CDirector of Public Prosecutions v Martion
[2022] VCC 2204
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02060
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN MARTION |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2021, 24 October 2022 | |
DATE OF SENTENCE: | 9 December 2022 | |
CASE MAY BE CITED AS: | CDPP v Martion | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2204 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Use carriage service to make available child abuse material – Possess child abuse material obtained or accessed using a carriage service – Failure to comply with reporting obligations – Subject to sex offender registration requirements at the time of offending – Minimum mandatory sentencing – Persistent Depressive Disorder and a Cannabis Use Disorder of mild severity – Relevant criminal history – Onerous custody conditions – Early plea of guilty – Cooperation with the police
Legislation Cited: Criminal Code Act (Cth); Crimes Act 1914 (Cth); Sex Offender Registration Act 2004 (Vic); Community Protection (Offender Reporting) Act 2004 (WA); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP (Cth) and DPP v Garside [2016] VSCA 74; DPP (Cth) v D’Alessandro (2010) 26 VR 477; DPP v Beck [2021] VSCA 88; Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296; R v Verdins (2007) 16 VR 269; Bahar v The Queen (2011) 45 WAR 100; R v Delzotto [2022] NSWCCA 117; Hurt v The Queen [2022] ACTCA 49
Sentence: Total effective sentence – 4 years and 9 months’ imprisonment with a minimum term of 3 years and 1 month imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K Breckweg (Plea) Mr E Diwell (Sentence) | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M Casey (9 December 2021) Mr N Rudston (24 October 2022, 9 December 2022) | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Darren Martion, you have pleaded guilty on indictment to three charges.[1] Charge 1 is an offence of using a carriage service to make available child abuse material, contrary to ss 474.22(1) of the Criminal Code Act (Cth). Charge 2 is an offence of possess child abuse material obtained or accessed using a carriage service, contrary to ss 474.22A of the Criminal Code Act (Cth). Charge 3 is a State offence of failing to comply with reporting obligations, contrary to ss 46(1A) of the Sex Offender Registration Act 2004 (Vic).
[1]Mr Martion was arraigned on 9 December 2021. The plea was adjourned part-heard at the request of both parties to await the decision in R v Delzotto [2022] NSWCCA 117. On 20 July 2022, the defence requested and were granted a further adjournment as they wished to obtain a psychiatric report. The part-heard plea was heard on 24 October 2022.
2Charges 1 and 2 carry a maximum penalty of 15 years’ imprisonment. Charge 3 carries a maximum penalty of five years’ imprisonment.
3On 17 November 2016, you were convicted and sentenced by the District Court of Western Australia at Perth to a term of imprisonment of 2 years and 4 months for three offences of possessing child exploitation material and an offence of indecently recording a child over 13 and under 16, contrary to the Criminal Code (WA).
4As a result of those convictions in Western Australia, in accordance with s 16AAB of the Crimes Act 1914 (Cth) (the Act), charges 1 and 2 carry a mandatory minimum head sentence of four years’ imprisonment. This is subject to any reduction for a plea of guilty or cooperation with law enforcement pursuant to s 16AAC of the Act.
5You were placed on the Sex Offender Register pursuant to the Community Protection (Offender Reporting) Act 2004 (WA). Having moved to Victoria, your reporting obligations continued under the Victorian regime until the expiration of the period of 15 years. You participated in annual sex offender register interviews in Victoria on 26 February 2019, 26 March 2020 and 15 February 2021.
Circumstances of the Offending
6On 27 May 2021, Victoria Police attended your residence as part of a routine compliance check. You admitted to having a Kik account which you had not reported. You said that you were unsure what the username was. Detective Senior Constable (DSC) Prestney asked to view your mobile phone to ascertain your username. You stated that you had left your phone with your girlfriend in Melbourne. You were advised to report your Kik username to police in accordance with your obligations. You agreed to do so.
7On 14 June 2021, the police returned to your residence as you had still not reported your Kik username. You provided your mobile phone to police and opened the Kik application. DSC Prestney recorded the username as ‘Dazza160371’, linked to a Yahoo email address. Your Kik profile had been active for 82 days. You were advised that you had failed to report your username and email address to police within seven days of creation. Your phone was seized by the police.
