CDirector of Public Prosecutions v Kulendran
[2025] VCC 1133
•8 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 25-00325
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| KRISH KULENDRAN |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 June 2025 |
DATE OF SENTENCE: | 8 August 2025 |
CASE MAY BE CITED AS: | CDPP v Kulendran |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1133 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age; Use a carriage service to procure a person believed to be under 16 years of age; Use a carriage service to solicit child abuse material; Use a carriage service to groom a person believed to be under 16 years of age; Use a carriage service for sexual activity with a person under 16 years of age
Legislation Cited: Crimes Act 1914 (Cth); Telecommunications (Interceptions and Access) Act 1979 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Trinh v The King [2024] VSCA 61; Hurt v The King (2024) 418 ALR 63
Sentence:Total effective sentence of 10 years and four months’ imprisonment, with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Keks with | Office of Public Prosecutions |
For the Accused | Ms B. Franjic with | Galbally & O'Bryan |
HIS HONOUR:
1Krish Kulendran, you have pleaded guilty to 43 Commonwealth child sex offences. Your conduct in each instance was slightly different, giving rise to breaches of five separate sections of the Crimes Act (Cth).[1] While your conduct varied slightly, in truth you had a common modus operandi in committing these child sex offences.
[1]Crimes Act 1914 (Cth) (‘Crimes Act’).
2The full circumstances of your offending were set out in an agreed summary of facts tendered on the plea. I have considered all of that summary.
3In brief terms, what you did was to obtain social media contact information from websites established to connect teenagers and adolescents to each other. Those websites self-evidently have as the primary users children. They were Teen-chat and Chat Avenue, the later having chat rooms for teenagers between 13 and 19.
4You exploited that internet facility and obtained details of the young persons' social media identities and addresses. You then would contact a female child using one or other of the social media platforms Discord or Snapchat. Your initial conversations with the child were similar in most cases, where you would discover the child's age. You then lied to them about your age. You would ask for a picture of the child and then quickly you would sexualise the conversation, saying in general terms or terms that I will use in these public reasons, that the child's image caused you to be aroused, get an erection, and that you had the need to masturbate, which you would then commence to do.
5You would in many instances send images, mainly short videos of you, masturbating. In a significant number of instances, you would switch on your camera and, as it were, live stream to the child your masturbation. You would encourage the child to engage by watching you. On occasions you did, or it can be inferred to the requisite standard of proof, that you masturbated to ejaculation as the child watched.
6Your offending was prolonged, stretching from 22 January 2023 until 14 August 2024. The end date was just two days before police attended and searched your home and examined the content of your phone. In other words, your offending ended only upon detection and arrest. In that period of offending, that is over approximately 19 months, you used the social media platforms I have mentioned, Discord and Snapchat, to communicate with 43 victims, each of which are represented in the 43 charges.
7Of this large number of victims, I am satisfied to the requisite standard that they were real children, except for the victim in Charge 25. In that charge, you communicated with who you believed was a 13-year-old female child named Liv, in fact it was an undercover police officer from the United Kingdom. It was through international cooperation that you were investigated and your extensive criminality exposed. Further, in Charge 31, the victim was in fact a 25-year-old who you believed was a child.
8The true or actual identities of the vast majority of the children remain unknown. Three children were identified and in one instance that had implications as to the type of offence charged, that is Charge 35 of using a carriage service for sexual activity. This is the most serious charge with the longest maximum term of 20 years, and a minimum term of five years' imprisonment.
9Your offending was not only prolonged, it was prolific, with very regular interactions with the very large number of children. The 43 separate charges on the indictment are based on one conversation between you and a particular victim. There were in most cases conversations of a similar nature between you and the victims. The conversation that is the basis of the charge is what is said to be the most serious criminal conversation of the various conversations you engaged in with the victim.
10The other conversations with the victim, while potentially chargeable, are raised only as a broad context to establish that the charged conversation with each of the victims is not always a one-off, but a pattern of offending. That said, you are not to be punished for conduct you are not charged with, or have not pleaded guilty to, but it is accepted by you that each charge is one conversation and there were, in total, many more. The hierarchy of the offending charged is as follows, as set out in the prosecution summary of facts at paragraph 15. What was said was that:
(a) where the accused actually engaged in online sexual activity with a person who is known to be a child, he is charged with using a carriage service for sexual activity with a person under 16 years of age. There is one charge, as I have already identified, of this offence (Charge 35) and the child was 14 years old. The maximum term, as I have indicated, is 20 years with a minimum term fixed at five years.
