CDirector of Public Prosecutions v Hernandez
[2025] VCC 1360
•18 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00523
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID HERNANDEZ |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2025, 28 May 2025 and 15 August 2025 | |
DATE OF SENTENCE: | 18 September 2025 | |
CASE MAY BE CITED AS: | CDPP v Hernandez | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1360 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence.
Catchwords: Bestiality – Use a carriage service to cause offence – Transmit child
abuse material – Possess or control child abuse material – Section
16BA Schedule offences – Unlawful importation of bestiality material –
Use a carriage service to cause child abuse material to be transmitted
to himself – No prior convictions – Early guilty pleas – Delay –
Importance of general deterrence – Ongoing family support –
Rehabilitative treatment undertaken – Good prospects of rehabilitation.
Legislation Cited: Crimes Act 1958 (Vic); Crimes Act 1914 (Cth) Criminal Code1995 (Cth); Customs Act1901 (Cth); Sex Offenders Registration Act 2004; Sentencing Act 1991.
Cases Cited:DPP (Cth) v D’Alessandro [2010] VSCA 60; DPP (Cth) and DPP v Garside [2016] VSCA 74; R v Caldwell [2021] QCA 112; Heels v The King [2024] VSCA 133; CDPP v KMD [2015] VSCA 255; Phibbs v R [2023] VSCA 123; Mertell v R [2022] ACTCA 69; R v Perrey; R v Perry [2022] SASCA 51; R v Ferns [2024] QCA 262; Dyball v R [2025] NSWCCA 39; DPP v Walton [2020] VCC 1839.
Sentence: Global effective sentence on State and Commonwealth offences – 5 years and 6 months’ imprisonment with a minimum term of 3 years and 4 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr T. Marsh | Doogue and George Criminal Lawyers |
HIS HONOUR:
Introduction
1David Hernandez, you have pleaded guilty on indictment to the following four charges:
(a) Charge 1, bestiality, contrary to s 54A(1) of the Crimes Act 1958 (Vic). This offence carries a maximum penalty of 5 years’ imprisonment.
(b) Charge 2, using a carriage service to cause offence, contrary to s 474.17(1) of the Criminal Code1995 (Cth). This offence carries a maximum penalty of 5 years’ imprisonment.
(c) Charge 3, using a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Criminal Code. This offence carries a maximum penalty of 15 years’ imprisonment.
(d) Charge 4, possess or control child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code. This offence carries a maximum penalty of 15 years’ imprisonment.
2In addition, you have asked me to take into account the following two s 16BA Schedule offences:
(a) An offence of using a carriage service to cause child abuse material to be transmitted to yourself, contrary to s 474.22(1) of the Criminal Code. This offence carries a maximum penalty of 15 years’ imprisonment.
(b) An offence of unlawful importation of bestiality material, contrary to s 233(1)(b) of the Customs Act1901 (Cth). This offence attracts a financial penalty not exceeding 1000 penalty units.[1]
[1] S 233AB(2)(b) of the Customs Act 1901 (Cth).
Circumstances of the offending
3The circumstances of your offending are set out in detail in a 29 page Summary of Prosecution Opening for Plea dated 25 March 2025.[2]
[2]Exhibit A.
4On 1 July 2023, you returned to Melbourne from Bali. Upon your arrival at Melbourne airport, you were selected for a random baggage inspection. You produced an Apple iPhone 13 Pro (“mobile phone”) in your possession. You told the Australian Border Force Officers (“Officers”) that you owned the mobile phone and were aware of its contents. Upon conducting a preliminary review of the mobile phone, Officers located a WhatsApp conversation containing material they considered to be objectionable. You told them that you shared ‘animal fetish’ content with the WhatsApp user. A Private Photo Vault application (“vault application”) was located on the mobile phone which contained child abuse material.
5You participated in a record of interview, and told the Officers:
(a) The child abuse material had ‘rolled over’ from an iCloud backup to your current mobile device.
(b) The vault application was originally downloaded seven or eight years ago to store videos and photographs with your ex-girlfriend, and it later became a place to ‘put things’. You used the application to store material so that it wouldn’t be in your camera roll. When you viewed the material, it would ‘probably disappear’ so you would save it. You last accessed this application, a year or more ago.
(c) You sent bestiality videos to ‘Annette’ and spoke about bestiality as a ‘fantasy’.
(d) You acknowledged that you ticked ‘no’ to illegal pornography on your Incoming Passenger Card.
6Between 21 July 2023 and 11 September 2023, Officers examined and categorised the contents of your mobile phone.
7They identified two subfolders labelled ‘young’ and ‘animals’ within the vault application. Within the ‘young’ folder 1230 items of child abuse material were identified. Of the 1230 items, 614 items were classified as Category 1 child abuse material, and 616 items were classified as Category 2 child abuse material (Charge 4).[3]
[3]Legal adult pornography was also found on the phone.
