Crowder (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0059

JULIAN CROWDER (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]In these reasons for judgment the applicant’s name and the name of another person referred to herein as ‘UB’ have been anonymised by use of pseudonyms. This is done to remove particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed: s 4(1A) Judicial Proceedings Reports Act 1958.

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JUDGES:	MACAULAY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 211
JUDGMENT APPEALED FROM:	CDPP v [Julian Crowder] (County Court of Victoria, Judge Mullaly, 27 February 2024)

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CRIMINAL LAW – Appeal – Sentence – Applicant charged with using carriage service to access child abuse material and possession or control of child abuse material – Total effective sentence of 26 months’ imprisonment – Plea of guilty – Applicant relied on diagnosis of post‑traumatic stress disorder as mitigating factor at plea – Whether judge erred in failing to find exceptional circumstances – Whether sentence manifestly excessive – Application for leave to appeal refused.

R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; R v De Leeuw [2015] NSWCCA 183; Worboyes v The Queen [2021] VSCA 169, considered.

Crimes Act 1914 (Cth), 20(1)(b), considered.

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Counsel
Applicant:		Mr R Nathwani SC and Mr L Cameron
Respondent:		Ms K Breckweg and Ms M Brown
Solicitors
Applicant:	Doogue & George Pty Ltd
Respondent:	Mr S Bruckard, Commonwealth Solicitor for Public Prosecutions

MACAULAY JA
KAYE JA:

The applicant pleaded guilty, in the County Court, to one charge of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth), and one charge of possession or control of child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth). Following a plea presented on his behalf, the applicant was sentenced, on 27 February 2024, as follows:

Charge	Offence	Maximum Penalty	Sentence	Cumulation/ Commencement
1	[Over four weeks in] 2022, use carriage service to access child abuse material s 474.22(1) Criminal Code (Cth)	15 years	20 months	27 February 2024
2	[In] 2022, possess child abuse material accessed using a carriage service. s 474.22A(1) Criminal Code (Cth)	15 years	20 months	27 August 2024[2]
Total Effective Sentence		26 months imprisonment
Recognisance release period		Pursuant to s20(1)(b)(ii) of the Crimes Act 1914 (Cth), (‘*the Crimes Act’*) ordered to be released after serving 12 months on entering a recognisance of $1,000 to be of good behaviour for three years, be supervised by a probation officer for two years and to undertake all programs that the probation officer reasonably directs.
Pre-sentence Detention:		Nil
6AAA declaration:		4 years 4 months imprisonment with a non-parole period of 2 years and 4 months
Other orders:		Registrable offender pursuant to the Sex Offenders Registration Act 2004 (Vic) for 15 years

[2]The ROO has an error in the commencement date for charge 2. It should read 27 August 2024 and not 27 September 2024.

The applicant seeks leave to appeal against sentence on the following grounds:
Ground 1:The judge erred in finding that exceptional circumstances did not exist under section 20(1)(b)(ii) of the Crimes Act 1914 (Cth).
Particulars:
(a)On the matters accepted by the Court, the judge should have found exceptional circumstances;
(b)The judge was wrong to conclude that the causal link between the offending and the Accused’s mental health was ‘slight’; and
(c)The judge placed too much weight on the gravity of the offence when considering whether exceptional circumstances existed, particularly where a vast majority of the images possessed were animated and did not involve actual victims.
Ground 2:In all the circumstances the sentence imposed was manifestly excessive.
Particulars:
(a)The individual sentences imposed for Charges 1 and 2 were manifestly excessive given the mitigation available to the Applicant;
(b)In the circumstances of the Applicant’s case, the order for cumulation offended the totality principle; and
(c)The overall sentence was manifestly excessive.

Summary of offending

The applicant was born in 1989. He was admitted to the legal profession, and was a legal practitioner at the time of the offending.
In 2022, police executed a search warrant at the applicant’s home address. In the course of the search, police seized five items: a computer tower; Apple iPad; Apple iPhone; Hewlett Packard (‘HP’) laptop computer; and Microsoft Surface Pro laptop computer. The applicant was co‑operative with police in the course of the search, and he provided passwords or PIN codes for the relevant electronic data storage devices and online accounts. Following the execution of the search warrant, he was conveyed to Melbourne West Police Station. He was interviewed and charged with child abuse material offences, and released on conditional bail.
Digital forensic extraction reports of the applicant’s five devices revealed that he had interacted with child abuse material in a number of ways. In particular, there were four child abuse search terms found on the Microsoft Surface Pro laptop computer. In addition, The Onion Router (‘TOR’) browser was located on the HP laptop computer. The TOR browser comprises software that enables anonymous communications with and access to the dark net, which itself is a computer network, not normally accessible using traditional methods. In order to gain access to websites on the dark net via the TOR browser, users require a hidden service Uniform Resource Locator (‘URL’), which is commonly referred to as an ‘onion link’. A document containing seven such ‘onion links’ was found on the applicant’s HP laptop computer. Most of the links had expired, but one link was still active. It linked to websites on the dark net, which contain a large amount of child abuse material and which provide links to child abuse material, images and video files.
An examination of the items, that were the subject of the search warrant, revealed that the applicant had used a carriage service to download child abuse material files to his computer tower and Microsoft Surface Pro laptop, which had resulted in seven such downloads on his devices. They were downloaded over a four week period in 2022. That conduct was the subject of charge 1 (using a carriage service to access child abuse material).
In total, the applicant was found to possess 5,233 child abuse material files across five electronic devices that were seized. 4,072 of those files were identified as unique, and the remaining 1,161 files were duplicates. The files consisted of 3,826 images and 246 videos. The majority of those files were animations, but there were approximately 700 files that depicted actual acts of sexual abuse, perpetrated on real children. The possession by the applicant of the 4,072 unique child abuse file materials was the subject of charge 2 (using a carriage service to possess child abuse material).
The child abuse material located on the applicant’s devices included the following:
(a)Computer‑generated animation image and video files which predominantly depicted prepubescent (school‑aged) children engaged in various sexual penetrative acts with adults;
(b)image files depicting real infants being vaginally penetrated by adult males;
(c)image and video files depicting real prepubescent children being tied up (bondage) while being vaginally penetrated by objects used by both male and female adults;
(d)video files depicting real prepubescent children being sexually penetrated by multiple adult males in what appeared to be orgies;
(e)a large amount of image files from the pornography website smutty.com which depicted female infant children through to female pubescent children either solo or engaged in sexual acts. This website also contained a banner at the bottom of each image describing what was portrayed in the image such as:
a.#primejailbait on smutty.com/s/lmJx3
b.#young #littlegirl on smutty.com/s/ntD8Q
c.#nn #panties #flat @young on smutty.com/s/KaLvK
d.#cameltoe #nn cutie on smutty.com/s/cj891
e.#allfours #teen #assup on smutty.com/s/BPAKL57
In that context, the term ‘infant’ referred to children who were aged between four weeks and one year, and the term ‘prepubescent’ referred to children aged between six years and 12 years.
The applicant pleaded guilty to the charges on the indictment at the fifth committal mention at the Melbourne Magistrates’ Court on 24 May 2023. Plea hearings were conducted on 13 December 2023 and 29 January 2024. As noted, the applicant was sentenced on 27 February 2024.

