CDirector of Public Prosecutions v Caldwell (a pseudonym)
[2022] VCC 1258
•14 September 2022
| This IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILL CALDWELL (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2021, 9 August 2022 |
| DATE OF SENTENCE: | 14 September 2022 |
| CASE MAY BE CITED AS: | CDPP v Caldwell (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1258 |
REASONS FOR SENTENCE
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Subject: Aggravated offence of accessing and transmitting child pornography material
Catchwords: Guilty plea – mandatory minimum sentences – low range offending - early plea – cooperation with investigators – borderline personality disorder
Legislation Cited: Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:R v Edwards [2019] QCA 15; Clarkson v The Queen (2011) 32 VR 361; R v De Leeuw [2015] NSWCCA 183; DPP (Cth) v Garside (2016) 50 VR 800; R v Edwards [2019] QCA 15; Godfrey v the Queen [2013] WASCA 247; R v Hutchinson [2018] NSWCCA 152; Warboyes v R [2021] VSCA 169; Daylia Brown v the Queen [2020] VSCA 212; DPP v Herrmann [2021] VSCA 160; R v Delzotto [2022] NSWCCA 117; R v Delzotto [2022] NSWCCA 117; Bahar v R (2011) 45 WAR 100; Karim v the Queen (2013) 83 NSWLR 268; Magaming v the Queen (2013) 252 CLR 381; Staples v The Queen [2021] VSCA 307.
Sentence: Total effective sentence: 9 years, Non-Parole Period: 5 years, Sex Offender Registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms K. Breckweg Mr J. Manning | Office of Commonwealth Director of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1Bill Caldwell,[1] you have pleaded guilty to:
· two charges of the aggravated offence of accessing and transmitting child pornography material contrary to subsection 474.24A (1) of the Criminal Code 1995 (Cth) (“the Code”) (Charges 1 and 2);
· four charges of controlling an electronic service used for accessing and transmitting child abuse material contrary to subsection 474.23A (1) of the Code (Charges 3, 4, 5 and 6);
· one charge of using a carriage service to transmit child pornography material contrary to subsection 474.19 (1) of the Code (Charge 7);
· one charge of using a carriage service to transmit child abuse material contrary to subsection 472.22 (1) of the Code (Charge 8);
· one charge of supplying child abuse material for use through a carriage service contrary to subsection 474.23 (1) of the Code, for the offending occurred between 30 March 2018 and 2 September 2020 (Charge 9); and
· one charge of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to subsection 474.22A(1) (Charge 10).
[1] A pseudonym.
Maximum penalties
2The maximum penalty for Charge 1 is 25 years imprisonment.
3The maximum penalty for Charge 2 is 30 years imprisonment.[2]
[2] Parliament has prescribed a mandatory minimum head sentence of 7 years for this offence.
4The maximum penalty for Charges 3, 4, 5 and 6 is 20 years imprisonment.[3]
[3] Parliament has prescribed a mandatory minimum head sentence of 5 years for this offence.
5The maximum penalty for Charges 7, 8, 9 and 10 is 15 years imprisonment.
Circumstances of your offending
6Your offending occurred between 30 March 2018 and 2 September 2020. You used an online profile of “Rhae-Sor Ansar” to access networks, where you controlled and maintained groups which supplied and shared child abuse material.
7The circumstances are set out in the prosecution opening for plea and annexures.[4] They contain agreed facts.
[4]Exhibit A, Summary of Prosecution Opening; Annexure A: Australian child exploitation categorisation scheme; Annexure B: telegram messages sent by offender to his husband; Annexure C: descriptive examples of CAM.
Charges 1, 2 and 3 (“Shota Male/sm/”)
8On 30 March 2018, you created a social group, “Shota Male/sm/”, using an encrypted media platform, Telegram Messenger.
9Shota is an abbreviation of ‘shotacon’, a Japanese reference to “young boys”.
10Group members, from around the world, shared lifelike, animated, drawn or CGI-produced Child Abuse Material (CAM)[5] on the platform.
[5]All child pornography material was classified under the child exploitation tracking system (CETS) scale.
11You set and enforced a number of group rules including:
(a) a minimum age of 18;
(b) limits on sharing and content; and
(c) a prohibition on underage real-life content and sexual solicitation.
12You posted CAM and commented on CAM posted by others. One of your responses, in relation to material posted was, “[a]re you trying to give me a boner” and “It’s working”.[6]
[6]Exhibit A, at [26].
13Between 30 March 2018 and 28 May 2020 you transmitted 1483 images to the group on 133 occasions, and accessed 269 images on 28 occasions (Charge 1).[7]
[7]On 23 June 2020, the maximum penalty for an offence contrary to s 474.20 4A(1) was increased from 25 to 30 years.