8In the ‘animals’ folder, Officers located 2321 items depicting acts of bestiality. (16BA Schedule Item 2 – Unlawful Importation). Out of the 2321 items, Officers identified seven videos filmed on five separate occasions that depict you as the person engaging in bestiality (Charge 1 - rolled up):
(a) On 27 July 2018, a video was created depicting you penetrating a horse’s anus with your penis.
(b) On 3 June 2019 at 2:58 am and 3:01 am, two videos were created depicting you performing fellatio on a dog.
(c) On 5 July 2019, a video was created depicting you being anally penetrated by a dog’s penis.
(d) On 12 July 2019, a video was created depicting you being anally penetrated by a dog’s penis.
(e) On 15 July 2019 at 6:08 am and 6:10 am, two videos were created depicting you being anally penetrated by a dog’s penis.
9In addition, Officers located on your mobile phone conversations with 13 different users across messaging platforms Kik, Snapchat and WhatsApp.
10Between 8 April 2022 and 18 June 2023, you transmitted text based child abuse material and offensive material to others.
11The conversations that form the basis of Charge 2, are set out in detail in the prosecution opening.[4] It relates to 35 separate occasions occurring between 8 April 2022 and 3 June 2023.
[4]Exhibit A, [20] – [156].
12I shall provide a brief overview of the content therein, which is unfortunately necessary to convey the utter disgust and offensive nature of the communications.
13The conversations, in part, outline the abuse of a range of animals, both dead and alive, including you purporting to have sexually penetrated the following animals: wombat, kangaroo, chicken, alpaca, pig, shark, stingray, sheep, rabbit, horse, dog, donkey and goat.[5] You also referred to penetrating puppies, lambs and calves. The conversations include that:
(a) You anally penetrated a dead wombat.[6]
(b) Another user should ‘spit on push harder. Just split it open’ in relation to their efforts to penetrate a kangaroo.[7]
(c) You ‘went to town’ on an alpaca.[8]
(d) Piglets are ‘so tight’ and ‘get destroyed’ and that the last piglet you did ‘wasn’t to good after it lol’.[9]
(e) When you penetrate a kangaroo ‘You shoot it. Then fuck it’.[10]
(f) You have a favourite mare, which was accompanied by a close up image of a mare’s genitals.
(g) You have penetrated a dog with your fingers. You instructed another user to ‘Just keep doing that so she gets used to be being touched there. Train her to like it.’[11]
(h) You cut a slit in the stomach of a rabbit and that you ‘pretty much fucked its stomach cavity.’[12]
(i) You think ‘horse pussy is the best lol’ and ‘I’m a shocker arnt I’’,[13] which you accompanied with a video of bestiality. You sent a further eight images and four videos depicting bestiality.[14]
[5] Exhibit A.
[6] Exhibit A, [23].
[7] Exhibit A. [24].
[8] Exhibit A. [26].
[9] Exhibit A, [27].
[10] Exhibit A, [53].
[11] Exhibit A, [55].
[12] Exhibit A, [108].
[13]Exhibit A, [143].
[14]Exhibit A, [141], [144], [145] and [148].
14In your conversations, you also acknowledged that some people could consider bestiality as ‘animal cruelty’, although you believed that ‘most of it isn’t’.[15]
[15] Exhibit A, [88].
15The communications subject of Charge 2 also include conversations about sexual abuse of family members, ethnic females and dead persons. This included conversations about:
(a) You and your friend penetrating your friend’s mother in ‘both holes’ while she was unconscious.[16]
(b) You and a friend raping an Indian girl in the park. You said ‘Indians and Asians never speak up if they get raped.’[17] In a chat with another user, you said, ‘If its real rape I only do Asians, Indians or Muslims.’[18]
(c) You having sex with your grandmother after she had passed away in the presence of your mother. You said ‘First dead person I have fucked that was still warm…after I blew my load in her, mum said at least when shes buried there will be a part of you with her.’[19]
(d) Your mum’s intention to have sex with a dead male next time they go to Thailand. You outlined the process of ensuring the dead person’s penis was erect.[20]
[16]Exhibit A, [22].
[17]Exhibit A, [29] – [31] and [41].
[18]Exhibit A, [129].
[19]Exhibit A, [65]. See also [73] – [74] regarding purported necrophilia.
[20]Exhibit A, [155].