(b) where the accused invited a person he believed to be a child to engage in online or in-person sexual activity with him, he is charged with using a carriage service to procure a person he believed to be under 16 years of age to engage in sexual activity with him. There are 21 charges of this offence. The maximum term for that is 15 years. The children involved in these offences were between the ages of 13 and 15.
(c) where the accused repeatedly raised the possibility of meeting in person for sexual activity, he is charged with using a carriage service to groom a person he believed to be under 16 years of age to engage in sexual activity with him. These are the two charges being Charge 15 where the child was 15, and Charge 25 where you believed the undercover police officer was 13 years old. The maximum term for this offence is 15 years.
(d) where you requested sexually explicit images of a child, you were charged with using a carriage service to solicit child abuse material. There is one charge of this kind, being Charge 14. The child there was 15 years old and the maximum term is 15 years.
(e) when you sent sexually explicit images, videos, and text communication to a person you believed to be a child, you were charged with using a carriage service to transmit indecent communications to a person you believed to be under 16 years. There are 18 charges breaching this offence. The maximum term for that is 10 years. The age range for those offences was between 12 years and 15 years old.
11I have read carefully, more than once, each of the conversations that form the basis of each charge. To be frank, that was a dreadful and depressing undertaking. That is because the conversations reveal your appalling, narcissistic and predatorial behaviour, all done intentionally to corrupt and exploit children without the slightest thought of the harmful impact on them. Your only thought was about yourself and your perverted sexual gratification.
12As to the gravity of the offences, as I said the most serious charge being Charge 25, using a carriage service for sexual activity with a child, involved explicit conversation encouraging the victim, who you knew was a child, to watch you masturbate to ejaculation and for her to engage in her own sexual acts. She was requested by you to send explicit photos of herself, which she did. The extent of your engagement and the content of what you said and what you did that could be seen by her, was bewildering in its abhorrence and its manipulation of that child. This was a clear instance where you knew what you were doing was deeply wrong. You told her not to tell her parents about you and about what you were saying and doing online, or your plans or desires to meet up with her regularly.
13At one point mid‑masturbation, you said you have to turn the sound off as you may wake your own family. The reference to your family did not wake you up as to how depraved and corrupting your conduct was. You just kept going. You had lied to the victim that you were younger and not a 34 to 35-year-old married man and father, a practising doctor and trainee specialist. The offence involved in Charge 35 has, as I said, recently elevated its maximum term to 20 years, and also has a minimum sentence of five years set. I will speak of these legislative guideposts shortly but on any analysis, this offending covered by Charge 35 is a serious example of this very serious offence.
14With respect to Charge 25, which was charged as grooming a person, much of the vile conversation, the pictures of your penis, and videos of you masturbating sent using a carriage service, were very similar to your conduct in Charge 35. However, as mentioned, the child you were communicating with was, unbeknownst to you, an undercover police officer in the United Kingdom. You did learn in the conversation that this fictional child was residing in the United Kingdom but nonetheless you indicated that you would travel to see her and meet up. This was a grave example of the grooming offence.
15So too was the Charge 15, another grooming offence in which you spoke in abhorrent terms and sent that victim a video of you masturbating. You made what were, or can be seen as, serious efforts or arrangements to meet up with this real child. The identity of this child is unknown.
16In the single charge of soliciting child abuse material, Charge 14, you sought naked photographs from a 15-year-old female in California. You had sent her a video of you masturbating. Your conversation with her was deplorable. The largest number of charges and victims, 21, related to your efforts to procure a child to engage in sexual activity with you. These conversations are in many instances identical or very similar to each other, and to be frank, the conduct in Charge 35. You were not charged and will not be punished as if you are charged with actually engaging in sexual activity with a child, but it is a plain and obvious inference in many of the charges that you not just sent a video of you masturbating, but switched your camera on to show live to your victim your masturbation, and in some instances masturbation to ejaculation.
17With respect to the live video streaming as it were, I refer to Charges 5, 6, 8, 9 (where the victims are 13 years old or thereabouts), 10, 17, 18, 30, 31, 38 and 39. In my view, these are particularly serious examples of this procuring offence. There were instances of endeavouring to get the child to engage in actual contact, as opposed to online, in the sense of meeting up for sex. The examples are Charges 4 and 8. In the broad conversations connected to Charge 4, on 15 July or 18 July 2023, there was a discussion about money for actual sexual acts. You asked the victim to meet up that night. She said she was in Bali. You asked when she would be back and that you were excited to meet up with her. You were persistent.
