Cairncross v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0004

ROBERT ALEXANDER CAIRNCROSS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2025
DATE OF JUDGMENT:	27 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 117
JUDGMENT APPEALED FROM:	[2023] VCC 2355 (Judge Manova)

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of 11 online child sex offences including transmission and solicitation of child abuse material – Some victims aged 16 or 17 years – Whether children aged 16 or 17 years at risk of premature sexualisation – Whether presumption of harm should be moderated for children aged 16 or 17 years – Child abuse material offending involving children aged 16 or 17 years not inherently less serious –Presumption of harm with respect to child abuse material applies to children aged 17 years or under – Objective gravity and moral culpability to be assessed considering all relevant circumstances including age – Whether sentences imposed offended principle of totality – Leave to appeal refused.

Criminal Code Act 2005 (Cth) ss 473.1, 474.19(1), 474.22(1), 474.22A(1), 474.26(1); Crimes Act 1958 (Vic) ss 35D, 51A.

Clarkson v The Queen (2011) 32 VR 361, discussed; Adamson v The Queen (2015) 47 VR 268, followed.

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Counsel
Applicant:		Mr T Marsh
Respondent:		Ms R Champion
Solicitors
Applicant:	Doogue + George
Respondent:	Mr M De Crespigny, Solicitor for Public Prosecutions (Cth)

PRIEST JA:

I agree with Taylor JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

TAYLOR JA:

The applicant pleaded guilty to nine charges involving possession, transmission and soliciting of child abuse material and two charges of using a carriage service to procure a person under 16 years for sexual activity. Following a plea hearing on 4 December 2023 he was sentenced on 12 December 2023 as follows.

Charge	Offence	Max Penalty	Sentence	Commencement
1	Use carriage service to cause child pornography material to be transmitted to himself[1]	15 years’ imprisonment	3 months’ imprisonment	Commences 12.07.2027
2	Use carriage service to solicit child abuse material[2]	15 years’ imprisonment	9 months’ imprisonment	Commences 12.01.2027
3	Use carriage service to procure a person under 16 years of age for sexual activity[3]	15 years’ imprisonment	6 months’ imprisonment	Commences 12.04.2027
4	Use carriage service to cause child pornography material to be transmitted to himself[4]	15 years’ imprisonment	2 years’ imprisonment	Base
5	Use carriage service to solicit child abuse material[5]	15 years’ imprisonment	3 months’ imprisonment	Commences 12.04.2026
6	Use carriage service to cause child pornography material to be transmitted to himself[6]	15 years’ imprisonment	8 months’ imprisonment	Commences 12.12.2025
7	Use carriage service to cause child abuse material to be transmitted to himself[7]	15 years’ imprisonment	5 months’ imprisonment	Commences 12.08.2026
8	Use carriage service to cause child abuse material to be transmitted to himself[8]	15 years’ imprisonment	6 months’ imprisonment	Commences 12.09.2026
9	Possess or control child abuse material obtained or accessed using a carriage service[9]	15 years’ imprisonment	3 months’ imprisonment	Commences 12.12.2026
10	Use carriage service to procure a person under 16 years of age for sexual activity[10]	15 years’ imprisonment	12 months’ imprisonment	Commences 12.05.2025
11	Use carriage service to solicit child abuse material[11]	15 years’ imprisonment	8 months’ imprisonment	Commences 12.02.2027
Total Effective Sentence (Cth): Non-Parole Period:		3 years 10 months 2 years 3 months
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		Total Effective Sentence 5 years 6 months Non-Parole Period 3 years 3 months
Other Relevant Orders: 1. The [applicant] is a registerable offender under the Sex Offenders Act 2004 and must comply with the reporting obligations for Life.

[1]Contrary to s 474.19(1) of the Criminal Code 1995 (Cth) (‘Criminal Code’), as repealed by Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth).

[2]Contrary to s 474.22(1) of the Criminal Code.

[3]Contrary to s 474.26(1) of the Criminal Code.

[4]Contrary to s 474.22(1) of the Criminal Code.

[5]Contrary to s 474.22(1) of the Criminal Code.

[6]Contrary to s 474.22(1) of the Criminal Code.

[7]Contrary to s 474.22(1) of the Criminal Code.

[8]Contrary to s 474.22(1) of the Criminal Code.

[9]Contrary to s 474.22A(1) of the Criminal Code.

[10]Contrary to s 474.26(1) of the Criminal Code.

[11]Contrary to s 474.22(1) of the Criminal Code.

An additional offence, not incorporated within the charged period in charge 2, was taken into account in imposing a sentence for charge 2 pursuant to s 16BA of the Crimes Act 1914 (Cth).
The applicant now seeks leave to appeal against sentence on the following grounds:
(1)The sentencing judge erred in failing to take into account the varying ages of the victims in assessing the overall gravity of the offending and the offender’s moral culpability.
(2)The sentence imposed offences (sic) the principle of totality.[12]
[12]On 20 June 2024 Beach JA referred the application for determination by three judges pursuant to r 2.07(2)(b) of the Supreme Court (Criminal Procedure) Rules 2017. During the oral hearing before Beach JA the applicant abandoned the allegation of specific error underpinning proposed ground 2. This is considered further below.
For the reasons that follow leave to appeal should be refused.

