then noted that she proposed to include details of the CAM when describing the assaults but noted that they are separate offences to be considered separately. Although the contact offences were typically of a short duration, affording undue weight to that factor risks minimising or ignoring the “serious consequences sexual offending upon children invariably causes even if such offending be brief”.

16. [52]

    Her Honour then turned to consider the type of sexual intercourse for the offences involving that element. Her Honour accepted that there is no fixed hierarchy of seriousness in the different forms of sexual intercourse, but observed that the actual nature of the intercourse and the circumstances in which it took place is a very relevant consideration citing R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [97].

17. [53]

    It was noted the acts of sexual intercourse committed upon Child 1 involved digital penetration, fellatio, and anal intercourse, at times involving a degree of force and causing Child 1 pain. The one act of sexual intercourse committed upon Child 2 was an act of digital intercourse. Her Honour was satisfied that on the facts in this case the anal intercourse was more objectively serious than the other types of intercourse and the act of the applicant placing his adult penis into Child 1’s mouth was “slightly” more serious than Child 1’s penis being placed inside the applicant’s mouth.

18. [54]

    As for the offences of sexual touching, her Honour had regard to the nature of the conduct, the circumstances in which it occurred, the degree of physical contact involved and skin to skin contact particularly with a more intimate part of the body was objectively more serious than contact through clothing and/or to a less intimate part of the body.

19. [55]

    Her Honour then noted that in assessing the objective seriousness in relation to the offences involving CAM the relevant factors including possession, dissemination and transmission of such material are set out in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 and R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294. Her Honour then applied these principles and made the following observations as to the applicant’s conduct in relation to the CAM overall:

    1. (1)

       All of the material involved actual children and much of it involved young children;

    2. (2)

       Some of the material received by the applicant depicted conduct that occasioned extreme physical cruelty, harm and degradation upon babies and toddlers;

    3. (3)

       While the Agreed Facts reveal that the applicant recorded and thus produced CAM of all of his contact offences, the CAM he produced that is relied upon to prove each s 91G(1) offence was typically very small in quantity and considerably less serious in terms of what it depicted. While the Crown could have charged a rolled-up offence and thereby included more serious material, that course was not preferred;

    4. (4)

       There is nothing to suggest that the applicant had proximity to those responsible for bringing the material he received from others into existence;

    5. (5)

       The applicant participated in the making, disseminating or trading of CAM on a very regular basis over the period of his offending including up to the day of his arrest. Indeed, on the day of his arrest, he produced material in relation to Child 1 that was filmed live to Snapchat (Sequence 301);

    6. (6)

       The applicant was in possession of a large amount of CAM in the form of still images and videos. While the precise number of children depicted in the material is unknown, it clearly depicts many children. The applicant’s purpose for possession was for his own sexual gratification as well as to connect with like-minded others in order to exchange material. While some of the material he possessed was produced by others, his involvement and dealings with such material helped create a market for the continued exploitation and abuse of children;

    7. (7)

       The applicant was not involved in the sale of any material, nor did he receive any financial benefit. He did however receive other benefits from the transmission of material including the receipt of material that either aligned with his personal sexual preferences or with material with which he could trade with others for material that was to his interest;

    8. (8)

       The applicant’s online transmission of CAM was to a number of persons that cannot be definitively quantified;

    9. (9)

       Some limited planning and sophistication was involved, including the use of different usernames, PIN-protected folders and encrypted messaging services; and

    10. (10)

        There was no risk of the material being seen by vulnerable people. It was however intended to be seen and/or acquired by like-minded persons susceptible to act in the manner described or depicted given the applicant’s active participation in a collaborative network of like-minded persons.

20. [56]

    Her Honour then moved to consider the Agreed Facts which are set out in the documents headed “Agreed Statement of Facts”, “Supplementary Agreed Facts” and “Annexures A, C, E, G, H, I and J”. Her Honour noted that the documents were lengthy and that she had “considered their full import”.

Agreed Facts

1. [57]

   In May 2020, the Australian Federal Police investigated a series of videos posted to Snapchat which depicted the same male child being sexually abused by an adult man and which appeared to be self-produced.

2. [58]

   The videos have been transmitted from a person using a Snapchat username “baddad03”. That username was associated with an email address “picsyeah@hotmail.com” which was linked to an IP address registered to the applicant’s father, a family address and a connection mobile number used by the applicant.

3. [59]

   On 8 May 2020, officers executed numerous search warrants. Seized from the applicant was a Samsung Galaxy S9 mobile phone (hereafter the “Galaxy S9”). Seized from a white Isuzu truck used by the applicant in relation to his job within the family business was a black Apple iPhone 7 (hereafter the “Apple iPhone”).

4. [60]

   Located on the Apple iPhone were 177 CAM images and videos which the applicant had downloaded using the internet, the majority of which were Category 1. This material forms the basis of the Sequence 1 offence (possess child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Criminal Code) which was to be taken into account when sentencing him for the Sequence 2 offence, which was brought under the same section.

5. [61]

   Located on the Galaxy S9 was a PIN-protected folder named “Secure Folder” which contained CAM images and videos. Part of this material had been made (that is, self-produced) by the applicant and was Category 1 material depicting the seven known child victims, the majority of which was geotagged as having been created at the applicant’s premises. The folder named “Secure Folder” also contained CAM of other non-identified but real children. A total of 3,348 images and videos were located on the Samsung S9 all of which formed the basis of the Sequence 2 offence.

6. [62]

   With the exception of Child 6, the applicant transmitted CAM he had made of the child victims to other persons using Snapchat, [3] Telegram, [4] and Kik. [5] This often occurred in the course of chats and exchanges between the applicant and such others where the applicant “traded” CAM he had made in relation for such material in the possession of other persons.

7. [63]

   The applicant used at least four different vanity names (meaning unique usernames assigned to social media accounts) to advertise his sexual interest in children, specifically male children, and the fact that he was in possession of CAM for the purpose of connecting with like-minded others so that he could obtain CAM from those persons. This conduct forms the basis of the Sequence 3 offence (solicit child abuse material using a carriage service and advertise for child abuse material obtained using carriage service contrary to s 474.22 of the Criminal Code).

8. [64]

   None of the offences had been the subject of complaint and/or detection prior to the discovery of the CAM on Snapchat which led to the intervention of the authorities. It was as a result of what was revealed in the CAM and then what was revealed by the material seized during the search warrants that the contact offences involving Children 1, 2, 3, 5 and 7 and the applicant’s use of Child 4 and Child 6 to produce CAM came to light.

9. [65]

   Investigations revealed that offences were committed on multiple dates between 2017 to 2020 (at which time the applicant was aged between approximately 27 to 30), almost always in the applicant’s home and on many occasions a number of offences were committed in the one episode.

10. [66]

    Throughout the offending the applicant was in a de-facto relationship with Child 1’s mother. From around February 2017, they lived with Child 1 in St Marys before moving in April 2019 to St Clair.

CHILD 1

1. [67]

   Child 1 was born in 2012 and suffers mild autism. The applicant was a father figure to Child 1 and played a role in his care within their shared home.

2. [68]

   Although her Honour recounted the facts of each offence and made her findings of objective seriousness before she summarised the accounts given by Child 1 and Child 1’s mother, I propose to do so in the reverse order.

3. [69]

   Child 1 was interviewed by police after the applicant was arrested. He was interviewed and was able to provide police with the following information.

4. [70]

   The applicant showered with him, and he would wash the applicant’s private parts. Sometimes the applicant wore no clothes when they played the game Fortnite together. “White stuff” would come out of the applicant’s “willy” and “the way the white stuff came out was by ‘mouth, bottom or hand’”. They used to do it for “skins” in Fortnite “because he liked it”. He and the applicant had secrets: “we push his willy up and down” and he and the applicant had been doing it for two years.

5. [71]

   Child 1 told police that the day before the applicant left (meaning, was arrested), the applicant asked him “[d]o you want a skin?” to which he replied that he did and that later “we done that and then he got me a skin”.

6. [72]

   When Child 1 was asked what he had to do to get a skin, Child 1 said that in the afternoons when his mother was not home the applicant “put his willy in my bottom and then he pushed it into me and then out and then pushed it in” and that had happened the day before the applicant left (or was arrested).

7. [73]

   After the applicant put his “willy” in Child 1’s bottom, Child 1 needed to go to the toilet to do a poo, and “white stuff came out my butt…because some of the white stuff was still in my bottom…because he didn’t wash it out”.

8. [74]

   When the applicant put his “willy” into Child 1’s bottom, he said that he was “lying down playing Fortnite so it would calm me down ‘cos it hurts a little bit’.”

9. [75]

   Before the applicant put his private part into his bottom, the applicant “puts like stuff to help it not hurt that much”. When the applicant puts his “thing” into his bottom, the applicant “starts shaking up and down and then when he says it’s about to come out, and then it comes out and then it feels good for me and him”; and the applicant would tell him, “[r]elax, just relax ‘cos it hurts a lot’.”

10. [76]

    Child 1’s mother was also interviewed by police. In July 2016, she began a relationship with the applicant and later became his fiancée.

11. [77]

    In February 2017, she, Child 1 and the applicant began living together at St Marys and, as both she and the applicant worked full-time, Child 1 attended before and after school care. When the applicant finished work, he would collect Child 1 and bring him home whereupon they would be home together for a couple of hours before she arrived home.

12. [78]

    The applicant took on the primary care of Child 1 including showering and toileting him, and the applicant invited other male children to the home for sleepovers almost every fortnight. The applicant took responsibility for bathing Child 1 and any child who stayed over.

13. [79]

    She recalled that a few times Child 1 and visiting children would play games or run around naked. The applicant encouraged her and Child 1 to be naked in the home as he himself did and encouraged Child 1 to sleep naked as he himself did.

14. [80]

    After the move to St Clair in April 2019, Child 1’s behaviour changed in that he became distant and preferred the applicant.

15. [81]

    In 2018, Child 1’s behaviour began to get out of control, and he began acting violently to property and was diagnosed with Autism Spectrum Disorder 2. He was also heavily constipated and was prescribed medication and then developed liquid-type stools.

16. [82]

    Child 1 had trouble sleeping and from 2018 the applicant purchased melatonin gummies online which he gave to Child 1 to help him sleep. The gummies put Child 1 to sleep very quickly and without them Child 1 would call out for the applicant to comfort him whereupon the applicant would lie in Child 1’s bed naked, sometimes for hours.

17. [83]

    The applicant had a Samsung Galaxy mobile phone which she was never allowed to touch. She found Child 1 masturbating in his bed on more than one occasion and when this occurred the applicant said she should “leave him alone he is doing boy things”.

18. [84]

    From time to time, she found white stains on Child 1’s sheets which she would have to wash out.

19. [85]

    In late 2019, Child 1 walked in when she and the applicant were having sexual intercourse and Child 1 said “you’re doing that white stuff, you said that was our secret.” Soon after that, the applicant told her that Child 1 had seen him “at the old house I was finishing myself off and he walked in”. She told police that the applicant treated their sex life as a task and would make excuses not to have sex.

20. [86]

    Sequence 206 was committed on 27 October 2018 at St Marys when Child 1 was aged six. It consists of a 15 second video showing Child 1 lying on his side wearing no pants with the camera zoomed in on his buttocks and anus (this video was disseminated on Snapchat).

21. [87]

    Sequence 183 was committed on 1 November 2018 at St Marys when Child 1 was aged six. It consists of a 11 second video showing Child 1’s buttocks and anus and the applicant using his thumb to rub Child 1’s anus (this video was disseminated on Kik).

22. [88]

    Her Honour’s finding of objective seriousness for Sequences 206 and 183 was “to varying extents, below mid-range.”

23. [89]

    The applicant’s social media accounts reveal that on 38 separate days between 13 July 2018 and 27 April 2020, at which time Child 1 was aged seven and eight, he used the internet to make 229 transmissions of CAM of himself and Child 1. This conduct forms of the basis of the Sequence 10 offence.

24. [90]

    Her Honour’s finding of objective seriousness for Sequence 10 was below mid-range.

25. [91]

    Sequences 170 and 191 were committed on 17 May 2018 at St Marys at which time Child 1 was aged six. At the time of Sequence 170, Child 1 was lying over the applicant’s lap and was trying to crawl away from him. When the applicant stuck his finger in and out of Child 1’s anus multiple times, Child 1 clenched his buttocks and said something similar to “[h]ayy” and used his hands and tried unsuccessfully to pull the applicant’s hand away from his buttocks. (14 second video). At the time of Sequence 191, the applicant held his erect penis in front of Child 1 and inserted his finger into Child 1’s anus (two images).

26. [92]

    Sequence 202 was committed on 20 August 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying on a lounge wearing a shirt and no pants. His buttocks were exposed, and he was watching television. The applicant rubbed his finger between Child 1’s buttocks before sticking his finger into Child 1’s anus. Child 1 tensed his buttocks and tried unsuccessfully to wriggle free from the applicant’s grip. The applicant pushed his finger further into Child 1’s anus while Child 1 asked in a quavering voice, “[o]oouuuuu are you doing” (18 second video disseminated on Snapchat).

27. [93]

    Sequence 244 was committed on 9 November 2019 at St Clair at which time Child 1 was aged seven. Child 1 was naked and was lying in a bed asleep, the applicant inserted his finger into Child 1’s anus as Child 1 clenched his buttocks (11 second video).

28. [94]

    Sequence 294 was committed on 7 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying face down on a bed wearing no pants. The applicant separated Child 1’s buttocks and inserted his finger into Child 1’s anus (18 second video disseminated on Snapchat and Kik).

29. [95]

    Sequence 171 was committed on 27 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying on a bed with his buttocks exposed. His anus was wet with liquid and the applicant rubbed his finger between Child 1’s buttocks and then inserted his finger into Child 1’s anus (28 second video disseminated on Snapchat).

30. [96]

    Her Honour’s finding of objective seriousness for Sequences 170, 191, 202, 244, 294 and 171 was “to varying extents, within mid-range”.

31. [97]

    Sequence 5 was committed on 7 June 2018 at St Marys at which time Child 1 was aged six. The applicant was sitting on the lounge not wearing any pants and had an erect penis. Child 1 was naked, and the applicant placed his penis inside Child 1’s mouth while Child 1’s hand was at the base of his (the applicant’s) penis. The head of the applicant’s penis has white liquid on it consistent with semen (one second video disseminated on Snapchat).

32. [98]

    Sequence 194 was committed on 25 June 2018 at St Marys at which time Child 1 was aged six. The applicant placed his erect penis inside Child 1’s mouth (six images disseminated on Snapchat).

33. [99]

    Sequence 198 was committed on 17 July 2018 at St Marys at which time Child 1 was aged six. The applicant sucked Child 1’s penis (10 second video).

34. [100]

    Sequence 203 was committed on 20 August 2018 at St Marys at which time Child 1 was aged six. Child 1 was naked and was lying on his back. The applicant sucked Child 1’s penis (nine second video).

35. [101]

    Sequence 333 was committed on 9 January 2019 at St Marys at which time Child 1 was aged seven. The applicant sucked Child 1’s penis while Child 1 was covering his anus with his hand (eight second video disseminated on Snapchat).

36. [102]

    Sequence 208 was committed on 15 January 2019 at St Marys at which Child 1 was aged seven. The applicant was lying on a bed with his erect penis sticking out from his boxer shorts and with his hand at the base of his own penis. Child 1 moved his head towards the applicant’s penis and placed the applicant’s penis into his mouth and moved his head up and down the applicant’s penis (20 second video disseminated on Snapchat and Telegram).

