CDirector of Public Prosecutions v McLaren

[2023] VCC 296

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-18-01213

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

MATTHEW McLAREN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 February 2023
CASE MAY BE CITED AS:	CDPP v McLaren
MEDIUM NEUTRAL CITATION:	[2023] VCC 296

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms L. Skoblar	Commonwealth Director of Public Prosecutions
For the Accused	Mr R. Barton	Malcolm D. Motherwell

HER HONOUR:

1Matthew McLaren, you have pleaded guilty before me to:

·two charges of using a carriage service to groom a person under

16 years of age for sexual activity, contrary to s474.27(1) of the Commonwealth Criminal Code;

·one charge of transmitting child pornography material using a carriage service, contrary to s.474.19(1) of the Commonwealth Criminal Code;

·one charge of engaging in sexual activity with a child outside Australia, contrary to s.272.9(1) of the Commonwealth Criminal Code;

·one charge of producing child pornography outside Australia, contrary to s.273.5(1) of the Commonwealth Criminal Code; and

·one charge of possessing child abuse material, contrary to s51G(1) of the Crimes Act Victoria.

2The facts underlying your offending are as follows.  I attach the detailed prosecution opening to these sentencing remarks as an exhibit.  However, in shorter compass, on 30 January 2018 Australian Federal Police received information from the United Kingdom about a missing 15-year-old girl, TGR.  On that day you arrived at Melbourne Airport from London.  You were questioned by AFP officers at the airport regarding TGR's whereabouts.  At this time your Samsung mobile phone was downloaded by Australia Border Force, analysis of which revealed images depicting sexual activity between yourself and TGR.

3On 2 February 2018 United Kingdom law enforcement officers notified the AFP that TGR had been located and reunited with her family.  On 8 February 2018 police attended your unit in Thornbury where they executed a search warrant, seizing a number of electronic items.  On that date you were arrested for engaging in sexual activity with a girl under the age of 16 outside Australia and taken to Northcote police station where you engaged in a record of interview.

4In that interview essentially you told police that you met TGR in 2017 via a blog chat, gained the impression that she was 18 or 19 and well finished school, and said that she had made contact with you when you were returning from the Netherlands to London in order to return home to Australia.  You told police that TGR told you she was in a bad headspace, wanted company and wanted to meet up with you.  Subsequently the two of you met in Melbourne and spent the night at the hotel you had booked to stay at before leaving for Australia.  During that night there was some sexual activity between you, although not sexual penetration.  You said TGR then told you she was 15, at which point you ceased physical contact with her and she slept overnight in the bed and you slept on the separate sofa bed.

5You agreed there were images of yourself and TGR on a USB police had seized where you were both in bed and naked from the waist up.  You told police you had deleted those images from your phone but saved them onto a USB so that police would not find them when they searched your house and as you wanted to keep them as a memory.  You described what you had done as sheer stupidity and said that you knew the images amounted to child pornography.  You said you left Australia on 15 January, returning on 30 January, and that you also met TGR on 21 January in Norwich in the United Kingdom, where she gave you a tour around the city for a few hours before you caught a train back to London.

6Investigation by the Norfolk police in the United Kingdom, which included an examination of TGR's mobile phone, revealed that her Tumblr account, through which you met, stated that she was 15 years of age.  They obtained an invoice from a hotel in Norwich for two guests to arrive on 21 January 2018 and to depart the next day in the names of herself and TGR (who used her mother's surname), which was paid for by credit card on 21 January 2018.

7They also obtained an invoice from a hotel in Hammersmith for two guests to arrive on 28 January 2018 for departure the next day, which was in your name and made online in the Netherlands and was for a double room.  Two of the images found on a USB flash drive taken from your premises were taken at the London hotel on 28 January and were classified as child pornography material:  one depicting the two of you embracing while naked from the waist up; and one showing TGR asleep on a bed in sleep attire with an open box of condoms featured in the photograph.

8Examination of a laptop seized from your premises also revealed Skype messaging data between yourself and TGR between October and

December 2017 where you told TGR that you loved her.  When this was put to you in the interview with police you replied that you really did like TGR, were considering moving to the United Kingdom and were thinking about being in a relationship with her.  This material underlies Charges 4, 5 and 6 on the indictment, engaging in sexual activity with a child outside Australia, producing child pornography outside Australia, and possession of child abuse material.

9Charge 1 relates to material also discovered on your laptop computer of Skype chats between yourself and an unknown victim which took place between

17 June and 7 September 2017.  You exchanged sexually explicit messages with the victim, who you believed was 15 years of age.  Charge 1 is a charge of using a carriage service to groom a person under 16 for sexual activity.

