CDirector of Public Prosecutions v Muller
[2024] VCC 1320
•23 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00169
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| BAILEY MULLER |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2024 | |
DATE OF SENTENCE: | 23 August 2024 | |
CASE MAY BE CITED AS: | CDPP v Muller | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1320 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Federal child abuse material offences – Guilty plea – Youthful offender – Attention-Deficit-Hyperactivity-Disorder and Autism Spectrum Disorder – No prior convictions – Family support – Mandatory requirement for custodial sentence with time to be served subject to ‘exceptional circumstances’ – ‘Exceptional circumstances’ not made out.
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth)
Cases Cited:R v De Leeuw [2015] NSWCCA 183; Mc Niece v The Queen [2019] VSCA 78; DPP v Meharry [2017] VSCA 387; Meadows v The Queen [2017] VSCA 290; R v Gajjar [2008] VSCA 268; R vMills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; R v Ly (2014) 241 A Crim R 192; Phibbs v The King [2023] VSCA 123; Musca v The Queen [2021] WASCA 37; Lyons v The Queen [2019] VSCA 242; R v Hutchinson [2018] NSWCCA 152; Wagner v R [2018] NSWCCA 124; R v Howe [2017] QCA 7; Mertell v The King [2022] ACTSC 69.
Texts cited:Troy Anderson, Commonwealth Criminal Law, (The Federation Press, 3rd ed, 2022)
Sentence: Two years and 3 months’ imprisonment – Release on recognisance release order after serving 9 months’ imprisonment -
S 6AAA declaration – 3 years and 3 months’ imprisonment with a non-parole period of 2 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms N. Simpson | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Barrera | Victoria Legal Aid |
HIS HONOUR:
1Bailey Muller, you have pleaded guilty to:
(a) One charge of using a carriage service to transmit child abuse material (CAM) contrary to sub-section 474.22(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years’ imprisonment;
(b) Four charges of using a carriage service to transmit indecent material contrary to sub-section 474.27A(1) of the Criminal Code (Cth) which carries a maximum penalty of 10 years’ imprisonment;
(c) One charge of using a carriage service to solicit and cause to be transmitted to self, CAM contrary to sub-section 474.22(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years’ imprisonment; and
(d) One charge of using a carriage service to possess or control CAM contrary to sub-section 474.22A(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years’ imprisonment.
2The circumstances of your offending are summarised in the Summary of Prosecution Opening dated 19 June 2024 which is an agreed summary.[1]
[1] Exhibit P1.
3In August 2023, Katy Sims[2] reported a conversation to Queensland police that she had with a Victorian boy who said he was 17 years old. Queensland police identified you as the ‘boy’ and referred the matter to Victorian police for investigation.
[2] A pseudonym.
4On 30 August 2023, police executed a search warrant at your house and seized an Apple iPhone 14 which they had found in your bedroom. You provided your PIN code and told police they would find nude images in a ‘hidden photos’ location. There were also sex stories in the Notes Application and Snapchat account showing sexualised chats involving children.
5You were arrested and taken by police to a police station and participated in a formal interview which was recorded. You were granted bail.
Charge 1 - transmit indecent communications to a person believed to be under 16.
6Between 3 April 2022 and 19 April 2022 you conversed with Katy Sims using the application Snapchat. During the conversations you falsely claimed to be 17 years’ old. You were in fact 22. Ms Sims said she was 12 years old which was her actual age.
7In the course of the conversations, you sent Ms Sims pictures of your erect penis. Ms Sims sent you around 50-60 ‘bra pics’.
8You also sent Ms Sims two sexualised messages referring to ‘fucking’ her and referring to raping her.
Charge 2 - transmit indecent communications to a person believed to be under 16.
9On 20 November 2022, you sent ‘Amy13’ ‘sex story number 1’. This was saved in Notes on your phone.
10Sex story number 1 was written by you and describes a violent sexual fantasy written in the first person and referring to a girl with a ‘little pussy’ in graphic detail. I have chosen not to reproduce the Story due to its depraved nature.
11At the time you sent this story to ‘Amy13’, you believed her to be approximately 13-15 years of age.