37. [103]

    Sequence 274 was committed on 31 January 2019 at St Marys at which time Child 1 was aged seven. Child 1 was sitting on the lounge and the applicant sucked Child 1’s penis (19 second video disseminated on Snapchat).

38. [104]

    Sequence 211 was committed on 26 April 2019 at St Clair at which time Child 1 was aged seven. The applicant placed his penis inside Child 1’s mouth (five images).

39. [105]

    Sequence 213 was committed on 1 July 2019 at St Clair at which time Child 1 was aged seven. Child 1’s penis was inside the applicant’s mouth (19 second video disseminated on Snapchat, Telegram and Kik).

40. [106]

    Sequence 224 was committed on 22 August 2019 at St Clair at which time Child 1 was aged seven. Child 1’s penis was inside the applicant’s mouth (10 second video disseminated on Snapchat and Telegram).

41. [107]

    Sequence 227 was committed on 4 September 2019 at St Clair at which time Child 1 was aged seven. Child 1’s penis was inside the applicant’s mouth (six second video disseminated on Snapchat).

42. [108]

    Sequence 260 was committed on 19 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was sitting on a lounge and the applicant placed Child 1’s penis inside his mouth (20 second video disseminated on Telegram)

43. [109]

    Sequence 278 was committed on 6 February 2020 at St Clair at which time Child 1 was aged eight. Child 1 was sitting on a lounge and the applicant placed Child 1’s penis inside his mouth (19 second video disseminated on Snapchat).

44. [110]

    Sequence 286 was committed on 5 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying on a bed and the applicant placed Child 1’s penis inside his mouth (23 second video disseminated on Snapchat).

45. [111]

    Sequence 296 was committed on 17 April 2020 at St Clair at which time Child 1 was aged eight. The applicant and Child 1 were naked together in the shower and the applicant placed his erect penis inside Child 1’s mouth (4 second video disseminated on Snapchat).

46. [112]

    Her Honour’s finding of objective seriousness for Sequences 5, 194, 198, 203, 333, 208, 274, 211, 213, 224, 227, 260 278, 286 and 296 was “to varying extents, within mid-range”.

47. [113]

    Sequence 254 was committed on 5 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was in a bedroom and the applicant inserted his penis into Child 1’s anus (24 second video disseminated on Snapchat, Telegram and Kik).

48. [114]

    Sequence 257 was committed on 9 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying naked on a lounge with his legs open. The applicant inserted his penis into Child 1’s anus while simultaneously masturbating Child 1’s penis (13 second video disseminated on Snapchat and Telegram).

49. [115]

    Sequence 290 was committed on 25 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was wearing no pants and was bending over the lounge. The applicant inserted his penis into Child 1’s anus until he ejaculated. After pulling his penis out of Child 1’s anus, semen dribbled from Child 1’s anus and Child 1 asked the applicant, “[a]re you done?” (19 second video disseminated on Snapchat and Kik).

50. [116]

    Sequence 297 was committed on 22 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was wearing no pants and was on his knees leaning forward. The applicant rubbed his erect penis between Child 1’s buttocks and then inserted his penis into Child 1’s anus (six second video disseminated on Snapchat and Telegram).

51. [117]

    Her Honour’s finding of objective seriousness for Sequences 254, 257, 290 and 297 was “all above mid-range”.

52. [118]

    Sequence 6 was committed on 6 December 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying naked on a bed with his legs open while the applicant vigorously masturbated Child 1’s penis making the head of Child 1’s penis protrude from the foreskin (five second video).

53. [119]

    Sequence 210 was committed on 18 March 2019 at St Marys at which time Child 1 was aged seven. Child 1 was lying on the lounge naked playing a game with a console while the applicant fondled his penis and scrotum with his fingers (nine second video disseminated on Kik).

54. [120]

    Sequence 214 was committed on 5 July 2019 at St Clair at which time Child 1 was aged seven. The applicant masturbated Child 1’s penis (three second video disseminated on Telegram).

55. [121]

    Sequence 216 was committed on 12 July 2019 at St Clair at which time Child 1 was aged seven. Child 1 was asleep in a bed. His pyjamas pants were pulled down and the applicant masturbated onto Child 1’s buttocks (12 second video).

56. [122]

    Her Honour’s finding of objective seriousness for Sequences 254, 257, 290 and 297 was “all above mid-range”.

57. [123]

    Sequence 230 was committed on 15 September 2019 at St Clair at which time Child 1 was aged seven. Child 1 was sitting naked in the loungeroom, and the applicant fondled his penis (22 second video disseminated on Snapchat).

58. [124]

    Sequence 235 was committed on 28 September 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying on a bed without any pants. The applicant pushed back Child 1’s legs towards his head exposing Child 1’s penis. The applicant held his own penis in his hands and masturbated while sticking it in and out of Child 1’s buttocks (21 second video disseminated on Snapchat, Telegram and Kik).

59. [125]

    Sequence 236 was committed on 4 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was sitting on a lounge with another small child. The applicant was also sitting on the lounge near Child 1. The applicant was not wearing pants and had his penis exposed and he masturbated while using his foot to rub Child 1’s buttocks (11 second video disseminated on Snapchat).

60. [126]

    Sequence 237 was committed on 5 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying on a lounge. The applicant rubbed Child 1’s groin over his clothes. Child 1 put his hand over his penis and the applicant pushed his hand away and continued to touch Child 1’s penis before taking Child 1’s penis out of his pants and masturbating Child 1 (35 second video).

61. [127]

    Sequence 238 was committed on 13 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was in a bedroom and was masturbating the applicant’s erect penis (five second video disseminated on Snapchat and Telegram).

62. [128]

    Sequence 241 was committed on 30 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was asleep on a bed with his buttocks exposed. The applicant masturbated and ejaculated over Child 1’s buttocks and then rubbed his finger in between Child 1’s buttocks (disseminated on Telegram).

63. [129]

    Sequence 243 was committed on 8 November 2019 at St Clair at which time Child 1 was aged seven. The applicant licked Child 1’s buttocks and anus (four second video).

64. [130]

    Sequence 245 was committed on 11 November 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying in a bed and the applicant masturbated Child 1’s penis (nine second video disseminated on Kik).

65. [131]

    Sequence 247 was committed on 17 November 2019 at St Clair at which time Child 1 was aged seven. The applicant was lying in a bed with Child 1 who was asleep. The applicant used Child 1’s hand to masturbate his (that is, the applicant’s) penis. The applicant produced pre-ejaculate and used Child 1’s thumb to rub the pre-ejaculate from the head of his penis (22 second video disseminated on Snapchat).

66. [132]

    Sequence 253 was committed on 3 December 2019 at St Clair at which time Child 1 was aged seven. The applicant pulled Child 1’s pants down and masturbated his penis (41 second video disseminated on Snapchat and Telegram).

67. [133]

    Sequence 259 was committed on 18 December 2019 at St Clair at which time Child 1 was aged seven. The applicant pulled Child 1’s pants down and masturbated his penis (50 second video disseminated on Snapchat).

68. [134]

    Sequence 267 was committed on 10 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying naked on a bed and the applicant masturbated his (that is, Child 1’s) penis while Child 1 masturbated the applicant’s penis (28 second video disseminated on Snapchat).

69. [135]

    Sequence 269 was committed on 14 January 2020 at St Clair at which time Child 1 was aged eight. The applicant and Child 1 were in the shower. Child 1 masturbated the applicant’s erect penis causing the applicant to ejaculate onto Child 1’s hand and the shower floor (16 second video disseminated on Snapchat).

70. [136]

    Sequence 270 was committed on 19 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep on a bed and the applicant used Child 1’s hand to masturbate his own erect penis (13 second video disseminated on Snapchat and Telegram).

71. [137]

    Sequence 271 was committed on 23 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was standing in the loungeroom in front of the applicant. The applicant pulled Child 1’s pants down and fondled Child 1’s penis (10 second video disseminated on Snapchat).

72. [138]

    Sequence 272 was committed on 24 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep in a bed and the applicant took his own erect penis and pushed it into Child 1’s face (12 second video disseminated on Snapchat).

73. [139]

    Sequence 289 was committed on 24 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep, and the applicant used Child 1’s hand to masturbate his own erect penis (20 second video disseminated on Snapchat).

74. [140]

    Sequence 295 was committed on 15 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying on a bed with no pants. The applicant masturbated Child 1’s penis. Child 1 said “[l]et me do it” and began masturbating his own penis. The applicant then touched Child 1’s testicles and continued to masturbate Child 1 (17 second video disseminated on Telegram).

75. [141]

    Sequence 300 was committed on 5 May 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying in a bed wearing boxer shorts. The applicant pulled down the boxer shorts and touched Child 1’s penis. Child 1 said “[s]top” (eight second video disseminated on Snapchat and Telegram).

76. [142]

    Her Honour’s finding of objective seriousness for Sequences 6, 210, 214, 216, 230, 235, 236, 237, 238, 241, 243, 245, 247, 253, 259, 267, 269, 270, 271, 272, 289, 295 and 300 was “to varying extents, within mid-range”.

77. [143]

    Sequence 209 was committed on 14 February 2019 at St Marys at which time Child 1 was aged seven. The applicant was sitting on the lounge with his erect penis exposed while Child 1 was kneeling between the applicant’s legs masturbating the applicant’s erect penis with one of his hands. The applicant told Child 1 to “keep going, keep going”, whereupon Child 1 used both hands to masturbate the applicant’s erect penis. The applicant ejaculated over his own shirt and Child 1 said “[o]ohh it’s coming out” (16 second video disseminated on Snapchat).

78. [144]

    Her Honour’s finding of objective seriousness for Sequence 209 was “within mid-range”.

79. [145]

    Sequence 184 was committed on 4 December 2017 at St Marys at which time Child 1 was aged five. Child 1 was lying on a bed completely naked. The applicant was not wearing any pants and straddled Child 1 pinning him to the bed. The applicant masturbated onto Child 1’s buttocks and ejaculated causing semen to dribble between Child 1’s buttocks (14 second video).

80. [146]

    Sequence 187 was committed on 19 April 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying in the loungeroom with the applicant. Child 1 was not wearing any pants and the applicant was wearing underpants. The applicant masturbated Child 1’s penis while pressing his own groin up against Child 1 (14 second video).

81. [147]

    Sequence 323 was committed on 21 April 2018 at St Marys at which time Child 1 was aged six. The applicant used Child 1’s hand to masturbate his (that is, the applicant’s) erect penis (10 second video disseminated to Snapchat).

82. [148]

    Sequence 188 was committed on 30 April 2018 at St Marys at which time Child 1 was aged six. Child 1 was naked but for a pair of socks and was bending over the lounge with his buttocks in the air. The applicant pulled Child 1’s buttocks apart exposing his anus and put his fingers in between Child 1’s buttocks and then smacked Child 1’s buttocks (seven second video disseminated on Snapchat).

83. [149]

    Sequence 199 was committed on 24 July 2018 at St Marys at which time Child 1 was aged six. Child 1 was not wearing any pants and was sitting on the applicant’s lap. The applicant was not wearing any pants and his erect penis was exposed. Child 1 used both hands to masturbate the applicant’s erect penis causing the applicant to ejaculate over his shirt. The applicant told Child 1 to “keep going mmmmmmm”. On three occasions Child 1 said “it’s going all over you” (11 second video).

84. [150]

    Sequence 201 was committed on 17 August 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying naked on his back on a lounge. The applicant positioned himself in between Child 1’s legs and masturbated and rubbed his erect penis onto Child 1’s thighs and scrotum (nine second video disseminated on Snapchat).

85. [151]

    Sequence 205 was committed on 24 October 2018 at St Marys at which time Child 1 was aged six. Child 1 was not wearing any pants and was lying on his side on a lounge with his legs open. The applicant rubbed his finger between Child 1’s buttocks and masturbated Child 1 (14 second video disseminated on Snapchat).

86. [152]

    Sequence 197 was committed on 13 November 2018 at St Marys at which time Child 1 was aged six. Child 1 was not wearing any pants and the applicant touched Child 1’s penis and put his own erect penis between Child 1’s buttocks and legs (four images disseminated on Snapchat and Telegram).

87. [153]

    Her Honour’s finding of objective seriousness for Sequences 184, 187, 323, 188, 199, 201, 205 and 197 was “to varying extents, within mid-range”.

88. [154]

    Sequence 225 was committed on 28 August 2019 at St Clair at which time Child 1 was aged seven. The applicant and Child 1 were in the shower together and the applicant masturbated his own penis (11 second video disseminated on Snapchat).

89. [155]

    Sequence 226 was committed on 2 September 2019 at St Clair at which time Child 1 was aged seven. Child 1 was asleep in a bed. The applicant pulled the sheets off Child 1 exposing his buttocks and then rubbed his hands on Child 1’s torso (six second video disseminated on Snapchat).

90. [156]

    Sequence 239 was committed on 14 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was not wearing a shirt. The applicant masturbated and ejaculated over Child 1’s torso (13 second video).

91. [157]

    Sequence 252 was committed on 2 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was awake and was lying in bed. The applicant masturbated over Child 1 (11 second video disseminated on Snapchat and Telegram).

92. [158]

    Sequence 264 was committed on 24 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was naked in the bathroom with the applicant. Child 1 pulled out the applicant’s shorts and underpants exposing the applicant’s penis (seven second video disseminated on Snapchat and Telegram).

93. [159]

    Sequence 284 was committed on 29 February 2020 at St Clair at which time Child 1 was aged eight. Child 1 was sitting on a lounge and the applicant was lying on the lounge masturbating and ejaculating onto tissues on his stomach (10 second video disseminated on Snapchat).

94. [160]

    Sequence 287 was committed on 6 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep in bed with the sheets pulled over him, but his buttocks exposed. The applicant masturbated and ejaculated onto the bed and Child 1’s buttocks (16 second video disseminated on Snapchat and Telegram and Kik).

95. [161]

    Sequence 293 was committed on 31 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep in bed. The applicant masturbated and ejaculated onto Child 1’s hands (33 second video disseminated on Snapchat).

96. [162]

    Sequence 301 was committed on 8 May 2020 at St Clair at which time Child 1 was aged eight. The applicant pulled down Child 1’s pants exposing his buttocks and penis (four second video filmed live to Snapchat and disseminated on Snapchat).

97. [163]

    Her Honour’s finding of objective seriousness for Sequences 225, 226, 239, 252, 264, 284, 287, 293 and 301 was, “to varying extents, within mid-range”.

CHILD 2

1. [164]

   Child 2 was born in 2012 and was aged seven at the time of the offending. He is friends with Child 1 and the applicant was his soccer coach.

2. [165]

   Sequence 180 was committed between 21 September 2019 and 27 January 2020 at which time Child 2 was aged seven. Over eight days, the applicant produced CAM, namely 38 videos and 37 images depicting Child 2 on his own, with another child and/or with the applicant.

3. [166]

   Her Honour’s finding of objective seriousness for Sequence 180 was below mid-range.

4. [167]

   The applicant’s social media accounts reveal that on 4 October 2019, 22 December 2019 and 29 December 2019, at which time Child 2 was aged seven, the applicant used the internet to make 30 transmissions of CAM of himself and Child 2 as well as Child 2 and Child 1 together or with the applicant. This conduct forms the basis of the Sequence 309 offence.

5. [168]

   Her Honour’s finding of objective seriousness for Sequence 309 was below mid-range.

