THE KING v PO FINN NATHAN HAMMER 13 MAY 2025
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr Hammer has pleaded guilty to one count of possession of child abuse material obtained or accessed by using a carriage service, contrary to s 474.22A of the Criminal Code (Cth) “the Code”. The particulars of the charge are that:- “On 14 December 2023 at Moonah in the State of Tasmania [Mr Hammer] possessed or controlled material being child abuse material in the form of data held in a computer or contained in a data storage device and [he] obtained the material using a carriage service contrary to s 474.22A of [the Code].”
The background to the offending is as follows. In November 2023, Australian Federal Police members received a notification from the National Centre for Missing and Exploited Children concerning the upload by Mr Hammer of child abuse material to the Adobe Systems Incorporated platform. On 14 December 2023, members of the Tasmanian Joint Anti Child Exploitation Team executed a search warrant at Mr Hammer’s residence in Moonah, where Mr Hammer lives with his parents.
During the search of the premises, police seized a MacBook laptop containing child abuse material. From January 2024 to April 2024, Australian Federal Police members reviewed the laptop and located child abuse material saved and stored on it. They observed that videos had been downloaded to the device on 8 December 2023. There are total of 212 images comprising child abuse material saved on the device. These include sexualised images of pre-pubescent females, aged 6 to 13 years old.
Two particular serious examples were as follows. First, a 35 second video depicting a female victim, aged about 8 to 10 years old, lying naked on a couch, being forcefully penetrated in the anus by an adult male. Second, a 33 second video depicting two victim female naked children, aged approximately 8 to 10 years of age. One victim female child is performing oral sex on the other.
Investigating police observed that Mr Hammer’s child abuse material was a mixture of images and videos. The child abuse material contained images and videos of erotically posed animated children and actual victim pre-pubescent female children, ranging from 3 to 12 years of age, clearly displaying their breasts, vaginas and anuses, as well as videos with anal, vaginal and oral rape victim pre-pubescent females. Mr Hammer’s web bookmarks on his MacBook Pro contained a range of pornography sites.
When interviewed by police, Mr Hammer admitted ownership of the laptop and of a Samsung mobile phone. He admitted to accessing child abuse material on his phone. He said that he usually saves child abuse material to a folder on his laptop. He acknowledged that it was wrong to do so.
Mr Hammer told police that he is sexually attracted by material which depicts naked females, aged about 12 years old, exploring their bodies. Mr Hammer has reported to authorities others who have used child abuse material online. However, but for the police intervention, Mr Hammer would have continued to download child abuse material, while also reporting others for doing the same.
Although the conduct in question, the subject of the charge, related to one single day, it is not in dispute that it was conduct which constituted part of a course of conduct that Mr Hammer had been engaging in for some time. It was also conduct that he would have persisted to engage in had he not been discovered by the authorities engaging in such conduct.
The offence with which Mr Hammer has been charged in relation to which he has pleaded guilty, is an extremely serious one. An indication of its seriousness is that it carries a maximum penalty of imprisonment of 15 years. The applicable sentencing principles for offences of this kind are well established and not in dispute. The primary sentencing goal is one of general deterrence in order to protect children from being sexually abused. The accessing and possessing of child abuse material creates and supports an insidious industry in distribution of child abuse material. The industry would not exist if children were not used in it to be sexually abused in order to supply the market with material of this type. Child victims suffer terrible abuse in the production of such material, and then later have to carry with them the knowledge that the abuse is being potentially viewed indefinitely worldwide by depraved individuals and paedophiles, resulting in their continued degradation. Consequently, denunciation and vindication of victims of child abuse are relevant matters in the exercise of the sentencing discretion. They are very important matters because a society that cannot protect its children is a society that is failing.
Although the particular charge, as indicated above, relates to one particular day, Mr Hammer admitted to the police at his interview with them that he accessed child abuse material on a daily basis.
Mr Hammer is 24 years old, but shows signs of being developmentally at a lower age. He was 15 to 23 years of age at the time of his accessing child abuse material. He has no prior convictions of any sort. He is currently undertaking a computer science course at a tertiary institution. He lives at home with his parents, who are extremely supportive.
