CDirector of Public Prosecutions v Hayes
[2023] VCC 1341
•18 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02344
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY HAYES |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2023 | |
DATE OF SENTENCE: | 18 July 2023 | |
CASE MAY BE CITED AS: | CDPP v HAYES | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1341 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Make available child abuse material – Access and solicit child abuse material – Cause child abuse material to be transmitted –Possess or control child abuse material obtained or accessed using a carriage service – Material of extremely depraved nature – Mid-range example of offending – Early plea of guilty – Offences committed over short period – Adjustment disorder with anxiety – Cluster B personality disorder – Verdins Principle 5 engaged – Moderate to high risk of further sexual offending – Lack of remorse
Legislation Cited: Criminal Code 1995 (Cth) ss 474.22, 474.22A – Crimes Act 1914 (Cth) s16A, s17A
Cases Cited:Clarkson v The Queen (2011) 32 VR 361 – DPP v Garside (2016) 50 VR 800 – R v De Leeuw [2015] NSWCCA 183 – R v Hutchinson [2018] NSWCCA 152 – Minehan v The Queen (2010) 201 A Crim R 243 – R v G [2009] 1 AC 92 – R v Cardwell [2021] QCA 112 – R v Verdins (2007) 16 VR 269 – R v Cooper (1998) 103 A Crim R 51
Sentence: Total effective sentence of 3 years’ imprisonment combined with a recognisance release order after serving 18 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
For the CDPP | Ms C Hill Ms G Mattea | Mr James Carter, Commonwealth Solicitor of Public Prosecutions |
| For the Accused | Mr R J de Kretser 26 June 2023 Mr H Brodie 18 July 2023 | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1Timothy Hayes, you have pleaded guilty to a Commonwealth indictment containing the following charges:
(a)one charge of use carriage service to make available child abuse material, contrary to subsection 474.22(1) of the Criminal Code (Cth) (‘the Code’)
(b)one charge of use carriage service to access and solicit child abuse material, contrary to subsection 474.22(1) of the Code
(c)one charge of use carriage service to cause child abuse material to be transmitted, contrary to subsection 474.22(1) of the Code
(d)one charge of possess or control child abuse material obtained or accessed using a carriage service, contrary to subsection 474.22A(1) of the Code.
2The maximum penalty for each of these offences is 15 years’ imprisonment.
3The Commonwealth Director tendered a Prosecution Opening for Plea dated 26 May 2023,[1] which I am told by your counsel I can treat as a statement of agreed facts.
[1] Exhibit (‘Ex’) P1.
The Facts
4You came to the attention of the Australian Federal Police following a report from a foreign jurisdiction which indicated you were dealing in child abuse material via the Kik platform, a mobile message application.
5On 5 July 2022, the Joint Anti Child Exploitation Team (‘JACET’) executed a search warrant in your presence at your residence in McCrae, where you resided with your mother and your partner.
6During the execution of the search warrant, investigators seized an Apple iPhone, Optus mobile phone, and Nokia mobile phone belonging to you. The Optus phone contained the Mega cloud-storage application, which was logged-in with your user account. You provided police with access to each device and to your Mega cloud storage account.
7A preliminary examination of each device identified the presence of child abuse material. As a result, you were arrested and conveyed to Rosebud police station where you participated in a record of interview.
8After being cautioned and advised of your rights, you told police the following in your record of interview:
(a)You had been viewing child abuse material for a period of five years. You first encountered child abuse material on the internet and realised you were interested in it.
(b)You were aware that looking at child abuse material and downloading it is illegal, and described it as ‘terrible’.
(c)You would generally seek out material depicting children ‘when they start to become teenage’, and your preference is to view ‘snapchat nudes’ of ‘teenage girls’. You denied experiencing any sexual attraction to very young children.
(d)You described the child abuse material currently on your devices as ‘a range of abuse material, with girls of all ages’, including some files depicting ‘little kids getting abused by their parents’ and ‘rape videos’ pertaining to infants.
(e)You use Kik to view child abuse material, and may occasionally have ‘shared a link back into the chat’.
(f)At one point you were using Kik to view child abuse material every day. You last accessed Kik three months ago.
(g)Your previous Kik accounts have been banned and you had started a new account ‘about four times’.
(h)You use your Mega account for opening files containing child abuse material after you had downloaded them.
(i)You met your current partner on Kik when she was 15 years old. She would send you images and photos of herself when you had first met. The images on your devices which depict ‘a girl in a school dress’ are images of her. Once she had turned 17, you began visiting her in person and you commenced a full-time relationship.
Examination of seized devices
9Police examined the three mobile devices seized from your residence and detected 290 image files and 345 video files classified as child abuse material, as well as a number of chatlogs evidencing offending on the messenger platform Kik.
Charge 1 and Charge 2
10Your Optus phone had the Kik application installed on it. The Kik application was logged-in with you user account, with the account name ‘Tom Orrow’ and display name ‘tommytootoes’.
11A review of the data acquired from your phone identified a Kik group-chat titled ‘Meg_Only’, in which you were a member, along with other users including persons identified as ‘Travis Baker’ and ‘h hutchins’. The ‘Meg_Only’ group chat contained an introductory automated message from the administrator indicating that the purpose of the group chat was to post ‘working Mega links’ containing ‘CP’.
12On 17 April 2022, the following exchange took place between you and user Travis Baker within the Meg_Only group chat.
Administrator message: You have one minute to send a working Mega link boy [tick] No Gore [cross] C.p [tick] rap.e [tick] NO TRADING. PM TREVOR THE BIGGEST CP LINK YOU GOT FOR PAID PRIVATE GROUP
You: Ok
You: First link sent (Charge 1: Use carriage service to make available child abuse material)
Travis Baker: Link sent (Charge 2 – Use carriage service to access and solicit child abuse material)
You: Lol you’re link is terrible Travis (Charge 2 – Use carriage service to access and solicit child abuse material)
13The Mega URL link you posted to the Meg_Only group chat at 11.45pm contained 44 videos identified as child abuse material, 24 of which were Category 1 (Charge 1 – Use carriage service to make available child abuse material), including depictions of:
(a)Prepubescent females undressing and rubbing their genital and breast areas.
(b)A female child aged around four years being raped by an adult male.
(c)A female child aged around six years performing fellatio on an adult male.
(d)A male child performing cunnilingus on a female child, both aged between three and five years.
14The Mega URL link posted to the Meg_Only group chat by user Travis Baker at 11.47pm, which you accessed (Charge 2 – Use carriage service to access and solicit child abuse material), contained a single video depicting two prepubescent males performing fellatio on each other before engaging in sexual intercourse.
