CDirector of Public Prosecutions v Flannery (a pseudonym)
[2025] VCC 904
•30 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JONATHON FLANNERY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2025 | |
DATE OF SENTENCE: | 30 June 2025 | |
CASE MAY BE CITED AS: | CDPP v Flannery (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 904 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Produce child abuse material; use carriage service to transmit child abuse material
Legislation Cited: Crimes Act 1958; Crimes Act 1914; Sex Offenders Registration Act 2004; Sentencing Act 1991; Commonwealth Criminal Code
Cases Cited:Hurt & Delzotto v The King [2024] HCA 8; Trinh v The King [2024] VSCA 61
Sentence: 3 years 8 months’ imprisonment with a non-parole period of 2 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Commonwealth) | Mr A. Sprague | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. McGlone | Victoria Legal Aid |
HER HONOUR:
1Jonathon Flannery,[1] you have pleaded guilty to one charge of produce child abuse material (Charge 1) and one charge of using a carriage service to transmit child abuse material (Charge 2).
[1] A pseudonym.
Background
2You were born in Melbourne, and you were raised in Melton by your mother. Your father left you and your mother when you were two years old. You did not have contact with him for many years. You do not have any siblings, and your childhood was characterised by financial stress and frequent moves.
3You began your secondary education at a school in Gisborne for six months, before you moved to Melton and attended a school in Sydenham from Years 9 to 10. You found school difficult. You were diagnosed with ADHD and oppositional defiant disorder, which caused frequent behavioural issues and required additional supervision. You were bullied at school including being a victim of threats and intimidation.
4You completed a 12-month TAFE course after you left school, although you cannot remember in what field. You began working in your first job, at a nameplate etching company in Niddrie.
5You moved to New Zealand when you were 19 years old for a romantic relationship which lasted for nine months. You then moved to Michigan in the United States where your mother was living with your stepfather.
6You got married when you were living in the USA to a woman named Vanessa.[2] You lived together in Texas for five years and had a son together in 2012. You say that that relationship was initially a happy one, however, your relationship grew strained as a result of financial and housing pressures. You left Texas for Michigan in 2014, and you lost contact with your son.
[2] A pseudonym.
7In Michigan you commenced a relationship with Fiona.[3] You lived with her until you were charged with sexually assaulting her daughter, whom I was told was 14 years old at the time. You report that this offending involved touching the child’s breasts and trying to kiss her. You said that you were sexually attracted to this child. Your counsel submitted that you were younger and did not earn as much as Fiona, and that abuse of alcohol and drugs were a significant part of that relationship.
[3] A pseudonym.
8You pleaded guilty to and were convicted of the offending against Fiona's daughter on 15 November 2018. You served a 12-month sentence of imprisonment, after which you were deported back to Australia. You said that your experience in the US prison was 'hell', and while you report no direct assaults against you, you say there was significant violence in that environment.
9When you returned to Australia you reconnected with your biological father with whom you lived for 18 months near Ararat. You then moved to Bacchus Marsh.
10You initiated contact with Alicia,[4] who you knew from TAFE prior to you moving overseas. You made contact with her and quickly began a relationship. She moved into your home in Bacchus Marsh, and you told Ms Cidoni who assessed you for the plea that you were content together. I note that whilst Alicia was described in the prosecution opening as having an intellectual disability, your counsel submitted that this was actually a learning disability.
[4] A pseudonym.
11I turn now to the offending.
Circumstances of offending
12This occurred in February and April 2022. You were 34 at the time.
13The victim of Charge 1 was a six-year-old boy at the time you offended against him in February 2022. His mother was your stepsister.
14In early 2022, when visiting the victim’s grandparents, you took photos of this boy, your nephew. One photo showed his penis fully exposed and the other showed him lying on his front with his buttocks exposed. You told him not to tell anyone you had been taking these photos of him. You told Ms Cidoni that you derived pleasure from making your nephew pose for these photos.[5]
[5]Cidoni Report [18]
15Charge 2 relates to three Wickr messages you sent your then partner, Alicia, on 28 April 2022. At the time she was around six months' pregnant with your daughter. Those messages include you stating:
(a) 'Can’t wait to eat your and [Ava’s][6] pussy together.'
(b) 'Daddy about to use [Ava].'
(c) 'Hmmm, yes baby, I’m so hard right now. Can’t wait to fuck our daughter hard.'
[6] A pseudonym.
16It was submitted that at the time you sent the messages your daughter had not yet been named Ava, that she was given that name after her birth. Despite that submission you were clearly writing about your unborn daughter, sending the messages to that child's mother.
17Your barrister submitted that you sent these messages as you were not coping with the stress of pending fatherhood, and that you were either consciously or unconsciously sabotaging that relationship in this manner.
Subsequent Events
18Ava was born in July 2022.