6. [169]

   Sequence 28 was committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. Child 2 was at a sleepover at the applicant’s home. Child 2 was asleep. The applicant masturbated and put semen onto his finger and then rubbed Child 2’s anus and then put a finger inside Child 2’s anus causing Child 2’s body to move (24 second video disseminated on Snapchat and Telegram).

7. [170]

   Her Honour’s finding of objective seriousness for Sequence 28 is within mid-range.

8. [171]

   Sequence 15 was committed on 4 October 2019 at St Clair at which time Child 2 was aged seven. Child 2 was lying on a bed and the applicant put his erect penis between Child 2’s buttocks (13 second video named “that’s his mate” was disseminated on Telegram).

9. [172]

   Sequences 21, 22 and 23 were committed on 22 December 2019 at St Clair at which time Child 2 was aged seven. At the time of Sequence 21, Child 2 was lying naked on a bed apparently asleep. The applicant was naked and was masturbating and then lifted one of Child 2’s buttocks and placed his penis between Child 2’s buttocks (10 second video disseminated on Snapchat). At the time of Sequence 22, the applicant masturbated Child 2’s genitals (26 second video disseminated on Snapchat). At the time of Sequence 23, the applicant masturbated before running his fingers along Child 2’s buttocks and anus (10 second video disseminated on Snapchat).

10. [173]

    Sequence 26 was committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. Child 2 was asleep on a bed. The applicant stood over Child 2 and masturbated and then spread Child 2’s buttocks apart exposing his anus and rubbed his fingers across Child 2’s anus (19 second video disseminated on Telegram).

11. [174]

    Sequences 305 and 306 were committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. Child 2 was asleep on a bed. At the time of Sequence 305, the applicant took Child 2’s hand and used it to stroke his own penis (14 second video disseminated on Telegram). The applicant’s penis came into contact with Child 2’s back and the applicant’s semen is visible on Child 2’s back (Sequence 306) (23 second video disseminated on Telegram).

12. [175]

    Sequence 33 was committed on 25 January 2020 at St Clair at which time Child 2 was aged seven. The applicant and Child 2 were sitting on a lounge and the applicant touched Child 2’s groin area (nine second video disseminated on Snapchat).

13. [176]

    Her Honour’s finding of objective seriousness for Sequences 15, 21, 22, 23, 26, 305 and 306 was “within mid-range” and for Sequence 33 it was “below mid-range”.

14. [177]

    Sequence 303 was committed on 24 October 2019 at St Clair at which time Child 2 was aged seven. The applicant and Child 2 were laying on a bed when the applicant took Child 2’s hand and placed it around his (that is, the applicant’s) flaccid penis. The applicant used Child 2’s hand to masturbate his (that is, the applicant’s) penis (46 second video disseminated on Snapchat).

15. [178]

    Sequence 332 was committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. The applicant masturbated and then forced Child 2’s hand onto his (that is, the applicant’s) testicles as the applicant continued to masturbate (20 second video disseminated on Snapchat).

16. [179]

    Her Honour’s finding of objective seriousness for Sequences 303 and 332 was within mid-range.

17. [180]

    Sequence 11 was committed on 21 September 2019 at St Clair at which time Child 2 was aged seven. The applicant masturbated in the presence of Child 2 who was sitting on the lounge (15 second video disseminated on Snapchat).

18. [181]

    Sequence 304 was committed on 22 December 2019 at St Clair at which time Child 2 was aged seven. The applicant masturbated over the leg of Child 2.

19. [182]

    Sequence 32 was committed on 25 January 2020 at St Clair at which time Child 2 was aged seven. The applicant exposed his own penis and masturbated while sitting on a lounge next to Child 2 (18 second video disseminated on Snapchat).

20. [183]

    Her Honour’s finding of objective seriousness for Sequences 11, 304 and 32 was within mid-range.

21. [184]

    Child 2 was interviewed by police and provided information including the following: when he was at Child 1’s house he had a shower with Child 1 while the applicant was outside the shower not wearing any clothes and was “just staring”. After the shower, the applicant dried him and they played Fortnite; sometimes Child 1 and himself played games without wearing clothes; and on one occasion it was hot and he went to bed not wearing anything but he was not lying next to anyone.

CHILD 3

1. [185]

   Child 3 was born in 2012 and is friends with Child 1. The applicant was also his soccer coach.

2. [186]

   Sequence 178 was committed on 6 October 2019 at St Clair at which time Child 3 was aged seven. Child 3 and Child 1 were naked in the bathroom and the applicant took seven images (disseminated on Telegram and Snapchat).

3. [187]

   Sequence 326 was committed on 30 October 2019 at St Clair at which time Child 3 was aged seven. Child 3 was in the loungeroom wearing dinosaur underwear. The applicant took two images that zoomed in on Child 3’s groin area (disseminated on Snapchat).

4. [188]

   Sequence 327 was committed on 9 January 2020 at St Clair at which time Child 3 was aged eight. Child 3 was standing in the bathroom with his shorts and underwear down around his ankles. Child 3 wiped his bottom with toilet paper and his buttocks and penis are visible on a 47 second video taken by the applicant (disseminated on Telegram).

5. [189]

   Her Honour’s finding of objective seriousness for Sequences 178, 326 and 327 are, to varying extents, below mid-range.

6. [190]

   The applicant’s social media accounts reveal that on 3 August 2019, 6 October and 7 October 2019, at which time Child 3 was aged seven, the applicant used the internet to make 15 transmissions of CAM of himself and Child 3 as well as Child 3 and Child 1 together or with the applicant. This conduct forms the basis of the Sequence 310 offence.

7. [191]

   Her Honour’s finding of objective seriousness for Sequence 310 was below mid-range.

8. [192]

   Sequences 173, 307 and 308 were committed on 3 August 2019 at St Clair at which time Child 3 was aged seven. At the time of each offence, Child 3 was asleep on a bed in a bedroom wearing pyjama pants. Sequence 173 involved the applicant placing his penis on Child 3’s buttocks (six images disseminated on Telegram). Sequence 307 involved the applicant masturbating and rubbing it on Child 3’s buttocks (12 second video disseminated on Telegram). Sequence 308 involved the applicant fondling and masturbating Child 3’s penis (36 second video disseminated on Telegram).

9. [193]

   Her Honour’s finding of objective seriousness for Sequences 173, 307 and 308 was, to varying extents, within mid-range.

10. [194]

    Sequences 311 and 312 were committed on 7 October 2019 at St Clair at which time Child 3 was aged seven. At the time of both offences, the applicant was sitting on a lounge in the lounge room with Child 1 and Child 3. Sequence 311 involved the applicant masturbating (three images disseminated on Telegram). Sequence 312 involved the applicant masturbating and ejaculating onto himself (nine second video disseminated on Telegram).

11. [195]

    Sequence 174 was committed on 9 January 2020 at St Clair at which time Child 3 was aged seven. Child 3 was asleep on a bed in a bedroom covered by a sheet. The applicant stood over Child 3 and masturbated and ejaculated onto the sheet covering Child 3 (20 second video disseminated on Snapchat and Telegram).

12. [196]

    Her Honour’s finding of objective seriousness for Sequences 311, 312 and 174 was within mid-range.

13. [197]

    Child 3 was interviewed and provided information including the following: he went to sleepovers at Child 1’s house; the applicant saw him naked when he was having a bath or shower or was getting dressed; when he got out of the shower he sometimes needed help to dry himself and sometimes the applicant helped him; the applicant also dried him when he got out of the pool; the applicant had seen him naked because the applicant helped him get dressed; he had seen Child 1 naked while he was also himself naked; and Child 3 had not seen the applicant naked. When Child 3 was asked about various body parts including who had touched them, he said that Child 1 would sometimes touch the back of his hair with his finger and that the applicant sometimes did that as well.

CHILD 4

1. [198]

   Child 4 was born in 2011 and was friends with Child 1.

2. [199]

   Sequence 175 was committed on 21 September 2019 at St Clair at which time Child 4 was aged seven. Child 4 was in the bath with Child 1. Both children were naked. The applicant took four images, one of which was zoomed in and focussed on Child 4’s penis.

3. [200]

   Her Honour’s finding of objective seriousness for Sequence 175 was below mid-range.

4. [201]

   Sequence 314 was committed on 21 September 2019. It involved the transmission on Snapchat of the four images the subject of the Sequence 175 offence.

5. [202]

   Her Honour’s finding of objective seriousness for Sequences 314 was below mid-range.

6. [203]

   The applicant committed no contact offences against Child 4. Child 4 was not interviewed by police.

CHILD 5

1. [204]

   Child 5 was born in 2012 and was friends with Child 1. The applicant was also his soccer coach.

2. [205]

   Sequence 328 was committed at St Clair on 2 January 2020 at which time Child 5 was aged seven. It involved the applicant taking five videos and three images of himself masturbating in the proximity of Child 5 who had his genitals exposed and was touching his own penis.

3. [206]

   Sequence 329 was committed at St Clair on 4 January 2020 at which time Child 5 was aged seven. It involved the applicant taking a nine second video and one image of Child 5 lying naked on a couch with a focus on Child 5’s penis.

4. [207]

   Her Honour’s finding of objective seriousness for Sequences 328 and 329 was below mid-range.

5. [208]

   The applicant’s social media accounts reveal that on 12 July 2019 and 2 January 2020, at which time Child 5 was aged six and seven respectively, the applicant used the internet to make 14 transmissions of CAM of himself and Child 5 as well as Child 5 and Child 1 together or with the applicant. This conduct forms the basis of the Sequence 317 offence.

6. [209]

   Her Honour’s finding of objective seriousness for Sequence 317 was below mid-range.

7. [210]

   Sequence 176 was committed on 12 July 2019 at St Clair at which time Child 5 was aged six. Child 5 and Child 1 were lying down asleep. The applicant pulled back the sheet covering Child 5 and touched Child 5’s groin. Child 5 made a noise (seven second video disseminated on Snapchat and Telegram).

8. [211]

   Her Honour’s finding of objective seriousness for Sequence 176 was below mid-range.

9. [212]

   Sequences 315 and 316 were committed at St Clair on 12 July 2019 at which time Child 5 was aged six. Sequence 315 involved the applicant pulling down Child 5’s boxer shorts (three images disseminated on Telegram). Sequence 316 involved the applicant pulling back the bed sheets that were covering Child 5 who was asleep and pulling down Child 5’s boxer shorts, exposing his penis (five second video disseminated on Snapchat).

10. [213]

    Sequences 318, 324 and 325 were committed at St Clair on 2 January 2020 at which time Child 5 was aged seven. Sequence 318 involved Child 5 lying on a bed with his clothes on while the applicant sat beside him masturbating which was inside his shorts while talking to Child 5 (seven second video). Sequence 324 involved the applicant masturbating outside his shorts while seated on a bed with Child 5 and Child 1 (two second video). Sequence 325 involved the applicant masturbating while sitting beside Child 5 who had his genitals exposed and was touching his own penis (three images disseminated on Snapchat and Telegram).

11. [214]

    Sequence 319 was committed at St Clair on 4 January 2020 at which time Child 5 was aged seven. The applicant was sitting on a lounge with his pants partly pulled down and was masturbating while Child 5 and Child 1 were sitting on the lounge with him watching television (nine second video).

12. [215]

    Her Honour’s finding of objective seriousness for Sequence 315 was within low range and for Sequences 316, 318, 324, 325 and 319 it was “to varying extents, within mid-range”.

13. [216]

    Child 5 was interviewed by police and provided information including the following: he first met the applicant when he played soccer and the applicant was his coach; the applicant was his coach for three years; he used to sleep over at the applicant’s house because he was friends with Child 1; he and Child 1 played football and PlayStation together; he recalled an occasion when he, Child 1 and the applicant watched a movie in Child 1’s bed and lay down on pillows together and then the applicant went to bed; he had showers at Child 1’s house and they would be in the bathroom with the applicant while having a shower; the applicant washed him and Child 1 with soap and that when he did that he was dressed and was not in the shower with them; and he could not remember how many times the applicant had washed him in the shower because it was a while ago.

CHILD 6

1. [217]

   Child 6 was born in 2010 and was friends with Child 1.

2. [218]

   Sequence 330 was committed at St Clair on 16 February 2020 at which time Child 6 was aged nine. Child 6 was in the shower. The applicant opened the shower door and asked, “[a]re you alright?” to which Child 6 replied “[y]eah.” This event was contained in a 33 second video which focused on Child 6’s penis.

3. [219]

   Her Honour’s finding of objective seriousness for Sequence 330 was below mid-range.

4. [220]

   The applicant committed no contact offences against Child 6. Child 6 was not interviewed by police.

CHILD 7

1. [221]

   Child 7 was born in 2017 and is the applicant’s nephew. The offences relating to Child 7 occurred on 21 October 2019 while the applicant was looking after Child 7 at his workplace at Smeaton Grange at which time Child 7 was aged two.

2. [222]

   Sequence 331 was committed when the applicant took a five second video and four images of Child 7 in the course of committing the Sequence 179 offence.

3. [223]

   Her Honour’s finding of objective seriousness for Sequence 179 was below mid-range.

4. [224]

   The applicant’s social media accounts reveal that on 21 October 2019, at which time Child 7 was aged two, the applicant used the internet to make three transmissions of CAM of himself and Child 7. This conduct forms the basis of the Sequence 321 offence.

5. [225]

   Her Honour’s finding of objective seriousness for Sequence 321 was below mid‑range.

6. [226]

   Sequence 179 was committed while Child 7 was standing on the windowsill at the applicant’s workplace. The applicant masturbated and walked behind Child 7, lifted Child 7’s shirt and put his erect penis near Child 7’s back (five second video disseminated on Snapchat and Telegram).

7. [227]

   Her Honour’s finding of objective seriousness for Sequence 179 was within mid-range.

8. [228]

   Child 7 was not interviewed by police.

Commonwealth offences

1. [229]

   Her Honour then turned to consider the Commonwealth offences.

2. [230]

   Sequence 1 related to the applicant’s possession of 177 CAM images and videos he obtained from the internet and downloaded to his Apple iPhone, the majority of which are Category 1. It was placed on a s 16BA schedule to be taken into account for Sequence 2. Her Honour was satisfied that it was a serious offence and to a limited extent called for a degree of increase to the penalty otherwise appropriate for the Sequence 2 offence. To illustrate that point, her Honour noted that the material included an image of an erect penis in the mouth of a toddler who is gripping the penis with both hands; an image of two naked prepubescent males, one fellating the other; an image of a prepubescent male with white liquid dribbling from his mouth and holding an erect male penis close to his face; and an image of a naked prepubescent male being anally penetrated by an adult male.

3. [231]

   Sequence 2 offence related to the CAM located on the applicant’s Galaxy S9 mobile telephone – namely 3,348 images and videos. Some of this material is the CAM the applicant made of the seven victims over a number of years whereby he photographed, or video recorded his commission of contact offending. But other sampled material encompassed by Sequence 2 involved unidentified real children. This material included extremely serious Category 1 material.

4. [232]

   Despite the upsetting details of this material, I consider it necessary to recount some of it (as the sentencing judge did) for two reasons. First, it will be necessary for this Court to re-sentence the applicant for the Commonwealth offences given the error in the maximum penalty. Secondly, the applicant was cross-examined about some of this material and gave some troubling answers about them to which I will return.

