CDirector of Public Prosecutions v Radford
[2023] VCC 1907
•20 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00963
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY RADFORD |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2023 & 22 August 2023 | |
DATE OF SENTENCE: | 20 October 2023 | |
CASE MAY BE CITED AS: | CDPP v Radford | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1907 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Child abuse material – Grooming – Fail to comply with reporting obligations – Guilty plea – Exposure to childhood abuse material during childhood – Relevant priors – Mandatory minimum sentence scheme – ‘Least serious category of offending’ – Verdins principles – Paucity of comparative sentences
Legislation Cited: Criminal CodeAct 1995 (Cth); Sex Offenders Registration Act 2004 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:R v De Leeuw [2015] NSWCCA 183; Rampley v R [2010] NSWCCA 293; Meadows v R [2017] VSCA 290; Director of Public Prosecutions (Vic) v SM [2019] VSC 46; DPP v Beck [2021] VSCA 88; Worboyes v The Queen [2021] VSCA 169; R v Gajjar (2008) 192 A Crim R 76; Assheton v The Queen (2002) 132 A Crim R 237; Heathcote (a pseudonym) v The Queen [2014] VSCA 37; Mills v R [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; DPP v SJK [2002] VSCA 131; Verdins v R (2007) 16 VR 269; Romero v The Queen [2011] VSCA 258; Charles v R [2011] VSCA 399; Brown v The Queen (2020) 62 VR 491; R v AWF [2000] VSCA 172; Beevers v R [2016] VSCA 271; R v Smith [2010] QCA 220; The Queen v Pham (2015) 256 CLR 550; R v Delzotto [2022] NSWCCA 117; Hurt v R [2022] ACTCA 49; R v Glasheen [2022] NSWCCA 191; R v Stiller [2023] QCA 51; Bahar v The Queen [2011] WASCA 249; Markarain v The Queen (2005) 228 CLR 357; R v Hurt (No 2) [2021] ACTSC 241; Hurt v The King; Delzotto v The King [2023] HCATrans 52; Rosales (a pseudonym) v R [2018] VSCA 130; MEG v R [2017] WASCA 161; Phibbs v The King [2023] VSCA 123; R v Jousif [2017] NSWSC 1299; Hili v The Queen (2010) 242 CLR 242; Cooper v The Queen [2012] VSCA 32; R v Ralston [2010] ACTCA 47; Allison (a pseudonym) v The Queen [2021] VSCA 308
Sentence: 4 years’ and 10 months’ imprisonment – Non-parole period of 2 years and 5 months – s 6AAA declaration – 6 years and 9 months with a non-parole period of 3 years and 10 months
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K. Breckweg & Ms C. Foot | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K. Mildenhall | Greg Thomas Barrister and Solicitor |
HIS HONOUR:
1Cody Radford, you were arraigned on 20 April 2023 and pleaded guilty to the following offences:
(a) Use carriage service to solicit child abuse material, contrary to sub-section 474.22(1) of the Criminal Code Act 1995 (Cth);[1]
(b) Use carriage service to transmit child abuse material, contrary to sub-section 474.22(1) of the Criminal Code Act 1995 (Cth);[2]
(c) Use carriage service to groom a person believed to be under 16 years of age, contrary to subsection 474.27(1) of the Criminal Code Act 1995 (Cth);[3]
(d) Possess or control child abuse material obtained or accessed using a carriage service, contrary to sub-section 474.22A(1) of the Criminal CodeAct 1995 (Cth) (Criminal Code);[4] and
(e) Fail to comply with reporting obligations, contrary to subsection 46(1A) of the Sex Offenders Registration Act 2004 (Vic) (SORA).[5]
[1] This offence carries a maximum penalty of 15 years’ imprisonment.
[2] This offence carries a maximum penalty of 15 years’ imprisonment.
[3] This offence carries a maximum penalty of 15 years’ imprisonment.
[4] This offence carries a maximum penalty of 15 years’ imprisonment.
[5] This offence carries a maximum penalty of 5 years’ imprisonment.
2The conduct giving rise to these charges occurred between 23 December 2021 and 12 January 2022.
3You are to be sentenced on the factual basis set out in the Summary of Prosecution Opening for Plea dated 11 October 2022,[6] which I note is an agreed document.
[6] Exhibit P1.
The Offending
4Your offending was uncovered when police officers from the Joint Anti Child Exploitation Team executed a search warrant at your home on 12 January 2022.
5Police located a Samsung mobile phone and a Lenovo laptop, both of which were seized after onsite preliminary analysis.
6The following summary is based on the results of an examination of your devices by authorities.
Charge 1 – Use carriage service to solicit child abuse material
7On 23 December 2021, you solicited child abuse material (‘CAM’) from 2 different ‘Kik’ users: ‘Matt Pearson’ and ‘Jake M’.
8Using the ‘Kik’ application, you communicated with user ‘Matt Pearson’. On that date, ‘Matt Pearson’ sent a CAM file to you. The following conversation then took place:
You: How old there
Matt Pearson: 18-3
You: Oh he’s 15 now?
Matt Pearson: Yes
9In the course of the same conversation you later asked, ‘You got any more of the 15yo?’.
10Again, using the ‘Kik’ application, you communicated with user ‘Jake M’. On the same date, after you discussed your shared interest in pre-pubescent boys, you asked, ‘Any boys you can share? Or girls’. You went on to say that you have ‘about 500’ CAM videos.
Charge 2 – Use carriage service to transmit child abuse material
11Between 23 December and 28 December 2021, you transmitted a total of 4 CAM image files and 22 CAM video files to ‘Kik’ users. The offending can be broken down with respect to each user.