In March 2024, a psychologist diagnosed Mr Hammer with Autism Spectrum Disorder (“ASD”). This diagnosis occurred after Mr Hammer was charged by police. Mr Hammer had been aware that he had ASD traits that had never formally been diagnosed. Since being diagnosed, he has attended therapy to assist him to understand social cues, and to improve his social skills. However, he continues having difficulty reading social cues and understanding how to behave in social situations. He often becomes distracted when talking with people, which makes him anxious.
Another psychologist who consulted with Mr Hammer earlier this year, noted him to be very open and honest in regard to his psychological concerns (depression and anxiety) and his sexualised behaviours, and that he had proactively been avoiding any activities that might place him at risk of returning to accessing child abuse material. Mr Hammer has been referred by that psychologist to the Ferrari Consulting Group, Forensic Psychological Practice in Melbourne for tele-health appointments to continue to assist him.
In addition to suffering from ASD, Mr Hammer has experienced symptoms of depression and anxiety since he was around 15 years of age.
Dr Jennifer Wright has provided a report, dated 16 March 2025, in relation to Mr Hammer. In that report, Dr Wright considered Mr Hammer’s clinical presentation, history and the offence to which he has pleaded guilty, in relation to the principles set out in the Court of Appeal judgment of the Supreme Court of Victoria of 2007, in the matter of Verdins (see R v Verdins [2007] VSCA 102). At paragraph 38 of her report, Dr Wright said as follows:
“With regard to Verdins principle one, I understand I must comment as to whether Mr Hammer was suffering from a mental condition that had the effect of; impairing his ability to exercise appropriate judgment; his ability to make calm and rational choices or to think clearly; making him disinhibited; impairing his ability to appreciate the wrongfulness of the conduct; obscuring the intent to commence the offence; or contributing (casually) to the commission of the offence. Accordingly, I have considered whether Mr Hammer’s symptoms of ASD, depression and paedophilia impaired his functioning with regard to this offence. In my opinion, Mr Hammer was more vulnerable to engage in [child exploitation material] because he experiences sexual arousal in response to pre-pubescent females. The reasons that he experiences this arousal might simply be associated with his biology, or his feeling more socially comfortable with the idea of a sexual interaction with a child as opposed to the same age peer due to the reduced feeling of social threat (emotional identification with children). There is no doubt that Mr Hammer has significant challenges with social interaction and engagement with other people; and this would be particularly acute in an intimate encounter. He described a number of experiences with females in his teens, especially with his first “crush”, that led him to believe that he was “out of his depth” in terms of initiation of an intimate relationship which made him withdraw from any further attempts. These difficulties are directly caused by his ASD. He has reported that he was unaware [child exploitation material] was wrong or illegal and he gradually had the realisation that this was the case prior to his arrest. I tend to believe that he did not receive, or he was not able to absorb sexual education in the school context regarding appropriate sexual behaviours and boundaries and also recognise that much of the material he was viewing, at least in the earlier period, was anime (cartoon or AI) based images and not images or videos of actual children, and perhaps this contributed to his sense of it being alright. His disclosure was that he began to view material that was more violent and disturbing and it has made him realise [child exploitation material] could not be okay, and it must not be legal. Around this time, however, he was experiencing his worst episode of depression and continued to engage with child abuse material despite knowing that it was wrong and illegal. He justified this by explaining that he was reporting the material he found anonymously. ….By the time he was arrested, I believe Mr Hammer had become aware of the wrongfulness ‘illegality’ but he had not ceased the conduct as a result of it providing some relief of some of the symptoms of his depression. As a result, his symptoms of depression impaired his ability to exercise appropriate judgment and cease the behaviour. In my opinion, his ASD and depression were causal contributors to his actions, however the most powerful causal contributor was his paedophilia.”
At paragraph 39 of Dr Wright’s report, she expressed an opinion that Mr Hammer presents a low to moderate risk of future similar offending, and extremely low risk of committing a contact sexual offence. Dr Wright also noted that Mr Hammer now appreciates the wrongfulness and illegality of his conduct. This assessment was made in the context of principle two of the Verdins principles; that is that the condition or conditions being experienced by the offender, may have a bearing on the kind of sentence that is imposed, and the conditions in which it is served.
