Cullinan-Smayle v The King - [2025] VSCA 109

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0125

TRISTAN CULLINAN-SMAYLE	Applicant
v
THE KING	Respondent

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JUDGES:	ORR & KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2025
DATE OF JUDGMENT:	22 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 109
JUDGMENT APPEALED FROM:	DPP v Cullinan-Smayle & Heels [2023] VCC 480 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Serious online sexual offending – Applicant pleaded guilty to using carriage service to procure a person under 16 years of age for sexual activity (charges 1 and 3), using carriage service to cause child pornography material to be transmitted to self (charge 2), using carriage service to cause child abuse material to be transmitted to self (charges 4 and 6), using carriage service to transmit child abuse material (charges 5 and 7 to 22), and possessing or controlling child abuse material obtained or accessed using carriage service (charge 23) – Total effective sentence of 10 years’ imprisonment with non-parole period of 6 years and 7 months – Applicant engaged in majority of offending with co-offender – Co-offender also pleaded guilty to charges – Co-offender sentenced to 11 years’ imprisonment with non-parole period of 7 years and 3 months – Total effective sentence of co-offender reduced to 8 years with non-parole period of 5 years and 6 months on appeal – Whether disparity between sentences of applicant and co-offender manifestly excessive – Application for leave to appeal granted – Appeal allowed.

Criminal Code (Cth), ss 474.19, 474.22, 474.22A, 474.26 and 474.27A; Crimes Act 1958, ss 46D, 49F; Crimes Act 1914 (Cth), ss 16A, 16BA, 19, referred to.

Heels v The King [2024] VSCA 133; R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Cth) v D’Alessandro (2016) 26 VR 477; Crowder (a pseudonym) v The King [2024] VSCA 211; R v De Leeuw [2015] NSWCCA 183; R v Edwards [2019] QCA 015; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.

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Counsel
Applicant:		Mr PJ Smallwood with Mr JJ Bourke
Respondent:		Ms R Champion
Solicitors
Applicant:	Leanne Warren & Associates
Respondent:	Mr Mark de Crespigny, Commonwealth Solicitor for Public Prosecutions

ORR JA

KAYE JA:

The applicant pleaded guilty in the County Court to 23 charges relating to the online sexual exploitation of children, which consisted of 17 charges of using a carriage service to transmit child abuse material (s 474.22(1) Criminal Code (Cth)) (‘Criminal Code’);[1] two charges of using a carriage service to cause child abuse material to be transmitted to himself (s 474.22(1) Criminal Code); one charge of using a carriage service to cause child pornography material to be transmitted to himself (s 474.19(1) Criminal Code);[2] two charges of using a carriage service to procure a child under the age of 16 years for sexual activity (s 474.26(1) Criminal Code); and one charge of possessing or controlling child abuse material…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSCA 109
Decision Date: 22 May 2025

CaseChat Overview and Summary

Cullinan-Smayle was convicted and sentenced in the County Court of Victoria for various serious online sexual offences involving children. The applicant pleaded guilty to multiple charges including using a carriage service to procure a person under 16 years for sexual activity, causing child pornography and child abuse material to be transmitted to himself, and transmitting child abuse material. He was sentenced to a total effective term of 10 years’ imprisonment with a non-parole period of 6 years and 7 months. The applicant's co-offender, who was also convicted of similar offences, was sentenced to 11 years’ imprisonment with a non-parole period of 7 years and 3 months. However, on appeal, the co-offender's sentence was reduced to 8 years with a non-parole period of 5 years and 6 months.

The main legal issue before the court was whether the disparity between the applicant's sentence and the co-offender's reduced sentence was manifestly excessive. The applicant argued that his sentence should be reduced to match that of his co-offender, given their similar roles in the offending. The court considered relevant authorities and principles regarding sentencing disparity between co-offenders. It also considered the nature and circumstances of the offending, the applicant's role, culpability and remorse, and the need for deterrence and denunciation.

The court found that the disparity between the applicant's sentence and his co-offender's reduced sentence was indeed manifestly excessive. The applicant had played a major role in the offending but had shown genuine remorse and cooperated with authorities. The co-offender's reduced sentence took into account similar factors. Given the similar roles of the applicant and co-offender, the court concluded that the applicant's sentence should be reduced to match the co-offender's reduced sentence of 8 years with a non-parole period of 5 years and 6 months. The appeal was therefore allowed and the applicant's sentence was reduced accordingly.

The final orders were that the applicant's total effective sentence be reduced to 8 years' imprisonment with a non-parole period of 5 years and 6 months. The applicant's application for leave to appeal was granted and the appeal was allowed. The applicant's sentence was reduced to match that of his co-offender.

Orders