12Using the ‘Kik’ application, you communicated with user ‘Daddypuff Willis’. On 23 December 2021, you transmitted 20 videos categorized as CAM to ‘Daddypuff Willis’. The material included depictions of pre-pubescent boys performing oral sex on adult males, toddlers and pre-pubescent boys being sexually penetrated by adult males and pre-pubescent boys engaging in group sex acts and solo sex acts.
13Using the ‘Kik’ application, you communicated with user ‘Matt Pearson’. On 23 December 2021, you transmitted 4 images and 1 video categorized as CAM to ‘Matt Pearson’. The material included depictions of a 13-year-old boy standing in sexualized poses with a particular focus on his genitals and anus, and a video of three 15-year-old boys.
14Using the ‘Kik’ application, you communicated with user ‘Dreadful Apples’. On 28 December 2021 you transmitted 1 video categorized as CAM to ‘Dreadful Apples’. The video depicted a 14-year-old boy masturbating.
Charge 3 – Use carriage service to groom a person believed to be under 16 years of age
15Between 30 December 2021 and 5 January 2022, you communicated with an online covert operative purporting to be a 15-year-old female named ‘Charli’ using the ‘Discord’ application. You were aware of ‘Charli’s’ purported age at the outset of the conversation, and this is evident from several of the messages you sent, including:
You: Ohhh I checked your intro you’re 15. I’m 23.
You: You’re 15 haha. I’m young but 9 years older haha.
You: When are you 16?
16You began conversing with ‘Charli’ by sending compliments and making repeated requests for physical intimacy:
You: Come cuddle
You: You’re cute
You: Wanna cuddle haha
You: But yeah I’d cuddle you x
You: [after learning when ‘Charli’ will turn 16] Damn so I gotta wait 4 months until I could date you
17Your messages then progressed to discussions about you kissing ‘Charli’:
You: Kiss me and I’ll show you?
Charli: I’ve never kissed a guy before
You: Would you like to?
Charli: I don’t know how
You: Want me to teach you?
18The conversation between you and ‘Charli’ then moved to the ‘Snapchat’ application, continued there, and gradually the messages you sent ‘Charli’ had an increasingly sexualised complexion. The messages you sent during this period include:
You: Would you make out with me?
You: What happens if I get hard… would you try sucking it?
You: Do you wanna see it
You: You can see it in person. I don’t wanna risk sending it here and you going to the police.
You: If I send dick will you send pussy
You: [You transmitted an image of your erect penis with a text caption] Would you ride me
You: You’re 15 I should know better
You: Don’t wanna see my dick then?
You: Wanna swap later?
Charli: swap what?
You: Nudes
You: We [sic] hoping you could come to my place soon
You: I wanna do that stuff we discussed
You: You’re cute
You: You are really really cute
You: I’m still keen for sex and oral if you want. Not yet tho I wanna wait till its actually legal. Unless you’re keen beforehand. Up to you.
You: Come cuddle some time in the next week?
You: Wanna come over this weekend?
You: [You transmitted an image of your erect penis with a text caption] Come suck me?
You: [You transmitted an image of your erect penis with a text caption] Show me your pussy plz
You: Wanna come to mine today?
Charge 4 – Possess or control child abuse material obtained or accessed using a carriage service
19As noted earlier, police analysed the contents of the seized Samsung mobile phone and Lenovo Laptop and classified relevant items as child abuse material.
20On the two seized devices, Police located a total of 2,542 CAM files. The contents were described in detail in the Opening. While I have taken into account the description of the CAM in assessing the objective seriousness of your offending, I have chosen not to include detailed descriptions of the CAM in my reasons for sentence. To do so would unnecessarily compound the harm to the children involved.
21The files identified by police included material such as:
(a) A computer-generated image of a naked adult male holding an infant girl upside down in a sexualised pose;
(b) A cartoon image of a female toddler in a sexual pose;
(c) A video depicting an adolescent male approximately 15 years old sexually engaging with another adolescent male approximately 14 years old;
(d) A video depicting a male aged approximately 13 to 14 years old in a sexual pose; and
(e) A video depicting an adolescent female approximately 13 to 14 years old lying on a bed engaged in sexual activity with an adult male.
22For reasons explained earlier, these somewhat anodyne descriptions do not capture the depravity of the CAM found on your devices.
Charge 5 – Fail to comply with reporting obligations
23As a consequence of convictions in Queensland that I will return to later in these reasons, you are subject to reporting obligations in Victoria pursuant to the SORA.
24These obligations require you to report any internet user names within 7 days. You acknowledged your understanding of your obligations at annual interviews, but failed to report your Discord username ‘Axolotl#6969’ or your Snapchat username ‘Pkthunder007’. You did not provide a reasonable excuse for failing to report this information.
Record of Interview and Arrest
25On the same day your home was searched, you participated in a record of interview during which you made a number of admissions:
(a) You were the owner of the social media accounts used in the offending;
(b) You were the only person who used the mobile phone on which the CAM was located;
(c) The phone number used by your mobile phone is linked to your social media accounts; and
(d) You were aware of your reporting obligations under the SORA.
26You were then arrested and charged.
Commonwealth Sentencing
27Charges 1 to 4 are ‘federal offences’. Section 16A(1) of the Crimes Act 1914 (Cth) (the Act) provides that, in determining the sentence to be passed in such a case, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. In addition to any other matters, the Court must take into account such of the matters listed in s 16A(2) as are relevant and known to the Court, including, but not limited to:
(a) The nature and circumstances of the offence;
(f) The degree to which the person has shown contrition for the offence;
(g) If the person has pleaded guilty to the charge;
(h) Co-operation with law enforcement agencies in the investigation of the offence;
(j) Specific deterrence;
(ja) General deterrence;
(k) Adequate punishment;
(m) The character of the offender, including their mental and physical condition; and
(n) The offender’s prospects of rehabilitation
28Sub-section 16A(2AAA) of the Act provides an additional obligation on a Court sentencing an offender for a ‘Commonwealth child sex offence’[7] to have regard to the objective of rehabilitating the person, including by considering:
(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.
