CDirector of Public Prosecutions v Glavas
[2025] VCC 983
•11 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00261
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| HENRY GLAVAS |
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JUDGE: | HER HONOUR JUDGE BRECKWEG | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2025 | |
DATE OF SENTENCE: | 11 July 2025 | |
CASE MAY BE CITED AS: | CDPP v Glavas | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 983 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: One charge of grooming a person believed to be under 16 – presumption of immediate imprisonment - requirement to establish ‘exceptional circumstances’ – undercover police operative – delay
Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:R v Gajjar (2009) 192 A Crim R 76; Gifford v R [2016] NSWCCA 302; Meadows v the Queen [2017] VSCA 290; R v Jones (1999) 108 A Crim R 50; DPP (Cth) v Boyle (a pseudonym) [2016] VSCA 269; Mouscas v R [2008] NSWCCA 181; R v Bredal [2004] NSWCCA 75; R v Verdins [2007] VSCA 102; R v TBE [2024] QCA 204; Crowder (a pseudonym) v The King [2024] VSCA 211
Sentence: 20 months imprisonment; order to serve 3 months imprisonment before being released by recognisance pursuant to s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) in the sum of $1000 with conditions – good behaviour 3 years – other mandatory conditions - Sex Offenders Registration Act - reporting for 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Hough | Solicitor for the Director of Public Prosecutions (Cth) |
| For the Accused | Mr J. Kantor | Ellinghaus and Lindner Lawyers |
HER HONOUR:
Introduction
1Henry Glavas, you have pleaded guilty to one charge of using a carriage service to groom a person believed to be under 16 years of age contrary to s 474.27(1) of the Criminal Code (Cth).
2The offence carries a maximum penalty of 15 years imprisonment.
Circumstances of the offending
3The agreed facts of your offending are set out in the Summary of Prosecution Opening (Exhibit A) which included Annexures A and B which were excerpts from WhatsApp conversations you engaged in, and Annexure C which was an excerpt from a telephone call on 20 April 2023. In summary, your offending covers your communications between about 30 March and 9 May 2023 with a person you believed was a female child named Chelsea who was 14 years old. Unbeknownst to you, Chelsea was in fact an undercover police operative or assumed online identity (AOI).
Chatiw.com conversation
4I will not repeat the entirety of the facts but on 30 March 2023, an AOI (“Chelsea”) logged into online chat room Chatiw.com where he assumed the identity of a female named Chelsea who was aged 14. On the same day, ‘Chelsea’ received a private message from you using the username ‘Harvey’.
5Early in the conversation, Chelsea asked you your “asl” (age, sex, location), to which you responded that you were “male 61 Melbourne”. You then asked Chelsea where she was from and how old she was, to which she replied, that she was “14 f syd” (14, female, from Sydney).
6Shortly afterwards you initiated sexualised chat with Chelsea, asking whether she was a virgin, ever got horny, and if she would let boys or men touch her boobs and pussy. You asked about meeting up and engaging in sexual activity, asking "if we were to meet up would you let me touch you", and you stated that although you do not live in Sydney, where she lives, “…I can always fly in", “I’ll rent a car and pick you up”. You stated, “I would treat you like a princess”, “…[s]poiled with gifts and pleasure” and “I would touch you and give you so much good feelings”.
7During the conversation, you asked Chelsea questions about whether she masturbated (using sexually explicit language), and she responded, “omg no im probs heaps shy”. You then gave Chelsea explicit instructions to touch herself in a sexualised manner, while chatting to you. You asked her what she was wearing and responded “Omg sexy” when Chelsea told you she was in school uniform. You stated, “I am so happy to teach you lots if u like”. The chat ended shortly after Chelsea told you that she had to go to help her mother. You asked whether you could talk again and gave her your phone number.
