CDirector of Public Prosecutions v Schaeche
[2022] VCC 2331
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Sexual Offences List
CR-22-00694
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JEDD SCHAECHE |
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JUDGE: | HIS HONOUR JUDGE HOLDING |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2022 |
DATE OF SENTENCE: | 16 December 2022 |
CASE MAY BE CITED AS: | CDPP v Schaeche |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2331 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – three charges – commonwealth offending – no criminal record - use a carriage service to transmit child abuse materials - use a carriage service to cause child abuse material to be transmitted to himself - possess or control child abuse material obtained or accessed using a carriage service – exceptional circumstances – remorse – serious offending – imprisonment – abhorrent – pregnancy – covid-19.
Legislation Cited: Criminal Code 1995 (Cth) - Sentencing Act 1991 (Vic) - Sex Offender Registration Act (2004).
Cases Cited:R v Verdins (2007) 16 VR 269 - R v Doran [2005] VSCA 271 - Totaan v R [2022] NSWCCA 75 - DPP v Guerrero [2020] VCC 1790 - DPP (Cth) v D'Alessandro (2010) 26 VR 477 - DPP (Cth) v Garside [2016] VSCA 74
Sentence: A total effective sentence of 16 months’ imprisonment, to be released after three months on entering into recognisance of $2.000.00 to be of good behaviour for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr Y Hardjadibrata | James Carter, Acting Commonwealth Solicitor for Public Prosecutions |
For the Accused | Ms B Myers | James Dowsley & Associates |
HIS HONOUR:
1Jedd Schaeche, you have pleaded guilty to the following charges:
a.One charge of use carriage service to transmit child abuse materials contrary to ss 474.22(1) of the Criminal Code (Cth) - maximum penalty 15 years' imprisonment;
b.One charge of use a carriage service to cause child abuse material to be transmitted to himself contrary to s 474.22(1) of the Criminal Code (Cth) - maximum penalty 15 years' imprisonment; and
c.One charge of possess or control child abuse material obtained or accessed using a carriage service contrary to s 474.22(a)(i) of the Criminal Code (Cth) - maximum penalty 15 years' imprisonment.
2The circumstances of your offending are set out in the Prosecution Opening for Plea.[1] That document should be read in conjunction with these reasons. I do not propose to repeat that document in full but I will briefly summarise your offending.
[1] Exhibit A on the Plea.
Circumstances of your offending
3You were born on 13 October 1994 and were aged 27 at the time of your offending. You are now aged 28.
4Your offending was discovered after Australian Federal Police Joint Anti-Child Exploitation Team received information that you had been uploading child abuse material using the Kik mobile application.
5After a search warrant was conducted at your residence, your Samsung
Galaxy S10 mobile phone was examined and police located child abuse material. Each charge relates to you dealing with child abuse material found on this device.
Charge 1 - use a carriage service to transmit child abuse material
6This charge incorporates your transmission of child abuse material through the Telegram application on a number of occasions to various participants. The charge is particularised as occurring between 8 November 21 and 14 January 2022. During that time you used the screen name, 'JK'. You transmitted 47 videos. These videos have been classified under the Australian Child Abuse Categorisation Scheme (ACACS).[2] Thirteen of the videos were classified under
Category 1 and 34 videos as Category 2 abuse material.[2]The opening states that Category 1 is media depicting a real prepubescent child .. who appears under the age of 13 involved in a sex act, witnessing a sex act, or the material focuses/ concentrated on the anal or genital region of the child. Category 2 is other Child Abuse Material that does not fit within category 1; images may depict a child as the person conducting the activity, or observing other activity.
7On 8 November 21, you transmitted one video classified as child abuse material to a Telegram group chat with seven other users.
8On 13 December 21, you initiated a Telegram chat with a, 'ForwardsCoverBot'. ForwardsCoverBot is not a real human but an automated and computerised robotic user. The bot outlined the procedure for sending sensitive material whereby one sends a message or material to the bot and it automatically returns your message and the material. This allows a person, after receiving a transmission back from the bot, to transfer and forward material without a username attached, thus making the identity of the true source of the material more difficult to detect. The elements of the offence of transmitting child abuse material are still satisfied by transmitting material to a program such as ForwardsCoverBot.
