Director of Public Prosecutions (Cth) v Jinkins
[2024] VCC 690
•17 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-23-01115
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEWART JINKINS |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 11 April 2024 | |
DATE OF SENTENCE: | 17 May 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Jinkins | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 690 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of transmitting child pornography and causing child pornography material to be transmitted – one charge of possession and/or control of child abuse material obtained or accessed using a carriage service – pleas of guilty – whether “exceptional circumstances” ꟷ Recognizance Release Order
Legislation Cited: Criminal Code Act 1995 (Cth); s474.19(1), s474.22A; Crimes Act 1914 (Cth), s16A(1), s16A(2), s19AC, s20; Sex Offenders Registration Act 2004, s34
Cases Cited:Director of Public Prosecutions (DPP) (Cth) v Garside (2016) 50 VR 800; Dennis v R [2017] VSCA 251; Maine v R [2018] VSCA 56; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Hoang Dung Tran v R [2011] VSCA 383; Mouscas v R [2008] NSWCA 181; R v Todd [1982] 2 NSWLR 517; Mill v R (188) 166 CLR 59; Hili v R; Jones v R (2010) 242 CLR 520; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Postiglione v R (1997) 189 CLR 295; Wong v R (2001) 207 CLR 584; Johnson v R (2004) 205 ALR 346; Markarian v R (2005) 228 CLR 357; Clarkson v R; EJA v R (2011) 32 VR 361; R v Jongsma (2004) 150 A Crim R 386; Hill v The State of Western Australia [2009] WASCA 4; R v Booth [2009] NSWCCA 89; R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150; DPP v D’Alessandro (2010) 26 VR 477, DPP v Guest [2014] VSCA 29; DPP v Smith [2010] VSCA 215; R v Coffey (2003) 6 VR 543; R v Cook; ex parte A-G (Qld); R v Cook ex parte Commonwealth DPP [2004] QCA 469; Heathcore (a pseudonym) v R [2014] VSCA 37; R v Jones (1999) 108 A Crim R 50; R v Gent (2005) 162 A Crim R 29; R v Asplund; Asplund v R (2010) 216 A Crim R 48; R v Gajjar (2008) 192 A Crim R 76; R v Burdon; Ex parte A-G (Qld) (2005) 153 A Crim R 104; R v Tootell Ex parte A-G [2012] QCA 273; R v Gaw [2015] QCA 166; R v Quick; ex parte A-G (Qld) [2006] QCA 477; R v Jones [2022] SASCA 105
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr B Scaramozzino | Solicitors for the Office of the Commonwealth Director of Public Prosecutions |
| For the Offender | Mr S Tovey | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1On 11 April 2024, you pleaded guilty to the following offences:
Charge 1 – that you, between 19 September 2018 and 6 January 2019 at Dingley Village in Victoria, transmitted material, and caused material to be transmitted to you using a carriage service, the material being child-pornography material.
The offence of using a carriage service to transmit child pornography and causing child-pornography material to be transmitted to you is contrary to ss474.19(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of fifteen years’ imprisonment;
Charge 2 – that you, on 6 November 2020 at Dingley Village in Victoria, possessed or controlled material, being child-abuse material in the form of data held in a computer or contained in a data-storage device, and you used a carriage service to obtain or access the material.
The offence of possessing or controlling child-abuse material obtained or accessed using a carriage service is contrary to ss474.22A of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of fifteen years’ imprisonment.
2Charges 1 and 2 on the Indictment are Class 2 offences under the Sex Offenders Registration Act 2004 (Vic) and are registrable offences.[1] Upon sentence you will be a registrable offender as defined in that Act[2] and will be required to comply with reporting obligations. As you are pleading guilty to two Class 2 offences, you will be required to report for fifteen years.[3]
[1]See Sex Offenders Registration Act2004 (Vic), Schedule 2, item 28D(i).
[2]See Sex Offenders Registration Act 2004 (Vic).