Whatsapp Conversations
8Following the Chatiw.com conversation Chelsea sent you a text message and you agreed to download Whatsapp to continue to exchange messages which you did between 30 March and 15 May 2023. On 1 April 2023 you told Chelsea you had “…naughty thoughts about you” and stated, “I think how nice it would be to hold you and touch you”. Chelsea asked you when you would come to Sydney to visit her, and you sent her a series of explicit messages about the sexual activities you would do together when you visited her including him describing what you wanted her to do to you. For example, you said “I want caress your boobs and kiss ur nipples”, “[a]nd you can hold my cock and play with it”. The same day you sent a photograph of yourself to Chelsea and stated, "I hope I'm not too old and ugly for you". You again instructed Chelsea to masturbate while you chatted and told her that your penis was “getting hard and erect” and that you were “rubbing the head of [your] cock”. Further excerpts from the communication on this day is contained in Annexure A.
9Between 2 April and 9 May 2023, you and Chelsea exchanged messages frequently. On 2 April 2023 you warned Chelsea not to let her mother catch her on her phone and said you approved of Chelsea changing her passwords to prevent her mother checking her phone. On 3 April 2023 you suggested voice chatting with Chelsea. On 18 April you sent more sexualised messages about what you would do when you visited Chelsea and instructed her to touch herself while you chatted. An excerpt from this conversation is contained in Annexure B.
Telephone call - 13 April 2023
10On 13 April 2023 you and Chelsea spoke and just after beginning the call you initiated sexualised conversation about being in the shower naked with her and touching her. During the conversation Chelsea asked you “…would you actually really visit me or is like um, like a joke” and you replied “No, I would actually visit you, yes” but that you wouldn’t be able to go up during the holidays because you were working and also that it may be a problem with her mother being around.
11You again sent Chelsea graphic sexualised messages about what you would do when you visited her such as “[w]e could be naked in bed and playing with each other”.
Telephone call - 20 April 2023
12You and Chelsea engaged in a second phone call on 20 April 2023. During the call Chelsea asked you when you would be coming to see her, and you said you would certainly come but not these holidays because you had to take care of your father from Queensland who needed a medical operation.
13You told Chelsea “…I really want to kiss you…” and there was discussion about you teaching Chelsea how to kiss and keeping your relationship a secret. During the conversation you stated “…An old man like me with a young, young lady like you, that’s very exciting”. You stated “[b]ecause of the age difference, you know, and that you can, you can trust me and that I can trust you”. An excerpt from this conversation is contained in Annexure C.
14On 9 May 2023 you sent Chelsea a last message requesting to speak on the phone again and she replied that she would let you know a good time to call. She asked whether you were still thinking of visiting her the next week. You said you would visit the week after if you managed to finish your job.
Personal circumstances
15You were born in Croatia in 1961 and came to Australia in 1969. You reported a generally positive childhood, and whilst you noted you were belted and slapped by your father as a child and adolescent, you viewed this as teaching you respect. You did your apprenticeship with your father and worked with him and reported being ‘best mates’ with him, although you have not informed him of your offending. You have never been the victim of sexual abuse.
16You were married in 1988 and have lived with your wife in a property she owns in St Albans for the past 20 years apart from a period of separation for 2½ years in 2012. You have no children having experienced difficulties with conception. You have a solid employment history having completed a carpentry apprenticeship after finishing year 12, obtaining a builder’s licence when you were 18 and working in the building industry since that time.
17You have a wide circle of friends, and you have the support of your family. Your wife provided a character reference for you (Exhibit 5), is aware of the charge you have pleaded guilty to and was present in court to support you. Your wife spoke of you as a caring man with a diligent work ethic. She wrote that the pandemic had caused you to experience financial issues which then led to you becoming isolated and withdrawn. Your wife also confirmed your erectile dysfunction and its associated physical and mental impacts. I have also had regard to the contents of a character reference from your sister Ms Schwanitz (Exhibit 6) who detailed the help you have given her and her husband through their ill health and her concern about your own health issues and depression.
Sentencing Principles and considerations
20In sentencing for offences such as grooming a child under 16, the authorities make it clear that:
(a) An immediate term of imprisonment is ordinarily imposed for offending involving the on-line sexual exploitation of children.[1]
[1] R v Gajjar (2008) 192 A Crim R 76 at [27, 86]; Western Australia v Collier (2007) 178 A Crim R 310 at [43]; R v Burdon; Ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; R v Leask (2013) 236 A Crim R 1 at [84] – [85].