The applicant’s background and plea

The applicant was born overseas. He migrated to Australia with his parents and younger sibling in 1992, when he was three years of age. The applicant completed high school, and gained entry into the law school at a university. On completing his degree, he obtained a graduate position at a large international consulting firm. Subsequently, he joined the legal profession.
The plea on behalf of the applicant focused significantly on his connection with a more senior member of the legal profession, with whom he developed an abusive relationship.
While the applicant was undertaking his studies at university, in 2010, he met and became friends with an older man, UB.[3] He commenced to socialise with UB in 2011. The relationship between the two men developed. We should interpolate that the applicant had previously engaged only in heterosexual relationships.
[3]Pseudonym.
The applicant has made a long statement to the police concerning his developing relationship with UB and the effect that it had on him. The applicant described nights in which they engaged in the heavy consumption of alcohol. The applicant alleged that UB introduced him to drugs, firstly ecstasy, and then subsequently, cocaine and methylamphetamine. It was in that context that UB commenced to engage in sexualised conduct with the applicant, while the latter was heavily intoxicated. In his statement to the police, the applicant stated that the sexual conduct which was engaged in by UB was not consensual, often because the applicant was too intoxicated to give appropriate consent. It was in that context that UB introduced the applicant to child abuse material. The applicant alleged that he watched that material in order to avoid having eye contact with UB during the episodes of sexual abuse. In his statement to police, the applicant said that the last occasion upon which UB had sexual relations with him was in about 2017.
Subsequently, the applicant entered into a relationship with a young woman in 2018. They became engaged to be married in 2019, but ultimately broke up in March 2022. The applicant continued to be in legal practice until his arrest in 2022.