10Charge 3 is also a charge of using a carriage service to groom a person under 16 for sexual activity, and related to other material obtained on your laptop, being Skype chats between yourself and another unknown victim claiming to be 15 with whom you had sexually explicit conversations.

11Charge 2 is a rolled-up charge involving two conversations with unknown victims on Skype, the first being a sexually explicit conversation with the victim who claimed to be 16 and which occurred between 17 June and

18 November 2017.  The second sexually explicit conversation took place with a victim who claimed to be 17 years of age.  The conversation has taken place between 14 September and 2 December 2017.

12Police also located a total of five pornography films, child pornography films on your mobile phone, three being original images with two single copies of two of these original child pornography files.  The images show non-penetrative sexual activity between yourself and TGR.  You were 24 years of age and she was 15.  Essentially, they were images of yourself and TGR in bed at the London hotel on 28 January 2018.  Neither of you were wearing clothing and depicting the two of you kissing and embracing.

13The maximum penalty for using a carriage service to groom a person under

16 years for sexual activity is 12 years' imprisonment.  The maximum penalty for using a carriage service to transmit child pornography material is 15 years' imprisonment.  The maximum penalty for engaging in sexual activity with a child outside Australia is 15 years' imprisonment.  The maximum penalty for producing child pornography outside Australia is 15 years' imprisonment, and the maximum penalty for knowingly possess child abuse material is 10 years' imprisonment.

14You have no prior convictions.  There has been some delay in this matter, much of it due to deferrals ordered by this court.  However, there was also some administrative delay.  You were arrested on 8 February 2018 and at a second committal mention on 8 June 2018 the matter proceeded by way of straight hand-up brief with an indication there would be a trial in respect of some of the charges, which relied on overseas evidence, while others would resolve.  Adjournments were sought by the prosecution later in June, then July, October, November and March 2019 and 18 to allow the necessary overseas material to be obtained.  On 14 March 2019 the prosecution confirmed that TGR would not give evidence and a new draft indictment was filed.  The indication was made on your behalf that a plea offer was likely and the matter was adjourned to

5 April 2019 for resolution discussion.

15On 3 May 2019 you were arraigned and the matter listed for a plea hearing on 22 August 2019.  On that date the matter was unable to be allocated to a judge and the defence sought an adjournment to obtain additional plea material, which was granted unopposed.  The matter was adjourned to 24 January 2020.  On that date both I and the prosecution were concerned that a psychological report tendered by defence was inconsistent with the plea and the matter was stood down for defence counsel to obtains instructions.  The court was then informed you were not prepared to proceed with a plea hearing, which was vacated, and the matter was adjourned so you could consider a change of plea application and listed for mention on 11 February 2020.  On that date the court was advised that you would make a change of plea application, which was ultimately listed for 25 June 2020.  However, on 24 June the court was advised that you would not proceed with the application.  That matter was listed for mention on 25 June and ultimately set down for a plea hearing on

28 September 2020.

16On that date you were arraigned.  I heard evidence from psychologist,

Mr Geoffrey Burrows, and the matter was adjourned to 14 December 2020 for defence to obtain a forensic report from psychologist, Patrick Newton.  A further plea hearing took place and the matter was adjourned to 18 February 2021.  At that point in time (and I will refer to this later in these sentencing remarks) you had begun a Sex Offender Treatment Program with Mr Burrows, which was in its early stages and I indicated that I would be prepared to defer the matter to allow this treatment to continue.

17The prosecution wished to file written submissions on a deferral and the matter was eventually adjourned to 12 March 2021.  On that occasion I deferred the sentence further to allow more material to be obtained in relation to the treatment you were undergoing.  On 14 December 2020 I was sufficiently satisfied that the progress you had made to agree to a further deferral to

26 June 2021 where, when a further plea took place.  On that date you had almost completed a program which had been conducted by Mr Burrows.  Along the way I had received reports from Mr Burrows as to your progress in treatment, together with an accompanying report from psychologist, Patrick Newton, who works in the same practice as Mr Burrows, of his opinion as to your progress based on testing and psychological assessment.

18In June 2022 Mr Newton was of the view that you were rapidly progressing, that his initial assessment of you as being moderate to high for reoffending was much changed, but that he required you to complete more sessions with

Mr Burrows before he could make that assessment.  I adjourned the matter to December 2022 so that assessment could occur.  In summary, some of the delay must be put down to your decision to plead not guilty to some of the charges and then to considering making a change of plea application but much of it due to my own decision to continue to defer sentencing in this matter whilst you underwent treatment at Mr Burrows' hands.

