Director of Public Prosecutions (Cth) v Ainsworth
[2022] VCC 2
•20 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01781
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTIAN AINSWORTH |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2021 | |
DATE OF SENTENCE: | 20 April 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v Ainsworth | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Using a carriage service to transmit indecent communication to a person believed to be under 16 years; using a carriage service to solicit child pornography material – using a carriage service to transmit child pornography material – possessing child abuse material – plea of guilty – relevant criminal history – realistic prospects of rehabilitation – mitigation due to hearing impairment, emotional, social and psychosexual immaturity – vulnerability in prison environment – plea of guilty during COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic); Criminal Code 1995 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Chenhall v the Queen [2021] VSCA 175; Martin v R [2019] NSWCCA 197; Kristensen v R [2018] NSWCCA 189; Maine v R [2018] VSCA 56; DPP (Cth) v Garside [2016] VSCA 74; DPP v D’Alessandro (2010) 26 VR 477; Heathcote (a pseudonym) v The Queen [2014] VSCA 35; Meadows v The Queen [2017] VSCA 290; Elias v R (2013) 248 CLR 483; Markarian v The Queen (2006) 228 CLR 357
Sentence: 9 months’ imprisonment on charge 25; total effective sentence of 3 years’ and 7 months’ imprisonment on charges 1-24 with a non-parole period of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms K Breckweg | Ms A Carlander |
| For the Accused | Mr M Allen | Ms R Glew |
HER HONOUR:
1Kristian Ainsworth, you have pleaded guilty to 24 charges under the Criminal Code 1995 (Cth) (“the Code”), comprising: 6 charges[1] of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age,[2] for which the maximum penalty is 7 years’ imprisonment; 17 charges[3] of using a carriage service to solicit child pornography material, for which the maximum penalty is 15 years’ imprisonment;[4] and 1 charge[5] of using a carriage service to transmit child pornography material,[6] for which the maximum penalty is 15 years’ imprisonment. You have also pleaded guilty to 1 charge[7] of possessing child abuse material, contrary to s 51G of the Crimes Act 1958 (Vic) (“the Act”), for which the maximum penalty is 10 years’ imprisonment.
Details of offending
[1] Charges 1,2,7,9,11, and 20.
[2] Contrary to sub-section 474.27A(1) of the Code.
[3] Charges 3,5,6,8, 10, 12–19, and 21–24.
[4] Contrary to sub-section 474.19(1) of the Code.
[5] Charge 4.
[6] Contrary to sub-section 474.19(1) of the Code.
[7] Charge 25.
2The details of your offending are set out in the Summary of Prosecution Opening for Plea which is 24 pages long and was tendered as Exhibit 1. I sentence you on the basis of the facts contained in that document.
3The offending occurred between 23 July 2018 and 31 January 2019. Two iPhones and a Sony Laptop were seized from your residence on 31 January 2019 pursuant to a search warrant. Forensic examination of the material and devices showed that you had been engaging in chat conversations with 24 different unidentified male children presenting themselves as between 12 and 15 years of age over the online chat application Kik. The communications involved your soliciting sexualized images from the recipients, transmitting images of your penis and videos of masturbation to them, and engaging in sexually suggestive or explicit chat with them.
4Child abuse material (“CAM”) was also located on all three devices, comprising 228 files (Charge 25). The images were categorised according to the Australian National Victim Image Library (“ANVIL”) categorisation model. Of those 228 files, 76 images showed no sexual activity (category 1); 14 images showed non-penetrative adult/child activity (category 3); 120 images and 4 videos depicted solo acts between children (category 2); 4 images and 1 video depicted child/adult penetrative activities (category 4); 7 images showed sadism (category 5); and 2 files were of animated or virtual activities (category 6).
Record of interview
5You made admissions in your record of interview to the effect that you had online conversations with children, asked them their age, gained their trust over a week or two, exchanged explicit photographs of them, and obtained sexual gratification from these activities. You could not recall any sexualised conversations but stated that if you had them it was with the intention of finding a partner or someone to date. When asked why you would continue talking to children despite knowing they were children, you stated “[you] probably would get away with it”.[8] You stated that you just liked talking to people online and did not think you had a problem in terms of talking to children online.[9]
Relevant prior criminal history
[8] ROI [424]–[425].
[9] ROI [792]–[794].
6On 19 November 2014, you were found guilty of procuring a minor for making/producing child pornography and using an online information service to transmit objectionable material. You were placed on an 18-month Community Correction Order (“CCO”) without conviction and placed on the Sex Offender Register pursuant to the Sex Offender Registration Act 2004 (Vic) (“the SORA”), for a period of 8 years.