[7] In this instance, charges 1 – 4 on the indictment – see Crimes Act 1914 (Cth), s 3.
29I will address each of the relevant paragraphs in s 16A(2) in turn.
Nature and circumstances of the offending – s 16(A)(2)(a)
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).[8]
[8] See Troy Anderson, Commonwealth Criminal Law, (The Federation Press, 3rd ed, 2022) [9.6.7].
31Child abuse and grooming offences are, obviously enough, extremely serious offences as reflected by the maximum penalty of 15 years’ imprisonment on each of these charges.
32With respect to charges 1, 2, and 4, the New South Wales Court of Criminal Appeal, in the oft-cited case of R v De Leeuw,[9] summarised the factors that appellate courts throughout Australia have consistently applied in determining the objective gravity of child abuse material offences:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(vi) the length of time for which the pornographic material was possessed.
[9] [2015] NSWCCA 183, [72].
33With respect to charge 1, you sought out like-minded internet users from whom to solicit CAM. I accept the submission of Ms Breckweg for the prosecution that this is a relatively low level example of the offence as it was confined to a single day and two conversations.
34Turning to charge 2, this is clearly more serious offending as you were actively transmitting CAM to others thereby creating a market for this abhorrent material. The images and videos you exchanged with the three internet users are shocking, depicting as they do toddlers, pre-pubescent boys, and adolescent girls engaged in penetrative sexual acts with adult males and other children.
35You transmitted 4 CAM image files and 22 CAM video files to three different users. However, I note that there is no suggestion that you stood to profit from the offences or that your offending conduct was for the purpose of sale or further distribution.
36This is more serious than charge 1 but is still lower level offending relative to much of what the courts see.
37Turning to charge 4, there were a total of 2,542 CAM files located on the two devices seized from your home. Whilst the quantum is far from the largest that comes before the Court, it is significant. 122 of the files located were categorised as category 1, and the remaining 2,420 files, category 2.
38Category 1 material depicts a real prepubescent child perceived to be under 13 years of age involved in a sex act; witnessing a sex act; or a depiction that is focussed or concentrated on the anal and/or genital region of the child.
39Category 2 material refers to other material which is considered to be child abuse material as defined in s 473.1 of the Criminal Code 1995 (Cth) that does not fit within Category 1.
40As I have discussed, the material in the files is abhorrent, depicting children as young as toddlers in vile and degrading circumstances. I do accept that some of the images portrayed animated depictions of CAM, and accordingly, to that extent there were no real children harmed. However, such images may have the normative effect of desensitising those involved so as to make it more likely that they will view child abuse material.
41This is clearly a quite serious example of this offence. I assess it as low to mid-range.
42In assessing the objective gravity of your conduct in relation to charge 3, your counsel submitted that the following circumstances are relevant:
(a) no inducement was offered to take part in the activity;
(b) your offers to ‘Charli’ were general in nature and no specific directions or instructions were made as to time or place; and
(c) you did not disguise your identity or age.[10]
[10] Outline of Defence Submissions on Plea dated 14 April 2023, 7.
43Whilst I accept this submission as reducing the objective gravity of your offending to some degree, it must be counterbalanced against a number of objectively serious aspects of your offending.
44These include that you were aware of ‘Charli’s’ purported age at the outset of the conversation. Despite this knowledge, you embarked on an escalating course of solicitation between 30 December 2021 and 5 January 2022, culminating in sending two pictures of your erect penis, inviting ‘Charli’ to engage in sexual activity and requesting that she send back a photograph of her genitalia. In addition, you invited ‘Charli’ to ‘come over this weekend’ and ‘today’. You made no actual arrangements to meet.
45That ‘Charli’ was in truth an undercover police officer does not reduce your culpability. It is your belief that the person to whom you were speaking was under the age of 16 that is central to your culpability. The legislature provides for the offence to be committed in this manner in order to enhance the prospects of detection of offenders ‘and accordingly deter offenders and minimise the use of the internet for the sexual corruption of children’.[11]
[11] See Rampley v R [2010] NSWCCA 293, [37].
46Furthermore, the pattern of sexualised parlance that you deployed in your conversations with ‘Charli’ resembles what the Court of Appeal described in Meadows v R:
… the objective of procuring the victim’s participation in sexual activity is advanced by the use of explicit images and/or language. This is evidently done in order to introduce the victim to what the offender has in mind and to test whether the images or description provoke any adverse reaction[12]
[12] [2017] VSCA 290, [45].
47While the age gap between yourself and the fifteen year old girl to whom you thought you were communicating was significant it is certainly not as great as is seen in a number of the cases. The fact that you made no specific arrangements to meet also lessens the seriousness of your offending.
48Considering all of these factors, I am of the view that your offending in relation to charge 3 is also a low to moderate example of the offence.
49Finally, in relation to charge 5, you were aware of your reporting obligations and in spite of this, elected not to disclose two distinct internet user names used by you. Your offending undermines the very important protective functions of the reporting system[13] and militates against your understanding or concern for the harm registerable offending causes.[14]
Contrition, guilty plea, and co-operation with law enforcement authorities – ss 16A(2)(f), (g), & (h)
[13] Director of Public Prosecutions (Vic) v SM [2019] VSC 466, [22].
[14] DPP v Beck [2021] VSCA 88, [54].