(b) General deterrence is the primary sentencing consideration for offending involving the on-line sexual exploitation of children, given the vulnerability of children on-line and the need to protect children from sexual abuse.[2] This includes protection not only against the potential for subsequent in-person sexual abuse, but against the harm and potential corruption caused by graphic sexual communications directed at vulnerable children.[3]
[2] Gifford v R [2016] NSWCCA 302; R v Gajjar (2008) 192 A Crim R 76 [27], [86]; DPP (Cth) v Hizhnikov [2008] VSCA 269 [26], [69]; R v Hays (2016) 160 A Crim R 45.
[3] Gifford v R [2016] NSWCCA 302; R v Hays (2006) 160 A Crim R 45; Meadows v The Queen [2017] VSCA 290.
(c) Specific deterrence, denunciation, punishment and protection of the community are also very important sentencing considerations.
(d) Offending involving on-line sexual exploitation is becoming increasingly prevalent with the advent of the internet as an accessible and anonymous means of allowing predators to access and communicate with children and to forge relationships with them as a first step to luring them for sexual abuse.[4]
[4] Assheton (2002) 132 A Crim R 237 at 246-7, [35-36]; R v Jones (1999) 108 A Crim R 50 at 51, [2]; R v De Leeuw [2015] NSWCCA 183 at [72 (e) and (f)]. And see: DPP (Cth) v Boyle (a pseudonym) [2016] VSCA 269 at [91] – [94]
(e) Cyberspace is a place where adults can intrude upon the activities of children and young people, deceive them as to their identity and intentions, and inveigle them into engaging in sexual behaviour beyond their maturity.[5]
[5] Ibid
(f) Offending involving child pornography or on-line sexual activity with children is difficult to detect given the anonymity provided by the internet.[6]
[6]Mouscas v R [2008] NSWCCA 181 at [31]; R v Booth [2009] NSWCCA 89 at [29]
(g) Where a child “victim” is, unbeknownst to the offender, an undercover police operative, this is not a mitigating factor and offender’s conduct is ‘no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer’[7]
[7] R v Gajjar (2008) 192 A Crim R 76
21Factors of central relevance in assessing the objective seriousness of offending involving on-line child exploitation include:[8]
[8] R v Asplund (2010) 216 A Crim R 48, [48]-[49]; Meadows v The Queen [2017] VSCA 290, [12]; Tector v The Queen (2008) 186 A Crim R 133.
a. The number, length, and type of conversations between the offender and victim
b. The frequency of conversations, and the level of persistence of the offender
c. The nature of any sexual material communicated
d. The extent to which the intent to future activity with the offender is exposed and developed
e. The nature of the sexual activity intended
f. Whether any inducements were offered, including alcohol or money, or whether any threats were made
g. Whether the victim was a real person
h. The age and power differential between the victim and the offender
i. The nature of any prior relationship between the offender and the victim
j. The offender's level of awareness and deliberateness in the communicating
k. Whether the recipient was susceptible to act in the way described by the offender
l. The planning and sophistication involved in the offence, including any steps taken by the offender to protect his anonymity.
18I must also have regard to the matters applicable in sentencing for Commonwealth offences.
19I have regard to the objective of rehabilitation set out in s 16A(2AAA) of the Act which provides that when sentencing for a Commonwealth child sex offence, the court must have regard to the objective of rehabilitating the offender, bearing in mind that this does not override the requirement that a sentence must be of an appropriate severity in all the circumstances of the offending.
20In sentencing you, I am cognisant of s 16A(1) of the Act which provides that a court must impose a sentence or an order that is of an appropriate severity in all the circumstances of the offending. I have also had regard to the factors set out in s16A(2) which provides a non-exhaustive list of matters that must be taken into account as far as these are relevant and known to the Court. In your case, I have had regard to:
16A(2)(a) Nature and circumstances of the offence
21As your counsel conceded, your offending is serious and involved highly sexualised communications where there was a significant age gap. You have pleaded guilty to a serious charge that carries a maximum penalty of 15 years imprisonment. Your offending was not a one-off or sporadic communication with the recipient but involved a series or continuation of messages sent on two communication platforms, culminating in an 11-minute telephone call on 13 April 2023 and a 28-minute call on 28 April 2023. You provided your phone number to ‘Chelsea’ and downloaded the WhatsApp application to facilitate continued communications. In all, your offending covered a period of 40 days which was ample time for you to reflect on your conduct and desist communications.