Charge 1 – Make available child abuse material
8A visual inspection of your phone by DSC Prestney identified you had installed the Discord application with the username ‘Allen#4489’. He reviewed your chat logs with other Discord users, including user ‘bootycall’. Chat logs with ‘bootycall’ revealed that you had shared child abuse material. The conversation with ‘bootycall’ over two days on 28 and 29 May 2021 proceeded as follows:
28 May 2021
8:49pm bootycall: Got anything?
8:51pm Allen: What you chasing
8:51pm bootycall: Car parts U got?
8:53pm Allen: S2r
8:53pm bootycall: I dont have I want it for server access Hook me up?
8:56pm Allen: Still need to set up mega I have it in different location
8:57pm bootycall: All good
8:58pm Allen: Can let you know downloading now
8:58pm bootycall: *thumbs up emoji*
9:19pm Allen: <URL to Mega.nz with 1.43mb of files>
9:20pm Allen: Hit me up with any links you get
29 May 2021
3:40am bootycall: Bro u sent me a pdf file lmao No files at all.
7:46pm Allen: <URL to Mega.nz with 185.25mb of files>
7:46pm Allen: Lol my mistake try this
9DSC Prestney typed the URL sent by you to username ‘bootycall’ into the website address bar. This revealed a Mega account containing 88 files. These files were downloaded and reviewed.
10They were categorised on the Interpol Baseline Scale. Category 1 child abuse material is an image depicting a real pre-pubescent child (under the age of 13 approximately) involved in a sexual act, witnessing a sexual act or the material is focused on the anal or genital region of the child. Category 2 relates to other child abuse material that is illegal within Victoria but does not fit within Category 1.[2]
[2]This includes images of children which are likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality, or humiliation. Images may depict a child as the person conducting the activity, or observing other persons.
11There were 24 Category 1 images, 54 Category 1 video files, five Category 2 images and five Category 2 videos. The files included:
(a) Category 1 (images) – primarily images of females aged approximately eight years old with adult males sexually penetrating their mouths and vaginas with their penis.
(b) Category 1 (videos) – primarily videos of female children aged between six and 10 with adult males penetrating their mouths with their penis and also included videos of males ejaculating and urinating on the faces of girls aged approximately eight years old.
(c) Category 2 (images) – primarily images of females aged between 12 and 16 involved in solo acts of exposing their genitals.
(d) Category 2 (videos) – predominantly videos of female children aged approximately 12 to 16 sexually touching their breasts or masturbating.
Charge 2 – Possession of child abuse material
12In the downloads folder of your mobile phone, DSC Prestney located five images categorised as child abuse material. These images had been downloaded on 11 June 2021. On 23 July 2021, a further five child abuse images were found on your phone. In total, six were categorised as Category 1 and four as Category 2 on the Interpose Baseline Scale.
13They revealed:
(a) A naked girl aged approximately 12 years old sitting on the back of another naked girl of similar age who is lying down.
(b) A girl aged approximately 14 years old wearing a sparkly cheerleader type costume exposing her naked buttocks.
(c) Two girls aged approximately eight and 10 years old, standing in a sexual pose in their underwear with the older girl lifting up her top and exposing her stomach and the younger girl starting to remove the older girl’s underpants.
(d) A girl aged approximately 12 years old laying on the ground with her legs spread apart in the air clearly exposing her underpants.
(e) A naked adult male sitting on a couch kissing a naked girl aged approximately eight years old who is sitting naked with her legs spread apart with her genitals and breasts exposed and the male’s hand underneath her buttocks.
Charge 3: Failing to comply with reporting obligations
14Between 18 November 2020 to 12 June 2021, you failed to report the following information to police:
(a) An online Snapchat username “Darren_martio20”. This had been active since 10 November 2020. You joined Snapchat using your Gmail address.
(b) An online Kik username “Dazza160371”. You created this profile on 24 March 2021.
(c) A Yahoo email address registered by you on 24 March 2021 with your name and date of birth.
