CDirector of Public Prosecutions v Buck (a pseudonym)
[2025] VCC 803
•10 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| REUBEN BUCK (A PSEUDONYM) |
---
JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2025 | |
DATE OF SENTENCE: | 10 June 2025 | |
CASE MAY BE CITED AS: | CDPP v Buck (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 803 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - Sentencing
Catchwords: use carriage service to transmit child abuse material – use carriage service to make available child abuse material – use carriage service to access child abuse material – possess or control child abuse material obtained or accessed using a carriage service
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited: R v Gajjar [2008] VSCA 268; Bugmy v The Queen [2013] HCA 37;
DPP v Herrmann [2021] VSCA 160; R v Verdins [2007] VSCA 102.
Sentence: Total effective sentence of 2 years and 6 months imprisonment, released forthwith on a Recognisance Release Order. Sex Offenders Registration for life.
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms A. Pham-Nguyen | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr B. Newton | Rowan Skinner Legal |
HER HONOUR:
1Reuben Buck,[1] you have pleaded guilty to one charge of transmit child abuse material using a carriage service, one charge of use carriage service to make available child abuse material, one charge of use carriage service to access child abuse material, and one charge of possess or control child abuse material obtained or accessed using a carriage service.
[1] A pseudonym.
Circumstances of the offending
2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
Investigation and execution of search warrant
3On 11 September 2024, the Joint Anti Child Exploitation Team (JACET) executed a search warrant at your residence in Melbourne. You were the owner/occupier of the apartment and were the only person present.
4During the execution of the search warrant investigators seized the following items:
(a) Samsung mobile phone;
(b) Kingston desktop tower;
(c) 2TB Seagate portable hard drive;
(d) 10TB Seagate portable hard drive;
(e) Sandisk USB; and
(f) 512GB Gram laptop.
5During the triage of the desktop tower, investigators observed the following applications of note:
(a)A Tuta email account (Tuta – a web-based email client with a logged in account, under username ‘[email protected]’); and
(b)A GMX.com email account (a web-based email client, with a logged in account under username ‘[email protected]’).
6Investigators facilitated account take overs for these email accounts.
Charge 1 – Transmit Child Abuse Material Using a Carriage Service
7On 19 August 2023, you responded ‘I been told mega isn’t safe anymore (like it used to be). Your link doesn’t work btw’. Your email reply contained a video attachment which constitutes child abuse material. The attachment was a 1-minute and 50-second video of a naked 10 year-old boy. The boy bends over in front of the camera whilst spreading his buttocks. He continues this behaviour in various poses.
Charge 2 - Make available child abuse material using a carriage service
8On 6 May 2024, you communicated with ‘Leoleo 44’ using your GMX email account. You sent a pCloud link which contained 13 folders containing a total of 54 child abuse material files, as outlined in the table at paragraph [10] of the opening. There were a total of 38 videos and 16 images. An example of a file located on the link is a 28-minute video of a 10-year-old boy. The boy is depicted masturbating himself in various poses throughout the video.
Charge 3 – Access child abuse material using a carriage service
9Between 16 June 2024 and 11 September 2024 you access stories constituting child abuse material on ‘Niffty.org,’ which is an extensive semi curated website of erotic literature. On 16 June 2024, 17 June 2024, 8 September 2024 and 11 September 2024 you accessed stories, as outlined in the prosecution opening at paragraphs [13] to [16].
Charge 4 – Possess child abuse material obtained or accessed using a carriage service
10Examination of your devices revealed you possessed or controlled a total of 2,953 child abuse material (‘CAM’) files (2,263 unique files) across six devices.
11The total number of child abuse materials are outlined in the table at paragraph [18].
12Examples of the files located on the various devices are outlined in detail from paragraphs [19] to [23] which I will not repeat here. The material includes videos of children engaged in solo sexual acts, engaged in sexual acts with other children and engaged in sexual acts with adults including penetrative acts. The videos are of varying length and the videos and images involve many children of different ages.
Record of Interview
13Having been cautioned and advised of your rights, you participated in a record of interview with Police. During the interview you gave ‘no comment under legal advice’ and ‘no comment’ responses. However, you did make some admissions, as outlined in the prosecution opening.
Commonwealth sentencing
14Sentencing for Commonwealth offences is governed by Part 1B of the Crimes Act 1914 (Cth) (‘the Act’).
15The fundamental principle in sentencing a federal offender is that the Court must impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’: s 16A(1).
16The particular factors to be considered by a sentencing Court are set out in s 16A(2) of the Act, which contains a non-exhaustive list of factors. The section requires that the Court ‘take into account’ the factors identified in that subsection so far as they are relevant and known to the court. The relevant sentencing principles are also helpfully summarised by the prosecution in their submissions, Annexure A.