5. [233]

   The material relevant to sentencing on Sequence 2 included the following:

   1. (1)

      An eight minute and 41 second video entitled “Baby Boy Fucked by 17yo Brother” depicting a naked teenager who is masturbating while attempting to force his penis into the anus of a naked 18-month-old male baby. The teenager ultimately succeeds in anally penetrating the baby. The teenager continues to masturbate and attempts again to anally penetrate the baby. The baby is crying and attempting to crawl away from the teenager;

   2. (2)

      A two minute and 18 second video comprising a series of five videos entitled “baby”. Three of the videos show the penises of adult males anally penetrating babies and toddlers while the babies and toddlers are crying and screaming. The remaining two videos show a toddler sucking an adult male’s penis and a baby wearing a bondage mask. Two adults are present, and the baby is being forced to massage the groin area of a female;

   3. (3)

      A five minute and 12 second video depicting an adult male holding a toddler still while inserting his penis fully into the toddler’s anus while the toddler is screaming and crying. The penetration is so violent that the toddler is bouncing on the bed while being anally penetrated. The male eventually ejaculates inside the toddler’s anus after which the male grabs the toddler by one leg and holds him to inspect his buttocks and anus; and

   4. (4)

      A five minute and 43 second video depicting an adult male undressing a toddler before tying him to a board face-up by his arms and legs. The male carries out a series of acts including defecating and urinating on the toddler’s face and chest while the toddler gasps and chokes for air. The male then unties the toddler and reties him face down before spanking the toddler’s buttocks and repeatedly penetrating his anus. The male then masturbates between the toddler’s buttocks until he ejaculates onto the toddler’s buttocks and anus. The male then uses a hose to wash the ejaculate off the toddler and fondles the toddler’s scrotum. During the assault, the toddler is screaming, crying, gasping for air, and struggling to wriggle free from the restraints.

6. [234]

   Her Honour found the objective seriousness of this offence to be Sequence 2 was within the mid-range.

7. [235]

   Sequence 3 was an offence of advertising being in possession of CAM using a carriage service. It related to the applicant’s conduct between 5 April 2019 and 5 May 2020 of advertising his possession of CAM using a carriage service. The applicant used at least four different online identities to advertise his possession of CAM to persons with a sexual interest in male children to connect with him via applications including Snapchat, Wickr, [6] Telegram and Kik in order to trade CAM with such others. Between this period, the applicant posted over 100 advertisements including the following:

   1. (1)

      Between 5 to 8 April 2019, he asked a 17-year-old user whether he had “done stuff” with his 12-year-old brother and 13-year-old male cousin and asked for photos of the user’s brother in return for photos of his “son” (that being Child 1);

   2. (2)

      Between 12 April and late May 2020, he asked a user whether he had “fuck[ed]” his son (being the user’s 14-year-old son). The user responded that he had, a couple of months ago, but that it did not happen very often. The user asked the applicant “u wanna buy nudes I have about a mega of 18gb”;

   3. (3)

      On 26 April 2020 he posted, “28Yo Dad wanting to chat with lads Under 15 Or Anyone With Kid. If you’re with someone must show or don’t add. Add picsyo1”;

   4. (4)

      On 4 May 2020 he posted, “[a]ny Perv Dads Big Bros Uncles Teachers Babysitters Etc Hmu [which as I understand it means hit me up]. Add baddad03. Must be willing to show boy”;

   5. (5)

      On 5 May 2020 he posted, “28 Pervy Dad Looking To Chat With Under 14 Or If You’re With A Little Boy. Add baddad03”; and

   6. (6)

      On 7 May 2020 he posted, “[d]ad W Son. Only Add If You’re With A Young Boy Too. Only Add If You’re with a boy and will trade. Just prove it…Add baddad03”.

8. [236]

   Her Honour found the objective seriousness to be within mid-range.

9. [237]

   Investigations revealed that between 16 November 2017 and 8 May 2020 having produced CAM of Child 1 and Child 3, the applicant was in contact with numerous users of multimedia file sharing platforms which he used to send CAM he had made of Child 1 and to a lesser extent Child 3 and additionally, to receive CAM of real but unidentified children as part of an exchange for the material he had produced of Child 1 and Child 3.

10. [238]

    This typically occurred using links which are web or cloud-based encrypted file storage services which enable users to save and store images, videos and documents.

11. [239]

    The largest portion of CAM the applicant received and accessed was contained in links – the applicant sharing 180 links between himself and one person alone.

12. [240]

    All links in the communications the subject of the Sequence 9 offence have been shut down because of the presence of CAM. An AFP officer reviewed a large portion of the linked material and confirmed it to be CAM. The applicant’s conduct in producing CAM of Child 1 and Child 3 intending it to be transmitted through a carriage service forms the basis of the Sequence 9 offence. Insofar as this offence encompasses the receipt of material depicting other children, that conduct is contextually relevant in informing the way the offending conduct in relation to Child 1 and Child 3 occurred and the applicant’s state of mind at the relevant time.

13. [241]

    The Remarks on Sentence then set out some examples of the applicant’s conduct encompassed by the Sequence 9 offence. As stated above, her Honour did not read that portion out due to its graphic nature. I propose to summarise that material as follows.

14. [242]

    Examples of the applicant’s conduct which formed the basis of the Sequence 9 offence were set out in the Agreed Facts. I do not propose to set out those conversations in full given their content, but it is necessary to extract some parts of them to explain the applicant’s criminality given that it will be necessary for the court to re-sentence the applicant in relation to the Commonwealth offences.

15. [243]

    In conversations with a like-minded offender (“user”) between 6 and 8 May 2020 the applicant describes himself as a “perv dad”. He has a conversation with another user in which he tells the other user that he would love his eight-year-old son (Child 1) to “fuck” him but stated, “how do I get him not to tell [?]”. The applicant sends the user a photograph of Child 1 in underwear. On request, he then sends a photo of himself masturbating over Child 1 when he is sleeping and says, “I am about to undress him”. There is further discussion with the same user about Child 1.

16. [244]

    In conversations with another user from 4 May 2202 there is sexualised “chat” about abusing underage boys during which multiple images and videos of CAM were exchanged. Both men discuss what they would do to Child 1 with the applicant suggesting that they could, “make him slide down daddies fat cock, shove your cock in his mouth so he doesn’t scream”. The following day, he sent an image of Child 1 lying on bed in underwear. The applicant is sent an image of a seated adult male holding a toddler’s bottom and the toddler on the adult’s erect penis. In the discussion, they both say that they are jealous and the applicant states, “…. [a]t that age its be easy to fuck him anywhere too”. They both discuss how they would sexually abuse the toddler if they had access to him, including pimping.

17. [245]

    The two men then exchange further CAM including of a newborn baby sucking an erect adult male penis. A link is then sent of what the user describes as “kid sexual torture”, which is precisely that. Further images are sent, and the other user says, “I love when he starts whining that his dad or big brother covers his mouth with his hand and he digs his fat cock into that tiny hole”. An image of a naked adult male erect penis penetrating a naked baby’s anus is also sent.

18. [246]

    On 29 to 31 July 2019, the applicant discusses exchanging images with a user in the USA. The user says he will go into his younger brother’s room and masturbate him if the applicant sent images of him doing something with Child 1. They discuss the applicant masturbating Child 1 and the applicant tells the user his son “moans and enjoys it”. The applicant explicitly describes what he has been doing to Child 1.

19. [247]

    In another conversation, the applicant tells the user that he “jerks and sucks” his seven-year-old son every few days. The user asks for images, and they discuss what images the user has to obtain of his cousins before the applicant will send CAM of Child 1. In conversation with another user the applicant discusses images they can trade. They both discuss being into “younger, incest, underwear and spy public” and discuss sexually abusing Child 1 together by the user holding his cheeks apart for the applicant’s “cock” and go into explicit details of the degree of thrusting. The user sends CAM including a video of a toddler with a penis in its anus.

20. [248]

    From 26 June to 17 August 2019, the applicant sent CAM to another user. In return he received an image of a baby’s vagina with an adult hand spreading the vagina apart. The applicant responds, “[s]hame it’s a girl lol”. The applicant later asks, “[c]an you send some hot toddler stuff on tele, I get [Child 1] back tomorrow”. During this time period, the applicant sends CAM of Child 1 to which the user states, “[h]oly shit he’s perfect!!!! Is mum home??”

21. [249]

    The applicant then describes his sexual abuse of Child 1 including what he had just done to him. The applicant then agrees with the user that he will have to give him more sleeping pills. The applicant then sends five videos including one of a toddler with his hands tied together and legs forced wide open.

22. [250]

    From 2 to 15 April 2019, the applicant sent 31 videos and images of CAM including CAM of Child 1 and 16 videos. The user requested images of the applicant sucking Child 1’s penis, and he obliged. The applicant said he was going to “try and fuck him” and later stated he “[g]ot a little in”.

23. [251]

    From 4 to 6 April 2019, the applicant and another user discuss that they are both into “younger, incest, peeing, underwear and spy public”. The user sends the applicant videos of an erect adult male penis in the anus of a child who is bent over a bed, a sleeping toddler with an erect adult male penis in his mouth and a naked child with an erect adult male penis in his anus. The applicant asks for more.

24. [252]

    In a “fantasy chat” from 28 to 30 August 2019, the applicant sent a video of a naked baby being sexually abused and says: “Fill him with cum and piss”. They discuss what is the most perverted CAM they have ever seen. The applicant then sends three videos depicting two different toddlers being sexually abused and a toddler having an adult male defecate on the toddler.

25. [253]

    From 19 August 2019 to 12 January 2020, the applicant and the user discuss the sexual abuse of Child 1 including by “making him gag on penis, crying, whimpering, rubbing his prostate and crying out moaning as [the applicant] is ‘balls deep’.”

26. [254]

    From 26 June to 24 August 2019, another user sends an image of a naked baby with an erect male penis pressed into the baby’s testicles and semen from the head of the adult penis over the baby’s testicles and penis and writes “[too] young?” The applicant replies, “[n]o such thing, I’d love to lick the cum from the little cock”. When the user sends a video of an adult male raping a baby as the baby screams in agony, the applicant replies, “so lucky” and when the user sends a video of an adult male raping a naked baby girl the applicant replies, “[m]mm wish it was a boy”.

27. [255]

    The applicant tells the other user, “I miss his little pissy cock so much, I need him, Hes like a drug for me … I’ll try [stretching Child 1’s butthole], maybe even pooping? Forced or rough?” The applicant also states, “we had a friend sleep over too” and sends four videos of himself fondling Child 1 penis and another child’s penis. The user sends videos including a four second video of a baby sucking on an erect adult male penis.

28. [256]

    On 19 July 2019, the applicant tells the user that they are at the hospital as Child 1 has tonsillitis. He sends an image of Child 1 in a hospital bed. The user masturbates to that, and the applicant replies, “I love how horny my son makes you”. The user then sends two videos of toddler boys being sexually abused to which the applicant responded, “sexy lil baby cock, he should’ve rammed it down the kids throat, I’m so horny I might get some sleep”. The user sent a video of a baby being anally raped while the baby screams and in return the applicant sent a video of himself masturbating while standing over Child 1.

29. [257]

    On 29 July 2020, the applicant later tells the user, “I wanna drug him, so I fuck his tight cunt”. The two men then discuss different ways to drug Child 1 including “sleeping pills, GBL, Valium, Xanax, Rohypnol and Benadryl”. The applicant says that he is thinking of leaving Child 1’s mother, so likely won’t see Child 1 again. The two men then discuss how the applicant will “fuck” Child 1 again before leaving Child 1’s mother, and then the applicant will find “a new girl” to have a baby with.

30. [258]

    On 2 August 2019, the applicant says that Child 1 is at school and that “next time were alone I’m going to offer him a new game to fuck him”. The two men discuss the sexual abuse of Child 1 and the applicant states, “I need his tight shit hole, around daddy’s cock”.

31. [259]

    On 3 August 2020, he sends a photo of Child 1 and Child 3 in bed and says: “washed them both, other kids name is [ ], I wanna fuck him”. The applicant sends several videos of Child 3 and says: “I could so easily pull his pants down and force my precum lubed cock up his ass”. On 7 August 2019, the applicant is sent a video of a baby being anally raped to which he replies, “I wish we got to be alone, why wouldn’t you cum inside, how do these guys get inside such little asses”.

32. [260]

    On 6 October 2019, the applicant and another user discuss using Phenergan to rape a child. The applicant states, “[m]y son[‘s] friend is like passed out I just quickly felt his hole, my finger is smelly now”. On 11 October 2019, the applicant says he can’t “fuck” Child 1 because “[h]e’s so tight”. On 17 October 2019, he says, “[s]tarted chatting to a dad with a 3yo”. On 27 November 2019, the applicant states, “God I wanna go rape him, get in his cunt”. The applicant and the user continue to send multiple CAM videos to each other.

33. [261]

    On 5 December 2019, the applicant states, “I wish that bitch wasn’t here, I need his little cunt, I wanna kidnap a boy”. The other user states, User: “[h]mmm me too A beggar boy”. The applicant then states, “[s]o many boys out playing. Easy to take one. I wanna rape him”. On 6 December 2019, the applicant sent a video of his penis penetrating Child 1’s anus and writes “[i]s us, happened this morning”. On 7 December 2019, the user sent a video of a toddler being anally raped and writes “[f]rom a dad with 6yo son”.

34. [262]

    On 9 December 2020, the applicant states, “I wish I could have more sleepovers, need him to have a slutty little friend … imagine if one of his friends asks me to fuck him”. The applicant and the user then trade several CAM videos. On 1 January 2020, the applicant sent a photograph of Child 1 naked and says: “I wanna shove my cock here, I need it, He makes my cock throb”. The applicant later states, “[n]ext time we have alone time im gonna give him $100 to fuck him, then just lube his cunt and force my cock in”. They both discuss that act and then the applicant states, “[o]r scream, I’d just keep telling him I paid him, Hed be like daddies slut, paying to use him.”

35. [263]

    On 9 to 10 January 2020, the applicant sends several CAM videos of Child 1 and Child 3 and says “[Child 3] is sexy too I’d pound him hard.” The applicant and the user continued to send CAM to each other and discuss sexual abuse of Child 1 and his friends from 19 March 2020 to 8 May 2020, that being the day of the applicant’s arrest.

36. [264]

    Her Honour assessed the objective seriousness of Sequence 9 as within the mid-range.

Admissions by the applicant

1. [265]

   On the day of his arrest, the applicant provided two interviews in which he made a number of significant admissions. He admitted that he was the user of the relevant Galaxy S9 mobile telephone which has a password-protected secure folder where he keeps applications including Gallery, Snapchat, Kik, Telegram and Wickr. The gallery folder contained the CAM he has made and received. He uses Snapchat, Kik, Telegram and Wickr to chat and trade CAM with people who have a sexual interest in children. He mainly only chats and trades with persons who are interested in boys but at times he received CAM of girls.

2. [266]

   The applicant has received and sent Mega and Dropbox links that contain CAM but he does not have an account with Mega or Dropbox. He trades CAM on Kik, Telegram and Wickr but mostly transmits CAM on Snapchat. He trades (distributes and receives) videos and images, including: mutual masturbation with Child 1, mutual fellatio with Child 1, digital anal penetration of Child 1, himself, sticking his penis between Child 1’s buttocks, and other CAM of boys he has received from others.

3. [267]

   The applicant saved such material that he has made and received in the gallery of the secure folder he created on his phone. He usually shares images and videos of Child 1 when the person he is sharing them with has access to children. Most of the people he trades with on Snapchat, Kik, Telegram and Wicker were people he met on an online forum. He uses the CAM of Child 1 that he produced as a bargaining chip to get better content – “better content” meaning longer videos showing something more interesting than a naked boy. He understands CAM to be anything sexual against a child under the age of 10 years old.