7On 17 January 2017, you were found guilty of failing to comply with your reporting obligations under the SORA and were fined $250 without conviction.
8On 16 April 2018, you were found guilty of an indecent act with a child under 16. You were convicted and placed on a further CCO for 2 years. Your reporting obligations under the SORA were increased to 15 years.
Resolution process
9Plea negotiations were ongoing in late July 2020 and continued until 11 December when you indicated your intention to plead guilty to charges as resolved between the parties. On 15 April 2021, at a funding mention in this court, the plea date was further adjourned to enable you to secure funding.
10Prior to the date of the plea hearing on 4 November 2021, you had not spent any time in custody. At the plea hearing, it was common ground that you would inevitably be sentenced to a term of imprisonment for your offending. You were remanded into custody at the conclusion of the plea hearing. There are 167 days of pre-sentence detention, not including today, which are to be deducted administratively from the sentence imposed upon you today.
Personal circumstances
11Your personal circumstances were set out in the reports of Ms Pamela Matthews,[10] forensic psychologist, and Mr Richard Hall, counselling psychologist.[11]
[10] Exhibit D.
[11] Exhibit B.
12You are 27 years old and were 24 and 25 years old at the time of offending. You were born deaf and suffer from a group of genetic conditions causing hearing loss and changes in colour of the hair, skin and eyes. You lived with your biological mother and her partner until the age of 2, when you moved to live with your father and his new partner. They had a son in 1997 or 1998 and then married in 2005.
13You had cochlear implant surgery on one side at age 2 and on the other side at age 9. Throughout your school years at a school for the deaf, you had an integration teacher’s aide. You did not receive any sex education apart from in Year 9. You described yourself to Mr Hall in 2014 as bisexual, but as at the date of the plea hearing have not yet been sexually active.
14You completed Year 12 VCAL with passes in English, Maths, Business Management and Woodwork and were Dux of Lyndhurst Secondary College. During Year 12 you had a TAFE placement in the hospitality industry and you then completed an apprenticeship as a baker at Baker’s Delight, where you remained employed at least until October 2021. You are close to your family and have lived with your father and stepmother since 2000.
15Ms Matthews assessed you in 2014, 2017 and 2021, and reassessed you in 2022.
16In October 2014, she assessed your overall intelligence as falling in the low average range (89), with borderline scores in verbal knowledge, comprehension and reasoning; low average scores in quantitative reasoning; and average to high scores in fluid reasoning. She considered that while your overall intellectual ability was average, your verbal abilities were impaired consistently with your history of hearing impairment and your presentation as a person more literal and socially immature than your age. She opined that your offending at that time involved “two young people in the adolescent phase of development exploring relationships and sexuality”,[12] that you did not meet the diagnostic criteria for Paedophilia, and that your behaviour was not sexually deviant but rather “a function of adolescent development”.[13] Ms Matthews recommended a diversionary response which emphasised psycho-education concerning sexual identity, sexual behaviour and the law, sexual boundaries and the use of technologies.
[12] Report of Ms Pamela Matthews dated 22 October 2014, 5.
[13] Ibid.
17In October 2014, Richard Hall also provided a report. You had been referred to him for depression and anxiety arising from the charges you then faced. He opined that you were naïve and immature in your reasoning and conceptual thinking, and that your psychosexual development was “somewhat delayed for [your] age level”.[14] He recommended further treatment to assist in your socialization and maturation.
[14] Report of Mr Richard Hall dated 13 October 2014, 5.
18On 11 February 2018, Ms Matthews noted that you had not yet received, but required, specific sex offender intervention. She noted that at 24 years of age you had never had sex but needed to have support in exploring “age congruent emotional sexual relationships and [your] sexuality”,[15] as this would reduce the risk of your re-offending. She recommended that you receive family and agency support to engage with the LGBTI community.
[15] Addendum Report of Ms Pamela Matthews dated 11 February 2018, 2.
19On 17 December 2017, Ms Matthews noted that you faced a representative charge of indecently touching your 15-year-old half-brother on the leg, inner thigh and penis over clothing. You denied intending to touch him sexually. You were working 6 days per week from 4 am to 1 pm. You told her you rarely drank alcohol and did not take drugs. Ms Matthews considered that you presented as less mature than your years “with overall estimated social functioning being in the early to mid-adolescent range”.[16] She performed psychometric testing and concluded that while your overall intellectual ability was average, your “verbal abilities are impaired regarding knowledge, comprehension and reasoning, consistent with [your] history of hearing impairment and [your] presentation, being more literal and socially immature than [your] years.[17]
[16] Report of Ms Pamela Matthews dated 17 December 2017, 5.