14Between 5 July 2020 and 15 August 2020, you transmitted 68 images on 5 occasions and accessed to images on 2 occasions (Charge 2).[8]
[8]Because of a change in the law on 23 June 2020, when the maximum penalty for the offence contrary to s 474.24A (1) was increased from 25 years to 30 years imprisonment, the offending is charged into separate offences.
15By mid-2020 the group had more than 450 members globally.
16The control offence was introduced into the Code on 23 June 2020. Your had control of the group between 23 June 2020 and 2 September 2020, when you were arrested (Charge 3).
Charges 7 and 8
17In 2002, when you were 18 years old, you had met your husband online through a mutual interest in anthropomorphic animals. He was aged nine and lived in the United States. You developed a remote friendship. In 2014, you travelled to the United States to meet him. There, the two of you became engaged. In 2015, you returned to the United States and the two of you married.[9]
[9]Your relationship has endured following your arrest. You have regular phone contact with him. He has never lived in Australia.
18You shared, with him, a private text-based chat on Telegram messenger. Some of your conversations were of a sexual nature
19Between 24 April 2018 and 4 April 2019, you sent your husband Category 6 child abuse images once, and Category 1 and 2 images and Category 2 videos, three times, and on four occasions, you sent him text messages which constituted Category 6 CAM (Charge 7).
20Between 18 October 2019 and 29 June 2020, you sent him Category 6 images once and text messages which constituted Category 6 CAM, four times (charge 8).[10]
[10]Because of legislative changes in September 2019, your offending for the period is charged in two separate offences.
21In the text messages, you made sexual comments about boys aged between 8 and 12 years, about sexual activities with your husband’s male cousins, aged between 5 and 16 years, and your sexual preference for a 9 year old boy who “never ages”.[11]
[11]Exhibit A, at [49](c).
Charge 5 (“ Shota Tribe log” channel )
22The “Shota Tribe log” channel was created to show administrators when an individual joined “Shota Tribe” and when content was removed.
23You had control of the “Shota Tribe log” from its inception, on 13 July 2020, until your arrest, on 2 September 2020 (Charge 5).
24During the period, 14 Category 6 child abuse images and one Category 6 child abuse video were shared on the channel. Real-life content was banned.
25On 2 September 2020, you were 1 of 17 subscribers to the channel, and 1 of 5 administrators.
Charges 4 and 9 (“Das Smut” channel)
26On 21 August 2020 you created the “Das Smut” channel and maintained it until your arrest (Charge 4).
27You supplied CAM to the channel during the same period when you uploaded 131 images and 103 videos of Category 1, 2, 3 and 4 material (Charge 9).
28They included depictions of naked prepubescent male and female children, in sexually suggestive poses and with exposed genitalia, and engaged in anal, vaginal and oral penetrative acts with adult males.[12]
[12]Exhibit A, Annexure C.
Arrest and Interview
29On 2 September 2020, police executed a search warrant at your home at Werribee. They seized your mobile phone, computer and two hard drives.
30You gave them details of your online accounts and passwords.
31When police interviewed you, you admitted Rae-Sor Ansar was your alternate identity and you founded the groups linked to your account.
32You said members had to be verified as over 18 years old.
33You admitted the Shota Male group featured drawn and CGI material depicting sexual content between minors, you had controlled the Group and you shared images on it.
34You said it was an addiction you had been fighting for a long time and you hadn’t been able to get the help you needed despite having counselling.
35You admitted there was CAM on your computer. You said some of it was from a former housemate.[13]
[13]Exhibit A, at [64](l).
36You also admitted you had deleted a large amount of content several months earlier.[14]
[14]Exhibit A, at [64](m).
37You said you considered child pornography to be non-consensual and/or violent material.
38You said consent had always been “a big thing” for you.[15]
[15]Exhibit A, at [64](e).
39You said you believed children aged 13 and over were capable of consenting to sexual activity, if they were fully informed but you would not get involved with anyone under 16.[16]
[16]Exhibit A, at [64](j).
40You told police you met your husband online when you were 18 or 19 and he was 8 or 9. You said there was no sexual activity until your husband was of legal age. You described your husband as your “2 IC” for the majority of your online groups.
Charge 6 (Control SnepC MODS group) and charge 10 (Possession of CAM)
41With the information you had given them, police took over your accounts and exported data from the groups you had controlled. However, some users had become aware of your arrest and either left the group or removed you from it.
42On 4 September 2020, you were removed from the SnepC MODS Group. You had been 1 of 19 members.
43Retrieved data identified you as the group’s owner and showed you used your phone to access the group between 27 August 2020 and 1 September 2020.
44On 2 September 2020, there were 291 photographs and 8 videos which included Category 6 CAM in the group’s account.
45Your control of the group on 2 September 2020 constitutes the offending in Charge 6.