19I now turn to your personal circumstances.  You are now 29 years of age.  Your mother is Indonesian and your father is Australian.  You were born in Jakarta and came to Australia with your parents when you were an infant.  They separated when you were six, you remaining with your mother.  Your father remarried when you were about 11 and you have a teenage half-sister, who has since been born to them.  Your mother works with the Australian Tax Office and your stepfather is a lecturer in accounting and taxation at Swinburne TAFE.  You have a good relationship with both and they have attended every court hearing with you.  You had little contact with your father until you were about 10, but your relationship with him has until recent times been fairly distant.  He eventually moved to the Philippines.

20You completed Year 12 at Kew High School and then studied bio-medical engineering at Swinburne University.  You then obtained work as a bio-medical engineer where you visited hospitals to service and repair medical equipment, which was a highly skilled job.  However, you resigned from this job after being charged with these offences, as your Working with Children's Card, which was required, was confiscated.  You also worked as a maths tutor.

21You then began a Master's degree in Advanced Engineering, specialising in medical engineering at Monash University, and obtained part time work at the time installing health stations at retail outlets.  You completed your Master's degree during the second semester in 2020.  You held employment as a

bio-medical engineer, as I said, from August 2018 part time, then starting in 2020, you worked in that job full time while completing a single final subject based in physiology.  In June 2021 you finished with your then employer and commenced work with a new employer as a service technician in July 2021.  In November 2022 you changed employment to another technical medical firm, working again as a bio-medical engineer, which employment you still hold.  In that employment you perform compliance testing and repairs on medical equipment.  You are also required to be on call to repair equipment breakdowns in hospitals.  You specialise in contrast injectors and dialysis equipment and it is clearly a situation where you hold a specialised and highly skilled job.

22You began attending on forensic counsellor, Geoffrey Burrows, in

September 2019 and completed six consultations with him to January 2020.  The program you undertook with Mr Burrows is run through the

Central Melbourne Psychology whereby you undertook a sex offender's treatment program run by Mr Burrows and were regularly reviewed and assessed by psychologist, Patrick Newton, who then wrote court reports.  At the ensuing court hearings Mr Burrows wrote brief reports outlining the areas of treatment covered and your responses and progress in relation to them.

23Mr Newton conducted forensic psychological assessments of you, including opinions as to your progress on the program and conducted testing as to your risk of future reoffending.  In his report dated 30 November 2019, at which time you had undertaken several sessions with Mr Burrows, Mr Newton said you impressed as immature for your age.  Psychological testing revealed you to be highly extroverted, 'with a strong need for attention from, and connection, with others'.  He noted that while you socialised with girls throughout high school you did not engage in any relationships, which left you questioning your attraction to others, which, 'seeded long term issues with self-esteem'.

24You then went on to have a girlfriend with whom you were in a relationship for about 15 months and which involved your first sexual experience.  She was an age-appropriate partner.  She then took work as an au pair overseas, the relationship ended and you found it difficult to find another relationship.  It appears that your main social activities revolved around sport and this provided you with little opportunity to meet another partner.  Mr Newton write, 'Efforts to meet others through friends of friends and other similar avenues proved fruitless'.  You then turned to online dating aps where you connected with several women, including both adults and teenagers but, as Mr Newton wrote, 'As time progressed it was his interactions with under age women which came to pre-dominate'.

25You acknowledged at that stage that the communication with each of the complainants, quickly became sexual, that you initiated it and that you manipulated your victims, 'In order to experience sexual validation and gratification'.  I hasten to add this was obtained not through direct contact but by electronic communication with them.  You told Mr Newton it was particularly important for you that you were looked up to, spoken to like an adult and that your under age victims validated your self-esteem.  You told Mr Newton that your interactions with TGR had been particularly intense.  You characterised your interactions as a relationship and believed yourself to be in love with her and contemplated relocating to the United Kingdom to pursue the relationship.

26Under the heading, 'Background to the Offending', Mr Newton wrote that,

'Out of his attempts to remedy his loneliness and boost his self-esteem through recourse to online contact with under-age individuals, he said that he had become infatuated with complainant, ‘TGR'.  You told Mr Newton that you considered your teenage victims to be somewhat equal to you and that due to their validation of your achievements you felt like you were getting close to them and this allowed you to manipulate them and have a power imbalance.

27At this point in time Mr Newton believed you could demonstrate only some awareness of the likely effect of your actions upon these victims, and that your empathy for them remained superficial.  Under mental status and assessment results Mr Newton gave the opinion that while you yourself reported no dysfunction in your life, he believed there were noteworthy indications of interpersonal function together with some indication that you might have then experienced a degree of masked depression.  He assessed your intelligence as falling within the upper end of the average range, and under personality adjustment, described you as, 'Unsure of himself, has a limited sense of his own identity, and has only partially formed views on major life issues'.

