Director of Public Prosecutions (Cth) v Archer
[2025] VCC 463
•11 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-02006
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| V |
| KENNETH ARCHER |
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JUDGE: | HER HONOUR JUDGE BRECKWEG | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2025 | |
DATE OF SENTENCE: | 11 April 2025 | |
CASE MAY BE CITED AS: | DPP (Cth) v Archer | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 463 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Two charges of using a carriage service to cause offence – four charges of using a carriage service to transmit child abuse material – one charge of possessing or controlling child abuse material – possess child abuse material
Violent fantasy role plays – written child abuse material exchanged between adults - repetitive offending – five-year duration - general and specific deterrence - just punishment - remorse – early plea – totality - paedophilic disorder - very good prospects of rehabilitation – no prior criminal history - early engagement with treatment - older offender
Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v R (2013) 302 ALR 192; Huang v R [2018] NSWCCA; DPP (Cth) v Garside [2016] VSCA 74; R v Oliver [2003] 1lCr App R 28; R v Coffey (2003) 6 VR 543; Heels v The King [2024] VSCA 133; R v Edwards [2019] QCA 15; R v Caldwell [2021] QC 112; R v Verdins [2007] VSCA 102
Sentence: Total effective sentence of 3 years imprisonment; order to serve 20 months imprisonment before being released by recognisance pursuant to s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) in the sum of $1000 with conditions – good behaviour – completion of sex offender program – other mandatory conditions - Sex Offenders Registration Act - reporting for Life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Cullen | Solicitor for the Director of Public Prosecutions (Cth) |
| For the Accused | Ms A. Beech | Taylor Rose Lawyers |
HER HONOUR:
Introduction
1Kenneth Archer, you have pleaded guilty to two (2) charges of using a carriage service to cause offence contrary to s 474.17(1) of the Criminal Code (C’th) (charges 1 and 6); four (4) charges of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself contrary to s 474.22(1) of the Criminal Code (C’th) (charges 2, 3, 4 and 5) and one (1) charge of possessing or controlling child abuse material contrary to s 474.22A(1) of the Criminal Code (C’th) (charge 6).
2Each offence carries a maximum penalty of 15 years imprisonment apart from charge 1 (using a carriage service to cause offence) which carries a maximum penalty of 3 years imprisonment and charge 6 (using a carriage service to cause offence) which carries a maximum penalty of 5 years imprisonment.
3You have also admitted your guilt in respect of five (5) further offences and have agreed to have these taken into account in sentencing you for the offending the subject of charges 2, 3 and 4 pursuant to s 16BA of the Crimes Act 1914 (Cth) (the Act). Each of those offences ordinarily carries a maximum penalty of 15 years imprisonment. You are not convicted of the offences taken into account, but these may increase the sentence otherwise appropriate for the offence for which you have been convicted by giving greater weight to the need for specific deterrence and to the community’s entitlement to exact retribution for serious offences.[1] The nature and seriousness of section 16BA offences is therefore relevant to determining an appropriate sentence for the offence for which you are to be sentenced,[2] however the maximum penalty for the offence on which you are sentenced is not affected by taking into account another offence or offences.[3]
[1]Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; De Lorenzo v DPP (Cth) [2017] VSCA 270 at [36]; R v Lamella [2014] NSWCCA 122 at [48].
[2] Huang v R [2018] NSWCCA 57.
[3] s 16BA(4) Crimes Act 1914 (Cth)); Abbas v R [2013] NSWCCA 115.
Circumstances of the offending
4The agreed facts of your offending are set out in the Summary of Prosecution Opening (Exhibit A on the plea). I will not repeat the entirety of the facts but, in summary, your overall offending covers your on-line written communications with several different adult men between 6 July 2018 and 24 April 2023 and your possession of child abuse material in the form of images, videos and written text, on 11 May 2023.
5Charge 1 is a charge of using a carriage service to cause offence and involved you communicating online with a male using the name Nick Papadopulos on WhatsApp between 1 March 2018 and 9 May 2023. During the communications you described sexual acts involving adult Asian and African American men in explicit detail and referred to these men using highly racist terms and negative stereotypes, including owning the latter as sex slaves. On one occasion you fantasised that Nick Papadopoulos was your adult son who you had groomed for ten years so he ‘would be ready for men to use’ and could be raped by you. The offending occurred intermittently over what is a lengthy charge period but did not involve discussion of children.