The offending

Charge 1

On 19 January 2018 the applicant began communicating with JP on Tinder. The applicant was 20 years old and JP was 17 years old. JP’s Tinder profile indicated she was 18 years old. In their first exchange the applicant and JP agreed to continue communicating on Snapchat, Instagram and by text message. JP’s age on Snapchat and Instagram was (correctly) displayed as 17. During subsequent conversations the applicant requested nude photos of JP. JP described the applicant as ‘pushy’ in requesting these photos and said she felt obliged to send nude photos in order to appease him. Between 19 January 2018 and 5 February 2018 JP sent a total of six images of herself classified as child pornography material. In a record of interview (‘ROI’) on 18 October 2022 the applicant stated he thought JP was 17 or 18 years of age.

Charge 2

The offending which is the subject of charge 2 occurred almost two years after charge 1. The applicant was 21 years old. On 6 May 2015 he initiated contact with FE, then 15 years old, by sending the following message:
I know we aren’t friends and well we don’t even know each other. But I’ve been following you on Instagram and been friends on Snapchat for a little while now, and honestly you’re such an amazingly gorgeous girl. Honestly get so blown away every time I see a photo of you. You’re drop dead gorgeous and have such an incredible smile, it melts my heart. I wish I knew more about you because I know I’d be able to compliment you more but I just know that you’d be such an incredible person to have in someone’s life and you’d be such a blessing to everyone around you.
Following this message the applicant continued to initiate contact with FE ‘once every couple of weeks’. FE would only initiate contact with the applicant when she was ‘desperate’ for money. Between 14 October 2019 and 16 November 2020 the applicant sent FE $677 for Uber Eats, Ubers and in return for sexual and nude photographs of FE. In an ROI on 15 December 2021 the applicant stated he knew FE was a school‑aged girl under 18 years of age.
A $200 transfer to FE from the applicant on 16 November 2020 did not form part of the charged period in charge 2. This transaction was taken into account in imposing a sentence on charge 2 pursuant to s 16BA of the Crimes Act 1914 (Cth).

Charge 3

On 1 May 2021 the applicant added LJ on Snapchat using the Quick Add function, which allows users to connect with other Snapchat users who have mutual friends. LJ was a 14‑year‑old boy. During the fortnight in which the applicant communicated with LJ he believed him to be a 14‑year‑old girl. LJ told the applicant (s)he was a girl ‘as a joke’. The applicant asked LJ how old the oldest person (s)he'd ‘been with’ was. He also asked LJ if (s)he would meet up with the applicant for money. LJ stated (s)he would. The applicant told LJ he lived ‘not far’ from the area LJ gave as (her) location. The applicant stated that he wanted to bring LJ back to his house to have sex and asked for (her) bank details. LJ provided his sister’s bank details to which the applicant transferred $50 on 3 June 2021. LJ’s sister informed their mother who instructed LJ to block the applicant.

Charge 4

Between 9 July and 11 November 2021 the applicant communicated with IT, then 17 years of age, via text message. Throughout this period the applicant sent highly sexualised messages to IT in which he discussed how attracted he was to her and sexual acts he would like to engage in with her. He requested IT send nude and sexual images of herself and transferred funds to IT for this material. These exchanges are summarised below.
(1)On 1 and 2 July 2021 the applicant sent $200 to IT across two transactions.
(2)On 9 July the applicant sent IT $10 and texted her ‘wouldn’t mind getting up to some mischief in those dressing rooms xx’ and ‘Your ass is looking real good, slowly starting to fall in love with it.’ On this date IT sent the applicant three images categorised as child abuse material.
(3)On 12 July 2021 the applicant texted IT ‘Ooo you’ll have to show me the lingerie when you unpack it xx’ and ‘Taking your phone into the shower with you? x’. On this date IT sent the applicant two images categorised as child abuse material.
(4)On 13 July 2021 IT sent the applicant ‘I can make three vids each one minue (sic) for $50 x. Plus photos’. On this day IT sent the applicant 26 photos categorised as child abuse material.
(5)On 14 July 2021 the applicant transferred $65 to IT and IT sent one image categorised as child abuse material to the applicant.
(6)On 16 July 2021 the applicant sent IT sexually explicit messages. IT sent 11 photos categorised as child abuse material.
(7)On 18 July 2021 the applicant texted IT requesting photos of IT’s outfit that day and ‘sexy photos/videos’. The applicant sent further sexually explicit messages. IT sent the applicant four images categorised as child abuse material.
(8)On 19 July 2021 IT sent one image classified as child abuse material.
(9)On 22 July 2021 the applicant texted IT ‘I was just wondering if you’ve taken any more photos or videos lately? X’ and ‘The greatest ass ever xx’. IT sent nine images classified as child abuse material on this date.
(10)On 25 July 2021 the applicant texted IT ‘I still think your boobs are perfect and in the absolutely most complimentary way possible.(sic) You’ve got the fattest asssss’. IT sent nine images classified as child abuse material on this date.
(11)On 26 July 2021 IT sent three images classified as child abuse material.
(12)On 15 August 2021 the applicant messaged IT asking ‘How about 100?’, ‘I mean, if you’re ever feeling horny and feel like video some stuff, I’ll always be down’, and ‘Would you ever video yourself at school? Xx’.
(13)On seven dates between 15 August 2021 and 11 November 2021 IT sent the applicant a total of 92 images classified as child abuse material.
In an ROI on 15 December 2021 the applicant stated that he knew IT was 17 years old when interacting with her. In total the applicant caused IT to send him 141 images classified as child abuse material between 9 July 2021 and 11 November 2021.