At paragraph 40 of Dr Wright’s report, she said as follows:
“Principles three and four: Whether general deterrence should be moderated or eliminated as a sentencing consideration as a consequence of the nature and severity of the symptoms experienced by Mr Hammer; whether specific deterrence should be moderated or eliminated as a sentencing consideration; in consideration of the matters relevant to the Court’s decision about deterrence, I would offer the following. Mr Hammer is a young man, who developed mentally younger than his years. He has a neuro-developmental disorder, and his has unfortunately engaged with [child abuse material] as a result of paedophilia as a means to manage negative mood states in the face of social challenges, and coping skill deficits. He would benefit from the opportunity to engage in psychological treatment….to further reduce his risk of offending. Treatment for his major depressive disorder would be paramount in this regard. Whatever sentence Mr Hammer now receives will be a personal deterrent in the future for his behaviour.”
At paragraph 41 of Dr Wright’s report, she said as follows:
“Principles five and six: the existence of the condition at the date of sentencing may mean that the given sentence will weigh more heavily on the defendant than it would of a person of normal health; whether there is a serious risk of imprisonment having a serious adverse effect on the person’s mental health. In my view as a result of his ASD and major depressive disorder, Mr Hammer would experience imprisonment as highly aversive, and in my opinion he would not cope well with it. He would be extremely vulnerable in a custodial setting as a result of his ASD, and associated developmental delays. He would likely to be targeted by others due to his vulnerability; and he would also be likely to experience severe depressive symptoms and suicidal ideation.”
Section 16A of the Crimes Act (Cth) (“the Act”) requires the imposition of a sentence in the current circumstances which is of a severity appropriate to the offending, having regard to the requirements of s 16(2)(k) of the Act that the offender be adequately punished for the offending.
Under s 17A(1) of the Act, the Court may only impose a sentence of imprisonment if, after considering other available sentences, it is satisfied that imprisonment is the only available sentence. A sentence of a term of immediate imprisonment is ordinarily appropriate for offending involving child abuse material. The maximum penalty of 15 years’ imprisonment is a strong indication that Parliament views this offending as extremely serious. There is no doubt that the community also views it as extremely serious, as indicated by the comments above regarding this pernicious industry that is fuelled by offenders of this sort.
Under s 20(1)(b)(iii) of the Act, the Court is not empowered to order a condition or release of an offender in respect of child sex offences without imposing an actual term of imprisonment, unless satisfied that exceptional circumstances exist.
This case did not involve a fleeting example of access to material of this sort. There are 212 images and six videos of child abuse material discovered on Mr Hammer’s laptop by police. As the opinion of Dr Wright indicates, ultimately at the time of the offending, and perhaps some time beforehand, Mr Hammer knew what he was doing was wrong. General deterrence, denunciation of the conduct involved in the offending, and vindication of the victims, are all considerably important in sentencing of matters of this sort. Specific deterrence is also important in this case, given Mr Hammer’s admitted sexual attraction to female children.
Mr Hammer co-operated with police and entered a guilty plea at the earliest opportunity. However, the pleas were entered in circumstances where the prosecution case was very strong. Nonetheless, Mr Hammer is entitled to the utilitarian benefit of his guilty plea which potentially saved a complicated trial.
As Dr Wright’s report suggests, Mr Hammer has reasonable prospects of rehabilitation. However, that factor, as well as the guilty plea, are matters of less importance in cases of this type when compared with general deterrence, denunciation and vindication of the victims. The same applies to the difficulties Mr Hammer is likely to experience with being imprisoned.
In relation to good prospects of rehabilitation, Simpson J (of the New South Wales Supreme Court, Court of Appeal) said in R v Booth [2009] NSWCCA 89 at 47, as follows:
“While I do not dissent from the importance of achieving prevention of further offences by such means, it is not the only matter to be considered. As I have made clear the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. So also, is the denunciation of those who engage in this callous and predatory crime.”