Nature and gravity of offending
17Parliament has made plain the seriousness of the charges that you have pleaded guilty to by the maximum prescribed penalties. Also, there is a legislative presumption of an immediate custodial sentence when the overall sentences do not exceed three years.[2] An offender must establish that exceptional circumstances exist before a court can order their immediate release. As the Court of Appeal recently stated, ‘that requirement (for exceptional circumstances) reflects the inherent gravity of offending that involves the access to, and possession of, child abuse material.’
[2] Crimes Act 1914 (Cth) s 20(1)(b)(iii).
18General deterrence is the primary sentencing consideration, as there is paramount public interest in promoting the protection of children. Specific deterrence, denunciation, punishment and protection of the community are also very important considerations.
19Every child has the right to security and to be protected from all forms of sexual exploitation and sexual abuse (article 34). The videos and images that you transmitted, made available, accessed and possessed are of real children being seriously abused and significantly harmed. Your offending creates and fuels a market for the continued corruption and exploitation of children and normalises behaviour which is entirely perverted and depraved.
20I have assessed the objective gravity of your offending against the well-established principles, as summarised in the prosecution submissions (see paragraphs [17] and [18). Overall, you offended between a period from 19 August 2023 to 11 September 2024.
21On charge 1, on one day you transmitted a 1-minute and 50-second video of a naked 10 year old boy in sexualised poses via email. While inherently serious offending, I accept the submission of both Counsel that this falls within a low range example of this offence.
22On charge 2, on one day in May 2024 you sent a pCloud link via email. The link contained 13 folders with a total of 54 CAM files and an example file has already been referred to. Taking into account the nature and volume of the material as is known, I accept the characterisation of this offending as a ‘moderate range example of this offence’ (at [23], prosecution submissions).
23On charge 3 between 16 June and 11 September 2024 you accessed four sexualised stories involving teens and their family members constituting CAM on ‘Nifty.org.’ I accept that this can be viewed as a ‘low range example of this offence’ (at [25], prosecution submissions).
24On charge 4, on 11 September 2024 you possessed a total of 2953 CAM files, 2263 of which were unique files. A total of 1831 files were category 1 CAM files, including 858 video files and a total of 1122 were category 2 files, including 693 video files.
25The prosecution submit, and I accept, that this offence falls within the ‘moderate range’ for this inherently serious offence. You possessed a significant amount of material over six devices and a significant number were unique files. A larger portion of the material involved real children engaged in sexualised poses and masturbation. A smaller portion of files involved more depraved content of children engaging in penetrative sexual activity with adults and/or other children. The majority of the children depicted are aged 12 to 15 years, but there is also material involving children aged 6, 7, 8, 10 and 11 and children as young as 3, 4 and 5. The descriptions provided in the opening are graphic and utterly vile and the distress described at paragraph [14] and plainly experienced by the 4 year toddler while being abused is harrowing.
26It is not possible to quantify the number of different children depicted in the material the subject of the charges, but it is clear that overall multiple children were victimised in this material.
27On charge 4, the prosecution submit that based on charges 1 and 2 there is evidence that you have distributed the CAM. Further, there is evidence that the material was downloaded between an earlier lengthy period. This may be correct. However, I note that your transmission and making available the material is charged separately and the Court must ensure that you are not doubly punished. Also, while it cannot be asserted that your offending on charge 4 is isolated, reference to these earlier dates cannot be used to extend the period of the charge or aggravate it in some way. You have pleaded guilty to possession of a single date and that is what you will be sentenced for.
28While not mitigating, your Counsel refers to the absence of aggravating factors or other criminal offences, including: no direct contact with victims; no expressions of violent urges; no participation in virtual chat rooms; no attempts to solicit contact with other internet users intending or believing them to be children; no paying for or profited from indicted offending. He also notes in respect of charge 2 that while it relates to a number of CAM files the act on your part was comprised of transmitting one link that contained the material. On this charge, I also note that 11 of the images were stills from the videos in the link. In respect of charge 4 your Counsel makes the point that a smaller portion of the material relates to children engaged in sexualised activity and that the comparable cases referred to by the prosecution involve the possession of CAM of more significant numbers.
29Your Counsel also refers to the context of your offending and the opinion of forensic psychologist Mr Jeffrey Cummins that your involvement ‘with CAM is best described as being situationally motivated and reflective of his state of grief and depression at the relevant time. Mr Cummins opines ‘at the relevant time he offended he was suffering from symptoms of acute and chronic grief (as summarised in this report) against a chronic history of intermittently suffering from symptoms of Major Depressive Disorder and also Complex PTSD. Further, it is my opinion that over the time that he was offending he was diagnosed with a Voyeuristic Disorder.’
Plea of guilty (s16A(f)(g))
30Your matter resolved at an early stage, at the second committal mention. Your early plea of guilty entitles you to an important sentencing discount. Your plea has utilitarian value and I accept your counsel’s submission that the community has been spared the time and expense involved with contested court proceedings. Your plea also indicates your willingness to facilitate the course of justice and accept responsibility for your offending.