19The offending came to light when Victoria Police searched your home in late January 2023. At the time your daughter was six months old. The police seized items including a Samsung mobile phone. You were interviewed and answered 'no comment', as was your right, but you did provide the access codes to the phone and to your laptop computer.
20Examination of the Samsung phone led to discovery of the two images which are the subject of Charge 1 and the messages which are the subject of Charge 2. The photos appeared to have been deleted, but examination of the phone showed that they had been on it at some point. Some time after this the identity of the boy in the photos was ascertained and you were re-interviewed. You again made 'no comment'. You were charged in March 2024.
21Following these charges you have not had contact with either Alicia or your daughter, as they are both protected by a family violence intervention order. You expressed depression over the separation from your daughter.
22You say that you have not formed friendships throughout your life and that your only significant bonds have been your romantic relationships. You say that your mother and stepfather are your primary source of support. Your father no longer has any contact with you following the discovery of these offences.
Mental Health
23You were sexually abused on a number of occasions as a child. Child Protection Services have notifications regarding abuse by a family member at age two, and another at age five by a neighbour. You were also abused by your babysitter’s son from ages eight to nine. This abuse continued for months until you attempted suicide by standing on train tracks. A teenager rescued you and your mother ceased contact with that babysitter. You say that you tried to commit suicide again at age 14 because you were 'sick of the nightmares'.
24You attempted suicide more recently. Your partner at the time, Alicia, called an ambulance and you were admitted to Western Hospital. You report that you attempted suicide after the separation also, but you did not go through with it. You have ongoing thoughts of suicide and report that you have no current plans or intentions surrounding this, however. With the end of your relationship with Alicia and your father cutting off contact with you, you have no support network of friends or family here in Australia.
25You have ongoing contact with the Grampians Health psychiatric team.
26You experience episodes of paranoia once or twice a month and describe sensations of chest heaviness and auditory hallucinations, such as hearing voices and knocking on the door. You see yourself as a victim and externalise blame. For example, you say that if you had received treatment for your paedophilia the offending would not have occurred, but you, yourself, took no steps to address this pathology. Ms Cidoni thought your insight and judgment were limited.
27Ms Cidoni considered that you met the DSM-5 criteria for:
(a) Paedophilic disorder. You have a pattern of sexual interest in pre-pubescent children, and you admitted to deriving pleasure from photographing your nephew and accessing child abuse material.
(b) Post-traumatic stress disorder related to your experiences of sexual abuse as a child and being in prison in the USA.
(c) Schizoid personality traits which are patterns of emotional detachment and limited desire for interpersonal relationships. Your history of forming relationships indicated that you do not exhibit the level of complete detachment which would lead to a diagnosis of this as a disorder.
(d) Adjustment disorder with depressed mood related to you having been charged and the loss of your relationship with Alicia and your daughter.
(e) Finally, substance abuse disorder in sustained remission.
28Ms Cidoni considered that your mental health issues likely interacted with and compounded each other. She considered that these issues and your inability to sustain healthy relationships may have intensified your use of maladapting coping mechanisms. While she considers that you lacked the internal resources to regulate your impulses, she noted that you were aware of the destructive and criminal nature of your actions.
29Ms Cidoni considered that your reliance on substances, such as cannabis, to manage insomnia and emotional distress, may have led to diminished impulse control and lowered inhibitions, potentially making you more prone to risky and illegal behaviour.
Sentencing considerations
Gravity of Offending
30Charge 1 covers two photographs you took of your nephew. He was six at the time. He was staying with his grandparents, one of whom was your father. You took advantage of your access to your young nephew, causing him to undress and then taking photos of him. He knew you were doing this. You told him not to tell anyone, and he did not. You told Ms Cidoni you derived pleasure from making your nephew pose for these photos. The offending was only discovered by virtue of the search of your phone by the police.
31The victim impact statement read by your stepsister sets out the many and profound impacts of your offending on your nephew. His sense of safety has been destroyed, shaking his relationships with his grandfather and mother, he avoids photos, is easily frustrated and struggles with regulating his emotions. He feels that your offending impacts how others see him, and he fears that they are mocking him for his fears and reactions.
32Production of child abuse material can cover a wide variety of conduct ranging from text descriptions to photography and video.[7] Your case involves directly interacting with the child, a person who should have been able to trust you as a related adult, and who was in a home where he should have been safe. The presumed harms known by the law are demonstrated on the material before me.
[7]Crimes Act 1958 (Vic) s51A
33Whilst a range of aggravating features are not present, I am sentencing you for what you did rather than what you did not do.