50As evidence of your contrition, a letter penned by you was tendered at the plea.[15] In the letter, you describe the remorse you feel for your offending.[16] Importantly, your insight goes beyond the consequences of your actions to you and your loved ones. You speak of your time in custody, together with your new medication, as giving you ‘the capacity to finally think of children in a paternal way, as opposed to sexually’ and founding your understanding that ‘they are just innocent and need to be protected’.[17] I accept that you express a degree of contrition for your offending.
[15] Letter from Cody Radford dated 7 October 2022 (Exhibit D2).
[16] An assessment confirmed by psychologist, Ms Gina Cidoni, in her report to the Court (Exhibit D1, [99]).
[17] Exhibit D2, 1.
51The prosecution accepts that you indicated your intention to plead guilty at the ‘first reasonable opportunity’.[18] This is to your credit. In so doing, you have saved the time and resources of the prosecuting authorities and this Court and have spared witnesses the need to give evidence. As the Court of Appeal has explained, an offender who pleads guilty at present is entitled to an additional discount on sentence given the lengthy delays in the justice system that continue as a result of the pandemic.[19]
[18] Amended Outline of Crown Sentencing Submissions dated 11 April 2023, [42].
[19] Worboyes v The Queen [2021] VSCA 169.
52Your counsel submits that you co-operated with the police by:
(a) providing access to your passwords;
(b) admitting you were the owner and sole user of the devices and accounts;
(c) providing information and details of those who had transmitted CAM to you; and
(d) offering to provide further information to police.[20]
[20] Record of Interview, Q&A 1077-1088.
53I accept that you have provided considerable assistance to the authorities above and beyond your guilty plea. I will return to consider the implications of this for your sentence later in these reasons.
Specific & general deterrence – s 16A(2)(j), (ja), & (k)
54As the authorities make clear, general deterrence is the paramount factor in sentencing for CAM offences owing to the paramount public interest in promoting the protection of children.[21] As a corollary, factors subjective to the offender such as character, age, and prospects of rehabilitation must be given less weight than they might otherwise be accorded.[22]
[21] R v Gajjar (2008) 192 A Crim R 76, [27]; Assheton v The Queen (2002) 132 A Crim R 237, [35].
[22] Heathcote (a pseudonym) v The Queen [2014] VSCA 37, [35].
55Specific deterrence also assumes significant weight in your case. That is for the reasons the prosecution submit, being:
(a) your prior punishment for offending against children failed to deter you from re-offending;
(b) you offended whilst registered as a child sexual offender;
(c) you have demonstrated a sexual interest in children;
(d) you were aware of the wrongfulness of the conduct.[23]
[23] Amended Outline of Crown Sentencing Submissions dated 11 April 2023, [39].
56While your counsel accepts that specific deterrence is, in principle, a weighty consideration in your case, she also submits that the evidence of Ms Cidoni moderates these sentencing purposes in the application of the Verdins principles.[24] I will return to this submission later in these reasons.
[24] Outline of Defence Submissions on Plea dated 14 April 2023, [48].
57I am also required to ensure that you are adequately punished for the offences you have committed and the prosecution submit that this consideration should inform any orders for cumulation of the individual sentences.[25]
[25] Amended Outline of Crown Submissions on Plea dated 11 April 2023, [40].
Character, antecedents, age, means and physical or mental condition of the offender – s 16A(2)(m)
Personal Circumstances
58You were born in February 1998 and at the time of the offending you were 23 years old. You are now 25 years old.
59You were the first child of Vivian McKenzie, aged 18 years when she gave birth to you in Canberra. Your father, Jason Radford, was approximately 15 years older than your mother and had been to prison for child sexual offences. The relationship broke down very shortly after your birth. Ms McKenzie spent the following years moving often and having a private number due to her fear of your father.
60You had two half siblings and attended several primary schools as your family moved house. Your family moved to Sydney and your mother re-partnered several times. You attended grades 4 and 5 at St Matthews Primary school in Sydney. You witnessed and were subjected to violence by your mother’s partners.
61Due to behavioural issues, you were sent to live with your grandmother in Melbourne and attended Yarra Primary School for grade 6. You had limited contact with your mother who had two further children in approximately 2012 and 2014.
62You attended Footscray City Secondary College from Years 7 to 9. When in Year 7, you were contacted online via Facebook by your father. Your father told you not to tell anyone that the two of you were communicating. Over time your father sent you sexualised images and child pornography and encouraged you to exchange sexual images with him. You would talk on the phone and via text messages. Your father encouraged sexualised conversations and the normalisation of sex with children. He advised you how to access and locate CAM. You became aware that your father had been in prison and lived in Wollongong.
63You attended Lionel Hall Community School due to your ongoing behavioural problems for six months in year 10 before transferring to Swinburne Senior Secondary College halfway through the year.
64At age 16 police attended at your house due to concerns about the material you were consuming online. Police issued you with a warning. You then saw a counsellor for a short period but had ongoing behavioural difficulties with your grandmother before she asked you to leave the house. At this time, you had no friends and limited family connections. You continued to speak with your father for a period before he was again incarcerated.
65You moved into a rental house in Ripponlea and lived on Centrelink benefits. You met friends through the social media application ‘Grindr’. On one occasion you went to a house party where you were given the drugs GHB and ice and reported to Ms Cidoni that you were raped. You took yourself to the Alfred hospital and remained there for 3 days due to a reported heart attack.
66You commenced VCE Year 11 at the RMIT and were then offered a position in an advanced diploma for professional writing and editing for business. You enjoyed this and completed one year of the two year course. During this time, you had various relationships, all with men whom you met online. You lived in various share houses and worked at McDonalds or were reliant on Centrelink.
Youth
67As I have noted, you were 23 years old at the time of the offending and are now 25 years old.