16I now move on to Charge 3. During your conversations, you chatted with others about abusing babies and children, including incest and extreme child abuse you claimed to have carried out in Thailand. I will highlight some of the extraordinarily deprived acts that you wrote about in your chats with like-minded individuals. This included conversations about:
(a) You and your friend having penetrative sex with his 12 year old daughter. You said the first time you had sex with her, you tied her up to the work bench.[21]
(b) Your capacity to organise a sexual encounter with a 17 year old girl for another user’s friend.[22]
(c) You told another user to collect his sperm after masturbation and mix it in his nine year old son’s food.[23]
(d) You being in bed with the two daughters of the family from Echuca, aged 14 and 16.[24] You also sent an image of a penis penetrating the anal region of a female and said it depicted ‘The 16 year old daughter. The family from Echuca.’[25]
(e) A 10 year old girl being penetrated by a boar.[26]
(f) You losing your virginity to your mother at the age of 14 and describing the sexual experience in detail.[27]
(g) You having sex with babies, including newborns in Thailand, and toddlers. You said you penetrated a four year old’s anus and her colon was wrapped around your penis. You said she was screaming and described it as ‘pretty brutal.’[28] In respect of the newborn, you stated that you witnessed the mother delivering the baby before you and the mother watching you abuse it. You paid the mother $2,000. You said if it wasn’t for you, the family would starve.[29] You said that you had done ‘brutal things’ to girls in Thailand.[30]
(h) You and another user sexually abusing your future children.[31]
(i) You also sent a number of images and videos.
[21]Exhibit A, [36] – [39].
[22]Exhibit A, [42].
[23]Exhibit A, [43].
[24] Exhibit A, [70].
[25]Exhibit A, [44] – [45].
[26]Exhibit A, [47].
[27]Exhibit A, [56], [69], [118] – [120] and [140].
[28] Exhibit A, [75] – [76].
[29]Exhibit A, [73], [75] – [82], [103].
[30]Exhibit A, [100].
[31]Exhibit A, [89] – [97].
17In respect of the s 16BA offence of using a carriage service to cause child abuse material to be transmitted to yourself, on 30 August 2022, while chatting online you asked to be given a ‘sneak peak’ of child abuse material that the person you were conversing with said they possessed. You were sent an image of a naked female child with her feet on either side of a male’s erect penis. Having received this image, you responded ‘that’s pretty tame’. In response, you were sent a screenshot of 25 items of child abuse material. One of the images sent depicted a male penis penetrating a child’s anus, and another depicted a naked baby lying on its back with the words ‘bad grandpa’ written across the image.
18In respect of the s 16BA offence of prohibited importation of bestiality material, in the vault application where the child abuse material was located, Officers located 2321 items of bestiality.
19You were charged on 19 October 2023. You indicated a plea of guilty at a committal mention hearing on 5 April 2024, and were committed to this court on bail.
Personal circumstances
20You were born and raised in the north-eastern suburbs of Melbourne. You have one sibling, a younger brother. Your parents migrated to Australia in the 1960’s. Your father, who is of Spanish heritage, worked as a science teacher and your mother, who is originally from America, was employed as an office assistant.
21You grew up in a close, loving and caring environment without exposure to any form of domestic abuse.[32] Your parents separated when you were approximately 12 years old. You continued to live with your mother, whereas your brother chose to live with his father. Despite the separation, you continued to have regular contact with your father and maintained a close relationship.
[32]However, you do report being abused by a neighbour between the ages of 10 and 12 – See Exhibit C, [11] – [13], [98], [159], [161] – [162], [173(b)]. See also Exhibit 2, [23] – [24], [36], [84] – [85].
22At the age of 17, you went to live with your father. He had re-partnered with a woman whom you have described as ‘fantastic in every respect’. You moved to live with your father as your mother had a number of boyfriends and had developed a drinking problem. You had arguments with your mother’s boyfriends over the disrespectful way they treated your mother. You maintained some contact with your mother, however, this has become less frequent over the years. You last saw her before the COVID pandemic, but continue to receive text messages from her on your birthday and at Christmas.
23You had a particularly close relationship with your paternal grandmother. About seven years ago, you moved in with her to assist with her care. Your brother took over the role of carer after you met your wife. Your grandmother passed away in May 2024.
24Your bail conditions required you to live with your father, rather than with your wife in the family home. This was to ensure your compliance with a bail condition of not being unsupervised around animals. Your wife lives in the family home along with the family’s dogs.
25You left school after completing Year 11 at the age of 17. You enjoyed your school years, and had a good relationship with both fellow students and teachers. You were not subjected to any serious disciplinary action and did not experience any bullying.
26Having left school, you obtained employment with a custom timber furniture making company and completed your carpentry apprenticeship. You enjoyed your work and remained with the company for five years.
27You then commenced employment with a commercial construction company where you continued to work up until your remand. You have held the position of construction project supervisor for the past eight years. You enjoyed your work, and are hopeful of retaining your employment despite the imposition of a custodial sentence. You hold aspirations to become a partner in this company.
28When you were approximately 15 years old, you commenced a relationship with a girl who went to the same school. This relationship lasted four years. In 2011 you commenced a 10 year relationship. This relationship ended in 2021 as a result of different priorities and goals. In November 2022, you met your wife, a special needs teacher. You got married in January 2024. You have enjoyed a positive and happy relationship, and have similar goals and ambitions. In 2024, your wife had to terminate her pregnancy as the baby was diagnosed with a fatal chromosomal disorder. She is pregnant again and expecting your first child in November.
