CDirector of Public Prosecutions v Hunter (a pseudonym)
[2022] VCC 1576
•29 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS HUNTER (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2022 | |
DATE OF SENTENCE: | 29 August 2022 | |
CASE MAY BE CITED AS: | CDPP v Hunter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1576 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Use carriage service to access child abuse material – possess child abuse material obtained or accessed using a carriage
service – breach of recognisance release order – breach of
trust – early plea of guilty – plea entered during pandemic – impact of COVID-19 on burden of imprisonment – totality
Legislation Cited: Crimes Act 1914 (Cth) s16AAB, s16AAC, s19(5), s20A(5)(c); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Phinthong v R [2011] WASCA 192; Bahar v The Queen [2011] WASCA 249; R v Delzotto [2022] NSWCCA 117
Sentence: Convicted and sentenced to a total effective term of imprisonment of 7 years and 6 months, with a non-parole period of 5 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms K. Breckweg | Office of Public Prosecutions (Commonwealth) |
| For the Accused | Mr M. Habib | Victoria Legal Aid (Ballarat) |
HER HONOUR:
Introduction
1
Nicholas Hunter,[1] you have pleaded guilty to one charge of using a carriage service, in the period between 8 August 2021 and
28 September 2021, to access child abuse material (Charge 1) and two charges of possessing, on 29 September 2021, child abuse material obtained or accessed using a carriage service (Charges 2 and 3). Each of these charges carry a maximum penalty of 15 years' imprisonment. Further, as a result of having been previously convicted of a 'child sexual abuse offence', you are subject to s16AAB of the Crimes Act 1914 (Cth) which mandates a minimum term of four years' imprisonment for each offence, subject to any reduction for a plea of guilty or cooperation with law enforcement pursuant to s16AAC of the Act. I will return to these provisions in due course.
[1] A pseudonym
2You have also pleaded guilty to one charge of failing to comply with the conditions of a Recognisance Release Order (which I will refer to as an RRO for the rest of the sentence) which was imposed upon you pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), such failure to comply being constituted by committing the offences on the indictment during the period of the order.
3At the time of the offending you were 32 years of age.
Circumstances of Offending
4
The full circumstances of your original offending, new offending, arrest and record of interview are set out in the Summary of Prosecution Opening for Plea dated 18 July 2022 (including the annexures) which was tendered as
Exhibit A on the plea. I do not intend to repeat all of the detail contained in that document and its annexures in these reasons for sentence, but I have had regard to the entirety of that material. In summary, your offending was as follows.
Original Offending and Imposition of Recognisance Release Order
5
Turning firstly to the original offending for which you were sentenced on
21 July 2017. At some stage between 12 October 2012 and 18 September 2015 you covertly recorded a video of your partner's sister whilst she was in the bathroom of your home, undressing, drying and dressing herself. At the time she was between 12 and 15 years of age. You isolated specific screenshots from that video, four of which were child abuse material, and then transmitted that material via email to another person on 18 September 2015. Between
24 July 2015 and 2 February 2016 you also sent 22 emails to 11 unique recipients, to which you attached a total of eight images and 25 videos which constituted child abuse material. Between 6 and 7 September 2016 you sent a further email to a recipient containing a video which constituted child abuse material. On 6 October 2016 you were arrested and your mobile phone and a laptop computer were seized and later forensically analysed. As at
6 October 2016 you were in possession of 855 items of child abuse material which were stored across five online accounts.
6
On 21 July 2017, as relevant to this proceeding, you pleaded guilty to one Commonwealth charge of producing child pornography, two Commonwealth charges of transmitting child pornography material using a carriage service, and one State charge of knowingly possessing child pornography, all of which related to the above conduct. You were sentenced in the County Court by Her Honour
Judge Hogan to a total effective sentence of 36 months' imprisonment on the Commonwealth offences, with an order that you be released by way of an RRO after serving 24 months. That RRO was for a period of 36 months with special conditions, which included that you be of good behaviour for the entirety of that period; and be assessed and, if found suitable, undertake treatment for
sex offender programs or programs to reduce re-offending as directed by Community Correctional Services. You were also sentenced to a
30-month period of imprisonment on the State charge, with 15 months of that sentence to be served cumulatively on the Commonwealth sentence.