31Further, I accept that your plea, coupled with your other representations, is indicative of remorse. Mr Cummins who has had at least 7 treatment sessions with you since 11 October 2024 observes that you present as ‘genuinely apologetic, regretful and remorseful’ of your offending (at [76]).
32I also take into account your assistance and cooperation and the admissions you made in your record of interview.
Personal circumstances (s.16A(m))
33Your personal circumstances were canvassed by your Counsel and are detailed in the report of Mr Cummins of 22 May 2025. You are about to turn 64 years of age. You have no prior criminal history or subsequent matters and are otherwise of good character.
34In summary, you were born in Germany. Your parents immigrated to Australia and settled in Sydney when you were around two years of age in 1963. You are an only child.
35Your father was reportedly extremely violent and abusive both to you and your mother. You described your father to Mr Cummins as assertive, controlling and as regularly using violence including the use of a table leg to repeatedly belt you on the back and buttocks.
36In 1978 your mother left Australia and returned to Germany without taking you with her. She did so to escape the violence of your father. Your father undertook to support you, including by supporting you to complete secondary school and to attend university. However, several months later, he evicted you from the marital home, rendering you homeless. You had little else to do with him after this.
37Your childhood was marked by significant violence and abuse. You described to Mr Cummins experiencing violence both at home, with your father, and at school. At school you were socially ostracised because of your poor English and you were bullied and vilified on account of your ethnicity and your imputed sexuality. You struggled with your identity and self-esteem. You told Mr Cummins. ‘during secondary school I hated myself and everything about myself. I asked myself the question why wasn’t I born a girl?’ You also described to Mr Cummins that your father had also been either sexually provocative or denigrating of you.
38I note here that in 2017 you were diagnosed with a psychosexual identity disorder/Gender dysphoria. You went through a period where you considered transitioning, including preparing for undergoing sexual reassignment surgery over the period of late 2017 to around mid 2019. Ultimately you did not persevere with the process of transitioning for the reasons canvassed in the report of Mr Cummins.
39Returning to your schooling, you passed year 10 and your parents separated when you had just commenced Year 11. As already noted, several months later you were evicted by your father.
40Your Counsel tendered a range of historic material that also documents and corroborates your background details. A referral letter from psychologist Alisa Green dated 4 May 2015 relevantly notes the following:
‘His father was reportedly extremely violent and abusive both to him and his mother whilst he was growing up. In a recent phone call to his father Reuben reports that his father remains angry about the break-up of his marriage to Reuben’ mother all those years ago and continues to blame Reuben for this which reinforced his decision not to continue further contact.
Reuben did not enjoy his years at school and describes experiencing frequent bullying. He also missed school at times due to the abuse he suffered at home. He left home at age 15 years and became homeless …’
41After being thrown out of home and leaving school you struggled to find stable accommodation. You were living on the streets including squatting in derelict housing, couch surfing and staying at the homes of men with whom you had fleeting sexual encounters. You also described to Mr Cummins multiple occasions in your life of sexual contact with males where you had not consented.
42Stability in housing ultimately came through a friend’s older sister who was a live-in-nurse working at the Paramatta Public hospital. This opportunity gave you some security and enabled you also to actively search for work.
43Your first job was in retail and you worked as a junior sales assistant for almost two years. Prior to turning 18 you worked in hospitality in a German restaurant at the Rocks. At the age of 19 you achieved a certificate of enrolment as a Nursing Aide and you worked in that capacity at the Lidcombe Hospital completing the course between late 1980 and September 1981. You then worked as a nurse’s aide for a period of time in Melbourne.
44You returned to Germany between 1987 and 1991 to reunite with your mother. You continued working in nursing and also formed a four-year relationship with an American man. In 1991, while living in Germany you were diagnosed as HIV positive. Your mother was anxious to distance herself from you and your diagnosis and paid for your return to Australia. You felt abandoned and rejected by her.
45On your return to Australia you could not work for a period of time because of your illness. You returned with a medical life expectancy prognosis of two years and carried the stigma of your illness and the loss of many friends.
46Rather than resigning yourself to your bleak prognosis and the general sentiment at the time, you eventually returned to nursing work to support yourself. In March 1992 you completed a course at St Luke’s Hospital in Assistant Nursing. In September 1992 you completed a course at the same hospital in Advanced Enrolled Nurse Practices.
47In 1995 for 8 months you worked at the Sydney People with AIDS Day Centre on a voluntary basis as a receptionist. In August 1995 you completed a Conflict Resolution & Assertiveness in Everyday Life course conducted by the NSW Workers’ Educational Association.
48Between 2003 and 2005 you also attempted to run your own life coaching business which provided services to the organisations supporting those with drug and alcohol addiction and with HIV and AIDS. This included getting an ABN trading as ‘Rebalance Life Coaching’ and completing a Certificate IV in Small Business Management in June 2004.
