Cullinan-Smayle v The King
[2025] VSCA 109
•22 May 2025
| 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 obtained or accessed by using a carriage service (s 474.22A(1) Criminal Code). In addition, pursuant to s 16BA of the Crimes Act 1914 (Cth) (‘Commonwealth Crimes Act’), the applicant consented to the Court taking into account on sentence five further offences to which he admitted his guilt (‘schedule offences’).[3] The schedule offences consisted of three further instances of using a carriage service to transmit child abuse material to himself (s 474.22(1) Criminal Code) and two instances of using a carriage service to transmit indecent communications to a person under 16 years of age (s 474.27A(1) Criminal Code).
[1]The Criminal Code comprises the schedule to the Criminal Code Act 1995 (Cth).
[2]Section 474.19(1) of the Criminal Code has subsequently been repealed and the conduct proscribed by that provision is now proscribed by s 474.22(1).
[3]Section 16BA of the Commonwealth Crimes Act enables a court that is sentencing a person who has been convicted of a federal offence or offences to take into account further admitted offences provided certain procedural requirements are satisfied.
Following a plea presented on his behalf, the applicant was sentenced, on 31 March 2023, to a total effective term of 10 years’ imprisonment, with a non-parole period of 6 years and 7 months. That sentence was comprised as follows:
| Charge | Offence | Max Penalty | Sentence | Commencement |
| 1 | Use carriage service to procure person under 16 for sexual activity (s 474.26 Criminal Code) | 15 years | 4 years’ imprisonment | Commences 31 March 2023 (date of sentence) |
| 2 | Use carriage service to cause child pornography material to be transmitted to self (s 474.19 Criminal Code) | 15 years | 4 years imprisonment | Commences 31 March 2024 |
| 3 | Use carriage service to procure person under 16 for sexual activity (s 474.26 Criminal Code) | 15 years | 3 years 6 months’ imprisonment | Commences 31 March 2025 |
| 4 | Use carriage service to cause child abuse material to be transmitted to self (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2025 |
| 5 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 6 years imprisonment | Commences 31 March 2027 |
| 6 | Use carriage service to cause child abuse material to be transmitted to self (s 474.22 Criminal Code) | 15 years | 5 years 6 months’ imprisonment | Commences 31 March 2027 |
| 7 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 8 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 9 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 10 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 11 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 12 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 13 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 14 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 15 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2023 (date of sentence) |
| 16 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 3 years’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 17 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 18 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 19 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 20 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 21 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 31 March 2026 (3 years from date of sentence) |
| 22 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 3 years’ imprisonment | Commences 31 March 2023 (date of sentence) |
| 23 | Possess or control child abuse material obtained or accessed by carriage service (s 474.22A Criminal Code) | 15 years | 6 years’ imprisonment | Commences 31 March 2027 |
| Total Effective Sentence (Cth): Non-Parole Period: | 10 years’ imprisonment 6 years and 7 months | |||
| Pre-sentence Detention Declared: | 673 days | |||
| Other Relevant Orders: 1. Pursuant to the Sex Offenders Registration Act 2004 (Vic), the length of the reporting period is life. | ||||
The applicant committed the majority of the offences with his intimate partner, Benjamin Heels. Heels pleaded guilty to 28 charges, namely, 20 charges of using a carriage service to transmit child abuse material (s 474.22(1) Criminal Code), one charge each of using a carriage service to cause child abuse material to be transmitted to himself (s 474.22(1) Criminal Code), and possessing or controlling child abuse material accessed or obtained by using a carriage service (s 474.22A(1) Criminal Code), together with two charges of sexual assault of a child under 16 years (s 46D Crimes Act 1958 (Vic)) (‘Victorian Crimes Act’), and four charges of engaging in sexual activity in the presence of a child under 16 years of age (s 49F Victorian Crimes Act). In addition, pursuant to s 16BA of the Commonwealth Crimes Act, Heels consented to the Court taking into account on sentence seven schedule offences. The schedule offences consisted of three further instances of using a carriage service to transmit child abuse material to himself (s 474.22(1)) Criminal Code) and four instances of producing child abuse material with the intention to transmit the material (s 474.23(1) Criminal Code).
Heels was sentenced, on 31 March 2023, to a total effective sentence of 11 years’ imprisonment, with a non-parole period of 7 years and 3 months.
Heels successfully appealed his sentence to this Court. He was re-sentenced to a total effective term of 8 years’ imprisonment, with a non-parole period of 5 years and 6 months.[4]
[4]Heels v The King [2024] VSCA 133 (‘Heels’).
The sentences originally imposed on Heels, and the sentences substituted on appeal, are as follows (the sentences originally imposed but set aside on appeal are crossed out):
| Charge | Offence | Max Penalty | Sentence | Commencement/ Cumulation |
| State Sentences | ||||
| 1 | Sexual assault of a child under 16 (s 49D Victorian Crimes Act) | 10 years | 4 years’ imprisonment | Base |
| 2 | Sexual activity in the presence of a child under 16 (s 49F Victorian Crimes Act) | 10 years | 4 years’ imprisonment | None |
| 3 | Sexual activity in the presence of a child under 16 (s 49F Victorian Crimes Act) | 10 years |
3 years’ imprisonment | None |
| 5 | Sexual activity in the presence of a child under 16 (s 49F Victorian Crimes Act) | 10 years | 3 years’ imprisonment | 3 months |
| 22 | Sexual assault of a child under 16 (s 49D Victorian Crimes Act) | 10 years | 3 years’ imprisonment | 3 months |
| 23 | Sexual activity in the presence of a child under 16 (s 49F Victorian Crimes Act) | 10 years | 3 years’ imprisonment |
None |
| Commonwealth Sentences | ||||
| 4 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
3 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 6 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 7 | Use carriage service to cause child abuse material to be transmitted to self (s 474.22 Criminal Code) | 15 years |
3 years’ imprisonment |
Commences 1 year after expiration of the State non-parole period |
| 8 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
4 years’ imprisonment |
Commences 1 year after expiration of the State non-parole period |
| 9 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
2 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 10 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year imprisonment |
Commences at the expiration of the State non-parole period |
| 11 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 12 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
3 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 13 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 14 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year imprisonment |
Commences at the expiration of the State non-parole period |
| 15 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 16 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 17 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 18 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 19 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 20 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year imprisonment |
Commences at the expiration of the State non-parole period |
| 21 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 24 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
3 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 25 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
2 years’ imprisonment |
Commences at the expiration of the State non-parole period |
| 26 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 27 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years |
1 year 6 months’ imprisonment |
Commences at the expiration of the State non-parole period |
| 28 | Possess or control child abuse material obtained or accessed by carriage service (s 474.22A Criminal Code) | 15 years |
4 years’ imprisonment |
Commences 1 year after the expiration of the State non-parole period |
| Total Effective Sentence (State): Non-Parole Period: |
3 years | |||
| Total Effective Sentence (Cth): Non-Parole Period: |
| |||
| Total Effective Sentence (State & Cth): Non-Parole Period: |
| |||
| Pre-sentence Detention Declared: | | |||
| Section 6AAA Declaration (State & Cth):[5] | 10 years’ imprisonment with a non-parole period of 7 years | |||
| Other Relevant Orders: 1. Sentenced as a serious sexual offender on charges 3, 5, 22 and 23 pursuant to s 6F of the Sentencing Act 1991 (Vic). 2. Life reporting under the Sex Offenders Registration Act 2004 (Vic). | ||||
[5]This is the s 6AAA declaration made on appeal. The sentencing judge only made a s 6AAA declaration for the State offences, which was 7 years’ imprisonment with a non-parole period of 5 years. As this Court observed in Heels v The King, the usual practice in this Court has been to treat s 6AAA of the Sentencing Act 1991 as applicable to sentences for Commonwealth offences: [2024] VSCA 133, [54] (Priest and Niall JJA).
The applicant seeks leave to appeal against sentence on two grounds, namely:
Ground 1: The sentences imposed — in particular, the individual sentences, the orders relating to commencement dates later than 31 March 2023 (that provided for cumulation), the total effective sentence and the non-parole period fixed — were each manifestly excessive.
Ground 2: The sentences imposed on the applicant now contravene the parity principle having regard to the sentences that his co-offender is now serving.
Summary of offending
In summary, the applicant’s offending was committed over three periods of time, namely, between late 2017 and late 2019 (charges 1 and 2), between April 2020 and June 2020 (charges 3 and 4), and in May 2021 (charges 5 to 23). The offending involved 18 identified child victims, and a number of other unidentified children. Nine of the charges against the applicant are rolled-up charges (charges 2, 5, 6, 7, 8, 9, 13, 16 and 23).
The applicant’s offending involved: the use of social media to procure two children for sexual activity; requesting, and, in response, receiving self-produced child abuse material from those two children; sending child abuse material to one of those child victims; exchanging child abuse material with Heels, which consisted of a large amount of images, videos and written material; and possessing or controlling 3,019 images and videos of child abuse material across two electronic devices.
The offending by the applicant, and by Heels, was set out in detail in a comprehensive prosecution opening on the hearing of the plea. In her reasons for sentence,[6] the judge summarised the offending and, in doing so, understandably and properly, desisted from describing in detail the offending, which was disturbing and distressing. For the purposes of this application, it is sufficient for us, generally, to adopt the same course as that taken by her Honour. In doing so, it is convenient to note the judge’s assessment of the gravity of each of the offences. For the purposes of ground 2, we will also note the sentence imposed on Heels in respect of the charges which were common to both the applicant and Heels.
[6]DPP v Cullinan-Smayle and Heels [2023] VCC 480 (‘Reasons’).
In assessing the gravity of the offending, the judge adopted the INTERPOL Baseline Scale for categorising child abuse material. By that system, Category 1 incorporates material that depicts a real prepubescent child involved in a sex act and witnessing a sex act, or material which focuses on the anal or genital region of the child. Category 2 incorporates other child abuse material which is illegal in Victoria but which does not fit within Category 1.
At the time of the offending, the applicant and Heels were each 32 years of age. They had been living together for some time in Berwick. The applicant was employed as a chef, and he ran a business selling baked goods. He held a Working with Children Check, which he had registered with multiple performing arts organisations as a volunteer. He had been involved in the amateur performing arts scene in south-east Melbourne for some 10 years. The applicant and Heels often took part in musical productions together.
At the time of the offending, Heels also held a Working with Children Check, registered with multiple organisations. He was employed: by Fountain Gate Secondary College as a music teacher, teaching small group and private music lessons to students; by Triple Threat Academy (a performing arts school) as a singing teacher; by Songbirds School of Performing Arts as a private piano and singing teacher; and by Masquerade Talent Studios (a performing arts studio) as a singing teacher, pianist and director.
Victim A
Charge 1 on the indictment against the applicant alleged that, between 1 December 2017 and 13 December 2019, he used a carriage service to transmit communications to victim A, with the intention of procuring victim A, who was a person under the age of 16 years, to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code.
