A mandatory minimum jail sentence for a repeat child sex offender is to be partially suspended after a lawyer successfully argued that his client's pedophilic disorder-driven offending involved "shades of grey" of wrongness and that there were reasonable arguments why it was "perhaps a health matter".
The ACT Supreme Court on Wednesday heard that Patrick Jim Ramsay-Feeney was caught last year accessing 148 images of child abuse material of which 98 per cent depicted animated or cartoon subjects.
His criminal activity came to light after he went to an ACT Corrective Services appointment last April when a case officer saw some suspected images of children on his phone.
The device was confiscated before police went to his residence four months later with a search warrant and found another phone with more images.
Ramsay-Feeney, 34, gave police the passcode and told them no one else used it and that he knew the material was illegal.
The court previously heard he began accessing those 148 images from January 25, less than one week after being released from jail to serve a community-based order for one of three counts of the same offending in 2017-19 that involved 5370 images.
In the latest offending, Ramsay-Feeney pleaded guilty to using a carriage service for child abuse material and faced sentencing on Wednesday for the latest offending and for breaching the community-based order.
The court heard that because he has an earlier conviction for a child sexual abuse offence, he was subjected to the mandatory minimum sentence of four years.
Crown prosecutor David Jordan said that while the offender's mental status "can't be said lends itself to this sort of behaviour", he also lacked engagement with rehabilitation as part of the community-based sentence.
Mr Jordan cited a psychological report, which the court heard had not been updated since the previous occasion, that found Ramsay-Feeney to be a high-risk of re-offending.
"That's exactly what's happened," Mr Jordan said.
"He's persisted and there's no indication that any of those factors had changed."
He said "it's clear" that the offender did not believe that explicit anime and cartoon images of children were a crime.
Defence lawyer Edward Chen said that in addition to the leniency afforded to his client because of the guilty plea, which would reduce the minimum of four years to three, his client's cooperation with authorities should lead to more leniency.
"In this instance, he accessed seven pictures that actually depicted real children and the rest were fictitious," Mr Chen said.
He said that in comparing the two sets of offending, Ramsay-Feeney has "drastically reduced the consumption of this material".
"The reason it's predominately animated or virtual is because he knows it is considered quite wrong to look at real children."
Asked by Justice Michael Elkaim about the wrongness of looking at explicit images of animated children, Mr Chen said it was the degree of wrongness and that there were "shades of grey".
He said there were other countries regarded as developed, such as Germany and Finland, that does not criminalise child abuse material.
"There are reasonable arguments to be made as to why it's not a criminal matter but perhaps a health matter," he said.
As for the lack of rehabilitation previously, Mr Chen said his client did not have the professional support needed as a psychologist was appointed four months after the community-based order was imposed.
"This is a man who has had to try to help overcome his own mental illness - namely pedophilic disorder - with minimal support in the period that he's been out," he said.
Mr Chen said Ramsay-Feeney had spent nearly nine months on remand and asked for a recognisance release order after another eight months in jail.
He said the benefit would be a lengthy period of supervision in the community "where hopefully this time he can receive further support for what is ultimately regarded as a mental illness".
Both legal parties agreed that the offending was at the lower end of the objective seriousness and that the offender was not "a viable vehicle of general deterrence".
Justice Elkaim rejected the proposition that the offender should receive more leniency on his sentence for helping authorities and disagreed that no further action should be taken in relation to the community-order breach.
"To take no further action would be effectively condone the original criminal conduct," he said.
Justice Elkaim said "the non-live images depict scenes that totally contradict any normal description of childhood and offend the moral senses of any reasonable person".
He sentenced Ramsay-Feeney to nine months jail for breaching the community-based order and three years for the 2021 offence, with both backdated to last August when he was taken into custody.
A recognisance release order will then follow with him to be released in December when he will be subjected to the supervision of a probation officer.
The court heard that such an order could not be made if the aggregate sentence was more than three years, which then would need a non-parole period.