49From 2006 you studied at the TAFE Northern Sydney Institute, returned to nursing work and you completed various vocational nursing subjects while also working. You studied at the Australian Catholic University between 2008 and 2012 and successfully completed a formal bachelor of nursing on 5 October 2012. Documents confirming your various work achievements were tendered in evidence.
50Since your diagnosis with HIV you have been on an anti-retro-viral program. When you were first diagnosed it was in its infancy and the side effects were grossly debilitating. In the 1990s you were prescribed a low dose of an antidepressant to manage peripheral neuropathy, which at the time was said to be a side effect of the HIV medication. Overtime the therapy improved and you have over the past 15 years been successfully and comfortably treated daily with Descovy and Dolutegravir. Every 6 months your blood levels are tested.
51While holidaying in Brisbane you met Edgar Holder[3] whom you later married. He was 10 years your junior and very well educated. He had a degree in librarianship, Russian and German and in business studies. The relationship between you was a very loving one. You travelled to Germany together so that he could meet your mother. Your husband struggled with his own health issues and suffered from a rare form of epilepsy and also Asperger’s syndrome (now Autism Spectrum Disorder).
[3] A pseudonym.
52You too, over an extensive period of time now, have suffered from a range of medical conditions.
(a) In 2013/2014 you were diagnosed with elevated blood pressure and hypertension for which you were prescribed medication.
(b) You suffer from a right sided hearing impairment with onset from January 1995. To hear anything in your right ear you require a hearing aid.
(c) From at least 2015 you were treated at St Vincents Hospital in Darlinghurst NSW and the Alfred Hospital in Melbourne for severe peripheral vascular disease with bilateral claudication. Your Counsel describes this condition as pervasive, and as impacting all aspects of your life.
(d) Your current level of mobility is severely restricted as a direct result of the bilateral claudication and the numbness experienced in your lower limbs. You have had three surgeries for the insertion of stents in your left leg. The third surgery was successful and you continue to have a very long stent extending from your left thigh to just above your left ankle. (footnote: review of your peripheral vascular disease at the Royal Melbourne Hospital in April 2019 confirmed via CT angiography occluded left leg stent).
53For daily treatment of your medical conditions and also your hypertension, you are currently prescribed a range of medications, including blood thinners, blood pressure and cholesterol control medication (see Exhibit 4).
54Returning to the chronology, in 2016 you relocated with your husband to Melbourne and took up less physically straining work in the call centre industry. Your poor hearing and restricted mobility resulted in you having to give up working as a nurse.
55You stopped working altogether in 2024 because of your deteriorating medical conditions and you are currently living off savings.
56In terms of drug and alcohol use, when you were younger you would drink excessively. In more recent times, connected to the stress of these proceedings, you have resumed a dependency on alcohol. In your mid-twenties you experimented with cannabis, which ceased in your mid-30s. You were dependent on heroin from your mid-twentiess until your mid-thirtiess over which time you frequently injected heroin. You weaned yourself off as a result of receiving counselling. This is confirmed in the Ceida material tendered on your behalf which documents your attendance and participation in a range of workshops and courses back in 1993. You have also previously used methamphetamine. In the aftermath of the grief you experienced in 2020, which I’ll come to in a moment, you became dependent on methamphetamine and thereafter were frequently using it on a daily basis through until very early 2024.
57Your counsel relies on your disadvantaged childhood and your complex and estranged relationships with both parents. He also refers to your exposure to violence, harm, instability and bullying. Overall, I accept that you have not had the advantage of a stable and regular home environment. I take these matters into account in a general way and as relevant to an evaluation of your moral culpability[4]
Circumstances in the lead up to the offending
[4] Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160.
58Your Counsel canvassed the broad circumstances leading up to your offending, summarised as follows -
(a) In June 2019 you continued to attend hospital relating to pain from left lower limb claudication but the hospital deemed a (left femoral popliteal) bypass unsuitable due to a lack of appropriate veins for harvest. Your father also passed away in 2019.
(b) Your GP mental health assessment in April 2020 states diagnosis as follows: 1) depression, 2) gender dysphoria with major stressors including ‘contesting fathers will going through post childhood trauma … relationship issues with husband … health issues.’ Main problems/diagnosis states, ’58 year old with low mood in the context of multiple psychosocial stressors.’
(c) On 22 May 2020 your husband died, aged 50 after unexpectedly having a bleed on the brain and collapsing alone at home.
(d) During this period, you continued to struggle with your health and grieved your husband death. On 19 August 2020 your GP noted in a hospital referral letter ‘his husband recently died from an intracerebral haemorrhage’ and that you were struggling with grief and also dealing with ‘ongoing significant claudication …’
(e) Clinical Psychologist Ms Ashley Brown in letter to your GP dated 21.10.2020 states: “Jamie has now completed four sessions of therapy under the mental health care plan you developed for him. During these sessions, I assessed Jamie as having an Adjustment Disorder due to the death of his partner, relationship stressors and COVID-19 restrictions. Accordingly, I have assisted Jamie develop strategies to resolve his stressors, and manage his anxious and depressive symptoms effectively. ….”