28Mr Newton opined that you needed to be the centre of attention to garner the approval of others, which could lead to, 'an uncontained, self-centredness that lacks empathy and values others primarily for the utility in meeting his needs rather than for their intrinsic value as people in their own right'.  He wrote that your need for connection was so great that you rapidly developed, 'an immense but superficial sense of connection with others'.  He also wrote that your need for stimulation was so intense that you placed less emphasis on the quality of the connection, 'so long as he can garner the attention stimulation approval that he requires to buttress his otherwise flagging self-esteem'.

29Mr Newton concluded that the youth of the complainants meant that they interacted with you in a way that boosted your self-esteem, facilitated your control of them and allowed you to avoid the anxiety that would have been evoked by other actions with mature adult women or women of your own age.  He wrote, 'In this way Mr McLaren was able both to overcome his abiding distress at his loneliness and to obtain the sexual and interpersonal gratification he desired'.  At this point in time Mr Newton wrote that it was clear you attributed a precocious sexuality to under age people, believing they had the necessary maturity to engage in sexualised chat with you.  Testing by Mr Newton for risk of reoffending placed you at the moderate/high risk range which, as he said, was significantly greater than that posed by a typical sex offender undergoing sentence.  It was his opinion that you had found it difficult to establish mature intimacy, felt significant distress at this once your relationship ended and, 'in an attempt to meet his needs without challenging his fragile self-esteem,

Mr McLaren was drawn increasingly to interact with younger teenagers'.

30Mr Newton said that you had prominent traits at that stage of a narcissistic personality disorder and also showed prominent misunderstandings regarding the sexual development of young women, 'perceiving them to manifest a precocious sexual readiness'.  He said it was clear that you required further treatment.

31In his report of 21 September 2020, by which stage you had been undergoing further sessions with Mr Burrows, he noted that you demonstrated a limited understanding of the destructive impact of your offending behaviour and therefore psycho-education was being provided regarding normative female development, the requirements for consent and the destructive impact engaging in sexual activity with children and producing child abuse material.  This was to enhance your victim empathy.  He said that the first stage of counselling between you took place between September 2019 and

January 2020, comprising six consultations.  Treatment was ceased because of difficulties around the legal proceeding but a second phase commenced on

28 July 2020 comprising four more consultations, to 8 September 2020.

32At the time of that report in September Mr Burrows wrote that, 'Relapse prevention planning was also introduced to assist the risk of reoffending,' which involved you implementing, 'solid decision making skills to recognise potentially risky situations before they arise and identifying appropriate avoidance strategies'.  He said you had made some initial progress in the sex offender treatment program, demonstrated some improved insight into your offending behaviour and the destructive impact it could cause, but remained in the very early stages of treatment.

33A second report was received from Mr Burrows dated 9 March 2021, by which time you had completed 21 sessions with him since commencement, engaging in a further 11 consultations since September 2020.  Mr Burrows wrote that you had continued to make, 'progress in relation to developing insight into his offending, improving his social skills, his coping skills, enhancing his victim empathy, and developing a comprehensive relapse prevention plan'.

Mr Burrows said that as a result of the treatment you were able to recognise how your feelings of inadequacy and limited understanding of psycho-sexual development of young women contributed to your dysfunctional sexual arousal pattern.  Work was done on your interpersonal deficits and how they contributed to your unmet intimacy needs and subsequent offending behaviour.

Mr Burrows wrote, 'He demonstrated a limited understanding of how to achieve meaningful intimacy in a relationship or to effectively communicate his emotions'.  Treatment assisting improvement in your social skills was undertaken.  Work was also done on your difficulties in coping with negative emotions, which had been identified as a prominent motivation for your offending behaviour.

34Mr Burrows wrote that your difficult in maintaining relationships had left you feeling inadequate and lonely, and that therefore you would seek to alleviate those feelings and improve your self-esteem by resorting to online sex chat.

Mr Burrows wrote that following victim empathy treatment you demonstrated a “sound” understanding of the destructive impact of your offending behaviour and, 'successfully restructured the offence supporting cognitions he relied on at the time, to justify his offending behaviour'.  He said you acknowledged that it was your responsibility to establish appropriate boundaries with children and you expressed remorse for your actions, stating that you felt, 'really horrible for taking advantage of these girls for my own gratification'.  Ultimately Mr Burrows wrote that you had made sound progress and demonstrated a developing insight into your offending behaviour, but that more intervention was required, 'To continue improving his social skills and coping skills, addressing his dysfunctional sexual arousal pattern and developing a comprehensive relapse plan'.