29Your wife, unsurprisingly, was shocked when she found out about the charges against you. She has remained supportive and is positive about your future together. She has sought counselling to help her understand your offending behaviour.
30You have had issues with alcohol abuse. During the period when your 10 year relationship was deteriorating, you began to drink excessively. You would drink a bottle of bourbon each evening. This daily consumption continued for approximately three years. You realised in 2022, that the excessive consumption of alcohol was not helping you or your liver. You then returned to a pattern of social drinking on weekends. However, there have been lapses when you would binge drink when alone. You wife understands that you were an alcoholic. She gave you an ultimatum to stop drinking or she would end the relationship. She has not observed any evidence of you drinking to excess in well over a year.
31In your late teens, you began using cannabis on a social basis. You stopped using the drug 15 years ago. You also occasionally used cocaine and MDMA in nightclubs between the ages of 18 and 22. You have not used any other illicit substance.
Gravity of the offending
32I am required to take into account a number of factors that inform the objective seriousness of your offending.
33In respect of Charge 4, which I regard as the most grave charge on the indictment, the seriousness is informed by matters including:[33]
(a) the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed; and
(b) the number of images you possessed.
[33]See e.g. DPP (Cth) v D’ Alessandro [2010] VSCA 60, [21]; R v Leeuw [2015] NSWCCA 183, [72].
34You were in possession of a significant quantity, being 1230 images. I was told that each image was unique, there being no duplication. There were 614 items falling in Category 1,[34] and 616 items in Category 2.[35] Category 1 included 438 images and 176 videos. Category 2 included 556 images and 60 videos. The offending is alleged to have occurred on a single day. Not only did you access this material but stored it in a separate application in a folder titled ‘young’.
[34]Category 1 pertains to real pre-pubescent children involved in a sex act, witnessing a sex act or the material is focussed on the anal/genital region of the child.
[35]Category 2 pertains to other child abuse material that is illegal in Australia but does not fit within Category 1. This may include images of children subject to sadism, torture, bestiality or humiliation. Images may depict a child as conducting the activity or observing other persons.
35I have had regard to the summary of the material tendered by the prosecution.[36] The content of the child abuse material is disturbing and extreme. It involved the use of force, violence and degradation of children by adults. The material indicates the sexual and physical abuse, including penetration, of many innocent children. The children abused included babies. Some representative examples of the material possessed by you include:
(a) A Category 1 video lasting 12 seconds, depicting a baby under the age of one, crying and being orally penetrated by a male, who ejaculates in the baby’s mouth.
(b) A Category 1 image depicting a pre-pubescent female child handcuffed and performing oral sex on a male adult.
(c) A Category 1 image depicting a naked female child under the age of 10, tied up by the arms and legs with a red covering on her mouth displaying the words ‘lick me please’ and an arrow pointing to her genitalia.
(d) A Category 1 image depicting a pre-pubescent female child perceived to be under 13 years old, lying naked on a bed with semen in her mouth and around her genitals. At her feet is a handwritten note in green text with the words, ‘Ellen will you shit in my mouth again? Love Carmen’.
(e) A Category 2 video lasting some 45 minutes depicting a prepubescent female child perceived to be under the age of 13 engaged in a sexual act with a dog.
(f) A Category 2 image depicting two male adults ejaculating on a child’s face while a female is observed spitting semen from her mouth onto the child’s face.
(g) There are further Category 2 images and videos of children tied up by their ankles and wrist, mouths gagged, handcuffed, being held by their arms and hair, as well as children engaging in sexual acts using a sex toy.
[36]Exhibit B.
36In R v Caldwell, the Queensland Court of Appeal stated:[37]
That the quality of the material in such cases rather than the quantity will often be more determinative of the gravity of the offending conduct…the greater the cruelty, degradation and corruption depicted and the more that the material offends against community values, the more reprehensible the offending conduct.
[37] R v Caldwell [2021] QCA 112, [22] adopting Muir JA in R v Vantoosten [2009] QCA 54, [19].
37Your possession of child abuse material creates a market for the continued corruption and exploitation of children. It should be clear to all, this is not a victimless crime. Children, including here, babies, are sexually abused in order to supply the market. Given the anonymity provided by the internet, this offending is difficult to detect.
38Abuse of our most vulnerable must stop. Therefore, general deterrence must be the prominent factor in sentencing. In DPP (Cth) v D’Alessandro the court stated that:[38]
…the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.
[38]DPP (Cth) v D’Alessandro [2010] VSCA 60, [21].
39I accept that you possessed the material for your personal use and not for the purpose of sale or distribution. You didn’t profit in any way. Of course, the absence of these factors does not mitigate the offending.[39]
[39]DPP (Cth) and DPP v Garside [2016] VSCA 74, [25].
