CDirector of Public Prosecutions v Prasad
[2025] VCC 308
•15 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR -24-01186
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID PRASAD |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 October 2024 and 17 March 2024 |
| DATE OF SENTENCE: | 15 April 2025 |
| CASE MAY BE CITED AS: | CDPP v Prasad |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 308 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Use carriage service to transmit child abuse material and cause child abuse material to be transmitted to himself contrary to ss474.22(1) of the Criminal Code (Cth) – use carriage service to transmit child abuse material contrary to ss474.22(1) of the Criminal Code (Cth) – use carriage service to make available child abuse material contrary to ss474.22(1) of the Criminal Code (Cth) – use carriage service to procure a person believed to be under 16 years of age contrary to ss474.26(1) of the Criminal Code (Cth) – possess or control child abuse material obtained or accessed using a carriage service contrary to ss474.22A(1) of the Criminal Code (Cth)
Legislation Cited: Crimes Act 1914 (Cth), s16BA, s16A(2AAA), s19(5); Criminal Code Act 1995 (Cth), s474.22(1), s474.26(1) s474.22A)(1); Sentencing Act 1991 (Vic), s6AAA
Cases Cited: Crowder (a pseudonym) v The King [2024] VSCA 211; R v Okutgen (1982) 8 A Crim R 262; DPP(Cth) v Garside (2016) 50 VR 800; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R H McL v The Queen R (2000) CLR 452; Gordon v The Queen [2013] VSCA 343
Sentence: 4 years imprisonment with a non-parole period of two years.
6AAA 6 years with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr B. Kerlin | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. Brown | Daniel Taylor Lawyers |
HIS HONOUR:
1David Prasad is aged 65, having been born in January 1960. The offending in this matter took place when he was aged between 62 to 63.
2Mr Kerlin appeared for the Commonwealth Director of Public Prosecutions and Mr Brown for Mr Prasad.
3The matter was heard in the County Court at Bairnsdale, when, on 31 October of last year Mr Prasad pleaded guilty to five charges and filed a document of admission pursuant to s16BA of the Crimes Act(Cth). The plea was to five charges under the Criminal Code (Cth) being three charges pursuant to s474.22(1), one charge pursuant to s474.26(1), and one charge pursuant to s474.22A(1).
4Mr Prasad is a disabled pensioner and has been so since 2001. He comes before the Court without any priors. He, at times other than when he is on remand, resides at his mother's home with his stepfather.
5Exhibit A was tendered being the prosecution opening for plea dated 13 September 2024 and the facts therein were accepted by Mr Brown as the facts upon which I am to sentence his client.
6It is to be pointed out that for each charge the maximum penalty prescribed by Parliament is 15 years' imprisonment.
OFFENCES:
7Charge 1: Use carriage service to transmit child abuse material and cause child abuse material to be transmitted to himself between the period 21 April 2022 and 2 November 2023.
8An analysis of the material as provided shows that 20 CAM files were sent to a person called 'Michelle Gee', and that Mr Prasad received 21 CAM files from Michelle, together with another 45 CAM files (See paragraph 13 of Exhibit A).
9For the purpose of the record 'CAM' obviously standing for 'child abuse material.'
10Annexure A gives an illustration of the material in these files, an affidavit sworn by Detective Leading Senior Constable Daniel McDonald. From paragraphs 4 to 7 is a description of the material exchanged which clearly is the most heinous and serious nature involving outrageous and debauched CAM material involving children ranging from babies through to 14 or 15-year-olds. There is a concentration of pre-pubescent children, and in particular toddlers, and, as I have said, some babies.
11This CAM material can only be classified as profoundly depraved, obnoxious and demeaning.
Charge 2: Transmit child abuse material via a carriage service.
12Charge 2 is tame by comparison to Charge 1, it involves five sexualised messages which take place on a single day, being 21 April 2022.