46Police identified 5273 images and 286 videos of CAM on your phone and computer hard drives. According to the CETS Scale,[17] more than half were Category 1, 293 were Category 4 and 105 images were Category 5 and involved real children. And there were 952 Category 6 images.
[17] See Annexure A to these Reasons.
47On a hard drive, police found 8 images of your husband wearing a black G string. Meta data dates the images to 2009 when your husband was 16 years old. One image shows him displaying his anus and masturbating.
48Your possession of the CAM on your phone and computer hard drives constitutes the offending in Charge 10.
Guilty plea
49Following your arrest you were remanded in custody.
50You entered your guilty plea at a committal mention, on 30 April 2021, and you were committed to this court by straight hand up brief.[18]
[18] Exhibit C, Chronology.
Criminal record
51You have no criminal record.
Personal circumstances
52You were born in November 1983. You were between 34 and 36 years old when you offended. You are now 38 years old.[19]
[19] Exhibit 1, at page 5.
53Your personal circumstances are set out in the report of Simon Candlish, Psychologist, dated 2 October 2021.[20]
[20] Exhibit 2.
54You are the oldest of four siblings. You have one younger brother and two younger sisters. Your family lived in Sydney before moving to Port Macquarie when you were 7 years old.[21]
[21] Exhibit 1, at page 5; Exhibit 2, at [16].
55Your father was verbally abusive towards your mother and you witnessed arguments between the two of them. Your parents separated when you were 9 years old. You and your siblings lived with your father.[22]
[22] Exhibit 1, at page 5; Exhibit 2, at [16].
56Your father remarried. You did not get along with your stepmother, who was verbally and physically abusive towards your siblings, and you and you’re your siblings moved in with your mother and her new partner. [23]
[23] Exhibit 1, at page 6.
57You did not get along with her new partner and spent your time with your paternal aunt and grandparents. You moved in with your grandparents when you were 16 or 17 years old. You then moved to Sydney to live with a friend before moving to Victoria where you lived in share houses.[24] You have a reasonably close relationship with one of your sisters; you are less close to your other siblings.[25]
[24] Exhibit 1, at page 6.
[25] Exhibit 2, at [24] and [40]-[41].
58At school, you enjoyed English but struggled with other subjects. You did not have many friends. You told Mr Candlish that you were ‘socially withdrawn’ and bullied due to your ‘weight issues’ and ‘lack of interest in sport’. You were put on a behavioural management plan, but you do not remember the reason for it. You eventually left school, at the end of Year 9, because of bullying. You attended a Special Education Unit of a Police and Community Youth Centre in New South Wales for children with behavioural issues for two years.[26]
[26] Exhibit 2, at [25]-[34]; Exhibit 1, at page 6.
59You were offered several work placements through a government training program after leaving school, but could not maintain employment due to ‘non-compliant and inappropriate behaviour’. When you offended, you were being paid a disability support pension. You have volunteered for the State Emergency Services and Country Fire Authority. Whilst in custody, you have been working in the kitchen.[27]
[27] Exhibit 2, at [35]-[39]; Exhibit 1, at page 6.
60In 1999, when you were 15 years old, you were diagnosed with gynaecomastia, which is swollen male breast tissue caused by a hormone imbalance. You received hormone therapy which induced the onset of puberty. In 2000, when your condition returned, you were unresponsive to hormone therapy and you had surgery to remove breast tissue. You have had erectile dysfunction since you were 14 years old. In 2017, you presented to the emergency department with a growth in your throat.[28]
[28] Exhibit 1, Sentencing Submissions, at page 7; Exhibit 2, at [53]-[59].
61In 2015, you married your husband. You described your relationship with your husband to Mr Candlish as ‘rocky’. Your counsel told me you have had continued phone contact with him whilst you have been incarcerated.[29]
[29] Exhibit 1, at page 7.
62You said that you have never had issues with drug or alcohol.[30]
[30] Exhibit 2, at [42].
63You were diagnosed with Attention Deficit Disorder (‘ADD’) when you were 12 years old, and later Asperger’s Syndrome. You have been prescribed Ritalin, Dexamphetamine and Zoloft as well as anti-psychotics. You have had anger issues and, when were 16 years old, you self-harmed after a bad break-up.[31]
[31] Exhibit 2, at [32] and [43]-[46].
64You said you have difficulties in maintaining friendships and romantic relationships. You attributed this to your low self-esteem and trust issues.[32]
[32] Exhibit 2, at [48]-[52].
65In early 2020, you sought help from your general practitioner. He gave you a mental health care plan, which included a psychologist referral, but, through a misunderstanding, you were unable to see the psychologist.
66Your mother, aunt and grandfather supported you with references to the Court.