4. [268]

   When the applicant looks at CAM he feels excited and aroused and it often leads to him masturbating. He has ejaculated on his stepson countless times – on his buttocks, legs, penis, torso, back – “whatever is accessible”. He ejaculates on Child 1 when Child 1 is asleep and awake. He taught Child 1 how to masturbate.

5. [269]

   He started sexually abusing Child 1 about “3 or 4 years ago, when his stepson was about 4 to 5 years old”. The last time he sexually abused his stepson was about 3 days prior to his arrest. Child 1 cannot ejaculate but can orgasm. He uses the child abuse to help Child 1 get to sleep. Child 1 asks him to touch his “doodle” every night, but he does not do it every night.

6. [270]

   The applicant told police that he does not always film the sexual abuse of Child 1. Child 1’s mother had no idea the abuse was occurring. Child 1 has Level 2 Mild Autism. He has sexually abused three of Child 1’s friends, for whom he was also the soccer coach. He has sent a number of videos of Child 1 in messages on Telegram.

7. [271]

   During the interview, a video was opened showing an erect adult male’s penis penetrating a child’s buttocks. The applicant identified the adult male penis as his own and the child as Child 1. In this video, the applicant can be seen to penetrate Child 1’s anus with the tip of his penis; and that Child 1 walked in when he and Child 1’s mother were having sexual intercourse and Child 1 became upset and said that he had thought that what the applicant had been doing with his mother (namely, sexual intercourse) was just happening between the child and the applicant, and Child 1 was jealous of his mother.

8. [272]

   On 14 October 2020, the applicant agreed to be further interviewed. In that interview he provided further information to police. He told them that that he gave Child 1 and Child 3 melatonin in chewable form. He gave that to Child 1 every night and when Child 3 stayed at his home, he also took it in chewable form. He said he was pretty sure he would have told the mother of Child 3 that he had given Child 3 the melatonin. He could not remember if he had given it to any other child who stayed overnight but he may have. He originally bought the melatonin to help Child 1 get to sleep because he had trouble sleeping. The melatonin was given to Child 1 in the form of melatonin gummy lollies with the knowledge of the mother of Child 1. Both he and Child 1’s mother also took melatonin to assist in sleeping. He obtained the melatonin from a website or app called iHerb and it was sent from the United States.

9. [273]

   He also told police that his nephew was in a video he filmed. He would have been dropped off at his worksite because his brother, the boy’s father, also worked in the family business. His mother worked around the corner. He said he did not do anything sexually to his nephew. He did not recall touching Child 4 and he did not touch Child 6 but there was a video of him in the shower.

10. [274]

    The applicant said in his evidence that he did, on occasion, say things in online communications that were not the truth in order to foster his relationship with those he was communicating with online.

11. [275]

    He admitted that he committed offences in circumstances where Child 1 was using melatonin from time to time to assist him to sleep and to a much lesser extent, Child 2 (as per his evidence) and/or Child 3 (as per his interview). The applicant denied however that he specifically gave any child melatonin in order to commit any offence.

12. [276]

    Her Honour noted that the Crown accepted that it cannot prove beyond reasonable doubt that the applicant administered any sleep-inducing substance to any child for the purpose of committing an offence. She considered that an appropriate concession to make, and made it clear that she did not have regard to the use of any sleep-inducing substance as a matter of aggravation. Rather, it formed part of the factual matrix, being that on occasions Child 1 and Child 2 and/or Child 3 were asleep when offences were committed.

Victim Impact Statements

1. [277]

   Her Honour then dealt with the Victim Impact statements. She noted that one of the purposes of sentencing is to recognise the harm caused to the victim of an offence and the community. It was observed that courts do not require such statements to appreciate the long-term deleterious effect of child sexual abuse on victims; such damage is frequently observed by courts when receiving statements from victims who graphically describe the impact of sexual abuse on many aspects of their lives such that the impact of such offending is now in the public and judicial consciousness.

2. [278]

   Her Honour noted the profound effects such offences have for many years if not the whole of the lives of such victims. Such abuse will inevitably give rise to psychological damage. This calls for a strong element of deterrence when sentencing offenders so that children are protected from the long-term physical and psychological harms that are known to follow from child sexual abuse.

3. [279]

   In the Victim Impact Statement in relation to Child 1, his mother spoke of the immense impact of the offending on Child 1. She said he experienced “ongoing problems with toileting”, “regular nightmares”, and “went through a period where he was in the shower re-enacting the abuse that was done to him.” She reports Child 1’s anger, confusion and terror in response to hearing the applicant’s name, or even meeting new people and especially men.

4. [280]

   She reported that it has taken Child 1 at least a year to understand that the abuse was not his fault. It is particularly confusing for Child 1 that the applicant was his stepfather and used his position of trust to abuse Child 1. She further stated that Child 1 regularly asks “But I trusted him…He told me it was okay…why did he do it?”

5. [281]

   Child 1’s mother stated that Child 1 is constantly reminded of the abuse through living in the house where it happened, through playing soccer which he has now given up, and through the loss of many friends and family members who have distanced themselves from her and Child 1.

6. [282]

   Her Honour noted that Child 1 came to want the offending – or as the applicant said in his evidence, “most nights Child 1 would ask me to do something in bed” and the applicant agreed that Child 1 developed behavioural issues and anger issues as the offending was taking place. Her Honour observed that “in the circumstances, impacts such as those described by Child 1’s mother are hardly surprising”.

7. [283]

   The mother of Child 2 described in her Victim Impact Statement the immense shock, sadness and anger at the discovery of the offending, as well as the loss of trust in others and an inability to allow Child 2 to socialise normally outside of her supervision. She recognises that this is causing Child 2 to miss out on opportunities and to experience loneliness, but she does not feel as though she can risk Child 2 being harmed again. She described that Child 2 is also confused as he does not understand the offending perpetrated against him. Child 2 is angry and upset with his mother for not allowing him to do normal childhood activities to the point where his relationship with his mother is greatly strained.

8. [284]

   Child 4 is apparently unaware of the offending against him but his parents state in their Victim Impact Statement that he is nonetheless affected by it. They spoke of his loss of innocence, their disgust at the fact those images are shared on the internet and their dismay knowing those images can never be retrieved or destroyed.

9. [285]

   His parents also described their immense guilt that they trusted the applicant to care for their child stating that they “will never be able to live with the fact” that they allowed Child 4 to have sleepovers at the applicant’s home. A significant consideration for them is their knowledge that they will one day have to explain to Child 4 that there is CAM of him on the internet which puts their child in a perpetually vulnerable position.

10. [286]

    Her Honour observed:

The applicant’s subjective case

1. [287]

   The sentencing judge considered the applicant’s case in some detail. It was not submitted that she failed to have regard to the subjective case or gave it inadequate weight in assessing the aggregate sentence. It was conceded that the subjective case was not powerful. In response to that position, I do not propose to summarise the applicant’s subjective case in the same degree of detail as her Honour did.

2. [288]

   The applicant was born in 1990. He and his older brother were raised in Sydney by their parents who remain married. He described a positive and loving upbringing with supportive parents and denied exposure to domestic or physical abuse.

3. [289]

   He attended a local public school until Year 4 when he was accepted into an opportunity class at a public school which was out of area. He then attended a Catholic college between Years 7 and 10 and local High School in Years 11 and 12 receiving the second highest grade in mathematics for his year in the Higher School Certificate (hereafter “HSC”).

4. [290]

   He was a good student who performed well when he applied himself. Although he reported occasional binge drinking in his youth, he actively avoided being incapacitated from alcohol. Prior to his arrest, he drank socially and has no history of illicit drug use, nicotine use, or problematic gambling.

5. [291]

   His only physical health problems were the result of dislocating his shoulder several times and fracturing his collar bone playing sport at the age of 18. As a result of muscle and ligament damage following surgery, these injuries continue to cause him pain.

6. [292]

   The applicant was not diagnosed with any psychiatric or psychological concerns during his adolescence.

7. [293]

   Although the applicant aspired to work in adventure-based youth work, his shoulder and collarbone injury meant there were few options in that field. Instead, he began working in respite care with children with disabilities for a period of time. He also reported working as a disability support worker at a warehouse for approximately one year before returning to work at Woolworths for around two years. For several years prior to his arrest, he was employed intermittently at his father’s timber business.

8. [294]

   Dr Collins was of the view his work history was not at a level commensurate with his ability.

9. [295]

   The applicant disclosed to Dr Collins that he was sexually touched by a family member on a few occasions when he was approximately 10 years old. Her Honour was prepared, on balance, to accept the truthfulness of this disclosure. Although the applicant told Dr Collins he did not believe these incidents had any bearing on his offending, Dr Collins opined that the alleged abuse when the applicant was younger significantly accelerated his sexual awareness.

10. [296]

    The applicant reported that he is bisexual and described his sexual attraction as being specific to a person rather than a gender. He stated that his family are supportive of his sexual orientation.

11. [297]

    In his evidence he nominated an attraction to boys aged six and above however acknowledged receipt of CAM featuring babies and toddlers. He further acknowledged that the day prior to his arrest he advertised himself as a dad with a son and requested that people only add him if they had a young boy so that they could “trade” material.

12. [298]

    Dr Collins reported that the applicant acknowledged his offending resulted from his sexual interest in prepubescent male children which he was unable to control. She opined that his contact with like-minded individuals online provided him with a sense of community and a space where he was not judged which served to normalise his conduct.

13. [299]

    Whilst her Honour accepted that some of what the applicant said online was bravado and puffery designed to gain popularity and connectedness with like-minded others, she found that the applicant nevertheless created and used dedicated social media accounts with many contacts to communicate about the sexual abuse of children (typically boys) and to trade CAM. While the applicant maintained that some of the CAM he received did not particularly interest him, he agreed he used such material to trade for material that was to his interest.

14. [300]

    In his first report, Dr Furst opined that the applicant presented with a pattern of behaviour, arousal and sexual interest indicative of a paedophilic disorder (of a non-exclusive type presumably because the applicant endorsed a sexual attraction to both males and females) and opined that his paedophilic disorder was the primary motivation for his offending. In his supplementary report, Dr Furst reported that there “appears to be a fairly strong correlation between boys being sexually abused and subsequent sexual offending as adults”.

15. [301]

    It was contended on behalf of the applicant that the court would accept that the sexual touching that occurred when the applicant was a child had a bearing on the sentence to be imposed because, it was contended, that conduct contributed to his criminality and reduced the applicant’s moral culpability: R v AGR (unrep, 24/7/1998, NSWCCA) at [13]. Her Honour considered that submission but found that there was insufficient evidence to find on balance that it contributed to his offending or that it had any real bearing in reducing his moral culpability or moral responsibility.

16. [302]

    Her Honour then considered the relevance of the applicant’s paedophilic disorder. After citing R v Engert (1995) 84 A Crim R 67 and accepting that paedophilia is a mental condition, her Honour was not satisfied that it reduced the applicant’s moral culpability in any meaningful way. This was because the applicant was a mature and apparently intelligent adult at the time of his offending. He knew of his sexual attraction to boys prior to meeting the mother of Child 1. Thereafter, he repeatedly placed himself in positions that gave him access to boys and the opportunity to offend over and over again. In her Honours’ view, the evidence clearly demonstrated that over a significant period of time, the applicant chose to offend against multiple children and deal with large quantities of CAM for his own sexual gratification, making efforts to hide his predilection but making no efforts to stop.

17. [303]

    Her Honour went on to find in the alternative that even if the applicant’s paedophilia diagnosis should be seen as a matter ameliorating his moral culpability or responsibility, that would be offset by the fact that the scale and nature of his offending required significant weight to be afforded to deterrence and protection of the community.

18. [304]

    Her Honour then noted that the applicant had not had contact with his brother or with other acquaintances since his arrest and that his most regular contact to date (COVID-19 permitting) had been with his mother and aunt. He experienced frequent periods of COVID-19 isolation and lockdown. She noted that the applicant has been moved within the gaol, apparently as a result of others in the prison becoming aware of the nature of his offending and making threats against him and that he is currently accommodated in the Special Management Area Placement Wing (“SMAP”).

19. [305]

    Her Honour observed that the applicant will likely have few supports while he serves his sentence. It is also reasonable to assume the treatment he has received from others within the gaol may continue at least for some time. Such matters are likely to make his experience of custody harder and may mean his reintegration into the community will be more difficult upon his eventual release. Her Honour took this into account.

20. [306]

    Her Honour noted that Dr Collins reported that the applicant presented with mixed mood symptomatology including a tendency to worry and ruminate and that he was feeling anxious about his family, the victims and the likely court outcome. Dr Collins opined that he described persistent sadness arising from dissatisfaction in relation to career aspirations and has suffered low mood since early adulthood which was likely complicated by feelings of guilt and shame associated with his sexual interests and offending.

21. [307]

    Dr Collins noted further that the applicant reported feelings of anxiety and sadness as a result of media attention which resulted in him being moved around the prison due to threats. In her opinion his presentation that suggested a lower grade but longer term depressive condition such as persistent depressive disorder did not meet the full criteria for a diagnosis of anxiety disorder even though he had symptoms consistent with a generalised anxiety disorder.

22. [308]

    Her Honour accepted that the applicant suffered a depressive condition and symptoms consistent with anxiety disorder, both of which would make his time in custody more onerous and difficult.

23. [309]

    Her Honour noted the applicant’s apology letter to the court in which he described feeling a sense of “relief” when he was arrested and acknowledged that he did not tell anyone or seek help because he was scared about consequences.

24. [310]

    Her Honour was satisfied that he displayed remorse and contrition.

25. [311]

    Although the applicant had no criminal history, in light of the nature of his offences, the period over which they were committed and the significant abuse of trust, her Honour was not satisfied that this factor entitled the applicant to any particular degree of leniency.

26. [312]

    As for his risk of reoffending and prospects of rehabilitation, her Honour referred to the expert opinions on this but noted that a very troubling matter was the applicant’s limited insight. Although the applicant maintained he was beginning to understand the lifelong consequences of his offending, her Honour noted that he maintained a belief that Child 1 derived enjoyment from the offending and at times initiated such conduct. The applicant reported that he “wanted to make it as enjoyable for him as he could” and that when Child 1 would say things like “ow”, he would “try and change it up or do something different to make him feel better”.

27. [313]

    Her Honour also noted that the applicant expressed a belief that harm was not caused when he offended whilst a child was sleeping or unaware. Furthermore, he took comfort from the fact he was not the person perpetrating the, sometimes abhorrent, acts of sexual abuse and cruelty upon the children within the material he received. He described in his evidence that such material made him feel better about what he was doing because he was not doing anything violent to the children against whom he committed the contact offences.

28. [314]

    Her Honour found that the applicant posed a moderate risk of reoffending, and that his prospects of rehabilitation were guarded.

29. [315]

    Her Honour then considered the purposes of sentencing and then said this about the principle of totality:

30. [316]

    Her Honour considered the question of special circumstances. She found them for the State offences but noted that that is not reflected in the overall sentence because the factors which could constitute special circumstances had already been considered and synthesised in the aggregate sentence her Honour imposed. Her Honour went on to state:

31. [317]

    Her Honour then imposed the aggregate sentence set out above. The indicative sentences were listed in Annexure C to her Honour’s judgment but for ease of reference they are set out here:

    1. (1)

       Sequence 2 and taking into account Sequence 1, indicative sentence of imprisonment of 4 years and 2 months;

    2. (2)

       Sequence 3, indicative sentence of imprisonment of 3 years;

    3. (3)

       Sequence 9, indicative sentence of imprisonment of 3 years and 7 months;

    4. (4)

       Sequence 10 and taking into account Sequence 181, indicative sentence of imprisonment of 3 years

    5. (5)

       Sequence 309, indicative sentence of imprisonment of 1 year and 10 months;

    6. (6)

       Sequence 310, indicative sentence of imprisonment of 1 year and 10 months;

    7. (7)

       Sequence 317, indicative sentence of imprisonment of 1 year and 10 months;

    8. (8)

       Sequence 321, indicative sentence of imprisonment of 1 year and 2 months;

    9. (9)

       Sequence 314, indicative sentence of imprisonment of 1 year and 2 months.