40I also regard Charge 3 as a serious example of the offence. I accept that the exchange of the written conversation in Charge 3 was comprised of fantasies and did not involve any conversations about real children. Unlike Charge 4, this involved no actual harm to any children. Having said that, as the Court of Appeal recently said in Heels v The King:[40]
… the distribution of prose describing child sex abuse, especially where it is done for the purposes of sexual gratification has the tendency to normalise or encourage child sex abuse, ignore the harm that such abuse occurs and undermine the unequivocal societal standard that such abuse is abhorrent.
[40]Heels v The King [2024] VSCA 133, [40] (Priest and Niall JJA).
41The offending involves a rolled up charge,[41] involving 23 occasions and occurred over a period of just under 14 months. During this period, you consistently engaged in communications in an enthusiastic manner with 10 separate individuals. The conversations were utterly reprehensible, and a significant volume around the violent abuse of children including babies, committing acts of incest and bestiality involving children.
[41]A rolled up charge requires me to consider the totality of the offending, limited by the maximum penalty for the offence.
42Charge 2 is also a rolled up charge representing 35 occasions. The conversations occurred over some 14 months with eight separate individuals. I note that these conversations occurred simultaneously with the conversations relating to Charge 3. Accordingly, I must bear that fact in mind when considering cumulation and the principle of totality.
43Your counsel rightly described the conversations as ‘breathtakingly graphic and depraved’. The volume was large and the content without a doubt was brutal and offensive. The conversations centred around cruelty, violence, suffering and killing of animals. The content also centred around engaging in sexual activity with dead animals and dead people. It also involved the rape of ethnic females, including in company.
44You were not a passive party to the conversations but enthusiastic and forthright in volunteering graphic descriptions of sexual conduct. I note that you have engaged in acts of bestiality, therefore, not all the conversation was a figment of your imagination. However, I accept that the vast majority of it was fictitious.
45I now turn to Charge 1, bestiality. Animals, such as dogs and horses, are at the mercy of human beings who have power over them. They require our care and attention. They are unable to convey their feelings in the vocal manner that we humans can. In offending in this deplorable manner against a horse and a dog, you had no regard for the animal’s welfare. Your acts were cruel and undoubtedly stir sentiments of horror and disbelief in the community. In sentencing you, I note that Charge 1 is a rolled up offence representing five occasions of offending against two separate animals. In respect of the horse, you committed that offence in company and filmed your offending. In respect of the dog,[42] the offending occurred over four occasions and was also filmed. This rolled up offending involved three different forms of penetration and occurred over a period of time between 27 July 2018 and 15 July 2019.
[42]It is accepted that it was the same dog in respect of all the offending conduct.
Section 16BA Schedule
46You have requested that the court take into account two further offences, an offence of use a carriage service to cause child abuse material to be transmitted to yourself,[43] and an offence of import prohibited imports, namely bestiality material.[44]
[43]Contrary to subsection 474.22(1) of the Criminal Code (Cth).
[44]Contrary to subsection 233(1)(b) of the Customs Act 1901 (Cth).
47In passing sentence on Charge 3, I have taken into account the offence of use a carriage service to cause child abuse material to be transmitted to yourself. In passing sentence on Charge 4, I have taken into account the offence of importing bestiality material.
48I note that I am not sentencing you in respect of these two further offences. My focus is on sentencing you on the offences on the indictment. However, in considering the appropriate sentence on Charges 3 and 4, I can take into account the s 16BA offences.[45]
[45]One in respect of Charge 3 and the other in respect of Charge 4 as set out in [50] and [51] of these reasons.
49In sentencing you on Charge 3, I note that you requested child abuse material and were sent some 26 images, which included an image involving penetration of a child, a naked female child with her feet near an erect male penis, and an image of a naked baby. Not only was there conversations about child abuse, but images of abuse were sent to you in response to your request. However, I note that the transmission of child abuse images to you was limited to the material being sent over a few minutes during a single conversation on a single day.
50In the same vault application where you possessed 1230 items of child abuse material, you had stored 2321 images of bestiality which you did not declare upon your return to Australia. I have taken that into account when considering the appropriate sentence on Charge 4. I also note that these 2321 images were possessed by you in Australia before your travel and were not images obtained overseas.
51I am of the view that these two Schedule offences requires me to give more emphasis on specific deterrence as well as denuncation when sentencing on Charges 3 and 4.[46]
[46]CDPP v KMD [2015] VSCA 255, [82] – [86].
52However, my focus at all times remains on sentencing you for the primary offences, Charges 3 and 4.
53It cannot be plainer that general deterrence must be the paramount sentencing consideration. The sentences I pass must unequivocally send a message to those who may be minded to offend in a similar manner, that such abhorrent offending will be met with stern punishment in the form of prison sentences. Your offending must be denounced, and you must be justly punished. Specific deterrence also has a role to play, and I bear in mind your rehabilitation.