18A fortnight later, you again asked when she would be in the city and about meeting up on Wednesday night. At another point, you asked if she could sneak out on a Saturday night. These were plans to meet up with a 14‑year‑old for contact sexual offending. I do note nothing beyond these conversations moved you closer to actually meeting up with the victim.
19With respect to Charge 8, you spoke to a victim who was 15. You said to her you were 23. It was clear you ultimately convinced her, after asking her a number of times, to switch on the camera while you masturbated. She said she lived in Canberra, and you asked if she could leave her family to meet you, and that you hoped one day to “play for real” with her.
20With respect to Charge 17, it is clear you engaged in longer voice calls in which you sent videos of masturbation and encouraged sexual responses from the victim. In my view, this was a serious example as well in the array of procuring offending. Without descending to reciting and thus republishing your depraved conversations, it seems to me because of the content, the manipulation, and sometimes the age of the victim, that those charges mentioned, 4, 8, 9, 17, 18, 33, 38 and 42, were particularly serious examples of the procuring offence.
21That said, what can be discerned from all the conversations was often a vulnerable child struggling with the rapid escalation of your sexualised content. With all the procuring charges, you manipulated the child and escalated the sexual intent so as to move or try to move to have video calls where the child watched you masturbating.
22With respect to the 18 charges of transmitting indecent communication, it must be said that they were all depraved. As I have said already more than once, I will not republish the graphic language. The conversations were different, but in all you speak of masturbating, ejaculating, wanting or fantasising that the victim was watching or engaging in sexual activity with you. In many conversations, you sent video of you masturbating. Differentiating the gravity of particular offending conversations from any other is difficult, however, I consider Charges 12 and 20 to be especially serious, and Charges 27 (where the victim was 12), 29 and 43 to be very troubling.
23While most of the communications were and remain text based, and in a few the child actually expresses resistance and says to you to turn the camera off or they end the contact, your intent in all was to have the child watch you masturbate. Your narcissistic obsession with your penis and displaying it is, on a simple analysis, just infantile or puerile. But it is also dangerous, given you are an adult and were willing and capable of navigating the internet to exploit children with your obsession.
24In making my assessment of the gravity of your offending for all types of offences, I was much assisted by the detailed analysis of the factors that can inform this assessment task compiled by your counsel, in her comprehensive written submissions. I refer to paragraph 14 and the items she identified from (i)-(xii). Many, if not all these factors, are to some degree relevant to the assessment of your offending. I give emphasis to the following:
·The number, length and type of conversations between you and the victims;
·The frequency of the conversations and the level of your persistence;
·The nature of the sexual material that you communicated;
·The extent to which the intent of future activity with the victim is exposed and developed;
·The nature of the sexual activity intended in the conversations;
·Also, whether any inducements were offered. In this case, there were some, money for meeting up or for sexual incidents or sexual activity or for sexual telephone calls.
·Also, a factor to be considered, (vii), is whether the person was a real person and the age and power differential between you and the victims, and also whether the victim was susceptible to act in the way that was encouraged or described by you.
25I do note that your offending behaviour did not involve threats or concerning demands, especially to use images or content to expose the victim's sexual conduct or engagement to her parents or peers, so as to get the victim to engage in more degrading activity. There was no gratuitous degradation of the victims. These are important matters as this type of blackmailing of children is becoming prevalent and causing very great stress to the point of victims suiciding. Yours is offending not in that level of seriousness and your counsel legitimately emphasised this point.
26It is also said by your counsel that your efforts to conceal your true identity were unsophisticated. It seems that your Discord and Snapchat identities were reasonably quickly connected to you. Detection is inherently difficult in these cases, but in your case perhaps not as diabolical as it can be in other cases. It is to be noted, and as part of deterring others it should be widely known, that law enforcement could, and in this case did, secure your history of use of Discord and Snapchat. To be clear, the police secured two international production orders relating to your Snapchat and Discord accounts. These orders were authorised by the Commonwealth Administrative Review Tribunal, pursuant to the Telecommunications (Interceptions and Access) Act,[2] and pursuant to those international production orders both Snapchat and Discord corporations produced data to the police in relation to your accounts on those platforms. A review of that data revealed additional sexualised conversations engaged by you with persons you believed to be under 16.