Charge 3 – transmit indecent communications to a person believed to be under 16.
12Between 12 June 2023 and 16 July 2023 you sent Frances Thomas[3] six pictures of your erect penis via Snapchat. You also sent Ms Thomas, who you believed was under 16 years of age, ‘sex story number 1’ and a number of messages involving her and referring to graphic sexual activity including bestiality, anal sex, rape and incest. I have chosen not to reproduce the messages due to their depraved nature.
[3] A pseudonym.
Charge 4 – transmit CAM
13On 18 June 2023 you sent Ms Thomas a message referencing incest.
Charge 5 – solicit and cause CAM to be transmitted to self
14Between 21 July 2023 and 13 August 2023 you sent messages to ‘EllieMay’ seeking child abuse images from her and you received images showing her naked breasts in return.
Charge 6 - transmit indecent communications to a person believed to be under 16.
15Between 21 July 2023 and 24 August 2023 you sent ‘EllieMay’, who you believed to be under 16 years of age, a picture of your penis, ‘sex story number 1’ and a number of messages involving her and referring to graphic sexual activity including incest. I have chosen not to reproduce the messages due to their depraved nature.
Charge 7 – possess CAM
16On 30 August 2023, police located two child abuse images in a folder on your phone. The images depict naked pubescent females categorised as category 2 using the Interpol Baseline scheme.
Record of Interview
17In a lengthy interview with police you made a number of significant admissions about your offending. In the course of the interview, you:
(a) demonstrated some insight into the wrongfulness of your conduct – for example, you acknowledged it was inappropriate to send images of your penis to Katy Sims;[4]
(b) said you had no intention of acting on your violent sexual fantasies;[5]
(c) claimed that Frances Thomas was interested in incest and bestiality;[6]
(d) stated that you had no thought of meeting up with the children;[7]
(e) denied having sexual urges for children;[8] and
(f) admitted masturbating to CAM and that afterwards you would feel disgusted with yourself.[9]
[4] ROI Q 413-415.
[5] ROI Q 438-440.
[6] ROI Q 265, 286.
[7] ROI Q 307.
[8] ROI Q 351.
[9] ROI Q 353, 356.
Personal circumstances
18You are the elder of two children born of your parents’ relationship. You were born in 1999 and grew up in a generally happy home in suburban Melbourne. Your parents separated when you were 14 and you have experienced some conflict with your father. You remain close with your mother with whom you live and who is the main emotional support in your life.
19Both your father and mother wrote references for you and attended court to support you.
20In her letter to the court, your mother Donna Mace states that you have regularly expressed your sorrow for the pain you have caused to your family and your victims. Your mother states that you cannot read social situations and this has rendered you unable to make friends. Ms Mace continues to support you and does not believe you pose a risk to the community.[10]
[10] Exhibit D5.
21Your father Tim Muller believes you are truly remorseful for your actions. Mr Muller considers that, as a ‘gentle soul’, you will be extremely vulnerable in prison. He also believes that you present no risk to the community.[11]
[11] Exhibit D6.
22You struggled at school and in 2009 were diagnosed by Dr Hu with Attention-Deficit-Hyperactivity-Disorder (ADHD) and Autism Spectrum Disorder (ASD), Level 1 Severity.[12] With support, you were able to complete VCE albeit with poor results.
[12] According to Dr Barth, this is the lowest level ASD diagnosis under DSM-5 – see Exhibit D2 at [27] and note 1.
23Since leaving school you have completed certificates in mental health and disability work. You have developed a passion for disability work and obtained full-time employment with Irabina Autism Service. You resigned from this position when you were charged with these offences and are currently unemployed and receiving Centrelink payments. As at the date of the hearing of your plea, you were unsure of your future employment prospects. More recently, you have been offered casual employment in the role of a front of house staff member with the Big Group Staffing.
24You have low self-esteem and have never participated in an intimate relationship. Your sexual experiences have been exclusively autoerotic in nature often involving watching pornography on the internet.