7
The 24 months' term of imprisonment for your Commonwealth matters ended on
12 July 2019. Accordingly, the operational period of your RRO was from
12 July 2019 to 12 July 2022. However, due to the operation of the State sentence imposed upon you, you were not released from custody until
8 October 2020.
New Offending
8
On 29 September 2021 you were arrested by police, at your home, in relation to the current offences. Two devices belonging to you – being a Samsung tablet and a Samsung Galaxy mobile phone – were seized and subjected to
forensic analysis.
9
Analysis of the internet browsing history on your mobile phone revealed that on
918 separate occasions between 8 August 2021 and 28 September 2021, you had accessed nine different zip folders via the website Mega.nz. Collectively, those zip folders contained 13,087 files of child abuse material. This conduct constitutes Charge 1 – using a carriage service to access child abuse material.
10The analysis of your tablet and the phone further revealed that you were in possession of child abuse material on both devices. The majority of the child abuse material was located in the Gallery Vault application installed on your tablet. However, you also had some images stored on your mobile phone. Within the Gallery Vault application, there were four folders containing child abuse material. Those folders were named '[the name of your partner's sister]', 'Video', 'GoodPics' and 'New'.
11The folder named in the name of your partner's sister contained 62 files of your previous victim, all of which were still shots taken from the video which you had covertly recorded between 2012 and 2015. Forty eight of those 62 still shots were child abuse material which depicted the victim naked in the bathroom with her breasts and genitals exposed. The conduct subject of this paragraph constitutes Charge 2 – possessing child abuse material obtained or accessed using a carriage service.
12
In addition to those still shots, you possessed a further 326 files of child abuse material that depicted unidentified children. Twenty nine of those files were located in the photo gallery on your phone, 26 in the photo gallery on your tablet,
99 in the 'Video' folder on your tablet, 72 in the 'GoodPics' folder on your tablet, and 100 in the 'New' folder on your tablet. Of these files, 254 were
category 1 material and 72 were category 2 material pursuant to the
Interpol Baseline Scale.[2] Examples that were given in the Prosecution Summary of the category 1 files include images that can generally be described as showing penetrative sexual acts by adult males of young girls between the ages of eight
and 12, and an image of the genitalia of a young female child. An example of the category 2 files given in the Prosecution Summary can generally be described as an image showing children aged between 11 and 13 years standing naked in a bathroom. The conduct subject of this paragraph constitutes
Charge 3 – possessing child abuse material obtained or accessed using a carriage service.
[2] Pursuant to the Interpol Baseline 4 Tier Categorisation System, Category 1 child abuse material is material depicting a real prepubescent child (under the age of 13 years approximately) and the child is involved in a sex act, witnessing a sex act, or the material is focused/ concentrated on the anal or genital region of the child. Category 2 material is material that is not included within category 1 but is illegal in Victoria and the material depicts a pubescent child (between approximately 13 years and under 18 years) and the child is involved in a sex act, witnesses a sex act or the material is focused/concentrated on the anal or genital region of the child. It also includes material: depicting a child of any age who is a victim of torture, cruelty or physical abuse; showing the breast area of a female child of any age; showing a child of any age engaged in a sexual pose; visual representations (drawings, cartoons, computer-based images, text) of child abuse material; and material depicting a child of any age which a reasonable person would regard as offensive.
13As all ready noted, each of these three offences breached the condition of your RRO that you be of good behaviour for a period of 36 months.
Interview and Remand
14You were interviewed by police on 29 September 2021 at your home. You made some admissions to your offending during that interview. You agreed that the mobile phone and tablet seized by police belonged to you, and said that you had been on the internet for child abuse material for seven or eight years.
15Insofar as the images constituting Charge 2 were concerned, you said that the images in that folder were pictures you took eight years ago and that was one of the reasons you were locked up. You said that you thought everything had been wiped from your tablet, and that you had not seen or accessed those images since you were released from custody. You said that you do not know why the metadata shows that you transferred those images via Bluetooth from the tablet to your mobile phone.