[2]1979 (Cth).
27I have spoken generally about the seriousness of these offences. The High Court and in particular the appellate courts in every state have spoken all too often, given the prevalence of this offending, of the sentencing principles that govern internet child abuse offences. So too did our Commonwealth Parliament when increasing some maximum penalties and in establishing a mandatory minimum sentencing regime. The explanatory memorandum to that Act set out Parliament's purpose and the intent that motivated the elevation of the penalties and the minimum terms. That Explanatory Memorandum said the following:
“The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of these offences and ensure that the community is protected from child sex offenders. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of child abuse material, often leads to further physical and sexual abuse of children.”[3]
[3]Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth), Explanatory Memorandum, 40.
28Although many of the cases where the principles have been articulated arise where offenders are being dealt with for possession and transmission of child abuse images and videos, there are a number of important matters of wider application, including application to this form of what is more direct one-on-one child abuse with real children over the internet.
29Foremost of those is that general deterrence is to be the primary sentencing purpose. The reasons given for that are applicable here, such as the ease of offenders in accessing and exploiting vulnerable children, and the difficulty of detection. Also, the offending exploits children on an international scale, as was the case here with children from the United States, Canada, the United Kingdom and Australia, and that is where nationality could be ascertained. The offending is by its nature harmful, and while the full extent of harm is unknown, with sexual offending, even without contact, harm can be very significant, long lasting and emerge in all manner of psychological pathologies throughout a victim's life.
30The presumption of harm is why this type of offending is every parent's nightmare. Parents worldwide have the modern dilemma of wanting their children to have the freedom to access and use the internet to communicate with their friends and make new appropriate connections, to play the vast array of games, to watch entertainment, and make discoveries, learn and expand their horizons. The tension is the simultaneous deep desire of parents to protect their children from the trawling, internet predators like you. This sentiment means when criminals like you are discovered, the public expect the courts to impose very stern punishment, so as to punish, to deter and to vindicate proper societal values.
31Also emphasised by appellate courts is that, given the nature of the offending and the wide array of offenders that commit these offences, together with the need for real weight to be given to general deterrence and punishment, an offender's prior good character and personal circumstances are to be given less weight.
32I pause to emphasise the deliberately chosen words - 'given less weight'. Your personal circumstances and the fact that you have never before or since been in any trouble with the law, and that you have a number of achievements in becoming a medical practitioner, heading towards a specialisation, these are matters that remain important and mitigatory, but they are to be given less importance in the sentencing calculations because of the nature of your crimes.
33I will turn to your personal circumstances and then important observations and opinions of the expert psychologist in this field, Mr Patrick Newton, who saw you, and Mr Burrows of Mr Newton's office, who provided offence specific treatment in 20 sessions from your arrest until your remand.
34Your personal circumstances were helpfully outlined in your counsel's submissions and in the report of the well‑respected forensic psychologist, Mr Patrick Newton, in his report dated 18 June 2025, and two documents authored by your wife; a character reference dated 18 June 2025 and an affidavit affirmed on 20 June, and in her oral evidence on the plea. There was also a testimonial or character reference from your sister-in-law.
35You were born in the United Kingdom, being the eldest of two sons to your parents, who migrated from Sri Lanka. You are currently 36 years of age. You spent your early years in London and describe your childhood as “very loving and supportive”, but noting your parents were strict and focused on the importance of your education.
36Your father worked as a telecommunications engineer and your mother as a social worker. Your parents' marriage was arranged but you commented to Mr Newton that it was mostly a happy one. You note the high demands placed on you to achieve academically and that, in your view, your brother was favoured despite you both pursuing medical careers. However, you remain on good terms with both your parents and your brother, who remain in the UK. You report that they are aware of these legal proceedings and remain supportive. You described that your parents’ focus on schooling and restrictions on out of school activities impacted you socially. You reported you experienced bullying due to weight and medical matters in your school days. These factors are said to have undermined your self-esteem and added to your sense of being an outsider.
37You studied medicine at the University of Liverpool and began your medical career in the NHS in the UK, before coming to Cairns on a working holiday with your then wife in September 2015. You worked for Queensland Health in 2015 in Cairns, Ipswich and Brisbane. In January of 2024, your family moved to Melbourne for you to complete further training in colorectal surgery. You had been elected, as I understand, to the Fellowship of the Royal Australian College of General Surgeons in 2023.