15Immediately following the above exchange with Travis Baker within the Meg_Only group chat, you sent user him the following message in a private Kik chat, soliciting further child abuse material (Charge 2 continued):
You: Have you got anything better mate
16On 18 April 2022, the following exchange occurred between you and user ‘h hutchins’ within the Meg_Only group chat, in which you solicited child abuse material (Charge 2 continued):
Administrator message: You have 2 minute to send a working mega link Boy [tick] No Gore [cross] C.p [tick] Rap.e [tick] NO TRADING PM TREVOR THE BIGGEST CP LINK YOU GOT FOR PAID PRIVATE GROUP
h hutchins: Trading cp over dms
You: Yeah but everyone says that lol. DM.me if your fr
h hutchins: Well I’m not gonna send first, got blocked too many times.
Charge 3
17On 18 April 2022, using the Kik messenger application, you sent yourself two URL links to Mega cloud storage locations (Charge 3 – Use carriage service to cause child abuse material to be transmitted).
18The first link contained 43 videos and seven images identified as child abuse material, including depictions of:
(a)Prepubescent female performing fellatio on an adult male.
(b)An adult female performing fellatio on a toddler male.
(c)A toddler female being raped by an adult male.
(d)An adult female performing cunnilingus on a prepubescent female.
19The material within this link was also saved on your Mega could storage account the subject of Charge 4.
20The second link contained 24 videos identified as child abuse material, including depictions of:
(a)Prepubescent females engaging in sexual intercourse with adult males.
(b)Pubescent females performing fellatio on adult males.
(c)An adult male ejaculating over the genital region of a prepubescent female.
21The child abuse material the subject of Charge 3, which you transmitted to yourself on Kik, was categorised based on the Australian Child Abuse Categorisation Schema (ACACS).
22The material in link 1 included 39 category 1 videos, four category 2 videos, five category 1 images and two category 2 images. The material in link 2 contained two category 1 videos and 22 category 2 videos.
Charge 4
Apple iPhone
23A total of 255 files containing child abuse material were located on your Apple iPhone, being 249 images and six videos. (Charge 4 – Possess or control child abuse material).
24The images located on the Apple iPhone included depictions of the following:
(a)Prepubescent and teenaged females posing naked in sexualized positions.
(b)A prepubescent male engaging in sexual intercourse with an adult female.
(c)Prepubescent females performing fellatio on adult males.
25The videos located on the Apple iPhone included depictions of the following:
(a)An adult male masturbating over a naked prepubescent female.
(b)Teenaged females recording themselves while undressing.
(c)Screen-recording footage capturing a video call between you and a female matching the appearance of your partner, in which the female is shown showering naked and masturbating. The creation date of those videos confirm they were created when your partner was 17 years of age.
Optus P60 mobile phone
26A total of 11 images containing child abuse material were located on your Optus phone.
27The images located on the Optus phone included depictions of the following:
(a)A female baby being anally penetrated.
(b)Prepubescent females performing fellatio on an adult male.
(c)Prepubescent females posing in a sexual manner.
Mega cloud storage account
28A total of 343 files containing child abuse material were located on your Mega cloud storage account, being ten images and 333 videos. The various folders in which this material was saved had titles such as ‘Younger girls’ and ‘CP9’.
29The material located within the Mega cloud storage account included depictions of the following:
(a)Prepubescent females performing fellatio on an adult male.
(b)A prepubescent male engaging in sexual intercourse with an adult female.
(c)A canine performing an oral sex act on a prepubescent female.
(d)An adult male digitally penetrating a toddler.
Nokia mobile phone
30A total of 23 images and three videos containing child abuse material were located on your Nokia phone (Charge 4 continued). All of the material located on the Nokia phone depicts a female matching the appearance of your partner. Each of the files contained metadata indicating that they were created at a time when your partner was between 15 and 17 years of age.
31The material includes depictions of your partner naked and posing in sexualized positions, exposing her genital area and masturbating.
32The child abuse material located on the three mobile phones and Mega cloud storage account was categorised based on the ACACS. The material on your Apple iPhone included: 19 category 1 images, 230 category 2 images, one category 1 video and five category 2 videos. The material on your Optus P650 contained: eight category 1 images and three category 2 images. The material on your Mega cloud storage included three category 1 images, seven category 2 images, 206 category 1 videos and 127 category 2 videos. The material on your Nokia mobile included 23 category 2 images and 3 category 2 videos.
33There were no duplicate images between devices.
Victim Impact Statements
34No victim impact statements were tendered by the prosecution, however, there must be hundreds of sexually abused children depicted in the vile material you made available, accessed, solicited, transmitted and possessed. The courts recognise that significant lifelong harm is caused to children who are sexually abused.[2] Accessing or possessing child pornography is not a victimless crime — it is abhorrent because it supports a market for the production of images that involve the sexual exploitation of children.[3]
[2] R vDe Leeuw [2015] NSWCCA 183 [145] (Johnson J, Ward JA and Garling J agreeing) (‘De Leeuw’).
[3] De Leeuw [72]; DPP (Cth) v Garside(2016) 50 VR 800, 810–811 [25(g)] (Redlich and Beach JJA) (‘Garside’); Phibbs v R [2023] VSCA 123 [51] (Beach and Kyrou JJA).
35In Adamson v The Queen,[4] the Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G,[5] where Her Ladyship said:
Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[4] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA)
[5] [2009] 1 AC 92, 108-9 [48]–[49]. See also Clarkson v R; EJA v R (2011) 32 VR 361, 370–1 [32].
36Moreover, there is a clear presumption of harm to the children who are the ultimate victims of your offending. The courts recognise the significant harm caused to children who are sexually abused, as the Court of Appeal opined in Clarkson v The Queen:[6]
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[7]
[6] (2011) 32 VR 361.
[7] Ibid 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
37In making the child abuse material available to others, you increased the number of people who would view that material and thereby increased the victimisation of the children depicted. You contributed to the unimaginable harm and psychological damage caused to the children, as their images will remain accessible indefinitely.
Offence Seriousness
38Offences involving child abuse material are inherently serious and considered especially grave by both the courts and the legislature.[8] These offences now carry a maximum penalty of 15 years’ imprisonment, which was increased by 50 per cent in 2010, despite only having been introduced in 2005.[9] As was stated by the plurality in the Director of Public Prosecutions (Cth) v Watson,[10] the legislature’s continuing response to such offending is of particular significance. The extreme moral depravity of your offending conduct cannot be overstated.
[8] Garside 808 [19].
[9] Ibid.
[10] 259 A Crim R 327.
39As stated in the Explanatory Memorandum to the 2010 amending Act, the legislative amendments reflect Parliament’s recognition ‘that the Internet is creating ever greater demands for new material of ever greater levels of depravity and corruption.’[11]
[11] Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 81. Garside 808 [19]; DPP (Cth) v Watson (2016) 259 A Crim R 327.