At the time of the offending, victim A was aged between 14 years and 17 years. When he was 14 years old, he accepted a friend request from the applicant on Snapchat. They had not previously known each other. They commenced by engaging in general conversation, in the course of which the applicant asked victim A about his interests and his sexual preference. During the next two to three months, they exchanged messages. The applicant told victim A that he was homosexual, that he was in an open relationship with his partner, and that his partner did not meet his sexual needs.
At some point, victim A became uncomfortable with the applicant and unfriended him on Snapchat. The applicant persisted in communicating with victim A on Instagram, and victim A then added the applicant back as a friend on Snapchat. The applicant, on numerous occasions, asked victim A to meet him face-to-face, so that they could engage in sexual activity. The applicant sent victim A messages that said things like, ‘Let’s have sex, oral, fucking’. The applicant planned meetings with victim A in victim A’s local area. Victim A felt uncomfortable and afraid as a result of those messages, and he declined to meet with the applicant. By his plea, the applicant accepted that his communications with victim A on Snapchat and Instagram were intended to procure victim A for sexual activity. It was that conduct that constituted the offence that was the subject of charge 1.
Offence 1 on the s 16BA schedule, which was taken into account in sentencing the applicant on charge 1, was that between 1 December 2017 and 13 December 2021, the applicant used a carriage service to transmit indecent communications to a person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code. That offending consisted of the applicant, between those dates, sending to victim A between 6 and 12 photographs and videos of himself, naked and/or masturbating.
The judge characterised the offending by the applicant, that was the subject of charge 1, as particularly egregious, taking into account matters such as the period of time over which the offending occurred, and the applicant’s persistence toward a vulnerable child.[7] The applicant was sentenced on charge 1 to 4 years’ imprisonment.
[7]Reasons, [72].
Charge 2 on the indictment alleged that, between 1 December 2017 and 20 September 2019, the applicant used a carriage service to cause child pornography material to be transmitted from victim A to himself, contrary to s 474.19(1) of the Criminal Code.
Charge 2 was based on the conduct of the applicant in requesting, on at least 12 occasions, that victim A send to him nude photographs or videos of himself masturbating or engaging in sexual activity with adult men, or children of either sex. In response, victim A sent the applicant 12 photographs and videos of himself naked, exposing his penis or masturbating. In addition, the applicant sent messages to victim A, asking him whether he had access to children. The applicant also asked victim A on numerous occasions to engage in sexual activity with other people, especially children to whom victim A had access, and to take photographs and videos of that activity to send to the applicant. The applicant’s mobile telephone, when searched, was found to contain images and videos of victim A and victim A’s nephew, who was born in 2015. Those images had been sent by victim A to the applicant in response to the applicant’s request for a video of victim A playing with his nephew, and were not child abuse material. The applicant also sent victim A messages, asking that victim A bounce his nephew on his lap and engage in sexual activity with him. Victim A refused to participate in that behaviour.
Offences 2 and 3 on the s 16BA schedule, which were taken into account in sentencing on charge 2, related to the encouragement, by the applicant, of victim A to continue sending pornographic images of himself when he was almost 16 years of age, and after he had turned 16.
The judge characterised the offending, that was the subject of charge 2, as constituting a serious criminal offence.[8] The applicant was sentenced to 4 years’ imprisonment on that charge.
[8]Ibid [78].
Charge 15 on the indictment alleged that, on 7 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim A, contrary to s 474.22(1) of the Criminal Code.
On that date, the applicant used the application Telegram to send to Heels (his co-offender) seven videos of victim A that constituted Category 2 child abuse material. They included videos of victim A masturbating and penetrating his anus with his fingers.
After the applicant had sent five of those videos to Heels, Heels responded, acknowledging that victim A was ‘illegal’, and expressing his desire to perform a sexual act on victim A. The applicant replied, suggesting that victim A would be responsive to that act, and sent Heels a further video of victim A.
In her reasons for sentence, the judge considered that the videos, that the applicant forwarded to Heels, were serious examples of child abuse material. The offending by the applicant was described as objectively serious, given that: victim A was known to the applicant and the offending constituted a breach of his trust; the consequences for victim A were apparently irrelevant to the applicant; and the transmission of the videos was obviously intended to sexually arouse Heels.[9] The judge sentenced the applicant to 2 years and 6 months’ imprisonment on charge 15.
[9]Ibid [81]–[82]. The judge described the images as comprising Category 1 child abuse material, but it appears they were in fact Category 2 child abuse material.
Heels’ participation in the Telegram messages was the subject of charge 20 on Heels’ indictment. The judge noted that the offending was a further example of Category 2 child abuse material being exchanged between Heels and the applicant, which had occurred on a single day.[10] Her Honour imposed a sentence of 2 years’ imprisonment on Heels. On appeal, that sentence was reduced to 1 year imprisonment.
[10]Ibid [253]–[254].
Charge 22 on the indictment alleged that, on 21 May 2021, the applicant used a carriage service to transmit child abuse material to victim A, contrary to s 474.22(1) of the Criminal Code.
On that date, the applicant used the application Telegram to send six image files, containing both Category 1 and Category 2 child abuse material, to victim A, who was then 17 years of age.
The material comprised images of a number of male children, aged between one year and 14 years: being orally penetrated by an adult male’s erect penis; having their penis held by an adult hand; and having their penis and genitals exposed.
The judge noted that the fact that those images were forwarded to a young adult, from whom the applicant was seeking further pornography, was a feature of his manipulative and self-centred behaviour. The judge described the applicant’s offending as objectively serious.[11] The applicant was sentenced, on charge 22, to 3 years’ imprisonment.
Victim B
[11]Ibid [86].
Charges 3 and 4 concern conduct of the applicant involving victim B, who was then 15 years of age. Victim B had been a student at one of the talent studios where Heels had previously worked.
Charge 3 alleged that, between 1 April 2020 and 22 June 2020, the applicant used a carriage service to transmit communications to victim B, a person under 16 years of age, with the intention of procuring victim B to engage in sexual activity with him, contrary to s 474.26(1) of the Criminal Code.
In April 2020, the applicant started to message victim B on Instagram, and they chatted about victim B’s musical theatre performances and other daily interests. At some point in April or May 2020, the applicant escalated the conversations to involve sexual topics. He started to send victim B nude photographs of himself, he told victim B that he wished that victim B was homosexual, and he asked victim B whether he had ever previously watched pornography. The applicant encouraged victim B to masturbate in particular ways, and to send him photographs of himself doing so, and also to send other intimate images of himself. Victim B complied with that request, and sent to the applicant about five sexually explicit photographs and videos of himself. In addition, the applicant requested video calls with victim B. At the end of their conversations, the applicant requested victim B to delete messages he had sent. He pressed victim B to do so ‘because otherwise we’ll be found out’. As the judge noted, this demonstrated that the applicant was aware of the serious criminal conduct involved in his communications.[12]
[12]Ibid [92].
By his plea to charge 3, the applicant accepted that his communications with victim B on Instagram were intended to procure victim B for sexual activity.
Offence 4 on the s 16BA schedule, which was taken into account in sentencing the applicant for charge 3, was an offence of using a carriage service to transmit indecent communications to a person under the age of 16 years, contrary to s 474.27A(1) of the Criminal Code. The offence consisted of the applicant sending to victim B, over the same period as that covered by charge 3, between four and seven sexually explicit photographs and videos of himself, naked, with a sex toy, and masturbating.
In sentencing the applicant on charge 3, the judge noted that the applicant’s behaviour had been manipulative, exploitative and self-centred, and that the applicant had disregarded the harm that he undoubtedly caused to victim B by such behaviour.[13]
[13]Ibid [93].
Taking into account the number of weeks over which the offending occurred and the age of victim B, as well as the applicant’s persistence in the conduct, the judge regarded the offence, constituted by charge 3, as objectively serious.[14] The applicant was sentenced on that charge to 3 years and 6 months’ imprisonment.
[14]Ibid [95].
Charge 4 on the indictment alleged that, between 1 April 2020 and 22 June 2020, the applicant used a carriage service to cause child abuse material to be transmitted to himself from victim B, contrary to s 474.22(1) of the Criminal Code. During that period, the applicant persuaded victim B to transmit to him intimate images, which constituted Category 2 child abuse material, on Instagram. Screen captures of the images were saved to the applicant’s iPhone on 16 December and 17 December 2020. The judge considered that the offence, that was the subject of charge 4, was of ‘slightly less objective seriousness’.[15] The applicant was sentenced, on charge 4, to 2 years and 6 months’ imprisonment.
Victim C
[15]Ibid [98].
Charge 7 on the indictment alleged that, between 3 May 2021 and 20 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim C contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim C was 10 years of age. In 2021, victim C performed in a local musical theatre production, in which the applicant participated as a pit singer. Heels was the musical director of the production. On four or five occasions, Heels gave victim C a lift to or from the rehearsals.
Charge 7 was a rolled-up charge which reflected four occasions on which the applicant sent child abuse material to Heels in the form of Telegram messages that contained sexually explicit references to victim C. The messages constituted Category 2 child abuse material.
(a)On 3 May 2021, Heels sent to the applicant a video of a male child (not victim C) attending a piano lesson with Heels. The focus of the video was on the child’s shorts. The video prompted an exchange between Heels and the applicant in which the applicant described sexual acts that Heels could have engaged in with victim C before driving him home.
(b)On 6 May 2021, the applicant sent a photograph of victim C holding a toy banana near his mouth to Heels, followed by a Telegram message in which he expressed the wish that the toy banana was the applicant’s penis.
(c)On 14 May 2021, in an exchange of messages on Telegram between the applicant and Heels, the applicant expressed a desire to sexually penetrate victim C’s mouth with his penis.
(d)On 20 May 2021, a further exchange of messages on Telegram occurred between the applicant and Heels, in which the applicant, in crude terms, expressed a desire to hold victim C’s legs to his head, and to penetrate his anus.
The judge considered that the offending, that constituted charge 7, was objectively serious, taking into account that: the offending occurred over a period of three weeks; the age of victim C; the fact that victim C was personally known to the applicant and Heels; the breach of trust involved in the offending; and the number of conversations containing child abuse material that took place.[16] The judge sentenced the applicant to 2 years’ imprisonment on charge 7.
[16]Ibid [106].
Heels’ participation in some of this conduct was the subject of charge 21 on Heels’ indictment. This was a rolled-up charge reflecting two occasions on which Heels sent the applicant sexually explicit references to victim C that constituted Category 2 child abuse material, as part of the exchanges of messages on Telegram on 14 May 2021 and 20 May 2021 that are referred to in [42] above. Taking into account the range of days on which the offending occurred and the breach of trust involved, the judge regarded Heels’ offending as a serious example of the offence, and sentenced him to 2 years’ imprisonment.[17] On appeal, that sentence was reduced to 1 year and 6 months’ imprisonment.