16
You said that you had the tablet before you got arrested in 2017 and it did have stuff on it then, but it was wiped. You said that you had last used the tablet
three weeks ago and had absolutely no idea how there was now child abuse material on it. You also said that you could not explain why the term 'PTHC' comes up on your search history.
17You were remanded into custody on 29 September 2021 and have remained in custody since that date. Accordingly, you have served 334 days of pre-sentence detention in respect of this matter.
Prior Convictions
18
I note that your only prior matter is the offending for which you were sentenced in
July 2017. You do not have any pending matters.
Guilty Plea, Cooperation with Authorities, Contrition and Delay
19Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the court must take into account the facts of the plea, the timing of the plea, and the degree to which the facts and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. Further, ss16A(2)(f) and 16A(2)(h) respectively require me to take into account your degree of contrition for your offending, and your level of co-operation with law enforcement agencies investigating this offence.
20I accept that your plea of guilty was entered at the very earliest opportunity, having been entered at committal mention stage. It has significant utilitarian value, which gains even greater weight in the current climate of the pandemic which has caused unprecedented disruptions to the smooth running of the criminal justice system. Furthermore, I am satisfied that your plea – considered in light of your cooperation with police, your limited admissions in your record of interview, and the conversations you have had with Mr Cummins as reflected in his report dated 29 June 2022[3] – is indicative of an acceptance of responsibility and a level of remorse.
[3] Exhibit 2 – Report of Mr Jeffrey Cummins, dated 29 June 2022, at [31].
21I also accept that there has been some delay in this matter from the date of the offence to the hearing of the plea. Whilst this delay is not excessive, you have been kept in a 'state of uncertain suspense' for approximately 11 months.
22In the circumstances I have given you a substantial discount for your plea of guilty, and have also moderated your sentence to a very limited degree to reflect the impact upon you of the delay.
Personal Circumstances
23You are now 33 years of age. You were born and raised in Colac and are one of three boys born to your parents. Your mother and father separated when you were four years of age and your father gained custody of all of the children. You were raised initially on a dairy farm in a small rural town, and then moved closer to the Geelong area as a teenager. Your father was a strict disciplinarian, as well as being occasionally violent towards you, your brothers and your uncle.
24
You attended primary school in Deans Marsh and then attended
Catholic Regional College in Geelong as a day student for Year 7 and part of
Year 8. You found school, and in particular high school, difficult. You were bullied and, as a result, developed low self-esteem and social difficulties. It was around this time that you first started smoking cannabis, having been introduced to it by your uncle, as a way of managing your anxiety and low mood.
25Halfway through Year 8 you moved to North Geelong Secondary College and then commenced Year 9 at Western Heights College. You completed but did not pass Year 9, before attending the Gordon TAFE to undertake VCAL studies. You managed to pass Year 10 VCAL and completed a further six months of study gaining a Certificate II in Automotive Studies. You then started work at around the age of 16, mostly performing labouring work on farms, which you really enjoyed. By this stage you were smoking cannabis on a daily basis, using between 2 and 3 grams of cannabis per day.
26
In approximately 2009, when you were 21 years of age, you commenced a relationship with your long-term partner, who was then 18 years old. You have
two children from that relationship – a daughter who is now eight years of age and a son who is seven years of age.
27Around 2013 you obtained a truck licence and worked as a delivery driver for some time. However, in approximately 2015 you suffered a brain aneurysm and were diagnosed with epilepsy. You were placed on medication and were restricted from truck driving and as a result became unemployed. It was during this period that your first episode of offending took place.
28
Shortly after being arrested in 2016 you went to see your GP who referred you to a psychologist, Dr Lauren Gook. You undertook 11 counselling sessions with
Dr Gook.[4] The sessions were not sex offence-specific, rather the treatment was focused on you learning skills to improve relationships, develop emotional regulation, maintain abstinence from cannabis, and become a productive member of the community. At that time, you presented with symptoms consistent with major depressive disorder. As a result of the counselling with
Dr Gook you managed to cease cannabis use prior to being sentenced and remanded into custody, and you have remained abstinent ever since.