54I also regard your moral culpability for this offending as high.
Defence submissions
55Mr Marsh presented a well-argued and comprehensive plea in mitigation on your behalf. He relied upon the following material that I have carefully considered:
(a) Submissions on Plea dated 29 April 2025.[47]
(b) Psychological Risk Assessment Report prepared by Dr Rachel MacKenzie dated 24 April 2025.[48]
(c) Psychological treatment letter from Dr Clint Gurtman dated 1 May 2025.[49]
(d) CEM-COPE Group Treatment Summary dated 3 July 2024.[50]
(e) Character references from your wife, father and step-mother.[51]
[47]Exhibit 1.
[48]Exhibit 2.
[49]Exhibit 3.
[50]Exhibit 4 (signed by Dr Emily Stevenson, Dr Steph Butler and Dr Daniel Simsion).
[51]Exhibit 5 – comprised of references from Mrs Hernandez (wife) dated 28 April 2025, Mr Luis Hernandez (father) dated 29 April 2025 and Ms Liakakos (stepmother) dated 29 April 2025.
56In addition to the material tendered by the defence, the plea hearing listed on 28 May 2025, was adjourned at the request of the prosecution for a Forensicare report. I directed that such a report be prepared. Upon resumption of the plea hearing on 15 August 2025, the court and the parties had the benefit of Dr Michael Davis’s psychological report dated 18 July 2025.[52]
[52]Exhibit C.
57Mr Marsh properly conceded that a sentence of imprisonment was the only disposition open in order to manifest appropriate denunciation of the totality of your offending. He accepted the importance of general deterrence in the sentencing exercise.
58However, he submitted that in light of all the mitigating factors, including your risk assessment and efforts at rehabilitation, a term of imprisonment, along with a lengthy Recognisance Release Order was within range.
59Mr Marsh highlighted your early pleas of guilty, remorse, delay, good character, the treatment that you have voluntarily undertaken and your good prospects of rehabilitation.
60You have pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.
61You were cooperative with the police and made appropriate admissions in both the field interview and the further formal police interview on 1 July 2024.
62I accept that your early pleas of guilty, cooperation with the police, and voluntary treatment are indicative of genuine remorse.
63Family members have attended each court hearing. I have had regard to the references from your wife, father and stepmother. Your wife describes you as a caring, kind and respectful partner who is attentive and supportive. She refers to your support towards her intellectually and physically disabled sister. She states that you have displayed continuous remorse and shame, and that you are saddened and embarrassed by what you have done.
64Your father and stepmother also highlight your caring side that involved living with and supporting your frail grandmother. They refer to your strong work ethic and as someone dedicated to your family.
65It is clear that your wife, father and stepmother are each shocked at your offending conduct, which for them is unfathomable, bearing in mind the person they know and love.
66You are now 38 years old without any prior criminal history. There are no other matters pending. You have enjoyed long-term consistent employment, primarily as a carpenter and then a project manager at a construction company. You have a supportive family behind you.
67Mr Marsh submitted that you have led a conventional pro-social life and this offending is very much out of character.
68You were committed to this court on 5 April 2024, and a plea hearing was initially listed on 21 August 2024. However, the plea hearing was not able to proceed when listed. This was because the police executed a warrant in respect of your electronic property. Bearing in mind the analysis taking place, it was considered prudent to adjourn the plea hearing. However, the analysis ultimately was of no evidentiary value. Nearly two years have elapsed since your arrest in circumstances where you indicated an early intention to plead guilty. You have been anxiously awaiting finality. I accept, as submitted by Mr Marsh, the delay has left you in a state of suspense over a considerable period, causing you additional anxiety. I take that into account as some additional punishment.
69Further, as is clear, you have made efforts at rehabilitation. I shall turn to that now.
Risk assessment and rehabilitation
70Following the offending, you have undertaken 12 sessions of psychological counselling with Dr Gurtman since late November 2023.[53] Dr Gurtman’s letter is brief on detail. However, at the time of writing her report, Dr Mackenzie states you had undertaken nine sessions with Dr Gurtman focusing on your mental health and stress management, with only a broad and superficial covering of offence-specific topics.[54]
[53]Three sessions were conducted with your wife present.
[54]Exhibit 2, [35] – [36].
71Further, you have participated in a Coping with Child Exploitation Material Use Program’s group. The program proceeded in person between 20 March 2024 and 3 July 2024. You attended 13 out of the 15 sessions. Each session lasted 2 hours. This program is designed to assist participants to understand and self-manage their risk of reoffending, and is co-facilitated by psychologists Dr Steph Butler, Dr Emily Stevenson and Dr Daniel Simsion. According to the Group Treatment Summary dated 3 July 2024, the program covers the following topics:[55]
legal issues and victim impact; offence formulation; emotional awareness and regulation; problematic internet use; sexual regulation; relationship and communication skills; and self-management planning.