6Charge 2 is a charge of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself. Between 23 June and 19 October 2020, you communicated with a user named Kato during which Kato assumed the role of your infant child. You exchanged written child abuse material by engaging in conversations predominantly focussed on drugging and sexually abusing the ‘child’ and cooking and eating his penis.
7An offence of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself between 20 May and 22 June 2020 (item 5) is to be taken into account in sentencing you on charge 2. This offence covers earlier online communication with Kato, who was using the name ‘Hiro’, and again involved Kato assuming the role of your infant son. You asked Kato would he ‘really be a little 4-year-old for me?’ and exchanged messages primarily involving the theme of masturbating the child’s penis until ejaculation, covering the child’s penis with the ejaculate and then cooking and eating, the penis.
8Charge 3 is a charge of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself between 1 July 2020 and 24 December 2022 arising from another on-line text conversation with Nick Papadopoulos, this time involving the exchange of messages constituting child abuse material. During intermittent conversations over the charge period, you and Papadopoulos role played a scenario where he was a 15-year-old boy, and you were his “Daddy”. The communications are set out in the Opening and focussed on your mutual fantasy of drugging, abusing and raping or ‘breeding’ the child after grooming him.
9Two offences of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself (Items 1 and 4) are to be taken into account in sentencing you on charge 3. Item 1 covers earlier communications between you and Nick Papadopoulos on 19 and 27 July 2019 where you exchanged text-based child pornography material.
10Item 4 concerns the exchange of child abuse material by you and Nick Papadopoulos on intermittent occasions between 25 December 2019 and 26 May 2020. The messages exchanged covered your fantasy of raping Papadopoulos who was pretending to be your 15-year-old son.
11Charge 4 is another charge of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself between 18 October 2020 and 11 March 2022. During the charge period you engaged in on-line communications with three (3) different adults (four (4) usernames) during which you again exchanged written child abuse material. Between 12 and 14 April 2021 you conversed with ‘AA’ who was using the username ‘4FurryDads’ on the Grindr application. You engaged in a role play with you pretending to be AA’s father and you told AA he should be a ‘little boy who could suck Daddy’s cock’. Subsequently you asked AA what age he liked, and you stated that you were ‘VERY open…single figures? 5 or 6’ and you both eventually agreed that AA should pretend to be a 3-year-old during your role play.
12Between 23 April and 22 July 2021, you again communicated with AA who was this time using the name ‘Sum One’. You engaged in graphic discussions of incestuous sexual activity between men and young boys with you playing the role of AA’s “Daddy” and AA pretending to be children aged 3 and 4. On 11 March 2022 you spoke to username Ryan and you both agreed to engage in incestuous themed role play with you acting as ‘Daddy’ and Ryan offering to portray a boy aged between 5 and 11 years old.
13Between 18 October 2020 and 9 October 2021, you engaged in incestuous role play scenarios on-line with username Nathan during which he assumed the role of a 5-year-old child, and you played the role of his father. One chat on 18 October 2020 involved you both engaging in a very graphic sexual role play that went for 4 hours.
14Two offences of using a carriage service to transmit child abuse material and to cause it to be transmitted to yourself (Items 2 and 3) are to be taken into account in sentencing you on charge 4. Both items involve your exchange of text-based child pornography material with username ‘Richy Lim’. After confirming your mutual interest in sexual ‘dad/son’ role play chats involving younger boys being raped, between 31 August and 1 September 2019 you both described, in graphic detail, scenarios where you, as ‘Daddy’ drugged, tied up and raped Lim who was portraying your 13-year-old son. Item 3 covers the period between 21 September and 15 October 2019 and was a continuation of the same theme of you sexually abusing your 14-year-old son.
15Charge 5 is also a charge of using a carriage service to transmit child abuse material and to cause child abuse material to be transmitted to yourself between 22 October 2020 and 24 April 2023. During the charge period you communicated on several occasions with Kato on Kato’s second WhatsApp account, again fantasising about sexual activity with young children, with you playing the role of the father and Kato playing the role of your son who was aged variously between 1 and 10. The communications featured references to the son’s penis being a ‘milking machine’, drinking a child’s semen, and drugging the purported child and cooking and eating his penis.