35In his accompanying report dated 3 December 2021 Mr Newton wrote that you had by the date of his report attended 32 treatment consultations with

Mr Burrows, the focus of which was the provision of a cognitive behavioural treatment program to reduce the risk of sexual recidivism, he having had regard to Mr Burrows' report and undertaking independent assessment of your progress with you as well as an assessment of your risk of recidivism.  In that report Mr Newton wrote his evaluation showed you had made good progress, that you could now discuss the sexual development of young women in clear terms, and could now outline the ways in which the complainant's youth had contributed to their vulnerability, 'and thus entrenched a power imbalance that made it impossible ... for them to participate with informed consent'.  You were also able to identify how those factors have magnified the detrimental effect of your conduct upon them and you also demonstrated improved insight into the emotional factors motivating your offending.

36Mr Newton wrote, 'In his consultation with me he could discuss the way in which he had focussed on his own needs and desires while simultaneously downplaying or ignoring concerns for the complainant's wellbeing.  He reflected that he now understands better how his conduct was egocentric and selfish and said that he regretted this aspect of his offending'.  You told Mr Newton that you had begun an intimate relationship with a woman of your own age, which you found to be rewarding, reflecting that while you still found yourself, 'selfish', at times, you had used your sessions with Mr Burrows to focus on building a more reciprocal relationship, which you found rewarding and positive.

37In relation to risk assessment it was Mr Newton's view that while the historical factors measured by the Statit-99 had not changed,

'Taking into account the improvements in dynamic risk factors and noting the continued protection offered by lifelong sex offender registration, I would consider Mr McLaren's risk of recidivism to be reducing steadily and trending towards the moderate/low risk range overall, with continued treatment it's expected that the further reduction in this level of risk will be achieved over the immediate term'

38Mr Newton concluded that you had made good progress, could benefit from further treatment but that the most severe of the dynamic risk factors in your case had been addressed.  He said the progress you had made in treatment was encouraging and augured well for your positive adjustment in the community, which he said was, 'reinforced by his intelligence, his good work skills, the stability of his personal circumstances, and the absence of broader psychological difficulties'.

39On the basis of your continuing progress on this program I deferred sentencing to 26 June 2022.  On that date I received a report from Mr Burrows dated

9 June 2022, by which time you had participated in 35 sessions with him.

Mr Burrows wrote that since his previous report you had consolidated your progress and continued, 'to demonstrate comprehensive insight into his offending behaviour, including the destructive impact of his actions'.  He said you had described implementing your relapse prevention plan successfully in that time, including applying improved social skills to meet your intimacy needs in a prosocial manner, 'and applying relevant coping skills when required and continuing to engage in the treatment'.

40Mr Burrows wrote that you had made very good progress in the SOTP, consolidated over an extended period of time and that you no longer required engagement in offence specific treatment.  You had requested continued assistance with general mental health concerns.  In his report dated

13 June 2022 Mr Newton wrote that your relationship with your girlfriend had progressed to cohabitation, that is that you were living with her, and that you considered the relationship to be serious.  You discussed your relationship with Mr Newton, who wrote, 'I was struck by the emergent maturity of Mr McLaren's discussions of these issues, being issues within the relationship, such as balancing your own needs with that of your partner, and the development of his capacity for intimacy, problem solving and self-disclosure relative to his presentation when I first addressed him'.  He wrote, 'Mr McLaren said that having now engaged in a mature relationship he looks back on his past conduct with even greater shame and sorrow'.

41At this time you were also dealing with the stress of your father being convicted of serious offences in the Philippines and gaoled there, and you becoming his main source of support outside gaol.  Mr Newton noted that you are managing this stress by utilising personal supports including your partner, and counselling with Mr Burrows, and wrote of you,

'Mr McLaren's mental state has not experienced any significant deterioration in connection with these stressors and he is not engaged in problematic behaviour such as increased drinking, drug use or problem gambling'.

42In an examination of your mental state Mr Newton wrote that your judgement had improved over the course of time and that he had assessed you from clear immaturity to a nascent maturity.  He wrote, 'In a context of a relationship with a prosocial partner, stable employment, and a resolution of these matters, the indications are that the trend towards greater maturity should continue'.  He said your insight had grown from an initial minimising account to one where you accepted responsibility for your actions, recognised their problematic nature, 'and to experience apparently genuine shame for his conduct'.