    10. (1)

        Sequence 170, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    11. (2)

        Sequence 191, indicative sentence of imprisonment of 7 years and 2 months with a non-parole period of 5 years and 2 months;

    12. (3)

        Sequence 202, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    13. (4)

        Sequence 244, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    14. (5)

        Sequence 294, indicative sentence of imprisonment of 7 years and 2 months with a non-parole period of 5 years and 2 months;

    15. (6)

        Sequence 171, indicative sentence of imprisonment of 7 years and 2 months with a non-parole period of 5 years and 2 months;

    16. (7)

        Sequence 28, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    17. (8)

        Sequence 5, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;

    18. (9)

        Sequence 194, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;

    19. (10)

        Sequence 198, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    20. (11)

        Sequence 203, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    21. (12)

        Sequence 333, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    22. (13)

        Sequence 208, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;

    23. (14)

        Sequence 274, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    24. (15)

        Sequence 211, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;

    25. (16)

        Sequence 213, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    26. (17)

        Sequence 224, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    27. (18)

        Sequence 227, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    28. (19)

        Sequence 260, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    29. (20)

        Sequence 278, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    30. (21)

        Sequence 286, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;

    31. (22)

        Sequence 296, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;

    32. (23)

        Sequence 254, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;

    33. (24)

        Sequence 257, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;

    34. (25)

        Sequence 290, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;

    35. (26)

        Sequence 297, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;

    36. (27)

        Sequence 6 and taking into account Sequence 7, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    37. (28)

        Sequence 210 and taking into account Sequences 212, 215 and 217, indicative sentence of imprisonment of 4 years with 6 months with a non-parole period of 3 years and 3 months;

    38. (29)

        Sequence 214 and taking into account Sequence 219, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    39. (30)

        Sequence 216 and taking into account Sequence 220, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    40. (31)

        Sequence 230 and taking into account Sequences 233 and 234, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;

    41. (32)

        Sequence 235, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    42. (33)

        Sequence 236 and taking into account Sequence 223, indicative sentence of imprisonment of 3 years and 7 months with a non-parole period of 2 years and 7 months;

    43. (34)

        Sequence 237 and taking into account Sequences 232, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    44. (35)

        Sequence 238 and taking into account Sequences 222 and 229, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    45. (36)

        Sequence 241 and taking into account Sequences 240 and 251, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;

    46. (37)

        Sequence 243 and taking into account Sequence 261, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    47. (38)

        Sequence 245 and taking into account Sequence 248, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    48. (39)

        Sequence 247 and taking into account Sequence 242, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    49. (40)

        Sequence 253 and taking into account Sequences 256 and 258, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    50. (41)

        Sequence 259 and taking into account Sequences 262, 263, 265 and 266, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;

    51. (42)

        Sequence 267 and taking into account Sequence 283, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    52. (43)

        Sequence 269 and taking into account Sequence 281, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    53. (44)

        Sequence 270 and taking into account Sequences 275, 277 and 280, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;

    54. (45)

        Sequence 271 and taking into account Sequence 273, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    55. (46)

        Sequence 272 and taking into account Sequences 292 and 298, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    56. (47)

        Sequence 289, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    57. (48)

        Sequence 295 and taking into account Sequence 285, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    58. (49)

        Sequence 300 and taking into account Sequence 299, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    59. (50)

        Sequence 15, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    60. (51)

        Sequence 21, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    61. (52)

        Sequence 22, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    62. (53)

        Sequence 23, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    63. (54)

        Sequence 26, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    64. (55)

        Sequence 305, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    65. (56)

        Sequence 306, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    66. (57)

        Sequence 33, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;

    67. (58)

        Sequence 173, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    68. (59)

        Sequence 307, indicative sentence of imprisonment of 3 years and 7 months with a non-parole period of 2 years and 7 months;

    69. (60)

        Sequence 308, indicative sentence of imprisonment of 3 years and 7 months with a non-parole period of 2 years and 7 months;

    70. (61)

        Sequence 176, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;

    71. (62)

        Sequence 209 and taking into account Sequence 221, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;

    72. (63)

        Sequence 303, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    73. (64)

        Sequence 332, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;

    74. (65)

        Sequence 184 and taking into account Sequences 169, 182 and 185, indicative sentence of imprisonment of 3 years and 4 months and a non-parole 2 years and 5 months;

    75. (66)

        Sequence 187, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;

    76. (67)

        Sequence 323, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;

    77. (68)

        Sequence 188 and taking into account Sequences 186, 189 and 193, indicative sentence of imprisonment of 3 years and 4 months and a non-parole 2 years and 5 months;

    78. (69)

        Sequence 199 and taking into account Sequences 190, 192 and 195, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;

    79. (70)

        Sequence 201 and taking into account Sequences 204 and 207, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;

    80. (71)

        Sequence 205 and taking into account Sequence 200, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;

    81. (72)

        Sequence 197 and taking into account Sequence 196, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;

    82. (73)

        Sequence 225 and taking into account Sequences 218, 228 and 231, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;

    83. (74)

        Sequence 226, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    84. (75)

        Sequence 239 and taking into account Sequences 246, 249 and 250, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;

    85. (76)

        Sequence 252 and taking into account Sequence 255, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;

    86. (77)

        Sequence 264, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    87. (78)

        Sequence 284 and taking into account Sequences 268 and 301, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;

    88. (79)

        Sequence 287 and taking into account Sequences 276, 282 and 288, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;

    89. (80)

        Sequence 293 and taking into account Sequence 291, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    90. (81)

        Sequence 301 and taking into account Sequences 172 and 279, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    91. (82)

        Sequence 11, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    92. (83)

        Sequence 304, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    93. (84)

        Sequence 32, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    94. (85)

        Sequence 311, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year 6 months;

    95. (86)

        Sequence 312, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;

    96. (87)

        Sequence 174, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;

    97. (88)

        Sequence 315, indicative sentence of imprisonment of 11 months with a non-parole period of 8 months;

    98. (89)

        Sequence 316, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    99. (90)

        Sequence 318, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    100. (91)

         Sequence 324, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;

    101. (92)

         Sequence 325, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;

    102. (93)

         Sequence 319, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;

    103. (94)

         Sequence 179 and taking into account Sequence 320, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;

    104. (95)

         Sequence 206, indicative sentence of imprisonment of 1 year and 2 months with a non-parole period of 10 months;

    105. (96)

         Sequence 183, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    106. (97)

         Sequence 180, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;

    107. (98)

         Sequence 178, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    108. (99)

         Sequence 326, indicative sentence of imprisonment of 11 months with a non-parole period of 8 months;

    109. (100)

         Sequence 327, indicative sentence of imprisonment of 11 months with a non-parole period of 8 months;

    110. (101)

         Sequence 175, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    111. (102)

         Sequence 328, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    112. (103)

         Sequence 329, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    113. (104)

         Sequence 330, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;

    114. (105)

         Sequence 331, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months.

Ground 1: Incorrect maximum penalty

1. [318]

   As set out above, the applicant pleaded guilty to nine Commonwealth offences. contrary to the Criminal Code. The most serious of those offences were the five offences of transmitting CAM using a carriage service in circumstances of aggravation, namely involving transmissions on three or more occasions and two or more people contrary to s 474.24A(1)(a)(iii) of the Criminal Code.

2. [319]

   The Crown accepted that the sentencing judge had regard to the incorrect maximum penalty for the five offences contrary to s 474.24A(1)(a)(iii). The Crown table of offences setting out the particulars and maximum penalties for that offence referred to the maximum penalty as being 30 years imprisonment and that is the maximum penalty her Honour referred to as being the maximum penalty in Annexure A to her reasons.

3. [320]

   The maximum penalty for the s 424.24A(1) offence was only increased from 25 years imprisonment to 30 years on 22 June 2020 by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Measures) Act 2020 (Cth). The offences for Sequences 10, 309, 310, 317 and 321 pre-date that change which means that the relevant maximum penalty at the time of the offending was 25 years imprisonment, not 30 years.

4. [321]

   As Beech-Jones J (as his Honour then was) observed in Andreata v R [2015] NSWCCA 239 at [28], with the agreement of Ward JA (as her Honour then was) and Adams J, “Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error … .”

5. [322]

   The question of whether an incorrectly stated maximum penalty in an indicative sentence for one of a large number of indicative sentences had the capacity to influence the result was considered in Benn v R [2023] NSWCCA 24 at [86]. Although the Crown submitted on the facts in that case that it did not, the court (Gleeson JA with whom N Adams and Ierace JJ agreed) held that the error did have that capacity given that the sentencing judge mistook a maximum penalty for one offence when determining the total criminality of the applicant’s offending. Further, there was nothing in the reasons to suggest that his Honour dealt with that count wholly concurrently with any other offence.

6. [323]

   In the present matter, the incorrect maximum penalty was applied to the five most serious of the nine Commonwealth offences. The Crown’s concession that this error materially bore on the aggregate sentence for the Commonwealth offences should be accepted. An interesting question arises as to whether if her Honour had applied an incorrect maximum penalty for only one of the 105 State offences it could be said that such an error had the capacity to influence the result, but it is not necessary to make any finding in that regard.

7. [324]

   It is necessary for this Court to re-sentence the applicant in relation to the aggregate sentence for the nine Commonwealth offences. I propose to do so after I consider Grounds 2 and 3.

Grounds 2 and 3

1. [325]

   Senior Counsel for the applicant dealt with Grounds 2 and 3 together. Ground 2 initially only made complaint about the indicative sentences for the 26 offences which carried life imprisonment (sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act). It was contended that the sentencing judge erred in providing the same indicative sentences for different groups of offences and should instead have fixed different indicative sentences. It was submitted that the facts were not sufficiently similar to justify the same indicative sentence for some of those offences. A number of specific examples were provided.

2. [326]

   Sequences 254, 257, 290 and 297 (the details of which are extracted above at [113]-[116]) were the four counts of anal intercourse with Child 1. Her Honour considered them to be the most serious and assessed them as being above mid-range. Senior counsel for the applicant accepted that there were factors which tended to increase the objective seriousness of these offences including the abuse of trust and authority and the fact that the child was seven or eight years old (young but not at the top of the age range). Further, the offences were committed about two years after the applicant started to abuse Child 1 by which stage the applicant had created an environment in which Child 1 was conditioned to the offending. Despite this, it was submitted that the facts for Sequence 254 were “little more than a statement of the offence elaborated only by the nature of the intercourse”. There were marginally more facts disclosed in Sequence 297 and Sequence 290 involved the applicant ejaculating into Child 1’s anus and the response from Child 1.

3. [327]

   Complaint was made that the indicative sentence for the four anal intercourse counts was the same: imprisonment for 9 years 7 months with a non-parole period of 6 years 11 months. It was submitted that this was contrary to individualised justice which requires an individualised assessment of the criminality involved in each offence: JM v R [2014] NSWCCA 297 at [39(4)].

4. [328]

   It was further submitted that the indicative sentence for Sequence 290 was manifestly excessive, as were Sequences 254, 297 and 257. It was submitted that this approach was inconsistent with her Honour’s observation that any ambiguities in the facts had been resolved in the applicant’s favour.

5. [329]

   Criticism was next made of the indicative sentences for the five instances of fellatio which involved the applicant placing his penis inside Child 1’s mouth. The objective seriousness of these offences was found by her Honour within mid-range. These were Sequences 5, 194, 208, 211 and 296 (the details of which are extracted above at [97], [98], [102], [104], [111]). It was submitted that the same indicative sentence was imposed for these five offences despite there being some differences between them. Sequences 194, 211 and 296 involved little more than a statement of the offence. Sequence 208 involved Child 1 moving his head up and down the applicant’s penis for a seemingly longer period than there was evidence in the other offences. Sequence 5 involved ejaculation and masturbation.

6. [330]

   The indicative sentence for each of these five offences was imprisonment for 8 years and 5 months with a non-parole period of 6 years and 1 month. That translates to a head sentence of 14 years with a non-parole period of about 10 years 1 month which, it was submitted, was excessive.

7. [331]

   The same submission was only faintly pressed in relation to the 10 counts of fellatio with Child 1 which involved Child 1’s penis being in the applicant’s mouth, because it was accepted that the Agreed Facts did not differentiate between these offences. Rather, complaint was made that the indicative sentences of imprisonment for 7 years 10 months with a non-parole period of 5 years 8 months was manifestly excessive.

8. [332]

   As for the offences involving digital-anal penetration of Child 1 and Child 2, it was accepted that there was some differentiation between them; the indicative sentences for Sequences 170, 202, 244 (Child 1) and 28 (Child 2) were imprisonment for 7 years 10 months with a non-parole period of 5 years 8 months, while the indicative sentences for Sequences 191, 294 and 171 (Child 1) were imprisonment for 7 years 2 months with a non-parole period of 5 year 2 months. It was accepted that the higher sentences appeared to flow from where there was evidence of some response from the child (by either buttock clenching, body movement or physical or verbal resistance) in the Agreed Facts. Despite this, it was submitted that the differentiation was “limited” and that the indicative sentences were excessive.

9. [333]

   The applicant’s submissions focussed on the indicative sentences for the sexual intercourse offences, as they were the longest. It was submitted that they supported the broader submission that the indicative sentences for the State offences are generally excessive. Thus, it was submitted in oral submissions that other indicative sentences were manifestly excessive as well. This was particularly so given the partial accumulation on the aggregate sentence for the Commonwealth offences.

10. [334]

    Overall, it was accepted that the aggregate sentence imposed was for a sustained course of criminal conduct in the context of a “lack of a compelling subjective case”, apart from his post-arrest conduct warranted. Despite this, it was submitted that the aggregate State sentence and the effective total sentence does not engender a sense that full credit has been given to the 40% discount.

11. [335]

    During the hearing of the appeal, two issues arose which led to the parties being given leave to file supplementary notes. The first issue was the extent to which the generous application of the totality principle (given the sheer number of offences) was relevant to the question of manifest excess. The second issue arose when senior counsel for the applicant accepted that she had not identified in her written submissions which of the 105 indicative sentences were relied upon as being manifestly excessive.

12. [336]

    The applicant’s supplementary note was received on 21 May 2024.

13. [337]

    As for the first issue, it was submitted that totalling the indicative sentences in order to test an assertion of manifest excess in the aggregate sentence is an unnecessary and potentially distorting distraction. The applicant’s submission was that there was no utility in adding the indicative sentences (or individual sentences, if an aggregate were not set) as part of the consideration of whether an aggregate sentence (or total effective sentence) is manifestly excessive. This was said to be because the total of the indicative sentences says nothing, or at least very little, about the total criminality involved and the just and appropriate sentence: cf Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37],[39] per Bell and Keane JJ, [61]-[64] per Gageler, Nettle and Gordon JJ; see also R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]-[16].

14. [338]

    It was further submitted that in many cases totalling the indicative or individual sentences could reach a “draconian” length of time; the fact that the total of the individual or indicative sentences imposed on the applicant could be many times the applicant’s life expectancy says nothing about any assessment of criminality and the proper sentence to flow from that.