Charge 5

Between 12 July 2021 and 27 July 2021 the applicant communicated with JT on Snapchat after he sent her a friend request. JT did not know the applicant. JT told the applicant that she was 16 years old and residing in Western Australia. The applicant told JT he was 22 (he was in fact 23 years old, almost 24), worked at a sports bar and lived in Victoria. The applicant asked JT for photographs of her ‘bum’ and, after a month of communicating, he ‘started to get creepy’ and would often ask JT for nude photos. The applicant would attempt to entice JT to send pictures by stating things like ‘if you send me something good to look at, I’ll send you some money’ and by promising he would not screenshot or record any nudes JT sent. The applicant sent JT $170 across four transactions over their period of communication. JT blocked the applicant after he started asking her for nudes constantly.

Charge 6

In July 2021 the applicant added NS on Snapchat. NS informed the applicant she was 17 years old and he told her he was ‘twenty‑something’. The applicant stated that he wished NS was his girlfriend and that she should come visit him. As an ‘excuse’ NS said her parents would not allow her to visit the applicant. The applicant and NS exchanged images on Snapchat that were only available to view temporarily. When NS sent a picture of her face the applicant would compliment her and say she was ‘pretty, gorgeous and beautiful’. The applicant asked NS if she wanted to send photos for money, which NS understood to mean sexually explicit photos. NS agreed on condition that images were not captured by screenshot or saved in the chat, and money would be transferred first. The applicant asked NS for images with her bra off and for nude photos. NS refused, instead sending him images of herself in underwear. Later NS would suggest a price and a number of photos to which the applicant would agree. Over three different dates NS sent a total of 40 images classified as child abuse material while the applicant transferred a total of $600.

Charge 7

On 2 August 2021 the applicant added AO, then 14 years old, on Snapchat. AO accepted the applicant’s request because they had mutual friends. The applicant sent a message asking AO why she was upset, to which she responded that she had broken up with her boyfriend. The applicant offered AO $100 if she sent him a picture of her smiling. She did. The applicant then transferred $100 to AO’s bank account. Between 2 August and 17 August 2021 the applicant continued communicating with AO. She told him she would not send him nude pictures of herself. The applicant said that was fine and began to request photos of specific facial features, for which he would transfer her money. This occurred once a week across a couple of months. Prior to AO ending communication the applicant requested photos of AO in her bra, which she sent. The applicant requested photos of AO without a bra, which she did not.
In an ROI on 15 December 2021 the applicant made admissions that he knew AO was 15. Throughout the period in which they were communicating the applicant sent AO $385 across four transactions. AO sent 7 images classified as child abuse material to the applicant during this period.

Charge 8

In August 2021 ME began communicating with the applicant after another student at her school provided his details, claiming he would send her money. ME provided the applicant with her bank details. The applicant was aware ME was 16 years old. The applicant transferred funds to ME’s bank account. ME initially did not provide anything in return. After a month of communication the applicant told ME she should send him photos. She said she would only do so for payment. ME began sending photos of herself wearing underwear. The applicant transferred a total $850 to ME over two transactions in August and caused ME to transmit him 19 images classified as child abuse material in total.

Report to police

On 15 December 2021 police executed a search warrant at the applicant’s residence. This followed a complaint made to police by a mother that the applicant had been transferring money to her daughter.

Charge 9

Upon later analysis of the electronic devices seized by police, child abuse material was located across them as follows:
(a)HP Laptop – 9 files,
(b)Apple iPhone – 200 files,
(c)First Apple iPod – 32 files, and
(d)Second Apple iPod – 2 files.
In total 208 unique child abuse material files were located, the balance being duplicates.
Of the 243 files, 229 depicted the victims as follows:
(a)7 images of AO,
(b)39 images of FE,
(c)41 images of NS, and
(d)132 images and 10 videos of IT.

Charge 10

On 1 March 2022 – after the execution of the search warrant – the applicant added IB, then 15 years old, on Snapchat. IB had not met the applicant prior to this interaction. Throughout 2022 the applicant and IB began to message regularly. After a week the applicant and IB discussed her mental health, self‑harm and struggles with an eating disorder. The applicant informed IB she was the only girl he was talking to and that he cared about her a lot. IB did not know how to react and went along with the applicant’s messages. After several weeks the applicant began sending inappropriate and sexual messages. He told IB he wanted to meet up with her and have sex. IB informed the applicant that she was 15 years of age to which he responded that he was not bothered by the age difference. The applicant sent the following messages about meeting up:
Whereabouts? I’m from Vic too
Oh so far away from me was very much considering coming over and looking after you
Whereabout are you from again?
When IB told the applicant she lived in Bendigo, he responded ‘I’m from Melbourne, so at least we’re in the same state’. During their discussions from 1 March to 27 September 2022 the applicant told IB he loved her on multiple occasions and sent highly sexually explicit messages discussing sexual acts he wanted to perform on IB.