Psychological reports

Following his arrest, the applicant consulted Dr Ryan Veal, a clinical forensic psychologist, on 27 October 2022. He subsequently attended a total of 17 sessions with Dr Veal on approximately a weekly basis. The final session was on 16 March 2023.
In a report tendered on the plea, Dr Veal noted that the applicant denied that he had any sexual predilection for children. The applicant told Dr Veal that, during the previous decade, he had chronically abused crystal methylamphetamine to assist him to work long hours as a lawyer. The applicant told Dr Veal that it was his abuse of that substance, coupled with being the victim of a toxic and manipulative sexual relationship with UB, that had precipitated his accessing the child abuse material that was the subject of the charges. Dr Veal noted that the applicant engaged meaningfully in treatment, and that, in doing so, he demonstrated that he was gaining insight into the factors that were relevant to maintaining adaptive mental health, as well as insight into the factors that involved in his offending. The applicant reported lapsing into misuse of crystal methylamphetamine on two occasions during the time of therapy.
In his report, Dr Veal concluded that the applicant did not meet the criteria for any diagnosable mental illness during the period of therapeutic engagement with him, with the exception of a substance abuse disorder that was in partial remission. The applicant’s distress and anxiety were formulated as a stress reaction in the context of the criminal charges, and the consequences to his professional career. Dr Veal considered that the applicant would only have met the criteria for a moderate severity substance abuse disorder diagnosis at the time of the offending.
Dr Jacqueline Rakov, a consultant forensic psychiatrist, assessed the applicant via video link on 16 September 2023 for the purpose of the plea. The applicant described to Dr Rakov, in some detail, the history of his relationship with UB, in particular, the use of drugs, the manipulative conduct of UB, the sexual abuse of him by UB, and the introduction by UB of pornographic material to him.
In her report, Dr Rakov concluded that the applicant had developed a substance use disorder, which had progressed to be principally involved with his abuse of methamphetamine. In addition, the applicant had described his experience of sexual abuse by UB, which he re‑experienced through flashbacks and nightmares, and the effects of which were evident in his behaviour of avoidance, negative changes in mood and thinking, and hyper‑arousal or vigilance. Dr Rakov considered that those symptoms supported the presence of a Post‑Traumatic Stress Disorder (‘PTSD’). Further, the applicant presented with a longstanding low mood, a loss of interest in otherwise pleasurable activities, poor concentration, a marked sleep disturbance, feelings of guilt, and thoughts of suicide with one historical attempt. Those symptoms supported a diagnosis of a major depressive disorder. Finally, Dr Rakov diagnosed the applicant to have an obsessive‑compulsive personality disorder. Dr Rakov did not consider that the applicant met the criteria for a paedophilic disorder.
Dr Rakov was of the view the applicant was experiencing mental illness at the time of the offending. His interactions with UB were a materially explanatory narrative in the establishment of the circumstances relating to the offending with which the applicant was charged. At the time of the offending, the applicant exhibited signs of hyper‑arousal and avoidance, characteristic of PTSD, together with persistent low mood, anhedonia and fatigue associated with depression. Dr Rakov considered that the symptoms were significantly severe, disrupting the applicant’s daily function.
Dr Rakov further expressed the view that a direct causal relationship between the applicant’s mental illness and the offending could not be definitively established. Nevertheless, it was evident that the mental illness and symptoms had contributed factors that compromised his ability to resist the offending conduct. It was probable that the methamphetamine use exacerbated the applicant’s pre‑existing psychiatric symptoms, which, in turn, influenced his offending.
Dr Rakov concluded that, at the time she interviewed him in 2023, the applicant was still suffering from the same psychiatric conditions. His symptoms suggested a severe manifestation of PTSD. His major depressive disorder was marked by entrenched low mood and anhedonia. The applicant’s personality structure, indicative of OCPD traits, exacerbated his condition. In essence, his current symptomatology constituted severe psychological distress across multiple axes of mental health.
Dr Rakov was of the view that a sentence of imprisonment could have a ‘profound and typically adverse effect’ on the applicant’s mental health, especially considering his existing conditions of depression and PTSD. The heightened stress of a prison environment is recognised as triggering PTSD flashbacks with exacerbating depressive symptoms.
Finally, Dr Rakov expressed the opinion that the applicant did not pose a risk to the sexual safety of others. He does not meet the criteria for a paedophilic disorder. His risk assessment score was very low. He did not display predatory or exploitative behaviour; rather, the applicant had been subjected to exploitation.

Plea submissions

On the plea, counsel for the applicant relied on a number of mitigating factors. They included the applicant’s previous good character, his plea of guilty, which, it was submitted, had significant utilitarian value, the frank admissions made by the applicant when interviewed by the police, and the applicant’s genuine remorse for his offending. In addition, the applicant had resolved the case during the currency of the COVID restrictions, and, as such, his guilty plea had very significant utilitarian value. Counsel also relied on the fact that there had been some delay between the arrest of the applicant in 2022, and the disposition of the plea.
It was further submitted that the applicant had undertaken significant steps to rehabilitate, and his prospects of rehabilitation were good. Counsel particularly submitted that, based on the report of Dr Rakov, the first, third, fourth, fifth and sixth principles, specified in R v Verdins,[4] were engaged. In particular, it was submitted that, by reason of the applicant’s mental illness, his moral culpability was reduced, and the sentencing purposes of general deterrence and specific deterrence should each be moderated. In addition, it was submitted that the report of Dr Rakov made it clear that a sentence of imprisonment would weigh more heavily on the applicant as a result of his mental health, and, further, there was a serious risk that a term of imprisonment might have a significant adverse effect on the applicant’s mental health.
[4](2007) 16 VR 269, 276, [32]; [2007] VSCA 102 (‘Verdins’).
Based on those considerations, counsel submitted that the appropriate sentence was either that the applicant be placed on a Community Corrections Order, or, alternatively, that he be released on a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).

Reasons for sentence

The judge commenced his reasons for sentence[5] by outlining seven principles that apply to the offending in the present case. First, child abuse material offences are considered especially grave by the courts and the legislature. Second, general deterrence is to be a paramount sentencing consideration. Third, in order to fulfil that purpose, sentences of actual imprisonment are ordinarily warranted. Fourth, the gravity of accessing and possessing child abuse material remains high, notwithstanding that the offender did not procure or further distribute that material. Fifth, the fact that the offender was of previous good character is given less weight than otherwise as a mitigating factor. Sixth, persons who possess such material are more than mere passive recipients; by their conduct, they encourage and provide a market to the evil criminals who directly exploit and abuse children and create the abusive material. Seventh, as a result of the pervasive effect of the internet, the corrupt nature of the offending is that the victimisation of the child victims endure, and the victims must live with the consequences of the images of their abuse being accessed and possessed potentially indefinitely.[6]
[5]CDPP v [Julian Crowder] (County Court of Victoria, Judge Mullaly, 27 February 2024) (‘Reasons’).
[6]Ibid [3]–[9].