15. [339]

    It was also submitted that there could be no expected relationship between the total of the indicative sentences and the aggregate sentence imposed for them such as 25% or 50% or 75% of the total. It was submitted that in the absence of such a relationship, calculating the total of the indicative sentences could probably only be for the purpose of attempting to demonstrate to the offender that he or she received a “great outcome”. But that is no measure of the total criminality involved or the propriety of the aggregate sentence.

16. [340]

    Further, it was submitted that in any event, where non-parole periods are fixed, it is those sentences that should be added. If they were individual sentences, one would usually expect a non-parole period to be set: s 44(1), (2) cf s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW (“Sentencing Act”). Given that only non-parole periods can be accumulated: s 55(1), (2), (4), it would only be the non-parole periods that could be added, not the entire indicative sentences.

17. [341]

    As for the second issue it was submitted that the applicant contends that the following indicative sentences for the State offences are manifestly excessive:

18. [342]

    It was not submitted that the following indicative sentences were excessive:

19. [343]

    It was submitted that no error is disclosed in the fact that the sentencing judge gave the same indicative sentences for the sexual intercourse offences with Child 1 which involved anal intercourse. In relation to those four counts, the sentencing judge described each as above mid-range and indicated a sentence of 9 years 7 months with a non-parole period of 6 years 11 months. Each offence involved anal intercourse of a child well below the age of 10 years and an abuse of trust.

20. [344]

    The Crown relied upon the fact that there was minimal detail in the Agreed Facts and in those circumstances the small differences in the circumstances of the offending provides little to no basis to differentiate between the objective seriousness of the offending. The sentencing judge clearly stated that the offences involving anal intercourse were the most serious of the s 66A offences (noting that there is not always a hierarchy) and explained why the indicative sentences for these offences were longer than for the other s 66A offences involving fellatio and digital penetration. It was submitted that her Honour’s approach did not infringe the principles in JM v R, but rather exposed a process of reasoning to clearly differentiate between other kinds of sexual intercourse offending for which the applicant stood to be sentenced.

21. [345]

    It was submitted that the complaint about the failure to differentiate between the sexual intercourse offences where the applicant put his penis in the child’s mouth (Sequences 5, 194, 208, 211 and 296) should also be rejected for the same reasons. This is because the lack of detail in the description of the offences meant it was impossible to distinguish the criminality between some of them. Further, the level of detail accompanying the other offences of the child fellating the applicant is not of such qualitative difference to properly differentiate findings as to objective seriousness.

22. [346]

    It was noted that no complaint is made in relation to the lack of differentiation between the s 66A offences where the applicant fellated Child 1, because it is recognised there was a limitation in the Agreed Facts. But it was submitted that this same limitation applies with equal force to the offences about which the applicant complains there is a lack of differentiation. It was also noted that the applicant accepts that in relation to the offences of digital/anal penetration there appears to be some degree of differentiation.

23. [347]

    It was submitted that the indicative sentences are not excessive. Although the sentencing judge had a “starting point” of nearly 16 years imprisonment (with rounding) with a non-parole period of 11 years and 6 months for the anal intercourse of Child 1 when aged seven and eight (before a 40% discount is applied), this is not excessive, when considering the legislative guidepost of the maximum penalty of life imprisonment and the standard non-parole period of 15 years and finding that the offences were all above the mid-range. These offences were aggravated by the breach of trust, that they occurred in the child’s home, the age and vulnerability of the child, and the fact that the offending was filmed for the purpose of sexual gratification and later sharing and trading. Despite finding that the offences were above mid-range, the sentencing judge gave an indicative non parole period before discount which was lower than the standard non-parole period.

24. [348]

    Similarly, the indicative sentences for the acts of fellatio of 8 years 5 months with a non-parole period of 6 years 1 month (Sequences 5, 194, 208, 211 and 296) when Child 1 was aged six, seven and eight are not excessive.

25. [349]

    It was submitted that even if this Court concluded that some of the indicative sentences were at the higher end of the sentencing range or excessive, this ground of appeal is against the aggregate State sentence. The applicant’s focus on the sexual intercourse offences (which were less than a quarter of all the offences for which the applicant was to be sentenced) means that even if some of these indicatives were excessive, they did not lead to a manifestly excessive aggregate sentence.

26. [350]

    The Crown made additional submissions, some of which I have adopted in my consideration below.

27. [351]

    In response to the supplementary note filed on behalf of the applicant, it was submitted that the decision of Nguyen v The Queen, as cited by the applicant, was a consideration of totality in the context of two offences for which the appellant was sentenced which relied upon a common element and which were inextricably linked (per Bell and Keane JJ at [39]). The Crown accepted the principle at [37] of Nguyen that the sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentence such that the overall sentence was just and appropriate to the totality of the appellant’s offending behaviour.

28. [352]

    It was submitted that the totalling of all of the indicative sentences is not an irrelevant exercise as it illustrates the degree to which the totality principle was applied by the sentencing judge and the extent of notional concurrency, leading to a “telescoping” of the aggregate sentence. The exercise of adding indicative head sentences is but one mechanism to test the cogency of the applicant’s argument that manifestly excessive indicative sentences contributed to a manifestly excessive aggregate sentence.

29. [353]

    As for the 83 indicative sentences that the applicant contends were manifestly excessive, it was submitted that the applicant neither made submissions nor provided any analysis in support of those bare numbers. The Crown provided a helpful colour coded table setting out the facts, victim, offence provision, nature of offending and indicative sentence for each of the offences identified by the applicant as being manifestly excessive (or not). It is not possible to be reproduced but I shall refer to some aspects of that table in my consideration below.

Consideration

1. [354]

   Senior counsel for the applicant dealt with Grounds 2 and 3 concurrently and I propose to do the same. Although it was contended at the hearing (under Ground 2) that a significant number of the 105 indicative sentences were manifestly excessive, the ground of appeal was framed as being error in the fact that “for the most part” the sentencing judge did not differentiate the facts of the sexual intercourse offences, beyond the nature of the intercourse. In other words, it was submitted under Ground 2 both that many of the indicative sentences were manifestly excessive and that “House” error (House v The King (1936) 55 CLR 499; [1936] HCA 40) is established because out of the 105 offences, her Honour fixed the same indicative sentence for different groups of offences. I will deal with these two aspects of Ground 2 in turn.

2. [355]

   The sentencing judge imposed an aggregate sentence for the State offences pursuant to s 53A of the Sentencing Act. The relevant principles regarding the fixing of indicative sentences were summarised by R A Hulme J (Hoeben CJ at CL and Adamson J (as her Honour then was) agreeing) in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]. Some of those principles include (citations removed):

   1. (1)

      It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a “blanket assessment” by simply indicating the same sentence for a number of offences is erroneous;

   2. (2)

      Section 53A(2) is “clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges”;

   3. (3)

      One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence.

3. [356]

   The reference to the “requirements of Pearce v The Queen” in JM v R is a reference to the need when sentencing for multiple offences to create a “cascading or ‘stairway’ sentencing structure” when the principle of totality requires some accumulation of sentences. I shall discuss the relevance of the totality principle to the claim that the aggregate sentence is manifestly excessive below.

4. [357]

   The first complaint under Ground 2 is that the sentencing judge erred in that, contrary to JM v R, she failed to sufficiently distinguish between the four indicative sentences for the anal intercourse offences (and to a lesser extent some of the other groups of indicative sentences). That complaint falls for consideration in the context of how the proceedings were conducted before her Honour.

5. [358]

   An Agreed Statement of Facts signed by the applicant was tendered at the proceedings on sentence. Given the large number of offences, it is understandable that the applicant accepted that there was no necessity for those facts to contain any more detail than they did for the purposes of sentencing. It would also have been fully understood by the applicant’s legal representatives that an aggregate sentence would need to be imposed which would require her Honour to identify 114 indicative sentences, 105 of which were for the State offences.

6. [359]

   Her Honour was clearly aware of the need to assess the criminality involved in each offence individually. Her sentencing remarks reflect this. She noted at the outset that the facts for some of the offences did not go beyond a simple description of the acts which were relied upon to support each charge (in the passage of the Remarks on Sentence extracted above at [35]). As the summary of her Honour’s remarks make clear, despite this, she went through the laborious task of assessing the objective seriousness of each of the 105 State offences. She also clearly set out the basis for distinguishing between groups of offences.

7. [360]

   To the extent that complaint is made that the four anal intercourse offences were not sufficiently differentiated in the indicative sentences, that complaint is to be considered in the context that her Honour was being asked to assess the seriousness of the offending from a brief description of a 24 second video (Sequence 254), a 13 second video (Sequence 257), a 19 second video (Sequence 290) and a six second video (Sequence 297). Given that many of the aggravating features of that offence were common to these four charges when combined with the limited facts, a complaint of a failure to provide individualised justice cannot be sustained in relation to these four indicative sentences.

8. [361]

   As for the similar complaints about some of the other indicative sentences, I do not accept that the fact that the same indicative sentence was fixed for small different groups of offences all charged under the same section (s 66A) means that the applicant was deprived of individualised justice. A similar conclusion was arrived at in Turner v R [2021] NSWCCA 5, albeit in a case involving far fewer offences. One of the grounds of appeal in Turner v R contended that the sentencing judge had failed to comply with the provisions of s 53A(2) of the Sentencing Act by not assessing individually the criminality involved in the offences. Reliance was placed on the fact that offences contrary to a particular provision all had the same indicative sentence fixed. In dismissing that ground, Garling J (with whom Payne JA and Davies J agreed) observed at [59] that the mere fact that the same indicative sentence is fixed for multiple offences does not of itself and without more indicate an impermissible approach to determining the objective seriousness of the offence and that “[t]his is particularly so in circumstances where…each of the offences were contrary to the same section of the Crimes Act and each was committed during a single sustained course of offending over a lengthy period of time”.

9. [362]

   It was common ground that the sentencing judge faced a difficult sentencing task given the very large number of offences. Despite the magnitude of the process, her Honour grouped the offences for the same type of offending together to make an appropriate assessment of the objective seriousness noting that there was some variation within that range. Her Honour then went about the task of providing indicative sentences for all of the 105 offences. There was little to differentiate between the facts for some of the offences given the constraints of the Agreed Facts and given the repetitive nature of the conduct. This difficulty was acknowledged by her Honour.

10. [363]

    Taking the s 66A offences by way of example, of the 26 offences under that section her Honour did not simply fix the same indicative sentence for all of them. Rather, she distinguished them and fixed different indicatives where she considered it appropriate given the limitations of the brief facts she was provided with.

11. [364]

    For sequences 170, 202 and 244, (digital/anal intercourse with Child 1) she fixed indicative sentences of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months.

12. [365]

    Although it is to be accepted that her Honour did not fix 105 different indicative sentences, that fact does not mean that she erred by making a “blanket assessment” of the offences. Although it may have been an error had her Honour fixed the same indicative sentence for every offence, what she did was a long way from that.

13. [366]

    This aspect of Ground 2 is not established.

14. [367]

    Before turning to the second part of Ground 2, which is connected with Ground 3, I note in passing that the first part of Ground 2 alleged a failure to apply individualised justice in relation to the 105 separate offences. It was not framed as a complaint that “a significant portion of the substructure upon which the aggregate sentence is based is faulty”: AJ v R [2023] NSWCCA 158 at [37]. The recent decisions of RA v R [2024] NSWCCA 149, KS v R [2024] NSWCCA 147 and PN v R [2024] NSWCCA 86 have all considered the question of whether latent error in an indicative sentence can establish error in an aggregate sentence in the absence of a corresponding ground of appeal that the aggregate sentence is manifestly excessive (as in this case). In KS v R, the court (Adamson and Stern JA, Wright J) observed the following at [74] (after reviewing the relevant authorities):

15. [368]

    Although the court in RA v R (Adamson JA, Wilson and Dhanji JJ) unanimously dismissed the appeal, Wilson J and Dhanji J reached different conclusions as to whether latent error in an indicative sentence alone warrants the intervention of an appellate court to re-sentence an offender (putting to one side any suggestion that the aggregate sentence is manifestly excessive). Although Wilson J arrived at the same conclusion as the court did in KS v R, Dhanji J arrived at a different conclusion. After considering the respective arguments at [124]-[136], his Honour observed the following at [134]:

16. [369]

    His Honour went on observe the following at [136]:

17. [370]

    Given that it was conceded on behalf of the applicant that the real complaint is that the aggregate sentence is manifestly excessive and that Ground 2 is merely relied upon to provide a possible explanation for that, I do not consider it necessary to resolve this issue given the manner in which the ground was argued.

18. [371]

    I turn then to consider the second aspect of Ground 2: whether some of the indicative sentences were manifestly excessive such as to suggest that the aggregate sentence is manifestly excessive.

19. [372]

    To succeed in a ground of appeal contending that a sentence (or, as in this case, an aggregate sentence) is manifestly excessive, an applicant must establish that the sentence is “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. The relevant principles were summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

20. [373]

    The relevant principles applicable to a ground of appeal contending that an aggregate sentence is manifestly excessive were also summarised by R A Hulme J in JM v R at [40] and include the following (citations removed):

    1. (1)

       The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence;

    2. (2)

       Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive;

    3. (3)

       A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved; and

    4. (4)

       This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.

21. [374]

    Although it was ultimately submitted that 83 of the 105 State offences had an indicative sentence which was manifestly excessive, the focus of the submissions at the hearing was on the sexual intercourse offences and in particular the four s 66A offences which involved penile/anal intercourse. The indicative sentence for these four counts was 9 years 7 months imprisonment with a non-parole period of 6 years and 11 months. It was submitted that support for the contention that these indicative sentences were too high is demonstrated when it is considered that the “starting point” (prior to the 40% discount) was nearly 16 years imprisonment (with rounding) with a non-parole period of 11 years and 6 months.

22. [375]

    I am not satisfied that indicative sentences of 9 years 7 months imprisonment with a non-parole period of 6 years and 11 months for penile/anal intercourse with the applicant’s stepson is manifestly excessive given that the maximum penalty of life imprisonment, the standard non parole period of 15 years imprisonment, the finding of objective seriousness of “above the mid-range” (of which no complaint is made) and the applicant’s subjective case which was, as was conceded during oral argument, not particularly strong. Further, the “starting point” non-parole period was well below the SNPP.

23. [376]

    During the hearing of this application, it was submitted that the applicant did not need to prove that the indicative sentences were manifestly excessive “because that was not a test being applied to the indicatives” and that it only needed to be established that they were “too high”. [7] It was also submitted that the claim that some of the indicative sentences were excessive did not require identification of which ones these were. [8] It is to be accepted that the appeal is against the aggregate sentence and not the indicative sentences; the ultimate question is whether the aggregate sentence is manifestly excessive. But it seems to me that simply demonstrating that many of the indicative sentences were “too high” cannot be looked at in isolation before the application of the totality principle.

24. [377]

    By way of example, if an offender were sentenced for 20 offences to an aggregate term of 10 years imprisonment and each of the 20 indicative sentences ranged from 7 to 9 years imprisonment, the fact that some of them may have been “too high” says nothing about whether the aggregate sentence is manifestly excessive given the significant notional accumulation.

25. [378]

    Given that many of the aggravating features were common to each count, my conclusion that the indicative sentences for the most serious offences are not manifestly inadequate flows on to my findings that the remaining indicative sentences are not manifestly excessive either. I do not propose to repeat the serious aspects of the applicant’s offending. I have already set it out in some detail. Having regard to the guideposts of the maximum penalties and SNPPs in the context of the facts and her Honour’s findings, I am not satisfied that any of those sentences are unreasonable and plainly unjust.