16Charge 6 is a charge of using a carriage service to cause offence. The offending involved you exchanging messages with username ‘Dennis’ on WhatsApp on 15 and 16 May 2022 in which you discussed sexual activity with a ‘boi’ in his teens – including drugging and raping the boy. The written communications did not meet the definition of child abuse material given the uncertain age of the ‘boi’ role played by Dennis.
17Charge 7 is a charge of possessing or controlling child abuse material. On 11 May 2023, police seized several of your electronic devices and following an examination of those devices, you were found to be in possession of 258 child abuse images (61 of which were unique) and 12 videos (of which 6 were unique). The material was classified based on the Interpol Baseline Categorisation System and most of the images (248 – 59 unique) and videos (10 – 5 unique) fell within level 2 – that is, it was material featuring children aged between 13 and 17 years. The examples of this material set out in the Opening makes it clear it contained abhorrent depictions of children including a focus on cannibalism and cruelty. Whilst there was only a small amount of child abuse material classified as category 1, the material was highly depraved including an image of a child aged between 10-18 months on a rotisserie.
18Text-based or written child abuse material was also located on your laptop in the form of short stories which included depictions of child sexual abuse and children being tortured, cooked and eaten.
Personal circumstances
19Your counsel described your personal background in some detail. Your parents were largely absent during your childhood, and you had very little emotional support. At school you were bullied by other children and by a teacher. Your mother and father separated when you were young and whilst you initially had a good relationship with your stepfather, he became emotionally abusive and was very violent towards your mother, yourself and your brother. I was told that you effectively lived in constant fear until your early teenage years, even resorting to living in the garden shed or hiding in the roof cavity to avoid your stepfather. When you were 14 your mother left your stepfather but reunited with him about a year later at which time things were initially better but ultimately, he became violent once again. At this stage you had the support of your aunt, cousin, a priest and had formed a very close relationship with your choirmaster who acted as a father figure to you. He died suddenly when you were 16 which left you devastated. You left school at the end of year eleven when you were 17 and left home aged 18.
20It was not submitted that your background enlivened the application of Bugmy[4] principles, but I nevertheless take your traumatic upbringing into account in a general sense in assessing your moral culpability for the offending, especially your exposure to considerable violence as a child.
[4] Bugmy v R (2013) 302 ALR 192
21You are, and always were, very close to your nephew and your aunt. You ultimately had a long and successful career as a teacher. There have been no complaints of any inappropriate behaviour involving your students. In 2017 you returned to Melbourne from teaching in China to care for your mother who had been diagnosed with cancer. You instructed that your mother was volatile, critical, demanding and abusive towards you during this period, and your aunt ultimately took primary responsibility for your mother’s care. Your retired from working in 2023 after you were charged. Your mother died in 2024. You have been in a stable relationship with your partner Andre for six (6) years.
Sentencing Principles
22The objective seriousness of offending involving child abuse material is ordinarily determined by reference to the following factors:[5]
(i)The nature and content of the material, the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm occasioned to the children involved in the material
(ii)The number of items or images that were possessed
(iii)Whether the material was for the purpose of sale or was further transmitted or distributed to others
(iv)Whether the offender profited from the offence, which includes payment or other material benefit (such as the exchange of child pornographic material), noting that offending is not mitigated by the fact that an offender did not profit from the offending, did not pay for material or to access a child abuse website[6] or was not involved in the distribution or sale of child abuse material;[7]
(v)The number of children depicted and thereby victimised
(vi)The degree of planning, organisation, sophistication or deception used to acquire, store or transmit the material
(vii)Whether actual children were involved in the creation of the material
(viii)The length of time for which the pornographic material was possessed
[5] DPP (Cth) v Garside [2016] VSCA 74; R v Howe [2017] QCA 7; DPP (Cth) v Zarb [2014] VSCA 347; R v De Leeuw [2015] NSWCCA 183 at [116]; DPP (Cth) v Watson [2016] VSCA 73 at [47].
[6] R v Oliver [2003] 1 Cr App R 28 as applied by Minehan v The Queen (2010) 201 A Crim R 243 [at 258]
[7] R v Coffey (2003) 6 VR 543 at [30].