Charge 11

On 31 March 2022 CP, then 17 years old, added the applicant on Snapchat as her school friends were talking to him. CP was aware the applicant had sent ME money. She told the applicant she had no money. He offered her money for explicit photos. Between 21 March and 16 August 2022 the applicant sent $680 across three transactions in exchange for explicit images of CP. CP sent the applicant photos of her ‘tits and arse’ and refused to include her face in photos when asked by the applicant.
In an ROI on 18 October 2022 the applicant admitted to knowing CP was 17‑year‑old. The applicant also admitted to sending CP a photo of his erect penis. (CP had responded ‘No, thank you’ and ‘No I did not want to see that’.)

Sentencing reasons

The judge commenced the sentencing reasons[13] by noting the applicable maximum penalty for each charge and summarising the offending.
[13]DPP (Cth) v Cairncross [2023] VCC 2355 (‘Reasons’).
The judge characterised the offending in relation to charge 1 as ‘the least serious of the charges on indictment’ noting the proximity in age of the applicant and victim, the lack of payments or threats in order to obtain the images and the possibility that the applicant was genuinely pursuing a relationship with the victim. The submission of defence counsel that the offending under charge 3 was the least serious was rejected by the judge. While the 14‑year‑old male victim seemingly had no intention of genuinely engaging with the applicant, the judge found the applicant had demonstrated a preparedness to send money to a 14‑year‑old girl with the intention of having sex with her.
The applicant’s provision of financial encouragement was expressly considered by the judge to be an aggravating feature of the offending under charges 2, 4 and 6. The judge accepted the prosecution submission that the applicant’s offending in relation to charge 8 illustrated the danger of providing payment for child abuse material. His interactions with some victims induced other victims to approach the applicant and engage in sexualised conduct in exchange for payment. The judge noted that the offending relevant to charges 10 and 11 was committed following the execution of the search warrant at the applicant’s home during which he had made frank admissions of his offending. In relation to charge 10 the judge said that the contents of the applicant’s conversation with IB demonstrated the applicant’s preparedness to ‘introduce degrading and corrupt content to a young person whom [he] knew to be sexually inexperienced and mentally unwell’.[14] The judge said that this could only be regarded as ‘depraved and degenerate’.[15] The judge concluded that the conduct represented in that charge was also very serious due to it occurring in circumstances in which the applicant was aware his conduct had come to the attention of the police.
[14]Reasons, [49].
[15]Ibid.