9The following day you sent videos and images to ForwardsCoverBot which included five videos classified as child abuse material. These videos and images were sent back to you by the ForwardsCoverBot. The five child abuse material videos depicted male and female children who the informant assessed to be aged between six and 14 years old involved in sex acts including penetrative sex between male and female children.
10Between 12 December 2021 and 14 January 2022, you communicated on Telegram with a user with a screen name, 'Joe Mamjr. On 12 December 2021, you transmitted three videos containing child abuse material to Joe Mamjr. In the following days you received messages from Joe Mamjr with requests such as, 'Do you have any young boys? What about young girls? Do you have any blow job videos like young girls giving blow jobs?' You responded to these messages by sometimes sending videos, sometimes saying you did not have the videos requested but if you get some you will send them.
11Over the next few weeks you transmitted approximately another 12 videos to Joe Mamjr containing child abuse material. Although on 26 December 2021, you received a message from Joe Mamjr complaining that some of the videos you transmitted had already been previously sent, to which you responded, 'Okay, sorry. Just dealing with two different people trading'. Your last transmission to Joe Mamjr was on 14 January 2022 when you transmitted one video containing child abuse material.
Ashlee Gray
12Between 26 December 2021 and 30 December 2021, you communicated on Telegram with a user with a screen name, 'Ashlee Gray'.
13On 26 December 2021, Ashlee Gray asked you if you wanted to trade, to which you responded, 'Sure. What you got?' The following day, you transmitted one video containing child abuse material to Ashlee. Ashley replied, 'Not kids though'. You and Ashlee continued to exchange videos and photos indicative of an interest in child abuse material. This included files depicting pubescent female children wearing swimwear or underwear and self-produced videos depicting pubescent females posing naked in front of the camera, masturbating, or involved in other sex acts. These videos were not classified as child abuse material due to the informant being unable to confirm the age of the females depicted.
Charge 2 - use carriage service to cause child abuse material to be transmitted to yourself
14Charge 2 is a rolled up charge incorporating your use of a carriage service to cause child abuse material to be transmitted to yourself between
25 November 2021 and 14 January 2022 through the Telegram application by various participants.15In total, you caused 137 videos which have been categorised as child abuse material to be transmitted to yourself. These videos have been classified according to the CAM system which resulted in
70 videos being classified as Category 1 and 67 videos classified as
Category 2.Material transmitted by ‘IDK’
16On 25 November 2021 you communicated on Telegram with a user with the screen name ‘IDK’.
17You commenced the conversation, asking, 'what do you want to trade?' IDK responded, 'CP’, ‘teen’, ‘no megas or drop’. You replied, 'You send first. I got stuff to send back'.
18Later that day, you transmitted three videos containing child abuse material, (which is part of Charge 1) and received 33 videos containing child abuse material from IDK.
19These videos portrayed female and male children who the informant assessed as being aged between two and 15. The majority of these videos depicted prepubescent female children engaged in sex acts with adult males. This included vaginal penetration by an adult male penis, performing fellatio on an adult male, or having an adult male ejaculate onto the child's face or body.
20On 13 December, you sent a further message to IDK, asking, 'Got any new things?' Although IDK responded, 'Yeah', nothing further was sent to you.
Material transmitted to, 'Jack'
21On 1 January 2022, you communicated on Telegram with a user with a screen name, 'Jack'. You commenced the conversation by asking, 'What are you trading?' Jack responded, 'CP young teen'. You then replied, 'Send and I'll send back'.
22Between 1 January 2022 and 3 January 2022, you transmitted 22 videos containing child abuse material to Jack (which is part of Charge 1) and received 104 videos containing child abuse material from Jack.
23These videos depicted male and female children who the informant assessed to be aged between three and 14 years involved in sex acts with other children, with adults, and some self-produced videos of prepubescent and pubescent female children.
24This included a prepubescent male and prepubescent female child involved in sex acts, prepubescent male children involved in sex acts with adult females, including penile penetration, penile penetration of a three to four year old female child's vagina by an adult male, and anal penetration of a female child aged seven to nine years who appeared distressed.
25On 4 January 2022 you messaged Jack: 'I'll send when I get new stuff'.
Charge 3 - possession or control of child abuse material obtained or accessed using a carriage service
26Located within your Samsung Galaxy S10 mobile phone was a total of 353 videos and 99 images classified as child abuse material. Of these, 84 videos and 45 images were saved in a folder labelled ‘?’ within a secure photo vault application. This application prevents viewing of the material without the user inputting a PIN code.