23I have also had regard to the matters applicable in sentencing for Commonwealth offences. Section 16A(1) of the Act provides that a court must impose a sentence or an order that is of an appropriate severity in all the circumstances of the offending and s16A(2) sets out a non-exhaustive list of factors that must be taken into account as far as these are relevant and known to the Court. I have had regard to the following factors set out in s 16(A)(2):
16A(2)(a) Nature and circumstances of the offence
24As your counsel accepted during the plea, your offending is a serious example of serious offences. You have pleaded guilty to seven (7) charges which span a period of almost five (5) years from 6 July 2018 to 11 May 2023, and your offending during this period was not completely sporadic.
25Your offending covers three (3) different types of offences and involved on-line communications with six different adult individuals.[8] The maximum penalty for all charges except charges 1 and 6 is again 15 years imprisonment which is an unequivocal indicator of the seriousness of the charge in the view of parliament.
[8] You also communicated with a seventh individual, Richy Lim, who is the subject of items 2 and 3 on the s 16BA Schedule.
26As I summarised at the beginning of these remarks, the content of the material involved in the central charges is highly sexualised, depraved and abhorrent. Your communications were clearly for sexual gratification. Common themes in your conversations included your desire to drug and rape, sexually abuse and torture male children as young as 4 years old. Often you played the role of the father of a child and some of your conversations included fantasies about cannibalising male children or having them raped by more than one adult male.
27I am cognisant however, that despite repeated references in your communications to harming and sexually abusing children, your offending involved the exchange of text-based or written fantasies with like-minded adults. There were no actual children harmed or sexually abused during, or from your offending, apart from those children featured in the child abuse images and videos the subject of charge 7. As held in Heels v The King,[9] the fact that an actual child is not harmed or sexually abused is clearly a relevant factor in assessing the objective gravity of offending involving child abuse material.
[9] [2024] VSCA 133, [40]
28This is not to say that such offending is not serious. Text-based child abuse material exchanged with others for sexual gratification “…has the tendency to normalise or encourage child sex abuse”, to encourage reciprocal communications or victim participation[10], relegates children to objects, undermines society’s abhorrence of child sexual abuse and ignores the harm that the fantasised activities cause real child victims.[11] As stated in R v Edwards[12], written child abuse material is not victimless and written child abuse material may fuel a demand for material involving real child victims.[13]
[10]Innes v R [2018] NSWCCA 90; Meadows v The Queen [2017] VSCA 290; The Queen v Hancock [2011] NTCCA 14 at [42].
[11] Ibid, [40]
[12] [2019] QCA 15, [60-61]
[13] See also McEwen v Simmons (2008) 73 NSWLR 10; [2008] NSWSC 1292; Innes v R [2018] NSWCCA 90
29I accept your offending did not involve aggravating features such as the exchange or transmission of child abuse images or videos during the communications, the dissemination of the material to a wider audience, or the transmission of conversations or child abuse material for profit.
30In terms of charge 7, you were in possession of 270 images and videos of which 67 were unique. Whilst your counsel pointed to the low quantity of material in your possession compared to other cases, which is a matter I have had regard to, the content of the material remains a central indicator of seriousness. In R v Cardwell, the Queensland Court of Appeal held:
[T]he quality of the material … rather than the quantity, will often be more determinative … the greater the cruelty, degradation and corruption depicted and the more the material offends against community values, the more reprehensible the offending conduct.[14]
[14] [2021] QC 112, at [22] (citing R vVantoosten [2009] QCA 55, [9]).
31In your case some of the material was exceptionally depraved. Many different child victims were depicted in the material and each of those children is presumed to have suffered harm.
32The children depicted in the images covered ages from infancy to 17 years, with the majority featuring pubescent males. The written stories located on your devices also contained violent fantasies again with themes of the abduction, rape, torture and cannibalisation of young boys.
33Clearly, there is a paramount public interest objective in promoting the protection of children as the possession of child exploitation material is not a victimless crime - the possession of child abuse material creates a market for the continued corruption and exploitation of children and children are sexually abused to supply the market.[15]
[15] R v Jongsma (2004) 150 A Crim R 386 at 395, [14]; Heathcote (a pseudonym) v The Queen [2014] VSCA 35 at [40]; DPP v D’Alessandro (2010) 26 VR 477 at 484, [23].