25You explained to Dr Barth that communicating with females about sex via social media applications such as Snapchat provided you with a sense of intimacy and enhanced self-esteem. You communicated with progressively younger girls which further buttressed your self esteem. It was in this context that you offended.[13]
[13] Exhibit D2, [23]. See also the reports by Mr Burrows.
26You have had no contact with the criminal justice system apart from this offending.
Sentencing Considerations
27Charges 1 to 7 are ‘federal offences’. The court is guided in sentencing you by the regime set out in the Crimes Act1914. In sentencing you, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[14]
[14] Crimes Act 1914 (Cth), s 16A(1).
28I take into account the matters set out in Part 1B of Crimes Act. In particular, I have had regard to s 16A(2) which sets out a non-exhaustive list of factors that must be taken into account as far as they are relevant and known to the court.
29I will address each of the relevant paragraphs in s 16A(2) in turn.
Nature and Circumstances of the Offence & Offence committed as a course of conduct – s 16A(2)(a) & (c)
30Although this paragraph does not refer expressly to assessing the ‘objective gravity’ of the offending in question, it is recognised that this is part of the task the court must complete under paragraph (a).[15]
[15] See Troy Anderson, Commonwealth Criminal Law, (The Federation Press, 3rd ed, 2022) [9.6.7].
31CAM offences are, obviously enough, extremely serious offences as reflected by the maximum penalty of 15 years’ imprisonment on each of charges 4, 5 and 7.
32The remaining four charges are concerned with the transmission of ‘indecent material’ to persons under 16 years of age. They too are serious offences albeit ones that attract a lower maximum penalty.
33The New South Wales Court of Criminal Appeal, in the oft-cited case of R v De Leeuw,[16] summarised the factors that intermediate appellate courts throughout Australia have consistently applied in determining the objective gravity of such offences:
(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b) the number of items or images possessed;
(c) whether the material is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence;
(e) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(f) the length of time for which the pornographic material was possessed.
[16] [2015] NSWCCA 183, [72].
34I accept the prosecution submission[17] that, in respect of charges of transmitting indecent communications to children, the objective seriousness is to be assessed by reference to:
(a) the age difference between the victim and the offender;
(b) the duration of the communications;
(c) the presence of manipulation, inducements or requests to keep the communications secret;
(d) whether the offender disguised their true age or identity; and
(e) the nature and content of the communications.[18]
[17] Prosecution Submissions on Sentence dated 22 July 2024, [13].
[18] Mc Niece v The Queen [2019] VSCA 78; DPP v Meharry [2017] VSCA 387; Meadows v The Queen [2017] VSCA 290; and R v Gajjar [2008] VSCA 268.
35Applying these principles to your offending, I have concluded that the most serious of the offences is charge 1 for the following reasons:
(a) Your victim was 12 years old;
(b) You lied about your age saying you were 17 when you were in fact 22;
(c) Your offending spanned a period of more than 2 weeks and consisted of several communications; and
(d) The communications included both photographs of your erect penis and conversations that were sexually explicit.
36I accept the prosecution submission that this is at least a mid-range example of the offence of transmitting indecent material to a person you believed was under the age of 16.
37Charges 3, 5 and 6 are low to mid range instances of offending applying the criteria identified above and having regard to the duration of the offending and the nature of the communications.
38Charges 2 and 4 are lower level instances of offending when the duration is taken into account.
39Finally, charge 7 is a low level example of the possession offence as you only possessed two files classified within category 2 on one day.
40Viewed holistically, your offending is serious. It spanned a period of 16 months and only came to an end when you were reported to police. I have taken into account in assessing the duration of your offending that there are significant time gaps between the offending constituting charges 1 and 2 and between charges 2 and 3.
41As noted earlier in these reasons, it is apparent from your police interview, that you were aware that what you were doing was wrong. You had ample opportunity to desist but chose to continue offending.
42It is also relevant that your offending involved four separate child victims. While no victim impact statements have been provided to the court, I proceed on the basis that your offending has caused harm to these girls.
Contrition and guilty plea – s 16A(2)(f)&(g)
43There is ample evidence before the court of your contrition and remorse. I accept that this is genuine.