27The material was categorised as follows:
(a) Category 1: 5 images possessed and 140 videos possessed
(b) Category 2: 94 images possessed and 213 videos possessed
28Some of the child abuse material videos possessed by you were self-produced by female prepubescent and pubescent children where they proceeded to remove their clothing and posed naked in front of the camera or inserted items into their vaginas.
29Other videos depicted sex acts between adults and children, or between children, including the following examples:
(a) A naked female child between 6 and 9 years of age, blindfolded and lying on her back with her legs tied to a bar to keep them apart while a dog licks the child’s genitals and an adult male inserts his penis into the child’s mouth;
(b) A naked female child between 2 and 3 years of age, lying naked on her back while a pubescent female child performs cunnilingus on her, and an adult male masturbates and then has penetrative sex with the pubescent child;
(c) A male child between 8 and 11 years of age performing penetrative sex on a female child between 11 to 13 years of age, who is performing fellatio on a male child aged between 6 and 7 years of age; and
(d) A naked adult female rubbing her genitals on the penis of a male child aged between 12 and 18 months old, and attempting to suck his penis.
30After your arrest, you were involved in a record of interview where you made full admissions to accessing and possessing the material. In the interview, you made a number of statements including:
(a) In 2019 or 2020, you was going through a tough time in your relationship and were experiencing depression. You started using Kik to trade child abuse material, “mainly focused around ages thirteen and up”, “and that it “turned into people sending things to me and then me sending to them and getting lower age groups”;
(b) When asked about the pictures you were sharing, you stated, “I guess we still have to use the term "child abuse material", um, of girls that were, um, either on the cusp of, um, legal age, um, they might have had tattoos or something but then, ah, started getting to high school girls. And then, um, people sent me other images that I didn't want to have or look at but then saved because it would be something I could trade to someone else for, um, the images that I was interested in at the time”; and
(c) You stated that you had a sexual interest in girls “after puberty and, um to any younger ages to trade with other people to view the content that I find interesting”
Personal circumstances
31I now turn to your personal circumstances.
32You are 28 years old and have no prior criminal history. You are the only child of your parents, who have been married for 27 years and currently reside in Benalla in north-east Victoria. You currently reside in Ringwood with your fiancée of six years.
33You were born in Mineral Wells, Texas, where you spent most of your childhood. You were educated in Texas until Year 10 when you were 16 years old. In 2011, you moved to Australia and completed your high school education at Benalla High School.
34Your counsel, Ms Myers, states in written submissions filed on your behalf that in Year 7 you were shown pornography by a school friend and this led to you watching legal pornography on your phone. You began to view pornography more regularly during the COVID-19 lockdowns.
35Your childhood was quite unremarkable. You describe your parents as loving, albeit emotionally distant. You found it difficult to make friends in Australia and you experienced loneliness and social isolation, which continued into adulthood.
36After high school you commenced but did not complete a music course at Box Hill TAFE. In 2015, you completed a theatre arts course at Benalla TAFE and then in 2019 completed a production technology course with the Victorian College of the Arts.
37After completing this course, you worked as a casual theatre technician and freelance sound technician. However, due to the pandemic in 2020 you lost all work and received JobKeeper supplements. Since the end of the lockdowns in 2021 you have worked casually as a theatre technician and installing digital displays at commercial retail businesses.
38You met your fiancée, Ms Bordeaux,[3] through a mutual friend in 2016 and have been in a relationship with her ever since. She is the person who provides your main emotional support. She is currently 16 weeks pregnant to you and is due to give birth on 5 May 2023. You have discussed the current offending with her and she remains supportive of you. She was present during your plea hearing. You have also disclosed the offending to two close friends, Frost[4] and Gray[5]. However, you have not disclosed your offending to your parents as you fear they will reject you.
[3] This name is a pseudonym.
[4] This name is a pseudonym.
[5] This name is a pseudonym.
39You have no drug or alcohol issues, and no history of mental health difficulties. Tendered at your plea was a psychological report prepared by
Dr Rachel Mackenzie, a clinical psychologist, dated 23 November 2021. You have been engaged with Ms Mackenzie since March 2021 and she has diagnosed you with adjustment disorder, which seems to have resolved, and possible paraphilias, including hebephilia and emebophilia.