16A(2)(g) Plea of guilty
34You pleaded guilty to the charge at the first available opportunity, being at the first committal mention of the matter. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses from having to give evidence, and to reflect its demonstration of acceptance of responsibility, willingness to facilitate the course of justice and remorse.
16A(2)(f) Contrition
35In your case, I am satisfied that you have also demonstrated remorse for your offending over and above that reflected by your plea alone. Your contrition for the offending is evident from a letter of apology you provided to the court (Exhibit 3) in which you took full responsibility for your offending, expressed your remorse and demonstrated insight into your offending. I have also had regard to the expression of remorse and regret that you expressed to the authors of six (6) character references tendered on your behalf (Exhibit 4).
16A(2)(h) Co-operation with law enforcement agencies
36When police executed a search warrant on your home on 11 May 2023, you provided them with the passwords to your electronic devices and accounts, but this was following production of an order pursuant to s 3LA of the Act. You made some admissions to police in your record of interview but largely denied the offending, including by stating:
· You did not speak to anyone during a role-playing scenario about a ‘son’ aged under 18.
· You accepted that you had engaged in on-line role-playing ‘Dad/son’ sexualised chats between two consenting adults, but this involved ‘…someone in their thirties or something who I would call son”.
· When asked about the child abuse material in your possession, you said you had basic pornography, and it did not depict children. When asked about an image of a naked child impaled on a rod you could not recall this image.
· You told police that you were not sexually aroused by children as you worked with them most of your life and do no view them in that way.
16A(2)(j) Specific Deterrence and 16A(2)(k) Need for Adequate Punishment
37Specific deterrence, denunciation, punishment, and protection of the community are very important considerations in sentencing for offending involving child abuse material.[16]
[16] Walker v The Queen [2008] NTCCA 7 at [34]; R v Gent (2005) 162 A Crim R 29 at [65].
38I have had regard to the need to deter you from further offending of this type but I note that you have no prior convictions at age 65, you have gained some insight into your offending, and you have willingly accepted and engaged in treatment. I have also had regard to the requirement that you be adequately punished for your offending and the need to promote community protection, particularly given your diagnosis of a Paedophilic Disorder and your need for further intensive treatment.
16A(2)(ja) General Deterrence
General deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of this material and the need to protect children from sexual abuse.[17]
[17] DPP (Cth) v Garside [2016] VSCA 74; DPP (Cth) v Zarb [2014] VSCA 347; R v De Leeuw [2015] NSWCCA 183 at [116].
39Where general deterrence is primary, personal mitigatory factors such as prior good character, age, prospects of rehabilitation etc. must therefore be given less weight than might otherwise be given.[18]
[18] Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [at 35]; DPP (Cth) v Thomas [2016] VSCA 237 at [193]; Gajjar v R (2008) 192 A Crim R 76 at [27-28.]
16A(2)(m) Character, antecedents, age, means and physical or mental condition
40You were born in December 1959 and were aged between 59 and 63 at the time of the offending. You are presently 65 years old.
41You have no prior convictions and no subsequent or outstanding matters. You have been a person of prior good character for a significantly long portion of your life. I have had regard to the content of six (6) character references and the authors of those references all express shock at your offending and refer to you as ordinarily being a person of good character.
42Psychological reports were provided by both your treating psychologist Ms McKenzie (Exhibit 1) and Dr Bath (Exhibit 2). You were diagnosed with Post Traumatic Stress Disorder and Generalised Anxiety by Ms McKenzie and Dr Barth opined that you presented with significant anxiety-related symptoms and a diagnosis of Paedophilic disorder was warranted. Neither identified a clear psychological basis for your offending and your counsel eschewed reliance on limbs 1 to 4 of Verdins. Rather, both reports suggest broadly, that your offending may be explained by reference to your intrinsic feelings of powerlessness and lack of control arising from your abusive and emotionally detached family relationships, including when caring for your mother in more recent times, and from your childhood experiences. Engaging in violent fantasy role-plays where you dominated, tortured and sexually abused young children was a means for you to manifest your anger and compensate for your feelings of powerlessness as I understand Dr Barth’s report.