68Your counsel submits that your ‘youthfulness is a highly relevant factor in determining the appropriate sentence to impose’ and, as a corollary, that rehabilitation ought to be seen as a primary sentencing purpose in this case.[26]
[26] Outline of Defence Submissions on Plea dated 14 April 2022, [46].
69This submission reflects the law’s well-established recognition of an offender’s youth as a generally mitigatory force in sentencing.[27] However, this general principle has less weight in sentencing for offending where general deterrence is a primary sentencing factor, such as the present. As the Court of Appeal in Azzopardi v R observed:
…where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth[28]
[27] See, eg, Mills v R [1998] 4 VR 235.
[28] (2011) 35 VR 43, [44].
70Whilst your youth is of some relevance, I do not accept that yours is the type of offending where it can be said you have, whether because of your age or level of maturity, made an ill-considered or rash decision; where the offending resulted from a lack of critical insight or self-control; or where you have not fully appreciated the consequences flowing from it.[29] Indeed, you were aware of the purported age disparity between yourself and ‘Charli’ and went so far as to acknowledge the illegality of any sexual activity that the two of you might engage in.
Criminal Record
[29] DPP v SJK [2002] VSCA 131, [61]-[62].
71You have a relevant, but not extensive, criminal history.
72On 28 June 2018, you were convicted and sentenced to time served in the Brisbane District Court on 6 charges of indecent treatment of a child under 16 years, 2 charges under s 210(1)(e)[30] of the Criminal Code 1899 (Qld) and 4 charges under s 210(1)(a).[31]
[30] Without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter.
[31] Unlawfully and indecently deals with a child under the age of 16 years.
73As part of this sentencing exercise, I must briefly traverse the circumstances of this prior offending. In 2018, while living in Melbourne, you began talking online to a 13 year old in Brisbane. You developed a friendship over a few months. Over this time, you each exchanged nude images of yourselves.
74The child told you that he was depressed and having suicidal thoughts which led you to fly to Brisbane to see if you could help him. You found him and spent time with him. There was no sexual penetrative conduct. The child’s mother found him and contacted police.
75You were also convicted and fined in the Rockhampton Magistrates Court on 31 July 2019 for failing to comply with your reporting obligations.
76As the prosecution submits, these prior matters make it necessary that specific deterrence assume significant weight in determining your sentence. However, balanced against that I note that you were very young at the time of this offending. Sadly, there was little if any support available to you when you were released from custody in Queensland.
77I will return to the significance of this prior offending to your case later in these reasons.
Verdins Principles
78It is well established that an offender’s moral culpability, as distinct from their legal responsibility, may be diminished due to the effect of a mental disorder from which they suffer either at the time of their offending or at the time sentence is to be imposed. In R v Verdins, the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.[32]
[32] (2007) 16 VR 269, [32] (‘Verdins’).
79In such a situation, the condition will affect the punishment that is just in all the circumstances, and ‘denunciation is less likely to be a relevant sentencing objective’.[33] The impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender’s disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices, or to think clearly at the time of the offence’.[34]
[33] Verdins (2007) 16 VR 269, [32].
[34] Romero v The Queen [2011] VSCA 258, [13].
80The Verdins principles are and should be regarded as ‘exceptional’.[35] It is for the offender to establish on the balance of probabilities the facts that enliven the Verdins principles. This will normally be done by expert evidence which must be ‘rigorously scrutinised’ by the sentencing court.[36]
[35] Charles v R [2011] VSCA 399, [162].
[36] Brown v The Queen (2020) 62 VR 491, [6].
81A psychological report prepared by Ms Gina Cidoni, dated 10 October 2022, was tendered at your plea.[37] Ms Cidoni diagnosed you with Borderline Personality Disorder, Attention Deficit Hyperactivity Disorder, Generalised Anxiety Disorder, and Alcohol Use Disorder.[38]
[37] Exhibit D1.
[38] Exhibit D1, [90].
82With respect to your sexual deviance, Ms Cidoni opined that your ‘sexual abuse experiences by [your] father during childhood would have significantly influenced the development of deviant sexual preferences and unstable mental health’[39]. Compounding this were the social deficits you suffer from contributing to your negative interpersonal relationships, associations with negative peers, and your continued sexual abuse and unhealthy intimate relationships throughout development.[40]
[39] Exhibit D1, [94].
[40] Exhibit D1, [95].
83The hearing of the plea was adjourned at your counsel’s request to enable Ms Cidoni to provide a supplementary report addressing ‘whether there is any causal link between [your] condition and the offending behaviour’.[41]
[41] Supplementary Psychological Assessment Report prepared by Ms Gina Cidoni dated 10 July 2023 (Exhibit D5), [2].
84In her supplementary report, Ms Cidoni concludes that it is very likely that your BPD was present during your early years and subsequently influenced your behaviour and decision-making. Ms Cidoni describes the effect of your conditions on your mental capacity as ‘considerable’. She concludes:
At the time of the offending, his BPD had a profound impact on his ability to judge the appropriateness of his actions and make calm and rational choices. It is also probable that his BPD, combined with his other diagnoses, disinhibited him, obscuring his intent and contributing causally to the commission of the offence[42]
[42] Exhibit D5, [7].
85Finally, with respect to your experience of the custodial environment, Ms Cidoni opines that the onerousness of prison would be magnified for you:
Anxiety will be exacerbated, and he will be constantly triggered in this environment. Symptoms like his high impulsivity, low self-worth, lack of energy and motivation, and physiological symptoms, agitation, and avoidance and re-experiencing of a negative experience are already difficult to deal with and will intensify in prison where privacy is limited. Managing these symptoms would be challenging in this setting especially as his coping resources are very low. The expected outcome is continuing maladjustment and worsening of his mental health[43]
[43] Exhibit D1, [100]; see also Exhibit D5, [8]-[9].