43Mr Newton said that the indications were that your improvements in insight were likely to deepen.  Overall he believes that you had made good use of your treatment with Mr Burrows to improve your insight, develop relapse prevention plans, appreciate the impact of your conduct and experience remorse and regret for behaving in that way.  He wrote, 'The developments in Mr McLaren's insight in remorse, the continued growth of his intimate relationship, and the stability in his personal circumstances, where more generally, despite the high levels of personal stress that have continued to be extant in his life, are testament to the resilience of the changes he has made the evaluation of risk was trending towards the low risk level more rapidly than he had anticipated'.  He wrote, 'Continued engagement in a positive relationship, stable employment and ongoing management of any emergent stressors I would consider his progress to be very good'.

44I adjourned the matter further in order that you finally complete the program and allow sufficient time to elapse for Mr Newton to carry out a further assessment as to your risk of reoffending. 

45On 16 December 2022 at a further hearing, I received a report from Mr Burrows dated 30 November 2022.  In that report Mr Burrows confirmed that you had completed the sex offender treatment program, comprising

37 sessions.  He wrote that you had made very good progress in his offence specific treatment, aimed at developing insight into the motivations underpinning your offending, enhancing your victim empathy, restructuring your offence support cognitions and improving your social skills and coping strategies.  He wrote, 'He was also assisted in developing a comprehensive relapse prevention plan to reduce his risk of recidivism'.  Mr Borrows noted that no further consultations between you and he were scheduled with him.

46In his report dated 2 September 2022 Mr Newton wrote that your personal circumstances had remained stable and that you had continued to be in a committed relationship with your partner. Mr Newton wrote that in discussion with you of your relationship you continued to demonstrate your developing insight and maturity in regard to interpersonal matters.  He regarded this as a significant development, relative to your initial presentation.  Under the heading, 'Progress in Treatment', Mr Newton noted Mr Burrows' assessment of your progress as being very good and that there were no extant treatment goals that had not been addressed.  He wrote, 'In his consultation with me Mr McLaren remained able to demonstrate good insight into his offending, together with continuing empathy for the victim.  He expressed an adamant intention to avoid a return to problematic behaviour and was able to discuss his relapse prevention plan with me in appropriate detail.  His relapse prevention plan was clear and he discussed how he had implemented it in his life in general'.

47Mr Newton wrote that you had developed better communication and social skills, improved your strengths, management skills, which had provided a foundation for any emerging stressors in your life without the need to recourse to problematic behaviours.  Mr Newton wrote, 'Based on my discussions with him I would agree with Mr Burrows' assessment that Mr McLaren had made very good progress with his treatment'.

48As to risk assessment testing administered by Mr Newton involving both the Static-99 and the RSVP, it was Mr Newton's view that the testing made clear the progress you had achieved through treatment with Mr Burrows, writing,

'Not only has there been no repeat of the offending behaviour, but Mr McLaren has also maintained good behavioural controls over features of his sexual conduct which are correlated with an increased risk of recidivism.  Further, the factors identified in the areas of psychological and social adjustment have also been addressed.  That is there are no remaining treatment tasks for Mr McLaren to achieve and no further psychological, mental health or behavioural matters which ought to be targeted to reduce his risk of recidivism'. 

49He said it would be appropriate now to regard you as a low risk of reoffending.

50Despite the progress made by you it was the prosecutor's submission that you be dealt with by a term of imprisonment to be immediately served.  Referring to the factors relevant to sentencing in this matter, she submitted that your offending was considered to be particularly grave by the legislature, as indicated by the maximum penalties and that there was a paramount public interest in promoting the protection of children.  She pointed to the intrinsic harm caused by sexual offending involving children and submitted that the

Court of Appeal had made it clear that general deterrence is a paramount consideration when sentencing for offending of this kind.

51Ms Skoblar submitted that individuals must be deterred from travelling overseas for the specific purpose of having sex with children, who require protection from this conduct.  I note that in this case you are not charged specifically with this offence in that the offending does not involve an allegation of sexual penetration, never-the-less in a general sense I took the prosecutor as saying that individuals must be deterred from travelling overseas for the specific purpose of making sexual contact with children.

52She further submitted that your offending in relation to Charges 4, 5 and 6 involve the deliberate sexual exploitation of a vulnerable child for your sexual gratification and the offending in relation to Charges 1, 2 and 3 involved multiple additional child victims.  She submitted that there was a not insignificant age disparity between the victims and yourself, although it was conceded that you were comparatively young at the time, being aged 25 at that point in time.  The prosecutor noted such offending could be difficult to detect due to the anonymity provided by the internet, and submitted also that yours was sustained offending, continuing over a period of six months, highlighting your persistence and determination to achieve your purpose of having a child engage in sexual activity with you.  She submitted that this should be at the forefront when considering matters of cumulation, totality and just punishment.