(d) An online Discord username “Allen#4489”. This was linked to the Yahoo email.
(e) An online Locanto username “Dazza7148”.
(f) Seven mobile phone numbers registered between 12 March 2021 and 4 June 2021 in your name and home address. Each of the numbers were used to make and receive calls.
15In accordance with your reporting requirements, you were obligated to report each of these applications, emails and phone numbers within seven days of installation or registration.
Arrest and interview
16On 15 June 2021, you attended Frankston Police Station. You were arrested and interviewed. You made the following admissions:
(a) You knew you were a registered sex offender and understood your reporting obligations.
(b) You did not tell the police about your Yahoo email address and Kik account because you forgot, you said your days were like a ‘blur’ and you were dealing with loneliness.
(c) You understood how the Mega website worked.
(d) You knew the meaning of the phrase ‘S2R’ and have used that phrase which is short for ‘send to receive’ as a form of verification when swapping material (child abuse material or otherwise).
(e) You admitted to using the term ‘car parts’ in a conversation with Discord user ‘bootycall’ which involved a transfer of a link to child abuse material via the Mega website of 88 files.[3] You also agreed that ‘car parts’ meant child abuse material. You admitted to viewing the material in the Mega link.
(f) You said that the reason you shared child abuse material with ‘bootycall’ was in the hope that he would reciprocate and provide you with new material.
(g) You said you were “not really sexually attracted [to children]. And I think it’s just more – they’re innocent, not so complicated, sort of thing… it’s more of just a – nice to look at sort of thing. It’s not really sexual arousal.”
(h) When asked what ages of children you were attracted to, you replied “just the teens”.
(i) You said you were “ashamed and furious” with yourself for getting involved with child abuse material again and did not know why you downloaded the photos.
[3] ROI Q&A 531-567
17You were remanded in custody where you have remained.
Personal circumstances
18You were born in Western Australia and lived there throughout until moving to Victoria in 2019. You are the eldest child with two younger half-siblings. Your mother had re-partnered when you were very young, and you have no knowledge of your biological father. Your stepfather left the family home when you were six years of age. As a result, you had to take responsibility at a young age. Your mother did not work. Despite limited means, you and your siblings were always fed.
19You completed Year 11 and joined the Navy at the age of 17. At school, you were a quiet student and suffered bullying. During secondary school you were truant on a regular basis and involved in fights as a result of being bullied. Between the ages of 12 and 16, you were a competitive cyclist. You also enjoyed playing football from childhood into early adulthood.
20You worked as a Combat Systems Operator in the Navy for five years. After leaving the Navy, you attended TAFE and completed Year 12. You then worked as a carpenter for several years and then on fishing trawlers for some 18 months. You worked in seafood processing for approximately four to five years, before returning to carpentry for two years.
21Following separation from your long-term partner, you looked after your daughter as a single parent for 10 years. In your thirties, you undertook seasonal fruit picking work as well as receiving a single parent’s pension.
22You then worked as a security consultant for several years before returning to seafood processing for another two years. Following this, you obtained work in the music industry, working as a promoter, manager and producer.
23Work in the music industry reduced considerably as a result of the pandemic.
24You tried cannabis at the age of 16 and used it on a frequent basis , in addition to alcohol, during your time in the Navy. Since leaving the Navy, you have consumed alcohol on a moderate basis.
25You have had a number of intimate relationships. At the age of 16, you were involved in a two-year relationship. Your partner gave birth to your son when you were 18.
26At the age of 19, you were involved in a further two-year relationship which ended when you discovered that your partner was cheating.
27At the age of 22, you were in a relationship that lasted eight years. You and your partner lived together throughout and had two daughters together. Your partner left the family home in 2005, and as already alluded to, you were a single parent for some 10 years.
28Regrettably, your eldest daughter passed away eight years ago at the age of 21.
29Your relationship with your daughters’ mother recommenced in 2019, when you moved from Western Australian to Melbourne. However, due to your partner’s drug addiction, the relationship broke down again. You had supported your partner financially and were on the brink of homelessness.