Victim D
[17]Ibid [257].
Charge 8 alleged that, between 3 May 2021 and 21 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim D contrary to s 474.22(1) of the Criminal Code.
Victim D at all times lived in the United Kingdom and he had no known connection with either the applicant or Heels. Charge 8 was a rolled-up charge reflecting two occasions on which the applicant sent child abuse material to Heels, in the form of Telegram messages, which contained written descriptions and explicit sexual conversations concerning victim D.
(a)In one conversation, prompted by the applicant sending Heels a video of victim D downloaded from a publicly accessible Instagram account in victim D’s name, the applicant said to Heels, ‘I would destroy this kid’.
(b)In a further conversation, prompted by the applicant sending Heels two further videos of victim D downloaded from victim D’s Instagram account, the applicant twice expressed a desire to ‘fuck’ victim D and on one of those occasions he also expressed the desire to penetrate victim D’s toddler brother.
The judge characterised the offence as being of moderate seriousness, given the limited number of conversations, the timeframe and the lack of other aggravating circumstances.[18] The applicant was sentenced to 1 year and 6 months’ imprisonment on charge 8.
[18]Ibid [110].
Heels’ participation in the two exchanges of Telegram messages was the subject of charge 10 on Heels’ indictment. In the conversations, Heels had described victim D engaging in sexual activity and said of victim D’s brother, ‘I’ll rape the toddler while you rape [victim D]’. Taking into account the limited number of messages and the limited number of days over which the offending occurred, the judge sentenced Heels to 1 year and 6 months’ imprisonment.[19] On appeal, that sentence was reduced to 1 year imprisonment.
Victim E
[19]Ibid [221]–[222].
Charge 9 on the indictment alleged that, between 4 May 2021 and 6 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim E contrary to s 474.22(1) of the Criminal Code.
At the time of the offending victim E was 10 years of age. For five years, he had been attending one of the studios at which Heels worked. He was a student of Heels. His mother had added Heels as a friend on Facebook, thus giving him access to photos on her Facebook page, including photos of victim E.
Charge 9 was a rolled-up charge concerning three occasions on which the applicant sent child abuse material to Heels in the form of Telegram messages, which contained written descriptions of sexual activities the applicant and Heels desired to perform on victim E, as well as a video depicting an unknown male child engaged in sexual activity. Charge 9 consisted of the following offending:
(a)On 4 May 2021, the applicant sent Heels five photos of victim E downloaded from victim E’s mother’s Facebook page, which prompted a Telegram conversation in which the applicant described fantasised sexual activity with victim E. This conversation contained Category 2 child abuse material.
(b)On 5 May 2021, the applicant sent Heels a further photo of victim E, again downloaded from victim E’s mother’s Facebook page. This was followed by another Telegram conversation containing Category 2 child abuse material, in which both the applicant and Heels described imagined sexual activity with victim E. The applicant then sent Heels further photos of victim E, as well as a video of an unidentified male child engaged in sexual activities, which constituted Category 1 child abuse material. This video prompted further exchanges of messages on Telegram of the same nature as the prior conversations.
(c)On 6 May 2021, the applicant and Heels exchanged further Telegram messages containing written descriptions of fantasised sexual activity with victim E, after which Heels sent the applicant a video of himself. In that video, Heels exposed his penis and masturbated in a toy tent at one of the performing arts studios, while orally describing fantasised sexual activity with victim E. The sending of the video was again followed by a Telegram conversation between Heels and the applicant containing Category 2 child abuse material. The conversation included descriptions of explicit sexual activities that the applicant and Heels desired to undertake with victim E.
The judge (appropriately) described the contents of each of those conversations as ‘depraved and disgusting’.[20] They involved abhorrent comments made by the applicant describing sexual penetration and other sexual activity he would like to engage in with victim E.
[20]Ibid [115].
The judge noted that the fact that victim E was known to the applicant magnified the unease which victim E, his family and the community might have felt as a result of the breach of trust that was involved in these conversations. The judge also noted that the number of exchanges over the two day period was relatively limited. Her Honour described the offence by the applicant as serious.[21] The applicant was sentenced to 2 years’ imprisonment on charge 9.
[21]Ibid [116].
Heels’ participation in the Telegram conversations with the applicant relating to victim E was the subject of charge 13 on Heels’ indictment. Charge 13 was a rolled-up charge reflecting two occasions on which Heels transmitted child abuse material to the applicant, in the Telegram conversations that occurred on 5 May 2021 and 6 May 2021. In the second of these conversations, Heels had sent the applicant the video of himself described in [51(c)] above. The judge noted that the messages concerned explicit and extensive sexual conversations involving victim E. In addition, offence 3 on Heels’ s 16BA schedule was taken into account, which the judge described as increasing the objective seriousness of the offending.[22] Offence 3 was a charge of producing child abuse material with an intention to transmit the material. It involved the production by Heels of the video sent on 6 May 2021. The judge sentenced Heels to 2 years’ imprisonment on charge 13, noting the breach of trust as an aggravating circumstance.[23] On appeal, that sentence was maintained.
Victims I and J
[22]Ibid [226].
[23]Ibid [227].
Charge 10 on the indictment alleged that, on 6 May 2021, the applicant transmitted child abuse material relating to victims I and J using a carriage service contrary to s 474.22(1) of the Criminal Code.
Victims I and J are twin boys. At the time of the offending, they were two years of age. Their family members were engaged in the entertainment industry, but they were otherwise not known to either the applicant or Heels. A family member of victims I and J had posted images of the two children, which did not constitute child abuse material, on a social media account. The applicant accessed the images. He sent them via Telegram to Heels, accompanied by sexually explicit conversation concerning the children. The judge (appropriately) described the conversations as ‘confronting’.[24] The judge noted that although the offending was committed over the course of only one day, it involved two victims, and as such the offending was serious.[25] The applicant was sentenced to 2 years’ imprisonment on charge 10.
[24]Ibid [120].
[25]Ibid [121].
Heels’ participation in the sexually explicit conversation concerning victims I and J was the subject of charge 16 on Heels’ indictment. The judge sentenced Heels to 2 years’ imprisonment.[26] On appeal, Heels’ sentence was reduced to 1 year and 6 months’ imprisonment.
Victim F
[26]Ibid [237].
Charge 11 on the indictment alleged that on the same date, 6 May 2021, the applicant transmitted child abuse material relating to victim F using a carriage service contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim F was two months old. Her mother maintained a Facebook account and she was a personal friend of both the applicant and Heels. On the date of the offending, Heels sent the applicant a photograph of victim F, which he had downloaded from victim F’s mother’s Facebook page. Subsequently, the applicant discussed victim F with Heels in terms that constituted Category 2 child abuse material, including discussion about fantasised oral penetration of the infant.
The judge described the offending as a confronting breach of trust involving a very young child from a family known to the applicant. Her Honour referred to the disquiet in the family of the victim caused by the offending and characterised the offence committed by the applicant as serious.[27] The applicant was sentenced to 2 years’ imprisonment on charge 11.
[27]Ibid [125].
Heels’ participation in the discussion about victim F was the subject of charge 14 on Heels’ indictment. Heels transmitted disturbing suggestions relating to the infant victim. The judge sentenced Heels to 2 years’ imprisonment, noting that the features, which aggravated the gravity of the offending, included the breach of the trust of the victim’s family, and the age of the victim.[28] On appeal, the sentence was reduced to 1 year imprisonment.
Victim G
[28]Ibid [229].
Charge 12 alleged that on the same date, 6 May 2021, the applicant transmitted child abuse material relating to victim G using a carriage service contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim G was 13 years of age. His family knew the applicant and Heels through their involvement in local musical theatre performances, and the family were friends with the applicant on Facebook. Between November 2019 and March 2020, the applicant and Heels had driven victim G to and from rehearsals, and the child subsequently commenced private singing lessons with Heels.
The offending on charge 12 concerned the applicant sending Heels a number of video files containing Category 1 child abuse material. Although the videos did not depict victim G, they prompted explicit Telegram messages between the applicant and Heels, in which they discussed conducting invasive and demeaning sexual acts on victim G. The conversation included the applicant stating that it would be ‘hot’ to see another named adult molest victim G, and seeing victim G ‘struggle and fight against it’. The applicant also referred to fantasised penetration of victim G by Heels.
The judge described the offending as a confronting breach of trust involving a victim who was known to the applicant that involved sexual conversations of a serious child abuse nature. It was described as objectively serious.[29] The applicant was sentenced to 2 years’ imprisonment on charge 12.
[29]Ibid [131].
Heels’ participation in the Telegram messages concerning victim G was the subject of charge 15 on Heels’ indictment. In sentencing Heels, the judge noted that the conversations, between Heels and the applicant, were detailed, extensive and depraved, and that the offending involved a breach of a friend’s trust and of a pupil’s trust. Heels was sentenced to 2 years’ imprisonment.[30] On appeal, that sentence was maintained.
Victim H
[30]Ibid [233]–[234].
Charge 13 on the indictment alleged that, between 6 May 2021 and 26 May 2021, the applicant transmitted child abuse material relating to victim H using a carriage service contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim H was 11 years of age. Victim H and his brother took drama lessons at one of the studios to which the applicant had access. Their mother and other family members were Facebook friends with Heels. The family had uploaded several family photographs to their Facebook page.
Charge 13 was a rolled-up charge comprising two occasions on which the applicant sent Category 2 child abuse material to Heels in the form of Telegram messages containing written descriptions of victim H.
The messages contained explicit sexual references to victim H and to sexual activity which the applicant desired to undertake with victim H and others, including penetrating victim H’s anus. In the course of the conversations, a number of images of victim H were exchanged in order to facilitate the conversations, although the images themselves were not sexual.
The judge considered this offending to be a confronting breach of trust that caused disquiet in victim H’s family, particularly as the applicant and Heels had both been in direct contact with victim H from time to time. Further, the offending had spanned several weeks.[31] The applicant was sentenced, on charge 13, to 2 years and 6 months’ imprisonment.
[31]Ibid [137].
Heels’ participation in the messages concerning victim H was the subject of charge 18 on Heels’ indictment. Taking into account the range of days over which the offending occurred and the breach of trust involved in it, the judge sentenced Heels to 2 years and 6 months’ imprisonment.[32] On appeal, that sentence was reduced to 1 year and 6 months’ imprisonment.
Victim K
[32]Ibid [245]–[246].
Charge 14 on the indictment alleged that, on 7 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim K contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim K was nine months of age. His father knew the applicant and Heels through their involvement in local musical theatre productions and Facebook. On 7 May 2021, the applicant sent a photograph of victim K to Heels. That prompted an exchange of messages on Telegram, which contained disturbing and graphic descriptions of fantasised sexual acts performed by victim K’s father on victim K. The conversations amounted to Category 2 child abuse material.