(f) On 19 December 2020, also the birthday of your late husband’s, your mother died in Germany. Due to COVID-19 international travel restrictions, you were prohibited from attending her funeral.
(g) In respect of your health battles, relevant hospital extracts from 2021 note the following:
(i)A CT angiogram of your legs performed at the Alfred Hospital on 4 May 2021 confirmed long segment left superficial femoral artery occlusion. Treatment options including bypass and endovascular interventions with risks of angioplasty, including major limb amputation. These significant risks have to date resulted in you declining further surgical procedures with conservative medical management ensuing.[5]
(ii)At medical review with vascular surgeons at the Alfred Hospital on 10 May 2021 you were described as being “a 59 year old gentleman with lower limb critical ischemia with rest pain on background of occluded left femoral popliteal stent”.[6]
(iii)Your Counsel submits that these conditions were, and continue to, significantly impact your daily life and have eroded your self-esteem. Also, the prospect of losing a leg in the future is an ongoing source of worry and concern.
(h) As already noted, during this period, you returned to smoking methylamphetamine as a way of coping with your bereavement, grief and growing social isolation.
Mental health & medical conditions
[5] [Prahran Market Clinic Patient Subpoena Export page 635].
[6] Ibid.
59Mr Cummins opines that you have intermittently suffered symptoms of a Major Depressive Disorder for many years and dating back to when your parents separated and you were evicted from your home. The symptoms of your Major Depressive Disorder became much more severe as a result of your father’s death in 2019 and the deaths of your husband and mother in 2020 and have further been exacerbated as a result of you being arrested and charged. He states that you acknowledged becoming addicted to viewing CAM, although your primary addiction was with adult male pornography and you would view it when experiencing symptoms of acute and chronic grief.
60The records tendered on your behalf document some of the medical and psychological conditions you have now struggled with now for over a substantial period (exhibit 12).
61You are now prescribed antidepressant medication and you currently present as being severely depressed. Mr Cummins also diagnoses you with Complex Post Traumatic Stress Disorder and canvasses the symptoms of this Disorder. Further, as already noted, he opines that over the time of your offending you were diagnosed with a Voyeuristic Disorder.
62Your Counsel submits that Verdins principles 1 and 2 are enlivened as there is a realistic connection between your offending and your mental impairments[7]. Also, your conditions ought to moderate the weight to be place on general deterrence (principle 3). Further your Counsel submits that general deterrence should be moderated, along with specific deterrence, although the latter was not pressed as firmly given your use of amphetamines at the time.
[7] R v Verdins [2007] VSCA 102.
63The prosecution accept that your judgment and ability to understand the consequences of your offending behaviour were affected by grief, symptoms of Major Depressive Disorder and Complex PTSD. However, they submit you were not deprived of that capacity entirely and that these conditions did not obscure your intent to commit the offences or impair your ability to appreciate the wrongfulness of your actions. Further, the prosecution submitted that your conditions are not so severe as to make you an inappropriate vehicle for general deterrence, or significantly reduce the weight properly given to specific deterrence.
64Taking into account all the evidence, I find that the relevant Verdins principles are enlivened and should be given sensible weight. As submitted by the prosecution I accept that you had an appreciation of the wrongfulness of your actions and intended to commit the offences. However, there should be some moderation to reflect that your offending occurred within the context of extreme grief, stress and depression, thereby likely impairing your ability to make rational choices or think clearly. I note also that you were using drugs at the time. It is not entirely clear how this may have interacted with your conditions, though it is a matter that generally bears upon an assessment of the weight to be given to these factors. General and specific deterrence will be sensibly moderated to reflect your major depression and complex PTSD though these sentencing principles still remain important and relevant in your case.
65As for the likely impact of imprisonment, Mr Cummins opines as follows (at [77]):
It is my clinical and forensic opinion that if he was sentenced to a period of imprisonment his mental health would inevitably deteriorate and significantly so. I emphasise that in my opinion he is still grieving for the loss of his husband and his mother and that by no means he has come to terms with having been emotionally, physically and perhaps sexually abused by his father. In my opinion he presents as being very embarrassed and ashamed about his impaired mental health and that if he was incarcerated he would be very hesitant and reluctant to disclose the true state of his mental health to the prison authorities.
66You also expressed to Mr Cummins significant concern regarding the prospect of being incarcerated, because you fear being intimidated and potentially physically assaulted because of your obvious impaired mobility and hand movements and the imputations that might be made as to your sexuality.