The judge then noted that the applicant possessed 4,072 unique images and videos across five devices, although they were principally contained on two devices (the home computer tower and a laptop computer). In order to do so, the applicant had deliberately decided to add the onion router to his computer systems to enable him to access and download material from the dark web.
The judge then described the nature and content of the abusive material in the following terms:
[T]he material located on your devices included computer‑generated animation images and videos predominantly depicting school‑aged children in various sexual penetrative acts with children. There was a significant amount of animation relative to the whole array of material.
Also there were images depicting real infants being vaginally penetrated by adult males, images and videos depicting real prepubescent children tied up while being vaginally penetrated by objects used by both male and female, and videos depicting real prepubescent children being sexually penetrated by multiple adult males in what appeared to be orgies. There were other images of children engaging in solo, or young children together engaging in sexual acts.
The Prosecutions written opening went on to describe by way of example a number of the files downloaded and possessed by you. In broad terms, again, what is described are appalling images and videos of preschool and primary school aged children being penetrated in all manner of ways by adults, sometimes more than one. The titles of or attached to the images and the videos made it clear what vile content was contained and would be seen if it were downloaded, as you did.[7]
[7]Ibid [15]–[17].
Based on those matters, the judge considered that the content of the child abuse material, that the applicant had accessed, was ‘… very grave towards the more serious end of the spectrum’.[8] Further, the volume of child abuse material possessed by the applicant was significant and, in those instances where the child was real, ‘every single image and video contained a sexually abused child victim’.[9]
[8]Ibid [18].
[9]Ibid [19].
The judge then outlined the applicant’s background, and described in some detail his involvement with UB. The judge accepted that it was UB who introduced the applicant to drug use and sexually abused the applicant, and that it was UB who introduced the applicant to child abuse material, which he watched to avoid eye contact during the episodes of sexual abuse.[10] However, the judge noted that the applicant had ceased involvement with UB since 2017, five years before the offending that was the subject of the present case. The judge noted that the applicant was abusing drugs on his own during the time of his offending in 2022. He was not then watching child abuse material to avoid UB, but, rather, he engaged in it because he decided to act in that way. Accordingly, the judge did not regard the whole toxic relationship, that the applicant had had with UB, as ‘powerfully mitigatory’.[11]
[10]Ibid [35].
[11]Ibid [38].
The judge accepted that the applicant displayed symptoms suggestive of PTSD arising from the sexual abuse and by contact with UB from 2011 to 2017. The judge accepted that that abuse had left a mark on the applicant’s mental health.[12]
[12]Ibid [38]–[39].
The judge noted that the applicant’s counsel submitted that his impaired mental functioning, diagnosed by Dr Rakov, had played a role in his offending, so that his level of moral culpability should be reduced. In respect of that submission, the judge considered that it was not possible to disentangle the applicant’s drug use at the time of the offending from his emerging PTSD and depression. The judge considered that the causal connection between the applicant’s PTSD and the offending was ‘slight’, with the effect that it reduced his moral culpability to a slight degree only. His Honour accordingly considered that the applicant’s moral culpability remained high.[13]
[13]Ibid [46]–[47].
The judge noted the primacy accorded to general deterrence in cases such as the present, and considered that, notwithstanding any impairment of the applicant’s mental functioning, this was not a case in which the weight given to that sentencing purpose should be reduced.[14] His Honour did, however, accept that the applicant’s PTSD and depression would likely make a term of imprisonment more onerous for him, and that it may result in a deterioration of those two conditions.[15] The judge accepted the applicant was a low risk of re‑offending. The applicant had lost his career as a result of his offending, and he had developed insights. The judge accepted, in that respect, that the applicant was remorseful and ashamed.
[14]Ibid [50]–[51].
[15]Ibid [52].
The judge further accepted that the applicant’s plea of guilty is an important mitigating factor because of its considerable utilitarian value. His Honour accepted that the plea was an acknowledgment, by the applicant, of his responsibility and evidence of his remorse.[16] The judge also took into account that the applicant had made a detailed statement to police concerning the conduct of UB, which was the basis of criminal proceedings that had been instituted against him.[17]
[16]Ibid [56].
[17]Ibid [60].
Based on those considerations, the judge concluded that the applicant had not established the requisite exceptional circumstances under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth). As a consequence of not being satisfied that there were exceptional circumstances, the judge did not have the option of imposing a custodial term of imprisonment but directing that the applicant be immediately released on a recognizance and the provision of security. Accordingly, his Honour concluded that it was necessary to impose a term of imprisonment, albeit that his Honour considered that in the circumstances it would be appropriate that the applicant be subject to a recognizance release after serving twelve months’ imprisonment.