22By your plea you admit you believed you were communicating with a child under 16 and you were doing so intending to make it easier to procure the child to engage in sexual activity with you. It was you who initiated contact with ‘Chelsea’ and despite being told she was 14, you initiated sexualised conversation with her almost immediately in your communications. This included you asking her about her sexual experience, and when you learned she was inexperienced you instructed her in explicit terms on how to masturbate and described to her sexual acts you were performing on yourself whilst you were communicating.
23You discussed wishing to meet up with ‘Chelsea’ by travelling to Sydney, and you described the sexual activities you would like to engage in with her when you met. You asked ‘Chelsea’ about her life and complimented her to establish a rapport with her, and you told her that she could trust you because you were older.
24There was a significant age difference between you and Chelsea who you believed was a 14-year-old child. You were 61 years old which represents a very significant difference in age and relative levels of maturity which is a matter I am required to have regard to.[9] You indicated that you viewed the age difference between you as sexually exciting. There is no doubt you were aware that what you were doing was wrong. You told ‘Chelsea’ not to let her mother know she was communicating with you, and you supported her changing her phone passwords to ensure her mother could not detect the communications with you. You also offered her inducements, promising to spoil her with gifts.
[9] R v Bredal [2024] NSWCCA 75 at [39].
25I accept that you were not actively searching online for underage females and were on an adult chat site when you encountered “Chelsea”. Nevertheless, as noted above, you did not desist communicating with her when told she was 14. I also accept that you did not take active steps to meet ‘Chelsea’. Whilst it was you who suggested meeting in the earlier stages of your communications, you never made those plans, and you put off planning to meet when this was raised by ‘Chelsea’.
26I accept that you ceased contact with ‘Chelsea’ voluntarily and note you did not reply to a final message ‘she’ sent to you on 15 May 2023. It is difficult to accept however that your cessation was because of a sudden realisation of the wrongfulness of your conduct or remorse, but because - as you told Mr Cummins - you had lost interest in talking online and at that time you “…were confident that in reality the person [you] had been chatting to was not aged 14”.
16A(2)(g) Plea of guilty
27I accept that you pleaded guilty to the charge at an early stage. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses from having to give evidence, and to reflect its demonstration of acceptance of responsibility, willingness to facilitate the course of justice and remorse. You also independently expressed guilt and remorse to Mr Cummins and Dr Read.
16A(2)(j) Specific Deterrence
16A(2)(k) Need for Adequate Punishment
28Specific deterrence, denunciation and punishment are also considerations in sentencing you. In terms of specific deterrence, you have no prior convictions at age 63, you have now gained insight into the reasons your offending was wrong, you willingly engaged in treatment and there was no illegal material detected on your electronic devices or in your possession to suggest you have a sexual interest in children. For these reasons, it is not necessary to afford much weight at all to specific deterrence. There is, however, a clear need to impose a sentence that reflects adequate punishment and denounces your offending.
16A(2)(ja) General Deterrence
28Again, general deterrence is the primary sentencing consideration for offending involving the on-line sexual exploitation of children.[10] Where general deterrence is the primary sentencing principle, an offender’s personal mitigatory factors such as good character, age and prospects of rehabilitation must be given less weight than might otherwise be given.[11]
[10] Gifford v R [2016] NSWCCA 302; R v Gajjar (2008) 192 A Crim R 76 [27], [86]; DPP (Cth) v Hizhnikov [2008] VSCA 269 [26], [69]; R v Hays (2016) 160 A Crim R 45.
[11] Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [at 35]; R v Gajjar (2008) 192 A Crim R 76; DPP (Cth) and DPP v Garside [2016] VSCA 74 at [63]; DPP (Cth) v Thomas [2016] VSCA 237 at [193].