38Upon being charged, you were in the process of completing a doctorate by research studies but abandoned this and all medical practice following your arrest. You have been employed up to your remand as a kitchen hand for a corporate catering company since August 2024.
39Your first physical sexual encounters were at university and your only serious relationship has been with your wife. This was an arranged marriage and you are first cousins. You were married in 2015 and have a six-year-old daughter. Your daughter was born with progressive mitochondrial disease; this causes her pervasive developmental problems, and she has complex care needs. She suffers global developmental delay, remains non‑verbal and requires assistance to even sit. She is also blind and has significant issues with swallowing food. Your wife cares for her full time and gave up her career to look after your profoundly disabled daughter.
40Your wife, as I have said, provided a character reference and affidavit and gave very impressive evidence detailing the impact of your offending, and the impact of any sentence of imprisonment upon your family. Your wife explained that your daughter cannot sit, stand, walk, speak or see. She has not reached the milestones of a three-month-old infant.
41Her care includes special food preparation and what is called, or is, risk- feeding due to issues of aspiration of food or liquid into her lungs. There has to be mobilising to get to the bathroom, to get to bed, bathing, medication, nebulising and there are very concerning seizures, choking and respiratory distress, all of which are difficult to manage and very emotionally stressful. Your wife describes your assistance, especially at night when your daughter's illnesses deteriorate, as being important. She spoke of you being indispensable in this care model and she fears for your daughter's health without you present. The child is eligible for NDIS packages but there is no one who can or is willing to do the complex feeding, and without any family support, your wife is left to do everything, all the time, and now alone.
42As well as the physical and emotional effect of this round-the-clock care, your wife also describes the financial burden of having a child with such complex medical needs, which of course has been much increased by her inability to earn an income, because she has to care for your daughter full time. While there is some housing in Queensland where she is to move with your daughter, all aspects of that are far from ideal. It is not possible to fully articulate the complex needs of your daughter and the impact of your removal from the family upon your daughter and your wife. There is absolutely no doubt that your imprisonment will cause extreme and exceptional hardship to your family, which calls for considerable mitigation in the sentencing synthesis in your case.
43There is no need in Commonwealth offending to establish exceptional circumstances for family hardship, but plainly these are in fact very exceptional and distressing circumstances.
44Mr Newton's view was that you appeared strongly committed to your family and you did acknowledge the strains in your marriage due to your daughter's health difficulties, and the heavy demands of your work and study. All these problems intensified upon you divulging, as you had to, your offending to your wife. You are both engaged, or your wife attended in, treatment with Mr Burrows, the psychologist, and importantly, your wife remains supportive. This continuing support is, as I have said, evidenced by the character references that she authored, as I have referred to. She believes that you are a devoted partner, but importantly that you are remorseful and committed to changing.
45Mr Newton's report includes that there is a degree of remorse displayed by you, particularly remorse in relation to how you have hurt your family, and there is emerging insight into the impact of your offending on your victims.
46Mr Newton noted you began to engage in online sexual behaviour while you were in secondary school. You would use online chat rooms, using your webcam to speak to older people than yourself about sexual matters. You soon began exposing yourself to adults, progressing to masturbating to older women. You now consider these experiences to have been exploitative and abusive and believe this adversely affected your own sexuality. The use of sexualised chat became a prominent feature of your sexuality and following the birth of your daughter and the ensuing marital strain, your recourse to these chat rooms escalated and became your main sexual outlet.
47You explain to Mr Newton your criminal conduct as not only sexually gratifying, but as an escape from feelings of anger, loneliness, inadequacy, and it increased your sense of power and control, which was otherwise lacking in your normal life. These latter points that you made to Mr Newton are a little hard to reconcile with your career in medicine progressing as it was to a lucrative speciality.
48Mr Newton also notes your general exhibitionist activities or hypersexuality in the real world, commencing in early years of studying medicine. You referred to one example relating to your time at the Ipswich Hospital in 2018, which saw you receive a warning from AHPRA after Snapchatting a photo of yourself in your medical scrubs with 'a big visible bulge' to a member of the public.
49In relation to your mental health, you report experiencing reactive depression including prominent suicidal ideation following being charged. You had treatment with Mr Burrows, psychologist, working on offence specific interventions and mental health counselling. You have been prescribed an antidepressant by your GP and are taking that as needed, which you report helps you with sleep.