86Your counsel argues that Ms Cidoni’s reports enliven principles 1 to 6 enunciated in Verdins.
87Your counsel submits that the question of whether your personality disorder engages any of the Verdins principles does not depend on the particular diagnostic label, but on what the expert evidence before the court shows about how the condition affected the offender’s mental functioning at the time, or how it will do so in the future.
88I am satisfied, based on this evidence, that limbs 1, 3 and 5 of Verdins are enlivened. I accept that your moral blameworthiness is reduced[44] as is the need for general deterrence in sentencing you. I have also taken into account the impact of the prison environment on you in determining the length of the sentence to impose.
[44] See also R v AWF [2000] VSCA 172 and Beevers v R [2016] VSCA 271.
Prospects of rehabilitation – s 16A(2)(n)
89As noted, matters personal to you including your prospects of rehabilitation must make way for the overwhelming force of general deterrence in cases such as yours. However, that is not to say that the steps you have taken towards rehabilitation should not be taken into account in determining the appropriate sentence.[45] In this vein, I have had regard to the programs you have completed during your time in custody, some of which include programs aimed at managing your mental health.[46]
[45] R v Smith [2010] QCA 220, [18].
[46] Record of Prisoner Programs Completed (Exhibit D3).
90Ms Cidoni assessed your future risk for sexual violence using the Sex Offender Risk Appraisal Guide as moderate.[47]
[47] Exhibit D1, [75].
91In addition, a character reference prepared by your long-term friend, Broedyn Humphris, was tendered at your plea.[48] Importantly, Mr Humphris speaks to his belief that you will have a support structure in place that you will be able to avail yourself of in light of your renewed and powerful desire to get your life “back on track”.
[48] Letter from Broedyn Humphris dated 19 April 2023 (Exhibit D4).
92You told Ms Cidoni that you plan to live with your best friend upon your release from custody. If that occurs, you will have some level of support in the community which will promote your rehabilitation.
Comparative Sentences
93In sentencing for a Commonwealth offence, a court must have regard to the sentences in comparable cases imposed by intermediate appellate courts in other states and territories to achieve consistency in sentencing for federal offences.[49] The use to be made by a sentencing judge of comparable Commonwealth cases is twofold: first, they provide guidance as to the identification and application of relevant sentencing principles, and, secondly they may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence.[50] However, beyond this, the extent to which such an examination can assist a sentencing court is limited. Ultimately, a court in a case such as the present one must impose sentences for the individual offences in light of all relevant circumstances and then, within the legislative constraints, determine appropriate periods of cumulation to reflect the overall criminality.
[49] The Queen v Pham (2015) 256 CLR 550, [26].
[50] The Queen v Pham (2015) 256 CLR 550, [26].
94There is a paucity of comparable sentences owing to the introduction of the mandatory head sentence scheme in June of 2020. There is now little point in looking at earlier cases. The cases to which the Court was referred by the prosecution were: Delzotto,[51] Hurt,[52] Glasheen[53] and Stiller.[54]
[51] R v Delzotto [2022] NSWCCA 117 (‘Delzotto’).
[52] Hurt v R [2022] ACTCA 49.
[53] R v Glasheen [2022] NSWCCA 191 (‘Glasheen’).
[54] R v Stiller [2023] QCA 51 (‘Stiller’).
95In Delzotto, the appellant pleaded guilty to one charge of possessing child abuse material and one charge of using a carriage service to access child abuse material. The appellant was re-sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 3 years.[55]
[55] R v Delzotto [2022] NSWCCA 117, [115].
96In Hurt, the appellant pleaded guilty to one charge of transmitting child abuse material, one charge of accessing child abuse material, and one charge of possessing child abuse material. The appellant was re-sentenced on appeal to 4 years and 8 months with a non-parole period of 2 years and 2 months.
97In Glasheen, the appellant pleaded guilty to one charge of using a carriage service to access child abuse material. The appellant was re-sentenced to 3 years and 1 months’ imprisonment with a non-parole period of 2 years and 4 months.[56]
[56] R v Glasheen [2022] NSWCCA 191, [2].
98In Stiller, the appellant pleaded guilty to one charge of using a carriage service to access child abuse material. The appellant was sentenced to 3 years and 6 months’ imprisonment with a non-parole period of 12 months. The sentence was upheld on appeal.[57]
[57] R v Stiller [2023] QCA 51, [38].
Statutory Sentencing Principles
99As a result of amendments to the Act in 2020, there is a mandatory minimum sentence of four years’ imprisonment that must be imposed when a court sentences a person for certain child exploitation offences and the person has ‘at an earlier sitting’ been convicted of a ‘child sexual abuse offence’.[58] As noted earlier in these reasons, you were sentenced for ‘a State or Territory registerable child sex offence’ in Queensland in June 2018 and accordingly, these mandatory minimum provisions are applicable to you.
[58] Crimes Act 1914 (Cth), s 16AAB.
100There has been some disagreement between the Supreme Courts of New South Wales and the ACT about the application of s 16AAA. In particular, the issue has been whether the so-called ‘Bahar principles’ should be applied. In Bahar,[59] a case involving Commonwealth terrorism offences, the Western Australian Court of Appeal held that both a statutory minimum penalty and a statutory maximum penalty, operate as the limits within which sentence must be imposed. They are each legislative directions as to the seriousness of the offence.
[59] Bahar v The Queen [2011] WASCA 249, [46].
101Bahar has been applied on a number of occasions in appeals against sentencing decisions for child sex offences.[60] Intermediate appellate courts have concluded that the approach of the WA Court of Appeal is consistent with statements by the High Court in Markarian that ‘statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied’.[61]
[60] Delzotto [2022] NSWCCA 117; Taylor [2022] NSWCCA 256; Hurt [2022] ACTCA 49.