[4] Report of Dr Lauren Gook, dated 28 April 2017.
29
As all ready noted, you were sentenced in July 2017 and served some
three years, three months in custody prior to being released. Whilst you were in custody you completed the sex offender program. You state that you received excellent management points and excellent coping mechanisms from the people that ran that course, but you acknowledge that upon your release you did not apply those tools. Instead, you focused on work and being able to have contact with your children. You initially worked in a café, then for a bin company, and finally at a pig farm. Whilst at the farm you received a promotion and you were still working there at the time of being remanded for the current offences. You also started drinking a couple of cans of alcohol each night as you were lonely and bored.
30It is of some note that after your release from custody, despite the conditions of the RRO imposed by Judge Hogan, you were not referred to any further treatment programs. Instead, you were simply subject to supervision which was conducted by telephone due to restrictions brought about by the pandemic.
Psychological Report and Risk of Re-Offending
31
You were assessed by Mr Jeffrey Cummins for the purposes of this plea, and I received three reports authored by him. The first, dated 22 June 2017, had been prepared for the purposes of your previous plea hearing, whilst the other
two – dated 29 June 2022 and 20 July 2022 respectively – had been prepared for this hearing.
32
In Mr Cummins' opinion you suffer from a sexual deviance in the form of a specific sexual attraction to females who are under the legal age of consent.[5] Further, Mr Cummins is of the opinion that at the time of your offending in
September and October 2021 you were suffering from symptoms of a relatively mild major depressive disorder, and were also having some problems with alcohol.[6] Whilst Mr Cummins had previously assessed you in 2017 as being of a low to moderate risk of committing further sexual offences against underage persons, as a result of the current offending you now fall into the moderate to high range in respect of your risk of re-offending.[7] Mr Cummins stated that it is imperative that you participate in a further sex offender program[8] – but noted, as positive factors, that you now acknowledge that you do have a problem with child pornography,[9] and further acknowledge that you do need to participate in another
sex offender program.[10]
[5] Exhibit 2 – Report of Mr Jeffrey Cummins dated 29 June 2022, at [27].
[6] Ibid.
[7] Ibid, at [30]. See also Exhibit 2 – Report of Mr Jeffrey Cummins dated 20 July 2022; at [6].
[8] Exhibit 2 – Report of Mr Jeffrey Cummins, dated 29 June 2022, at [40].
[9] Ibid, at [18], [30] and [40].
[10] Ibid, at [29].
33
It is not asserted on your behalf that your sentence should be mitigated by reason of your upbringing or your mental health. The real relevance of the reports tendered on your behalf are that they establish (i) your level of risk of
re-offending, (ii) the fact that you are beginning to gain insight into your offending conduct, (iii) the need for you to engage in further sex-offence specific treatment, and (iv) your willingness to engage in rehabilitative programs.
Impact of COVID-19 on Burden of Imprisonment
34
As I have already noted, you have been in custody since your arrest on
29 September 2021. During the period you have been in custody you have been impacted by the COVID-19 pandemic in a number of ways. I take into account that your time in custody to date has been more burdensome than it might otherwise have been due to the restrictions which have been imposed. As a result of these restrictions, you have faced a number of lockdowns, your time out of your unit has been significantly reduced, your access to rehabilitative and work opportunities has been limited, and you have had reduced access to, and no face-to-face contact with, family and friends. You were also, at the time of the plea hearing, in isolation due to having caught COVID-19 whilst in custody. I take this added burden of imprisonment into account, both in terms of the time which you have already spent in custody and any further period of imprisonment which I impose.
Gravity of Offending
New Offending
35Turning now to the gravity of your offending.
36
The legislature and the courts recognise the seriousness of the offences of possessing and accessing child abuse material. As was outlined by
Justice Mazza in Phinthong v R:
[w]hether an offender is sentenced under state or federal law, the sentencing principles, where an offender is found in possession of child pornography, are the same. Ordinarily, a sentence of immediate imprisonment would be imposed. This is because such offences are not victimless crimes. Those who are prepared to possess or import it help fuel the demand for it, and in that way encourage the corruption and exploitation of children. In order to protect children, deterrence is the paramount sentencing consideration.[11]
[11] [2011] WASCA 192, [24].