44Your early plea of guilty is further evidence of remorse and is evidence of your acceptance of responsibility. Importantly, you have saved witnesses the anxiety of giving evidence at your trial and you have saved the community the expense associated with a trial.
Cooperation with Law Enforcement – s 16A(2)(h)
45You co-operated with the authorities by making admissions when interviewed and providing your passwords when asked. This is to your credit.
Character, antecedents, age, mental health, etc – s 16A(2)(m)
46You are of good character and have no antecedents.
47You were between 22 and 23 years of age at the time of your offending and are now 24.
48For the purposes of your plea hearing, you were examined by:
(a) Dr Mathew Barth, a psychologist who specialises in the assessment and treatment of adults involved in the criminal justice system; and
(b) Dr Linda Borg, clinical neuropsychologist.
49Both Dr Barth and Dr Borg provided reports to the court.[19]
[19] Dated 24 June 2024 (exhibit D2) and 8 May 2024 (exhibit D1) respectively.
50At the hearing of the plea I referred to the absence of a report from Mr Burrows who you have consulted for treatment. This was remedied before the date of sentencing. The court has received:
(a) A report from Mr Burrows dated 13 August 2024; and
(b) An addendum to that report dated 15 August 2024.
51I will now summarise the contents of these four reports.
Opinion of Dr Barth
52Dr Barth took a detailed history from you and administered a number of tests. Dr Barth refers to his discussions with you about your offending:
Mr Muller was able to establish a sense of ‘pseudo connection’ with the underage complainants. From my discussions with him, it was apparent that Mr Muller developed prominent offence-supporting cognitions about their sexual promiscuity and in turn, this facilitated his exploration of deviant fantasy material relating to their sexuality. This indicates Mr Muller’s grossly distorted understanding of what constitutes appropriate sexual behaviour.[20]
[20] Report of Dr Barth dated 24 June 2024, [43] (‘Barth Report’).
53Dr Barth notes that you have commenced a sex-offender treatment program with Mr Geoffrey Burrows, psychologist. You have found this to be ‘very useful’ and you told Dr Barth you are very committed to ensure you do not re-offend.[21]
[21] Ibid, [31].
54Dr Barth reports that Mr Burrows has told him that you have engaged in this treatment in a diligent manner and have ‘made encouraging initial progress’.[22] Dr Barth recommends that your ongoing participation ‘in such a program would be the single most important factor in the prevention of relapse in [your] case’.[23]
[22] Ibid, [44].
[23] Ibid, [45].
55Based on the tests he administered, Dr Barth identifies the risk factors in your case as being the chronicity of your offending, the intensification of your behaviour, the employment by you of psychological coercion, your attribution of precocious sexuality to female adolescent children, your distorted sexual fantasies, poor coping skills, social isolation and pervasive intimacy problems.[24]
[24] Ibid, [48].
56On the other hand, Dr Barth notes that you have stable accommodation, do not abuse substances heavily, have no psychopathic traits and no history of sexual contact offending. Further, you have a positive attitude to your rehabilitation.
57Based on his assessment of these various factors, Dr Barth assesses you as a moderate risk of future online sexual offending against adolescent females. This is a risk that Dr Barth expects to reduce if you complete a specialist sex-offender treatment program.[25]
[25] Ibid, [48]-[50].
58Finally, Dr Barth considers that you will be an especially vulnerable prisoner in light of your ASD and very limited coping skills. He opines that, in prison, you will be ‘unlikely to have access to the specialised intervention that is central to [your] needs’.[26]
Opinion of Dr Borg
[26] Ibid, [54].
59Dr Borg was asked to accept the diagnoses of ASD and ADHD and to express a view about the application of the Verdins principles to your situation.[27] The Verdins principles are concerned with the relevance to a sentencing court of an offender suffering from mental illness.
[27] Report of Dr Borg dated 8 May 2024, [1] (‘Borg Report’).
60In relation to the question of a link between your conditions and your offending, Dr Borg considers that ‘on an intellectual level [you] understand the wrongfulness of [your] actions, appreciate consequences, moderate impulses as well as plan and generate alternative courses of action’.[28] Therefore Dr Borg does not consider that, from a purely cognitive perspective, there is link between your disabilities and your offending behaviour. However, Dr Borg goes on to express the view that your poor emotional intelligence, which is a function of your ASD, has ‘the potential to contribute to (but not cause) [your] offending behaviour’.[29]
[28] Ibid, [55].