[17] Ibid 6.
20Ms Matthews concluded after applying structured clinical and actuarial risk instruments that your risk of re-offending was moderate, but could be lowered with offence specific treatment. She identified the factors that would increase risk as: access to post-pubertal adolescent boys, poor levels of age congruent non-intimate social supports; and lack of age appropriate sexually intimate relationship[s].[18] She identified the factors likely to reduce risk as: specific sex offender treatment; further counselling and supports to engage in appropriate social network and to develop opportunities to develop an age-appropriate sexual relationship. She noted that you were very willing to engage in treatment.
[18] Ibid 10.
21After the present offending, you attended (in person) eight sessions of sex offender treatment with provisional psychologist Ms Daria Sizenko between 20 November 2020 and 5 August 2021. Other sessions were postponed or cancelled due to COVID restrictions and your inability to attend appointments remotely due to your hearing impairment. Ms Sizenko reported on 24 September 2021[19] that you noted “struggles with self-regulation, temptations, loneliness and boredom as primary contributors to the offending”,[20] but that to distract yourself from pornography you had redirected your attention to working, socialising with friends, and doing chores at home and at your grandmother’s property. You told her that you previously failed to consider the impact of the child abuse materials on the people in them. Ms Sizenko considered that through treatment you “established additional and enhanced internal protective factors”,[21] but would require ongoing support to manage your risks and maintain your behaviour change.
[19] Exhibit C.
[20] Report of Ms Daria Sizenko dated 24 September 2021.
[21] Ibid 2.
22Ms Matthews reassessed you on 13 September 2021.[22] You told her you were not good at meeting new people and had few friends. She found that your Full-Scale IQ-4 score was 90, placing you in the 25th percentile. Ms Matthews concluded that you have “low average cognitive functioning across all areas, with some deficits (borderline) in manipulating and transforming information held in immediate memory”.[23]
[22] Exhibit D.
[23] Report of Ms Pamela Matthews dated 24 September 2021, 6.
23Ms Matthews assessed you on the Static 99R 2016 as being at above average risk of re-offending. On the CPORT 2015 instrument, which focuses solely on child pornography offending, she assessed you as being at a very high risk of child exploitation material recidivism, with 94% of child pornography offenders likely to have a lower risk score. On the Risk of Sexual Violence Protocol, Ms Matthews noted that your risk factors included: escalating behaviour, grooming type behaviour, difficulties forming intimate and non-intimate relationships, social avoidance or social anxiety, and sexual deviancy of paraphilic nature. The relevant protective factors are your solid work history, parental support and engagement in treatment since 2019.
24Ms Matthews concluded that you are at a very high risk of further similar offending. She noted that although born with a significant hearing impairment, with the aid of cochlear implants you are able to engage in discussion and that intellectually you function within the average range. However, you present emotionally and socially as much younger than your years and, were it not for your physical development, “could readily be mistaken for an adolescent”.[24] She noted that you have always been socially avoidant to the point of meeting the diagnostic criteria for Social Anxiety (Social Phobia) Disorder, and this condition limits your “opportunities to develop socially and legally appropriate intimate and non-intimate relationships”.[25] She recommended that you engage with an LGBTI service and obtain some NDIS support for financial support in relation to hearing technology. In addition, given your attraction to boys aged between 11 and 15 years, you meet the criteria for Other Specified Paraphilic Disorder. Ms Matthews concluded that you are a “very sheltered immature man who will be vulnerable developmentally and emotionally in a custodial setting”.[26] She noted that you are very willing to engage in treatment.
[24] Ibid 8.
[25] Ibid.
[26] Ibid 9.
25In a further report dated 28 October 2021,[27] Ms Matthews opined that your naivety and immaturity in your reasoning and conceptual thinking is not a cognitive issue, but one which relates to “significantly delayed social and emotional development, possibly associated with parenting style and limited social engagement outside of school” during your formative years and since leaving school.[28] She considered that your immaturity combined with your social anxiety and avoidance contributes to your seeking out contact with younger males. She opined that social immaturity is not a cause of Hebephilic sexual interests.
[27] Exhibit D.
[28] Addendum Report of Ms Pamela Matthews dated 28 October 2021, 2.
26In relation to the impact of your hearing impairment on you if imprisoned, Ms Matthews noted:
… Regarding potential imprisonment in the writer’s [view] Mr Ainsworth is a very sheltered immature man who will be vulnerable developmentally and emotionally in a custodial setting. It is the writer’s opinion it is highly expected any time Mr Ainsworth may spend in custody would be arduous. More so if Mr Ainsworth is not able to use his cochlear implants.
