The defendant, Derek Richard Mara, along with three others, made up the core members of a group that traded child sexual abuse material via Internet newsgroups. These core members were responsible for reviewing and admitting new members to the group. They served as “administrators” of the group, along with two other group members. The group’s other members – that is, those who were not part of the core group and did not serve as administrators – were known in the group “as the ‘trustworthy.’”
The members of the group did not know the true identities of other members – only the nicknames provided by the members. To avoid detection by law enforcement authorities, the nicknames of members and location of the newsgroup were frequently changed, and members altered filename extensions of child sexual abuse material to hide the true nature of what was being traded. Members of the newsgroup also used encryption, and encryption keys were regularly changed. The child sexual abuse material was traded in the newsgroup as binary files that could not be accessed without a key.
Despite being a member of a group that engaged in serious crime, the defendant was not charged with a crime associated with organized crime, such as participation in an organized criminal group. Instead, the perpetrator was charged, pleaded guilty to, and was sentenced for several offences related to the production/distribution of child pornographic material.
The defendant engaged in these crimes for his own sexual gratification and not for financial reasons. Nevertheless, financial contributions were made by some members of the group to other members when requests were made for custom order of child sexual abuse material.
The defendant was sentenced to 6 years’ imprisonment. A subsequent appeal against on the basis that the sentence was manifestly excessive was unsuccessful.
Following the arrest of the defendant, his computer was seized and forensic examination revealed over 75,000 files of child pornographic material.
District Court
The defendant pleaded guilty to and was convicted of:
(i) "use of a carriage service (the internet) to access child pornography material between 6 January 2006 and 29 February 2008;"
(ii) "use of a carriage service (the internet) to cause child pornography material to be transmitted to himself between the same dates;"
(iii) "use of a carriage service (the internet) to transmit child pornography material between the same dates;" and
(iv) "recording an indecent visual image of a child under the age of 16 years without legitimate reason between 31 December 2007 and 1 February 2008."
The defendant was sentenced to six years' imprisonment for counts 1-3 with the direction that he be released after serving 32 months, "upon his giving security by recognizance in the sum of $1,000, conditioned that he be of good behaviour for three years and subject to the supervision of a probation officer for 18 months". For count 4, the defendant was additionally sentenced to six months' imprisonment. The sentences were to be served concurrently.
Supreme Court of Queensland (Court of Appeal)
The defendant sought leave to appeal against the sentence for counts 1-3 on the grounds that it was manifestly excessive and that the sentencing judge erred in fixing the period of actual custody at 45% of the head sentence (which should have been higher).
The Court stated that "sentencing judge rightly took account of the degree of sophistication and level of skill in the use of the internet and the attendant limited risk of detection in assessing the seriousness of the offending" and found that the sentencing was not manifestly excessive.
Regarding the period of actual custody, the Court found that this is a matter within the Court’s discretion and that there were widely differing practices across the country. The Court further noted that "in so far as there is a practice of setting the period of actual custody for Commonwealth offences at 60 – 66 per cent of the head sentence, it is not confined to particular classes of offences."
The Court, therefore, dismissed the application for leave to appeal against the sentence.
Section 474.19(1) of the Criminal Code 1995 (Cth)
Using a carriage service for child pornography material (three counts)
The defendant was convicted of the use of a carriage service (the internet) to access child pornography material, to cause child pornography to be transmitted to himself, and to transmit child pornography material between 6 January 2006 and 29 February 2008.
Section 210 of the Criminal Code 1899 (QLD)
Indecent treatment of children under 16
The defendant was convicted of recording an indecent visual image of a child under the age of 16 years without legitimate reason between 31 December 2007 and 1 February 2008 contrary to s 210(1)(f) and (3) of the Criminal Code 1899 (QLD).
Supreme Court of Queensland (Court of Appeal)
Comments
In 2006, law enforcement agencies infiltrated the group and conducted an undercover operation that lasted 26 months. At the time of the investigation, there were 43 members of the group. During this period, the police collected in excess of 444,000 images and 1,100 movie/video files of child exploitation material.
Even though the defendant cooperated with investigators, the identities of other members of the group could not be determined.