40The ready availability of child abuse material has warranted substantial penalties and the authorities establish that general deterrence and denunciation are paramount sentencing considerations.[12] As in the present case, ‘The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.’[13]
[12] R v Porte (2015) 252 A Crim R 294, 307 [59] (Johnson J, Leeming JA and Beech-Jones J agreeing) (‘Porte’). See also DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA, Redlich JA and Williams AJA agreeing) (‘D’Alessandro’); Edwards v The Queen [2013] VSCA 188 [22] (Osborn JA, Nettle and Coghlan JJA agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [40] (Tate JA, Sifris AJA agreeing); Garside 808–809 [19]–[21].
[13] Fitzgerald v The Queen [2015] NSWCCA 266 [33]. (Hoeben CJ at CL, Price and Button JJ agreeing).
41It is well established that in cases such as the present, ordinarily a term of imprisonment will be imposed. In DPP (Cth) and DPP v Garside (‘Garside’), Redlich and Beach JJA observed:
The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation, is grave. It must ordinarily be the subject of substantial punishment.[14]
[14] Garside 809 [22] (citations omitted).
42Later their Honours said:
What is clear from all the authorities is that access to child pornography[15] is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of imprisonment will ordinarily be expected for such offending.[16]
[15] ‘Child pornography material’ was the term previously used in the legislation to describe what is now termed ‘child abuse material’. See amendments made to s 473.1 of the Criminal Code (Cth) by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) s 29.
[16] Ibid 819 [62].
43That expectation has now been given legislative effect through s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) (‘the Act’), which creates a statutory presumption that offenders will serve an immediate term of imprisonment on a recognisance release order, unless exceptional circumstances can be demonstrated. Your counsel accepted no exceptional circumstances exist in your case.
44The other general sentencing principles applicable to offending of this nature have been summarised as follows:
1 limited weight is to be given to an offender’s prior good character;
2offending involving child abuse material occurs on an international level and is becoming increasingly prevalent;
3offending of this nature is difficult to detect given the degree of anonymity afforded by the internet;
4possession of child abuse material creates a market for the continued corruption and exploitation of children;
5there is a paramount public interest objective in promoting the protection of children as possession of child abuse material is not a victimless crime; and
6the fact an offender does not pay to access or was not involved in the distribution or sale of child pornography does not mitigate the offending.[17]
[17] De Leeuw [72] citations omitted).
45In R v Hutchinson,[18] R A Hulme J, with whom Meagher JA and Button J agreed, set out a revision of ‘the list of factors that may bear upon the assessment of the objective seriousness of offences concerning child pornography and child abuse material provided in Minehan v R.’[19] This revised list is as follows:
[18] [2018] NSWCCA 152.
[19] (2010) 201 A Crim R 243.
1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination.
6. In a case of dissemination or transmission, the number of persons to whom the material was disseminated or transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination or transmission.
8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
11. Whether the offender acted alone or in a collaborative network of like-minded persons.
12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.[20]
[20] [2018] NSWCCA 152 [45]. See also DPP v Smith [2010] VSCA 215 [23] (Nettle JA, Harper and Hansen JJA agreeing) (‘Smith’), approved and extended to offences of accessing and transmitting child abuse material in Zarb 842 [27] (Neave and Kyrou JJA).
46Your offending conduct in relation to all four charges is objectively very serious. At the plea hearing your counsel conceded your offending is ‘very serious’. He accurately described the material involved as ‘vial and depraved’ and he said it involved ‘material of the gravest nature’. He accepted that some of the images are ‘in the absolute worst category’.
47Your offending involves five distinct offence types, namely, making available, accessing, soliciting, causing to be transmitted and possessing child abuse material. Charge 2 is a rolled up charge involving accessing and soliciting child abuse material. Accordingly, I accept the Commonwealth Director’s submission that the criminality involved in this charge is necessarily greater than if the charge concerned a single criminal act.[21]
[21] R v Richard [2011] NSWSC 866.
48Although the offending period in Charges 1, 2 and 3 is the night of 17 April into the early morning hours of 18 April 2022, by way of context I note you demonstrated a degree of persistence. Apparently, you had previous Kik accounts ‘banned’ and you opened new accounts ‘about four times’.[22] However, you are not to be punished for conduct which falls outside the temporal scope of these charges.
[22] Record of Interview conducted 5 July 2022 [Q&As 83–88].
49Charge 1 involved you sharing a link containing 44 child abuse material videos into a Kik group chat for the explicit purpose of sharing the material and obtaining access to further material. One of those videos contained child abuse material of the gravest kind. Applying the Hutchinson criteria, the Commonwealth Director submitted this was the most serious offence you committed. I agree. The Kik group chat with which you shared this child abuse material involved an unknown number of participants. I accept the Commonwealth Director’s submission that the gravity of your offending is increased by the potential breadth of the audience you shared the material with.
50I also agree with the Commonwealth Director’s characterisation that you were an active and enthusiastic participant in the market for child abuse material. You encouraged the trade in vile child abuse material and in doing so contributed to the continuing revictimisation of the children depicted.
51Your offending conduct the subject of Charge 2 involved you accessing child abuse material posted by another user within the group chat, requesting further material from that user, and soliciting additional material from a third user within the same group chat. This was relatively contained offending committed over a short time period.
52So far as Charge 3 is concerned, you sent yourself two Mega links containing a total of 74 files. The child abuse material located within the links was of the gravest nature. Nonetheless, the files were not disseminated to others and, accordingly, I accept the Commonwealth Director’s characterisation of this being the least serious of the present offences.
53Charge 4 involved you possessing or controlling 635 files. In written submissions, the Commonwealth Director conceded that the number of files possessed or controlled was relatively low by comparison to other cases, however I accept the Commonwealth Director’s submission that the quality of the material rather than the quantity will often be more determinative of the level of gravity. As Sofronoff P stated in R v Cardwell,[23] ‘the greater the cruelty, degradation and corruption depicted and the more the material offends against community values, the more reprehensible the offending conduct.’[24]
[23] [2021] QCA 112.
[24] Ibid [22] (Sofronoff P, Mullins JA and Bradley J agreeing) citing R v Vantoosten [2009] QCA 54 [19] (Muir JA).
54In the present case, the nature and content of the material was depraved and disturbing. It involved degrading sexual acts including an adult male masturbating over a naked prepubescent female, acts of bestiality involving a canine and a prepubescent female, and material depicting the penetration of an infant. Moreover, that actual children were depicted in the material you possessed increases the seriousness of your offending conduct. This is serious offending warranting severe punishment.
55There was no evidence that you were a participant in any of the images, or that you intended to profit or derive financial gain from your crimes. Nonetheless, the absence of these features does not identify mitigatory factors, rather, it merely notes the absence of aggravating features.[25]
[25] R v Turvey (2017) 127 SASR 425 at [136] (Hinton J, Nicholson and Lovell JJ agreeing).