50Mr Newton opined that you presented to him with persisting symptoms of anxiety and depression, which, from his explanation, seem to have resulted from your current legal troubles, which is understandable, and the impact of all that on your family's wellbeing. He considers that you were already vulnerable to depression prior to your arrest due to long-standing marital problems, your daughter's complicated care needs, and your demanding workload and reluctance to seek help.
51Mr Newton diagnosed you with an adjustment disorder with mixed disturbance of emotions and conduct. He views this disorder as dating from your arrest on the present matter, keeping in mind your predisposition from the stressors that you were already experiencing for the reasons that I have just outlined. Mr Newton explains that in your case, given the delayed resolution of the stressors causing the condition, and the limited access to supports, you are at risk of your mental state deteriorating in custody.
52There is a description of you having strong hebephiliac attraction, that is sexual attraction to peri-pubescent females. You rationalise your conduct to yourself on several levels, initially in minimising the harm you believed you were causing your victims. Following treatment in this regard with
Mr Burrows, Mr Newton opines that you demonstrate good insight into this now, critiquing your earlier rationalisations and better comprehending that your conduct had likely caused severe harm to victims. Mr Newton diagnosed you with both exhibitionist disorder and other specified paraphilic disorder, being a hebephiliac disorder, being sexually attracted to females of a non-exclusive type in that age bracket.53Overall, Mr Newton assessed you and considers that you are a moderate risk of further sexual offending. The risk centres around, of course, further online sexual interactions with underage females. He expressed the view that actual physical offending is less likely, however comprehensive sex offender treatment is considered likely to be effective in further reducing your risk.
54From your personal circumstances, it is clear you have achieved a great deal academically and as a medical doctor through intelligence, but mostly hard effort and long hours. This is to your credit and as I say, not overlooked because of your offending.
55You have lost your medical career and that is, in and of itself, extra punishment. Upon release you will have to start afresh. Beyond this mitigatory aspect of the extra punishment, your intelligence, your career and your very bright prospects in moving into the specialisation just adds to the sheer bewilderment that this case causes as to how you, with so much going for yourself, put all that at high risk for a perverted interaction with one child, followed by another and another.
56It is to me, and I am sure to those who know you, specifically those who wrote about this in their references, and also the wider community, astonishing that you did not act on the obvious fact that you were putting yourself and your family in risk of disaster by your conduct, even if you thought nothing of the harm to the victims. Your persistence and high level of moral culpability, in that you well knew what you were doing was profoundly wrong, in all the circumstances reveals a truly perplexing aspect of your character. In your case, given the profound disability of your child and the complete sacrifice of your wife, of her career and much of her life to care for your child, it adds a further concerning aspect to your selfish behaviours.
57Of course, I do not see this aspect in only one dimension. To endure prison, it will be a heavier weight on you than others because of your concern for your wife, and the need for her to cope alone with all the heavy tasks of caring for your daughter. You will endure added pain of knowing your daughter may not, or probably will not, survive for the length of your sentence. This is a tragedy.
58From all the material, that is the expert and importantly from your wife, it seems to me the interconnected concepts of remorse, contrition, growing insight and prospects for reform are all positive. Your counsel submitted that there was little more that you could have done after your arrest to foster rehabilitation and express contrition. There is much merit in those observations and submissions. In acknowledging these matters together with your early plea of guilty, I must ensure that I attribute real and practical weight to them, and not just give these important mitigatory matters mere lip service, because your crimes are serious and evoke community repugnance.
59The matters that I have just mentioned are factors set out in s16A(2)(f),(g) and (n) that I have, as I must, taken into account.[4] I should add that your plea of guilty was one which has value to the whole criminal justice system, in that your acceptance of responsibility facilitated justice. The overwhelming strength of the prosecution case is obvious, but you did not test anything, even where the true identity of the victim was unknown.
[4]Crimes Act.
60The sentencing provisions for Commonwealth child sex offences with respect to Charge 35 add a level of complexity. Thankfully, the High Court have provided guidance with respect to the mandatory minimum term which, as explained, operates as a legislative guidepost. What must occur is that, the minimum sentence of five years, it must be imposed unless, by operation of s16AAC, I impose a sentence less than the minimum, so as to give adequate weight to your plea of guilty.[5]
[5]Crimes Act, s16A(2)(g), s16AAC(2)(a).