In general, the prison system does not cope well with the hearing impaired. That opinion is based on cases where the individual(s) also had a developmental hearing impairment and assessments conducted with those clients in custody who did not have access to their hearing or cochlear aids…
…
Past clients with hearing aids and cochlear implants have said they cannot have their aids in custody because of the batteries. In the case of cochlear implants, these generally have button batteries.[29]
…
[29] Ibid 2-3.
27Mr Hall noted in his report dated 4 October 2021[30] that you have completed the sexual offending program “New Beginnings” twice since 2014, and have seen him regularly a number of times each year since then, as well as on one occasion in 2020. He noted that in spite of the sexual offending programs you completed you were very resistant to discussing your sexual behaviour with him and that your understanding of acceptable psychosexual behaviours is still under-developed. He considered that in many respects you behave at the emotional level of a person aged 16 or 17 years.
[30] Exhibit B.
28In addition to the expert material referred to above, your counsel tendered letters from your father and stepmother.[31] Your father noted that during your kindergarten and school years you had a great deal of intervention and speech therapy, and that you remain language delayed. You attended a school for the deaf and were supported by an integration aide. You took an extra year to complete your baking apprenticeship. You remain immature and struggle to make friends. Outside of work, you spend most of your time at home. Your stepmother noted that you are still language delayed and have few social contacts because of your working hours. You help around the house.
[31] Exhibits E, F.
29Your counsel also tendered a letter dated 10 February 2021 from the NDIS approving funding over two years totalling $3,000 for technology to assist you with your hearing and $2,739.15 for “Capacity Building Supports”.[32]
[32] Exhibit G.
Submissions
Prosecution submissions
30The prosecution submitted that the primary sentencing principle in child pornography offences is that of general deterrence, and that less weight can be given to personal mitigatory factors such as age and prospects of rehabilitation. The other very important sentencing considerations are those of denunciation, just punishment, specific deterrence and protection of the community. In this regard, the opinion of Ms Matthews that you pose a very high risk of similar re-offending is important. The prosecution submitted that your offending is objectively very serious. The prosecution agreed that you are immature but submitted that this was not uncommon for this kind of offending; that you had and have a sexual interest in children which affects your prospects of rehabilitation; and that there should be a degree of cumulation between each of the charges to reflect either the discrete offending with different elements and, where the offence type is the same, to reflect the different victims of those offences.
31In relation to the issue of cumulation and concurrency, the prosecution conceded that the sentences imposed on charges 1,7 and 9 could be concurrent, because the conduct, unlike the other charges, does not involve the sending of images of your penis and the chats are quite short. Additionally, concurrency could also apply to charges 8 and 12, as the offending in those charges also involved short conversations without transmissions of any images. Otherwise, the prosecution submitted that there should be a degree of cumulation between all the other charges to reflect the different instances of discrete offending involving different recipients at different times.
32As all 25 charges on the indictment are class 2 offences under the SORA, upon sentence, you will be a registrable offender as defined in the SORA, and will be required to comply with reporting obligations for the rest of your life.
Defence submissions
33Your counsel conceded that your offending is serious and that it calls for the imposition of an immediate term of imprisonment.
34Your counsel relied on a number of matters as warranting moderation of the sentence to be imposed.
35First, there is expert evidence from Ms Matthews and Mr Hall of your ongoing chronic immaturity which is a product of your hearing impairment, sheltered upbringing and social anxiety disorder. You were between 24 and 25 years old at the time of offending, but when assessed at the age of 27, still presented as having the immaturity of an adolescent.
36Second, you completed the majority of your sex offender treatment program after the current offending; since completing that treatment and those programs (in September 2019) there has been no further offending. This demonstrates that you have realistic prospects of rehabilitation, in spite of Ms Matthews’ opinion that you present as a very high risk of similar re-offending.
37Third, there has been considerable delay in finalising this matter, given that the offending occurred between July 2018 and January 2019. None of the delay is due to any fault on your part and you ought to be given some leniency because during this period you have had treatment and have not re-offended. In the event that the court imposes a head sentence and non-parole period, the court ought to set a lower than usual non-parole period in order to reflect your immaturity, the treatment you have received since offending, the fact that you have not re-offended, and the fact that you will be a vulnerable person in custody due to your immaturity and that your time in prison will be more onerous due to your hearing impairment which often necessitates face to face contact with those speaking to you.
38Fourth, your early plea of guilty is of substantial utilitarian value in facilitating the course of justice, amounts to an acceptance of responsibility, and warrants a more pronounced amelioration of sentence because it was made during the currency of the COVID-19 pandemic.