56I accept that the offending period relating to Charges 1, 2 and 3 occurred within the space of a few hours and that Charge 4 involves your possession of child abuse material on a single date. I note there is no duplication between the images the subject of each distinct charge.
57Overall, I agree with the Commonwealth Director’s assessment that this is mid-range offending.
Personal Circumstances
58You were assessed on 19 May 2023 by Patrick Newton, a clinical and forensic psychologist engaged by your legal representatives. Mr Newton prepared a ‘Confidential Psychological Report’, dated 19 June 2023, which was tendered at the plea hearing by your counsel.[26] Your personal history is summarised in the report.
[26] Ex D2.
Personal history
59You were born in February 1976, and are currently 47 years old. You are the third youngest in a sibship of four, having two older sisters and a younger brother. You were born in Melbourne. Your family moved to the Mornington Peninsula when you were about five years old and you have resided there since.
60You described your early life in mixed terms to Mr Newton. On one hand, you said you thought of it as an ‘ideal childhood’ in ‘a lovely place’. You noted that your family had been prosperous and that you had attended a good private school. On the other hand, you said that you and your siblings had lived in fear of your father and that you are all now largely estranged from him. You also reported that you had been badly bullied by your older sisters.
61Your parents separated when you were 19 years old. Your father re-partnered to a woman in Indonesia and fathered two further children with her. You have experienced a degree of rapprochement with your sisters as you have matured, and you report now being on good terms with all your siblings.
62You currently reside with your mother, with whom you enjoy a close relationship. Your mother who is aged 75 and suffers ‘extreme anxiety for which [she] takes medication’.[27] A letter from her treating doctor tendered at the plea hearing says she has a diagnosis of depression since October 2011 and she suffers from ‘severe anxiety/depression’.[28] She was present in court supporting you during the plea hearing.
[27] Letter from Lynette Hayes, dated 14 June 2023 (Ex D5).
[28] Letter from Dr Guy Williams, dated 23 June 2023 (Ex D7).
63Your physical development progressed normally and you denied any significant childhood illnesses or injuries.
Education and employment
64You attended Padua College and reported you had acquired functional literacy and numeracy skills without undue difficulty. You also reported that you had engaged in unruly behaviour throughout your schooling, noting you were ‘very disruptive and hyperactive in class’ and that you were ‘infamous at school for being a troublemaker’.
65Throughout your education, you were combative and anti-authoritarian towards your teachers, particularly while at secondary school. You reported the reason for this conduct was due to you having been ‘above-average at school’ resulting in you being bored in class, with your ‘acting out’ designed to alleviate this.
66You told Mr Newton that despite your disciplinary and social problems, you had progressed through the year levels without repeating. You noted that you had been generally popular with other students, however you had increasingly hung out with troublemakers as you progressed through school.
67You were suspended from school repeatedly and in Year 11 you ceased schooling altogether.
68After ceasing your education you commenced working in hospitality, initially washing dishes and over time progressing to cooking. You did not complete formal training in the field, nor do you have any formal post-secondary qualifications. You reported working as a cook in various businesses for about 20 years.
69Your engagement with work had been haphazard since you were living a ‘partying life without much routine’. You had recently commenced an arborist course as well as traffic management training. However, you lost your employment when details of your present offending were published in the Herald Sun newspaper. Your counsel accepted this does not constitute extra- curial punishment sufficient to mitigate your sentence.
Relationships and sexual history
70You did not experience any childhood sexual abuse, sexual violence or unwanted sexual contact. You described having an unremarkable sexual history.
71You began engaging in sexual relationships from around the age of 16. Your first serious relationship commenced when you were 21 years old. This relationship ended when you were aged 26. You reported it had come to an end as you ‘didn’t want to settle down’. There are no children to the relationship.
72After the end of this relationship, you participated in a series of short-term liaisons. None of these progressed beyond the initial phases. You reported that from your early thirties you were in a relationship for a couple of years with a woman who was aged in her early twenties. This relationship came to an end when your then partner travelled overseas. You reported being quite upset at its ending. You subsequently moved in with your mother and experienced around six years with no relationships, instead connecting with people online.
73Among the people with whom you connected online was your current partner. You met her through a Kik group focused on exchanging sexualised images of teenage girls. She was aged 14 when you first met. You admitted that your communication had been ‘very sexual’ from the beginning. You were in a full-time relationship when she was aged 16, with a sexual relationship reportedly commencing when she was aged 17.
74She moved in to live with you and your mother when she was around 18 years old. You described your relationship in positive terms, reporting you like having her in your life. You noted that she had been engaging in self-harming behaviour when you met her and you had helped her to desist. You added that you believe she ‘feels safe with [you]’.
Online activity
75You reported an extensive engagement with online sexualised material commencing when you obtained your first smartphone in your mid-twenties. You reported joining the social media application Kik because you believed that it would be ‘a good way to meet girls’. You quickly realised that through Kik you could access an extensive amount of pornography as well as engage in sexualised ‘chat’ with various groups of women and underage females.
76You would also be sent pornographic material by other users. You reported that you had been particularly prone to seek out such content when you were feeling lonely, isolated or depressed, and when using illicit drugs. Kik became your predominant social outlet during your mid to late thirties.
77You reported that you had engaged in compulsive use of pornography over an extended period, with it not being unusual for you to spend days on end compulsively masturbating to pornographic images. You would often fail to attend to basic personal care tasks because you were so immersed in the activity.
78You reported that your use of pornography was tightly integrated into your use of illicit stimulants, and that you felt you had little volitional control over either activity. The material you had viewed had steadily become more deviant and bizarre. You also noted that you deliberately sought material of a graphic, violent or macabre nature because of its transgressive quality, and that you regularly ‘trolled’ online forums for the same reason.
79You felt considerable ambivalence and internal conflict about your involvement with pornography and made several resolutions to desist from its use but always returned to viewing it after a short break. The longest period you managed to stay away from pornography had been two or three months.
80With regard to child abuse material, you reported first seeing such material when you were chatting in an all aged group where someone had posted it. You felt attracted to the ‘transgressive’ nature of the material and contacted the individual who had sent it to enquire further about it.
81From there, you became involved in another Kik group dedicated to exchanging images of underage females. You shared and received material from that group, saving it to your Mega account and connecting with other users regarding it. It was through this involvement that you committed the current offending.
82After being charged with the present offences, you attempted to desist from using pornography but you have been unable to do so. You reported to Mr Newton that since being charged you have accessed pornography occasionally on your partner’s mobile phone.
Substance abuse
83You began experimenting with cannabis while at secondary school. At that stage, your use was sporadic and you didn’t like it much. When you were aged 19 you returned to using the drug. From that time onwards your use of the drug became more consistent and escalated to becoming a daily aspect of your life.