67Your mother does not know the details of your offending, but describes you as remorseful.[33] Your aunt writes that you are ‘obviously ashamed of what [you have] done’ and ‘fearful’ of being in prison.[34] Your grandfather knows you as ‘a pleasant young man to have around’ who was ‘no trouble’.[35]
[33] Exhibit 3, at page 1.
[34] Exhibit 4, at page 2.
[35] Exhibit 7, at page 1.
Candlish opinions
68Mr Candlish assessed you on 3, 6 and 9 September 2021.
69In his opinion, based on the Personality Assessment Inventory (PAI) and the Hare Psychopathy Checklist-Screening Version (PCL-SV),[36] you meet the criteria for ‘a moderate personality disorder, with borderline pattern, with prominent features of negative affectivity’.[37] You also meet the criteria for ‘Persistent Depressive Disorder of mild to moderate severity.[38]
[36] Exhibit 2, at [98].
[37] Exhibit 2, at [109].
[38] Exhibit 2, at [110].
70Mr Candlish believes that your social and interpersonal difficulties are related to your personality and character. Any symptoms related to Autism Spectrum Disorder, in his view, ‘do not appear severe in nature’.[39]
[39] Exhibit, at [111].
71According to Mr Candlish, your personality disorder has contributed to your ‘low empathic regard and poor recognition of the harm of [your] actions’. However, your ‘specific sexual interest in children’ is also a causal factor.[40]
[40] Exhibit 2, at [148].
72In Mr Candlish’s opinion, you meet the criteria for ‘Paedophilic Disorder (non-exclusive type, male children)’.[41]
[41] Exhibit 2, at [112].
73Using the Static-99R and the Risk for Sexual Violence Protocol (RSVP) he assessed you to be in the ‘Moderate-High risk category’ for the possession or transmission of child abuse material, and in the ‘Moderate risk category’ for sexual offending against a child.[42]
[42] Exhibit 2, at [134].
74Mr Candlish is ‘cautiously optimistic’ about your prospects for rehabilitation with sustained access to psychological treatment and specialist case management.[43]
[43] Exhibit 2, at [157].
75In his opinion, you are vulnerable in a custodial environment due to your ‘emotional volatility and instability’. You are at a greater risk of conflict due to your ‘sensitivity and reactivity’, increasing the risk of harm to yourself and others.[44] It is likely that your ‘depressive symptoms’ will worsen and your ‘susceptibility to poor coping and suicidality’ will increase with a lengthy term of imprisonment.[45]
[44] Exhibit 2, at [150]-[151].
[45] Exhibit 2, at [152].
76I accept Mr Candlish’s opinions which were unchallenged.
77In February 2022, you were transferred from Port Philip prison to Hopkins. There you have work as a grounds keeper.
78In prison, you have completed programs in stress management, respectful relationships and coping strategies.[46]
[46] Exhibit 6.
79While prison visits have been removed, you have had regular phone contact with your mother and your partner.
80There has been a recent COVID-19 outbreak at the prison. Earlier this month you completed two and a half weeks of lockdown when contact was restricted to lawyers only.
81You have been affected by other lockdowns, for 8 days in September 2021, 22 days in October 2021, 6 days in November 2021 and 18 days following Boxing Day 2021.
Defence Submissions
82Ms Millar, who appeared on your behalf, in comprehensive written[47] and oral submissions conceded your offending is objectively very serious.
[47] Exhibit 1 and Exhibit 5, Further Sentencing Submissions dated 1 August 2022.
83She acknowledged the purpose of child sex offending laws is to protect children from predatory behaviour and general deterrence, denunciation and protection of the community are primary sentencing principles.
84She also submitted, while mitigating factors such as age, previous good character and prospects of rehabilitation are to be given less weight, they are nonetheless relevant considerations.
85She conceded your offending was planned, organised and sophisticated. She also conceded, because you were collaborating with a network of like-minded people, there is a risk some of those people will go on to commit contact offending against children if they have not already done so in the past.
86She acknowledged the presumption of harm to children operated in relation to the images and videos of real children which,
· you uploaded onto the Das Smut channel (charges 4 and 9), and
· you possessed on your phone and computer (charge 10).[48]
[48] Clarkson v The Queen (2011) 32 VR 361.
87She submitted the presumption does not apply to the animated, drawn or CGI produced material (Category 6) which was shared in:
· the Shota Male group (Charges 1, 2 and 3), Shota Tribe log (Charge 5) and Snep C MODS (Charge 6) where real life CAM was prohibited and children under 18 were banned.
88She submitted your collection and dissemination of animated CAM (Category 6) and CAM which depicted no sexual activity (Category 1), is less serious than offending which depicts real victims who have been abused.
89She submitted, the transmission of CAM to your husband (Charges 7 and 8) in a private chat was also less serious, because there was no risk of children being exposed to the material.
90She acknowledged you possessed CAM, which you disseminated or shared with others, for your own sexual gratification.