13In exchanges with an unidentified person called 'Jemma', which the prosecution stated is presumed to be an adult - I am not sure where that presumption comes from, but I accept it for the purposes of description. Clearly, Mr Prasad is indulging in fantasy as the recipient notes herself. All messages took place on one day and the prosecution accept that such should be seen at a low order of seriousness. (See Exhibit B, paragraph 15).
Charge 3: Using a carriage service to make available child abuse material.
14Charge 3 involves what is accepted as 128 files, 84 unique, of child abuse material which Mr Prasad exchanged with an unknown user. There is no further precise description of these files, although clearly referred to in Annexure B, being a further affidavit of Detective McDonald. Again, such exchange takes place on the one day.
Charge 4: Using a carriage service to procure a person believed to be under 16 years of age.
15Charge 4 is an offence under 474.26(1) of procuring a person under 16 over a period of four months and 10 days by way of the use of a carriage service. This involved a discussion with a person called 'Lucy' purported to be a 14-year-old girl, but in fact an undercover police agent.
16The chats are detailed in Exhibit A at paragraphs 27 and 28 and essentially involve Mr Prasad talking to a person he believes to be under 16 in a very sexualised manner with the apparent intent of meeting up with her, although such plan never eventuated.
17Mr Prasad transmitted three CAM images during such conversations. The conversations occurred from 29 June 2023 to 8 November 2023 with Mr Prasad believing the girl was in fact aged 14.
Charge 5: Possess or control child abuse material obtained or accessed using a carriage service.
18Charge 5 is an offence under 474.22A(1) which is essentially described in Annexure B, a further statement of Detective Daniel McDonald which describes the materials found the day the warrant was executed on 9 November 2023.
19The total of the material as detailed by the officer is 222 duplicate and
139 unique CAM files. (See paragraph 25 of the annexure with a representative content report set out in paragraphs 32 to 35 of the annexure). The prosecution submits this is mid-range offending when regard is held to context, nature and volume of the material.20As I have said during the plea, it is difficult given the categorisation methodology used in the case by the authorities to precisely determine the types of activity, albeit all accepted as CAM. Classification as explained to the Court is not as detailed as the ANVIL or COPINE system adopted in Victoria. I am told it accords with the universal ACACS system, used throughout the world which classifies CAM material as including all such material relating to persons under the age of 18.
21Category 1 of that system relates to pre-pubescent children under the age of 13, whether they are involved in or witness a sex act, and/or whether the material is focused or concentrated on the anal or genital region of the child. (See paragraph 30 of the opening). Category 2 includes all material which does not fit in regard to Category 1 including animation.
22Paragraph 2 of the opening describes the s16BA offences to be taken into account, firstly, in regard to Offence 1, so identified as relevant to the sentence of Charge 1, and secondly, in regard to Offence 2 as relevant to the sentence of Charge 4.
23As a result of s19(5) of the Crimes Act, full cumulation is required subject to judicial determination.
24The requirement under the SORA provisions is reporting for life.
Gravity
25I come then to consider the gravity of the crimes.
26I refer to Crowder (a pseudonym) v The King [2024] VSCA 211. I note in particular the comments of the Court as to inherent gravity of this type of material. (See paragraph 83). And as I have already indicated, in regard to, in particular, Charges 1 and 3, the material involved is profoundly depraved.
27As to Charge 1, as already indicated, the period involved was 17 months. The defence accept the prosecution analysis as to the seriousness of this offending due to the profoundly depraved material, length of time in which such material was transmitted and of course the inherent seriousness brought about by the maximum sentence provided.
28Clearly, in charges of this type, the nature and content of such material is of particular importance to the Court when considering a sentence, albeit a secondary consideration. The numbers involved are taken into account. The breach in this instance was not isolated, as I have already said, and was concerning in the sense of the images which involved particularly young children. The first s16BA offence is also relevant to this charge.
29Charge 2, as I think I have already said, was tame by comparison. It is clearly less serious than Charge 1 and both parties remarked on the fact that it is a one-day only offence and does not involve real children.
30Charge 3. Again, this is a single day offence only, however, as indicated in the analysis provided by Detective McDonald in Exhibit B, and the numbers, (see paragraph 25) again concern profoundly depraved material. Because of the type of classification program chosen, I am not able to be precise as to the content involved in that charge.