The judge said that, globally, the modus operandi of the applicant was the use of Snapchat to befriend underage females. Over time his method developed to include rapport building and a transactional component. This included the facilitation of the applicant’s offending by his details being shared amongst friends because he was prepared to pay money for explicit content.
Next the judge considered the relevant matters delineated in s 16A of the Crimes Act 1914 (Cth).
As to the nature and circumstances of the offending, the judge noted the applicant’s offending had spanned five years, two of which followed his being interviewed by police for like offending. It was motivated by his desire for sexual gratification. The applicant committed the offences against 10 children aged between 14 and 17 years. The applicant instructed the victims to take sexually explicit images of themselves and send them to him. He engaged in overtly sexualised conversations with two of the victims. The judge found that none of the offending was isolated except for, perhaps, charge 1. The remainder was premediated. There was a lack of sophistication in the offending given that the applicant did not disguise his age or identity. The judge said that the applicant did not threaten any victim nor engage in physical sexual activity with any of them.
The judge found the applicant’s moral culpability to be high. The offending was ‘deliberate, brazen, predatory and persisted over a substantial period of time’.[16] There was no evidence that the applicant suffered mental illness or drug or alcohol abuse.
[16]Reasons, [66].
Charges 2, 5 and 11 were noted to fall within the class of offences for which general deterrence is the paramount sentencing consideration. The judge said that substantial penalties should follow given the statutory maximum penalty and the presumption that considerable harm arises from such offending even if physical activity does not ensure.[17] As the applicant interacted directly with each victim the judge found that the presumption of harm applies to them all.
[17]The judge referred to DPP (Cth) v Singh [2017] VSCA 146, [45] (Redlich, Beach and McLeish JJA).
The use of money as enticement was found by the judge to aggravate the seriousness of the offending. So too was the fact that the applicant encouraged children to produce child abuse material, and did not merely solicit its transmission.
While the judge accepted the prosecution submission that the offending in relation to charges 1, 4, 6, 7, 8 and 9 did not fall into the highest category of seriousness for its type, this was balanced against the number of charges, the extended period of offending and the applicant’s encouragement to children to produce child abuse material.
In relation to charges 3 and 10, the judge characterised the offending as calculated and predatory conduct. General deterrence was a paramount consideration. There is a public interest in protecting children from sexual abuse.[18] Charge 10 was found to have involved the use of emotional manipulation and a level of cunning by the applicant. This offending was further aggravated by its commission after the applicant’s interview by police. The judge found the offending under both charges 3 and 10 to be objectively serious examples of this type of offending.
[18]R v Gajjar (2008) 192 A Crim R 76, [27], [61] (Maxwell, Nettle and Weinberg JJA); [2008] VSCA 268; citing The State of Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250.
Charge 9 was found to be a mid‑range example of the offence. The child abuse material had not been disseminated nor used as collateral against the victims. Nonetheless 229 of the images were explicit images of the children the applicant had encouraged to make child abuse material. The applicant accumulated it and held on to it across a period of almost five years.
As to the applicant’s character, age and antecedents, the judge summarised the relevant matters as follows. The applicant was 26 at the time of sentencing and had no prior convictions. He lived at home with his mother and had a stable and solid work history. The applicant was educated from primary school to year 12 at the same Christian school. He grew up in a harmonious family environment. The applicant’s parents, sister and aunt were present in court supporting him. The judge found their ongoing support to be a positive indicator for the applicant’s rehabilitation and reintegration into society.
The applicant had attended seven psychological therapy sessions commencing in December 2022. On 14 June 2023 the applicant commenced treatment with clinical psychologist Dr Rachel McKenzie, a specialist in treatment for victims and perpetrators of sexual offending. In her report dated 30 November 2023 Dr McKenzie noted the applicant had an ‘unremarkable childhood, consistent work history, and the absence of substance abuse’.[19] She said the applicant did not meet the criteria for any formal mental health diagnosis but did meet the criteria for ephebophilia (sexual attraction to post pubescent adolescent children). In a psychological assessment dated 26 November 2023 the applicant made admissions to Dr Matthew Barth that he had become ‘progressively dependent on [his] communications with the child complainants and [was] unable to stop even after police interviewed [him]’.[20] The judge found this demonstrated the powerful hold the offending behaviour had on the applicant and underscored the need for substantial rehabilitation treatment and for specific deterrence.
[19]Reasons, [86].
[20]Ibid [88].
The judge took into account the fact that the applicant was of otherwise good character, noting that less weight must be afforded to this due to the type of offending.[21] The judge accepted that the applicant’s age meant he was better equipped to change and said a lesser sentence would be imposed on account of this.
[21]Ibid [89], citing DPP (Cth) v D’Alessandro (2010) 26 VR 477, 484–485 (Harper JA, Redlich JA agreeing at [1], Williams AJA agreeing at [45]); [2010] VSCA.
The judge took into account that the offending formed part of a course of conduct of seeking sexual gratification by approaching 14 to 17‑year‑old children online to obtain child abuse images.
The judge acknowledged that the applicant had shown genuine remorse and contrition and further noted the applicant’s early plea and full and frank admissions.
The need to adequately punish and specifically deter the applicant was given weight. The judge also applied the principle of parsimony.
As to prospects of rehabilitation, the judge said that the applicant had voluntarily commenced specialist sex offender treatment. Dr Barth had described the applicant’s condition as ‘entrenched’ and, using formal diagnostic tools, had described the applicant as having a moderate to high risk of sexual recidivism. The judge considered that until the applicant had successfully completed the rehabilitation programs, that risk assessment would remain unchanged.
The judge also considered the impact of the applicant’s offending on the victims.
Importantly, the judge rejected the applicant’s submission that the presumed harm should be moderated with respect to the 17‑year‑old victims. Given the relevance of this to the first proposed ground of appeal it is convenient to set out the material portions of the sentencing reasons. In the first passage the judge said:
… I take into account both in relation to IB and in relation to all the victims, the implicit statutory presumption of harm.[22] In relation to offences of this type, the presumption relates to the harm caused by the sexual nature of the child’s experience of the offending and interaction, as well as the potential for immature decisions of the kind that were made by the underage victims in this case.
The adverse effects of the communications, including the vulnerability of the child that may result from the conduct, even if the communications themselves are not explicitly sexual, enlivens the presumption.[23]
I do not accept the submission that the presumed harm should be moderated in the case of the 17 year old complainants because in Victoria they could have consented to have sex with you.
The purpose of the provisions to which you have pleaded guilty is to protect children from being encouraged or enticed to engage in inappropriate sexual behaviour. This prevents the creation of a market for the corruption and exploitation of children.[24]
The presumed harm need not be immediate or manifest but includes the danger of future harm. It applies equally where the victims of the offending were 16 or 17 years old[25] because “the provisions were enacted to promote the physical, sexual, emotional and psychological safety of all young people”.[26]
No attempt to rebut the presumption has been made in this case.[27]
[22]Adamson v The Queen (2015) 47 VR 268, [22]–[23], [52]–[56] (Warren CJ, Redlich and Weinberg JJA) (‘Adamson’); [2015] VSCA 194.
[23]Ibid [47].
[24]Ibid [52].
[25]Ibid [52]–[54].
[26]Ibid [52]–[53].
[27]Reasons, [93]–[98] (citations in original).
Later the judge said:
Your counsel submitted that there was a troubling component of the offending as it relates to the 17 year old complainants because at law, in Victoria, there is not prohibition on consensual sex between you and those complainants.
I do not accept that submission. While it is correct in law, that they could have consented to sex with you, the offences to which you have pleaded guilty were created to protect 17 year olds from being exploited in the child pornography market. It is precisely because there are people with sexual taste and inclination to underage people that these offences exist.[28]

Ground 1 – Moderation of presumed harm based on victim’s age

Applicant’s contentions

[28]Reasons, [114]–[115].