91She conceded terms of imprisonment must be imposed for your offending.
92She submitted, considering the mandatory head sentences applicable to Charges 2 to 6, to achieve a proportionate overall sentence, which is not crushing, I should make orders for partial concurrency of sentences, at the least.
93She submitted the sentences I impose on Charges 1 and 2, should be wholly concurrent because the offending relates to a single course of conduct which is separated into two charges only because of legislative amendment.
94She submitted the same considerations apply to Charges 7 and 8.
95She submitted, because the CAM you possessed on your phone and computer is wholly linked to the other charges, there should be some concurrency between the sentence I impose on the possession charge (Charge 10) and the other charges.
96In mitigation of penalty she relied on the following factors:
(a) Firstly, your guilty plea for its high utilitarian value and as evidence of your acceptance of responsibility for your actions and remorse.
(b) Secondly, your personality disorder to engage Verdin’s principles 1, 3, 4, 5 and 6.
(c) Thirdly, your prior good character and prospects of rehabiliation.
(d) Fourthly, the impact of COVID-19 on sentencing including,
§The greater hardship of prison due to risk of COVID-19. You contracted COVID-19 on 11 August 2022, the day before you were due to be sentenced.
§Lockdowns,
§Isolation due to removal of prison visits, and
§reduced access to services and activities.
97She submitted you will suffer additional prison hardship, because you are a Federal Prisoner who is denied the benefit of a statutory sentence reduction for Emergency Management Days (EMDs), attributable to lockdowns, which available to State prisoners.
98She submitted, for your early plea, you should receive the maximum statutory discount of 25 per cent in relation to the mandatory minimum sentence on Charges 2, 3, 4, 5 and 6.[49]
[49] Crimes Act 1914 (Cth), s 16AAC(3)(a).
99She also submitted a lengthy non-parole period ought be imposed, to give you the opportunity for ongoing therapeutic treatment to address your personality disorder and manage your risk of reoffending in the community.
Prosecution submissions
100Ms Breckweg, who with Mr Manning, appeared for the prosecution, in detailed written[50] and oral submissions, contended your offending is objectively extremely serious considering:
(a) the maximum penalties for the offences[51] which ranged from 15 years imprisonment (Charges 7, 8, 9 and 10) to 30 years imprisonment (Charge 2).
(b) The large number of charges, ten involving five different offence types, including the aggravated offence of accessing and transmitting CAM, more than three times, and involving two or more people.
(c) The groups, which you created, attracted hundreds of like-minded individuals, with a sexual interest in children, in five countries.
(d) The depiction of real children in some of CAM you supplied to Das Smut telegram channel (Charge 9) and possessed (Charge 10).
(e) The lengthy duration of your offending (29 months). It was not spontaneous nor isolated.
(f) The greater criminality of many instances of offending comprised in rolled up Charges 7, 8 and 9.[52]
(g) The high degree of organisation and planning to your offending.[53]
(h) Your awareness of your wrongdoing by your admitted use of encrypted servers, to transmit CAM, and of specialist software, to remove CAM from your computer hard drive.
[50] Exhibit B, Sentencing Submissions dated 8 November 2021 and Exhibit D, Supplementary Submissions dated 5 August 2022.
[51] Charge 1 – 25 years; Charge 2 – 30 years, Charges 3, 4, 5 and 6 – 20 years, Charges 7, 8, 9 and 10 – 15 years.
[52] R v De Leeuw [2015] NSWCCA 183.
[53] Shota Tribe log channel was used to assist in the moderation and control of other groups.
101She submitted the seriousness of your offending warrants:
· for the offence charged under sub section 474.24A(1) (Charge 2), a head sentence above the mandatory minimum of 7 years, and
· for the offences charged under sub section 474.23A(1) (Charges 3, 4, 5 and 6), a head sentence above the mandatory minimum of 5 years, even allowing for statutory discounts for your guilty plea and cooperation.
102She submitted, your control and moderation of the Shota Male Group (Charge 3), which had 450 members, is the most serious of the control offences.
103She submitted your control of the Shota Tribe log channel (Charge 5), which was used to regulate the sharing of CAM in other groups, the Das Smut channel (Charge 4), which was used to transmit CAM depicting real victims, and SnepC Mod group (Charge 6), which had 18 other members, were also of a serious order.
104She submitted, whilst your communications with your husband were in a private chat, they nevertheless demonstrate your clear sexual interest in prepubescent boys.
105She submitted your possession of 5273 child abuse images and 286 videos, which includes the material transmitted on the online platforms, as well as your computer and phone, was also serious. She submitted that two thirds of the material that fell into Category 1 CAM, that is material which does not involve sexual activity, does not materially diminish the objective gravity of your offending.