The greater the objective seriousness of an offence, the more difficult it will be to establish that the case is relevantly exceptional. That is what the New South Wales Court of Criminal Appeal stated in R v Bredal [2024] NSWCCA 75 at [69]. This is a case where the objective seriousness of an offence is on a very high scale. Therefore, the exceptional circumstances required to satisfy the Court that a term of actual imprisonment should not be imposed must be more compelling than in matters where the offending is less objectively serious. However, the court in Bredal also said that a combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional.
I am satisfied that the offending of Mr Hammer was in some way related to his Autism Spectrum Disorder and his suffering from a major depressive disorder. It also related to his paedophilia, however it would be perverse to tend to excuse behaviour that underpinned this charge on the basis that a person suffered from paedophilia.
Notwithstanding Mr Hammer did suffer from the disorders that are referred to in the report of Dr Wright, I am satisfied that none of them excused his behaviour that led to the offending the subject of the charge. Not everyone with ASD and severe depression and anxiety is involved in accessing and storing child exploitation or child abuse material. I am not satisfied that the combination of factors referred to by Dr Wright, in potential amelioration of Mr Hammer’s sentence, together demonstrate that the circumstances of the case are exceptional. I am of the view that the objective seriousness of the offence outweighs considerably any of the matters referred to in the report of Dr Wright, including Mr Hammer’s psychiatric disorders, his desire to engage in rehabilitation, and the likely difficulties he would face in prison.
The offending in this matter is far too serious to contemplate home detention as a realistic sentencing option. The conduct is, in ordinary parlance, degrading and disgusting. General deterrence, denunciation and vindication of the victims demands that a term of imprisonment be imposed. However, but for the matters relevant to Mr Hammer’s mental health, his prospects of rehabilitation and his family’s support, the term of imprisonment which the Court is about to impose would have been harsher. However, none of those matters, either taken individually or together are exceptional circumstances which warrant a non-custodial sentence.
One unusual factor about this matter is that Mr Hammer was reporting other users of child abuse or child exploitation material to police. Nonetheless, that does not detract from the seriousness of his offending.
I convict Mr Hammer of the offence to which he has pleaded guilty.
In all the circumstances, taking into account general and specific deterrence, vindication of the victims, the guilty plea, the offender’s co-operation with police, his ASD, depression and anxiety, and his lack of prior offending, as well as reasonable prospects of rehabilitation, the Court imposes a sentence of two years’ imprisonment. After 12 months’ imprisonment, Mr Hammer is to be released by the making of an order under s 20(1)(b) of the Act to be of good behaviour for a period of 12 months.
The sentence is to commence on 13 May 2025.
The Court orders the release of Mr Hammer under s 20(1)(b) of the Act after serving 12 months of the term of imprisonment upon Mr Hammer giving security by way of recognisance of $2,000 to comply with conditions that he:
- is of good behaviour for 12 months;
- is subject to the supervision of a probation officer from Community Correctional Services, appointed in accordance with this order, for a period of 12 months;
- is to obey all reasonable directions of a probation officer from Community Correctional Services;
- is not to travel outside of Tasmania without the permission of a probation officer as referred to above;
- is to undertake such treatment or rehabilitation programmes as directed by such probation officer;
- is to report to the Community Corrections Centre at 75 Liverpool Street, Hobart within two clear working days of his release from custody;
- is to report to a Community Corrections officer as directed and receive visits from such an officer or officers;
- is to report any change of address or employment to an officer at Community Corrections Centre at Hobart within two clear working days after any such change;
- is to attend for assessment and, if assessed as suitable, treatment for a sex offender programme or programmes, to reduce the risk of his reoffending, as directed by the Deputy Commissioner, Community Correctional Services and Sex Offence Management, or his or her nominee; and
- is to attend, undertake and complete the sex offender’s programme if assessed as suitable, as soon as is practical after release from custody.
In addition to the custodial orders and the order under s 20(1)(b) of the Act, it is ordered that Mr Hammer is to report to the Community Offender Registrar for the purpose of having his name placed on the Community Protection (Offender Reporting) Act. He is to comply with reporting conditions under that act for a period of two years.