The proposed ground focuses on the ages of the victims of charges 1, 4, 6, 8 and 11. That is, 16 or 17 years of age (charge 8) and 17 years of age (charges 1, 4, 6 and 11).
The applicant does not argue that the presumption of harm to child victims with respect to online sexual offences does not apply at all to victims aged 16 or 17 years. Rather, it was put that the presumption of harm must automatically be ‘moderated’ when a child victim is 16 or 17 years old.
The basis for that contention is the submission that a large measure of the presumption of harm to child victims of sexual offending arises from the premature sexualisation of children. As a 16 or 17‑year‑old can lawfully consent to in person sexual activity, it is argued that the portion of the presumed harm attributable to premature sexualisation necessarily falls away. That is, the multiple harms subsumed within the presumed harm to child victims of online sexual offences should be ‘disaggregated’ and applied selectively depending upon the age of the victim.
To the extent that this Court in Adamson reached a different conclusion (considered further below), the applicant sought to distinguish that case by arguing that the issue then before the Court was whether the presumption of harm applied at all to ‘cybersex’ offences and, if so, to 16 and 17‑year‑old minors. The ‘binary’ nature of the argument before the Court was said to constrain the broad application of the observations made therein.
The applicant submitted that his contention did not deprive the age of a child victim of relevance in the sentencing calculus. The categorisation of child abuse material is influenced by the age of the child depicted. Age is also relevant to the vulnerability of the child involved. The age of the victim is, thereby, relevant to the seriousness of any instance of an offence and to the moral culpability of the offender for it. This was argued to support the primary contention that the harm of premature sexualisation should be disaggregated from the presumed harm to minors. It was put that an offence concerning child abuse material depicting an eight‑year‑old, for example, will be more serious than one depicting a 16 or 17‑year‑old.

Respondent’s contentions

The respondent contended that the presumption of harm to children from online sexual offending applies to all minors. Offences involving 16 and 17‑year‑olds are not inherently less serious than those involving younger children. It was argued that what was required in any particular case was an analysis of all the relevant circumstances, including the age of the victim. How influential that factor will be in assessing the gravity of the offending and an offender’s moral culpability will depend upon the other relevant factors drawn from those circumstances.

Discussion and analysis

The presumption of harm for sexual offences in respect of children was recognised in Clarkson v The Queen.[29] That case concerned two appellants. The first was convicted of four charges of sexual penetration of a child under 16 and one charge of wilfully committing indecent acts with or in the presence of a child. The victim of each charge was the same, a girl nearly 15 years of age. The second was convicted of one charge of committing an indecent act in the presence of a child under 16. The victim was his 12‑year‑old stepdaughter. In the appeal both appellants sought to rely upon the victims’ ‘consent’ as a matter in mitigation.
[29](2011) 32 VR 361 (‘Clarkson’); [2011] VSCA 157.
The Court said:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[30]
[30]Clarkson, 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
The Court found the ‘absolute prohibition’ to have two purposes. The first was to protect children from the harm caused by premature sexual activity. The second was to deter those who might contemplate sexual activity with a person under 16.[31] The first purpose involved protecting children from their own immaturity. Parliament ‘[o]n behalf of the community’ had decided that persons under the age of 16 cannot give meaningful consent to sexual activity ‘even if subjectively attracted to the idea of participating in such activity’.[32]
[31]Ibid 368 [26].
[32]Ibid.
Later the Court said that
What emerges clearly from these authorities is that absolute prohibitions on underage sexual activity are founded on a presumption of harm. Adopting Baroness Hale’s phrase,[33] premature sexual activity is presumed to cause “long‑term and serious harm, both physical and psychological” to the child. Premature sexual activity, for this purpose, means activity before the age when the child can give meaningful consent. It is for this reason that the presumption of harm is unaffected by the presence of consent.[34]
[33]The Court in Clarkson at 370–1 [32] had quoted Baroness Hale in R v G [2009] 1 AC 92, 108–‍109 [48]–‍[49].
[34]Clarkson, 371 [33] (citations omitted).
In Adamson the Court held that the subject matter, text and purpose of the legislation concerning online child sexual offences rests upon the same presumption as ‘in person’ offences. The legislature ‘sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions’.[35]
[35]Adamson, [23]; See also [25].
At this point it must be observed that the age determined by the legislature to be that at which a child no longer needs to be protected from his or her own immaturity in making decisions about their sexual behaviour is different between ‘sexual activity’(both in person and online) and online behaviour involving (what might be generically described as) pornographic material.
The Commonwealth Parliament, by sub‑div F pt 10.6 of the Criminal Code – ‘Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16’ – created offences relating to children 15 years of age or younger.[36] ‘Sexual activity’ is defined in the Dictionary to the Criminal Code as meaning sexual intercourse or any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people). The Dictionary also establishes, without limiting the concept, that a person is taken to ‘engage in sexual activity’ if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the person engages in sexual activity.
[36]Similarly, those established by sub‑div C pt 10.5 being ‘Offences relating to use of postal or similar service involving sexual activity with person under 16’ also apply to children aged 15 years or younger.
In contradistinction, sub‑div D pt 10.6 of the Criminal Code – ‘Offences relating to use of carriage service for child abuse material’ – applies to material defined to be that which depicts a person who is or appears to be under 18 years in, relevantly, a variety of sexually related scenarios, including the depiction of sexual body parts, sexual poses and sexual activity.[37]
[37]Definition of ‘child abuse material’; Criminal Code, s 473.1.
The Victorian Parliament replicates the same approach. Child sexual offences involving ‘sexual activity’ relate to children aged 15 years and younger.[38] An activity may be sexual due to the bodily area involved in the activity, the fact that the person engaged in it seeks or gets sexual arousal or sexual gratification from the activity, or any other aspect of the activity including the circumstances in which it is engaged in.[39]
[38]With the limited and special exception of a child aged 16 or 17 years ‘under care, supervision or authority’. See Crimes Act 1958, ss 49C, 49E–49G, 49I (‘Crimes Act’).
[39]Crimes Act, s 35D.
In contradistinction, offences relating to child abuse material applies to material in which a ‘child’ is depicted or described as a victim of sexual abuse or engaged in a sexual pose or sexual activity, or in which a child’s genital or anal region or female child’s breast area is shown.[40] For these purposes ‘child’ is defined to mean a person under the age of 18 years.[41]
[40]Crimes Act, s 51A.
[41]Crimes Act, s 51A.
The reason for the differing threshold ages at which a young person is taken to have sufficient maturity to make decisions about their sexual behaviour, as decided by the legislature on behalf of the community, is obvious.
Nascent sexual exploration through ‘sexual activity’ at the ages of 16 and 17 is very different from the making of or involvement in ‘material’ depicting such sexual activity (or kindred behaviour) which is then electronically transmitted and stored, never recoverable and forever capable of being re‑transmitted and viewed for the rest of the mid‑teenager’s life. Consensual sexual activity occurs and then is over. Recorded sexualised imagery dispatched online (potentially) remains ever present.
Minors aged 16 and 17 are particularly vulnerable to the manipulation and coercion of adults who intrude into their online world. The need to belong and be admired is particularly acute at that stage of life. So too is the pretension to superior understanding. As illustrated by this case, such a teenager might think that participating in the production or transmission of such imagery is nothing more than a joke or an easy, short term way to make money, and a process he or she can control or end by ‘blocking’ the other contact. Also as illustrated by this case, such behaviour can be contagious. The behaviour of one teenager can, if it becomes known amongst their peers, lead other teenagers to sell sexual photographs of themselves for money.