106She accepted your possession and dissemination of animated CAM (Category 6), and CAM which did not depict any sexual activity (Category 1), while serious, is less so than offending which depicts real victims who have been abused
107She submitted primary weight should be given to general and specific deterrence, and less weight to your otherwise good character and prospects of rehabilitation, because of the paramount interest in promoting the protection of children.
108She accepted your guilty plea was made at the first reasonable opportunity.
109She accepted the public-health pandemic has increased the burden of imprisonment and a guilty plea entered during the pandemic attracts greater weight in mitigation than in ordinary times.
110She submitted the unavailability of emergency management days does not cause an additional burden an offender.[54]
[54] The reasons for the submission are set out in Exhibit D at [5].
111She accepted Verdins principles are engaged to moderate your sentence, although, in her submission, only to a limited extent.
112She submitted, because the offending in Charges 1 and 2 substantially overlap and are separated because of a legislative change,[55] the sentences on these charges should be wholly concurrent and because the offending in Charges 7 and 8 substantially overlap and are separated because of a legislative change,[56] the sentences on these two charges should be wholly concurrent.
[55] Legislative change occurred on 23 June 2020
[56] Legislative change occurred on September 2019
113She submitted, otherwise, there should be a degree of cumulation between each of the sentences to reflect the additional criminality of each offence.[57]
[57] Subsection 19(5) directs a presumption of cumulation. If the court is of the opinion wholly or partially concurrent sentences should be imposed, it is required to state its reasons (ss 19(6) and 7)).
Consideration
114Child pornography offences are considered especially grave by both the courts and the legislature.[58]
[58] Ibid, at [19].
115The sentencing principles are well-established.[59]
· The problem of child pornography offending is an international one and is difficult to detect.
· The possession of child pornography material creates a market for the continued corruption and exploitation of children.
· It is not a victimless crime.
· There is a paramount public interest in promoting the protection of children.
· General deterrence is a paramount consideration in sentencing child pornography offenders.
· Generally, a person’s prior good character is to be given less weight.
· The objective seriousness of offending by using the Internet to exploit children, even if the offender is not themselves procuring such exploitation, is extremely serious.[60]
[59] Ibid, at [18] – [25].
[60] Ibid, at [22].
116I must make an assessment of the objective seriousness of your offending.
117Over a period of 29 months,
· you created and controlled two online groups and two online channels, in a global network of persons who had a sexual interest in children, to transmit CAM,
· you supplied CAM to one channel,
· you transmitted CAM to your husband, and
· you possessed a large number of files of CAM on your phone and computer.
118The larger group, Shota Male, which contained 1826 Category 6 child abuse images, had 450 members. The smaller, SnepC MODS, which contained 291 photographs and 8 videos of Category 6 (anime) CAM, had 19 members when you were detected.
119The Shota Tribe log contained 14 category 6 (anime) child abuse images and one category 6 (anime) child abuse video, all anime. The other channel, Das Smut2 channels contained 131 images and 103 videos of categories, 1, 2, 3 and 4 CAM which depicted actual children.
120You also shared 14 Category 1 images and videos, and 12 Category 6 images and videos with your husband.
121And you had 5273 child abuse images and 286 child abuse videos on your phone and computers.
122There was a degree of planning, organisation and sophistication to your criminal scheme. And also a degree of deception; you used encrypted servers, you changed settings to conceal the identity of users who posted material and you used the dark web to search for CAM.
123In the majority of the CAM transmitted, actual children were not used in the creation of the material and, the majority of the material on your devices was the lowest category 1 content. While possession of anime material is not a victimless crime[61] and all CAM is exploitative, the nature and content of the material falls to the lower end of seriousness.[62]
[61] R v Edwards [2019] QCA 15.
[62] See Godfrey v the Queen [2013] WASCA 247 and R v Hutchinson [2018] NSWCCA 152.
124You did not profit from your offending and, in respect of the aggravated transmission offences (Charges 1 and 2), you regulated the Shota Male Group to restrict membership to adults, to ban real life content and sexual solicitation and limit image sharing and content.
125Your offending in relation to the other group and two channels involved the transmission of less CAM over a relatively short periods of time.
126On 13 July 2020, you created the Shota tribe log channel to regulate your activities. A small number of Category 6 images and videos were shared in the channel.
127On 21 August 2020, you created the Das Smut channel and, on 2 days, you uploaded 234 files of Categories 1, 2, 3 and 4 CAM which depicted real children.
128You used your phone to access the SnepC Mods group between 27 August 2020 and 1 September 2020. On 2 September 2020, the group, which identified you as the owner, contained 299 files of Category 6 CAM.
129Overall, considering all the features I have referred to, I assess your offending, apart from Charges 7 and 8, to be in the low range, that is, somewhere between the middle and the bottom of the range, of objective seriousness.[63]
[63] R v Hutchinson [2018] NSWCCA 152, at [59] and [60].