The judge noted that the fact that victim K’s family was known to the applicant, increased the cause for concern. In view of the breach of trust, the offending was objectively serious.[33] The applicant was sentenced to 2 years’ imprisonment.
[33]Ibid [142].
Heels’ participation in the exchange of messages concerning victim K was the subject of charge 19 on Heels’ indictment. Taking into account the age of victim K and the breach of trust involved in the conduct, the judge sentenced Heels to 2 years’ imprisonment.[34] On appeal, that sentence was reduced to 1 year and 6 months’ imprisonment.
Victim L
[34]Ibid [249]–[250].
Charge 16 on the indictment alleged that, between 7 May 2021 and 21 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim L contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim L was eight years of age. Heels was victim L’s first piano teacher.
Charge 16 was a rolled-up charge comprising four instances of the offence. On 7 May, 14 May, 18 May and 21 May 2021, the applicant sent child abuse material to Heels in the form of Telegram messages containing depraved fantasised descriptions of sexual activity with victim L.
(a)On the first occasion, the applicant and Heels exchanged messages in which the applicant described Heels committing a serious sexual assault on victim L.
(b)On the second occasion, the applicant sent Heels a video file, categorised as Category 1 child abuse material, depicting a female child aged between 10 and 18 months being vaginally raped by an adult male (this video was also included in charge 5 against the applicant, discussed below). This prompted an exchange of messages on Telegram in which, in effect, the applicant (in crude terms) fantasised about Heels raping victim L.
(c)The third exchange of messages between the applicant and Heels contained a similar suggestion.
(d)The fourth exchange contained disturbing suggestions as to what the applicant wanted to do to victim L.
The judge correctly described the conversations as ‘disgusting, depraved and obscene’.[35]
[35]Ibid [148].
In sentencing the applicant on charge 16, offence 5 on the applicant’s s 16BA schedule was taken into account, which involved a further Telegram conversation in which the applicant used a carriage service to cause child abuse material relating to victim L to be transmitted to himself. In that conversation, the applicant promised to buy Heels gifts if Heels got victim L to touch Heels’ penis. In response, Heels sent two videos he had filmed of himself and victim L, containing Category 1 child abuse material.
The judge noted that the fact that victim L and the family were known to the applicant was a breach of trust which increased the family and the community’s disquiet. Further, the offending in charge 16 occurred over a range of days and the s 16BA schedule offence confirmed that the offending concerning victim L was far from isolated.[36] The judge sentenced the applicant to 3 years’ imprisonment.
[36]Ibid [150].
Heels’ participation in the Telegram messages concerning victim L was the subject of charge 9 on Heels’ indictment. Charge 9 was a rolled-up charge reflecting four occasions, on 3 May, 14 May (two occasions) and 21 May 2021, on which Heels sent the applicant child abuse material relating to victim L.
(a)On the first occasion (which was not the subject of a charge against the applicant), Heels sent the applicant two videos he had filmed of himself and victim L, each of which contained Category 1 child abuse material.
(b)On the second occasion (which was the subject of a charge against the applicant), the applicant sent Heels the video file, to which we have referred, depicting a female infant being raped, in response to which Heels expressed the wish to perform the same act on victim L.
(c)On the third occasion (which was the subject of a charge against the applicant), Heels sent the applicant another video of himself and victim L.
(d)On the fourth occasion (which was the subject of a charge against the applicant), Heels participated in the disturbing exchange with the applicant about what the applicant wished to do to victim L.
In sentencing Heels on that charge, offence 1 on Heels’ s 16BA schedule was also taken into account. That offence involved Heels, between 1 January 2021 and 14 May 2021, producing child abuse material (four videos of himself and victim L) with the intention of using a carriage service to transmit that material to the applicant or others.
Heels was sentenced to 4 years and 6 months’ imprisonment. On appeal, that sentence was reduced to 2 years’ imprisonment.
Victims M and N
Charge 17 on the indictment alleged that, on 14 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim M contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim M was 10 years of age. He and his younger brother, victim N, who was eight years old, knew the applicant and Heels through their involvement in local musical theatre productions. Their mother was a Facebook friend of both the applicant and Heels.
On 8 May 2021, victim M had a private singing lesson with Heels at the home address of the applicant and Heels. The lesson was conducted in a study room with the door closed.
On 14 May 2021, the applicant sent Heels four photographs of victims M and N. That prompted an exchange of Telegram messages between the applicant and Heels, in which the applicant referred to his desire to ejaculate over victim M’s chest, and expressed the view that victim N was ‘so rapeable’.
The judge noted that the offending in charge 17 involved a significant breach of trust, in circumstances were victim M had been to the applicant’s home. The offence was serious.[37] The applicant was sentenced to 2 years and 6 months’ imprisonment.
Victim O
[37]Ibid [154].
Charge 18 on the indictment alleged that on the same date, 14 May 2021, the applicant transmitted child abuse material relating to victim O using a carriage service contrary to s 474.22(1) of the Criminal Code.
At the time of this offence, victim O was nine years of age. He had been attending music classes since he was three years old. Heels was one of victim O’s music teachers, and Heels would use an iPad (he said) to find song lyrics. He placed the iPad on the piano stand during their lessons.
On 14 May 2021, Heels sent the applicant a video and two photographs depicting victim O. The photos prompted an exchange of Telegram messages between the applicant and Heels in which the applicant described imagined sexual acts with victim O that constituted Category 2 child abuse material. In particular, the applicant expressed a desire to engage in oral sex with victim O and suggested that victim O might want Heels to perform a sexual act on him.
The judge noted that the explicit sexual references concerning victim O were serious forms of child abuse material, which had occasioned significant psychological harm to the child’s parents. The content of the material and the significant breach of trust involved meant that the offence was objectively serious.[38] The applicant was sentenced on charge 18 to 2 years and 6 months’ imprisonment.
[38]Ibid [158]–[159].
Heels was charged on four counts involving victim O. Two of the charges (charges 5 and 23) alleged that Heels intentionally engaged in sexual activity in the presence of victim O. Charge 22 alleged that Heels sexually assaulted victim O. Those three charges (which do not correspond to any charge against the applicant) concerned conduct, by Heels, in the course of music classes conducted by Heels.
Charge 24 on Heels’ indictment alleged that, between 14 May 2021 and 21 May 2021, he transmitted child abuse material to the applicant relating to victim O using a carriage service on two occasions.
(a)On 14 May 2021, Heels sent the applicant a video of himself and victim O, which contained Category 1 child abuse material. This was the same day that Heels sent the applicant the photos of victim O that prompted the Telegram message that was the subject of charge 18 against the applicant.
(b)On 21 May 2021, Heels sent the applicant another video he had filmed of himself and victim O, and which contained Category 1 child abuse material.
In sentencing Heels on that charge, the judge took into account offence 2 on Heels’ s 16BA schedule. That offence involved Heels, between 26 March 2021 and 21 May 2021, producing child abuse material for use through a carriage service. That material comprised three videos depicting victim O (including the two videos sent to the applicant), each of which contained Category 1 child abuse material.
The judge described the offending by Heels, that was the subject of charge 24, as objectively serious.[39] The features that aggravated the gravity of the offending included the timeframe over which the offending occurred, and that the offending was not confined to offending with the applicant.
[39]Ibid [214].
Heels was sentenced to 4 years and 6 months’ imprisonment on charge 24. On appeal, that sentence was reduced to 3 years’ imprisonment.
Victim P
Charge 19 on the indictment alleged that, on 18 May 2021, the applicant transmitted child abuse material relating to victim P using a carriage service contrary to s 474.22(1) of the Criminal Code.
At the time of the offending, victim P was four years of age. Victim P’s mother was a Facebook friend of the applicant. She had uploaded family photographs of victim P. On the day of the offending, the applicant sent to Heels nine photos of victim P aged between one week and four years old. The photos prompted an exchange of Telegram messages that contained Category 2 child abuse material, which contained the applicant’s description of his desire to ejaculate over victim P’s body, to which Heels responded by describing imagined sexual activity involving victim P.
The judge noted that the offending again involved a breach of trust and as such the offence was serious.[40] The applicant was sentenced to 2 years and 6 months’ imprisonment.
[40]Ibid [163]–[164].
Heels’ participation in the exchange of Telegram messages concerning victim P was the subject of charge 25 on Heels’ indictment. Charge 25 was a rolled-up charge which also included a further occasion on which Heels used a carriage service to transmit child abuse material to the applicant relating to victim P. That material comprised a video of Heels masturbating over a printed photo of victim P. The judge noted that the image and materials transmitted by Heels were demeaning and depraved.[41] In sentencing Heels on charge 25, offence 4 on Heels’ s 16BA schedule was taken into account, which involved Heels producing child abuse material (the video of Heels masturbating over the photo of victim P) with the intention of using a carriage service to transmit that material. Heels was sentenced to 2 years and 6 months’ imprisonment. On appeal, the sentence was reduced to 2 years’ imprisonment.
Victim Q
[41]Ibid [260].
Charge 20 on the indictment alleged that, on 20 May 2021, the applicant transmitted child abuse material relating to victim Q using a carriage service contrary to s 474.22(1) of the Criminal Code.
At the time of the offence, victim Q was five years of age. In early 2021, he had commenced taking lessons at a studio at which Heels worked. On the day of the offending, Heels sent the applicant four photographs of victim Q, which prompted an exchange of messages on Telegram. In that exchange, the applicant, on five occasions, described imagined sexual activity with victim Q, which clearly constituted Category 2 child abuse material. Heels made one such comment in reply. The judge noted that the offending involved a serious breach of trust by an employee (Heels) against a child and as such was serious.[42] The applicant was sentenced to 2 years and 6 months’ imprisonment.
[42]Ibid [167].
Heels’ comment concerning sexual activity with victim Q in the Telegram messages was the subject of charge 27 on Heels’ indictment. Taking into account matters such as the breach of the pupil’s trust that was involved in the offending, the judge imposed a sentence of 2 years and 6 months’ imprisonment.[43] On appeal, the sentence was reduced to 1 year and 6 months’ imprisonment.
Victim R
[43]Ibid [269].
Charge 21 on the indictment alleged that on the same day, 20 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim R contrary to s 474.22(1) of the Criminal Code.
At the time of the offence, victim R was seven years of age. He was a student at one of the studios at which Heels worked and had been taught by Heels. Photographs were taken of victim R at the studio from time to time. On 20 May 2021, Heels sent the applicant six photographs of victim R. That prompted an exchange of messages on Telegram that contained sexually explicit references to victim R, including an expression of the applicant’s desire to orally penetrate victim R and also to remove his trousers and penetrate him ‘hard’. The judge, unsurprisingly, characterised the conversations as ‘depraved and obscene’.[44] The applicant was sentenced to 2 years and 6 months’ imprisonment.