53Ms Skoblar also pointed to the presumption of harm to a child as a result of sexual offending and noted that the plea of guilty to the charges was entered at a relatively late stage, that is at a final directions hearing.  She did concede that your pleas of guilty have avoided the need for a trial but stated the prosecution did not accept that your plea was evidence of genuine remorse or insight into your offending.  You had not been cooperative with police and she submitted you had failed to demonstrate genuine remorse or insight into your offending.

54I was also, as I always am by the Commonwealth Crown, provided with a number of comparative authorities to which I have had regard.  The prosecutor ultimately submitted that when the nature and extent of the offending in this case was considered in light of the sentencing principles, a custodial sentence was clearly called for.  One could not possibly cavil with the prosecution's submissions as to the principles which dominate with the sentencing exercise before me or the philosophies underlying them.  Although a relatively young man I fully accept that your behaviour in the six months of your offending was predatory and that without detection and arrest would probably have continued.  I also accept that ordinarily persons facing the charges you do could only expect to be dealt with by a term of imprisonment to be immediately served.

55However, there are unique features in your case which have led me to conclude that a term of imprisonment to be immediately served is neither a warranted or desirable outcome in this case.  As I have said, you were a relatively young man at the time of your offending.  I am satisfied on the wealth of psychological material before me that at the time you were a psychologically immature person and I accept, the proposition that you preyed on younger teenage girls because of your own personal inadequacies.  Normally this would be of little bearing in sentencing in a case such as this. 

56I accept that you had entered an inappropriate relationship with TGR and that you intended to have contact with her when you travelled to the

United Kingdom.  I have received no victim impact statements but I accept of course that it must be presumed that your relationship with her was damaging, that she was a vulnerable teenage girl with clear problems of her own, both within her family and arising from mental health difficulties.  I fully accept that your offending was selfish and aimed at your own emotional and sexual gratification.  That also has application in relation to other victims with whom you engaged online.

57However, I am satisfied that you have undergone an appropriate, lengthy and extensive and privately funded sex offenders treatment program.  In my view, it has been extremely successful, as evidenced by the dramatic lowering of

Mr Newton's expert risk or reoffending assessment from moderate to high, to a low category risk.  The sex offenders treatment program you have undertaken and its expertise and effectiveness is well recognised in these courts.  You have formed a long term, stable relationship with an age appropriate partner.  In my view, there is ample evidence you no longer present a danger to the community, in particular, vulnerable teenage girls. 

58You have expressed what I accept is genuine shame and remorse for your offending and I accept that that shame and remorse has come about as a result of the extensive intervention program that you have undertaken.  In my view, protection of the community is now a far less significant factor in the sentencing exercise I must undertake.  I am fortified in that view by the fact that in relation to these charges I must place you on a sex offenders register, which is in itself a protective factor.

59You also have other protective factors such as your continuing good work history, your stable relationship and the support of a prosocial family.  In relation to the offending itself, while I in no way trivialise its seriousness, I note that it did not involve the widespread dissemination of the child pornography material that you both created and which you possessed.  I note that it lacked commercial aspects commonly seen in more serious offending of this kind.  The offending also was not of the category whereby a mature paedophilic man sought to prey upon under-age children in underprivileged countries for the purpose of setting up sexual exploitation of them because of his own greater wealth, and I also accept that the psychological underlying factors I have referred to can be more readily accepted as a means leading to your offending than would otherwise be the case if you were a more mature man.  At no stage despite the fact that your offending covered six months of you making contact with underage girls, were you assessed at or termed as being paedophilic.

60You had no prior convictions before this offending and you have not offended since.  You have diligently undertaken a demanding program of reform such that I can now be satisfied you have a true understanding of the seriousness of your offending and its damaging impact upon your vulnerable victims, which was not present at the time that you offended.  I do not regard specific deterrence to be a matter which requires addressing in my sentencing of you.  I am satisfied also of the professional reports as I have said, that you feel genuine remorse and shame for that offending.  I regard your prospects of rehabilitation as positive and demonstrably positive.

61In other words, I am satisfied the lengthy and successful process of reform has been undertaken which is the best outcome in a case such as this whereby the future protection of the community, in particular the community of vulnerable teenage girls, has been achieved and note that, sadly, this is all too often not achieved.

62I am concerned that by sentencing you to a term of imprisonment to be immediately served I would drastically undermine that reform which, as I have said, is so much to the community's benefit.  I am also satisfied that the desirable general deterrence to be achieved in this case, which I recognise is a prominent feature in the sentencing exercise before me, can be manifested by sentencing you to terms of imprisonment but with immediate release on a recognisance to be of good behaviour.  Should you reoffend in the future whilst on that recognisance you will face an immediate term of imprisonment.  I therefore sentence you as follows. 