61I have considered the sentencing methodology as set out in Trinh by our Court of Appeal,[6] in ensuring I have properly applied the High Court's guidance given in Hunt v The King.[7] In my consideration of the factors and specifically the plea of guilty, I have come to the view that the value of the plea of guilty can be given its proper weight by a sentence that is not less than the minimum. There is not a need to reduce the minimum to adequately acknowledge your plea of guilty. I say this or introduce this by reference to all the factors, the most important of which are the gravity of what you did in committing Charge 25, and your deep moral culpability as I have outlined in my analysis of that charge.
[6]Trinh v The King [2024] VSCA 61.
[7]Hurt v The King (2024) 418 ALR 63.
62The fact of there being a large number of offences and victims and thus the principle of totality, loomed large on the plea and it has loomed large in my sentencing synthesis. It seems to me that the proper application of the principle of totality has given rise to a number of important considerations and a number of distinct steps.
63Firstly, the principle of totality requires I fix an appropriate sentence for each offence. In the language of the Commonwealth sentencing provisions, I must fix a sentence of appropriate severity.[8]
[8]Crimes Act, s16A(1).
64The next step requires that when considering and making orders for concurrency, or importantly cumulation, I must ensure that the total sentence is proportionate to the overall offending; no more and no less. This must be so with respect to both the head sentence and the non‑parole period.
65This leads then to the third step, which is by considering the sentence individually and the orders for cumulation which give them the total effective sentence, I should then step back and reconsider, so as to ensure that the sentences meet the totality of the offending and I should adjust them if they do not.
66In this task which I have undertaken, it has been done mindful of the expressed intent of the Commonwealth Parliament, that those who commit Commonwealth child sex offences, as you have, are, with respect to totality, to be treated or sentenced differently to other offenders. That is because by reason of s19(5), the presumption of concurrency is displaced.[9] However, by operation of s19(6)[10] I can order concurrency, entirely or in part, if to do so still results in sentences that are of the severity appropriate in all the circumstances. It seems to me that I can fix a sentence of appropriate severity by making orders for a considerable amount of concurrency, so as to ensure that your sentence does not become an outlier in sentences imposed for these sorts of offences.
[9]Crimes Act.
[10] Ibid.
67In that regard, I have considered the intermediary appellate court decisions for these offences and in particular those referred to by counsel. The tension here is how to adequately acknowledge each victim. I have endeavoured to do so but there must be, to ensure proportionality, some sentences that are wholly concurrent.
68With respect to other sentences, approved or re-fixed, by the appellate courts, as has been said often, and by those courts in general terms but also in cases of offending against the very same provisions of the Crimes Act (Cth)[11] that are relevant here, that the great variety of circumstances of how these offences are committed means that other sentences are of limited value.
[11] Ibid.
69Also, with the other cases or indeed all other sentencing cases, the circumstances of the offenders differ so markedly. There are among the offenders few doctors, and less still with exceptional hardship to their family as you face. While there are all array of professionals who offend, with their high intelligence, so too there are many offenders will low intellects to the point of disability. The point that I am making is no one case is like another, and no other sentence is a precedent for others.
70It is always a grave step sending a person like you to prison for the first time, where prison will be onerous and especially because of the family hardship caused, and in circumstances where there is a chance your mental health will deteriorate. However, there is no other option but to sentence you to a lengthy term of imprisonment so that I ensure that the important sentencing purposes are adequately expressed. Only then will the sentences be of appropriate severity.