Sentencing principles

The two proposed grounds of appeal involve a consideration and application of the principles that apply to offences involving the accessing and possession of child pornography. The principles have been comprehensively discussed in a number of authorities, including the decision of this Court in Director of Public Prosecutions (Cth) v D’Alessandro[18] and the New South Wales Court of Criminal Appeal in R v De Leeuw.[19] Before considering the proposed grounds of appeal, it is convenient first to outline the principles that apply to the offending in this case.
[18](2010) 26 VR 477 (‘D’Alessandro’); [2010] VSCA 60.
[19][2015] NSWCCA 183 (‘De Leeuw’).
The offences of access to and possession of child pornography are regarded as very serious, involving morally depraved conduct that is extremely harmful to children.[20] Those who are inclined to exploit children, by involving them in the production of child pornography, are encouraged by the fact that there is a market for that material. In other words, the possession of child pornography material creates a market for the continued corruption and exploitation of children by fuelling demand for that material. In that way, it normalises behaviour, which is depraved and exploitive of children.[21]
[20]DPP v Garside [2016] VSCA 74, [62] (Redlich and Priest JJA) (‘Garside’).
[21]Garside [2016] VSCA 74 [71] (Redlich and Priest JJA); D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA, Redlich JA agreeing at [1], Williams AJA agreeing at [45]); [2010] VSCA 60; R v Coffey (2003) 6 VR 543, 552 [30] (Callaway JA); [2003] VSCA 155; R v Fulop (2009) 236 FLR 376; [2009] VSCA 296 [20] (Buchanan JA); De Leeuw [2015] NSWCCA 183 [72] ] (Johnson J, Ward JA agreeing at [1], Garling J agreeing at [188]).
In that context, it is relevant that offending involving accessing or possession of child pornography occurs on an international level and is becoming increasingly prevalent, with the advent and proliferation of the Internet as a means of enabling people to access and retain child pornography.[22]
[22]De Leeuw [2015] NSWCCA 183 [72] (Johnson J); Assheton v The Queen (2002) 132 A Crim R 237, 246–7, [35]–[36] (Malcolm CJ, Murray J agreeing at [42], Steytler J agreeing at [43]; [2002] WASCA 209.
In any case, the objective seriousness of the offending is ordinarily determined by reference to a number of different factors, a number of which were conveniently identified by Johnson J in De Leeuw in the following terms:
The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(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;
(vi)the length of time for which the pornographic material was possessed.[23]
[23]Ibid [72] (citations omitted); see also D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA); [2010] VSCA 60.
In recent times, offending involving child pornography has proliferated, and is difficult to detect in view of the anonymity that is provided by the Internet.[24] Its increasingly pervasive and toxic influence informs the inherent gravity of the offending and the importance of the role of sentencing in addressing the grave harm occasioned by it.
[24]De Leeuw [2015] NSWCCA 183 [76] (Johnson J).
It is for those reasons that the purpose of general deterrence is accorded primacy in sentencing offending involving child pornography. In essence, it is necessary that the sentences imposed by the courts are such that those persons, who might contemplate being involved in the depraved and pernicious reception of child pornography, well understand that if their offending is detected, they will lose their right to be at liberty within society for a substantial period of time. It is only in that way that the courts can perform the vital function of providing protection to vulnerable children.[25]
[25]De Leeuw [2015] NSWCCA 183 [72] (Johnson J); D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA); R v Gent (2005) 162 A Crim R 29, 44 [65] (Johnson J).
In R v Booth,[26] Simpson J (with whom McClellan CJ at CL and Howie J agreed) expressed that principle in the following terms:
A number of previous decisions of this and other appellate courts have found that, in respect of offences of child pornography, general deterrence is, at least, a significant element of the sentencing process: R v Gent; Assheton v R[2002] WASCA 209; 132 A Crim R 237; Mouscas v R [2008] NSWCCA 181. In Assheton, indeed, general deterrence was said to be “the paramount consideration”. This view was endorsed in Gent.
I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.
What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
It is for that reason that this is a crime in respect of which general deterrence is of particular significance. In my opinion the sentencing judge too readily dismissed from consideration the need to convey the very serious manner in which courts view possession of child pornography.[27]
[26][2009] NSWCCA 89.
[27]Ibid [39]–[44] (Simpson J, McLellan CJ at CL agreeing at [1], Howie J agreeing at [57]); see also Garside [71] [2016] VSCA 74 (Redlich and Beach JJ).

Ground 1 – submissions

In support of ground 1, counsel for the applicant submitted that the judge erred in concluding that exceptional circumstances did not exist pursuant to s 20(1)(b)(ii) of the Crimes Act. In particular, counsel noted that the applicant had relied on a number of important mitigating factors. He had pleaded guilty early in the proceeding; he had assisted authorities at the time of his arrest and in interview; he had no previous convictions; and he had sought treatment in relation to his offending. In addition, the applicant was remorseful for his offending, and he was considered to be a low risk of re‑offending.
Counsel for the applicant placed particular emphasis on the sexual abuse, which the applicant had suffered at the hands of UB, and the link between that abuse and the offending in the present case. In that respect, it was submitted that the judge erred in concluding that there was only a slight nexus between the applicant’s PTSD and his offending. Counsel submitted that the unchallenged evidence of Dr Rakov was that it was likely that the applicant’s PTSD and depression provided an explanation for the applicant’s resort to drugs and his engagement with pornographic material that was first introduced to him by UB. Accordingly, Dr Rakov had concluded that the applicant’s mental illness was a contributing factor that compromised his ability to resist engaging in the offending conduct.
Counsel submitted that the judge had taken the correct view of the evidence, constituted by the report of Dr Rakov, concerning the link between the sexual abuse to which the applicant had been subjected at the hands of UB, and his offending in the present case, that consideration alone would have constituted a requisite exceptional circumstance pursuant to s 20(1)(b)(ii) of the Crimes Act. Counsel noted that, in any event, the judge did accept that, as a result of the applicant’s psychological conditions, a term of imprisonment would weigh more heavily on him, and would exacerbate those conditions.
Counsel further submitted that in determining whether the applicant had established the requisite exceptional circumstances, the judge had placed excessive weight on the gravity of the offending. In that respect, counsel noted that a substantial quantity of the images were in fact anime, and were not images of real live children who had been abused. Counsel contended that the large percentage of the offending material that was animated was a relevant factor determining the seriousness of the offending. In that respect, it was submitted the judge placed insufficient weight on that consideration, and, accordingly, placed excessive weight on the gravity of the offending.
Further, it was submitted, the judge mischaracterised the impact on the applicant of the sexual abuse to which he had been subjected by UB. It was submitted that the applicant’s mental health issues, resulting from that abuse, had more than a ‘slight’ impact on his offending.
Accordingly, it was submitted that, based on the judge’s own findings, the judge erred in failing to conclude that the applicant had established the requisite exceptional circumstances.
In response, counsel for the respondent submitted that it was open to the judge to consider that the applicant’s relationship with UB was not as powerfully mitigatory as was urged by the applicant’s counsel during the plea. The applicant had not been using drugs with UB, or watching child abuse material with him, or subject to sexual abuse by UB, since 2017, some five years before the offending. Further, counsel noted, notwithstanding Dr Rakov’s opinion that the applicant had symptoms indicating PTSD, and that he was consuming drugs and drinking alcohol, nevertheless, he had managed to maintain his career as a lawyer and also maintain a four year heterosexual relationship, which had culminated in an engagement.
In addition, counsel noted that Dr Rakov did not consider that there was a direct causal connection between the applicant’s diagnoses and his offending. Similarly, Dr Veal did not consider that the applicant met the criteria for any diagnosable mental illness. Rather, Dr Veal had concluded that a major aspect of the applicant’s psychological condition was reactive to the charges, the prospect of a possible sentence of imprisonment, and negative media coverage impacting on his career. Further, it was submitted, notwithstanding the applicant’s PTSD resulting from his sexual abuse by UB, the fact remained that the applicant ought to have been well aware of the wrongfulness of his actions.
Counsel for the respondent submitted that it was appropriate for the judge to place significant weight on the gravity of the applicant’s offending. The offending was inherently very serious. Contrary to the submissions made on behalf of the applicant, the material in question comprised 700 images and videos that featured highly depraved sexual activity between adults and real children. Each of those children was a victim. The nature of the sexual activity was depraved. Further, while the cartoon or anime child abuse material might not have involved real child victims, the material normalised sexual activity with children. Counsel noted that in respect of the 4,000 images, the applicant had searched for that material by using specific search terms and search words to access it. As the judge noted, the titles to the images and videos made it clear what vile content was contained in it. Thus, it was submitted, the applicant chose to download the material while well aware of its content.
Counsel submitted that it was correct for the judge to conclude that the applicant could not rely on the principles in Verdins[28] to reduce the weight to be given to general and specific deterrence, and that the judge was correct to conclude that the applicant’s psychological condition constituted only a slight diminution in his moral culpability.
[28](2007) 16 VR 269; [2007] VSCA 102.
Counsel concluded by submitting that there was no error in the judge considering that the combination of factors relied on by the applicant did not amount to exceptional circumstances. Most of the factors, so relied on by the applicant, are routinely encountered in offending of the nature engaged in by the applicant. It was submitted that the judge gave appropriate weight to the mitigating factors relied on by the applicant by determining that the sentence imposed on the applicant should require only a custodial term of 12 months.