34Charge 2 involves three messages sent to your then partner who was pregnant with your daughter at the time. Although the child abuse material in this charge was text rather than images or video, the messages were explicit and vile. Sending them to a mother about your own unborn child aggravates the offending. Whilst no victim impact statement was provided by the recipient of these messages, I cannot draw any implication from this.[8]
[8]Crimes Act 1914 s16AB(3)
35Even accepting, as was submitted by your counsel, that you sent these messages to cause that relationship to break down, this is hardly mitigating. Whilst the offending covered by this charge was limited in time and number of messages, the content, and to whom it was sent, lead me to conclude that this offence is not at the lowest level of gravity for such a charge.
36Neither charge can be treated as isolated or as out-of-character behaviour by you. Each is a manifestation of your diagnosis of paedophilia. Ms Cidoni’s report sets out how your own history of having been sexually abused as a child has impacted who you are today:[9] And I have inserted there a quote from Ms Cidoni's report, paragraph 96, which I will not read out at this time, it will be included in my final reasons for sentence.
'His early experiences of sexual abuse contributed to unhealthy relationship patterns and deviant sexual interests. These experiences likely created feelings of detachment and distrust, which made it difficult for him to seek support or form healthy relationships. Over time this vulnerability, shaped by years of harm and isolation, appears to have led him to repeat these damaging patterns, resulting in sexual offending. Research demonstrates that early sexual abuse can disrupt typical developmental processes, often leading to attachment difficulties, distrust and a tendency to form unhealthy relationship patterns. Such trauma increases the likelihood of maladaptive coping mechanisms including behaviours that may mirror or re-enact early adverse experiences. Studies in attachment theory and the cycle of abuse indicate that individuals with unresolved childhood trauma are more prone to repeating harmful patterns in adulthood, driven by unmet emotional needs or unresolved distress. These findings suggest that Mr Flannery’s early experiences of abuse likely impaired his ability to build secure, healthy relationships, contributing to a cycle of behaviours now reflected in his current charges.'
[9]Cidoni [96]
37Your counsel did not submit that your moral culpability was reduced. Rather he submitted that I should take this history and the impact of it on you, into account as part of your history and as an explanation for your behaviour. I accept that is the case.
Pleas of Guilty
38I accept that you pleaded guilty at an early stage at the second committal mention. This has saved expense to the community with no committal or trial being necessary and has real utilitarian value. There is value also for a victim of crime to have an offender acknowledge their wrongdoing.
39I accept your counsel’s submission that you have a degree of understanding about the impact of your offending on those involved and that this was part of your motivation for pleading guilty. This is confirmed by Ms Cidoni who said you 'remained aware of the destructive and criminal nature of [your] actions.'[10]
[10]Cidoni [93]
40Thus, the pleas of guilty give rise to significant moderation of your sentences.
Co-operation with the Authorities
41I accept that you did not hinder the investigation, and you provided your access codes or logins to your phone and computers. You made a 'no comment' record of interview, as was your right, and you provided no additional information to the investigators other than your login details. I take your co-operation with the authorities and the extent of it into account in mitigation of your sentences.
Verdins
42I accept Ms Cidoni’s opinions that your mental health will make prison more difficult for you and that prison will likely cause your mental health to deteriorate. I give both matters moderate weight in mitigation.
Prospect of Rehabilitation
43Ms Cidoni assessed you as presenting a high risk of further sexual offending, without treatment. I consider that your prospects for rehabilitation are guarded. It is concerning that after a term of imprisonment in the United States, which you described as 'hell', and your deportation back to Australia, you committed further offences. You took no steps to address the issues causing you to offend since having been charged. Whilst you state that you are willing to engage in programs or treatment to address your paedophilia, you have been passive about doing anything yourself.
44Your avoidant and detached personality traits and the complex issues which you face will all need to be addressed. Even if you are required to undergo offence- specific treatment or courses, which is likely, this will not remove all risk of reoffending.
45In light of your history specific deterrence has real force in the sentencing discretion.
46The next part of my sentencing reasons covers the law related to the mandatory minimum. I am not going to read all that out, it will be included in the final version of my sentencing remarks.
Commonwealth Sentencing Provisions
47I must have regard to matters in s16A and must not impose sentence of imprisonment unless no other sentence is appropriate, in all the circumstances.[11]. One of those circumstances is that a minimum sentence applies to Charge 2, by operation of s16AAB. This means I must have regard to the two yardsticks of the maximum penalty, and the minimum penalty. In Hurt & Delzotto v The King Edelman, Steward and Gleeson JJ said: [12]
… the minimum serves a double function: (i) restricting sentencing power to the minimum period of imprisonment, subject to the exceptions; and (ii) providing a yardstick, the opposite of the maximum term of imprisonment, for the exercise of the sentencing discretion. As a yardstick that imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, the minimum term operates to increase the appropriate term of imprisonment generally for that offence.