[29] Ibid, [55].
61Dr Borg is of the view that your social/emotional immaturity means you will have reduced capacity to cope with a term of imprisonment.[30] Further, Dr Borg considers that it is unclear whether your current ADHD treatment would be available to you in prison.[31]
[30] Ibid, [56].
[31] Ibid, [57].
62Finally, while Dr Borg describes your offending as ‘highly concerning’, she assesses your risk of recidivism as ‘low at present’ but likely to increase to moderate with the reintroduction of access to the internet. Like Dr Barth, Dr Borg highly recommends continued engagement with the SOTP.[32]
[32] Ibid, [58].
63Both Dr Borg and Dr Barth assess you as genuinely remorseful for your offending.[33]
[33] Barth Report (n 20) [59]; Borg Report (n 27) [34].
Reports of Mr Burrows
64Mr Burrows confirms that you have attended his office to participate in the Sex-Offender Treatment Program (SOTP) at your own expense on six occasions commencing on 9 April 2024. Mr Burrows states that you are at an early stage of the program and have made ‘some good initial progress’. He states that you are developing insight into your offending behaviour and your victim empathy is enhanced.
65Mr Burrows was asked about the impact on your treatment if you were incarcerated. He states that you could continue with the treatment via videoconference if you have the capacity to fund it.
66Based on his general experience with other clients in custody, the practical impact of incarceration may mean that they make slower progress than if they remained in the community.
67Finally, Mr Burrows opines that you are likely to experience more difficulties in custody than most prisoners. He has sought to alleviate this concern by educating you about prison life including the availability of protective custody.[34]
[34] Report of Mr Burrows dated 13 August 2024, 11, 14 (‘Burrows Report’).
Matters Personal & Probable Effect of Any Sentence on Family or Dependents – s 16A(2)(m) & (p)
68Paragraphs (m) and (p) of s 16A(2) require me to consider matters personal to you and the impact of any sentence on your family.
69Your youth is a significant consideration. It means that the court must give greater emphasis to your prospects of rehabilitation than it would for an older offender.[35] It is also a matter that is relevant to the court’s assessment of your moral culpability.
[35] R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372.
70It is not just your chronological age that is relevant in this regard. Dr Barth describes your views on ethical matters as ‘immature and egocentric’ and notes that you were very slow to develop socially.[36]
[36] Barth Report (n 20) [51].
71I have taken your youth into account in imposing sentence in accordance with the authorities cited.
72I have summarised your general personal circumstances earlier in these reasons. I have no doubt that if you are incarcerated this will have a profound impact on both you and those who love you. This will be your first time in custody.
73However, because general deterrence is the prominent sentencing factor in cases involving child sexual offending, factors such as prior good character and family impact are of less significance in the sentencing synthesis than is generally the case.[37]
[37] R v Ly (2014) 241 A Crim R 192, [86].
Prospects of Rehabilitation – s 16A(2)(n)
74On the positive side, you have no previous exposure to the criminal justice system and have not offended while on bail. You have no history of substance abuse. You have the strong support of your parents and you have voluntarily participated in the SOTP with Mr Burrows. You are remorseful for your offending.
75As against that, according to both Mr Burrows and Dr Barth, you exhibit characteristics of a young man who is sexually attracted to underage females and you have been prepared to act on that attraction. While your participation in treatment has enabled you to make some progress, you have a long way to go. I have discussed your ongoing risk of offending earlier in my reasons.
76Your prospects of rehabilitation are closely tied to your ongoing involvement in the SOTP. I accept that you are motivated to continue with the treatment. If you continue to engage with the program, I assess your prospects of rehabilitation as good.