[61] Markarain v The Queen (2005) 228 CLR 357, [54].
102However, the applicability of Bahar to such offences was called into question by the sentencing Judge (Mossop J) in the case of Hurt.[62] While accepting he was bound by Bahar, his Honour identified several reasons for doubting the applicability of Bahar to federal sexual offences. In particular, his Honour considered that the general sentencing provision in s 16A is not made expressly subject to the minimum mandatory provisions.[63]
[62] R v Hurt (No 2) [2021] ACTSC 241.
[63] See at [76]-[87], especially at [79].
103The High Court of Australia granted special leave to appeal from the decisions in Delzotto and Hurt in April 2023.[64] With the agreement of the parties, I considered that it was inappropriate to await the outcomes of these appeals before sentencing. I was particularly concerned that there is no certainty about when the High Court will determine the appeals. There is a need to ensure that the accused is a sentenced prisoner as he has now been held on remand since January 2022.
[64] Transcript of Proceedings, Hurt v The King; Delzotto v The King [2023] HCATrans 52.
104In the case of Taylor,[65] Simpson AJA, with whom Davies and Wilson JJ agreed, held that, in applying the mandatory minimum provisions, it is not necessary for a court to conclude that unless an offence is in the least serious category, a sentence exceeding the minimum must – as a matter of law – be imposed. However, her Honour observed that it may well be, as a matter of judgment, that it will be a rare case that a sentence at the level of the mandated minimum meets the requirements of sentencing unless the case is judged to be ‘within the least serious category of offending’.[66]
[65] R v Taylor [2022] NSWCCA 256.
[66] Ibid, [78].
105The effect of s 16AAB of the Act to your case Mr Radford is that, subject to one further matter, the court must impose a minimum sentence of four years’ imprisonment on you in respect of charges 1-4.
106That further matter concerns the effect of s 16AAC of the Act.
107Section 16AAC of the Act relevantly provides:
(2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3) If a court may reduce a sentence, the court may reduce the sentence as follows:
(a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c) if the court is taking into account both of the matters in paragraphs (a) and (b)--by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.
108It is common ground in your case that the ‘period specified’ is four years. There is a question about when in the sentencing exercise the court should consider the applicability of s 16AAC.
109As submitted by the prosecution, intermediate appellate courts have endorsed two approaches to the order in which the two discounts are to be applied.[67] Under the first approach, favoured in New South Wales,[68] the court will instinctively synthesise all relevant considerations except the guilty plea and degree of co-operation as part of stage one. In stage two, the court will apply s 16AAC to determine if further reductions are needed to move below the prescribed statutory minimum.
[67] Amended Outline of Crown Submissions on Plea dated 11 April 2023, [30]-[31].
[68] See Delzotto (n 51) and Glasheen (n 53).
110By contrast, under the second approach, a judge will assess all relevant considerations including the guilty plea and degree of co-operation in their assessment of the head sentence. They will then determine whether the s 16AAC mechanism is required to impose a sentence below the mandatory minimum.[69]
[69] See Stiller (n 54).
111In Stiller, Mullins P, with whom Dalton and Flanagan JJA agreed, held that neither approach is prohibited by s 16AAC and added that ‘whatever approach is adopted, it must be apparent from the sentencing remarks that the reductions did not exceed those permitted by s 16AAC’.[70]
[70] Stiller, [32].
112I have adopted the first of these approaches.
113In assessing what percentage discount to apply for co-operation, I am guided by the case law which establishes that:
(a) There is no ‘standard’ discount’ to be applied and each case is assessed on its merits;[71] and
(b) The utility of the information provided is an important consideration.[72]
[71] Rosales (a pseudonym) v R [2018] VSCA 130, [25].
[72] MEG v R [2017] WASCA 161, [13].
114On balance I accept your counsel’s submission that your co-operation was ‘meaningful’.[73]
[73] Outline of Defence Submissions on Plea dated 14 April 2022, [41].
115It is necessary to address two further matters of principle before considering what sentences to impose in your case.
116The first concerns the statutory presumption of cumulation in s 19(5) of the Act. This presumption is expressly stated to be subject to the court’s power to order that the sentences be served partially concurrently if satisfied that the sentences are of a severity appropriate in the circumstances (s 19(6)) provided the court states its reasons and enters them into the records of the court (s 19(7)). As the Court of Appeal has recognised, s 19(5) does not mean a court can ignore the principle of totality.[74]
[74] Phibbs v The King [2023] VSCA 123, [42].
117Finally, the minimum mandatory sentence provisions only apply to the head sentence. They have no effect on the minimum period that must be served before a prisoner is eligible for parole.
118There is no ‘statutory or judicially determined “normal” ratio between the non-parole period and the total sentence’.[75]
[75] R v Jousif [2017] NSWSC 1299, [315].
119For example, in Stiller, the offender was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 12 months.[76]
[76] Stiller [2023] QCA 51.
120The normal approach to setting the non-parole period is to be followed. This requires the court to have regard to the deterrent and punitive effect of the sentences in setting both the head sentence and the non-parole period.[77]
[77] Hili v The Queen (2010) 242 CLR 242, [41].
Consideration
121For the reasons discussed earlier, I consider that charges 1 and 2 are lower level instances of the offences created by s 474.22(1) of the Criminal Code.
122In respect of charge 1, I consider that the minimum sentence of four years is an appropriate sentence before applying s 16AAC. I will discount the sentence by 25% for your guilty plea and a further 10% for your co-operation. That means that on charge 1 you are convicted and sentenced to 2 years and 7 months in prison.