A 16 or 17‑year‑old focuses on the immediate. The life experience and neural development of a mid‑teenager does not bestow sufficient ability to rationally consider and truly understand the inherent risks of acquiescing to potentially millions of internet users viewing intimate and/or sexual images of his or her physically mature body in perpetuity. Such a teenager has scant understanding of the impact such material can have on a person’s future standing in the community, career opportunities and intimate relationships. Consensual, private, unrecorded sexual activity on the other hand carries no such risk.
Adamson was decided some ten years ago. In the decade that has passed the proliferation of online applications and platforms has continued unabated. It does not overstate the position to observe that today 16 and 17‑year‑olds live as much in the virtual world as in the real one. The risk of them of being coerced – economically, emotionally or by threats – into making or transmitting imagery that is legally classified as child abuse material is very real. The maturity to resist such coercion or truly understand the potential long term harm is not. The Court in Adamson was prescient when it observed:
Clarkson does not confine harm that flows from sexual offences against children to that which is immediate and manifested. The harm against which Parliament seeks to protect child victims includes that which is likely to emerge in the future. While the precise long‑term consequences of premature sexual activity for any particular child are unknowable and impossible to predict, harm includes the increased risk of long‑term consequences.[42]
[42]Adamson, [36].
It is necessary then to return to Adamson. As noted above, the Court in that case addressed the primary contention advanced by the applicant in this case, namely that the presumption of harm – or at least the part of it attributable to premature sexualisation – should not apply to child pornography offences where the victim is aged 16 or 17 years because young people of that age are capable of choosing to engage in sexual activity. Like the applicant, the appellant in that case relied upon the fact that it would have been legal to engage in sexual intercourse with his victims aged 16 or 17 years. The Court said that Parliament had determined the legislative regime ‘in a context where the assumption of harm inheres in the very text and purpose’[43] of the child pornography offences.
[43]Adamson, [53].
Contrary to the applicant’s submission, that the issue arose in the context of a submission that the presumption of harm should not apply to ‘cybersex’ offences at all does not limit the import of this observation.
The Court continued:
For his part, the Commonwealth Director conceded that the case for the presumption in respect of 16 and 17‑year‑old minors ‘is inherently weaker or perhaps entirely unsustainable’. In our opinion, the latter part of that concession goes too far. It is clear that a presumption of harm applies in the case of victims of these offences under the age of 16. Parliament has determined that these offences should also apply to minors aged 16 and 17. The purpose of the amendment to extend the age threshold was, as described by the Attorney‑General, to promote ‘the physical, sexual, emotional and psychological safety of all young people’. The amendments were made on several bases, including that it was assumed that the prohibited conduct harmed its victims. The harm that flows from child pornography offences is well recognised. Although the age of the victim may be a relevant circumstance where the offender attempts to rebut the inference of harm, the presumption remains a primary rationale for these statutory prohibitions. That is so, notwithstanding that there are other important reasons why such conduct is proscribed.[44]
[44]Adamson, [54] (citations omitted).
The other important reasons include:
(a)to prevent the creation of a market for the corruption and exploitation of children,
(b)children are abused and degraded in order to create a market, and
(c)offenders can be stimulated to commit paedophilic acts on viewing child abuse material.[45]
[45]Adamson, [52].
The Court concluded that the presumption applies to offences involving the use of a carriage service for child sexual offences ‘as well as to offences where the age of the victim is extended to include children who are 16 or 17’.[46]
[46]Adamson, [57].
This, then, includes the portion of the presumed harm relating to ‘premature sexualisation’. For the reasons discussed, whether sexual behaviour is ‘premature’ depends entirely upon the nature of the sexual behaviour and the harm that might flow. Parliament has determined that minors aged 16 years and over are mature enough to consent to ‘sexual activity’ but not to voluntary participation in the making of sexualised imagery. That presumption of harm of ‘premature sexualisation’ applies to those aged 15 years and younger in respect of sexual activity and to those aged 17 years and younger with respect to the making of sexualised imagery. In other words, the presumption is not to be automatically moderated with respect to a child abuse material offence where the victim is aged 16 or 17.
It does not follow, however, that the age of the victim is irrelevant in formulating the sentence in any given case. As submitted by the respondent, a sentencing judge must analyse all the relevant circumstances. The significance of the age of the minor depicted in a child abuse material offence is to be determined in the context of all other factors. The point is easily illustrated. Offending involving a particularly graphic image of a 16‑year‑old engaged in an act of sexual penetration might be more serious than that involving an image of the breast area of an eight‑year‑old girl. Factors other than the characterisation of a particular image might bear upon that assessment, including the age of the offender, the method by which such images were solicited, the number of images involved, the length of time over which the offending occurred and the like. Each case will be fact specific.
Finally, although the focus of the applicant’s argument at the hearing of the application was on the asserted need to moderate the presumption of harm, the proposed ground of appeal as formulated alleges a failure by the judge to take into account the varying ages of the victims in assessing objective gravity and moral culpability. For the sake of completeness, it must be observed that the asserted failure is not made out.
The judge was careful to note the ages of the victims and made differing observations about them. For example, the judge noted the small age difference between the applicant and JP, the victim of charge 1, and accepted that the offending commenced with what might be perceived as a legitimate attempt to engage in online dating. The judge termed IB, the 15‑year‑old victim of charge 10, ‘vulnerable’. The applicant’s behaviour towards her was described as emotionally manipulative with him calling her ‘princess’ and himself ‘daddy’. He knew her to be sexually inexperienced and mentally unwell. These observations differ significantly from those made in respect of the 17‑year‑old victims. Further, the individual sentences imposed reflect the judge’s consideration of this issue in the context of all the relevant circumstances.
Proposed ground 1 is not made out.