26. [379]

    Even if I were satisfied that some of the indicative sentences were “too high” or even “manifestly excessive”, as JM v R and the numerous cases which have followed it establish, that does not mean necessarily that the aggregate sentence is manifestly excessive. That is due to the proper application of the totality principle, which applies to indicative sentences: JM v R at [41].

27. [380]

    The sentencing judge was required to consider questions of notional accumulation and concurrence: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan J confirmed (at [45]) that “[a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

28. [381]

    This Court considered the totality principle in R v MAK; R v MSK in the context of offenders who had committed multiple sexual assaults in company on more than one victim. The court (Spigelman CJ, Whealy and Howie JJ) observed (at [15]) that when a court is sentencing an offender for multiple offences, including when there are different victims, it is necessary to ensure that the aggregation of all of the sentences is a “just and appropriate measure of the total criminality involved”. The court went on to observe that an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences needs to be maintained for at least two reasons. The first of these reasons is that the severity of a sentence is not simply the product of a linear relationship. The court then went on to observe the following at [17]-[18]:

29. [382]

    These two passages highlight the tension in applying the totality principle when there has been such extensive offending over years with different victims as in the present case. The aggregate sentence had to reflect very significant criminality. In applying the totality principle, the sentencing judge was required to impose a sentence that did not suggest that the applicant was being offered some kind of a discount for multiple offending.

30. [383]

    It is unsurprising that the submissions in support of Ground 3 focussed on the length of the indicative sentences rather than a complaint about any misapplication of the totality principle. The aggregate sentence of 27 years with a non-parole period of 19 years was imposed for 105 offences, 26 of which carried a maximum penalty of life imprisonment.

31. [384]

    During the hearing of the appeal, it was observed that the total of the indicative sentences was 443 years and 11 months. I accept the applicant’s submission that this is a total of what is effectively the head sentences. But her Honour specified a non-parole period for each of the 105 indicative sentences (even though she was not required to). If all of the non-parole periods are added together the total amounts to 324 years and 10 months.

32. [385]

    It is to be accepted that there are limitations inherent in adopting an arithmetic approach to ascertaining the degree of notional concurrence in an aggregate sentence for so many offences. Despite this, I do not consider the applicant’s submission that there is no utility in adding the indicative sentences together to highlight the very considerable degree of notional concurrence the applicant received in the aggregate sentence. I note that the same exercise was undertaken in GG v R [2023] NSWCCA 102 at [90] in assessing a complaint of manifest excess which included a complaint about the lack of notional concurrence in an aggregate sentence.

33. [386]

    In considering whether the aggregate sentence of 27 years with a non-parole period of 19 years is manifestly excessive, I have had regard to the number and nature of the 105 offences. Of those offences, 26 involved sexual intercourse with a child under 10 years of age which carried a maximum penalty of life imprisonment. Those offences contrary to s 66A involved anal/penile intercourse, fellatio, and digital/anal penetration. The offences were committed over a three-year period on a child in his care.

34. [387]

    The aggregate sentence also needed to comprehend 24 counts of sexual touching of Child 1 under 10 years, contrary to s 66DA(a) which carries a maximum of 16 years and a standard non-parole period of 8 years. Those offences involved masturbating and ejaculating on the child, and various other kinds of touching which were recorded, plus the additional offending for similar matters taken into account by way of the numerous Form 1s. The aggregate sentence also needed to take into account the aggravated indecent assault offences against Child 1, which also carried a maximum of 10 years and standard non parole period of 8 years and where additional offending was reflected in the Form 1 matters.

35. [388]

    In addition to the multiple offending against Child 1, the aggregate sentence also needed to reflect the 10 offences of sexual touching contrary to s 66DA committed against Child 2 as well as the additional sexual offending against Child 3, Child 4, Child 5 and Child 6. As for Child 7, he was only two years old. The sexual act directed towards him contrary to s 66DC carried a maximum penalty of 7 years.

36. [389]

    The applicant’s subjective case was limited to one of remorse and post offence conduct such as to warrant a discount of 40%. Otherwise, he had guarded prospects of rehabilitation and there was no basis to reduce his moral culpability. Deterrence needed to be given significant weight in the sentencing exercise.

37. [390]

    The applicant’s offending was prolific, repetitive and involved an abuse of the trust placed in him by Child 1’s mother and the parents of six other children. There have been numerous statements by this Court of the need for significant custodial sentences for offences of this nature. In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, Beech Jones CJ at CL (with whom Garling and Yehia JJ agreed) allowed a Crown appeal against the manifest inadequacy of an aggregate sentence imposed for sexual offences on the applicant’s young stepson. His Honour reviewed a number of decisions considering sentences imposed for offences contrary to ss 66A, 66C and 61J of the Crimes Act and noted the following at [50]:

38. [391]

    Although it was submitted on behalf of the applicant that this decision was of little assistance given it only concerned one s 66A offence, I am satisfied that the statement of principle is apposite.

39. [392]

    In Dinsdale v The Queen Gleeson CJ and Hayne J described a finding of manifest excess (at [6]) as a “conclusion”. I have considered the applicant’s principal submission that an aggregate sentence of 27 years imprisonment (partially accumulated on an aggregate sentence for the Commonwealth sentences such that the effective aggregate head sentence is 30 years with a non-parole period of 22 years) following a discount of 40% suggests a starting point that is manifestly excessive. There is no doubt that this is a stern sentence, but I am not persuaded that it is unreasonable or plainly unjust given the significant criminality for which the applicant stood to be sentenced.

40. [393]

    I would dismiss Grounds 2 and 3.

Re-sentence for Commonwealth offences

1. [394]

   It is necessary to re-sentence the applicant for the nine Commonwealth offences given the conceded error in Ground 1.

2. [395]

   In the event of re-sentence, the applicant relied on an affidavit of Sarah Hedberg affirmed 24 April 2024. It was read, subject to two objections conceded by the applicant. The affidavit detailed that whilst in custody Mr Harden has undertaken a number of courses including Health Survival Tips, Skills Check, a mandatory safety course, Entrepreneur and New Business Certificate III and Positive Lifestyles Programs for Individuals.

3. [396]

   The applicant’s case notes demonstrate that he has also been attending church and before his recent transfer to Mid-North Coast Correctional Centre he had been employed in various positions with “positive reports” regarding his performance. Case notes throughout his time in custody record that he is well-behaved and polite. He has been subject to a number of lock-ins due to sickness and staff shortages. He has also been the target of a number of attacks by fellow inmates, the most recent of which resulted in his relocation from Junee Correctional Centre in late 2023.

4. [397]

   It was submitted on behalf of the applicant that this Court would impose a lesser aggregate sentence in relation to the Commonwealth offences. Additionally, this Court would allow greater concurrence with the aggregate sentence for the State offences because to do otherwise would mean that reducing the Commonwealth aggregate sentence would make no difference. It was submitted there were three reasons why a lesser sentence is warranted.

5. [398]

   First, there should be recognition of the lower maximum penalty for five of the nine offences. The other four offences all have a maximum of 15 years imprisonment. Secondly, the 40% discount that is appropriate should have a real noticeable effect on the sentence imposed otherwise it loses its utilitarian value. Thirdly, the contents of the recent affidavit were relied upon. It was submitted that the recent affidavit evidence bears out the sentencing judge’s reasonable assumptions about the treatment that the applicant might experience in custody given the nature of his offending.

6. [399]

   Finally, it was submitted that the court would have regard to the material in Annexure B relevant to the 40% discount. Although the court was not invited to review the amount of the discount, it was submitted that the documentation speaks more favourably of the applicant than a mere arithmetical acceptance of the 40% discount.

7. [400]

   The Crown disputed that the affidavit on resentence demonstrated that the applicant was in a markedly different position from that in which he was at the time of sentencing in 2022 on the bases that his prospects of rehabilitation have not improved, and the sentencing judge knew that he would be placed in SMAP as is common with offenders of this nature.

8. [401]

   It was submitted that a reduction of the indicative sentences for the s 424.24A(1) offences does not necessarily result in an overall reduction of the aggregate sentence when applying the principle of totality: Haines v R [2021] NSWCCA 149. Detailed submissions were provided in support of the Crown’s submission that, despite the error in the maximum penalty, no lesser sentence is warranted.

9. [402]

   The applicant did not challenge the findings made by the sentencing judge and I propose to resentence the applicant on the basis of the unchallenged factual findings made by the sentencing judge: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9]). The additional material showed that the applicant has been of good behaviour in custody and is not a management issue.

10. [403]

    I have set out some of the facts above. When he was arrested, the applicant was in possession of thousands of items of child abuse material, was producing child abuse material, advertising such material across multiple platforms, and transmitting this material on a regular basis to trade it with others, who urged the applicant to offend against Child 1. In return, the applicant sought and received humiliating and degrading content. I accept the Crown submission that the applicant’s conduct supported and expanded the trade of child exploitation material including the exploitation of Child 1, 2, 3, 5, and 7.

11. [404]

    Turning first to the five offences of transmitting CAM using a carriage service in circumstances of aggravation: Sequences 10, 309, 310, 317 and 321. They all carry maximum penalties of 25 years imprisonment. Her Honour assessed them all as being below mid-range.

12. [405]

    Sequence 10 involved the transmission on 229 occasions over 38 days of child sexual abuse material containing images of Child 1. Sequence 181 (under the same offence provision) was taken into account in relation to Sequence 10. It took place just under a period of two years over 38 separate days and pertained to 229 transmissions of CAM in relation to Child 1.

13. [406]

    Sequence 309 was the same offence in relation to Child 2. It occurred over a three-month period and involved 30 transmissions.

14. [407]

    Sequence 310 was the same offence in relation to Child 5 and pertained to a two-month period with 15 transmissions.

15. [408]

    In relation to Sequence 317 (Child 5), there were only two days separated by about six months and only 14 transmissions. There were no transmission offences in relation to Child 6.

16. [409]

    In relation to sequence 321 (Child 7), there were three transmissions on one day.

17. [410]

    The remaining four offences all carried maximum penalty of 15 years imprisonment: Sequences 314, 2, 3 and 9.

18. [411]

    Sequence 314 (transmitting CAM using a carriage service) pertained to Child 5. It was only on one day and involved four images. It was assessed as below mid-range.

19. [412]

    Sequence 2 (possessing CAM obtained using a carriage service) related to the CAM located on the Galaxy S9 in a PIN-protected folder named “Secure Folder” which contained CAM images and videos. Part of this material had been self-produced by the applicant and was Category 1 material depicting the seven known child victims, the majority of which was geotagged as having been created at the applicant’s premises. The folder named “Secure Folder” also contained CAM of other non-identified but real children. A total of 3,348 images and videos were located on the Samsung S9 all of which formed the basis of the Sequence 2 offence. Sequence 1 contained the CAM located on the Apple iPhone: 177 CAM images and videos which the applicant had downloaded using the internet, the majority of which were Category 1: s 474.22A(1) taken into account when sentencing him for the Sequence 2. Her Honour found Sequence 2 was within the mid-range.

20. [413]

    Sequence 3 (advertising CAM using a carriage service) relates to the applicant’s conduct between 5 April 2019 and 5 May 2020 of advertising his possession of CAM using a carriage service. He posted over 100 advertisements as described above at [235]. Her Honour found the objective seriousness to be within mid-range. In advertising to others, the applicant demonstrated the degree to which he was prepared to share this material with others but only after receiving images from them.

21. [414]

    Sequence 9 relates to the applicant’s conduct between 16 November 2017 and 8 May 2020 of sending CAM he had made of Child 1 and to a lesser extent Child 3 and receiving CAM of real but unidentified children in exchange. The largest portion of CAM the applicant received and accessed was contained in links – the offending sharing 180 links between himself and one person alone. The exchange with other users is very disturbing and is extracted above at [242]-[263]. Her Honour assessed this as within the mid-range.

22. [415]

    Although I accept the Crown submission that the indicative sentences for these four offences would play a lesser role in the determination of the overall aggregate sentence, Sequence 9 in particular warranted a significant indicative sentence.

23. [416]

    I have considered the principles in relation to sentencing for such offences as set out in R v Porte. I have also had regard to the decisions in Bisiker v R [2022] NSWCCA 110 and Lyons v R [2017] NSWCCA 204. Whilst acknowledging the limitation of statistics, the Crown relied on a review of the statistics for the s 474.24A(1) offence committed before 23 June 2020 which showed that for the four offenders, they all received terms of imprisonment, with the aggregate term being 2 years, 4 years, 5 years and 6 years.

24. [417]

    The possession and distribution of images of sexual abuse, torture and humiliation of very young children, including toddlers and babies constitutes serious offending. I accept the Crown submission that the Agreed Facts reflect that the applicant was seeking out more extreme content from those with whom he traded.

25. [418]

    Although there is some overlap between the Commonwealth offending, the offences are aimed at different aspects: possession, transmission and advertising of CAM over the internet and telecommunications.

26. [419]

    I have also considered the degree of overlap in criminality between the State and Commonwealth offences. Of the 105 offences, 94 were child sexual assault offences. Only 11 of those 105 offences related to CAM. They were the 11 offences of using a child under the age of 14 years for the production of CAM contrary to s 91G(1) with the maximum penalty of 14 years imprisonment and a SNPP of 6 years imprisonment.

27. [420]

    I note in passing that, although I have previously queried the practice of imposing an aggregate sentence under s 53A of the Sentencing Act for Commonwealth offences (Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 and Tenenboim v R [2024] NSWCCA 1), the decision in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 is still routinely followed and I propose to do so in this matter.

28. [421]

    Despite the fact that her Honour proceeded on the basis that the maximum penalty for the five aggravated offences was 30 years, she imposed very low indicative sentences for those offences even having regard to her finding of below mid-range of objective seriousness. The indicative sentences I would arrive at, applying the lower maximum penalty, are slightly higher than those indicated by her Honour. The indicative sentences I have arrived at for Sequences 2 and 9 are also slightly higher and the remaining indicative sentences are the same. Applying the totality principle, I have arrived at an aggregate sentence which is slightly higher than that imposed by her Honour.

29. [422]

    As I observed in RO v R [2019] NSWCCA 183 at [119], the usual practice of this Court is that, after hearing oral submissions, the decision is reserved and judgment delivered at a later date. This practice renders it impractical to reconvene the court to give a “Parker” warning in the event that a conclusion is made that a higher sentence is warranted in law: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. Nor do I consider it appropriate to state what that higher aggregate sentence was for the reasons explained in RO v R at [123].

30. [423]

    Despite the fact that I would not arrive at a lesser aggregate sentence for the Commonwealth matters than imposed by her Honour, in re-sentencing the applicant I am required to consider the totality principle given the aggregate sentence for the State offences. Having regard to the overlap in criminality, I would commence the aggregate sentence for the State offences six months earlier than her Honour did to allow some further concurrence.

ORDERS

1. [424]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Allow the appeal in part.

   3. (3)

      The aggregate sentence imposed for the nine Commonwealth offences (with two additional offences on a s 16BA schedule) is confirmed (commencing on 8 May 2020 and expiring on 7 November 2025).

   4. (4)

      The aggregate sentence imposed for the 105 State offences (with the 63 additional offences on a Form 1) of imprisonment of 27 years is varied to commence on 8 November 2022 and expire on 7 November 2049 with a non-parole period of 19 years to commence on 8 November 2022 and expire on 7 November 2041.

   5. (5)

      The total effective sentence of imprisonment is 29 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2049 with a non-parole period of 21 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2041.

   6. (6)

      The earliest date the offender will be eligible for release to parole is 7 November 2041.