30As a result of the pandemic, the borders were closed and you were unable to return to Western Australian. You experienced loneliness and sought distraction by playing Xbox as well as trying to meet women on online dating applications.
Criminal history
31You have a criminal history in Western Australia commencing in 1991 and concluding in July 2018. Your criminal history includes driving offences, assault, possess and cultivate cannabis, possess smoking implements and stealing.
32The most relevant prior history, as mentioned earlier, relates to your appearance before the Perth District Court on 17 November 2016 when you were sentenced to a term of 28 months’ imprisonment.
33On 28 November 2016, you received a financial penalty in respect of two offences of possess or copy indecent or obscene articles. On the same day, you received a one month sentence of imprisonment for two offences of breaching bail. Also relevant is your last appearance in Western Australia on 25 July 2018 for two offences of failing to comply with reporting obligations. You received a financial penalty for those two offences.
34In Victoria, on 20 June 2019, you were convicted and fined for an offence of furnishing false or misleading information relating to your residential address.
Psychological report
35I have had regard to the psychological report dated 26 November 2021 and prepared by Mr Simon Candlish.[4] I note the following matters:
(i)Mr Candlish has diagnosed you with a Persistent Depressive Disorder and a Cannabis Use Disorder, both of mild severity.
(ii)You also meet the criteria for Other Specified Paraphilic Disorder (Hebephilia).[5]
(iii)In terms of risk assessment, noting its limitations, Mr Candlish assessed you as being of high risk of future non-contact sexual offending on the Static-99R.[6] A more detailed risk assessment utilising the Risk for Sexual Violence Protocol (RSVP) places your risk of further non-contact sexual offending as moderate to low.[7]
(iv)Mr Candlish at [124] of his report states:
Mr Martion appeared to offend in the context of relationship issues, depressed mood, dysfunctional coping and feelings of loneliness and isolation. His risk is perpetuated by any reinforcement of deviant interests, continued distorted views, any ongoing poor problem-solving and coping deficits including isolation, and unmanaged mood issues.
(v)Mr Candlish has made a number of recommendations in his report aimed at reducing your risk of re-offending in a similar manner.[8] This includes treatment addressing the factors associated with the offending, developing insight, exploring cognitive distortions and establishing risk management strategies.
[4]Exhibit 2.
[5]Non-exclusive type (i.e. also aroused to adults – see [86] of the psychological report).
[6]Ibid [90]-[96].
[7]Ibid [97]-[119].
[8]Ibid [132]-[135].
36In addition to his report, Mr Candlish gave evidence at the plea hearing. In brief compass,[9] he confirmed that you met the criteria for a Persistent Depressive Disorder of at least a mild severity. It was a long-standing issue. Mr Candlish didn’t investigate whether cannabis use played any role in the offending. He accepted that your diagnosed sexual attraction to children was causally connected to the Commonwealth offending. Your depression, in the context of isolation, would have weakened your self-resolve. There was no suggestion that you didn’t appreciate the wrongfulness of your offending conduct. Mr Candlish was unable to comment if your mild depressive disorder played any role in the State offending.
[9]As R v Verdins (2007) 16 VR 269 (“Verdins”), other than limb 6 was not relied upon, I have summarised the evidence briefly.
Gravity of the offending and sentencing purposes
37Your counsel, Mr Rudston, quite properly conceded that you engaged in very serious offending.
38In respect of charges 1 and 2, the minimum penalty of 4 years’ imprisonment and the maximum penalty of 15 years’ imprisonment provides an unequivocal indication that these offences are viewed very seriously by Parliament.
39I am required to take into account a number of factors that inform the objective seriousness of your offending. These include the nature and content of the material, including the age of the children and the gravity of the sexual activity depicted, the number of items possessed, whether the material is for the purpose of sale or further distribution, whether the offender will profit from the offending, the number of children depicted and thereby victimised, and the length of time for which the material was possessed.[10]
[10]See DPP (Cth) and DPP v Garside [2016] VSCA 74, [25].
40In respect of Charge 1, you sent “bootycall” a URL to access a Mega account that contained 88 files. You sent the URL twice over two days as “bootycall” did not receive any files on the first occasion. The child abuse material comprised of 29 images and 59 videos.