Ground 1 — analysis and conclusion

In addressing ground 1, it is convenient, first, to consider the issues raised on behalf of the applicant by sub‑paragraph (b) of the particulars, which contend that the judge was ‘wrong’ to conclude that the causal link between the applicant’s offending and his mental health was ‘slight’.
The applicant does not advance that contention as a separate ground, alleging specific error on behalf of his Honour. Rather, in the context of ground 1, it would seem that the proposition advanced under that particular focuses on the weight attributed by the judge to the connection between the applicant’s mental health and his offending.

The submission made on behalf of the applicant is based on the opinion expressed by Dr Rakov that, at the time of the offending, the applicant was experiencing mental illness in the form of post‑traumatic stress disorder. Relevantly, Dr Rakov expressed the view that a direct causal relationship between the applicant’s mental illness and the offending could not be definitively established. Rather, the doctor considered that the applicant’s mental illness and its symptoms were ‘contributing factors and compromised his ability to resist the offending conduct’.
In the context of the offending in question, the opinion so expressed by Dr Rakov was, by its nature, significantly qualified. Dr Rakov did not suggest that the applicant’s PTSD in some way caused or instigated his offending. That is, Dr Rakov did not express the opinion that the applicant’s PTSD in some way mediated his disposition to access and possess child abuse material. Rather, at most, his psychological condition reduced his capacity to resist his urge to engage in the depraved conduct that constituted the offences to which he pleaded guilty.
In that respect, it is relevant that Dr Rakov noted that it was difficult to separate the influence of substance abuse from the applicant’s PTSD at the time of the offending. Dr Rakov was of the view that the applicant’s methamphetamine use probably ‘exacerbated his pre‑existing psychiatric conditions, which, in turn, influenced the offending’. That is, his drug use reduced his capacity to resist his desire to access, retain and view the pornographic material. It is well‑established that, ordinarily, impaired mental functioning resulting from self‑induced intoxication does not mitigate the moral culpability of an offender, or the objective gravity of the offending in question.[29]
[29]Hasan v The Queen (2010) 31 VR 28, 33 [21] (Maxwell P, Redlich and Harper JJA); [2010] VSCA 352.
Thus, taken at its highest, the evidence of Dr Rakov amounted to no more than that the applicant’s psychological condition was a factor that played some role in reducing the applicant’s capacity to resist engaging in the offending.
On the other hand, Dr Veal, the clinical psychologist who conducted 17 treatment sessions with the applicant, commencing in late October 2022, concluded that the applicant did not meet the criteria for any diagnosable mental illness during the entire period of his therapeutic engagement with Dr Veal. Rather, Dr Veal considered that the applicant’s psychological condition at that time constituted a stress reaction to his then circumstances of facing serious criminal offence charges, and the publicity, which had been accorded to his case.
Relevantly, at the time of the offending, the applicant was 33 years of age and engaged in full‑time practice as a lawyer. It is not suggested by Dr Rakov that, at the relevant time, the applicant’s capacity to function professionally was in any way inhibited or compromised. In the four years that preceded the offending, the applicant had been in a romantic relationship with a young woman to whom he had become engaged to be married. Each of those considerations weighed cogently against a conclusion that the applicant’s mental health condition in some way caused or contributed to his offending.
Taking those matters into account, it follows that, contrary to the contention asserted in sub‑paragraph (b) of the particulars to ground 1, the judge was correct to conclude that the causal link between the offending and the applicant’s psychological condition was ‘slight’.
The question, then, is whether the judge erred in concluding that the applicant had failed to demonstrate the existence of exceptional circumstances under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth).
That requirement reflects the inherent gravity of offending that involves the access to, and possession of, child abuse material. As we have earlier explained, it is well‑recognised that the offending, in which the applicant engaged, creates a market that fuels demand for material produced by the corruption and exploitation of vulnerable and innocent children. The degrading acts to which children, in such material, are subjected, robs them of their innocence, destroys their childhood, and inevitably inflicts irreparable and life‑long severe harm to them. The type of conduct contained in the material, to which the applicant had access, was alien to all basic decent human instincts and values. The normal, healthy reaction of any decent adult person is to care for and protect children. The kind of material, which the applicant accessed and possessed, was anathema to the most fundamental human values of our society. Most significantly, the law properly recognises that the kind of offending in which the applicant engaged creates a market for the continued corruption and exploitation of children, and normalises behaviour, which is entirely perverted and depraved.
It is for those reasons that, contrary to the submission made on behalf of the applicant, it could not be concluded that the judge placed excessive emphasis on the gravity of the offending in the present case. The applicant possessed a very significant number of images, each of which depicted sexual abuse of children. While the majority of the images constituted animated child abuse material, that factor alone does not weigh heavily in the scales in determining the existence of the requisite exceptional circumstances. That imagery was profoundly depraved, and the applicant’s access to, and possession of, that amount of material, of itself, contributed to the stimulation of demand for child abuse material. Further, the possession, by the applicant, of approximately 700 images of real abused children was a matter of significant gravity. The capacity of the applicant to access and possess such material, knowing that real children had been abused in order to produce it, reflects significantly on the moral gravity of the applicant’s offending.