37In assessing the objective seriousness of the offending in any particular case, the following factors are of relevance:
(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b) the number of items or images possessed;
(c) whether the material is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence;
(e) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(f) the length of time for which the pornographic material was possessed.[12]
[12] See, eg, Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477, [21]; R v De Leeuw [2015] NSWCCA 183, [72]; Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Garside [2016] VSCA 74, [25].
38Having regard to the above factors, your offending in respect of each offence on the indictment is objectively serious.
39Charge 1 is a rolled-up charge which covers a period of approximately six weeks. During that period you specifically and deliberately accessed the nine zip folders on 918 separate occasions. These folders contained a combined total of 13,087 child abuse material files – or looked at from a more human element, images of many thousands of children who had been victimised.
40Charge 2 involves the possession of 46 child abuse images of your partner's sister in circumstances where she had her breasts and genitals exposed. Whilst these photos were screenshots which had been isolated at the time of your original offending, and were not of the most depraved kind, your continued possession of these images constituted an ongoing significant breach of trust in respect of your victim, elevating the gravity of this offence.
41Charge 3 involved the possession of a further 326 child abuse material files of unidentified children, and included images of young female children being penetrated by adult males, as well as images focusing on the genital region of young girls.
42It was not suggested that you possessed or accessed any of the images for anything other than personal use. However, even though you only fall to be sentenced on this occasion in relation to possession and access of child abuse material, rather than production or transmission, you continue to help make up the market that encourages others to continue to exploit, abuse and harm children. Moreover, on each occasion you were offending in circumstances where you had been out of custody for less than 12 months in respect of similar offending, and were also a registrable offender.
43Taking each of these matters into account, I am of the view that Charge 1 is the most serious of the three offences on the indictment due to the volume of material accessed and the prolific manner in which you accessed that material over the six-week period. Insofar as Charges 2 and 3 are concerned, I am ultimately of the view that whilst Charge 2 is made more grave by the breach of trust involved in that offending, Charge 3 is objectively slightly more serious than Charge 2 given the number and nature of the images possessed. All of the offences fall well above the lowest end of the range of offending of this type given the combination of factors which I have identified.
44The seriousness with which the legislature regards offending, and repeat offending, of this kind is reflected not only in the maximum penalty of 15 years' imprisonment for each offence, but also in the relatively new mandatory minimum penalties which apply when a court is sentencing an offender for a Commonwealth sexual abuse offence in circumstances where that offence is a second or subsequent offence. Section 16AAB of the Crimes Act 1914 (Cth), which was introduced into the Act in 2020, provides that where a person has been convicted of a 'Commonwealth child sexual abuse offence' and has, at an earlier sitting, been convicted previously of a 'child sexual abuse offence', the court must impose for the current offence a sentence of imprisonment of at least the period specified in the table in s16AAB. There is no dispute that each of the charges on the current indictment are 'Commonwealth child sexual abuse offences'. There is also no dispute that four of the offences for which you were sentenced in 2017 were 'child sexual abuse offences'. Accordingly, pursuant to s16AAB, a sentence of at least four years' imprisonment must be imposed for each of the offences on the current indictment, subject to any reduction which may apply pursuant to s16AAC.
45Section 16AAC provides that a court may impose a sentence of imprisonment of less than the specified period only if the court considers it appropriate to reduce the sentence because of either or both of the person's plea of guilty or the person having cooperated with law enforcement agencies in the investigation of certain offences. Pursuant to s16AAC(3), in the event that the sentence may be reduced, the level of reduction is by an amount up to 25 per cent of the specified period of imprisonment for each of a plea of guilty and cooperation with law enforcement agencies, or an amount of up to 50 per cent if taking into account both matters.