67Further, in January 2025 you received head, brain and dental injuries as the victim of an unprovoked sustained assault upon you. You presented at the Royal Melbourne Hospital where it was noted on 30 January 2025 that your presentation included – healing left forehead wound and missing front teeth x 2 and a CT brain scan revealed a concussion and subdural haematoma. Dr Panczak states that you are at risk of further damage/rebleed if you have any further head injuries (Exhibit 4). As noted by Mr Cummins this recent experience has elevated your anxiety and concern of being assaulted in custody. Demonstrative of this, you recently donated your very expensive hearing aide out of fear that if you were imprisoned it would likely be destroyed and wasted. I further note, I was informed this morning that you self-harmed on the weekend, though did not seek medical attention.
68Your Counsel submits that a combination of your age, lack of priors, poor mental and physical health (bilateral claudication and partial deafness) will make any time in custody more burdensome (principle 5) and that also there is a serious risk of your health significantly declining (principle 6).
69I accept, and the prosecution did not dispute, that these principles are enlivened. I also accept that for the combination of reasons as outlined by your Counsel, an immediate sentence of imprisonment would weigh more heavily on you.
Other factors
70Your Counsel also relies on the prospect of deportation. You are at risk given your status but there is no evidence that this is likely to happen or that it is a certainty. As noted by the prosecution, even if your status is cancelled there are appeal avenues and rights, the outcome of which are entirely unknown. However, I do accept, and take into account, that this is a matter weighing on you and that such anxiety will likely make any term of imprisonment imposed more burdensome. You spoke to Mr Cummins about your concern of being deported as you are not a citizen. You have no wish to return to Germany. You are settled and established here and feel safe.
71Of course, as submitted by the prosecution this is one factor to be considered in the exercise of the sentencing discretion, to be weighed against the need for adequate punishment, denunciation, and general deterrence, amongst other considerations.
Prospects of rehabilitation
72Keeping in mind that for this type of offending, deterrence and denunciation are primary sentencing considerations, an assessment of your rehabilitative prospects remains relevant. I assess that you have very favourable prospects of rehabilitation.
73Informing this assessment I have had regard to your mature age, lack of any prior criminal history or subsequent offending, early plea of guilty and your work history and previous community contributions, attested to in the various letters and certificates tendered on your behalf (Exhibit 17).74I also take into account that you have meaningfully reflected on your conduct and demonstrated victim empathy and recognition of the serious harm caused by your offending.
75I take into account that you have recently and actively participated in offence specific treatment over an extended period of time with Mr Cummins. You have indicated a preparedness to continue engaging in such treatment and Mr Cummins is prepared to continue working with you.
76Based on an assessment of you and a review of the results of the Static-99R and the RSVP-V2 Mr Cummins opines that your current risk of further sexual offending is low-moderate and trending towards low (where the risk category ratings are Low, Low-Moderate, Moderate, Moderate-High and High) (at [48]).
77You have also undertaken drug and alcohol counselling with Alcohol and Other Drugs (AOD) Counsellor Ms Marnie O’Rourke, Thorne Harbour Health, referring yourself for AOD standard counselling on 31 January2025 and subsequently attending four sessions up to 15 May2025. You have also undertaken hair follicle drug testing on or about 29 January2025 and returned negative results for illicit substances (exhibit 4). Your counselling and treatment has helped you moderate your alcohol consumption and has also reinforced your decision to not relapse into using methamphetamine (Exhibit 3).
Sentencing purposes
78The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, denunciation and protection of the community. The Court must also have regard to the objective of rehabilitating an offender, including consideration of imposing conditions directed towards rehabilitation or treatment options.
79General deterrence is a prominent consideration in offending that involves the sexual abuse and exploitation of children. I proceed on the basis that ‘when greater weight is attached in the balancing process to general deterrence, it necessarily follows, at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors’.[8]
[8] R v Gajjar [2008] VSCA 268 [28].
80I have considered and taken into account current sentencing practices for each charge. I have considered the cases referred to by the prosecution in the comparable table. The cases were generally instructive and of guidance. Of course, there are relevant similarities and differences in each case.
81In your case, given the nature and seriousness of your offending, I consider on each charge that the only just and appropriate sentence is one of imprisonment. Given your prior good character and your assessed favourable prospects of rehabilitation, while still relevant, reduced weight can be given to specific deterrence and community protection. However, I consider that only a custodial term will satisfy all of the sentencing considerations that are engaged, particularly general deterrence.
82Both Counsel submitted that any such a term could appropriately be served by way of a recognisance release order (RRO).83I intend to impose separate sentences in respect of each charge to reflect the separate criminality involved. I have taken into account the presumption of cumulation.[9] I also take into account the principles of proportionality and totality. I note that the material the subject of charge 4 includes material that is the subject of the other charges. In all the circumstances, taking into account the gravity of your offending, as I have assessed it, the overlap between the charges, the mitigating factors advanced on your behalf and your plea of guilty, I consider that ordering full cumulation between charges would result in a disproportionately severe sentence. I must ensure that your overall sentence is a proportionate, just and appropriate one.