41The images were primarily of females aged eight years old with adult males penetrating their mouths and vaginas with their penis.
42The videos consisted primarily of female children aged between six and 10 years old with adult males penetrating their mouths with their penis, and videos of males ejaculating and urinating on the faces of girls aged around eight years old.
43You sent the link to a complete stranger with whom you had been chatting within moments of being asked. The material was referred to as “car parts” to prevent the material you disseminated from being detected. You expected “bootycall” to reciprocate and send you material in return.
44I agree with Mr Rudston, the material you sent was ‘absolutely appalling’ and ‘shocking’. It was particularly vile and disturbing. In sending the link you played an active role in the child abuse material market. Disseminating such material creates a market for the continued degradation, abuse and exploitation of children. The material involved the abuse of many different children. The victims abused to produce the material were very young, aged between six and 10.
45I take into account that the Mega link was sent to a single recipient on one occasion only.
46In respect of Charge 2, you possessed 10 child abuse images as already described.
47Again, this material in your possession depicted the abuse of real child victims. By possessing this material, you contributed to the exploitation of children. I accept that the number of images were limited, and the material subject to Charge 2 cannot be described as being of the most depraved character.
48The fact that you did not receive any monetary gain from the offending subject of charges 1 and 2 does not provide any mitigation.
49These are not victimless crimes and children must be protected. Given the anonymity provided by the internet, this offending is difficult to detect.
50In sentencing you, general deterrence must be given prominence. In DPP (Cth) v D’Alessandro,[11] the Court stated that:
the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.[12]
[11](2010) 26 VR 477.
[12]Ibid 483 [21].
51I also regard Charge 3, a rolled up charge, as a serious example of the offence. The offending involved multiple failures to report information to police over a period between 18 November 2020 and 12 June 2021. It involved failing to report details of online application accounts, usernames, email addresses and seven telephone numbers. One of the applications that you failed to report, namely the Discord application, was utilised by you in the commission of the offending subject of Charge 1. You have two relevant prior convictions for failing to comply with reporting obligations in Western Australia. Your failure to report undermines the intention of the reporting scheme to prevent re-offending and protect the community. It is reflective of your failure to appreciate the harm you have caused to others and an unwillingness to take responsibility for your actions.[13]
[13]DPP v Beck [2021] VSCA 88, [54], [57].
52The sentence I pass must unequivocally send a message to those who may be minded to offend in a similar manner, that such abhorrent offending will be met with stern punishment in the form of prison sentences. On behalf of the community, your offending must be appropriately denounced, you must be justly punished and the community protected.
53In light of your relevant prior history, specifically deterring you from further offending is also a necessary sentencing purpose.
54I must also give some weight to your rehabilitation. I regard your risk of re-offending in a similar manner to be at least ‘moderate’. I was told that you have not had the benefit of any sex offenders treatment program, either in prison or outside. You served your last sentence of 28 months in its entirety and were released without any support.
55Section 16A(2AAA) of the Act requires the court to have regard to the objective of rehabilitating you, including by considering whether it is appropriate in determining the length of any sentence or non-parole period, to include sufficient time for you to undertake a rehabilitation program. The principal purpose of rehabilitation in this context is to protect the community. I have taken this into account in sentencing you. The sentence I will impose will allow for sufficient time for you to undertake an appropriate sex offender treatment program, either in custody or while on parole.
Matters in mitigation
56You pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.
57Your plea of guilty attracts a greater utilitarian benefit, having been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead, and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[14]
[14]Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296.
58Despite some initial hesitation, you were generally cooperative with the police and made some appropriate admissions in your record of interview.
59I accept that your pleas of guilty and cooperation with the police is indicative of remorse. I also note the remorse alluded to in your mother’s reference. Mr Candlish at [119] of his report states:
Mr Martion appears to have responded appropriately to his arrest and appears to have taken his charges seriously and is considered to display remorse and guilt. He has discussed the harm of his actions, albeit in a rudimentary manner.