84About this time. you began engaging in binge drinking. You consumed extensive amounts of alcohol on a daily basis, mixing it with cannabis and regularly drinking to the point of intoxication. This behaviour continued throughout your twenties. Your involvement in the hospitality industry facilitated your lifestyle.
85Your drug use escalated markedly in your thirties. This escalation occurred in the context of your work at a nightclub which facilitated easy access to a range of illicit drugs. Mr Newton noted you were generally vague in regard to the drugs you had used, but that you did state you had continued to drink heavily, had used cocaine in conjunction with your drinking in order to induce a subjective illusion of sobriety and that you had used large amounts of MDMA and LSD.
86You reported less regular, but still problematic, use of other drugs such as Ketamine and GHB. You reported using every drug except for ice and heroin.
87You believe your use of cocaine had been linked to hypersexuality and other disinhibited behaviour. You reported that much of your online offending had taken place while you were intoxicated with a cocktail of alcohol, cocaine or other stimulants such as MDMA.
88You reported to Mr Newton that you have now ceased using illicit drugs with the assistance of Mr Burrows, your treating psychologist. At the plea hearing your counsel tendered two drug screen results dated 24 March 2023 and 16 May 2023 confirming negative results.[29]
[29] Ex D8.
Mental health
89At the commencement of his report, Mr Newton noted the considerable caution he employed while interpreting your test results. He described the reasons for his caution as follows:
Mr Hayes willingly completed the PAI [Personality Assessment Inventory]: taking somewhat longer than usual to do so. His answers were at significant variance to his presentation during clinical interview. Thus, while he reported mild to moderate symptoms of anxiety and depression in that context, his test results suggested that he was experiencing extreme symptoms of both conditions – at level higher than most clinical patients. The profile also suggested severe personality problems and the presence of extremely serious drug-related difficulties. Again, the level of disorder reported in these areas was extreme – surpassing that of 98% of clinical patients. Thus, while the validity scales were not themselves elevated, it was considered likely that Mr Hayes’ responses were exaggerated. Accordingly, I have exercised considerable caution when interpreting Mr Hayes’ test results.
90Regarding your mental health, you reported a significant history of behavioural disturbance in childhood. While Mr Newton opines your self-reports are strongly suggestive of a conduct disorder in childhood, it appears you were not assessed at any stage during your schooling.
91You reported experiencing labile mood throughout your adult years. You described rapid switches in your emotional state, sometimes up to several times a day, and that you were prone to act impulsively and without thinking. This resulted in you often experiencing negative consequences as a result of uncontained expression of your emotions.
92Mr Newton considered your description of your symptoms was ‘vague, diffuse and non-specific’. He considered their relevance is obscured by your comorbid use of a wide range of illicit substances which also had severe psychological effects on you. He stressed that even were the effects of substances ruled out, your reported symptoms would not be consistent with bipolar disorder.
93You reported seeking mental health treatment once or twice in the past, however, you were unable to provide details of the treatment you received. You also told Mr Newton you had been prescribed psychiatric medication in the past but had never taken it. You expressed a generalised resistance to taking medication of any type, notwithstanding your illicit drug use.
Anxiety
94Mr Newton observed you presented for your assessment reporting noteworthy symptoms of anxiety. Your current emotional experience is dominated by an unsettled anxiety and apprehension. Mr Newton opines that owing to a broader lack of psychological sophistication, you manifest your anxiety most clearly through your physical functioning. You reported clear symptoms of hyper-arousal and a moderate degree of physical tension that makes it difficult for you to relax.
95You reported experiencing recurrent sleep disturbance and described how apprehension about your situation infests your thoughts whenever your mind is not otherwise occupied. Your ruminations leave you distractible and contribute to ongoing problems with your ability to focus. At a surface level your thoughts are easily derailed so that you are prone to be both distractible and discursive. Your behaviour is impulsive and your interactions are tinged with irritability.
96Mr Newton noted that you understand clearly the seriousness of the charges you are facing and that you are worried about the sentence you face. You were particularly distressed by the publicity your case received and the prospect of further publicity plays heavily upon your mind. You are also concerned about the sustainability of your relationship with your partner, should you be imprisoned. Overall, you feel a generalised sense of apprehension and pessimism about the future
97Mr Newton opined your symptoms are somewhat more intense than is typical for a person in your situation and they are sufficiently severe to meet DSM-5 diagnostic criteria for an adjustment disorder with anxiety. This diagnosis encapsulates his opinion that your symptoms represent a relatively intense response to identifiable stressors. He observed that the typical course of an adjustment disorder is for it to resolve when the stressors that precipitated it have been addressed.
98In cases where the stressful situation persists, where coping resources are poor and where supports are limited, there is a risk that the sufferer’s mental state could deteriorate, resulting in more severe disturbance of emotions. Accordingly, Mr Newton opined there would be ‘some risk’ that you could develop more severe psychological problems while in custody. Mr Newton noted that in such circumstances, the need for mental health care would be increased.
Cognitive functioning
99Despite your proneness to be vague and discursive during your interview with Mr Newton, he found there was no indication you were experiencing any thought disorder or psychosis.
100Mr Newton noted that while you believe you are of above-average intelligence, he considered you are an unsophisticated man with a ‘concrete’ approach to the world and a limited grasp on abstract ideas. He opined that your intelligence is more likely to fall in the average to low-average range.
Personality dysfunction
101Mr Newton considered you remain an immature person for your age. He noted that not only are your mannerisms and demeanour more in keeping with a much younger person, but your understanding of your emotional world is superficial at best. Reinforcing this impression, you have made little progress towards establishing yourself in adulthood. You left education early and completed no vocational training. Your career direction has been inchoate and haphazard, and your views on most major life issues reflect the narrowness of your lifestyle in being superficial and simplistic.
102Mr Newton considered that, while you are engaged in an intimate relationship of some years’ standing, this commenced when your partner was 17 years old and you were much older. Mr Newton opined the degree of intimacy between you remains ‘adolescent’ and ‘formative’ rather than mature. He considered your sense of direction in life is diffuse and, in summary, your personality development remains at a formative stage.
103Mr Newton noted that making matters worse, you seem to view the world as uncaring and a competitive place where weakness or vulnerability is likely to be exploited and where ultimately only the strong can prevail. You are cynical about the motivations of others and have internalised a series of dysfunctional conventions based on your immersion in pornography and your affiliation with drug-users and other anti-social peers.
104Mr Newton considered you have a strong anti-authoritarian tendency, are prone to challenge limits, and you are amused and stimulated by ‘transgressive’ material. Moreover, in his opinion, you learn slowly from negative experiences and you are not generally deterred by the risk of adverse consequences. Your substance use has reinforced these attitudes and has intensified their impacts on your judgement.