43There was no explanation however as to why you needed to resort to fantasies specifically involving sexual or sadomasochistic violence against young boys to obtain or feel that measure of power you wanted. Again, both Ms McKenzie and Dr Barth opined that it was unclear what was underpinning your arousal, but I do have regard to the possible explanation given by Dr Barth.
44Both parties accepted that in sentencing you Verdins[19] limbs 5 and 6 were enlivened, and I accept that imprisonment may increase the incidence and level of mood disturbances experienced by you given your psychological vulnerabilities and that the psychological distress you will likely experience would make imprisonment more onerous for you relative to other prisoners.
[19] R v Verdins [2007] VSCA 102
45Your counsel submitted that one of the most compelling factors in your favour was that you have completed 30 1-hour treatment sessions since July 2023. It was submitted that your approach to treatment has been diligent and while you have found treatment to be challenging at times and are still in the process of developing insight into your offending, you have made significant steps towards your rehabilitation and are committed to continuing treatment and to not reoffending.
16A(2)(n) Prospects of rehabilitation
46I now turn to an assessment of your prospects of rehabilitation. In your case, your offending covered a long period of time, with few breaks. Your treatment is far from complete because your insight into your offending is still developing and your sexual adjustment, according to Dr Barth, is unequivocally disordered and sufficiently severe to warrant a diagnosis of Paedophilic disorder – Nonexclusive type – Attracted to Males. Having said that, your insight is improving and Dr Barth opines that you now have a better understanding of the impacts of your offending, you are starting to challenge your deviant sexual cognitions and are developing strategies to prevent re-offending. You have pro-social supports with the presence and support of your partner, your cousin and aunt.
47Dr Barth assessed you as presenting with a moderate risk of reoffending. In my view, while you still have some way to go with treatment, this is typically a lengthy therapeutic process, you have sought out treatment and actively engaged in it, you are a man of prior good character for a very lengthy period, and I assess you as having very good prospects of rehabilitation assuming you continue with treatment.
Totality and cumulation/concurrency
48Section 19(5) of the Act provides a presumption in favour of full cumulation between sentences imposed for Commonwealth child sex offences, although s 19(6) permits the court not to impose full cumulation if, in all the circumstances, this will still result in appropriately severe sentences. I have elected not to impose complete cumulation as to do so would breach the principle of totality and I am able to construct a sentence of appropriate severity without needing to impose wholly cumulative sentences. I do consider that, apart from charges 1 and 6, there should be a modest degree of cumulation between the sentences imposed to reflect the different and discrete instances of the same offending, sometimes involving different participants. Each instance represents distinct criminality notwithstanding any temporal overlap. I do so mindful of the principles of totality and proportionality and the need to avoid imposing a crushing sentence.
Comparative sentences
49I was provided with a schedule containing three (3) intermediate appellate sentences (Exhibit B). Whilst these sentences are of assistance in illustrating the relevant sentencing principles, they are of limited utility in the present sentencing exercise. As frequently occurs in cases involving a multitude of different offence types and charges, each with differing features and levels of severity, and differing subjective mitigating factors, it is very difficult to find cases of sufficient factual similarity to be of assistance in identifying a sentencing yardstick.
Submissions on sentence
50It was accepted by both parties that your overall offending is of such seriousness as to warrant a sentence involving an immediate term of imprisonment. I am also satisfied, as required by s 17A that no other sentence is appropriate in all the circumstances.
51In your case, the prosecution submitted that the objective seriousness of your offending is such that a sentence should be imposed which requires the imposition of a non-parole period – that is, a sentence with a head sentence of imprisonment exceeding 3 years.[20]
[20] s 19AB(1) Crimes Act 1914 (Cth)
52Your counsel submitted however that I should impose a sentence that would see your release on a recognisance release order after serving a portion of the term of imprisonment. That period, it was submitted, should allow for your release as soon as possible.