Further, the covert steps that were taken by the applicant to access the child abuse material from the ‘dark web’ bespeaks a significant degree of premeditation and planning, and reflects the applicant’s clear understanding of the proscribed nature of his conduct. As counsel for the respondent noted, the applicant searched for the material, that he downloaded, by using specific search terms and words to access it. The titles to the material made it clear what they contained, and the nature and content of the material that he was accessing and downloading.
In that context, it must be kept in mind that the applicant is an intelligent person who, at the time, was engaged in a professional career of some significance. His relationship with UB had ceased some five years before the offending. During that relationship, the applicant was an adult aged between about 22 and 28 years. In the four years preceding the offending, the applicant had been involved in a relationship with a young woman, who he had planned to marry. The judge was correct to acknowledge the element of choice on the part of the applicant in behaving the way that he did. Whatever the effect of his unseemly relationship with UB, and the abuse to which UB subjected him, that circumstance could not constitute any justification, or mitigating factor, for the applicant indulging in the depraved offending in the present case.
Taking those matters into account, in our view, the judge was correct to conclude that the applicant had not established the requisite exceptional circumstances under s 20(1)(b)(ii) of the Crimes Act that would justify the imposition of a non‑custodial sentence in the case.
It follows that ground 1 of the application for leave to appeal must fail.

Ground 2 — submissions

In support of ground 2, counsel for the applicant acknowledged that the offending in the case was serious. However, counsel noted that the possession of the material in question, that was the subject of charge 1, was for a period of one day. The accessing of the material, that was the subject of charge 2, was for a relatively short period of four weeks. Further, counsel reiterated that a majority of the material constituted animated child abuse material. Nevertheless, counsel accepted that there were approximately 700 images of real abused children, which was serious.
Counsel submitted that there were significant mitigating factors, which were required to be taken into account. That included the following: the guilty plea entered when the Worboyes[30] ‘discount’ was operative; the applicant had exhibited remorse and had made full admissions of his offending; he had assisted the authorities when he was arrested; the applicant had received treatment for his offending; he had lost his career as a result of it; and he had no previous criminal history. In addition, the judge found that, as a consequence of his psychological condition, the applicant’s moral culpability should be slightly moderated. The judge also concluded that: as a result of the applicant’s PTSD and major depressive disorder, he would find prison more onerous; the applicant’s offending had, as its genesis, his grooming and abuse by UB; and the applicant had developed an insight, and his risk of re‑offending was low.
[30]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
Taking those matters into account, counsel for the applicant submitted that the individual sentences on each of the two charges, and the order for cumulation, were each manifestly excessive.
In response, counsel for the respondent submitted that it was well open to the judge to impose the individual sentences, the total effective sentence, and the pre‑release period determined by him. The offending by the applicant, involving child abuse material, is inherently serious, and it is recognised that, ordinarily, a sentence of actual imprisonment is warranted in respect of such offending. In such a case, primacy must be given to general deterrence, because child abuse material may be readily and freely available on the internet, where there is an active market for such material.
Counsel further submitted that in the present case, the judge correctly considered the offending to be objectively grave. The applicant was in possession of a significant number of unique images and videos on his five devices. The applicant had accessed child abuse material over a four‑week period in 2022, so that the offending was neither isolated nor spontaneous. In particular, it is relevant that the applicant had access to a TOR browser on a laptop, which enabled him to access the dark web, thereby keeping communications and access to child abuse material anonymous.
Counsel further noted that the child abuse material held by the applicant featured highly depraved and vile content, which included animated depictions of school aged children engaging in sexual penetrative acts with other children, images of real infants being vaginally penetrated by adult males, images and videos depicting real prepubescent children tied up while being vaginally penetrated by objects, and videos depicting real prepubescent children being sexually penetrated by multiple adult males in what appeared to be orgies.[31] It was submitted that, in those circumstances, the content of the material warranted an assessment as being towards the more serious end of the spectrum.
[31]Reasons, [16].
Further, counsel noted, in determining the seriousness of the offending, the judge properly took into account the maximum sentence prescribed for each of the two charges, namely, 15 years’ imprisonment. It was further submitted that the moral culpability of the applicant was high. His Honour correctly observed that persons who access and possess child abuse material create a market for the production of such material, which harms children all over the world.
Counsel noted that the judge did give appropriate weight to each of the matters relied on in mitigation of sentence. The judge outlined, and gave appropriate weight to each of those factors. Further, notwithstanding the statutory presumption of full cumulation between the two offences, the judge did not order total cumulation.
In those circumstances, it was submitted that the sentences imposed on each of the two charges, the degree of cumulation ordered, the total effective sentence, and the pre‑release period, were each not manifestly excessive.