105Mr Newton opined that your personality manifests significant signs of disturbance. While he was reluctant to diagnose a personality disorder on the basis of a single interview, particularly with questionable psychometric test results, he considered it was abundantly clear that you manifest prominent features of ‘Cluster B’ personality disorders. In his opinion, these maladaptive traits occur on a likely background of conduct disorder in childhood and go well beyond the levels typically seen as a secondary aspect of drug use. He considered they constitute a further risk factor for your criminal recidivism.
Sexual adjustment
106Mr Newton opined that a review of your sexuality indicates the presence of significant psychosexual pathology together with persisting offence-supporting cognitive distortions. You manifest preferential attraction to underage individuals, in the incipient stages of sexual maturity. You described a strong sexual response to images of naked teenagers and acknowledged you actively sought this material.
107You reported to Mr Newton experiencing such attraction for at least six or seven years. You expressed some ambivalence about this attraction. In Mr Newton’s opinion, you understand this material is viewed with opprobrium by society and, as a result, you have experienced some anxiety about viewing it, despite the strength of your attraction to it.
108Mr Newton noted that you endorse a number of significant cognitive distortions. You attribute a precocious sexual maturity to young women in the early stages of sexual development, seeing them as flirtatious, open to sexual experimentation and able to consent to engage in sexual interactions with adults without harm. Accordingly, you tend to downplay the negative consequences which flow from sexual contact between adults and young people.
109You previously viewed access to child abuse material as a ‘victimless’ crime. However, with the benefit of counselling from Mr Geoffrey Burrows, a provisional psychologist who is currently treating you, you have come to understand the pernicious nature of the industry which generates this vile and disgusting material.[30] Mr Newton notes that while this is a positive development, you continue to downplay the harm suffered by those depicted in child abuse material and your empathy for the victims remains superficial.
[30] See report of Mr Geoffrey Burrows dated 16 June 2023 (Ex D3).
110Moreover, Mr Newton noted your relationship with your current partner commenced with sexualised chat and progressed to increasingly intimate sexual contact. While you asserted that actual physical intimacy did not commence until after your partner was of age, Mr Newton considered the way in which the relationship developed, and the reported vulnerability of your partner, both raise self-evident concerns.
111You told Mr Newton that you had surreptitiously video-recorded the genital regions of a number of girls and women. You said that this behaviour had been conducted by you without their consent, that it had occurred impulsively, and that you had experienced intense sexual gratification from doing so. There is no charge before me related to this alleged conduct and you will not be punished for it.
112You told Mr Newton you had engaged in the compulsive use of online pornography as a means of managing your stress and loneliness. You noted that you had had difficulty moderating the time you spent viewing pornography, you would at times delay undertaking other activities of life, and that you had become reliant on the combination of pornography and illicit stimulant use to manage your feelings of stress and loneliness.
113Even now, by your own admission, you have been unable to stop using online pornography as a sexual outlet, reporting the use of your partner’s mobile phone to access it.
114Finally, Mr Newton opined that your sexual behaviour is sufficiently disordered to meet criteria for an unspecified paraphilia with hebephilic and voyeuristic features.
Application of Verdins principles
115Your counsel submitted Verdins principles 5 and 6 are engaged in your case.[31] He based this submission on Mr Newton’s diagnosis of adjustment disorder with anxiety, the strong likelihood you suffer from a personality disorder, and Mr Newton’s opinion you:
Would be likely to experience a longer than usual time adjusting to the custodial environment and to be at a higher than usual risk of adverse interactions with other prisoners. To this extent, his experience of incarceration would be somewhat more demanding than that of others who did not face such challenges.
[31] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
116So far as Verdin’s principle 6 is concerned, your counsel relied on the following passage from Mr Newton’s report: ‘Thus were Mr Hayes to be sentenced to a custodial disposition, there would be some risk that he could develop more severe psychological problems. In such circumstances, the need for mental-health care would be increased.’[32]
[32] Emphasis added.
117On balance, I accept Verdins principle 5 is engaged to some extent in your case. The prosecutor fairly accepted this.
118However, I am not satisfied Verdins principle 6 is engaged. Verdins principle 6 requires there to be ‘a serious risk of imprisonment having a significantly adverse effect on the offender’s mental health’ for this consideration ‘to mitigate punishment’.[33] Mr Newton’s report does not go this far, referring only to ‘some risk’. Moreover, this is statement is qualified. If the risk were to eventuate ‘the need for mental-health care would be increased’. I am not satisfied the prison authorities will not provide appropriate mental health care to you while in you are in custody so as to mitigate the risk of a significantly adverse effect on your mental health arising from your incarceration.
Risk assessment
[33] Verdins 276 [32(6)] (emphasis added).
119Mr Newton assessed you using the Risk for Sexual Violence Protocol – second edition (RSVP-V2). The factors considered by RSVP-V2 identify the presence of multiple risk-factors across each domain and most sub-domains of the instrument.
120Your involvement with child abuse material has been extended and diverse. You have not only engaged with material on hebephilic themes, but have also accessed and downloaded child abuse material related to a wide range of strongly deviant themes and diverse victim types. Your engagement with underage individuals has been inherently psychologically coercive. Mr Newton opined that each of these features elevates your risk of recidivism.
121Beyond these considerations, Mr Newton opined the risk is exacerbated by the entrenched and multifaceted sexual deviance evident in your adjustment as well as your history of substance abuse. Your antisocial attitudes are also deeply concerning.
122Mr Newton opined that problematic issues arise with regard to your psychological adjustment. These include the prominent cognitive distortions underpinning your offending, your persisting problems with insight and self-awareness more broadly, and your difficulties managing stress.
123Mr Newton opined that the risk of recidivism extant in your case is considerably greater than would usually be manifest in a first-time online offender, owing to the wide range of risk factors present in your case. He considered that you would most accurately be classified as presenting no less than a moderate to high risk of further sexual offending. In other words, your risk of such offending is above average relative to a typical group of sex-offenders undergoing sentence.
Conclusion
124There are many concerning aspects to Mr Newton’s opinions and conclusions, not least his assessment in relation to your risk of sexual reoffending. Accordingly, I must give significant weight to specific deterrence and protection of the community in sentencing you.
Criminal History
125You have a relatively minor and presently irrelevant prior criminal history.
126On 10 May 1994 you appeared at the Dromana Magistrates’ Court in relation to one charge of possess firearm without a licence, one charge of possess unregistered firearm and one charge of discharge firearm on town road. You received an aggregate fine without conviction. You instructed your counsel that those charges arose from an incident in the car park of your then workplace, where you were shooting a BB air gun.
127That sentence was varied on 7 October 1996 at the Melbourne Magistrates’ Court. Your fine was cancelled and you were placed on a without conviction Community Based Order. You subsequently breached that order, it was cancelled and you received another aggregate fine.