63What I am going to do is I am going to sentence you to terms of imprisonment, Mr McLaren, but you will then be released on a recognisance of good behaviour.  On Charge 1 you are sentenced to 10 months' imprisonment.  On Charge 2 you are sentenced to 12 months' imprisonment.  On Charge 3 you are sentenced to 10 months' imprisonment.  On Charge 4 you are sentenced to 18 months' imprisonment.  On Charge 5 you are sentenced to 12 months' imprisonment, and on Charge 6 I am going to place you on a

community corrections order for a period of two years.

64I have not had you assessed for a community corrections order but the reason I - what I am going to do is order that you undertake 190 hours of unpaid community work and in the terms of that order I do not have to have you assessed.  It is a work-related order only, all right.

65The way it is going to work is that the base charge will be the sentence imposed on Charge 4.  I order that two months of the sentences imposed on Charges 1 and 3, and four months of each of the charges imposed on Charges 2 and 5 be served cumulatively to the sentence imposed on 18 months.  This comes to a total effective sentence of two years and six months' imprisonment.  I order that you be released immediately on a recognisance to be of good behaviour in the sum of $5000 for a period of three years.  You do not have to pay the $5000, Mr McLaren, unless you breach the order, but you must stay out of trouble for the next three years.  If there is any trouble in the next three years you will be breached.

66You can have a seat at the moment because I have got some technical - I have to put the start dates, Ms Skoblar, which I have worked out.  I am very confident I have got it wrong at this time.  I hold an almost unblemished record for mucking up my Commonwealth sentencing offending, so it will need looking at when you get back.

67All right, so Charge 4 will commence today, 24 February 2023.  Charge 1 commences on 24 January 2024.  Charge 2 commences on 24 February 2024.  Charge 3 commences on 24 July 2024, and Charge 5 commences on

24 August 2024.  Hopefully that works.

68Pursuant to s6AAA I declare had you not pleaded guilty I would have sentenced you to a term of three years and ordered that you serve a minimum term of

18 months.

69Is that everything I have to attend to?

70MS SKOBLAR:  Yes, Your Honour, save for obviously the sex offender registration and the declaration - the serious sex offender declaration with respect to Count 6.

71HER HONOUR:  Yes, in relation to Charge 6 I declare that you are a

serious sex offender.  So the protective factors in the sentencing are the fact, as I have said, that Mr McLaren will be on a recognisance for three years.  In relation to the Commonwealth offending, he will be on a community corrections order for two years in relation to Charge 6, plus there will be the hours of unpaid community work.  All right, so now, could you stand up Mr McLaren?

72Before I can place you on a Community Corrections order I can only do this with your consent and I will need to outline the following conditions to you.

73You must report to the Community Corrections office.  Which suburb are you in, Mr McLaren?

74ACCUSED:  Currently in Preston.

75HER HONOUR:  It will be Reservoir.  You have to report within two working days, that is by Tuesday of next week.  Whilst you are on this you must not commit any offence punishable by imprisonment.  You may not leave Victoria without the permission of the Community Corrections office and you must report any change of address or employment within 48 hours of making that change.  You must report to and receive visits from the Office of Corrections.  You must obey all lawful directions of the Community Corrections office, and the one special condition is that you undertake 190 hours of unpaid community work.  All right, Mr McLaren?  Thank you, sir, we will just fill out the forms.  You will be placed on the Sex Offenders Register for?

76MR BARTON:  Life.

77HER HONOUR:  Life, all right.  Thank you very much.  We will get you to sign that.  All right, thank you very much.  That is everything?

78MS SKOBLAR:  Yes, I understand it is.

79MR BARTON:  Yes, just the paperwork for the Sex Offenders Register.

80HER HONOUR:  Yes, we know about that.   Thank you, Mr Barton.  That is going to have to take a little while.  What I am going to get you to do is once

Mr McLaren has signed that and the Community Corrections order, what I will get you to do is wait with your client in the corridor. All right.  So you can come out of the dock Mr McLaren, and I think that is it.

81MR BARTON:  If the court pleases.

82MS SKOBLAR:  Yes, Your Honour, thank you for the use of the court that a consent to forfeiture has been signed also. Your Honour does not need to do anything in relation to that.

83HER HONOUR:  All right then, thank you.  Mr McLaren, we have got a little bit of paperwork with the sex offenders register so we will just get you to sit outside and we will get that other material to you.  I have got to start something else here, all right.  Thank you.

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