46It has been held that when sentencing where mandatory minimum sentences are prescribed, the sentencing judge is to have regard to the minimum penalty from the outset as prescribing the bottom of the range of appropriate sentences, in the same way as the maximum penalty is used to prescribe the upper limit of the range of appropriate sentences. The minimum penalty is for the least serious category of offending and the maximum penalty is for offences in the worst category taking into account all relevant factors including matters personal to the offender.[13] The absence of an absolute minimum penalty (because of the provisions for further reduction in s16AAC) does not change this approach.[14] Section 16AAC only comes in to play where, after synthesising the objective and subjective features of the offending, the court determines that it can not give adequate recognition to an offender's plea of guilty or cooperation without imposing a head sentence below the mandatory minimum sentence. I will return to the application of these provisions in this case shortly.
[13] See, eg, Bahar v The Queen [2011] WASCA 249; and R v Delzotto [2022] NSWCCA 117.
[14] See, eg, R v Delzotto [2022] NSWCCA 117, [88]-[90].
47Finally, I note that the seriousness of this kind of offending is also reflected in ss19(5) and 19(6) of the Crimes Act 1914 (Cth) which provide that any term of imprisonment imposed for a Commonwealth child sexual offence is to be served cumulatively upon any other term imposed for another Commonwealth child sexual offence, unless 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 of the circumstances.
48
In this case it was submitted by Ms Breckweg, and conceded on your behalf by
Mr Habib, that whilst there is a degree of overlap between the accessing and possessing offences, each of the offences is a distinct and discrete offence, covering different vices and warranting separate punishment. I agree with this submission. However, I also accept, consistently with the submissions made by each party, that having regard to the principle of totality, and the
mandatory minimum penalties which apply on each of Charges 1, 2 and 3, there is adequate room in this case to impose a sentence which is of a severity appropriate in all of the circumstances of the offences, without the need to impose total cumulation as between each of the offences in accordance with s19(5).
Contravention of RRO
49Turning now to the breach of RRO, s20A(5)(c) sets out the sentencing options that a court has where a person breaches an RRO imposed pursuant to s20(1)(b) of the Crimes Act. The court may:
(ia)impose on the person a monetary penalty of not more than $1000; or
(ib)amend the order in a manner which extends the period for which the person is required to be of good behaviour; or
(ic)revoke the order and make an alternative order [for example an order for a CCO] pursuant to s20AB of the Crimes Act 1914 (Cth); or
(i) revoke the order and reimpose the part of each sentence of imprisonment fixed under s20(1)(b) which the person had not served when released on the RRO; or
(ii) take no action.
50In determining how to exercise its' power under s20A(5)(c), s20A(6) requires the court to take into account, in addition to any other matters which the court considers should be taken into account, three matters being: (a), the fact that the order was made; (b), anything done under the order; and (c), any other order made in respect of the offence or offences.
51
As I have already noted, the operational period of your RRO was from
12 July 2019 to 12 July 2022. You were in custody for the first 15 months of this period due to the State term of imprisonment which had also been imposed upon you. Whilst in custody you did undertake a sex offenders treatment program. You also complied with your supervision requirements on release from custody. It is through no fault of yours that you did not receive any further treatment. It is not alleged that you breached any of the reporting or treatment conditions of your RRO, and I therefore take into account that you complied with the requirements of the order from 12 July 2019 through to 8 August 2021. Given the nature of your new offending, and the length of the terms of imprisonment which must be imposed in respect of each of the new offences, combined with the period which was left on your RRO at the time of re-offending, the only appropriate option open to me in sentencing you for the breach is to revoke the RRO and re-impose the outstanding period of imprisonment. I have, however, taken into account the extent to which you complied with the order prior to the breach in setting the level of cumulation as between the reimposed sentence and the sentence imposed on the new offences. I have also been careful to avoid any double punishment by not aggravating the sentences to be imposed on the new offending by reference to the fact that the offending breached the RRO.
Sentencing Purposes
Deterrence – General and Specific, and Adequate Punishment (Crimes Act 1914 (Cth) ss16A(2)(ja); 16(2)(j) and s16A(2)(k))
52There is no dispute that general deterrence is the predominant sentencing purpose when the court is sentencing an offender for offences of this nature. There is a paramount public interest in promoting the protection of children and deterring other members of the community from acting in the same manner as you did. Weight must also be given in your case to both specific deterrence and adequate punishment given your prior convictions for the same type of sexual offending, the very short period of time which you had been in the community before re-offending, and the gravity of your offences.