[44]Ibid [170].
Heels’ participation in the Telegram messages concerning victim R was the subject of charge 26 on Heels’ indictment. Taking into account the single day on which the offending occurred and the breach of the pupil’s trust that was involved, the judge imposed a sentence of 2 years and 6 months’ imprisonment.[45] On appeal, that sentence was reduced to 1 year and 6 months’ imprisonment.
Other offences
[45]Ibid [266].
The remaining charges on the applicant’s indictment are charges 5, 6 and 23.
Charge 5 on the indictment alleged that, between 2 May 2021 and 26 May 2021, the applicant used a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code.
Charge 5 was a rolled-up charge concerning the transmission of child abuse material by the applicant to Heels, consisting of:
(a)multiple occasions on which the applicant transmitted child abuse material to Heels in the form of 637 image and video files depicting unidentified child victims; and
(b)five occasions on which the applicant transmitted child abuse material to Heels in the form of Telegram messages containing sexually explicit descriptions of unidentified child victims.
The images and videos depicted child victims, both male and female, aged from between approximately two to three months to 14 years.
The contents of some of the images and videos were described in the prosecution opening. As an example, and as the judge noted, on 3 May 2021 the applicant sent Heels 17 image and video files that depicted both male and female children being variously sexually penetrated by an adult male, or holding an adult male’s erect penis in close proximity to their face, or adults ejaculating onto a child’s face or body.[46] As the judge noted, they represented ‘very serious forms of Category 1 material’.[47]
[46]Ibid [176].
[47]Ibid [175].
On the five occasions on which the applicant sent Telegram messages to Heels, those messages contained discussions of the images the applicant had sent Heels, and explicit sexual references to the children in those images. Many of the descriptions related to sexual encounters the applicant wished to engage in with young or very young children. A number of the conversations described aggressive acts against the children or sexual activity with the children in public places, and much of the conversations related to the applicant’s profoundly depraved excitement at seeing or imagining children being raped by adults. On one occasion, the applicant referred to a ‘baby gangbang’ and to a child being used as a ‘fuck toy’.
Again unsurprisingly, the judge described the offence, that was the subject of charge 5, as a very serious form of the offence taking into account the number of images of real children, the degree of physical sexual abuse suffered by them, and the duration of the offending (three weeks).[48] The applicant was sentenced to 6 years’ imprisonment.
[48]Ibid [179].
Heels’ receipt of this material (and other material) was the subject of charge 7 on Heels’ indictment, which alleged that, between 3 May 2021 and 26 May 2021, Heels used a carriage service to cause child abuse material (the material that was the subject of charge 5 on the applicant’s indictment, as well as the material that informed charges 7 to 21 on the applicant’s indictment) to be transmitted to himself (by the applicant). The judge noted that Heels intentionally caused the applicant to send the material to him, by asking him to do so, and that he also actively engaged in the exchanges about sexual activity with children. The judge considered the offence to be above mid-range in objective gravity, taking into account the range of days over which the offending occurred, the number of conversations or images sought, the ages of the children, and the nature of sexual activity depicted.[49] Heels was sentenced to 5 years and 6 months’ imprisonment on the charge. On appeal, that sentence was reduced to 3 years’ imprisonment.
[49]Ibid [277]–[278].
Heels’ transmission of child abuse material to the applicant over the same period was the subject of charge 8 of Heels’ indictment. Charge 8 alleged that Heels used a carriage service to transmit to the applicant 16 image files depicting male child victims, aged between two to three months and 14 years, and 10 Telegram messages in which he described sexual activity with unidentified and hypothetical child victims. On that charge, Heels was sentenced to 6 years’ imprisonment. On appeal, the respondent conceded that the sentence imposed on that charge was manifestly excessive, and Heels was re-sentenced to 4 years’ imprisonment.
Charge 6 on the applicant’s indictment alleged that, between 3 May 2021 and 20 May 2021, the applicant caused child abuse material to be transmitted to himself using a carriage service contrary to s 474.22(1) of the Criminal Code.
Charge 6 was a rolled-up charge capturing all the child abuse material, which Heels sent to the applicant, and which was also the material that supported charges 6, 8, 10, 14 to 21 and 24 to 27 against Heels. By his plea of guilty, the applicant accepted that he had intentionally caused Heels to send the material to him by asking him to do so, and that he had actively engaged in exchanges of messages with Heels about sexual activity with children. Many of the children were personally known to the applicant and Heels. The judge noted that the aggravating features of the offence included the range and dates of the offending, the number of children involved, and the significant breach of trust entailed in the offending.[50] The applicant was sentenced to 5 years and 6 months’ imprisonment.
[50]Ibid [184].
Charge 23 on the indictment alleged that, on 27 May 2021, the applicant possessed or controlled child abuse material in the form of data contained in a data storage device and used a carriage service to obtain or access that material contrary to s 474.22A(1) of the Criminal Code.
Charge 23 was a rolled-up charge. It comprised the possession or control by the applicant of child abuse material obtained or accessed using a carriage service that was contained on his Apple iPhone 12 and Western Digital portable hard drive. In total, the applicant possessed 3,019 image and video files containing child abuse material. The files consisted of 2,566 images and videos that were Category 1 child abuse material, and 453 images that were Category 2 child abuse material. The judge considered that the offending represented a very serious example of the charged offence.[51] The applicant was sentenced to 6 years’ imprisonment.
[51]Ibid [187].
Charge 28 on Heels’ indictment concerned a like offence committed by Heels. The charge was a rolled-up charge that reflected the possession or control, by Heels of child abuse material obtained or accessed using a carriage service that was contained on his Apple iPhone 12, his Apple iMac computer, and a Verbatim 16GB USB. In total, Heels possessed 820 images and video files containing child abuse material. The files consisted of 411 images and videos that contained Category 1 child abuse material, and 409 images and videos that contained Category 2 child abuse material. Heels was sentenced to 6 years’ imprisonment. On appeal, that sentence was reduced to 4 years’ imprisonment.
The plea
The applicant was born in February 1989. He had an unremarkable childhood, although when he was about 16 years of age, he and his brother were effectively evicted from the family home. Nevertheless the applicant completed Year 12 at school.
After the applicant left home, he subsequently commenced a relationship with Heels at the end of 2010. They lived together until they were both arrested on 27 May 2021. It appears that their relationship was quite stable.
After leaving school, the applicant commenced work in the hospitality industry, and he qualified as a chef in about 2016. Until he was arrested on the present matter, he was regularly employed as a chef in the food services industry.
Following his arrest, the applicant has been placed in the same cell as Heels in the Hopkins Correctional Centre.
The applicant was examined by Dr Dion Gee, a forensic psychologist, in December 2022. Dr Gee expressed the view that the applicant did not fulfil the diagnostic criteria for a paedophilic disorder, but presented with an enduring paraphilia disorder. He considered that the applicant had not made any attempt to refrain from offending, and that he had responded rapidly to situational cues that supported and facilitated the sexual offending.
Dr Gee also considered that the applicant demonstrated reduced insight into his mental health needs and psychological wellbeing, and that he had a compromised appreciation of the need for self-regulation, as well as his risk profile and potential future risks. In that respect, Dr Gee considered that the applicant, at the time of examination, presented with at least a moderate risk of reoffending sexually in the future. That risk was underpinned by several offence-specific risk markers. On the available material, Dr Gee did not consider that the applicant presented as an explicit risk towards prepubescent boys, but considered that it was likely that any sexual violence by him, if it was to occur, would be against pubescent male children with whom he engaged on social media.
Dr Gee considered that it did not appear that imprisonment would weigh more heavily on the applicant than on a person of normal mental health. Dr Gee expressed the view that the applicant required ongoing monitoring of his mental health. In particular, he required engagement in a best-practice group-based sexual offender intervention program of moderate to high intensity. Dr Gee considered that the applicant would benefit from engaging in psychological intervention to address some of the dysfunctional, dependent and avoidant features embedded within his personality.
On the plea, counsel for the applicant noted that the applicant acknowledged that he was the instigator of the conduct that he engaged in with Heels. In mitigation, counsel relied on the applicant’s plea of guilty which, it was submitted, had substantial utilitarian value. In addition, counsel relied on the applicant’s lack of previous convictions, and his history of regular employment.
Reasons for sentence
In summarising the applicant’s offending, we have noted the judge’s characterisation of the gravity of each of the charges. In sentencing the applicant, the judge noted the views expressed by Dr Gee, and also noted that it had not been submitted on behalf of the applicant that any of the principles, stated by the Court of Appeal in R vVerdins,[52] were applicable to the applicant’s sentence.
[52](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).
In considering the question of parity, her Honour stated as follows:
I have considered the obvious that much of the offending was similar to both of you. However, Heels committed some contact offences and transmitted material to others. Cullinan-Smayle sought contact. Some differences in sentences arise as a result.[53]
[53]Reasons, [334].
The judge allowed a 25 per cent reduction on the Commonwealth sentences to reflect the utilitarian value of the early pleas of the applicant and Heels, and also to reflect the difficult circumstances (arising from the COVID-19 pandemic), which affected the administration of justice at that time.[54]
[54]Ibid [335].
Heels’ sentence
A significant part of the present application concerns the issue of parity of sentence with that imposed on Heels, as adjusted on appeal by this Court. We have already, in tabular form, set out the sentences imposed on Heels for the offences to which he pleaded guilty.[55] At this point, it is necessary to provide a brief description of the nature of the charges against Heels.
[55]See [6] above.
As we have noted, the indictment filed against Heels charged him with six State offences, namely, two charges of sexual assault of a child under 16 years of age, and four charges of sexual activity in the presence of a child under 16 years of age. The indictment contained 20 charges of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code (charges 4, 6, 8 to 21, and 24 to 27), one charge of using a carriage service to cause child abuse material to be transmitted to himself contrary to s 474.22(1) of the Criminal Code (charge 7), and one charge of possession or control of child abuse material obtained or accessed using a carriage service contrary to s 464.22A(1) of the Criminal Code (charge 28).
As we have also noted, a number of the offences committed by the applicant correspond with offences committed by Heels, and for which each of them were sentenced. Specifically, and as we will further discuss in considering the issue of parity, charges 5 to 16 inclusive, and charges 18, 19, 20, 21 and 23 on the applicant’s indictment, related to child abuse material exchanged between the applicant and Heels.
Heels’ plea
Heels was three months older than the applicant, having been born in November 1988. He had an unremarkable upbringing. After leaving high school at the end of Year 11, he completed his education at TAFE where he studied music composition. Subsequently, he commenced a career in music theatre.