130I consider your offending, in relation to Charges 7 and 8, where you transmitted CAM to your husband, in private text based Telegram chat, falls at the bottom of the range.
131There are significant subjective factors in mitigation.
132Firstly, you entered your guilty plea at the earliest opportunity. It has very high utilitarian value particularly when made at a time when the community and the courts are afflicted by the effects of the COVID 19 pandemic.[64] It is also evidence of your acceptance of responsibility for your actions and remorse.
[64] Worboyes v R [2021] VSCA 169, at [39].
133Secondly, you cooperated with law enforcement agencies in their investigation of your offending by providing the passwords to your digital devices when you arrested you and making frank admissions of your involvement when they interviewed you.
134I will deal with these two matters separately insofar as section 16AAC(2) of the Crimes Act 1914 (Cth) requires.
135Thirdly, in the context of an unstable upbringing and mental and physical health problems, you have a borderline personality disorder which contributed to your offending.[65] The primary cause was your sexual interest in children.
[65] See Daylia Brown v the Queen [2020] VSCA 212 and DPP v Herrmann [2021] VSCA 160.
136I am satisfied your moral culpability is reduced, and general deterrence and specific deterrence are less important, to a moderate degree.
137I am satisfied your punishment is to be additionally mitigated because, due to your psychological conditions, borderline personality disorder and depression, prison will be harder for you and those conditions will likely deteriorate in the prison environment.
138Fourthly, because of the public health pandemic, gaol is harder for all prisons due to the restrictions on prison visits, the cancellation of programs and lockdowns, with the risk of Covid-19 infection.
139Prisons have been regularly locked down during the pandemic. I accept, the denial of a reduction in sentence for emergency management days justifies a sense of grievance for federal prisoners, albeit to a modest degree.
140I also take into account 11 months delay, following your plea hearing, which occurred, initially, because the New South Wales Court of Appeal[66] was to consider the operation of the novel mandatory minimum penalties provisions of the Crimes Act 1914 (Cth)[67], and later when you contracted COVID-19 in prison.
[66] R v Delzotto [2022] NSWCCA 117.
[67] Crimes Act 1914 (Cth), s 16 AAA.
141And, while your prospects of rehabilitation and otherwise good character to be given less weight[68] they are not to be ignored.
[68] DPP (Cth) v Garside (2016) 50 VR 800, at [63].
142Considering, before you were arrested, you had tried to get assistance to deal with problems which contributed to your offending and, since you were remanded in custody, you have taken the work and programs opportunities offered to you, and the continued support of your family, I assess your prospects of rehabilitation as reasonable.
143Charge 2 carries with it a mandatory minimum sentence of 7 years imprisonment. Charges 3, 4, 5 and 6 carry a mandatory minimum sentence of 5 years imprisonment.
144The minimum sentence can be reduced only to take into account a guilty plea, up to 25%, and to take into account your cooperation with law-enforcement cooperation, also up to 25%.[69]
[69] Crimes Act 1914 (Cth), s 16 AAC(2).
145I have taken considerable guidance from judgement in Delzotto, the recently decided New South Wales Court of Criminal Appeal case.[70]
[70] R v Delzotto [2022] NSWCCA 117.
146In accordance with Dellzotto, and the authorities the Court of Appeal referred to,[71] I must regard the minimum penalty as prescribing the lower limit of the range of appropriate sentences in the same way the maximum penalty is used to prescribe the upper limit.[72]
[71] Bahar v R (2011) 45 WAR 100, Karim v the Queen (2013) 83 NSWLR 268 and Magaming v the Queen (2013) 252 CLR 381.
[72] Dellzotto, at [24].
147I must take into account both the objective seriousness of your offending and the significant mitigating factors to determine where this case falls within those limits.[73]
[73] Ibid, at [84].
148In Delzotto, no exception was taken to the sentencing judge’s 25% discount for the offenders plea and 5% for cooperation with law enforcement agencies by providing passwords to his devices and making full admissions when questioned.
149In my view, the same sentencing discounts, in relation to Charges 2, 3, 4, 5 and 6, are appropriate in your case.[74]
[74] The court rejected an argument the power conferred by s 16 AAC(2) to reduce a sentence below the minimum period could only be exercised in the bottom of the range category of case, Dellzotto, at [3].
150Because you are to be sentenced for a number of offences I must have regard to the principle of totality. This involves the consideration of questions of concurrency, accumulation and individual sentences.
151There is a statutory presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences, unless the court is satisfied that imposing the sentence in a different manner would result in sentences that are of a severity appropriate in all the circumstances.[75]
[75] Crimes Act 1914 (Cth), ss 19 (5) and (6).
152In my view the imposition of wholly cumulative sentences would produce a wholly disproportionate total effective sentence.