53A recognisance release order may only be imposed if the total effective sentence does not exceed 3 years imprisonment.[21] Sub-section 20(1)(b)(ii) of the Act provides that if at least one offence is a Commonwealth child sex offence, and the court is not satisfied that exceptional circumstances exist, the court may order the release of an offender on recognisance after they have served a specified period of imprisonment. Your counsel did not submit that exceptional circumstances existed in your case. Section 20(1B) provides that where such a sentence is ordered, mandatory conditions must be imposed which include supervision and conditions that an offender undertake such treatment or rehabilitation programs that are reasonably directed.
[21] s 19AC(1) Crimes Act 1914 (Cth)
54Your counsel submitted that releasing you on recognisance after you have served a period of imprisonment was appropriate because the overall offending could be adequately punished and denounced by a sentence that did not exceed 3 years and because treatment conditions must be imposed as part of a recognisance release order. It was submitted that the objective of you continuing treatment is imperative to promoting your rehabilitation, preventing reoffending and is the best means to protect the community.
55I note that section 16A(2AAA) of the Act provides that when a court is sentencing for a Commonwealth child sex offence, in addition to any other matters, it must have regard to the objective of rehabilitating the offender. Charges 2-5 and 7 are Commonwealth child sex offences. It is not the case however that this objective operates to swamp the primacy to be given to principles of general and specific deterrence and it must operate in view of the need to impose a sentence which adequately reflects the seriousness of the offending.
56In conclusion, I have balanced the serious and repetitive nature of your offending and the need for general deterrence, just punishment and denunciation with your very good prospects of rehabilitation, your engagement and progress with treatment, your age, lack of prior convictions, the more onerous nature of imprisonment, the modest reduction in your level of moral culpability and the need to promote your rehabilitation. I am mindful of Dr Barth’s observations that you require structured and lengthy sex offender treatment as well as general psychological treatment. In my view, the best way to achieve these competing requirements is via the imposition of a recognisance release order, to be completed after serving a period of immediate imprisonment. This will send a clear general and specific deterrent message and effect punishment, whilst permitting mandatory treatment conditions to be imposed so you are monitored upon release and continue the treatment you have commenced, which is imperative to your rehabilitation and in the interests of the community.
Sentence
57Please stand.
58On charge 4 (base sentence), you are convicted and sentenced to 22 months imprisonment. I direct that the sentence commences today, 11 April 2025.
59On charge 1, you are convicted and sentenced to 6 months imprisonment. I direct that the sentence commences 4 months prior to the expiration of the sentence imposed on charge 4.
60On charge 2, you are convicted and sentenced to 9 months imprisonment. I direct that the sentence commences 7 months prior to the expiration of the sentence imposed on charge 1.
61On charge 3, you are convicted and sentenced to 16 months imprisonment. I direct that the sentence commences 13 months prior to the expiration of the sentence imposed on charge 2.
62On charge 5, you are convicted and sentenced to 12 months imprisonment. I direct that the sentence commences 9 months prior to the expiration of the sentence imposed on charge 3.
63On charge 6, you are convicted and sentenced to 4 months imprisonment. I direct that the sentence be served concurrently with the sentence imposed on charge 1.
64On charge 7, you are convicted and sentenced to 6 months imprisonment. I direct that the sentence commences 2 months prior to the expiration of the sentence imposed on charge 5.
65That results in a total effective sentence of 3 years imprisonment. I order that you serve 20 months of the term of imprisonment before being released by recognisance pursuant to s 20(1)(b)(ii) of the Act in the sum of $1,000 with the following conditions:
(a) you are to be of good behaviour for 3 years.
(b) you are to complete the Sex Offender Program.
66Pursuant to s 20(1B), I also impose the following mandatory conditions to apply during the period of the recognisance release order:
· You are to be under the supervision of a probation officer
· You are to obey all reasonable directions of the probation officer
· You are not to travel interstate or overseas without the written permission of the probation officer
· You are to undertake treatment and rehabilitation programs as directed by the probation officer.
67I declare pursuant to s 18E of the Sentencing Act 1991 (Vic), that you have served 22 days pre-sentence detention, excluding today.
68Charges 2-5 and 7 are Class 2 offences listed in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic).[22] As you have been found guilty of 3 or more Class 2 offences, you are required to comply with reporting obligations for life.[23]
[22] Items 28D(i)-(ii)
[23] s 34(1)(c)(iii)
69Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a total effective head sentence of 6 years imprisonment with a non-parole period of 4 years.
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