128The remainder of your criminal history comprises minor driving related offences.
Mitigating Circumstances
129Pursuant to s16A(2) of the Act, I must take into account your plea of guilty and the degree to which you have shown contrition for your offending, as well as the degree to which you have cooperated with law enforcement agencies.
130You pleaded guilty to the present offences at the earliest reasonable opportunity. I accept your pleas have utilitarian benefit, particularly in the context of the COVID-19 pandemic.[34] They also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[34] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[36] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA).
131I accept you were cooperative with investigating authorities, supplying them with passwords and access to your devices and on-line applications and programs. Moreover, you were candid during your record of interview and made significant admissions.
132I do not accept that a Doran discount[35] is appropriate in this case. While you admitted to previously undisclosed offending during your record of interview, you have not been charged with any offences arising from those admissions.
[35] See R Doran
133You expressed some remorse to Mr Newton when you said:
I feel ashamed of the child porn. I can’t find a reason for doing it. I feel guilty and regret that I did it. I regret ever going on Kik and that I looked at it and that I wanted to see more. Honestly, I’m a bit confused about why I was on it.
134Your mother, Lynette Hayes, writes: ‘I believe [Tim] is deeply remorseful and embarrassed. I have noticed a despondency in Tim since the charge and the fact that he has been ostracised by his friends and neighbours’.[36]
[36] Letter from Lynette Hayes, dated 14 June 2023 (Ex D5).
135Your older sister, Monica Hayes, in her letter of support[37] writes she believes you are ‘sincerely remorseful of [your] actions and very regretful of [your] wrongdoings’. However, she does not elaborate on the reason she holds this opinion.
[37] Ex D4.
136Your niece, Ebony Blackman, in her letter of support writes: ‘I know he realises the seriousness of what he has done and shows remorse’.[38] However, she also does not elaborate on why she thinks you ‘show remorse’.
[38] Letter from Ebony Tegan Blackman, dated 19 June 2023 (Ex D6).
137I am not satisfied on the evidence before me you demonstrate true contrition and remorse for your offending conduct and real victim empathy. Mr Newton’s report details the superficial empathy you hold for the victims of child abuse material and your tendency to downplay the harm suffered by those depicted in it. Moreover, while Mr Newton notes that with the benefit of counselling you have come to understand the pernicious nature of the industry which produces child abuse material, you continue to minimise your offending conduct and you tend to downplay the negative consequences which flow from sexual contact between adults and children. It is clear you still lack real insight into the reasons behind your offending conduct and its serious consequences for the innocent and vulnerable victims of this pernicious trade.
138As Winneke P, with whom Tadgell JA agreed, said in R v Cooper:[39]
A distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds herself. The degree of true remorse demonstrated by an offender is a question of fact for the judge.
[39] (1998) 103 A Crim R 51, 55 (citations omitted).
In my opinion, you are clearly regretful for the position in which you find yourself and the effect this is having on you and your mother, in particular. However, I am not satisfied you are genuinely remorseful for what you have done.
139At the plea hearing, your counsel tendered a report by Mr Geoffrey Burrows, your treating psychologist.[40] Mr Burrows confirmed you have participated in eight sessions of the Sex-Offender Treatment Program, at your own expense, between 23 January 2023 and 8 June 2023. I understand you attended a further session on 23 June 2023, three days before the plea hearing.
[40] Ex D3.
140It is to your credit you have sought psychological counselling, treatment and support. Mr Burrows reports you are at an early stage of the process. You initially demonstrated ‘very little understanding of the destructive impact of [your] offending behaviour and expressed some indifference regarding the rationale for the laws regarding age of consent.’ With some psychoeducation, you have demonstrated ‘some improved understanding of your actions’ and you have agreed to engage productively in further treatment.
141I have had regard to the three character references tendered on your behalf at the plea.[41] I accept that, some irrelevant prior matters aside, you are a person of otherwise good character. However, as the authorities make clear, limited weight is to be given to this as a mitigating factor.[42]
[41] Ex D4, Ex D5 and Ex D6.
[42] See R v Gent (2005) 162 A Crim R 29, 44 [65] (Johnson J, McClellan CJ at CL and Adams J agreeing); DPP v D’Alessandro (2010) 26 VR 477, 483–484 [21] (Harper JA, Redlich and Williams AJA agreeing); Mouscas v R [2008] NSWCCA 181 [37] (Price J, Allsop P and James J agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [35] (Tate JA, Sifris AJA agreeing); R v Gajjar (2008) 192 A Crim R 76, 81 [29] (Maxwell P, Nettle and Weinberg JJA); Garside [63].
142In light of Mr Newton’s opinions and conclusions and his risk assessment, and your apparent lack of protective factors, I consider I must adopt a guarded approach to your prospects for rehabilitation, while recognising you are making some progress towards your ultimate rehabilitation and you are slowly gaining insight into the seriousness of your offending conduct and its effect on the innocent victims of these insidious crimes.
143The effect of delay is a mitigating circumstance in your case. You were charged on 5 July 2022, a little over 12 months ago. Some delay has been the result of the COVID-19 pandemic. While this is not inordinate delay, it remains relevant.
144As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[43]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[44]
[43] (2013) 40 VR 436.
[44] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
145I accept you have undergone some rehabilitation with Mr Burrows during this period of delay, for which you are to be commended, and you have not reoffended. So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would has caused you anxiety and stress. I take the punitive effects of delay into account in your favour
146At the plea hearing your counsel submitted that you are the sole carer for your aged mother, who suffers from long standing severe anxiety and depression. While he accepted this did not constitute an exceptional circumstance under the principles espoused in Markovic v The Queen,[45] I will take into account in your favour the fact your mother’s situation, and your inability to continue caring for her, will weigh heavily on you whilst you are in custody and this will likely increase the burden of imprisonment on you.
[45] (2010) 30 VR 589.
147The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[46]
[46] The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ)
(b) As I earlier observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.[47]
[47] See above [78].
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[48]
(d) The pandemic can impact on visits, work and educational opportunities depending on the number of cases of COVID-19 in the community at any given time.[49]
Application of Sentencing Principles
[48] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
[49] Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
148I must sentence you in accordance with the relevant provisions of Part 1B of the Act and, in particular, the provisions of s16A.
149Pursuant to s16A(1) of the Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. In determining the appropriate sentence, I must have regard to the matters set out in s16A(2) of the Act, and any other matters, insofar as they are relevant and known to me.
150Section 17A(1) of the Act provides that I shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences, I am satisfied no other sentence is appropriate in the circumstances.[50]
[50] Similarly, see Sentencing Act 1991 (Vic) ss 5(3).