Psychological report
40It is to your credit that you engaged with Dr Mackenzie soon after you were charged with these offences. Dr Mackenzie commenced treating you on 24 March 2021. She has seen you for a total of nine one hour sessions, the last being on 22 November 2021. These sessions have been conducted by Zoom and there have been two gaps in treatment. One of four weeks and one of five weeks.
41The report prepared by Dr Mackenzie concerns the issues relevant to your treatment sessions. It does not address your risk of recidivism. She states that the report is not to be regarded as a substitute for a comprehensive forensic psychological risk assessment.
42At the beginning of your sessions, you presented as an anxious man who reported symptoms of low mood, poor motivation, feelings of worthlessness, difficulty relaxing, ruminating over stressors, and physical symptoms related to stress and anxiety. You reported that these symptoms commenced at the beginning of the COVID-19 lockdowns and have been exacerbated by your current legal situation.
43You completed the DASS-21 psychometric testing where you fell into the moderate range for depression, anxiety, and stress. Mid-treatment, your scores reduced to mild range. In your last session with Dr Mackenzie, your scores fell into the normal range despite the stress of your court appearance.
44Dr Mackenzie states that throughout your sessions you were focussed on offence specific work and you were able to demonstrate that you had developed a comprehensive understanding of the full range of potential and actual harms caused by your form of offending and how your actions served to reinforce the deviant community in relation to child pornography. She states that you were able to challenge your previously held beliefs and consequently had expressed considerable shame and remorse for your actions.
45Dr Mackenzie states that although she was not in a position to directly assess your mental state during the time of the offending, she cannot dismiss the possibility you might have met the diagnostic criteria for a diagnosis or major depressive episode. She states:
'It would appear from his account the circumstances that he reported and the trajectory of his symptoms, that the most appropriate diagnosis is that of adjustment disorder with a specifier of with mixed anxiety and depressed mood applicable. Although Mr Schaeche's mental state at the time of his offending would have had an impact on his judgment, his condition was not at a level of severity that prevented him from appreciating that what he was doing was wrongful and unlawful’.
46In respect to your sexual attraction, you acknowledge an attraction to females between the age of 13 and 16 years of age but you deny any sexual arousal to those who have not developed secondary sexual characteristics (prepubescent children). Dr Mackenzie says that the possibility of paedophilia cannot be dismissed but it would appear likely that the paraphilia termed the hebephilia (sexual attraction to pubescent children usually between the ages
of 11 and 14) and/or ephebophilia (sexual attraction to post-pubescent children) are more applicable.47Turning to the question as to the potential impact that a custodial sentence might have on you, Dr Mackenzie is not of the opinion that a term of imprisonment would prove to be of greater hardship for you than it would be for any first time offender who does not have an antisocial disposition. She continues by stating that if you were to receive a custodial sentence there would be a deterioration of your mental state as a consequence of the impact it would have on your pregnant fiancée and the financial hardship that would likely occur. However, the severity of the deterioration is uncertain.
Submissions of the Parties
48Your counsel, Ms Myers, in her written submissions in relation to the objective gravity of your offending stated:
· Your interactions on the internet commenced with sharing legal pornography;
· You have an interest in girls aged 13 and older and had a preference for girls of this age who had filmed themselves as you ‘found interest in .. the person being willing to show themselves and express their sexuality in this way’ (ROI answers 90-92);
· In the course of seeking such material, your exchange of material became ‘transactional’ rather than being directed towards self-gratification in relation to the material depicting younger children;
· In the course of seeking material relating to girls aged 13 and older you were sent material featuring much younger children. While you were not looking to obtain this material you kept in order to trade it with others;
· You offending was not part of any organised network;
· The offending occurred over a relatively short time frame of two and a half months;
· It involved communicating with a confined number of people (12) who you did not know personally;
· The amount of material while not insignificant was not a large amount;
· There was a lack of sophistication in that, save for using encrypted messaging applications you used your own email address and phone number to sign up to the Kik and Telegram services, and did not use technology to disguise the identity or location of your device; and
· Charges 1 and 2 were at the lower end of the spectrum of objective seriousness, and in relation to Charge 3, the majority of the material is category 2 material.