60Your period in custody has coincided with the pandemic. You spent the first 17 nights in protective quarantine, effectively being confined to your cell.[15] Since then you have endured some 50 or 60 days of lockdown. You have had no face to face visits at all. You maintain a close relationship with your mother. She suffers from a degenerative nerve disease and lives in Western Australia. You are unlikely to receive any in-person visits. You have not had any access to courses or counselling. You suffer from tinnitus and wake up every morning with headaches. I also bear in mind that these conditions in custody need to be viewed in the context of your mild depressive symptomology. I accept that your time in custody has been onerous and may likely continue to be so.
[15]Two nights at Frankston police cells, four nights at Melbourne Assessment Prison and 11 nights at Ravenhall.
61Having had the benefit of oral evidence from Mr Candlish, Mr Rudston disavowed any reliance upon Verdins limbs 1, 3, 4, and 5,[16] as raised in the written submissions. However, he maintained reliance upon limb 6.
[16]Verdins.
62Limb 6 allows mitigation of sentence if there is a ‘serious risk’ imprisonment will have a ‘significantly adverse effect’ on an offender’s mental health. Mr Candlish stated at [129] and [130] of his report:
Mr Martion has a propensity towards a further deterioration in his mood with sustained incarceration, due to his history of depression. He also displays avoidance style of coping and might rely on stoicism to cope. It is unclear how he responded to his previous prison term.
Sustained incarceration further impacts on Mr Martion’s ability to reintegrate effectively upon release. His employment prospects at his older age; his relationships with friends and family; and his identity are all compromised with lengthy imprisonment. Such impacts will likely affect his mood and his sense of self.[17]
[17]In oral evidence, Mr Candlish stated that his depression could worsen and make his time in custody more onerous.
63I am not satisfied on the balance of probabilities that limb 6 of Verdins is engaged.
64I note that you have been in custody since your arrest on 15 June 2021. At the time of your assessment by Mr Candlish in November 2021, you reported some difficulties consistent with relatively mild or transient depressive symptomatology[18] and some transient thoughts of suicide. Based on your self-report and testing, you met the criteria for Persistent Depressive Disorder of mild severity.
[18]Psychological report, [80].
65You are not taking any anti-depressant medication. You told Mr Candlish that you had not experienced any serious issues in prison and had formed some positive relationships with some prisoners. You are working in the upholstery factory.
Sentencing submissions
66On behalf of the prosecution, Ms Breckweg submitted that a sentence of imprisonment with a degree of cumulation was the only available disposition in respect of all three charges. She submitted that each charge reflected discrete offending. She disagreed with Mr Rudston’s submission of total concurrency as between charges 1 and 2. Ms Breckweg pointed out that the 10 images subject of Charge 2 were downloaded and kept in a folder on the mobile phone. These 10 images did not form part of the abuse material subject to Charge 1.
67Ms Breckweg submitted that once all relevant sentencing factors were taken into account, including the objective gravity and the factors in mitigation, the sentence in respect of Charge 1 did not require resorting to s 16AAC of the Act to effect any further reduction below the mandatory minimum. She agreed that s 16AAC did have a role to play in respect of Charge 2, bearing in mind the lower objective gravity.
68Mr Rudston did not take any strong issue with Ms Breckweg’s ultimate sentencing submission, other than his submission of total concurrency in respect of the two Commonwealth charges. He submitted that a just sentence on Charge 2, having synthesised all relevant matters, including the lower objective gravity, the early plea and its elevated utilitarian benefit, cooperation and onerous conditions in custody, made the application of s 16AAC necessary. He was less enthusiastic about utilising s 16AAC when it came to Charge 1, but invited the court to give consideration to it.
69Mr Rudston submitted that this offending revealed a de-escalation in seriousness compared to his offending in 2016.
Sentencing
70I have taken into account all relevant matters in the Crimes Act (Cth) and the Sentencing Act (Vic).
71There is no alternative but to impose a sentence of imprisonment in respect of both Commonwealth offences and the State offence. Of course, the mandatory sentencing scheme applicable to the Commonwealth offending allows for no alternative.