Comparable Sentences
77The Court was referred by the prosecution to six appellate decisions concerning sentencing for child abuse material offences under Commonwealth and State law.[38]
[38] Phibbs v The King [2023] VSCA 123 (‘Phibbs’); Musca v The Queen [2021] WASCA 37; Lyons v The Queen [2019] VSCA 242; R v Hutchinson [2018] NSWCCA 152; Wagner v R [2018] NSWCCA 124; R v Howe [2017] QCA 7.
78In addition, your counsel referred me to a further appellate decision – Mertell v The King.[39]
[39] [2022] ACTCA 69 (‘Mertell’).
79I have read each of these decisions and, within the limits explained by the High Court of Australia in DPP v Dalgleish[40] and Wong v The Queen,[41] have been assisted by them in determining the appropriate sentences to impose in your case.
[40] [2017] HCA 41 (‘Dalgleish’).
[41] [2001] HCA 64.
80As explained by the High Court, a consideration of such decisions assists a sentencing court to identify the correct sentencing principles to be applied. A court does not attempt to achieve numerical consistency.[42]
[42] Dalgleish, [82]-[83].
Other Statutory Considerations
81Sub-section 16A(2AAA) of the Crimes Act provides an additional obligation on a court sentencing an offender for a ‘Commonwealth child sex offence’[43] to have regard to the objective of rehabilitating the person, including:
(a) when making an order--to impose any conditions about rehabilitation or treatment options; and
(b) in determining the length of any sentence or non-parole period--to include sufficient time for the person to undertake a rehabilitation program.
[43] In this instance, Charges 1 – 3 on the indictment – see Crimes Act 1914 (Cth), s 3.
82I am also mindful of the principle of parsimony – imprisonment is a sentence of last resort.[44]
[44] Ibid, s 17A(1).
83Section 19(5) of the Crimes Act creates a presumption in favour of accumulation in respect of these charges. However, total cumulation is not mandated. As the authorities make clear, in accordance with s 19(6), the presumption does not apply if the court is satisfied that by imposing the sentences in a different manner, this would still result in sentences that are of the severity appropriate in the circumstances thus meeting the standard mandated by s 16A(1).
84In particular, a court must still apply the principle of totality.[45] In doing so the court must state its reasons for imposing a sentence that is not entirely cumulative and cause its reasons to be entered in the records of the court.[46]
[45] Mertell (n 39), [18]; Phibbs (n 38), [42], [59].
[46] Crimes Act 1914 (Cth), s 19(7).
85Cumulation is to be achieved by fixing later commencement dates for the second and subsequent sentences to ensure there is no gap in the sentence.[47]
[47] Crimes Act 1914 (Cth), s 19(1); Mercanti v The Queen [2011] WASCA 120, [14]-[16].
86The fixing of a minimum term to be served is to be achieved by either setting a non-parole period or making a recognizance release order. The former must occur where the sentence exceeds three years; the latter is for sentences that are of three years or less.[48]
[48] Ibid, ss 19AB, 19AC.
87A recognizance release order is an order that an offender be released upon giving security generally after serving a specified period of imprisonment calculated in accordance with s 19AF. The offender will be required to be of good behaviour for a specified period of time.
Exceptional Circumstances
88Of particular importance to your case, where an offender who is being sentenced for a ‘Commonwealth child sex offence’ that was committed after 23 June 2020 is released on a recognizance release order, there is a presumption that the offender will serve an actual period in custody unless ‘exceptional circumstances’ exist.[49]
[49] Ibid, s 20(1)(b)(ii).
89In the case of R v Middleton,[50] Loukas-Karlson J of the ACT Supreme Court explained that:
… [this] amendment to the Crimes Act[is] intended to reflect the exceptionally serious nature of these crimes, consistent with the position of intermediate appellate courts in recognising that a term of imprisonment will usually be expected for offending of this type.[51]
[50] [2023] ACTSC 50.
[51] [2023] ACTSC 50, [180] (citations omitted).
90The statutory presumption to which her Honour referred is found in s 20(1)(b) of the Crimes Act 1914, which relevantly provides that where a person is convicted of federal offences, the court may, “if it thinks fit”:
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): ...
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1);
(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances--immediately.