Prospects of Rehabilitation and Weight to be given to Rehabilitation in Sentencing (Crimes Act 1914 (Cth) s16A(2)(n) and s16A(2AAA))
53
I must also take into account your prospects for rehabilitation and give some weight to rehabilitation as a sentencing purpose. Whilst you do have some prospects for rehabilitation – given that you are starting to gain some insight into your offending and are willing to undergo and engage in treatment – any assessment by me of your prospects for long-term rehabilitation must be guarded. Your current offending occurred in circumstances where you had already undertaken a sex offenders treatment program in custody and spent a substantial period of time in custody. Further, you have been assessed by
Mr Cummins as presenting with a sexual deviance and being a moderate to
high risk of re-offending.
54
Section 16A(2AAA) of the Crimes Act 1914 (Cth) provides that in determining the sentence to be imposed on any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objectives of rehabilitating the person, including by considering whether it is appropriate in determining the length of any sentence or non-parole period to include sufficient time for the person to undertake a rehabilitation program. I have taken this into account in sentencing you and have ensured that the sentence I intend to impose allows for sufficient time for you to undertake further sex offender treatment (whether in custody or while on parole) as recommended by
Mr Cummins, whilst still being of a severity appropriate in all of the circumstances of the offence.[15]
[15] As required by s16A(1) of the Crimes Act 1914 (Cth).
Sentencing Submissions
55Turning now to the sentencing submissions. Ms Breckweg, on behalf of the prosecution, submitted that an immediate term of imprisonment on each charge is appropriate in all of the circumstances of this case. She submitted that there should be a degree of cumulation between each charge on the indictment to reflect the presumption in favour of cumulation in s19(5) of the Crimes Act, as well as to reflect the two distinct and discrete forms of offending and separate instances of the same type of offending. Further, there should be a degree of cumulation between the total effective head sentence for the charges on the indictment and the period of imprisonment to be served in respect of the breach of RRO. However, Ms Breckweg did not submit that there should be total cumulation of each sentence in this case.
56
Mr Habib did not take significant issue with any of these submissions – noting that each of the offences committed by you are largely separate and standalone offences. He submitted that whilst there should be some cumulation as between the sentences imposed on each offence, total cumulation would result in a sentence which offends against the principle of totality and fails to appropriately reflect the total criminality of the offences for which you fall to be sentenced.
Mr Habib conceded, in line with Ms Breckweg's submissions, that the term of imprisonment to be imposed in this case would be of such a length that a non‑parole period would be required to be fixed.
57
Where Mr Habib and Ms Breckweg did substantially differ in their submissions was in relation to the application of s16AAC to the circumstances of your case.
Ms Breckweg submitted that the sentence imposed for each of the charges on the indictment should be above the specified mandatory minimum head sentence of four years' imprisonment. She argued that when all of the relevant sentencing considerations, including the objective seriousness of the offending and the matters personal to you (including your plea of guilty) are synthesised, your offending falls within the available yardstick of four to 15 years' imprisonment. In
Ms Breckweg's submission there is no reason why the court would need to utilise the mechanism in s16AAC to sentence below the mandatory minimum sentence.
Mr Habib, by contrast, submitted on your behalf that given your early plea of guilty, contrition, the delay in the matter, your prospects of rehabilitation, your personal circumstances, and the application of the principle of totality, that there would be some room for the operation of s16AAC in respect of one or more of the offences for which you fall to be sentenced in this case.
58I note that neither party provided me with any comparable cases as there are no intermediate appellate sentences directly referable or significantly factually comparable to the nature and type of offending in your matter. Ms Breckweg did, however, submit that I should have regard to the decisions in Bahar and Delzotto in considering the sentencing methodology to be adopted. I note that I have had regard to both of those cases.