49In terms of the assessment of your moral culpability Ms Myers submitted:
· You only sought material ‘featuring young teens’ and ‘there is no evidence’ that you ever sought out or had an interest in materials featuring younger children;
· There is no evidence that you got any sexual gratification from material featuring pre-pubescent children;
· Dr Mackenzie’s assessment that your ‘Adjustment Disorder’ would have affected your judgement warrants some moderation of your moral culpability in accordance with limb 1 of the well-known case of Verdins[6];
· In your record of interview, you were ‘fully cooperative with police’ and made frank admissions to offending. These frank admissions meant the charges ‘at least partly’ arise from your own admissions and warrant the kind of discount acknowledged as appropriate in the case of Doran;[7]
· These candid admissions reduce the weight that should be accorded to specific deterrence and increase your prospects of successful rehabilitation;
· You have genuine remorse for your offending;
· You have demonstrated a commitment to your rehabilitation by seeing Dr MacKenzie and demonstrating insight into the seriousness of your offending;
· You have taken steps limit your use of the internet by placing items that can access the internet in the control of your fiancée;
· Character references are relied upon from your fiancée, Ms Bordeaux, Susie Gray, and Isobel Frost. Those letter describe you in terms of being hardworking, honest, caring, responsible, and generous. Your fiancée’ describes you as being disgusted with yourself and ashamed of the offending and how you have made it your mission to become a good father. It is clear from these references that the writers regard your offending as completely out of character;
· Your plea of guilty at the earliest opportunity is indicative of remorse and has significant utilitarian value given it has been entered during the pandemic;
· Ms Bordeaux is going through her first pregnancy and has experienced some mental health issues in the past. Ms MacKenzie opines that if through imprisonment you will not be able to support her at this time, your mental state would likely deteriorate, and financial hardship would be caused to Ms Chaulker as a result.[8]
[6]R v Verdins (2007) 16 VR 269.
[7]R v Doran [2005] VSCA 271.
[8] Defence rely upon Totaan v R [2022] NSWCCA 75 [77] – [93] that there is no requirement that family hardship be exceptional before this is a directly relevant sentencing consideration.
50Ms Myers acknowledged that the Crimes Act 1914 provides the statutory framework in which these offences must be considered. She relied upon s 17A(1) of that act that states that imprisonment is to be the situation of last resort. Further, she accepted that ss 21(b)(ii) and (iii) of that Act provides that if the court is of the view that a sentence of imprisonment should be imposed, the court could only direct that the offender be released immediately upon giving security by way of recognisance if the court is satisfied that there are exceptional circumstances.
51Further, she conceded that for offences of this kind the court must give general deterrence considerable weight. She submitted that a lengthy community correction order or a recognisance release order would achieve this objective while ensuring you can continue your treatment.
52Further, such a disposition would promote the community's protection by enhancing your chance of successful rehabilitation. She submitted that if gaol were regarded as the only appropriate sentence, the combination of factors outlined above amount to exceptional circumstances justifying immediate release, and that it would be counterproductive to interrupt the progress you have made since your arrest.
53Ms Myers relied upon the case of DPP v Gierro[9] as a comparable case in which to gauge a, 'yardstick', relating to current sentencing practices. She acknowledged that this case was not decided at a time when the legislative requirement relating to exceptional circumstances was operative. However, it was apparent that His Honour Judge Berman had considered that the prevailing case law imposed a similar requirement and stated the question in the following terms: 'Is this one of those cases where exceptional circumstances exist which mean that a sentence of immediate imprisonment is not necessary?'[10] In the circumstances of that case His Honour found exceptional circumstances warranted a sentence allowing immediate release.
[9]DPP v Guerrero [2020] VCC 1790 (‘Guerrero’).
[10] Ibid, [57].
54The prosecution filed detailed written submissions relating to sentence.[11] Briefly stated, the prosecution submitted that this was serious offending and the requirement in the legislation that a sentence be of a severity appropriate in the circumstances of the case required a sentence of immediate imprisonment.
[11] Exhibit B on the Plea.
55The objective factors to consider in assessing the seriousness of the offence were outlined as follows:
i.The nature and content of the material, the age of the children, and the gravity of the sexual activity depicted including the extent of any cruelty or physical harm occasioned to the child or children involved in the material;
ii.The number of items or images possessed;
iii.Whether the material was for the purpose of sale or further distribution;
iv.Whether the offender will profit from the offence which includes payment or other material benefit (such as the exchange of child pornographic material);
v.The number of children depicted and thereby victimised; and
vi.The length of time for which the pornographic material was possessed.