16A(2)(m) Character, antecedents, age, means and physical or mental condition
29You were aged 61 at the time of the offending. You are now 63 years old.
30You have no prior convictions of any type and no outstanding matters, noting however that this factor is given less weight in sentencing for offending of this nature.[12]
[12] Western Australia v Collier (2007) 178 A Crim R 310 at 42.
31You do not have any issues with drugs or alcohol. You have several medical issues including hypertension, a gastric ulcer and being on the borderline of suffering from diabetes. You had triple bypass heart surgery in 2014 and require daily medication.
32Psychological reports were provided by your treating psychologist Dr Read who you were first referred to in 2012 as you were experiencing depression since the death of your mother in 2009, and by Mr Cummins Forensic Psychologist. Dr Read noted that you had attended 8 sessions with him between being charged in October 2024 and May 2025 for offence specific treatment. Dr Read opined that you communicated with a person you believed to be 14 to “…seek validation, gratification and comfort” because you had not engaged in sexual activity for more than 10 years and because your life at that time was very stressful with you enduring great financial pressures and significant health issues. Dr Read considered you were living in a distorted fantasy, the chat was an escape, and you did not intend ultimately to engage in sexual activity with a child. You indicated that you intend to continue treatment sessions with Dr Read.
33Mr Cummins, in his report dated 3 June 2025 concluded that you did not present with any mental impairments or illnesses at all. Despite your counsel at one point suggesting otherwise, in my view there is no evidence whatsoever to establish a realistic causal connection between your offending and your mental condition and accordingly the principles in limbs 1 to 4 of Verdins are not enlivened. In terms of the reasons or explanation for your offending, Mr Cummins concluded that as far as he could determine, the offending took place when you were depressed, anxious and stressed by your workload. He also noted you told him you engaged in online conversations with adults because of curiosity, loneliness and because you felt frustrated because of your impotence and inability to have a sexual relationship with your wife. I do not regard this as excusing your offending or to be of any real mitigatory value given your offending involving sexual communications with a person you believed to be a child, although it does at least offer partial explanation for it.
34Mr Cummins wrote that you felt mildly depressed and anxious about your present legal predicament and what punishment you would receive, but your current situation you said was not as bad as the trauma you experienced on the death of your mother and your father later wishing to move another woman into the marital home.
35Dr Read opined that when you first consulted him you had no insight into the harm your offending could have caused a child, with your primary concern being the impact of your offending on your loved ones. Dr Read concluded that by the end of your sessions he was confident that you fully understood the impact your behaviour would have had on a vulnerable child, and you expressed remorse and shame for your offending. Mr Cummins expressed the view that there was no clinical reason why you need to participate in any further offence specific treatment.
36Submissions were not made as to the applicability of Verdins[13] limbs 5 and 6. Nor is there evidence in the reports of either Dr Read or Mr Cummins that you have a mental condition that may be exacerbated by imprisonment or that you would find imprisonment more onerous relative to other prisoners. Notwithstanding this, out of an abundance of fairness, I am prepared to accept that your physical health may make imprisonment slightly more burdensome.
[13] R v Verdins [2007] VSCA 102
16A(2)(n) Prospects of rehabilitation
38As noted above, you sought offence specific treatment immediately following your arrest and have now developed insight into the reasons why your offending had the capacity to harm a child. You are a man of prior good character and have been for a very lengthy period. You have the protective factor of support from your wife and sister. You disclosed your offending to your wife and sister, although you have not told your father about it. Your offending did not occur over a very lengthy period and was not accompanied by other offending such as possession of child abuse material which would suggest a sexual interest in children. You voluntarily ceased contact with ‘Chelsea’ and Mr Cummins assessed you as being a low risk of reoffending. I assess you as having very good prospects of rehabilitation.
Delay
38I have considered the delay between the execution of the search warrant on 14 September 2023 and the filing of charges on 2 October 2024 and accept in mitigation that during this period you would have been anxious as to if, and when, you would be charged. I also accept that during this period you achieved rehabilitation in the form of therapy sessions with Dr Read that have had a positive result, noting also that you did not seek offence specific therapy until after charges were laid.