For the purposes of his plea, Heels was examined by Dr Michael Davis, a consultant forensic clinical psychologist. Dr Davis expressed the view that Heels was then experiencing a concerning degree of depression, for which he was being treated with antidepressant medication, and which could be properly characterised as a major depressive disorder in partial remission. Dr Davis considered that Heels had a latent sexual interest in prepubescent boys, that had become fuelled by child abuse material, but that condition was secondary to another paraphilic disorder, in which his primary interest had been pleasing his sexual partners. On the plea, it was not submitted that any of the principles stated in Verdins were relevant to Heels’ sentence. Dr Davis considered that the applicant was a low to moderate risk of contact sexual reoffending and a moderate to high risk of further child abuse material reoffending.
Heels’ appeal
In allowing Heels’ appeal against sentence, the Court concluded that a number of the sentences imposed on the individual charges were manifestly excessive, and, in addition, the cumulation between the charges was excessive, with the effect that the total effective sentence and non-parole period were each manifestly excessive.[56] The Court also accepted the concession by the respondent that Heels’ sentence on charge 28 infringed the principle of parity.[57]
[56]Heels [2024] VSCA 133, [36] (Priest and Niall JJA).
[57]Ibid [37] (Priest and Niall JJA).
The Court noted that each of the Commonwealth offences (with one exception) were committed by Heels in the month of May 2021. The Court observed that to a large extent his offending ‘overlapped’, and that much of it involved text-based child abuse material.[58] The Court also noted that the offending, that was involved in 15 of the charges of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code, generally comprised ‘the exchange of written fantasies’. The Court stated:
Albeit that the content of these written communications was vile, no children were harmed or actually physically abused in order to produce the transmitted child abuse material. … That said, the distribution of prose describing child sex abuse, especially when it is done for the purposes of sexual gratification has the tendency to normalise or encourage child sex abuse, ignore the harm that such abuse occurs and undermines the unequivocal societal standard that such abuse is abhorrent.[59]
[58]Ibid [39] (Priest and Niall JJA).
[59]Ibid [40] (Priest and Niall JJA).
The Court also took into account, in mitigation, Heels’ cooperation with police, his previous good character, his very early plea of guilty, the effects of the pandemic on his circumstances in custody, and ‘the influence exerted by Cullinan-Smayle over [Heels’] offending’.[60]
[60]Ibid [42] (Priest and Niall JJA).
Grounds 1 and 2 — submissions
Grounds 1 and 2 of the application for leave to appeal are, essentially, inter-related. In their submissions, counsel on each side effectively addressed the two grounds together.
Applicant’s submissions
In essence, counsel for the applicant submitted that the sentences imposed on the applicant were manifestly excessive, particularly in view of the sentences imposed on Heels, as moderated on appeal.
Counsel noted that the total effective sentence, imposed by the primary judge on Heels, was 11 years’ imprisonment, compared with the total effective sentence of 10 years’ imprisonment imposed on the applicant. Following his successful appeal, Heels was re-sentenced to a total effective sentence of 8 years’ imprisonment. It was submitted that the totality of Heels’ offending was more substantial than that of the applicant.
In particular, it was submitted that Heels was sentenced on more charges than the applicant, and that a number of those charges were more serious than those relating to the applicant. In that respect, counsel submitted that the nature of the State offences, to which Heels pleaded guilty, were more serious than the offending that was the subject of charges 1 to 4 against the applicant. In addition, it was submitted, the Commonwealth offences, to which Heels pleaded guilty, comprising charges 4, 11 and 12 on Heels’ indictment, did not involve the applicant, and were serious offences. In those circumstances, it was submitted that, as a consequence of the re-sentencing of Heels, the total effective sentence of 10 years’ imprisonment, imposed on the applicant, was manifestly excessive, and offends against the principle of parity of sentencing.
The difference between the sentence imposed on the applicant on charge 5 (6 years’ imprisonment) and the sentence of 3 years’ imprisonment ultimately imposed on Heels on charge 7, is quite substantial. Nevertheless, we do not consider that that difference has the effect that the sentence imposed on charge 5 contravenes the principle of parity of sentence. The criminality involved in charge 5 on the applicant’s indictment and charge 7 on Heels’ indictment is different. While there is a body of child abuse material that is common to both charges, the charges are directed to different conduct (namely, the transmission of that material by the applicant and the receipt of that material by Heels). It might also be observed that, as we have noted, there were other mitigating circumstances available to Heels on the plea, which were not available to the applicant.
The applicant also sought to draw a comparison with charge 8 on Heels’ indictment, which concerned the child abuse material that Heels transmitted to the applicant between 3 May 2021 and 26 May 2021, comprising material that has been described earlier.[79] On that charge, Heels was sentenced to 6 years’ imprisonment. On appeal, the respondent conceded that the sentence imposed on that charge was manifestly excessive, and Heels was re-sentenced to 4 years’ imprisonment.
[79]See [118] above.
The offending by Heels, that comprised charge 8, was offensive and disgusting. However, the material Heels transmitted to the applicant in this period was no more egregious than the material that the applicant transmitted to Heels in this period, which was the subject of charge 5 against the applicant. Charge 8 on the Heels indictment concerned a considerably less child abuse material than charge 5 on the applicant’s indictment. In view of the significant difference in the amount of material involved in the respective charges, we do not consider that the sentence imposed on Heels on charge 8, on appeal, is such that the principle of parity requires a reduction in the sentence imposed on the applicant on charge 5.
For those reasons, there is no error in the sentence imposed on charge 5 of the applicant’s indictment.
Charge 6
A comparison of the sentence imposed on the applicant on charge 6, with any corresponding sentence imposed on Heels, is also not straightforward.
Charge 6 on the applicant’s indictment was a rolled-up charge of using a carriage service to cause Heels to transmit to the applicant all the child abuse material he received from Heels. This child abuse material that also the subject of charges 6, 8, 10, 14 to 21, and 24 to 27 on Heels’ indictment, which were charges of using a carriage service to transmit child abuse material. As we have noted, the applicant pleaded guilty to charge 6, on the basis that he intentionally caused Heels to send the child abuse material to him, and that he had actively engaged in exchanges of messages with Heels that contained fantasies about sexual activity with the children, who were the victims of those charges. It was not contended that there is any relevant disparity between the sentence imposed on the applicant on charge 6, and the sentences imposed on Heels on those charges (as adjusted on appeal). Further, in view of the extent and gravity of the offending that was the subject of charge 6 on the applicant’s indictment, it could not be maintained that the sentence on that charge was manifestly excessive.
For those reasons, there is no error in the sentences imposed on charge 6 of the applicant’s indictment.
Charges 7 to 21
A comparative analysis of the sentences imposed on the applicant on charges 7 to 21 (inclusive) with corresponding sentences imposed on Heels is more straightforward.
On charge 7, the applicant was sentenced to 2 years’ imprisonment. Charge 7 was a rolled-up charge, consisting of four occasions on which the applicant sent child abuse material to Heels, in the form of Telegram messages containing sexually explicit references to victim C, between 3 May 2021 and 20 May 2021. Charge 21 on Heels’ indictment concerned child abuse material sent by Heels to the applicant on the third and fourth occasions that were the subject of charge 7 against the applicant. Heels was sentenced to 2 years’ imprisonment on charge 21. On appeal, that sentence was reduced to 1 year and 6 months’ imprisonment. On this application, counsel for the respondent, quite fairly, conceded that the same reduction in sentence should be accorded to the applicant in respect of the sentence imposed on charge 7. That concession was appropriate. Accordingly, the sentence imposed on the applicant on charge 7 will be reduced to 1 year and 6 months’ imprisonment.
Charge 8 on the applicant’s indictment concerned two occasions between 3 May 2021 and 21 May 2021 when the applicant transmitted to Heels child abuse material in the form of Telegram messages containing written descriptions and explicit sexual conversations concerning victim D. The applicant was sentenced to 1 year and 6 months’ imprisonment on that charge. The corresponding charge on the Heels indictment, charge 10, concerned Heels transmitting to the applicant child abuse material concerning victim D in the same Telegram messages. The comments made by the applicant and Heels in those messages were most disgusting. Heels was sentenced on charge 10 to 1 year and 6 months’ imprisonment. On appeal, that sentence was reduced to 1 year imprisonment. The offending in each case was relatively similar. The prosecution conceded that the principle of parity requires that the appeal in respect of the sentence imposed on charge 8 should be allowed, and that the sentence should be reduced to 1 year imprisonment. That concession was correct. Accordingly, the sentence imposed on the applicant on charge 8 will be reduced to 1 year imprisonment.
Charge 9 on the applicant’s indictment is a rolled-up charge, comprising three occasions on which the applicant sent child abuse material, in the form of Telegram messages, containing descriptions of imagined sexual activity with victim E, together with a video depicting an unknown male child engaged in sexual activity. As we have earlier noted,[80] the judge appropriately described the contents of the messages as ‘depraved and disgusting’. The applicant was sentenced to 2 years’ imprisonment on charge 9. Heels’ participation in these messages was the subject of charge 13 on Heels’ indictment. That charge did not include one of the conversations and exchanges that was the subject of the applicant’s charge. However, Heels also fell to be sentenced by reference to a schedule offence of producing child abuse material for use through a carriage service. The schedule offence concerned Heels’ production of a video in which he exposed his penis and masturbated in a toy tent at one of the performing arts studios, while orally describing fantasised sexual activity with victim E. This video was sent to the applicant. Heels was also sentenced to 2 years’ imprisonment on charge 13 on Heels’ indictment. On appeal, that sentence was maintained.
[80]See [52] above.
On this application, it was submitted on behalf of the applicant that the applicant’s sentence should be less than that imposed on Heels, primarily because the schedule offence was to be taken into account in sentencing Heels. We do not consider that the schedule offence relating to Heels is a sufficient basis to differentiate between the sentences imposed on the applicant and Heels respectively. The applicant was involved in a greater number of instances of transmitting child abuse material relating to victim E than Heels, and most of the child abuse material concerning victim E was prompted by the applicant sending photos of victim E. The applicant also sent Heels the video of the unknown male child engaged in sexual activity, which constituted Category 1 child abuse material. Accordingly, the sentence imposed on the applicant on charge 9 will be maintained.
Charge 10 on the applicant’s indictment concerned the applicant’s transmission of child abuse material relating to victims I and J (two year old twin boys) to Heels on 6 May 2021. The applicant was sentenced to 2 years’ imprisonment on that charge. The corresponding charge on the Heels indictment was charge 16, which involved the transmission of child abuse material relating to the same victims in the same conversation. Heels was sentenced on charge 16 to 2 years’ imprisonment. On appeal, his sentence was reduced to 1 year and 6 months’ imprisonment. As the respondent properly concedes on this application, there was no relevant difference between the offending by the applicant and Heels. It follows that the sentence imposed on the applicant should also be reduced, on charge 10, to 1 year and 6 months’ imprisonment.
