Cairncross v The King - [2025] VSCA 117

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]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cairncross v The King

Details

AGLC: Cairncross v The King [2025] VSCA 117
Case: [2025] VSCA 117
Decision Date: 27 May 2025

CaseChat Overview and Summary

In the High Court, Cairncross appealed against his sentence for multiple online child sex offences. He was convicted of transmitting and soliciting child abuse material, with some victims being aged 16 or 17 years. The central issue before the Court was whether the presumption of harm should be moderated for children aged 16 or 17 years, and if the objective gravity and moral culpability of the crimes should be assessed differently in this context. The Court was also required to determine whether the sentences imposed were consistent with the principle of totality.

The Court held that the presumption of harm with respect to child abuse material applies to children aged 17 years or under, and such offences involving children aged 16 or 17 years were not inherently less serious. The Court emphasised that the age of the victims should be considered as one of many factors in assessing the objective gravity and moral culpability of the offences. In following Adamson v The Queen, the Court held that the presumption of harm should not be moderated for children aged 16 or 17 years. Furthermore, the Court found that the sentences imposed did not offend the principle of totality, and Cairncross's appeal against sentence was dismissed.

The Court found that the sentences imposed were appropriate and did not contravene the principle of totality. Consequently, Cairncross's leave to appeal was refused. The Court held that the presumption of harm applies to all child abuse material offences involving children aged 17 years or under, and that the age of the victims is but one factor in assessing the gravity of the offence and moral culpability.

Orders