72There is no dispute that I should adopt the sentencing methodology as set out in the decision of Bahar v The Queen[19] when sentencing on the two Commonwealth offences attracting mandatory minimum head sentences. The Bahar approach has been confirmed by two recent Court of Appeal decisions – the New South Wales Court of Appeal in R v Delzotto[20] and the Australian Capital Territory Court of Appeal in Hurt v The Queen.[21]
[19]Bahar v The Queen (2011) 45 WAR 100 (“Bahar”).
[20][2022] NSWCCA 117 (“Delzotto”).
[21][2022] ACTCA 49 (by a majority).
73The minimum penalty is for the least serious category of offending. The maximum penalty is for offences in the worst category taking into account all relevant factors, including matters personal to the offender.[22] The absence of an absolute minimum because of the provisions for further reduction in s 16AAC does not change this approach.[23] Section 16AAC comes into play where, after synthesising all relevant factors, the court determines that it cannot give adequate recognition to an offender’s plea of guilty or cooperation without imposing a head sentence below the prescribed mandatory minimum.
[22]Bahar, [58].
[23]Delzotto, [88]-[90].
74I bear in mind that each of the three charges reflect discrete and distinct offending. I do not accept Mr Rudston’s submission of total concurrency as between charges 1 and 2. The 10 images subject to Charge 2 were distinct from the 88 in the Mega link subject to Charge 1.
75Further, I do not regard this offending as representing a de-escalation as compared to the offending before the District Court in Western Australia on 17 November 2016. Charge 1 involved active transmission of extremely depraved images and videos.
76Pursuant to s 19(5) of the Act, there is a presumption in favour of cumulation between two or more Commonwealth child sex offences. However, s 19(6) of the Act provides:
Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.
77In accordance with s 19(7) of the Act, I am satisfied that a degree of cumulation between charges 1 and 2 would adequately result in a sentence of a severity appropriate in all the circumstances of this case. A degree of cumulation would pay regard to all sentencing purposes and take into account the objective gravity of the offending and the mitigating factors. It will also pay regard to the principles of proportionality and totality.
78I will also direct some cumulation in respect of Charge 3 as it involves separate offending over an extended period.
79In respect of the State Charge 3, failing to comply with reporting obligations, you will be convicted and sentenced to 9 months’ imprisonment. This sentence will commence today, 9 December 2022.
80The effective State sentence is 9 months’ imprisonment.
81On the Commonwealth Charge 1, make available child abuse material, you will be convicted and sentenced to 4 years and 3 months’ imprisonment. This sentence will commence 6 months before the expiration of the State sentence on Charge 3.
82On the Commonwealth Charge 2, possession of child abuse material, you will be sentenced to 2 years and 4 months’ imprisonment. I have arrived at that sentence by sentencing you to the mandatory minimum of 4 years’ imprisonment and then applying a discount of 25 percent for your plea of guilty and a further 15 percent discount for your cooperation. This sentence will commence 2 years and 1 month before the expiration of the sentence on Charge 1.
83Therefore, the total effective sentence in respect of the Commonwealth charges is 4 years and 6 months’ imprisonment.
84I set a period of 2 years and 10 months’ imprisonment before you become eligible for federal parole.
85If you are released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and you may be ordered to serve the balance of the sentence in prison. The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community if you are considered to be suitable.
86The effect of the orders for commencement of sentences on all charges is a global effective sentence on State and Commonwealth offences of 4 years and 9 months’ imprisonment. The minimum period you are required to serve is 3 years and 1 month imprisonment.
Pre-sentence detention
87Pursuant to s 18 of the Sentencing Act 1991,[24] the period of 542 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
[24]See Crimes Act 1914 (C th), s 16E.
Section 6AAA declaration
88Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted of the State Charge 3, you would have been sentenced to a term of 15 months’ imprisonment. In respect of the Commonwealth charges 1 and 2, had you pleaded not guilty and been convicted you would have been sentenced to 6 years’ imprisonment with a non-parole period of 4 years and 3 months.
Sex Offender Registration
89Pursuant to the Sex Offenders Registration Act 2004, registration is mandatory and the reporting period is for life. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. As you well know, it is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
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