Sentence
59
Taking into account all of the matters to which I must have regard when passing sentence upon you, including the maximum and mandatory minimum head sentence provisions; the gravity of your offending; the need to give substantial weight to general and specific deterrence and adequate punishment, and to a lesser degree rehabilitation, as sentencing purposes; the principle of totality; and the matters personal to you including your prior matters and your plea of guilty, I am in agreement with both counsel that the only appropriate sentence in this case is one which is constituted by a head sentence and a non-parole period. I am further of the view that it is not appropriate to reduce the sentence for each individual offence below the mandatory minimum period to give adequate weight to your plea of guilty in this case. The offences for which I am sentencing you all fall well above the lower end of seriousness for this kind of offending for the reasons I have already outlined above. Notwithstanding the substantial weight to be given to your plea of guilty in this case, the mitigating matters are not such that, when considered in combination with all other matters, they make a sentence above the mandatory minimum inappropriate. I do, however accept, as previously identified, the submission by both parties that given the operation of s16AAB and s16AAC, combined with all of the other circumstances in
this case, that to impose total cumulation in accordance with s19(5) of the
Crimes Act 1914
(Cth) would breach the principle of totality and would result in a sentence which is more severe than appropriate in all of the circumstances of this case.
60Mr Hunter, you will be sentenced as follows.
61On Charge 1, use carriage service to access child abuse material, you are convicted and sentenced to four years and nine months' imprisonment.
62On Charge 2, possess child abuse material obtained or accessed using a carriage service, you are convicted and sentenced to four years' imprisonment.
63On Charge 3, possess child abuse material obtained or accessed using a carriage service, you are convicted and sentence to four years and three months' imprisonment.
64On the charge of failing to comply with the conditions of an RRO, I find the charge proven, revoke the original RRO, and pursuant to s20A(5)(c)(i) order that you be imprisoned for a period of 12 months, being the part of the sentence of imprisonment fixed under s20(1)(b) which you had not served at the time of entry onto your RRO.
65I direct that:
(a) the sentence imposed on Charge 1 is to commence today;
(b) the sentence imposed on Charge 2 is to commence one year and nine months after the commencement of the sentence on Charge 1;
(c)
the sentence imposed on Charge 3 is to commence one year and
three months after the commencement of the sentence on Charge 2; and
(d) the re-instated sentence imposed upon revocation of the RRO is to commence three years and six months after the commencement of the sentence on Charge 3.
66Thus the total effective sentence of imprisonment is seven years and six months.
67I order that you must serve a minimum of five years and two months' imprisonment before being eligible for release on parole.
Section 6AAA Declaration
68
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective term of imprisonment of nine years and 10 months, and a non-parole period of
seven years.
Registration pursuant to the Sex Offenders' Registration Act 2004 (Vic)
69
You have previously been convicted of three class 2 offences pursuant to the
Sex Offenders Registration Act 2004
(Vic) provisions. Each of Charges 1, 2 and 3 on the current indictment are also class 2 offence for the purposes of SORA.[16] Having been convicted of these offences, and having previously been convicted of three or more class 2 offences, pursuant to s34 of SORA you are required to comply with the reporting obligations under that Act for life.[17]
[16] Charge 1 is a Class 2 offence pursuant to item 28A in Schedule 2 to the Act. Charges 2 and 3 are class 2 offences by virtue of Item 32 in Schedule 2 to the Act. Item 32 operates to classify offences as class 2 offences where an element of that offence 'is an intention to commit an offence of a kind listed' in Schedule 2. An element of s474.22A of the Criminal Code (Cth) is to intentionally possess child abuse material. This reflects an intention to commit an offence of a kind listed in Schedule 2 – namely possessing child abuse material contrary to s51G(1) of the Crimes Act 1958 (Vic).
[17] SORA s34(1).
70So, Mr Hunter, I note that whilst you are already subject to SORA due to your prior offending, I must issue you with another Notice of Reporting Obligations which identifies that your reporting period as a result of the offences for which you have been convicted today is life and a copy of that notice will be provided to you at the prison later today.
71I will just note as a matter of completeness, that I have not been asked to make any ancillary orders given that those are being done by consent between the parties.
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