56The prosecution relied upon cases that promulgated the sentencing principle that for charges relating to the possession and transmission of child abuse material, usually the primary sentencing consideration is general deterrence.
57As a consequence of treating general deterrence as the primary sentencing consideration, personal matters such as prior good character and prospects of rehabilitation are given less weight than might otherwise be the case.
58It was emphasised that Charge 1 was a rolled up charge incorporating transmission of 47 items of child abuse material on a number of occasions involving 12 participants over a period of two months. Thirteen videos transmitted were Category 1 relating to children under the age of 13.
59Further, Charge 2 was also a rolled up charge involving you having 137 videos sent to you, 70 of which were in Category 1. The majority of these videos depicted prepubescent children engaging in sex acts with adult males.
60Charge 3 relates to possession of 452 files, a number of which contain child abuse material and a high level of depravity as described in the prosecution opening. Although most of the material was in Category 2, appellate authority indicates this material should still be regarded as serious offending.
61The prosecution submitted that Dr Mackenzie's report did not provided an evidentiary foundation to engage Principle 1 of Verdins, and your mental health condition as referred to in that report did not reduce your moral culpability for the offending.
62It was submitted that the circumstances of your offending in conjunction with matters personal to you did not amount to exceptional circumstances. The prosecutor, Mr Hardjadibrata, conceded that your fiancée being pregnant with your first child at the time of your sentencing was an unusual feature of your case but was not a circumstance that was so exceptional as to meet the threshold required by the legislation. He submitted that the evidence did not establish that your fiancée would be left completely to her own resources in raising the newborn child.
63The prosecution placed before me a 'Comparative Sentencing Table', that distilled various factors from seven Court of Appeal decisions from this State as well as other Australian states.
Consideration
64There is no dispute between the parties that your offending is serious. The maximum penalty of 15 years in respect of each offence indicates how seriously the parliament regards this type of offending. In The Queen v D'Alessandro[12] the Court of Appeal set out a number of propositions that have been accepted by appellate courts in respect of child pornography offences, including the following statement:
'First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character'.
[12] (2010) 26 VR 477, [21].
65It is not in dispute that you have no prior convictions and are a person of prior good character. I accept the submissions made on your behalf that since your offending you have developed a deeper understanding of the seriousness of your offending.
66I also accept that you have demonstrated your remorse by entering pleas of guilty at the earliest opportunity. As well as an indication of your remorse, you are entitled to the utilitarian benefit conferred by your pleas of guilty. Such pleas have been entered in the time of the pandemic and there is no dispute that this entitles you to a significant amelioration of your sentence given the backlog of cases outstanding in the courts, as well as the more difficult experience of imprisonment because of restrictions on visitation rights and programs conducted in prison imposed from time to time to combat the pandemic.
67It is also not disputed that you cooperated with police investigating your offending. You made full and frank admissions regarding your offending and when requested, provided the PIN number to your phone. Section 16A(2)(h) of the Crimes Act 1914 (Cth) specifies that the court must take into account the degree to which an offender has cooperated in the investigation. Your counsel went so far as to suggest that without this cooperation you may not have been able to have been prosecuted for some of these offences. I am not of the view that the evidence establishes that proposition, nor that the circumstances of your case was like the circumstances of the case of Doran where without the admission certain charges would never have come to light. I accept, however, that your cooperation is a significant factor in your favour.
68I also accept that your offending was committed in the context where you were impacted by the lockdowns caused by the pandemic. Dr Mackenzie details how in this period of time you and your partner became depressed after being retrenched and this understandably caused a strain in your relationship. It is in this context of you being depressed and emotionally isolated that you began to use the internet more intensely and came into contact with child abuse material.
69Although I regard the circumstances of your isolation and depression as explanatory of how a person of previously good character described as caring and responsible became involved in this offending, I do not accept that the evidence of your mental health condition is sufficient to engage Principle 1 of Verdins. Dr Mackenzie qualifies her diagnosis of your mental health conditions as possibilities, and while she states these conditions 'would have' had an impact on your judgment, she does not detail precisely how, and goes on to qualify that statement by saying your condition was not at a level of severity that would have prevented you from appreciating the wrongfulness of your conduct.