Comparative sentences
39I was provided with a schedule containing five (5) intermediate appellate sentences said to represent cases comparable to yours. I have had regard to these cases bearing in mind that there are relevant differences in the facts and circumstances of those cases and yours. At the end of the day, each case must be decided on its own facts and circumstances.
Sentencing submissions
40There does not appear to be any dispute between the parties that your offending warrants the imposition of a term of imprisonment. Further, both parties submitted, and I accept, that because the sentence I would impose is unlikely to exceed 3 years imprisonment based on comparative sentences, you would be subject to a recognisance release order and not a non-parole period.[14]
[14] s 19AC(1) Crimes Act 1914 (Cth)
41What is keenly in dispute however is whether any part of that term of imprisonment should be served by way of time spent in actual custody. Relevant to this issue is sub-section 20(1)(b)(ii) of the Act which provides that when sentencing a person for an offence which is a Commonwealth child sex offence, as is the case here, and the total sentence does not exceed 3 years, there is a presumption in favour of an actual period of the sentence of imprisonment being served prior to release on a recognisance unless there are exceptional circumstances that justify the offender being released immediately on a recognisance release order. In other words, a person may only be released immediately on a recognisance if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances (s 20(1)(b)(iii)).
43Your counsel relied on several factors which, in combination, were said to amount to exceptional circumstances such that you be released forthwith with no requirement to serve a custodial component of the term of imprisonment. These were:
a) Delay during which you achieved rehabilitation by way of treatment, and you are committed to undergoing further treatment
b) Your business would “go under” as you are currently in debt and are the sole breadwinner servicing the debt and providing financially for your wife and sister.
c) You have no prior convictions or pending matters and are a man of good standing.
d) You entered a plea of guilty at an early stage which was a very significant factor
e) There was no diagnosis involving sexual deviance and there was no child abuse or other illegal material on your devices that may have pointed to a clear sexual interest in children
f) You did not arrange to meet or meet up with ‘Chelsea’
g) You did not actively seek out a child to chat to and were on an adult website when you encountered ‘Chelsea’.
h) You withdrew from the offending and did not respond to the final message from ‘Chelsea’
i) Your wife and sister would be impacted financially if you were imprisoned
k) Your communications were with an undercover operative so there was no harm that could have been or was inflicted on a child.
41Your counsel also placed very great weight on the recent decision of the New South Wales Court of Criminal Appeal in Bredal v R where the court determined exceptional circumstances existed.
42The prosecution contended that the combination factors relied upon do not amount to exceptional circumstances and you should be required to serve some part of the term of imprisonment imposed. The prosecution argued that the absence of priors, a plea of guilty, engagement in treatment during a period of delay and good prospects of rehabilitation are not unusual features for offending of this type. Further, it was not exceptional for an offender to experience financial hardship upon imprisonment or to have a family to support.
43The prosecution accepted that you withdrew from the offending, but you believed that you were speaking to a child before that time. It was also conceded that there were no meetings but the offence you are pleading to is one that involves the building up of trust and preparing to meet and procure a child for sexual activity. Proof of the offence is not contingent on an actual meeting or having planned a meeting.
ANALYSIS
44 What constitutes exceptional circumstances is not defined in the Act. There have however been many judicial determinations of the meaning of ‘exceptional circumstances’ including the oft cited definition in R v Tootell ex part AG[15] where it was held:
[15] [2012] QCA 273, [18] (“Bredal”).
“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
45More recently, in Bredal v R[16] the court provided some guidance as to the threshold requirement in s20(1)(b)(ii) noting that a) it is a matter for a court to determine whether the circumstances of a particular case are, or are not, exceptional, however this is not a licence to ignore the statutory threshold; b) A combination of factors, each not of itself exceptional, may amount to exceptional circumstances; c) Consideration of whether exceptional circumstances have been established involves an assessment of the factors relevant in determining a sentence more generally, but “The purposes of sentencing will remain at the forefront” and “…the greater the objective seriousness of an offence, the more difficult it will be to establish the existence of exceptional circumstances”; and d) The requirement to establish exceptional circumstances may result in the need to impose a sentence which would not have been imposed absent the requirement.