153I will make orders for part cumulation and concurrency to ensure, in accordance with the principles of totality and proportionality, the sentences I impose are of a severity appropriate in all the circumstances.[76]
[76] These reasons will be entered in the records of the court in accordance with s 19(7), Crimes Act 1914 (Cth).
154I will order the sentence I impose on Charge 2 be served concurrently with the sentence I impose on Charge 1, and I will order the sentence I impose on charge 8 to be served concurrently with the sentence I impose on charge 7, for the reasons the prosecution fairly advanced.
155I will otherwise make orders for part cumulation to reflect the additional criminality of those offences while ensuring your total effective sentence is a proper measure of your overall criminality.
156To promote your rehabilitation, I will also fix a longer than usual parole period to allow for you to advance your reformation in the community under supervision upon your release.
157Please stand, Mr Caldwell.
158By the sentence impose I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or a similar kind. I must also look to your rehabilitation, taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows.
(a) On Charge 1, accessing and transmitting child pornography material using a carriage service, you are convicted and sentenced to 6 years and 8 months imprisonment. This sentence will commence 14 September 2022.
(b) On Charge 2, accessing and transmitting child pornography material using a carriage service, you are convicted and sentenced to 6 years and 4 months imprisonment. This sentence will commence 14 September 2022.
(c) On Charge 3, controlling and moderating an electronic service, used for child-abuse material you are convicted and sentenced to 4 years and 6 months imprisonment. This sentence is to commence 4 years before the expiration of the sentence imposed on Charge 1.
(d) On Charge 4, creating and maintaining an electronic service used for child-abuse material you are convicted and sentenced to 4 years and 3 months imprisonment. This sentence is to commence 3 years and 11 months before the expiration before the expiration of the sentence imposed on Charge 3.
(e) On Charge 5, controlling an electronic service, used for child-abuse material you are convicted and sentenced to 3 years and 6 months imprisonment. This sentence will commence 3 years and 3 months before the expiration of the sentence imposed on Charge 4.
(f) On Charge 6, controlling an electronic device used for child-abuse material, you are convicted and sentenced to 3 years and 9 months imprisonment. This sentence will commence upon the commencement of the sentence imposed on Charge 5.
(g) On Charge 7, transmitting child pornography material using a carriage service you are convicted and sentenced to one year’s imprisonment. This sentence will commence on 14 September 2022.
(h) On Charge 8, transmitting child-abuse material using a carriage service you are convicted and sentenced to one year’s imprisonment. This sentence will commence on 14 September 2022.
(i) On charge 9, supplying child-abuse material for use through a carriage service, Das Smut, you are convicted and sentenced to 2 years and 6 months imprisonment. This sentence will commence 2 years and 3 months before the expiration of the sentence imposed on Charge 6.
(j) On charge 10, possessing child-abuse material obtained or accessed using a carriage service you are convicted and sentenced to 3 years imprisonment. This sentence will commence 2 years and 3 months before the expiration of the sentence imposed on Charge 9.
159Your total effective sentence is 9 years imprisonment.
160I direct that you serve a minimum period of 5 years before being eligible for parole.
161I declare you have already served 742 days of your sentence, by way of pre-sentence detention.
162While there is some artificiality to the exercise, pursuant to s.6AAA of the Sentencing Act,[77] I declare but for your plea of guilty I would have sentenced you to a total effective sentence of 12 years imprisonment and fixed a non-parole period of 7 years.
[77] Staples v The Queen [2021] VSCA 307, at [86].
163You now stand convicted of ten Class 2 offences under the Sex Offenders Registration Act. Under the Act you are now a registrable offender and you must comply with the reporting conditions of the Act for life.
164You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time.
165It is an offence punishable by imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
166You will be given a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these conditions. You will be asked to sign an acknowledgement that you have received it.
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ANNEXURE A
Child Exploitation Tracking System (CETS) Scale
CATEGORY LEVEL CETS/ C4P CATEGORY GUIDE 1 CEM – No Sexual Activity Depictions of Children with No Sexual Activity – Nudity, surreptitious images showing underwear nakedness, sexually suggestive posing, explicit emphasis on genital areas
2 CEM – Child Non-Penetrate Non-Penetrative Sexual Activity between children or solo masturbation by a child
3 CEM – Adult Non-Penetrate Non-Penetrative Sexual Activity between child(ren) and adult(s). Mutual masturbation and other non-penetrative sexual activity.
4 CEM – Child/ Adult Penetrate Penetrative Sexual Activity between child(ren) and adult(s) – Including, but not limited to intercourse, cunnilingus and fellatio.
5 CEM – Sadism/ Bestiality Sadism, bestiality or humiliation (urination, defecation, vomit, bondage, ect)
6 CEM – Animated or virtual Anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
0
16
0