Ground 2 – totality

The applicant’s proposed second ground that the sentence imposed offen[d]s the principle of totality was largely dependent upon the allegation of a specific error made by the judge as to the orders for the commencement of each of the individual sentences. At the hearing before Beach JA on 20 June 2024 in which the application for leave to appeal was referred to a bench of three judges, the applicant conceded that the specific error was not made out.
At the hearing of the application the applicant did not abandon ground 2, but it was only faintly pressed.
The proposed ground may be addressed shortly.

The judge noted that although the applicant conceded that a sentence of imprisonment was inevitable, he argued that the term be three years or less so as to afford him full or partial release under a recognizance release order. The judge did not accept that argument, referring to the paramount public interest in protecting children from sexual abuse[47] and the importance of general deterrence.[48] In the absence of exceptional circumstances, the judge said, correctly, that offending like that of the applicant ordinarily warrants a sentence involving an actual term of imprisonment.[49] The judge also considered the statutory requirement for cumulation in ss 19(5) and (6) of the Crimes Act 1914 (Cth).
[47]The judge referred to The State of Western Australia v Collier [2007] WASCA 250, [43] (Steytler P, McLure JA agreeing at [50], Miller JA agreeing at [51]).
[48]The judge referred to McNiece v The Queen [2019] VSCA 78, [47] (McLeish, T Forrest and Weinberg JJA).
[49]The judge referred to R v De Leeuw [2015] NSWCCA 183, [72] (Johnson J, Ward JA agreeing at [1], Garling J agreeing at [188]).
Further, the judge explained her reasons for the structure of her sentence.[50] The judge allowed for partial cumulation in relation to charges 4, 6, 8 and 10 and total concurrency in relation to charges 1, 2, 3 and 9. The orders for the commencement date of sentences produced a total effective sentence of 3 years and 10 months’ imprisonment with a non‑parole period of 2 years and 3 months. Given the gravity of the offending, including the number of victims and that charges 10 and 11 were committed after police intervention, coupled with the importance of general deterrence, the sentences imposed were well within the range available to the judge in the sound exercise of her discretion.
[50]Reasons, [148]–[153].
Proposed ground 2 is not made out.

Conclusion

Leave to appeal is refused.

KIDD JA:

I agree with the reasons of Taylor JA.

[2025] VSCA 117

27 May 2025