31Charge 4. The prosecution submits that in regard to the procurement charge, in all the circumstances it should be seen as mid-range gravity. As I understand the position the defence do not dispute this, albeit the contact with the undercover agent involved in the attempted procuration went on for four months and 10 days. It seems to me that I should accept the classification of mid-range gravity put by the prosecution. In this regard I take into account the second offence under s16BA.
32Charge 5. As I have detailed, this is analysed by Detective McDonald as set out in Annexure B and details a wide range of offending, specifically encompassing the material set out in Charges 1 and 3 hereof.
33The prosecution submitted that given the totality of offending this is not a case whereby the Court should consider as appropriate a recognisance release order under s21(b). The prosecution submitted that imprisonment should be imposed by way of head sentence with parole and that the Court is required to take into account the principles set out Part 1B, and specifically 16A of the Crimes Act.
34The defence had no issue with the requirement for imprisonment, the issue essentially for the Court was whether, in the totality of the circumstances, a sentence which allowed for a recognisance release was appropriate.
35The prosecution submitted as relevant the age of Mr Prasad, the need for specific deterrence and the protection of the community. In particular, I was asked to take into account by the prosecution, as I do insofar as Charges 1 and 3 are concerned, the factors set out in Exhibit B, paragraph 5 (a) to (o), and insofar as Charge 4 is concerned the factors set out at paragraph 6 (a) to (d).
Defence
36The defence submitted that I should take into account pursuant to s16BA the offences therein detailed in regard to Charges 1 and 4. The defence submitted that given totality, cumulation should be applied, albeit the requirements of s19(5).
37Mr Brown stressed the fact that his client had no priors. In this regard it has always been my practice to take into account the principles detailed in The Queen v Okutgen (1982) 8 A Crim R 262, in particular at paragraphs 265 to 266, which was the determination of Starke J with whom Crockett and O'Bryan agreed. I accept that, albeit we are dealing with charges which involve the need for a concentration on general deterrence, it is appropriate when a man of Mr Prasad's age comes before the Court for his counsel to point to his prior good character and rely strongly on such.
38Insofar as this type of offence was concerned, this matter was considered in DPP v Garside [2016] 50 VR 800, and I refer in particular to the statements of Priest AJ at paragraphs 92 to 94.
39I do take into account the prior good character and the fact that Mr Prasad has reached 65 years without any prior convictions.
40The defence also submitted that the plea of guilty made at the earliest opportunity is both utilitarian and is combined with willing facilitation of the police investigation and co-operation. I accept that the early plea in this case, based upon all the material as I understand it, is an indication of genuine remorse.
41As to rehabilitation, I take into account the personal circumstances detailed by Mr Brown in Exhibit 2, paragraphs 6 to 7, and the submissions as to rehabilitation at paragraphs 17 to 24. I also take into account particularly s16A(2AAA). In this regard I took into account the opinion of Dr Barth, psychologist, as set out in his report, Exhibit 3. Clearly, as detailed in p7, there is a continued lack of insight by Mr Prasad, in particular by his statement that his sexual preference is to adult women. The facts of these offences indicate otherwise.
42Dr Barth points out at p10 of his report the significant issues that Mr Prasad has and it is clear that he needs treatment in this regard. As Dr Barth said: 'It is encouraging that Mr Prasad has indicated that he will accept such treatment.'
43Given the sentence I will pronounce, and the matters set out in 16A(2AAA), the authorities should seek to ensure that Mr Prasad while incarcerated receives the treatment set out in Dr Barth's report. In that regard such report will be forwarded to the authorities with the details of this sentence.
44In regard to sentencing, I have taken into account the relevant cases tendered by each party. In accordance with the principles detailed in DPP v Dalgleish(a pseudonym) [2017]262 CLR 428 at paragraphs 64 to 66, Mr Prasad is entitled to individualised justice and the imposition of a just sentence based upon the facts of this case.