Ground 2 — analysis and conclusion

In order to establish the proposed ground of appeal, that the individual sentences, and the total effective sentence, are each manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. Such a test is, of its nature, a stringent requirement. It is not sufficient for the applicant to establish that the individual sentences, the orders for cumulation, or the total effective sentence were longer than this Court might have imposed in the circumstances of the case. Rather, the applicant must demonstrate that the sentences were so excessive as to bespeak error by the judge in the exercise of the sentencing discretion.[32]
[32]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v McArthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In considering ground 2, the starting point is that the two offences, to which the applicant pleaded guilty, are inherently serious, as reflected by the prescribed maximum sentence of 15 years’ imprisonment for each offence. The intrinsic gravity of each offence is also reflected in s 20(2)(b)(ii) of the Crimes Act, to which we have referred, and which stipulates that a sentence of imprisonment must be imposed unless the court is satisfied that there are exceptional circumstances, which would justify the imposition of a non‑custodial sentence.
As earlier discussed, in view of the nature of the offences, the sentencing purposes of general deterrence and denunciation must be accorded primacy in any sentencing disposition. It is of primary importance that sentences imposed by the courts, for such offences, are such that persons who might be minded to engage in such offending will well understand that if their offending is detected, they will be deprived of their freedom to live within society for a substantial period of time. It is in that way that the courts can perform their vital function of protecting vulnerable children in our society.
Further, and allied to that, it is necessary that the sentences imposed for such offending be such as to properly reflect the condemnation by the courts and society of the heinous and vile nature of the offences, and to vindicate and uphold the value which society rightly places on the protection of its children and young persons.
In the present case, for the reasons already outlined, the offending by the applicant was particularly serious. The applicant had access to, and downloaded, a large number of files, using five devices, by resorting to the use of a TOR browser. Those files were obtained by the applicant from the dark web. He had selected them, having some knowledge of their content, and he had chosen to retain them in his devices.
The nature of the material so accessed and retained by the applicant, was utterly vile. As we have earlier described in these reasons,[33] it involved the most repulsive and depraved images of grave and appallingly cruel sexual offending against young, innocent, vulnerable children. Although the majority of the images accessed and retained by the applicant were animated, nevertheless, there was also 700 images involving the abuse of real live children.
[33]Above, [31].
It was accepted by the prosecution on the plea that the applicant had been subjected to sexual abuse by UB in the course of their manipulative relationship. However, as discussed, the judge correctly concluded that that abuse had, at best, only a slight causative link with the offending for which the applicant was sentenced. The applicant had the advantage of a good education, and a successful career. He was involved in a healthy relationship with a young woman. In the circumstances, there was little, if anything, which could mitigate the applicant’s subjective responsibility for the offending. His moral culpability was at a very high level.
It is in that context that the judge took into account the mitigating factors upon which the applicant relied. It is accepted that those mitigating circumstances were quite substantial. The applicant’s guilty plea was of genuine utilitarian value. That plea was entered in the context of the COVID‑19 pandemic, and, as such, its utilitarian value was enhanced.[34] The applicant made admissions, and he had received treatment for his offending. He had no previous convictions. As a consequence of his offending, he has lost his career, to which, it would seem, he was particularly committed.
[34]Worboyes [2021] VSCA 169.
Taken together, those mitigating factors were by no means insubstantial. Nevertheless, according them full weight, it could not be properly concluded that the individual sentences imposed on the applicant, and the total effective sentence, were manifestly excessive. Rather, in the absence of those mitigating factors, those sentences imposed on the applicant would have been excessively lenient. If not for the mitigating factors, the sentences imposed on the applicant could not have properly reflected the objective gravity of the offending or the applicant’s moral culpability for it, and, as such, would not have vindicated the important sentencing purposes of general deterrence and denunciation. Indeed, we must observe that, notwithstanding the applicant’s mitigating factors, it might well be considered that the individual sentences imposed on the applicant, and the total effective sentence, necessarily reflect that the judge accorded full, if not generous, weight to the mitigating factors relied on by the applicant.
It follows from the foregoing that we are not persuaded that the sentences imposed on the applicant were manifestly excessive. Accordingly, ground 2 of the application for leave to appeal must also fail.

Summary of conclusions

For the foregoing reasons, the applicant has not succeeded on either ground of appeal. Accordingly, the application for leave to appeal is refused.

[2024] VSCA 211

19 September 2024