[9] Crimes Act 1914 (Cth) s 19(5); Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Aganist Children and Community Protection Measures) Bill 2019 (Cth).
84The dispute between Counsel centred around whether you should be required to serve an immediate term of imprisonment.85The primary submission of your counsel was that you can be sentenced to a term of imprisonment but released forthwith pursuant to such an order. Section 20(1)(b)(ii) and 20(1)(b)(iii) provide that an offender sentenced for a “Commonwealth child sex offence” can only be released immediately on a recognizance release order (‘RRO’) under section 20(1)(b) if there are “exceptional circumstances.”[10] Your Counsel relies upon a combination of factors to satisfy exceptional circumstances. The prosecution submit that the circumstances relied upon do not meet this test, given the gravity of the offending and the primacy of general deterrence.
[10] Crimes Act 1914 (Cth).
86The term ‘exceptional circumstances’ under paragraph 20(1)(b)(ii) is not defined. Essentially each case will turn on its own facts. The explanatory memorandum states: ‘Given the variable circumstances which may militate against or support a sentence of imprisonment, it would impose practical constraints if ‘exceptional circumstances’ was defined. Firstly, the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold. Second, a list of factors said to constitute ‘exceptional circumstances’, even if stated in broad terms, will have the tendency to restrict, rather than expand, the factors which might satisfy the requirements for ‘exceptional circumstances’.
87The prosecution refer to the case of R v Bredal[11]. The Court stated that a combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional. The factors that combine to make a particular case exceptional will all be factors relevant to the determination of sentence more generally. The purposes of sentencing will remain at the forefront (at [61]).
[11] [2024] NSWCCA 75.
88Your Counsel relies upon a combination of circumstances, already canvassed in these reasons. In summary, they are: your lack of prior history or subsequent offending; mature age; background of hardship and disadvantage; serious medical conditions; poor mental health and its implications; compelling circumstances in the broad lead up to your offending; vulnerability in custody; risk of deportation; active engagement in offence specific treatment, early plea of guilty, genuine remorse and positive rehabilitative prospects. He submits that in combination, even when weighed against or alongside the seriousness of the offending, they are capable of satisfying the threshold and justify your immediate release on a recognisance order.
89After a careful consideration of all of these matters, I have concluded that the combination of factors relied upon in your case do constitute exceptional circumstances. Assessing all relevant factors, including the primacy of general deterrence and the nature and objective gravity of your offending, I consider that there are powerful mitigating factors in your case and that a sentence of imprisonment with your immediate release on recognisance can achieve all sentencing objectives.
Sentence
90Synthesising all relevant factors, you are convicted and sentenced as follows:
91Mr Buck, can you stand, please? Charge 1, transmit child abuse material, you are convicted and sentenced to
4 months imprisonment.92Charge 2, make available such material, you are convicted and sentenced to
8 months imprisonment93Charge 3, accessing, you are convicted and sentenced to 7 months imprisonment.
94And Charge 4, possessing or controlling, you are convicted and sentenced to 24 months imprisonment.
95What I am proposing is on Charge 1, one month's cumulation. Charge 2, three months cumulation. Charge 3, two months cumulation, which should arrive therefore at a total effective term of two and a half years, two years, six months.
96Counsel, just take a moment to double check that it is not too complicated.
97MR NEWTON: Yes.
98MS NGYUEN: Could I clarify, Your Honour, so the cumulation on Charge 2 is three months and the cumulation on Charge 3 is two months.
99HER HONOUR: So, one, three and two, a total of six on the two year base sentence, two years six months. What that will mean, if I can put it in these terms, you can sit down now. Thank you, Mr Buck. I am just also conscious of your leg. You can take a seat.
100Charge 1 will commence three months before the expiry of Charge 4, which ought to cumulate the one month. Charge 2 to commence five months before the expiry of Charge 1, which ought to then cumulate three months. And Charge 3 will commence five months before the expiry of Charge 2, which ought to cumulate two months. They are the commencement dates.
101MS NGUYEN: Yes, Your Honour.
102HER HONOUR: Mr Newton?
103MR NEWTON: I – Your Honour, just the commencement dates, obviously Charge 4 commencing today.
104HER HONOUR: Yes. I have done it out of order. There is no restriction in any of that but because I have done it that way, I have then gone to one, two and three in sequential order.
105MR NEWTON: Yes. Charge 1 was commencing three months before
Charge - - -106HER HONOUR: Four.
107MR NEWTON: Four. Charge 3 was the next one?
108HER HONOUR: No. Charge 2, five months before the expiry of Charge 1.
109MR NEWTON: Yes.
110HER HONOUR: So you can see that the order, Charge 3, five months before the expiry of Charge 2. All right?
111MR NEWTON: Yes, Your Honour.