39Fifth, your time in prison during the currency of the COVID-19 pandemic will be more onerous because of the higher risk of contracting the virus in custody, the additional anxiety such a risk will cause you and your family; and the impact the pandemic-related restrictions will have on visits, work and educational opportunities in prison. As an immature person with a hearing impairment, you will be vulnerable in the prison environment. However, correspondence to your solicitor from Justice Health prior to the plea hearing had indicated that you would have access to your hearing device and related aids whilst in custody.
40In relation to the issue of cumulation and concurrency between Commonwealth charges, your counsel agreed with the prosecution submission that the sentences imposed on charges 1,7 and 9 could be made concurrent. Your counsel also agreed that concurrent sentences could be imposed in relation to charges 8 and 12.
41Your counsel submitted in relation to the remainder of the Commonwealth charges, and the State charge, that the court exercise its discretion according to the common law principle of totality. In order to achieve a global effective sentence that is just and appropriate as a whole, it was submitted that very substantial concurrency ought to be ordered as between the numerous charges.
Adjournment of sentence, part-heard, on 19 November 2021
42The matter was listed for sentence on 19 November 2021. However, upon the matter being called on, you told the Court that you would be unable to participate properly in the sentencing hearing. You had been unable to access the charging port for your cochlear implants, and only had with you disposable batteries with very limited battery life.
43In these circumstances, the defence sought an adjournment and an order that Justice Health produce a report outlining the issues that you may face in custody concerning access to and use of your hearing aid devices. Orders were made to this effect, and the matter was re-listed for sentence on 20 April 2022.
44On 26 November 2021, the defence produced a report from Ms Elizabeth Rose, otolaryngologist, dated 3 November 2021, in which she indicated, among other things:
… The cochlear implant provides a means of electrically stimulating the auditory nerve of people with severe-to-profound (or total) hearing loss. In doing this, it can provide an approximation of speech sounds and offers partial hearing. Although the cochlear implant provides significant benefit for Kristian, it does not provide ‘normal’ hearing, and he still presents with profound hearing loss when he is not wearing the speech processor.
Even the best cochlear implant users struggle in noisy situations therefore Kristian requires ongoing support for his hearing impairment and additional accessories or modifications may be required within the workplace or any social environment, as well as his home to ensure adequate communication.[33]
[33] Report of Ms Elizabeth Rose dated 3 November 2021.
45On 22 December 2021, Dr Foti Blaher, of Correct Care Australia, who did not meet you (as required by the Court’s orders), reported that you have profound sensorineural hearing impairment, for which you have received bilateral cochlear implants. You have external speech processors with rechargeable batteries. He noted that the prison system is “experienced in managing these health needs” and that:
… Mr Ainsworth will have full access to his aids. His aids have rechargeable batteries that he would normally charge overnight. The on-site health service at Ravenhall has facilitated him having a charger in his cell to do this …
… Access to normal consumables such as batteries is facilitated at the correctional facility’s medical centre.[34]
[34] Report of Dr Foti Blaher dated 22 December 2021.
46The defence obtained access to Justice Health Records which document difficulties experienced by you on 13 December 2021; 13, 25 and 28 January 2022, and 3 February 2022. In addition, the defence tendered diary notes made by you between 4 November 2021 and 5 April 2022.
47In Further Written Submissions dated 18 April 2022, the defence submitted your diary notes reveal that at various times between 4 November 2021 and 7 March 2022, which was referred to as the “Special Hardship Period”, you were denied access to one or more of your cochlear implant related devices, namely batteries and the charging device. As a result, during this period, you endured especially onerous conditions and hardship.
48In the days prior to the sentencing date, the defence provided a number of further documents and these were tendered at the sentencing hearing.[35]
[35] Further Submission of the Defence dated 10 November 2021 (Exhibit H); Further Submission of the
Defence dated 18 April 2022 (Exhibit I); Bundle of diary entries and notes of the Accused dated 4 November 2021 and 5 April 2022 and complaint letter by the Accused (Exhibit J); Addendum Report of Ms Pamela Matthews dated 27 March 2022 (Exhibit K); Bundle of certificates concerning programs of rehabilitation completed by the Accused in November and December 2021 (Exhibit L); Report of Ms Elizabeth Rose dated 3 November 2021 Exhibit M); Justice Health records released under subpoena on 4 April 2022 (Exhibit N).
49The defence tendered a further report of Ms Matthews, dated 27 March 2022. Ms Matthews had access to your diary notes, and re-examined you. You told her that you had been told at the prison that you could not have the charger to your rechargeable batteries for your cochlear implant for reasons including: “I can’t have it with me; the cords too long; the cord could be used as a tattoo gun; it could be stolen; they have lost the rechargeable batteries”.[36] You told her that you were not allowed to have the rechargeable batteries and charger in your cell; that you have to go to the medical centre each day to change the batteries (rechargeable and non-rechargeable); and that the prison had lost two of four rechargeable batteries.