45Mr Prasad, in regard to your offending you will be convicted of the five charges in the indictment. I indicate to you that in sentencing for Charges 1 and 4, I have taken into account the offences detailed in the s16BA notice which is Exhibit D.
46On Charge 1 you will be sentenced to imprisonment of three years.
47On Charge 2 you will be sentenced to imprisonment of 12 months.
48On Charge 3 you will be sentenced to imprisonment for two years.
49On Charge 4 you will be sentenced to imprisonment for two years.
50And on Charge 5 you will be sentenced to imprisonment for two years.
51I order that the base sentence be Charge 1 and that three months of the sentence on each of Charges 2 and 3 be served cumulatively upon Charge 1 and each other. And further, that six months of the sentence on each of Charges 4 and 5 be served cumulatively upon the sentences imposed on Charges 1,2 and 3 and each other, making a total effective sentence of four and a half years.
52Being a Commonwealth matter this will be achieved as follows:
53The sentence in regard to Charge 1 shall begin immediately.
54The sentence in regard to Charge 2 is to begin on 15 July 2027.
55In regard to Charge 3, on 15 October 2027.
56In regard to Charge 4, on 15 April 2027.
57And in regard to Charge 5, on 15 October 2027.
58I order that you be eligible for parole after the service of two years' gaol. Implicit in that is that I have rejected the proposition put to me that a recognisance release order would be appropriate on the totality of the matters before me in this case.
59I declare that of the sentence you have already served on remand, a period of 29 days, which has been agreed by both counsel today, be declared as service of this sentence.
60As to s6AAA of the Victorian Sentencing Act the factors relevant to your sentence are multi-factorial. However, doing the best as I can to take into account such provision, I indicate to you that had you not pleaded guilty, the sentence that I would have imposed upon you would have been a six year sentence with a minimum period to serve before being eligible for parole of four years, rather than the sentence I have imposed today.
61I make such declaration on the assumption that it applies to Commonwealth matters.
62I indicate pursuant to the requirements of s19(6) that as to the principle of totality I take into account the words of Brennan J in the High Court in R H Mackell v The Queen 2000 CLR 452 at 476 to 477, in particular paragraphs 75 to 76. I am aware from State sentencing experience as to standard sentences of the tension between provisions such as this and the principle of totality. (See the words of Redlich AJ in Gordon v The Queen [2013] VSCA 343, in particular at paragraph 74).
63I indicate that the determination not to fully cumulate the sentences in this matter was based upon the principles of totality, parsimony, all of the circumstances which are put to me and the principles set out in s16A of the Act.
64Mr Prasad, sentencing in Commonwealth matters is particularly difficult because of the complicated nature of Commonwealth sentencing, and indeed the complicated nature of the Commonwealth Acts relevant to criminal matters.
65However, in plain language for you, the sentence that I have prescribed for you is one for all of your charges and the 16BA matters, a sentence of four and a half years with a minimum period to serve of two years, of which you have already served by way of pre-sentence detention 29 days.
66Mr Kerlin, do you want to work out the maths on this or ‑ ‑ ‑
67MR KERLIN: Yes, Your Honour, if we could briefly stand down and we're going to double-check those dates, that would be appreciated.
68HIS HONOUR: Mr Prasad, again, one of the complications with the Commonwealth Act is the particular manner in which sentencing must be pronounced. We need to check that. I did offer Mr Brown the opportunity to talk to you after these proceedings, however, he tells me that you've already arranged a conference for today. I will stand down while those dates are checked.
69MR KERLIN: As Your Honour pleases.
(Short adjournment.)
70MR KERLIN: I apologise for (indistinct). It is unfortunately a technical exercise ‑ ‑ ‑
71HIS HONOUR: Exactly, so let's do it.
72MR KERLIN: We're doing our best.
73HIS HONOUR: Okay, so let's do it. You'd have to do the chart, right.
74MR KERLIN: Yes, that's right, Your Honour.
75HIS HONOUR: So Charge 1 starts immediately and goes for three years ‑ ‑ ‑
76MR KERLIN: Yes.