91It follows that, in a case such as yours, involving as it does several ‘Commonwealth child sex offences’, this court may only release you without requiring you to serve an actual period of imprisonment if satisfied that there are ‘exceptional circumstances’.
92Although the phrase ‘exceptional circumstances’ is not defined, it is generally accepted that any mitigating circumstances relied upon by an offender are to be considered in the context of all of the circumstances of the case including the objective gravity of the offending, the moral culpability of the offender and the applicable sentencing considerations which, as I have noted, in the case of child sex offending, emphasise the need for general deterrence.[52]
[52] [2023] ACTSC 50, [183], citing R v GAW [2015] QCA 166, [54].
93While circumstances need not be unique to be considered exceptional, they cannot be circumstances that occur regularly or commonly. Finally, it is recognised that the interaction of factors which, of themselves, may not be exceptional can, when considered cumulatively, be considered exceptional. This is the point made by your counsel.
94In determining the period to be served, a court will take into account the same considerations as were considered in setting the head sentence(s), but the weight to be attached to those considerations may vary having regard to the different purposes to be served.[53] Just as when a court sets a non-parole period, the pre-release period is to be the minimum period that the prisoner should serve in custody before their punishment is mitigated in favour of their rehabilitation.[54]
[53] Mertell (n 39), [40].
[54] CDPP v Haynes [2017] VSCA 79, [26].
95Finally, a child sex offender released on a recognizance release order must be supervised by a probation officer in the community and must ‘undertake such treatment or rehabilitation programs that the officer reasonably directs’.[55]
[55] Crimes Act 1914 (Cth), s 20(1B).
Consideration
96This is a difficult sentencing exercise. The court must balance - on the one hand - your youth, lack of prior convictions, family support, remorse and genuine attempts to rehabilitate with – on the other hand – the objective seriousness of your offending and the need to give effect to the principle of general deterrence.
97What that means in practice is that, not only must the sentence be appropriate to your personal circumstances including the need to promote your rehabilitation, it must be severe enough to act as a real deterrent for any other person who is tempted to indulge in the sort of conduct in which you engaged.
98This process of instinctive synthesis, in which a sentencing Judge considers all relevant considerations and settles upon an appropriate sentence, can involve factors which pull in opposite directions. A consideration of one factor might suggest a more severe sentence while a consideration of another may call for leniency.
99The relevant sentencing purposes in your case are denunciation, just punishment and deterrence both specific and especially general. It is also necessary to promote your rehabilitation.
100Your counsel, in helpful and detailed submissions, has submitted that a sentence of either a community correction order or a recognisance release order with immediate release ‘provide due weight to deterrence and denunciation whilst balancing rehabilitation’.[56] In particular, it has been submitted on your behalf that it is in both your interests and those of the community more broadly that you complete the SOTP. Your counsel submits that this is most likely to occur if you are not incarcerated and conditions may be imposed by the court to ensure that you complete the program in the community. Reliance is placed by Mr Berera on the opinion of Mr Burrows that you are less likely to complete the program if you are in custody.
[56] Outline of Defence Submissions on Behalf of Bailey Muller dated 21 July 2024, [35].
101On behalf of the prosecution it is submitted that, because of the objective seriousness of your offending, an actual term of imprisonment, with release on a recognisance release order, is the appropriate sentence. The prosecution accepts that the promotion of your rehabilitation is important and refers the court to those provisions in the Crimes Act concerning rehabilitation to which I have earlier referred.
102In particular, the prosecution submits that your circumstances do not meet the test of ‘exceptional’.
103After careful consideration, I accept the prosecution submissions. Your offending is objectively serious for the reasons explained earlier. Your moral culpability is significant even allowing for your age and mental health conditions.
104Turning to your personal circumstances, without wishing to minimise the challenges you face in life, even in combination they do not meet the high standard of exceptional when assessed together with the objective gravity of your offending. Sadly, it is not unusual for young men suffering the sorts of conditions from which you suffer to engage in this type of offending for sexual gratification. It is also not exceptional for an offender to have commenced treatment before being sentenced.