[36] Addendum Report of Ms Pamela Matthews dated 27 March 2022, 1-2.
50You told her you need four rechargeable batteries, as you use two at a time. The battereries for cochlear implants are specialised and expensive. Ms Matthews noted that “on better days, he has access to one rechargeable battery for his implant and a blister six-pack of non-rechargeable batteries for his other implant. The packet of six lasts half a day. He must collect the batteries from medical”.[37]
[37] Ibid.
51You told her that without fully charged batteries for your cochlear implants, you cannot hear what is being said on the PA system, and are not assisted by prison officers if you ask for clarification. Nor can you hear who is coming up behind you. As a result of these difficulties, you presented with “reactive low mood disturbance of dysthymic quality associated with [your] situation”.
52Ms Matthews concluded:
Mr Ainsworth’s account is consistent with the account provided to the Court by the writer in both prior reports. Hearing is not a luxury, nor is it something anyone should have to seek permission to do. Hearing is a human right.
Mr Ainsworth is experiencing his time in custody thus far as unnecessarily onerous. His experience is consistent with the writer’s experience with clients in custody who have a hearing impairment.
53In the light of the additional material referred to above, the defence submitted, that your experience of imprisonment has been and will continue to be burdensome by reason of your hearing impairment; that it was especially burdensome during the Special Hardship Period by reason of your impairment and your limited access to cochlear devices; and that your hearing impairment during that period was more burdensome because of the conditions of your imprisonment in that you had limited access to the cochlear devices.
54It was submitted that these factors should lead to mitigation in sentence.
55The prosecution indicated on 19 April 2022 that it accepts that between 4 November 2021 and 7 March 2022 you endured “special hardship” as outlined above, and that you have only had access to the two sets of two batteries you require for your cochlear implants since 7 March 2022. The prosecution noted that since 7 March 2022 there have been no further issues in relation to your ability to charge your cochlear implants; however, it was conceded that by reason of your ongoing hearing impairment, imprisonment will continue to be more onerous for you than for a person without the impairment.
Sentencing considerations
56The prosecution provided me with a table of intermediate appellate cases which set out the relevant sentencing principles, [38] and I have had regard to those cases and to the cases referred to in the parties’ written submissions.
[38]Chenhall v the Queen [2021] VSCA 175 (‘Chenhall’); Martin v R [2019] NSWCCA 197; Kristensen v R [2018] NSWCCA 189; Maine v R [2018] VSCA 56.
57It is not necessary to restate these legal principles. On the authorities,[39] the primary sentencing consideration for your Commonwealth and State offending is that of general deterrence. There is a paramount public interest objective in promoting the protection of children from online sexual exploitation and from sexual abuse to supply the market for child exploitation materials.[40] Denunciation, just punishment and protection of the community are also very important sentencing considerations.
[39] Chenhall [2021] VSCA 175, [42].
[40] DPP (Cth) v Garside [2016] VSCA 74; DPP v D’Alessandro (2010) 26 VR 477, [23].
58Given the primacy of general deterrence, less weight in the sentencing synthesis is to be given to an offender’s personal mitigatory factors such as, relevantly, age and prospects of rehabilitation, than would otherwise be the case. Ordinarily, the offences call for a sentence involving a term of immediate imprisonment. However, the principles of totality and parsimony must be given effect in the exercise of the sentencing discretion.
59I note that in relation to the Commonwealth offences, that while there is no default rule concerning concurrency or cumulation, I am obliged to exercise my discretion in relation to these matters in the light of the common law principle of totality.
60I note that all 25 charges on the indictment are class 2 offences under the SORA, and that, upon sentence, you will be a registrable offender as defined in the SORA and will be required to report for the remainder of your life.
61I also note that if you are sentenced to a term of imprisonment for two or more of charges 3-8 or 10-24, then you fall to be sentenced as a “serious sex offender” in relation to charge 25 (possess CAM), pursuant to Part 2A of the Sentencing Act 1991 (Vic).
62I note that your two previous convictions and punishment for sexual offending against, or involving, children (which did not involve sentences of imprisonment), did not deter you from committing further offences involving children. It is most unfortunate that you did not undergo specific child sexual offence treatment until approximately the end of 2018, although I acknowledge that you have not offended since completing such a program.