77HIS HONOUR: So what is the date today - 15/04/25, Charge 1. It takes us to 15th - sorry, 14/04/28.
78MR KERLIN: Yes.
79HIS HONOUR: Now, Charge 2, a sentence of imprisonment, Charge 2 is 12 months. The sentence in regard to two begins 15/07/25 ‑ ‑ ‑
80MR BROWN: Twenty-seven.
81HIS HONOUR: Twenty-seven, sorry, 27. That's 12 months, that's the extra three months added to 14/04/28, right.
82MR KERLIN: Yes, Your Honour.
83HIS HONOUR: So 14/08/28 ‑ ‑ ‑
84MR BROWN: I agree with that, Your Honour.
85HIS HONOUR: Charge 2. Then Charge 3 is two years and Charge 3 is starting on 15/10/27, therefore Charge 3 - two years from that is 15/10/29.
86MR BROWN: So by my calculations, Your Honour, that would add 15 months' cumulation.
87HIS HONOUR: That sounds like a mistake. See it's only supposed to be three months, so Charge 3 - sorry, let me go back. Charge 1, and three months of the sentences on Charge 2, three months, and three be served cumulatively upon each other. And so if that starts three months later and it's a sentence of two years, it ends in 29.
88MR BROWN: So if that sentence ‑ ‑ ‑
89HIS HONOUR: No, no, sorry, not 27. If it starts - no, I think it should be 26.
90MR BROWN: Yes, Your Honour, if that sentence starts one year earlier ‑ ‑ ‑
91HIS HONOUR: Then it ends in 28 and that's three months.
92MR BROWN: Yes, Your Honour.
93HIS HONOUR: Right. So that is a mistake, I apologise. So it's not 27, it's 26. So, that's the three months, three months, right, and you go out to 15/10/28.
94MR BROWN: Yes, Your Honour.
95HIS HONOUR: Then Charge 4 is to start on - Charge 4, let me get this right. He will be sentenced to imprisonment for two years - and it's six months, so Charge 4 is to start on 15/04/27 and it's to add six months, so that - Charge 4 is for two years, so two years is six months, and two years is 15/04/29. That's six months from 10/28.
96MR BROWN: Yes, I agree with that, Your Honour.
97HIS HONOUR: And then five starts 15/10/27, and again is six months, and that then takes us to - Charge 5 is two years, that takes us to 15/10/29, which is another six months.
98MR BROWN: I agree with that.
99HIS HONOUR: It's probably a typo, I think. But there we are, it's wrong, so I do apologise. The sentence in regard to Charge 3 needs to be altered from what I read out, 15/10/27 to 15/10/26.
100MR BROWN: Yes, Your Honour.
101HIS HONOUR: And that then means that the total effective sentence from 15/04/25 to 15/10/29 is four and a half years.
102MR BROWN: Yes, Your Honour.
103MR KERLIN: Yes, Your Honour.
104HIS HONOUR: And on that is two years minimum.
105MR BROWN: Yes.
106MR KERLIN: Yes, Your Honour.
107HIS HONOUR: Not easy unless you do it that way. I do apologise. I think what's happened is it must be a typo, and I didn't pick it, I'm sorry. Because everything else works out except for that one.
108MR KERLIN: Yes, thank you, Your Honour.
109HIS HONOUR: Mr Prasad, I'm sorry about the delay, but as I said to you, these things have to be right. The authorities didn't quite bring in the SORA material while we've been waiting, did they? No, okay.
110Mr Brown, I assume between now and when you talk to your client he will get the SORA material. Mr Prasad, when you get this material it's important to read it and then sign it, because it'll have to come back to the Court, but if there's any issues about it you can talk to Mr Brown this afternoon.
111ACCUSED: Yes, Your Honour.
112HIS HONOUR: Is everything okay apart from that.
113MR BROWN: Yes, Your Honour.
114MR KERLIN: Yes.
115HIS HONOUR: Thank you both for your assistance. Good luck Mr Prasad.
116ACCUSED: Thank you.
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