[16] [2024] NSWCCA 75, [61], [63] – [64] per Dhanji, J.
DECISION
46I am satisfied pursuant to s 17A that when the objective seriousness of your offending and the need for general deterrence, just punishment and denunciation are balanced with the mitigating factors relied upon, that no other sentence is appropriate in your case than a sentence of imprisonment. I have considered alternative available sentences such as a Community Correction Order but having regard to comparative sentences for offending of this type and the overall seriousness of your offending, I do not consider this disposition would be an appropriate sentence.
47In terms of whether exceptional circumstances have been established, in the recent decision in R v TBE[17] the court discussed features often relied on to establish “exceptional circumstances” in Commonwealth child sex offender prosecutions and cited observations made in R v Quick; Ex parte Attorney-General[18] about the unexceptional nature of common features of this type of offending. Based on TBE and Quick, factors such as the offender’s plea of guilty, remorse, low risk of offending and good prospects of rehabilitation are not exceptional. All or many of them are present in a vast number of cases involving offending of this type. They are factors in mitigation, not circumstances whether alone or in combination are exceptional.[19]
[17] [2024] QCA 204 (“TBE”)
[18] (Qld) (2006) 166 A Crim R 588; [2006] QCA 477 (‘Quick’), [36]-[37]
[19] TBE
49Further, matters such as an offender having become depressed, or having suffered anxiety between investigation and conviction were considered “usual consequences which commonly flow from the discovery and prosecution of sexual offences. Again, there is nothing exceptional about them”. In your case, the delay was not excessive, and you have been given the benefit of the rehabilitation you achieved during the period of the delay and the anxiety you would have experienced waiting for charges to be filed in the length of the sentence and pre-release period to be imposed. Indeed, I have given weight to all relevant mitigating factors in determining the appropriate sentence and considering the question of exceptional circumstances.
50Whilst it may be that your voluntary accessing of multiple treatment sessions which have been effective in promoting your rehabilitation and the fact that you have evinced an intention to continue to do so, are features that are less common in cases like yours, this does not mean that these features are significantly unusual such as to constitute an exceptional circumstance, even when combined with other factors you rely on.
51It is also not unusual for cases involving grooming to involve a person communicating with an undercover police operative and not a real child. This is a common occurrence. It is a factor relevant more to mitigation of sentence, in the sense whilst it is not a factor which mitigates your offending because you did not know an undercover operative was involved and so it cannot reduce your moral culpability nor the relevance of general or specific deterrence,[20] it is a very relevant factor in sentencing because no harm was suffered by any child as a result of your offending.[21]
[20] Bredal [114]
[21] Bredal [114]
52 It is also not the case here that you can call in aid any of the most powerful mitigating factors to separate your offending from what may be considered usual (bearing in mind the list is not exhaustive, and each case must be determined on the facts and circumstances said to demonstrate exceptional circumstances in a particular case). You are not especially young or old, you do not have any mental impairments or an intellectual disability such as to invoke Verdins or Muldrock principles. You do not rely on Bugmy to reduce your moral culpability or the weight to be given to general deterrence. You do not suffer from any physical disability or ill health of such a nature as to be considered unusual for a man of your age or to be viewed as difficult to manage or treat. You have no children who are dependent on you or who suffer from illnesses such your imprisonment would represent family hardship.
53Whilst it may be less common for an offender to suffer serious financial hardship as was asserted here (that the business would collapse and you provided for your wife), it is not entirely unheard of plus I was provided with no evidence in the form of business records or the like to support the assertion that your business would fail if you were to be incarcerated. I was advised that your wife would qualify for a pension, and there was no mortgage on the family home but there was a credit card debt and overdraft of $100,000.
