Former NRL star Brett Finch, who played professional rugby league for the Canberra Raiders, Sydney Roosters, Parramatta Eels and also represented New South Wales in the State of Origin, has been sentenced to a recognizance release order for sending messages about child sexual abuse on a phone chat service.

Using a carriage service to publish or transmit child abuse material

Mr Finch was arrested in Sydney in 2021 and pleaded guilty to one count of using a carriage service to transmit or publish child abuse material.

Due to the seriousness of the offence, the Office of the Director of Prosecutions (ODPP) elected to have the matter referred from the Local Court to the District Court.

During the sentencing proceedings in Sydney's Downing Centre District Court, Judge Phillip Mahoney heard that Mr Finch used a service called FastMeet through which he described sexual fantasies about young boys.

The court further heard the former star used the service to purchase cocaine and, while doing so, was able to connect with "hypersexualised" users who had access to drugs.

The court also heard that following his retirement from NRL in 2013, Mr Finch "found himself adrift" as a result of no longer having the structure and routine around playing professional sport and had struggled with drug addiction.

"Highly depraved and sexualised"

The charges to which Mr Finch plead guilty related to seven short messages Mr Finch left on the service, which His Honour described as "highly depraved and sexualised".

The Judge accepted Mr Finch's explanation regarding his use of the service, including that he did not join to engage in the conduct for which he pleaded guilty, and that he was genuinely remorseful for his conduct.

He further accepted that Mr Finch left the messages at a time when he was heavily addicted to cocaine – and that he left the chat service in 2021 when someone replied to him offering to meet and engage in actual child sex abuse, which made him feel "sick."

Judge Mahony also took into account Finch's contribution to the community in the form of charity work, and adverse impact of the media commentary around the case, which perhaps caused readers to mistakenly believe Mr Finch was a paedophile, which was a consequence of the language used in the offending.

'Exceptional circumstances'

The judge concluded there were exceptional circumstances in the case which made it appropriate to impose a sentence other than full time imprisonment.

He therefore ordered Mr Finch to serve a two-year sentence in the community under a recognizance release order containing several specific conditions, including that he continue to be treated by a psychologist.

The former NRL player had a conviction recorded against his name and warned that if he reoffends over the next two years, he could be brought back before the court and sent to prison.

The offence of using a carriage service for child abuse material

Using a carriage service for child abuse material is an offence under section 474.22 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

As it is a Commonwealth offence, it applies throughout Australia.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. The defendant accessed material, caused material to be transmitted to him or her, or transmitted, made available, published, distributed, advertised, promoted or solicited material,
  2. The defendant did so by use of a carriage service, and
  3. The material was child abuse material.

What is a 'carriage service'?

A 'carriage service' is: 'a service for carrying communications by means of guided and/or unguided electromagnetic energy', which includes telephone calls, text messages and internet transmissions.

What is 'material'?

'Material' includes material of any form, or combination of forms, capable of constituting a communication.

What is the definition of 'child abuse material' under the Criminal Code Act?

The Criminal Code Act 1995 defines 'child abuse material' as that which depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

  1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
  2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

A person who is, or is implied to be, under 18 years of age and who is:

  1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
  2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

  1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
  2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

  1. A person who is, or appears to be, under 18 years of age, or
  2. Part of the body of such a person.

Statutory defences to child abuse material charges

Under the legislation, the defendant must be found not guilty of the offence if he or she establishes 'on the balance of probabilities' that the conduct:

  1. Was of public interest, and
  2. Did not extend beyond that interest.

The conduct can only be of public interest if, and only if, it was necessary for or of assistance in:

  1. Enforcing a law of the Commonwealth, a State or a Territory,
  2. Monitoring compliance with, or investigating a contravention of, such a law
  3. The administration of justice, or
  4. Conducting scientific, medical or educational research approved in writing by the AFP Minister.

The defendant's motives are irrelevant for determining whether the conduct was of public interest.

Defences for certain persons acting in the course of their duties

A defendant is also not criminally responsible if he or she was:

  1. A law enforcement officer, or an intelligence or security officer acting in the course of his or her duties, and it was reasonable in the circumstances for the purpose of performing those duties,
  2. Assisting the eSafety Commissioner to perform his or her functions under the Online Safety Act 2021, or
  3. Manufacturing, developing or updating content filtering technology in accordance with an industry code or standard.

Attempts

The defendant cannot be found guilty if he or she attempts but fail to commit the offence.

Legal defences

General legal defence such as duress and necessity can also defeat child abuse material charges.

If the defendant raises evidence of such a defence, the prosecution must then disprove the defence beyond reasonable doubt.

If the prosecution is unable to do so, the defendant must be found not guilty.

What is a recognizance release order?

Section 20(1)(b) of the Crimes Act 1914 (Cth) allows a person who is sentenced to imprisonment for a Commonwealth offence to avoid going to prison for all or part of the term of the sentence conditional upon entry into a good behaviour bond for up to a period of 5 years.

This is known as a 'recognizance release order'.

There are two broad types of recognizance release orders:

  1. Where a defendant is immediately released into the community conditional upon entering a bond, or
  2. Where a defendant with a prison sentence of 3 years or less is released from custody after serving a specified period of the time in prison, conditional upon entering a bond for the remainder of the time.

Conditions that come with the recognizance release orders include being of 'good behaviour' – which means not committing any criminal offences for the duration of the order – agreeing to pay a sum of money if the order is breached.

There can be a number of additional conditions, which may include:

  • Undertaking mental health support or treatment, such as counselling,
  • Complying with supervision by community corrections, and/or
  • Paying a monetary order such restitution, reparations or compensation for the damage caused by the offence.

Breaching a recognizance release order can result in a person being called back before the court and dealt with for the breach, in which case the court may:

  • Take no action for the breach,
  • Extend the period of complying with conditions of the order, or
  • Revoking the order and imposing an alternative sentence, which may include full time imprisonment.

A recognizance release order is not available for certain offences including terrorism, treachery, espionage and treason.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.