71Doing the best I can, the sentences that I impose are the following:
| Commonwealth offences | ||||||
| Charge | Offence | Maximum penalty | Mandatory minimum head sentence | Sentence | Cumulation | Start date |
| 1 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 12 months | 1 month | To commence 11 months prior to the expiration of the sentence imposed on charge 35. |
| 2 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 13 months | 1 month | To commence 12 months prior to the expiration of the sentence imposed on charge 1. |
| 3 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 13 months | 1 month | To commence 12 months prior to the expiration of the sentence imposed on charge 2. |
| 4 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 28 months | 3 months | To commence 25 months prior to the expiration of the sentence imposed on charge 3. |
| 5 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 26 months | 3 months | To commence 23 months prior to the expiration of the sentence on charge 4. |
| 6 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 22 months | 1 month | To commence 21 months prior to the expiration of the sentence on charge 5. |
| 7 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 22 months | 1 month | To commence 21 months prior to the expiration of the sentence on charge 6. |
| 8 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 28 months | 4 months | To commence 24 months prior to the expiration of the sentence on charge 7. |
| 9 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 26 months | 2 months | To commence 24 months prior to the expiration of the sentence on charge 8. |
| 10 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 27 months | 3 months | To commence 24 months prior to the expiration of the sentence on charge 9. |
| 11 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 12 months | 1 month | To commence 11 months prior to the expiration of the sentence on charge 10. |
| 12 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 16 months | 3 months | To commence 13 months prior to the expiration of the sentence on charge 11. |
| 13 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 10 months | Nil | To commence on 8 August 2025. |
| 14 | Use a carriage service to solicit child abuse material contrary to sub-section 474.22(1) of the Criminal Code (Cth) | 15 years | N/A | 10 months | Nil | To commence on 8 August 2025. |
| 15 | Use a carriage service to groom a person believed to be under 16 years of age contrary to sub-section 474.27(1) of the Criminal Code (Cth) | 15 years | N/A | 24 months | 3 months | To commence 21 months prior to the expiration of the sentence on charge 12. |
| 16 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 24 months | 2 months | To commence 22 months prior to the expiration of the sentence on charge 15. |
| 17 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 26 months | 3 months | To commence 23 months prior to the expiration of the sentence on charge 16. |
| 18 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 25 months | 2 months | To commence 23 months prior to the expiration of the sentence on charge 17. |
| 19 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 22 months | 1 month | To commence 21 months prior to the expiration of the sentence on charge 18. |
| 20 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 15 months | 2 months | To commence 13 months prior to the expiration of the sentence on charge 19. |
| 21 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 12 months | Nil | To commence on 8 August 2025. |
| 22 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 12 months | 1 month | To commence 11 months prior to the expiration of the sentence on charge 20. |
| 23 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 22 months | 1 month | To commence 21 months prior to the expiration of the sentence on charge 22. |
| 24 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 12 months | 1 month | To commence 11 months prior to the expiration of the sentence on charge 23. |
| 25 | Use a carriage service to groom a person believed to be under 16 years of age contrary to sub-section 474.27(1) of the Criminal Code (Cth) | 15 years | N/A | 18 months | 1 month | To commence 17 months prior to the expiration of the sentence on charge 24. |
| 26 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 10 months | Nil | To commence on 8 August 2025. |
| 27 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 14 months | 2 months | To commence 12 months prior to the expiration of the sentence on charge 25. |
| 28 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 10 months | Nil | To commence on 8 August 2025. |
| 29 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 14 months | 2 months | To commence 12 months prior to the expiration of the sentence on charge 27. |
| 30 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 24 months | 2 months | To commence 22 months prior to the expiration of the sentence on charge 29. |
| 31 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 18 months | Nil | To commence on 8 August 2025. |
| 32 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 24 months | 2 months | To commence 22 months prior to the expiration of the sentence on charge 30. |
| 33 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 26 months | 2 months | To commence 24 months prior to the expiration of the sentence on charge 32. |
| 34 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 22 months | 1 month | To commence 21 months prior to the expiration of the sentence on charge 33. |
| 35 | Use a carriage service for sexual activity with a person under 16 years of age contrary to subsection 474.25A(1) of the Criminal Code (Cth) | 20 years | 5 years | 60 months | Base sentence | To commence on 8 August 2025. |
| 36 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 10 months | Nil | To commence on 8 August 2025. |
| 37 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 11 months | 1 month | To commence 10 months prior to the expiration of the sentence on charge 34. |
| 38 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 25 months | 2 months | To commence 23 months prior to the expiration of the sentence on charge 37. |
| 39 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 24 months | 2 months | To commence 22 months prior to the expiration of the sentence on charge 38. |
| 40 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 24 months | 1 month | To commence 23 months prior to the expiration of the sentence on charge 39. |
| 41 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 12 months | 1 month | To commence 11 months prior to the expiration of the sentence on charge 40. |
| 42 | Use a carriage service to procure a person believed to be under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) | 15 years | N/A | 27 months | 3 months | To commence 24 months prior to the expiration of the sentence on charge 41. |
| 43 | Use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A(1) of the Criminal Code (Cth) | 10 years | N/A | 15 months | 2 months | To commence 13 months prior to the expiration of the sentence on charge 42. |
Total Effective Sentence: | 10 years and 4 months (124 months) | |||||
Non parole period: | 7 years | |||||
Pre-sentence detention declaration: | 44 days reckoned as a period already served | |||||
Section 6AAA statement: | 13 years, with a non-parole period of 10 years | |||||
| Other relevant orders: 1. Registration under the Sex Offenders Registration Act 2004 – reporting for life | ||||||
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