70It is in my view too speculative on the evidence to find on the balance of probabilities that your mental health condition at the time of the offending had a realistic connection with your offending. I will, however, take into account in a more generalised sense that you were suffering in this way when you offended and this to some extent bears on my assessment of your moral culpability.
71I accept that you have made real and genuine efforts to combat the motivations related to your offending by engaging in a course of therapy with Dr Mackenzie, and I find your prospects of rehabilitation are good.
72In making that finding, I have placed considerable weight on the character references, your cooperation with the authorities and the support you have from your fiancée. Your prior good character and willingness to engage in treatment have been instrumental in me forming that view. I am, however, of the view that taking account of all of the relevant circumstances of the offence and your background and the matters that the court must consider pursuant to s 17A and 16A of the Crimes Act1914 (Cth) the sentence must be one of imprisonment.
73Although the amount of material is not large in comparison to many of the cases that have come before the court, the offending cannot be viewed as a, 'one off, spontaneous error of judgment'. Your offending went on for slightly over two months'.
74In that time, you received child abuse material that is hard to comprehend in terms of its depravity. How people could exploit children of such tender years in this manner is truly shocking. The courts are battling to curtail the exploitation of children in this cruel and degrading manner.
75The prosecution opening describes in graphic terms how obscene some of this material was, and one can only sadly reflect upon the psychological damage that must be inflicted by these acts upon these children. It is not clear on the evidence that you had a sexual interest in the more extreme content found in your possession or precisely whether you viewed all or some of the material you received or transmitted.
76However, it is apparent from the evidence that you took some steps to anonymise your dealing with some of the material by using the ForwardsCoverBot application. You also placed some of the material in the vault application that required a PIN to access the material.
77As an example of the gravity of your offending the prosecution opening details how on 25 November 2021 you were told by IDK that Cp (meaning child porn), could be sent to you. You sent messages stating, 'You send first', and, 'I got stuff to send back'. You then received on that day 33 videos that were assessed as portraying children between the ages of three and 15, the majority of which were prepubescent females engaged in sex acts with adult males.
78Then on 13 December 2021 you sent another message to IDK, asking, 'Got any new things?' In other words, even if the evidence is not clear as to whether you had an interest in the most depraved material, it does not establish that you were perfectly willing to use such material to trade in order to obtain material that you were interested in, which was itself child abuse material as an example.
79Between mid-December 2021 and mid-January 2022, you repeatedly transmitted child abuse material to Joe Mamjr, who had asked for, 'Young boys and like young girls giving blow jobs'. The manner in which you received and transmitted the material fits the description of having the material for distribution or exchanged. As enumerated above as a relevant hallmark of the gravity of the offending.
80Our Court of Appeal has made it clear that possession of child abuse material creates a market for the continued corruption and exploitation of children. It is not a victimless crime and sentences must deter others from committing such crimes. It is for that reason that less or limited weight is given to an offender's prior good character.[13]
[13]DPP (Cth) v Garside [2016] VSCA 74; (2016) 50 VR 800.
81I make it clear that this does not mean that I should have no regard to your previous good character, and obviously the other matters that I have taken into account in mitigation of your sentence.
82However, taking those matters into account and balancing the various sentencing considerations that I must take into account, I have reached the conclusion that even combining the mitigatory aspects of your case the matters do not amount to exceptional circumstances.
83I accept that there is considerable overlap in the criminality of these different charges. Charge 1 and 2 overlap in the timeframe of the offending and the offence of causing child abuse material to be transmitted to yourself was obviously causally related to you being in possession of the child abuse material when the police inspected your phone. I also take account of the fact that your transmission of the material was to a limited number of users.
84I should indicate that I have given careful consideration to the cases referred to by both your counsel and the prosecution. The case relied upon by your counsel did have some similar aspects in terms of the videos transmitted. However, there were obviously distinguishing features in terms of how the offending came about and the age and background of the offender.
85The prosecution cases also had similarities. However, it was often the case that there was much more material involved. It is a trite proposition that every case must be decided according to its individual circumstances. Ultimately I have accepted the prosecution's submissions in relation to the ultimate disposition, although there are substantial factors that mitigate the severity of the sentence that I must impose. Those factors are not such as to constitute on their own or in combination exceptional circumstances. Hence, it is not open to me to allow immediate release upon you entering a recognisance release order.