63I consider that the features of this case, given your hearing impairment, language delay, and consequential social, emotional and psychosexual immaturity, are most unusual. Although you cannot be sentenced as a youthful offender, I consider that your emotional, social and psychosexual immaturity goes some way in mitigating your moral culpability for your offending. Moreover, I consider that in the light of your specific personal circumstances: hearing impairment, emotional, social and psychosexual immaturity, social anxiety disorder, and delayed language, it is appropriate to moderate the weight to be given to the principle of general deterrence. Nonetheless, protection of the community, in particular protection of children, remains a central consideration, given your risk profile as outlined by Ms Matthews, unless and until that profile can be altered by intensive treatment and further engagement in offence-specific programs. Some optimism is warranted in relation to your prospects of rehabilitation from the fact that you have not offended since completing a sex offender treatment program in September 2019.
64I accept the matters relied on in mitigation by your counsel which are outlined at paragraphs 33-41 above and in the Further Written Submissions. I accept that, over and above the added burden to prisoners of the risks and restrictions flowing from the COVID-19 pandemic, you will find prison more burdensome than other prisoners because of your hearing impairment, social anxiety and general vulnerability.
65In relation to your hearing impairment, I find that between 19 November 2021 and 7 March 2022, you endured special hardship in prison because of the failure of the prison authorities to ensure that at all times you had access to the devices necessary for the operation of your cochlear implants. I consider that there should be some mitigation in sentence because of this period of special hardship. I also consider that given the limitations of the cochlear implants referred to at paragraph 44 above, there should be a more general mitigation of sentence because of the burden that imprisonment has had and will have upon you as a consequence of your hearing impairment.
66I turn to the charges.
Charge 25 – possess child abuse material
67As at 31 January 2019, you possessed 223 child abuse images and 5 videos on three devices. As indicated above at paragraph 4, whilst most of the material was in categories 1 and 2, it included closeup images of children exposing their genitals, engaging in masturbation and naked children being presented as “female bodily parts”.[41] Some of the material (27 images and 1 video) was classified as categories 3, 4, 5 and 6 child abuse.
[41] Exhibit A, 8.
68On the authorities,[42] the objective seriousness of the offending is ordinarily determined by reference to factors including, relevantly: the number of images possessed; the nature and content of the material; and the number of children depicted.
[42] DPP (Cth) v Garside [2016] VSCA 74.
69The law says that the lower classification levels do not lessen the gravity of the offending,[43] as the lower categories (1) and (2) encompass a wide variety of activity.
[43] Heathcote (a pseudonym) vThe Queen [2014] VSCA 35.
70In the light of the number of items possessed, and the nature and content of the material, I consider that your offending falls towards the lower end of seriousness for this type of offending, which carries a maximum penalty of 10 years’ imprisonment.
71However, as you are to be sentenced to a term of imprisonment for two or more of charges 3-8 or 10-24, then you fall to be sentenced on this charge as a “serious sex offender”.[44] This means that I am required by section 6D of the Sentencing Act to regard the protection of the community as the principal purpose when determining the length of the term of imprisonment to be imposed, and that I may impose a longer sentence than that which is proportionate to the gravity of the offence considered in the light of the objective circumstances. In this case, the prosecution did not seek the imposition of a disproportionate sentence on charge 25 and I do not propose to impose a disproportionate sentence.
[44] Sentencing Act 1991 (Vic) Part 2A.
72However, section 6E requires that any term of imprisonment imposed on charge 25 be served cumulatively on other sentences imposed unless I direct otherwise. I do not direct otherwise.
Charges 1, 2, 7, 9, 11, and 20 – use a carriage service to transmit indecent communications to person believed to be under 16 (6 charges)
73Your offending occurred just months after you were convicted in April 2018 for committing an indecent act with a child under 16. These charges carry a maximum penalty of 7 years’ imprisonment.
74General deterrence is the primary sentencing consideration for offending involving the online sexual exploitation of children, and an immediate term of imprisonment is ordinarily imposed for this kind of offending. Specific deterrence, denunciation, just punishment and protection of the community remain very important sentencing considerations.
75In assessing the seriousness of offending, I have had regard to the following central factors identified in the authorities:[45]
[45] Meadows v The Queen [2017] VSCA 290, [12].
76Your offending involved 6 unidentified recipients who identified as children aged between 13 and 15 when you asked them their ages. The offending took place over 7 months, when you were aged between 24 and 25. You admitted gaining the trust of the victims over a period of a week or two before sending or receiving explicit photographs. You admitted obtaining sexual gratification from these activities. You admitted persisting in the conduct because you thought you could get away with it. The charges comprise sexualised conversations as well as, in some cases, the transmission by you of images of your penis (charges 2, 11 and 20) to three of the victims. I consider that your offending is at the lower end of seriousness for this type of offending.