112HER HONOUR: I am making a single recognisance release order in respect of all of the offending and I am attaching the following conditions for Mr Buck to be of good behaviour for three years. And also, the other mandatory conditions and that is effectively the program conditions will operate for a period of
15 months.113Now, I am going to go through those conditions now. Is the closest
Justice Centre for Mr Buck, Collingwood, given where he is located, is that right? So, if it is Carlton, Collingwood is the closest one.114OFFENDER: I live in Carlton.
115HER HONOUR: Yes. All right, well, it is Collingwood then. So what I will do is while I go through these conditions I am going to have a copy provided to – your instructor very helpfully gave us the template.
116MS NGUYEN: Yes.
117HER HONOUR: And so we have modified that obviously, to reflect my sentence. So, if we can provide it to counsel and I will go through it now and Mr Buck will listen carefully and you can also go through it with him.
118So, while that is being done, Mr Buck, I am ordering your release forthwith, so immediately, upon you giving a security by recognisance of $1000 to comply with the following conditions.
119Now, can I indicate that the $1000 is not payable now. It may become payable if you were to breach this order and you are called upon again. But presently it is effectively a surety that you are giving to the court. Do you understand that?
120OFFENDER: Yes.
121HER HONOUR: All right. Now, I have, in terms of the conditions, they are as follows, that you are of good behaviour for a period of three years, commencing today. If you breach that condition, so, for example, you commit another offence or if you breach the mandatory program conditions. The program conditions I have attached here are mandatory. All right? If you do not do, for example, what you are required by Corrections to do or if you are not of good behaviour what will occur is that you can then be brought back to court. And what happens is the term of imprisonment which is a substantial term that I have sentenced you to, two and a half years, you are at risk of having to serve it. Do you understand? Also, a recognisance release order can be varied or discharged. Just one moment?
122OFFENDER: Yes. I understand, Your Honour.
123HER HONOUR: All right. Ms Pham Nguyen, that is a sufficient explanation?
124MS NGUYEN: Yes, Your Honour.
125HER HONOUR: Yes. Thank you. All right, now the further conditions, the mandatory conditions are that you are subject to the supervision of a probation officer and that will be Corrections for a period of 15 months, obey all reasonable directions of the probation officer, not travel interstate or overseas without their written permission, undertake such treatment or rehabilitation programs that they reasonably direct, report to the Neighbourhood Justice Centre and the address is on that piece of paper, within two clear working days as of today. Report to and receive visits from Corrections, notify an officer of any change of address or employment within two clear working days. And attend for assessment and if assessed as suitable treatment for sex offender programs or programs to reduce reoffending is directed by Corrections. All right. They are the conditions. Do you understand?
126OFFENDER: Yes, Your Honour.
127HER HONOUR: And do you understand how you can break them, that is, not doing something on the program conditions for 15 months or not being of good behaviour for three years. All right. Thank you.
128All right. Pursuant to s6AAA but for your plea of guilty I would have sentenced you to a term of imprisonment exceeding three years, some three and a half years with a non-parole period of two.
129Now, Charges 1 through to 4, as agreed between counsel, are class 2 offences, as defined within the Sex Offenders Registration Act. They are registerable offences. Upon conviction you are a registerable offender, as defined under the Act and you must comply with the reporting obligations under the Act for a period of life.
130Now, my associate in a moment will print for you a copy of that notice and there will be a number of pages that describe and outline what your responsibilities are. They are your responsibilities. I am confident Mr Newton will go through them with you. You will need to check in with the authorities and then you will see that you have ongoing responsibilities and obligations, annual reviews and you need to tell them about many details, Mr Buck. You will see that, registration plates, phone numbers. You need to keep them updated. All right, so there are many obligations. It is important that you understand because if you breach, for example, such an order then you can come to court. It is a criminal offence. All right?
131HER HONOUR: Counsel, can I also note that my 6AAA, the non-parole should have read one ten, one year ten months. All right, so I just make an amendment to that.
132MR NEWTON: Yes, Your Honour.
133HER HONOUR: All right. Thanks.
134MR NEWTON: I just indicate, Your Honour, that I undertake to go through the detail of this document once we are outside of the court.
135HER HONOUR: Excellent.
136MR NEWTON: My client understands that the document he's signing is to confirm receipt of the documents now provided to us under the SORA Act.
137HER HONOUR: Yes. Thank you.
138MR NEWTON: All right.
139HER HONOUR: Thank you. All right. A copy will just now be provided to
Mr Buck and then unless there is anything else, counsel, you will both be excused.140MS NGUYEN: Thank you, Your Honour.
141MR NEWTON: As Your Honour pleases.
142HER HONOUR: All right, Mr Newton, he has a copy of the order.
143MR NEWTON: He has it in his hand, Your Honour.
144HER HONOUR: And he has the documents. All right. Thank you, counsel. You are both excused. Thank you.
145MR NEWTON: As Your Honour pleases.
146HER HONOUR: Thank you, officers.
0
5
0