123In respect of charge 2, although it is more serious offending than charge 1, I also consider that the minimum sentence of four years is an appropriate sentence before applying s 16AAC. I will discount the sentence by 25% for your guilty plea and a further 10% for your co-operation. That means that on charge 2 you are convicted and sentenced to 2 years and 7 months in prison. I will order that 5 months of the sentence on charge 2 be served cumulatively on the sentence imposed in respect of charge 1.
124While the offending that gives rise to charge 3 is more serious than that involved in charges 1 and 2, I consider that a sentence of 4 years is appropriate before applying s 16AAC. In reaching this conclusion, I have had regard to grooming cases involving undercover operatives of similar gravity to yours where sentences of prison of less than for four years have been imposed.[78] Your offending took place over a period of approximately one week whereas in many other cases the offending occurred over far longer periods of time. The age gap was not as great as was the case in a number of other cases and you made no specific arrangement to meet ‘Charli’.
[78] See, eg, Cooper v The Queen [2012] VSCA 32 (3 years); Meadows v R [2017] VSCA 290 (12 months); R v Ralston [2010] ACTCA 47 (2 years wholly suspended).
125I will discount the sentence by 25% for your guilty plea and a further 10% for your co-operation. That means that on charge 3 you are convicted and sentenced to 2 years and 7 months in prison.
126I will order that 9 months of the sentence on charge 3 be served cumulatively on the sentence imposed in respect of charges 1 and 2.
127The most serious of your offending is that which gave rise to charge 4 for the reasons explained earlier. It will be the base sentence and the relative seriousness will be reflected in the degree of cumulation. In light of all of the circumstances to which I have referred I consider that a sentence of 4 years’ imprisonment is appropriate before applying s 16AAC. I will discount the sentence by 25% for your guilty plea and a further 10% for your co-operation. That means that on charge 4 you are also convicted and sentenced to 2 years and 7 months in prison.
128While I have concluded that charges 3 and 4 are more serious examples of offending than charges 1 and 2, I consider that all four of the offences fall within the ‘least serious category of offending’ as explained in the decision of Taylor referred to earlier in these reasons.
129I will order that 12 months of the sentence imposed in respect of charge 4 be served cumulatively on the sentences imposed in respect of charges one, two and three.
130On charge 5, the State offence, you are convicted and sentenced to 6 months’ imprisonment of which one month is to be served cumulatively on the sentences imposed for charges 1-4. I have determined this sentence by considering all relevant matters in the ordinary manner for State sentencing. In particular, I have taken into account the guilty plea as part of my synthesis of all of the circumstances.
Cumulation and Commencement Dates
131On charge 5, the State offence of failing to comply with reporting obligations contrary to s 46(1)(A) of the SORA, you are convicted and sentenced to imprisonment for 6 months.[79]
[79] A State sentence must commence on the date it is imposed – see Sentencing Act 1991 (Vic), s 17(1).
132On charge 1, the charge of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code, you are convicted and sentenced to imprisonment for 2 years and 7 months to commence 1 month after the commencement of the sentence on charge 5.
133On charge 2, the charge of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code, you are convicted and sentenced to imprisonment for 2 years and 7 months to commence 5 months after the commencement of the sentence on charge 1.
134On charge 3, the charge of using a carriage service to groom a person believed to be under 16 years of age contrary to s 474.27(1) of the Criminal Code, you are convicted and sentenced to imprisonment for 2 years and 7 months to commence 14 months after the commencement of the sentence on charge 1.
135On charge 4, the charge of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Criminal Code, you are convicted and sentenced to imprisonment for 2 years and 7 months to commence 26 months after the commencement of the sentence on charge 1.
136The total effective sentence for the Commonwealth and State offences is 4 years and 10 months.
137In determining the degree of cumulation as between the various sentences, I have sought to reflect the differences between soliciting CAM (charge 1), transmitting CAM (charge 2) and possessing or controlling CAM (charge 4).[80] I also acknowledge the different dates of the offences and the different CAM (and therefore different children) involved. The charge of grooming (charge 3) stands alone in this regard.
[80] See Allison (a pseudonym) v The Queen [2021] VSCA 308, [41].
138I note pursuant to s 19(7) of the Crimes Act 1914 (Cth) that I have not made the sentences entirely cumulative despite s 19(5). The approach I have taken to the appropriate degree of cumulation as between the different sentences has been informed by the relatively short duration of your offending as a whole (three weeks). I have sought to give effect to the principle of totality so that the overall sentence appropriately reflects your criminality. I have also taken into account the various matters of mitigation considered earlier in these reasons. The total effective sentence I have imposed is of a severity that is appropriate in all the circumstances (see s 19(6)) and I cause my reasons to be entered in the records of the court.
Non-parole Period
139As the total effective sentence for the Commonwealth sentences exceeds 3 years, the Court is required to set a non-parole period.[81] Your counsel submitted that I should set a ‘longer than usual parole period’ to encourage your rehabilitation and provide the interventions that are essential.[82] I accept this submission and have set a non-parole period that is 50% of the head sentence.
[81] Crimes Act 1914 (Cth), s 19AB(1).
[82] Outline of Defence Submissions on Plea dated 14 April 2022, [56].
140The period you must serve before you are eligible for parole is 2 years and 5 months. This non-parole period is in relation to the Commonwealth offences only as there is no non-parole period for the State offence.[83]
[83] Crimes Act 1914 (Cth), s 19AJ.
Other Matters
141Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that the 646 days you have spent on remand be reckoned as time served in respect of the sentences imposed today.
142Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty, I would have imposed a total effective sentence of imprisonment for 6 years and 9 months with a non-parole period of 3 years and 10 months.
143It is declared that you must comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 (Vic) for the remainder of your life.
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