Charge 11 on the indictment concerned the applicant’s transmission to Heels of child abuse material relating to victim F, who was then just two months old, also on 6 May 2021. Victim F’s mother was a personal friend of the applicant and Heels. The judge correctly described the offending by the applicant as a confronting breach of trust involving a very young child that caused disquiet in the victim’s family, and, as such, characterised the offending as serious.[81] The applicant was sentenced to 2 years’ imprisonment on that charge. The corresponding charge on Heels’ indictment was charge 14, which concerned the transmission of disgusting suggestions by Heels relating to victim F. Heels was sentenced to 2 years’ imprisonment on that charge. On appeal, that sentence was reduced to 1 year imprisonment. There is no relevant distinction between the offending by the applicant and Heels. The principle of parity of sentence requires that the sentence imposed on the applicant on charge 11, be reduced to 1 year imprisonment.
[81]See [60] above.
Charge 12 on the applicant’s indictment concerned the applicant’s transmission to Heels, again on 6 May 2021, of child abuse material relating to victim G. As we have earlier noted,[82] the offending involved the applicant sending Heels a number of video files containing Category 1 child abuse material (which did not depict victim G), which prompted Telegram messages between the applicant and Heels, in which they discussed performing invasive and demeaning sexual acts on victim G, who was then 13 years of age. The judge correctly described the offending as a confronting breach of trust, and, as such, as being objectively serious. The applicant was sentenced to 2 years’ imprisonment on charge 12. Heels’ participation in the Telegram messages relating to victim G was the subject of charge 15 on Heels’ indictment. Heels was sentenced to 2 years’ imprisonment on that charge. On appeal, the sentence was maintained. On this application, it was accepted that the sentence on charge 12 was not affected by any error.
[82]See [64] above.
Charge 13 on the applicant’s indictment was a rolled-up charge comprising two occasions on which the applicant sent Category 2 child abuse material to Heels in the form of Telegram messages containing explicit sexual references to victim H, who was then 11 years of age. We have described those messages,[83] which the judge, again correctly, described as involving a confronting breach of trust. The applicant was sentenced on charge 13 to 2 years and 6 months’ imprisonment. Heels’ participation in the messages concerning victim H was the subject of charge 18 on the Heels indictment. Heels was initially sentenced on that charge to 2 years and 6 months’ imprisonment. On appeal, his sentence was reduced to 1 year and 6 months’ imprisonment. Having considered the content of the messages, it is not possible to discern any relevant differentiation between the culpability of the applicant and that of Heels in respect of the offending. It follows that, in accordance with the principle of parity, the sentence imposed on the applicant on charge 13 must be reduced to 1 year and 6 months’ imprisonment.
[83]See [70] above.
Charge 14 on the applicant’s indictment concerned the applicant’s transmission to Heels, on 7 May 2021, of child abuse material relating to victim K, who was then just nine months of age. The exchange of messages between the applicant and Heels was quite egregious. The judge, again correctly, considered that the offending that was the subject of charge 14 was objectively serious. The judge sentenced the applicant to 2 years’ imprisonment on that charge. Heels’ participation in the exchange of messages concerning victim K was the subject of charge 19 on Heels’ indictment. The judge sentenced Heels to 2 years’ imprisonment on that charge. On appeal, the sentence was reduced to 1 year and 6 months’ imprisonment. The respondent has conceded that the principle of parity requires this Court to resentence the applicant on charge 14. We agree that the application of that principle requires that the sentence, imposed on charge 14, be reduced to 1 year and 6 months’ imprisonment.
Charge 15 on the applicant’s indictment concerned the applicant using Telegram, again on 7 May 2021, to send Heels seven videos of victim A engaged in sexual activity with himself, which constituted Category 2 child abuse material. These videos were followed by an exchange of messages relating to victim A, as described earlier.[84] The applicant was sentenced to 2 years and 6 months’ imprisonment on charge 15. Heels’ participation in the offending was the subject of charge 20 on Heels’ indictment, concerning the response that he made to the videos, to which we have just referred. Heels was sentenced to 2 years’ imprisonment on that charge. On appeal, the sentence was reduced to 1 year imprisonment.
[84]See [25] above.
The difference in the conduct of the applicant, and the conduct of Heels, that comprised the offending was, quite plainly, substantial, and required there to be a significant differentiation between the sentences imposed on them respectively. The applicant, in a gross breach of victim A’s trust, initiated the offending by sending the videos of victim A containing child abuse material to Heels, with the intention of sexually arousing Heels. In the circumstances, we consider that the reduction of the sentence imposed on Heels does not enliven the principle of parity of sentencing. Instead, the sentence imposed on the applicant, in respect of charge 15, is appropriately proportionate to the sentence imposed on Heels on appeal. The sentence imposed on the applicant on charge 15 will be maintained.
Charge 16 on the applicant’s indictment was a rolled-up charge consisting of four instances, between 7 May 2021 and 21 May 2021, in which the applicant sent child abuse material to Heels containing fantasised descriptions of sexual activity with victim L, who was then eight years of age. Heels was victim L’s first piano teacher. Each occasion comprising charge 16 has been described above.[85]
[85]See [79] above.
In sentencing the applicant on charge 16, offence 5 on the applicant’s s 16BA schedule was taken into account, which concerned a further conversation on Telegram of a sexual nature relating to victim L, which the applicant caused to be transmitted to himself, after offering to buy Heels gifts if he could get victim L to touch Heels’ penis. The applicant was sentenced to 3 years’ imprisonment on charge 16.
The corresponding charge on Heels’ indictment was charge 9, which was a rolled-up charge reflecting four occasions, between 3 May 2021 and 21 May 2021, on which Heels sent the applicant child abuse material relating to victim L, which we have described earlier.[86] On the first occasion, Heels sent the applicant two videos he had filmed of himself and victim L, each of which contained Category 1 child abuse material. On the subsequent occasions, Heels sent the applicant a further video of himself and victim L, and expressed a wish to penetrate victim L. In sentencing Heels on charge 9, offence 1 on Heels’ s 16BA schedule was taken into account, which concerned Heels producing four videos of himself and victim L that contained Category 1 child abuse material with the intention of transmitting those videos to the applicant or others. Heels was sentenced for the offending on charge 9 to 4 years and 6 months’ imprisonment. On appeal, his sentence was reduced to 2 years’ imprisonment.
[86]See [83] above.
In considering the question of parity relating to the sentence imposed on the applicant on charge 16, it is important that the offending involving victim L commenced with Heels, on 3 May 2021, first sending to the applicant the two videos that he had filmed of himself and victim L, each video containing Category 1 child abuse material. The offending by each of the applicant and Heels that then followed was most egregious. However, as reflected in the sentences imposed on Heels and the applicant by the primary judge, the offending by Heels was more serious than the offending by the applicant, particularly as Heels was the producer of the offensive videos depicting victim L, and it was Heels who sent those videos to the applicant. In view of the reduction, on appeal, of the sentence imposed on Heels on charge 9 on Heels’ indictment, it follows that the sentence imposed by the judge on the applicant on charge 16 is required to be reduced to conform with the principle of parity. On that basis, and applying that principle, we would re-sentence the applicant on that charge to 18 months’ imprisonment.
Charge 17 on the applicant’s indictment concerned the applicant using a carriage service, on 14 May 2021, to transmit to Heels child abuse material prompted by the sharing of four photographs of victims M and N, two brothers who were then aged 10 years and eight years respectively. The child abuse material consisted of written descriptions of imagined sexual acts performed on both children. The circumstances of the offending have been described in more detail above.[87] There was no equivalent charge brought against Heels. The applicant was sentenced, on charge 17, to 2 years and 6 months’ imprisonment. It was submitted on his behalf that that sentence was manifestly excessive, in that the criminality involved in charge 17 was akin to the criminality involved in the offending that was the subject of other charges against Heels, and which had resulted in sentences of between 1 year and 18 months’ imprisonment.
[87]See [89] above.
The sentence imposed on the applicant on charge 17 was certainly stern, bearing in mind the sentences imposed on Heels on a number of the charges in which the offending was at least as serious, and particularly taking into account the sentence imposed on Heels on appeal on charge 9 of Heels’ indictment, which we have just discussed. Applying the principle of parity, we would reduce the sentence imposed on the applicant on that charge to 2 years’ imprisonment.
Charge 18 on the applicant’s indictment concerned the applicant’s response to two photos of victim O, a nine year old child to whom Heels gave music lessons, which Heels sent to him. In messages exchanged in response to the photos on 14 May 2021, the applicant described his wish to engage in oral sex with victim O, and suggested that the child perhaps wanted Heels to also perform a sexual act on him. This constituted Category 2 child abuse material. The applicant was sentenced, on that charge, to 2 years and 6 months’ imprisonment.
The corresponding charge on the Heels indictment was charge 24, which was a rolled-up charge. On 14 May 2021 and 21 May 2021, Heels sent to the applicant two videos he had filmed of himself and victim O, which contained Category 1 child abuse material. In addition, in sentencing Heels on charge 24, offence 2 on Heels’ s 16BA schedule was taken into account, which concerned Heels’ production of child abuse material with the intention of transmitting that material using a carriage service. The material the subject of the schedule offence was three videos depicting victim O (including the two videos sent to the applicant), each of which contained Category 1 child abuse material. Heels was sentenced on charge 24 to 4 years and 6 months’ imprisonment, which, on appeal, was reduced to 3 years’ imprisonment.
Quite plainly, the offending by Heels, that was the subject of charge 24, was substantially more serious than the offending by the applicant, that was the subject of charge 18 on the applicant’s indictment. It follows that, applying the principle of parity of sentencing, the applicant will be re-sentenced on charge 24 to 1 year and 6 months’ imprisonment.
Charge 19 on the applicant’s indictment concerned the transmission, by the applicant, to Heels, of child abuse material relating to victim P on 18 May 2021. The applicant sent to Heels a Telegram message containing nine photos of victim P, aged between one week and four years of age. The photos prompted an exchange of Telegram messages concerning victim P, in which the applicant made suggestions about sexual acts he wished to perform on victim P. Heels responded with an egregious remark about imagined sexual activity involving victim P. The judge sentenced the applicant to 2 years and 6 months’ imprisonment.
Heels’ participation in the offending was the subject of charge 25 on Heels’ indictment. Charge 25 was a rolled-up charge which also included a further occasion on which Heels used a carriage service to transmit child abuse material to the applicant relating to victim P, comprising a video of Heels masturbating over a printed photo of victim P. In sentencing Heels on that charge, offence 4 on Heels’ s 16BA schedule was taken into account, which involved Heels’ production of child abuse material, namely the video, with the intention of transmitting it to the applicant. Heels was sentenced to 2 years and 6 months’ imprisonment. On appeal, his sentence was reduced to 2 years’ imprisonment.
Applying the principle of parity, we consider that the applicant’s sentence on charge 19 must also be reduced. In the circumstances of the offending, the applicant was, to a material degree, less culpable than Heels. Accordingly, he should be re-sentenced to 18 months’ imprisonment.