[55] Exhibit 4.
72In respect of your in-person participation, the summary states:
At the outset, Mr Hernandez stated that he was somewhat apprehensive about participating but open to learning from the facilitators. As the group progressed, he was a consistent contributor would frequently offer his viewpoint during group discussions. He provided spontaneous comments about his personal circumstances and would thoughtfully consider the reflections made by others.
73The summary adds:
Mr Hernandez demonstrated willingness to improve his insight into his offending and understand its precipitating factors. As a result, he came to recognise the role of unhealthy relationships, alcohol misuse, poor coping strategies (i.e., sexualised coping, problematic internet use) and limited self-care. Mr Hernandez often struggled with his between-session homework tasks and frequently reported being busy with work and running out of time to do the assigned homework. This impacted his ability to reflect on the personal utility or applicability of certain skills or exercises. While this did not have a major impact on his participation in-session, it appeared to limit some of his learnings about the treatment concepts and understanding of the potential barriers to applying new strategies.[56]
[56]See also Exhibit 2, [43] – [44].
74I have had the benefit of two psychological assessments. Mr Marsh took no issue with the report of Dr Davis. That was unsurprising, given that Dr Mackenzie and Dr Davis express very similar opinions.[57] Therefore, I propose to set out the opinions expressed by Dr Davis.
[57]Dr MacKenzie also gave evidence at the plea hearing on 6 May 2025.
75Dr Davis states:[58]
It is my opinion that Mr. Hernandez does not meet formal criteria for Paedophilic Disorder or Zoophilia, as he does not appear to have a sexual preference for pre-pubescents or animals that is equal to or greater than his sexual interest in adult females. However, he clearly has some sexual interest in both animals, pre-pubescent children, and other taboo material; and can become open to such depictions in a particular set of circumstances. These are decidedly ego-dystonic sexual interests, whereby Mr. Hernandez is disgusted by the fact that he engages in these fantasies and behaviour. However, when he is considerably intoxicated and feeling particularly lonely, rejected, and affected by depressed mood; fantasies of children, animals, rape, and sexual torture become more acceptable.
[58]Exhibit C, [170]. (Dr Davis in his footnote [46], makes clear - offending involving child abuse material and bestiality that is not driven by preferential paedophilic or zoophilic sexual interests is no better or worse than offending that is. It is just different. The children and animals are still victims, and the adults are still offenders. However, the presence of diagnosable sexual deviance is important both for understanding offending behaviour and assessing risk.
76Dr Davis concludes that you currently pose a low risk for contact sexual offending. He also opines that you pose a low to moderate risk for child abuse material offending.[59]
[59]Exhibit C, [171]. See Risk Assessment for Future Offending and Sexual Recidivism in Exhibit C, [135] – [157]. I note Dr Mackenize expresses that you pose a low risk of child abuse material offending. See her risk assessment in Exhibit 2, [56] – [72], [86].
77In terms of your risk for bestiality offending,[60] Dr Davis notes that it is highly contextual. He opines that there is minimal imminent risk of such offending. In saying so, Dr Davis notes that the contextual features are not currently present. You are happily married in a loving relationship and have not abused alcohol for some 18 months.
[60]Exhibit C, [172] - Noting there are no formal risk assessment tools available.
78Dr Davis states that you do not meet the criteria for a major mental illness. In his opinion, you have struggled with periodic symptoms of depressed mood at various stages in your life. These appear to have reached the magnitude of a major depressive episode at times, including during the offending.[61] You are not currently affected by symptoms of depressed mood. During the assessment, you described some mild symptoms of post-traumatic stress in respect of your childhood abuse. However, these do not meet the formal criteria for Post-Traumatic Stress Disorder. Whilst, you have some maladaptive personality features. You do not meet the formal criteria for a personality disorder. Dr Davis highlights that you have a very fragile self-esteem.[62]
[61]Dr Mackenize gives a similar opinion – see Exhibit 2, [79] of her report.
[62]Exhibit C, [161] – [162].
79Dr Davis opines that you meet the formal criteria for Alcohol Use Disorder (in sustained remission).[63]
[63]Exhibit C, [158].
80Dr Davis makes a number of recommendations, including:
(a) You be referred for individual treatment sessions with a forensic or clinical psychologist which address your sexual behaviour with animals and other extreme taboos with a focus on situational warning signs for potential further offending. This treatment would build on your positive involvement in the CEM-COPE child abuse program in 2024. Dr Davis states that you are aware of remaining vigilant in the future.[64]
(b) You participate in treatment with a clinical psychologist in respect of your own childhood abuse.[65]
[64]Exhibit C, [173](a).
[65]Exhibit C, [173] (b). Preferably with Dr Gurtman. See also the opinions of Dr Mackenzie – Exhibit 2, [85].