54In determining whether exceptional circumstances exist that would justify the imposition of a non-custodial sentence, I have also had regard to the seriousness of the offending and the sentencing principles that apply to offending involving grooming. As stated in Bredal, ‘…the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional’[22] This is a serious offence punishable by a maximum penalty of 15 years imprisonment. It is designed to protect children from sexual exploitation on-line. The gravity of the offence is also evidenced by the fact that it is included as an offence covered by s 20(1)(b)(ii) of the Act which stipulates that a sentence of imprisonment must be imposed unless the court is satisfied that there are exceptional circumstances, which would justify the imposition of a non‑custodial sentence.[23]
[22] Bredal at [63].
[23] Crowder (a pseudonym) v The King [2024] VSCA 211.
55Again, your counsel placed significant reliance on the case of Bredal where the Court ordered the immediate release of the offender and he urged me to adopt the same approach in your case. There are some relevant similarities between your case and that of Bredal such as there being no evidence to suggest that you were actively looking to engage with a child, you were not in possession of any child abuse material and you withdrew from the offending, although your motive did not appear to be because of remorse or a realisation of the wrongfulness of your conduct as was the case it seems, in Bredal.
56I do not however consider that it is a matter of simply selecting a case where there are some relevant similarities and arguing that this must act as some definitive precedent to be followed. There were also differences between your offending and that of Bredal plus, very importantly, each case must be determined on its own facts and circumstances. In addition, I note that Bredal was the primary carer for three children with special needs, which the Court described as being both “unusual and significant” and no doubt this factor went a considerable way towards establishing the existence of exceptional circumstances.
57In my view when all relevant circumstances are considered, the matters relied on by the Applicant, both individually and in combination, were unexceptional.
Sentence
37Could you please stand, Mr Glavas.
38On charge 1, you are convicted and sentenced to 20 months imprisonment. I direct that the sentence commences today, 11 July 2025.
39I order that you serve 3 months of the term of imprisonment before being released by recognisance pursuant to s 20(1)(b)(ii) of the Act in the sum of $1,000 to be of good behaviour for 3 years.
40Pursuant to s 20(1B) of the Act, you are also required to comply with the following mandatory conditions for a period of 2 years:
a) You are to be under the supervision of a probation officer
b) You are to obey all reasonable directions of the probation officerc) You are not to travel interstate or overseas without the written permission of the probation officer
d) You are to undertake treatment and rehabilitation programs as directed by the probation officer if deemed necessary.
41Charge 1 is a Class 2 offence listed in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic) which means that you are required to comply with reporting obligations for 8 years.
42Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of 25 months imprisonment with your release on a recognisance release order after serving 5 months of the term of imprisonment.
43You may be seated, Mr Glavas.
44So the documents have been prepared, a recognisance order.
45MS HOUGH: Yes, Your Honour, I am just updating the sentence now.
46HER HONOUR: Thank you. Happy for you to have a chat to your client when you wish, if you wish, Mr Kantor. And we have the sex offender papers and we will get the recognisance.
47MR KANTOR: Thanks, Your Honour.
48HER HONOUR: While we are waiting for that, I am required in any event - I am sure Mr Glavas your counsel would and will do this as well, to explain the order to you and the sentence.
49Basically what it means is that you have been sentenced to 20 months' imprisonment starting today, but you are required to serve only three months of that sentence. You will then be released and when you are released you will be on a recognisance release order in the sum of $1,000 to be of good behaviour for three years. You do not have to pay the $1,000 unless you breach the order, unless you are not of good behaviour. Otherwise, just forget about the $1,000.
50And if you are not of good behaviour for three years, if you breach it by committing certain offences, then you can be brought back before me and there will be various things that could happen, such as you being sentenced again for this offending. It is like a good behaviour bond. And once you are released, as well for two years of that three year good behaviour period, you need to be supervised by a probation officer, it is normally a community correction officer or someone like that, and they will basically just check on how you are going and if they deem it necessary that you need to undertake any treatment or rehabilitation, then they will direct you to do it. But I have put in here 'if deemed necessary' because of course you have done a lot for your rehabilitation and Mr Cummins had said you do not need any more sex offender treatment.
51I wanted to thank both parties very much for their submissions. You were both of very good assistance to me and yes, thank you again.
52MR KANTOR: As the court pleases.
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