105It therefore follows that I must sentence you to a period of actual imprisonment. No other sentence is appropriate in all the circumstances of the case. You will be required to serve nine months in custody after which you will be released pursuant to a recognisance release order. It will be a condition of that order that you be assessed for your suitability for sex offender treatment programs and, if you are assessed as suitable, that you participate in such programs under the supervision of Corrections officers.
106In determining the length of the head sentence and the period that you must serve, I have given full weight to all relevant considerations including the matters of mitigation discussed earlier.
107I have ordered a degree of cumulation between the sentences as I am satisfied that doing so will still result in sentences that are of a severity appropriate in all of the circumstances. I direct that this be entered into the records of the court.[57]
[57] Crimes Act 1914, s 19(7).
Orders
108On charge 1, transmitting indecent communications to a person believed to be under 16 years of age, you are convicted and sentenced to 18 months’ imprisonment commencing on 23 August 2024. This is the base sentence.
109On charge 2, transmitting indecent communications to a person believed to be under 16 years of age, you are convicted and sentenced to 6 months’ imprisonment commencing on 23 August 2024. This sentence is to be served wholly concurrently with the sentence on charge 1.
110On charge 3, transmitting indecent communications to a person believed to be under 16 years of age, you are convicted and sentenced to 9 months’ imprisonment commencing on 23 August 2025. Three months of the sentence is to be served cumulatively on the sentence imposed on charge 1.
111On charge 4, transmitting child abuse material, you are convicted and sentenced to 6 months’ imprisonment commencing on 23 August 2024. This sentence is to be served wholly concurrently with the sentence on charge 1.
112On charge 5, soliciting and causing indecent communications be transmitted to yourself, you are convicted and sentenced to 9 months’ imprisonment commencing on 23 November 2025. Three months of the sentence is to be served cumulatively on the sentence imposed on charge 3.
113On charge 6, transmitting indecent communications to a person believed to be under 16 years of age, you are convicted and sentenced to 9 months’ imprisonment commencing on 23 February 2026. Three months of the sentence is to be served cumulatively on the sentence imposed on charge 5.
114On charge 7, possessing child abuse material, you are convicted and sentenced to 4 months’ imprisonment commencing on 23 August 2024. This sentence is to be served wholly concurrently with the sentence on charge 1.
115The total effective federal sentence will be 2 years and 3 months.
116I make an order under s 20(1)(b)(ii) of the Crimes Act that you be released after serving 9 months upon entering into a recognisance in the sum of $1,500 to comply with the following conditions, that you:
a) be subject to the supervision of a probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) for a period of two years; and
b) obey all reasonable directions of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee); and
c) not travel interstate or overseas without the written permission of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee); and
d) undertake such treatment or rehabilitation programs that the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) reasonably directs; and
e) report to the Ringwood Community Corrections Centre located at 60/62 Maroondah Hwy, Ringwood VIC 3134 within two clear working days of the date of your release from custody; and
f) report to, and receive visits from, a Community Corrections officer or officers; and
g) notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
h) attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
117It is necessary for me to explain a number of aspects of this order.
118First, the purpose of the order is to ensure that when you are released from custody into the community you are supervised by corrections officers for a period of two years and that you obey their lawful directions. This is to promote your rehabilitation and therefore reduce the risk of any further offending by you. There will be significant limitations on your liberty during the period of the order.
119Secondly, if you fail to comply with the conditions of the Order, without reasonable excuse, you may be brought back before this court and punished for that breach. You may also be re-sentenced on the original offending.
120Finally, the Order may be discharged or varied by this Court under s 20AA of the Crimes Act 1914.
121Do you understand what I have told you about the Order? Do you agree to be bound by the Order?
122You will now be given a copy of the Order to sign.
123As a result of your conviction on Charges 1, 2 and 3, you are required to comply with the reporting requirements of the Sex Offenders Registration Act.[58] The reporting period is for life. These obligations are onerous and you should seek advice about them as breaches of these obligations can have significant consequences for you.
[58] Sex Offenders Registration Act 2004 (Vic), s 34(1)(c)(iii).
124Finally, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for your pleas of guilty, I would have sentenced you to 3 years and 3 months’ imprisonment with a non-parole period of 2 years and 2 months.
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