[11]Crimes Act 1914 s17A
[12]Hurt & Delzotto v The King [2024] HCA 8, [54]; see also [90], [93], [107]
48The prosecution submission referred to [104] of Hurt & Delzotto and set out that I should:[13]
first engage in an instinctive synthesis of all relevant factors, except for the plea of guilty and any co-operation; … then proceed to give separate consideration to ss 16A(2)(g) and (h) factors; and only then determine whether the s 16AAC mechanism is required so as to move below the prescribed mandatory minimum term.
[13]Prosecution Submissions [23]
49At paragraph 104 the majority in Hurt & Delzotto had said:
The discretion in s 16AAC(2) applies where it is "appropriate to reduce the sentence", implying that a legitimate procedure will involve determining a prima facie sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the discount. The subsequent and transparent consideration of the discounts in s 16A(2)(g) (plea of guilty) and s 16A(2)(h) (co-operation with law enforcement agencies) reinforces the utilitarian goals underlying those considerations.
50Taylor JA, in Trinh v The King explained the process as follows:[14]
Because of the practical benefits to the legal system of an offender pleading guilty and/or assisting authorities in the investigation of their own offending or child sexual offending generally, an offender who has done one or both of those things may, but not must, receive a sentence less than the statutory minimum. The sentencing process requires the judge to determine a prima facie sentence – which involves (but is not limited to) consideration of the offending measured against the yardstick minimum term which is for the ‘least worst possible case’ deserving of imprisonment – and then to overtly consider whether the fact and quality of either the plea or cooperation or both renders it ‘appropriate’ in all the circumstances to impose a sentence less than the prescribed minimum. This does not involve ‘double counting’ of a guilty plea and/or cooperation. Rather, it requires a sentencing judge to separately and expressly consider whether the instinctive synthesis of all relevant sentencing considerations has given adequate expression to those matters if the sentence remains at or above the statutory minimum. In all cases an offender who has pleaded guilty and/or cooperated with law enforcement agencies will receive a benefit for the plea and cooperation. In only some cases will that benefit extend to a sentence of imprisonment of less than the minimum term.
[14]Trinh v The King [2024] VSCA 61, [44]
Comparable Cases
51I was referred to three cases by the prosecution, each of which involved charges of using a carriage service to access child abuse material and one charge of possessing child abuse material. Although each charge in those cases fell under s474.22(1) of the Commonwealth Criminal Code, the conduct founding the offence varied.
52You fall to be sentenced on Charge 2 for sending text-based child abuse material which you created to your then partner, the mother of the unborn-child you were describing. I see a qualitative difference between that conduct and a person accessing child abuse material for their own gratification.
53I was not provided with any comparable cases relating to Chage 1, but I note the sentence imposed on such a charge in the case of Trinh, which is a case I referred to when going through the law.
Sentences
54As I have already noted, I consider each charge to be above the lowest end of the range. General deterrence and specific deterrence together with protection of the community are important sentencing factors. Furthermore, denunciation and just punishment all require real expression in the sentences imposed.
55Charge 2 carries a mandatory minimum term of four years and a maximum penalty of 15 years' imprisonment. Both are yardsticks to which I must have regard: the maximum being the sentence which could apply to the worst possible case, and the mandatory minimum being the lowest sentence which can be imposed for offending in the least-worst possible case.[15]
[15]Hurt & Delzotto [39]
56As I have noted earlier, I do not consider Charge 2 to be at the lowest end of the range. Synthesising all the objective and subjective factors, including your plea of guilty and the extent of your co-operation with the authorities, I do consider, however, that the operation of s16AAC permits a sentence to be imposed below the statutory minimum of four years’ imprisonment.
57The sentences are as follows:
58On Charge 1, you are sentenced to 12 months’ imprisonment. Given you will then serve the Commonwealth sentence, I will not impose a non-parole period on that charge.
59The sentence on Charge 2 is three years and two months’ imprisonment. I set a non-parole period of two years on that charge.
60The sentence on Charge 1 commences immediately. The sentence on Charge 2 commences after you have served six months of the State sentence.
61The combined result of both sentences is that the total term of imprisonment you will have to serve is three years and eight months. You will serve six months of the State sentence before commencing the Commonwealth sentence, so the time you must serve before becoming eligible for parole is, having regard to both sentences, two years and six months.
62Pursuant to s18 of the Sentencing Act, I state that you have already served 17 days of pre-sentence detention, and I direct that that declaration be entered into the records of the court.
63Pursuant to s6AAA of the Sentencing Act 1991, I state that had you not pleaded guilty I would have imposed a sentence of five years and three months' imprisonment covering both charges.
Other Orders
SORA
64Finally, you are already subject to the Sex Offenders Registration Act by reason of your prior conviction, however, the findings of guilt on Charges 1 and 2 also make them registrable offences under that Act. Thus, having been convicted of three Class 2 offences, you are now required to report pursuant to the Sex Offenders Registration Act for the rest of your life.
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