81In light of the psychological opinions, your plea of guilty, remorse, lack of priors, no further offending since 2023, the voluntary undertaking of courses and counselling, the continued support of your family, and in particular your wife, I accept that you have good prospects of rehabilitation. Dr Gurtman highlights that your marriage is a strong protective factor. The importance of ensuring that you do not fall back into the contextual situation that existed at the time of the offending, including loneliness, alcohol abuse and low mood should be absolutely clear to you and always at the forefront of your mind.
82In respect of Charges 3 and 4, s 16A(2AAA) of the Crimes Act (Cth) requires the court to have regard to the objective of rehabilitating you, including by considering whether it is appropriate in determining the length of any sentence or non-parole period, to include sufficient time for you to undertake a rehabilitation program. The principal purpose of rehabilitation in this context is to protect the community. I have taken this into account in sentencing you. The sentence I will impose will allow for sufficient time for you to undertake an appropriate sex offender treatment program, either in custody or while on parole.
83This is your first experience of custody. You will be serving this sentence knowing that your wife is about to give birth to your first child. I accept the submission that missing the birth of your child and not being able to support your wife will impact you and make your time in custody more burdensome. I also accept that the birth of your child will provide a level of motivation to you to turn your life around.
Prosecution submissions
84I was assisted by written submissions prepared by Ms Champion titled ‘Outline of Prosecution Submissions on Plea and Sentence’,[66] and ‘Relevant Legal Principles on Plea and Sentence’.[67] Ms Champion also tendered a table of sentencing cases.[68]
[66]Exhibit D.
[67]Exhibit E.
[68]Exhibit F - Phibbs v R [2023] VSCA 123; Mertell v R [2022] ACTCA 69; R v Perrey; R v Perry [2022] SASCA 51; R v Heels [2024] VSCA 133; R v Ferns [2024] QCA 262; Dyball v R [2025] NSWCCA 39; DPP v Walton [2020] VCC 1839.
85Ms Champion submitted that the offending was of such gravity that terms of imprisonment were warranted on both the state and federal offences. Further, she submitted that the fixing of a non-parole period was appropriate in respect of the federal offending.
86Ms Champion highlighted the gravity of the offences as I have set out in [33] - [52] of these reasons. Ms Champion reminded me that general deterrence is of primary importance in this sentencing exercise, and that your moral culpability for this offending must be viewed as high. She was somewhat more sceptical about your prospects of rehabilitation than I am.
Sentencing
87I have taken into account all relevant matters in the Crimes Act (Cth) and the Sentencing Act (Vic). This includes a consideration of the matters set out in s 16A(2) of the Crimes Act (Cth). I have read the sentencing decisions provided by the prosecution.[69] I have considered the principles of proportionality and totality.
[69]Noting that current sentencing practices is one factor, amongst many others, to take into account.
88Pursuant to s 19(5) of the Crimes Act (Cth), there is a presumption in favour of cumulation between two or more Commonwealth child sex offences. This presumption applies to Charges 3 and 4. However, s 19(6) of the Act provides:
Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.
89In my judgement, your offending requires the imposition of a sentence that will necessarily involve a non-parole period. Mr Hernandez, you are sentenced as follows:
90On Charge 1, a State charge, you will be convicted and sentenced to 12 months’ imprisonment. This sentence will commence today, 18 September 2025.
91Therefore, the effective State sentence is 12 months’ imprisonment.
92Turning to the Commonwealth charges:
(a) On Charge 2, you will be convicted and sentenced to 12 months’ imprisonment. This sentence will commence six months after the commencement of the state sentence.
(b) On Charge 3, you will be convicted and sentenced to 3 years and 9 months’ imprisonment. This sentence will commence four months after the commencement of the sentence on Charge 2.
(c) On Charge 4, you will be convicted and sentenced to 4 years’ imprisonment. This sentence will commence eight months after the commencement of the sentence on Charge 3.
93Therefore, the total effective sentence in respect of the Commonwealth charges is 5 years’ imprisonment.
94I set a period of 2 years and 10 months’ imprisonment before you become eligible for federal parole.
95If you are released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and you may be ordered to serve the balance of the sentence in prison. The purpose of fixing the non-parole period is to provide for a period of supported rehabilitation in the community, if you are considered to be suitable.
96The effect of the orders for commencement of sentences on all charges is a global effective sentence on State and Commonwealth offences of 5 years and 6 months’ imprisonment. The minimum period you are required to serve is 3 years and 4 months’ imprisonment.
Pre-sentence detention
97Pursuant to s 18 of the Sentencing Act 1991, the period of 113 of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
98Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted of the State Charge 1, you would have been sentenced to a term of 18 months’ imprisonment. In respect of the Commonwealth Charges 2, 3 and 4, had you pleaded not guilty and been convicted you would have been sentenced to 6 years and 8 months’ imprisonment with a non-parole period of 4 years and 6 months.
Sex Offender Registration
99Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory and the reporting period is for life. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
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