Charges 3, 5, 6, 8, 10, 12-19 and 21-24 – use a carriage service to solicit child pornography (17 charges); and Charge 4 – use a carriage service to transmit child pornography (1 count).
77These offences carry a maximum penalty of 15 years’ imprisonment which demonstrates Parliament’s assessment of the seriousness of such offending.[46] The offending comprises your soliciting child pornography material from 17 individuals believed to be children, and transmitting child pornography to an additional child.
[46] Elias v R (2013) 248 CLR 483, [27]; Markarian v The Queen (2006) 228 CLR 357, [30]–[31].
78In sentencing you for this offending, I have sought to give weight to the number of victims, as well as to the principles of parsimony and totality. I have attempted to accomplish this by imposing aggregate sentences on groups of offences of a similar nature. The first group of charges (8 and 12) concern short conversations without transmissions of any images alleged to be child pornography. The second group of offences comprising charges 5, 6, 10, 15-18 and 22-24, consists of exchanges in which you sent to 10 victims images of your penis and on two occasions videos of you masturbating, and received no images, or only images of faces of children. The final group, comprising charges 3, 4, 13, 14, 19 and 21, concerns conduct in which you sent images of your penis and, on one occasion, a video of you masturbating, and, received from the victim images of a penis or anus or naked upper torso or child abuse material.
79I consider it appropriate to impose an aggregate sentence in respect of each of these groups of offending, with partial cumulation of the sentences between groups to reflect the number of victims.
Sentence
80I propose to the structure the sentence as set out below, and will hear from counsel to ensure that the final orders properly reflect my sentencing intentions.
81On charge 25, possess child abuse material, for which you are to be sentenced as a serious offender, you are convicted and sentenced to a term of imprisonment of 9 months.
82On the six charges of using a carriage service to transmit indecent communications to person believed to be under 16, you are convicted and sentenced as follows:
83On charges 1, 7 and 9, you are convicted and sentenced to an aggregate sentence of 2 months’ imprisonment. This sentence is to commence upon the completion of the sentence imposed on charge 25.
84On charges 2, 11 and 20, you are convicted and sentenced to an aggregate term of 8 months’ imprisonment. This is to be served cumulatively on charges 1, 7, and 9. This sentence is to commence upon the completion of the sentence imposed on charges 1, 7, and 9.
85This 10 months’ sentence of imprisonment is to commence upon the completion of the sentence imposed on charge 25.
86On the 17 charges of using a carriage service to solicit child pornography material, and the one charge of using a carriage service to transmit child pornography material, you are convicted and sentenced as follows:
87On charges 8 and 12, you are convicted and sentenced to an aggregate sentence of 3 months’ imprisonment. This is to be served cumulatively on charges 2, 11 and 20. The sentence on this charge is to commence upon the completion of the sentence imposed on charges 2,11 and 20.
88On charges 5, 6, 10, 15-18 and 22-24, you are convicted and sentenced to an aggregate sentence of 21 months’ imprisonment, 15 months of which are to be served cumulatively on the sentences imposed on charges 8 and 12. That sentence is to commence upon the completion of the aggregate sentence imposed on charges 8 and 12.
89On charges 3, 4, 13, 14, 19 and 21, you are convicted and sentenced to an aggregate term of 20 months’ imprisonment, 15 months of which are to be served cumulatively on the sentences imposed on charges 5, 6, 10, 15-18 and 22-24. This sentence is to commence upon the completion of the aggregate sentence imposed on charges 5, 6, 10, 15-18, and 22-24.
Total effective sentence and non-parole period
90The total effective sentence on the Commonwealth charges is one of 3 years’ and 7 months’ imprisonment, with a non-parole period of 18 months. This sentence is to commence after completion of the State sentence of 9 months’ imprisonment imposed on Charge 25. The State sentence of 9 months’ imprisonment commences today. There are 167 days of pre-sentence detention to be deducted administratively from the State sentence imposed today.
91I consider it appropriate to give weight to the mitigatory factors related to your hearing impairment referred to at paragraphs 63-65 above when setting the appropriate non-parole period. I therefore impose a non-parole period of 18 months on the Commonwealth charges which is to commence after completion of the State sentence imposed on charge 25.
92I indicate, pursuant to s 6AAA of the Sentencing Act, that, but for your guilty plea and for it having been made during the currency of the COVID-19 pandemic, I would have imposed a total effective sentence on the Commonwealth charges of 8 years’ imprisonment with a non-parole period of 5 years.
93As you have been sentenced to 25 charges which are class 2 offences under the SORA, you are a registrable offender as defined in the SORA and required to comply with the reporting obligations for the remainder of your life.
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