Charge 20 on the applicant’s indictment concerned the applicant transmitting to Heels child abuse material depicting victim Q, who was then five years of age. Victim Q had attended a talent studio at which Heel worked. On 20 May 2021, Heels sent to the applicant four photographs of victim Q, which prompted an exchange of messages on Telegram. In that exchange, the applicant, on five occasions, made obscene suggestions relating to imagined sexual activity with victim Q, which comprised Category 2 child abuse material. Heels responded to each of them in quite short terms, with one exception, when he responded in a manner that constituted Category 2 child abuse material. The applicant was sentenced on charge 20 to 2 years and 6 months’ imprisonment.
The corresponding charge on Heels’ indictment was charge 27, on which Heels was also sentenced to 2 years and 6 months’ imprisonment. On appeal his sentence was reduced to 1 year and 6 months’ imprisonment.
Applying the principle of parity, we consider the applicant’s sentence on charge 20 must also be reduced. Accordingly, he should be sentenced to 1 year and 6 months’ imprisonment.
Charge 21 on the applicant’s indictment concerned the applicant transmitting to Heels child abuse material depicting victim R on 20 May 2021. Victim R was then seven years of age and a student at one of the studios at which Heels was employed. He had been taught by Heels. Heels sent to the applicant six photographs of victim R. There then ensued an exchange of messages on Telegram that contained sexually explicit references to victim R, which we have described in more detail above.[88] The judge appropriately characterised the conversations as ‘depraved and obscene’. The applicant was sentenced to 2 years and 6 months’ imprisonment on that charge.
[88]See [105] above.
Heels’ participation in the Telegram messages concerning victim R was the subject of charge 26 on Heels’ indictment. On that charge, Heels was sentenced to 2 years and 6 months’ imprisonment. On appeal, the sentence was reduced to 1 year and 6 months’ imprisonment.
The respondent has conceded that the principle of parity requires the same reduction to be made to the applicant’s sentence. That concession is appropriate. Applying the principle of parity, accordingly, the sentence of the applicant on charge 21 must be reduced to 1 year and 6 months’ imprisonment.
Charge 22
Charge 22 on the applicant’s indictment concerned the use, by the applicant, of a carriage service to transmit six image files, containing both Category 1 and Category 2 child abuse material, to victim A, on 21 May 2021. Victim A was then 17 years of age. We have described the content of that material earlier in these reasons.[89] In short, it comprised images of a number of children, aged between one year and 14 years, being subjected to serious sexual assaults. The applicant was sentenced to 3 years’ imprisonment on that charge. There is, of course, no issue of parity in relation to this sentence. It was submitted on behalf of the applicant that the sentence was manifestly excessive. Taking into account the egregious content of the material, and the fact that victim A was, at law, a child, the sentence imposed on the applicant was appropriate and should be maintained.
[89]See [30] above.
In summary, for the foregoing reasons, we have determined that the application for leave to appeal should be granted, and the appeal allowed, in respect of the sentences imposed on the applicant on charges 7, 8, 10, 11, 13, 14, 16, 17, 18, 19, 20 and 21, and that the applicant should be re-sentenced on each of those charges in the manner that we have indicated.
Resentencing — total effective sentence
A consideration of the total effective sentence to be imposed on the applicant, on re-sentencing him, is not straightforward. The sentences imposed on the applicant, on the charges on which he has succeeded, do not directly affect the total effective sentence of 10 years’ imprisonment imposed by the sentencing judge. If the orders for cumulation, made by the sentencing judge on the other charges on which the applicant has not succeeded — and specifically, the orders for cumulation in respect of the sentence imposed on charges 5 and 23 — remain, then the sentences, on the charges on which the applicant has succeeded, will expire well before the expiration of the total effective sentence.
Counsel for the applicant specifically addressed that issue. He submitted that the principle of parity should apply, so as to result in a proportionate reduction of the total effective sentence imposed on the applicant. Specifically, counsel submitted that the reduction, on appeal, of the total effective sentence imposed on Heels, from 11 years’ imprisonment to 8 years’ imprisonment, should be reflected in a commensurate reduction in the total effective sentence that is to be served by the applicant.
In considering that proposition, three points are of relevance.
First, a comparison of the totality of the respective offending by the applicant and Heels is quite difficult. The sentences imposed on the applicant on charges 1 to 4, totalling 5 years and 6 months’ imprisonment, have not been affected by our conclusions on this appeal. That offending included two rolled-up instances of using a carriage service to procure two children under the age of 16 (victims A and B) for sexual activity over two separate and lengthy periods. It cannot be meaningfully compared with the offending by Heels that was the subject of separate State charges against him (charges 1, 2, 3, 5, 22 and 23 on the Heels indictment), which involved ‘contact’ offending and other offending by Heels in the presence of two child victims during private tuition sessions, of which the victims were unaware. On these charges, Heels was sentenced, on appeal, to 4 years and 6 months’ imprisonment with a non-parole period of 3 years. The differences in the offending, as reflected in the different sentences imposed on the applicant for charges 1 to 4 and Heels for the separate State charges, also account for some of the differential in the total effective sentence to be served by Heels, and the total effective sentence imposed by the sentencing judge on the applicant.
Secondly, the sentences imposed on the applicant on charges 5 and 23 of the applicant’s indictment, totalling 6 years’ imprisonment, have also not been affected by our conclusions on this appeal. Although these charges have some parallels with charges in Heels’ indictment (charges 7, 8 and 28), the applicant’s offending on each charge was significantly graver than Heels’ offending, for the reasons discussed above.[90] The applicant’s total effective sentence must reflect this consideration.
[90]See [194], [201] above.
The third relevant factor, in considering the total effective sentence, is that, as noted, there were two important sentencing considerations, which necessarily account for a differential between the sentences imposed on the applicant, and those imposed on Heels, and their respective total effective sentences. First, the applicant was the instigator of the offending that was the subject of charges against both himself and Heels, that is, the offending that was the subject of 16 of the applicant’s charges (charges 5 to 16 and 18 to 21 inclusive). Plainly, the applicant’s culpability in respect of those offences was therefore greater than that of Heels. Secondly, on apprehension, Heels made full and candid admissions to the police, which is a relevant sentencing consideration in a case such as this. The applicant did not have such a consideration available to him on determination of his sentence. Each of those two points constituted important mitigating factors taken into account in determining Heels’ sentence.[91]
[91]Heels [2024] VSCA 133, [42] (Priest and Niall JJA).
Each of the three factors, which we have discussed, are of importance in determining the question whether, having regard to the total effective sentence now imposed on Heels, the total effective sentence imposed on the applicant should be regarded as manifestly excessive, particularly applying the principle of parity.
Nevertheless, notwithstanding the matters that we have discussed, the fact remains that the applicant has succeeded on this application in respect of the sentences imposed on 12 of the 23 charges on which he was sentenced. That outcome necessarily must effect some reduction in this Court’s overall assessment of the gravity of the applicant’s offending and his moral culpability, and which should be reflected in some reduction in the total effective sentence.
Based on that proposition, it is, therefore, appropriate that the total effective sentence imposed on the applicant should be sufficiently reduced to take that consideration into account. On that basis, the total effective sentence imposed on the applicant should be reduced to 9 years’ imprisonment. The most appropriate, and least complicated, mechanism by which to produce that result is, in effect, to reduce the period of cumulation of the sentences imposed on charges 5 and 23, on the sentences imposed on charges 1, 15 and 22, from a period of 6 years to a period of 5 years, and also to adjust the period of cumulation on the sentence imposed on charge 6 from a period of 4 years to a period of 3 years, which will be reflected in the commencement dates of each sentence. We will fix a non-parole period of 6 years.
The effect of our conclusions is that the applicant’s total effective sentence will exceed the total effective sentence imposed on Heels following his appeal. We acknowledge that this was not the case after the original sentences were imposed. However, we are satisfied that it is appropriate, particularly given the three factors we have identified in [241] to [243] above.
Conclusion
Accordingly, we shall make orders to the effect that the sentences imposed on the applicant be set aside, and, in lieu, the applicant be re-sentenced as follows.
| Charge | Offence | Max Penalty | Sentence | Commencement/ Cumulation |
| 1 | Use carriage service to procure person under 16 for sexual activity (s 474.26 Criminal Code) | 15 years | 4 years’ imprisonment | Commences 22 May 2025 (date of sentence) |
| 2 | Use carriage service to cause child pornography material to be transmitted to self (s 474.19 Criminal Code) | 15 years | 4 years’ imprisonment | Commences 22 May 2026 |
| 3 | Use carriage service to procure person under 16 for sexual activity (s 474.26 Criminal Code) | 15 years | 3 years 6 months’ imprisonment | Commences 22 May 2027 |
| 4 | Use carriage service to cause child abuse material to be transmitted to self (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 22 May 2027 |
| 5 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 6 years’ imprisonment | Commences 22 May 2028 |
| 6 | Use carriage service to cause child abuse material to be transmitted to self (s 474.22 Criminal Code) | 15 years | 5 years 6 months’ imprisonment | Commences 22 May 2028 |
| 7 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 8 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year imprisonment | Commences 22 May 2028 |
| 9 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 22 May 2028 |
| 10 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 11 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year imprisonment | Commences 22 May 2028 |
| 12 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 22 May 2028 |
| 13 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 14 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 15 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years 6 months’ imprisonment | Commences 22 May 2025 |
| 16 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 17 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 2 years’ imprisonment | Commences 22 May 2028 |
| 18 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 19 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 20 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 21 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 1 year 6 months’ imprisonment | Commences 22 May 2028 |
| 22 | Use carriage service to transmit child abuse material (s 474.22 Criminal Code) | 15 years | 3 years’ imprisonment | Commences 22 May 2025 |
| 23 | Possess or control child abuse material obtained or accessed by carriage service (s 474.22A Criminal Code) | 15 years | 6 years’ imprisonment | Commences 22 May 2028 |
| Total Effective Sentence (Cth): Non-Parole Period: | 9 years’ imprisonment 6 years | |||
| Pre-sentence Detention Declared: | 1456 days | |||
| Section 6AAA Statement: | 11 years’ imprisonment with a non-parole period of 8 years and 3 months | |||
In passing this sentence, we have taken into account the matters set out in s 16A(2) of the Commonwealth Crimes Act, to the extent they are known and relevant, as well as the matters set out in s 16A(2AAA). To the extent that the sentence has the effect that a term of imprisonment imposed is served partly cumulatively or concurrently with another term of imprisonment, we are satisfied that the sentences are of a severity appropriate in all the circumstances. For the purposes of s 6AAA of the Sentencing Act 1991, we indicate that but for the applicant’s pleas of guilty, he would be sentenced to 11 years’ imprisonment with a non-parole period of 8 years and 3 months.
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