151Ordinarily, a person being sentenced for the present offences can expect a term of imprisonment to be imposed.[51] Moreover, the Act requires a court to be satisfied that exceptional circumstances exist before a person being sentenced for a Commonwealth child sex offence can be released immediately on a recognizance release order.[52] Your counsel accepted no exceptional circumstances are present in your case.
[51] D’Alessandro; Smith; DPP (Cth) v Guest [2014] VSCA 29; Zarb; Garside.
[52] Crimes Act 1914 (Cth) (‘the Act’) s 20(1)(b)(ii).
152The Commonwealth Director submitted that having regard to the nature and gravity of your offending and the primacy of general deterrence, the only available sentencing disposition is an immediate custodial sentence.
153Your counsel submitted that a term of imprisonment is the only appropriate disposition in your case. He also submitted that a recognisance release order is the appropriate mechanism for such a sentence. The Commonwealth Director accepted it is open to me in a sound exercise of my sentencing discretion to impose an overall sentence that permits your release on a recognisance release order.
154Section 19(5) of the Act provides for a presumption in favour of cumulative sentences where a term of imprisonment is imposed for child sex offences. This section does not apply if the Court is satisfied that imposing the sentences in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.
155The Commonwealth Director conceded that a measure of concurrency between the sentences was appropriate given the overlapping nature of the offending conduct. Moreover, the totality principle continues to apply and, in my opinion, requires in the present case that there be a significant measure of concurrency between the individual sentences because of the general circumstances and the short time period over which the offences were committed.
156I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic,[53] DPP (Vic) v Dalgliesh (a Pseudonym)[54] and The Queen v Pham[55] and the Victorian Court of Appeal decisions in DPP v Zhuang[56] and DPP (Cth) v Thomas.[57]
[53] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[54] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[55] (2015) 256 CLR 550, 557 [23] (French CJ, Keane and Nettle JJ).
[56] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[57] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
157The Commonwealth Director referred me to a number of comparable cases to which I have had regard, as follows: Young v The Queen,[58] Lyons v The Queen,[59] Wagner v The Queen[60] and Burrell v The Queen.[61] Your counsel also referred me to several comparable cases to which I have had regard, as follows: DPP v Schaeche,[62] DPP v Bradley,[63] DPP (Cth) v James,[64] DPP (Cth) v Bremner,[65] DPP v Baldock[66] and DPP v Williams.[67]
[58] [2021] SASCA 51 (Kelly, Doyle and Bleby JJA).
[59] [2019] VSCA 242 (Whelan and Priest JJA).
[60] [2018] NSWCCA 124 (Leeming JA, Button and Fagan JJ).
[61] [2013] VSCA 146 (Buchanan, Ashley and Coghlan JJA).
[62] [2021] VCC 743 (Judge Holding).
[63] [2022] VCC 414 (Judge Blair).
[64] [2022] VCC 327 (Judge Wraight).
[65] [2023] VCC 51 (Judge Davis).
[66] [2022] VCC 2167 (Judge Pillay).
[67] [2020] VCC 1489 (Judge Brookes).
158While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[68]
[68] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
159Moreover, it is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases, given the wide range of offending conduct that can constitute the offences for which you fall to be sentenced and the myriad of personal circumstances pertaining to individual offenders. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
160The basic purposes for which a court may impose a sentence are just punishment; denunciation; deterrence, both general and specific; protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the innocent and largely unidentified victims of your crimes and your personal circumstances.
161Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. Moreover, for the reasons previously adumbrated, I consider significant weight also needs to be given to specific deterrence and protection of the community. Finally, as I observed earlier, I assess your prospects for rehabilitation as being guarded.
162Ultimately, after having considered all other available sentences, I am of the opinion that the only appropriate sentences necessary to achieve the purposes for which these sentences are imposed is a total effective sentence of three years’ imprisonment, with an order that you be released on a recognisance release order under s 20(1)(b) of the Act after serving 18 months imprisonment. My reasons for that conclusion are contained in these reasons for sentence.
163I note that Charges 1, 2, 3 and 4 are Class 2 offences for the purposes of the Sex Offender Registration Act 2004 (Vic) (‘SORA’). Pursuant to section 34(1)(c) of the SORA, you will be required to comply with the reporting requirements under the SORA for the remainder of your life.
Mr Hayes
On Charge 1 – use carriage service to make available child abuse material, contrary to subsection 474.22(1) of the Criminal Code (Cth), you are convicted and sentenced to imprisonment for two years commencing today.
On Charge 2 – use carriage service to access and solicit child abuse material, contrary to subsection 474.22(1) of the Criminal Code (Cth), you are convicted and sentenced to imprisonment for one year commencing on 18 October 2024, resulting in a cumulation of three months on Charge 1.
On Charge 3 – use carriage service to cause child abuse material to be transmitted, contrary to subsection 474.22(1) of the Criminal Code (Cth), you are convicted and sentenced to imprisonment for six months commencing today, resulting in total concurrency with the other sentences imposed in this case.
On Charge 4 – possess or control child abuse material obtained or accessed using a carriage service, contrary to subsection 474.22A(1) of the Criminal Code (Cth), you are convicted and sentenced to imprisonment for eighteen months commencing 18 January 2025, resulting in a cumulation of nine months on Charges 1, 2 and 3, thereby making a total effective sentence of imprisonment for three years.
I direct that you are to be released after serving 18 months of the sentences on Charges 1, 2, 3 and 4, upon your recognisance in the sum of $3000 and on the following conditions:
(1) That you be of good behaviour for a period of 18 months following your release from custody.
(2) That you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for a period of 18 months.
(3)That you obey all reasonable directions of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
(4)That you not travel interstate or overseas without the written permission of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
(5)That you undertake such treatment or rehabilitation programs that the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee reasonably directs.
(6) That you are to report to the Rosebud Justice Service Centre at 2/843-849 Point Nepean Road, Rosebud, Victoria, 3939 within two clear working days upon your release from custody.
(7) That you are to report to and receive visits from a Community Corrections officer or officers.
(8) That you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.
(9)Attend for assessment and, if assessed as suitable, treatment for sex offender program or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
I must now explain these orders to you.
The effect of these orders is that you will serve 18 months of imprisonment before you are released to continue your sentence in the community. On Charges 1, 2, 3 and 4, you are released after 18 months on what is called a recognisance release order. This means that you will be released from prison in 18 months’ time and serve the remainder of your imprisonment sentence (18 months) in the community, provided that you are of good behaviour during that time and comply with all the other conditions of the recognisance release order.
If you fail to comply with the recognisance release order, then you will be brought back before the Court to be dealt with for the breach, and you may be required to serve the remainder of your imprisonment sentence in custody.
I declare 22 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
Pursuant to the provisions of the Sex Offenders Registration Act 2004 (Vic) I order that you comply with the reporting provisions of that Act for life commencing today.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state the sentences I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 4 years’ imprisonment with a non-parole period of three years.
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