86Taking all matters into consideration, including the material tendered on your behalf, all oral and written submissions of both parties and the various sentencing principles involved in cases of this type, and in the particular circumstances of your case, I have determined that the appropriate sentence is as follows. Could you please stand, thank you:
Deposition
I.On Charge, 1 you are convicted and sentenced to 12 months' imprisonment. This will be the base sentence and will commence from today;
II.On Charge 3, you are sentenced to 10 months' imprisonment. This sentence will commence eight months before the expiry of the sentence imposed upon Charge 1; and
III.On Charge 2, you are convicted and sentenced to eight months' imprisonment. This sentence will commence six months before the expiry of the sentence imposed on Charge 3.
87That makes a total effective sentence of 16 months' imprisonment. I order that you are required to serve a period of three months from today before being released upon a recognisance release order in the sum of $2000 with a condition that you be of good behaviour for a period of two years.
88Pursuant to s 16A(2)AA of the Crimes Act1914 (Cth), I take into account the objective of your successful rehabilitation and in order to promote that objective I impose the following conditions. That upon your release from custody 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 18 months; 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; and
d. undertake such treatment or rehabilitation programs that the probation officer, Deputy Commissioner, Community Correctional Services and Sex Offender Management or its nominee reasonably directs; and
Conditions necessary to give effect to mandatory conditions
e. that you report to the Ringwood Commit Corrections Centre located at 60 to 62 Maroondah Highway, Ringwood, within two clear working days upon release from custody; and
f. report to and receive visits from the Community Corrections 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 that change; and
Conditions regarding Sex Offender’s Program
h. that you attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
89I order pursuant to 34(1)(c)(iii) of the Sex Offender Registration Act that as you have pleaded guilty to three Class 2 offences you are required to comply with reporting obligations under the Sex Offender Registration Act for the remainder of your life.
90Pursuant to s 6AAA of the State Sentencing Act I indicate that had you not pleaded guilty to these matters I would have imposed a total effective sentence of 22 months with a recognisance release order in the same amount, allowing your release after seven months.
91Mr Schaeche, look, the law is very strict in this regard. I accept that to quite a degree you did not appreciate the seriousness of what you were doing but it is a battle for the courts to stop this material getting around and the transmission is particularly serious but all of those matters that I have referred to in mitigation played a big part in reducing your sentence quite significantly. As was pointed out to the prosecutor, sometimes courts impose much heavier sentences in relation to this. It has made a difference. What you need to understand is that the sentence is actually theoretically 16 months' gaol but because largely as a result of all those factors and my view that you are not likely to reoffend and that you will take the treatment and the matter very seriously, so you only have to do three months.
92You are going to be asked to sign a document that is like a promise. It is a promise that when you get released you have still got to be of absolute good behaviour or you can be brought back and dealt with for breaching the promise, in which case one of the options is that the court says, well, you have got to now do the 16, the rest of that period of time, and it also imposes on you the obligations of when you get out, to go to the Office of Corrections within two days and commence that particular order.
93The amount of $2000 is kind of like an amount of a promise. You do not actually have to pay that but if you break the promise you can forfeit the $2000. It is not easy for me to explain to you what would break the promise because it is not like a parking ticket. It is a whole variety of offences, though, that could be regarded as criminal offences. So you obviously have to be on your very best behaviour.
94The Commonwealth Crimes Act actually imposes an obligation on a court with these types of matters to impose a period where you can be supervised to ensure the maximum possibility of your rehabilitation. The reporting matters under the Sex Registration Act, I have got no discretion, they are just automatic, so that is why they have been imposed but your counsel, Ms Myers, will no doubt explain to you any questions you have in relation to those matters.
95
And, look, just as a matter of precaution I will make a suppression order. I do not anticipate there being reporting of this matter but if there was to be reporting of the matter there should be no reference at all to the relationship between
Mr Schaeche and his fiancée in any form whatsoever. It is just completely unnecessary. Her name is not to be mentioned. The relationship is not to be mentioned or any details of that relationship.
96Can I thank you both for your assistance and have a good break.
97MS MYERS: As Your Honour pleases.
98MR HARDJADIBRATA: Thank you, Your Honour.
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