[3]See Sex Offenders Registration Act 2004 (Vic), s34.
Circumstances of your offending
3Counsel for the prosecution tendered a document headed “Prosecution Opening for Plea” dated 18 March 2024.[4] The Court was informed by your counsel that there was no disagreement in relation to the matters set out in such document.
[4]Exhibit 1
4I do not refer to all of the matters set out in such document, but do refer to the important aspects pertaining to your offending. You were born in February 1954 and at the time of the alleged offending you were aged between 64 and 66 years of age. You are now 70 years of age.
5In December 2019, police commenced an investigation in relation to the transmission of child-abuse material (“CAM”)[5] on the social media application Kik. Kik is an instant messaging application that allows users to engage in chat communication with others. Users of Kik can send messages, videos, pictures and gifts to others through participation in one-to-one and group chats.
[5]Over the offending period ranging between 2018 and 2020, material is referred to as both child pornography and child-abuse material. The term child pornography and the corresponding offence under s474(1).19 of the Criminal Code (Cth) was repealed on 21 September 2019 and replaced with the term child-abuse material (“CAM”) and the new legislation under s474.22 of the Code.
6The investigation revealed that a Kik user with the name “evilsteve999” had transmitted, and caused to be transmitted, CAM. The investigation identified the IP address of the Kik account “evilsteve999” was assigned to your home address in Dingley Village, Victoria.
7A search warrant was executed on you at your Dingley Village home on 6 November 2020. Pursuant to the warrant, an iPhone 6S, CoolerMaster computer tower and iPhone 4 were seized.
8The devices described above were subsequently analysed, which resulted in the identification of the CoolerMaster computer tower and iOS iTunes backup function. An iOS backup function is used to create a whole-system backup and extraction of a phone device’s contents, which can be put back into the phone, or another phone should the phone be damaged.
Charge 2 – possession of CAM obtained or accessed using a carriage service
9Located within the iOS iTunes backup was a large quantity of Kik messenger chats with the account name “evilsteve999”. Such chats were analysed and found to contain CAM involving, in total, 330 Unique CAM files which were broken down in the following way.
Images
Video
Total
Category 1
197
3
200
Category 2
129
1
130
10The categorisation of the material was based on the Australian Child Abuse Categorisation Scheme which identifies two categories:
(a) Category 1 – depicting a real pre-pubescent child under 13 years;
(b) Category 2 – other illegal content depicting a child under 18 years.
11Counsel for the prosecution set out what he described as a “sample description” of the images found in your possession:[6]
(a) pre-pubescent and pubescent females depicted naked or partially naked in sexually-provocative poses with focus on breasts or genitalia;
(b) pre-pubescent and pubescent females involved in solo sexual activity or with each other;
(c) infant, toddler, pre-pubescent and pubescent females involved in sexual activity predominantly with adult males, and a few with adult females;
(d) infant, toddler, pre-pubescent and pubescent females involved in penetrative sexual activity with adult males including penis to mouth, vagina and anus;
(e) infant, toddler, pre-pubescent and pubescent females with ejaculate on them;
(f) toddler, pre-pubescent and pubescent females restrained with arms and legs bound, and shown in a physically-degrading manner, including small cages.
[6]See exhibit 1 at paragraph [11].
12Furthermore, counsel for the prosecution also supplied a sample description of the videos found in your possession, which included:[7]
(a) a 31-second video depicting a pre-pubescent female (approximately four years old) performing oral sex on an adult male;
(b) a 26-second video depicting an adult male engage in penis/vaginal sex with an early pubescent female;
(c) a 44-second video depicting a pubescent male performing oral sex on an adult male;
(d) a 34-second video depicting a pre-pubescent female (approximately eleven years old) engaged in solo penetration.
[7]See exhibit 1 at paragraph [12].
Charge 1 – using a carriage service to cause child-pornography material to be transmitted to you and transmitting child-pornography material by you between 19 September 2018 and 6 January 2019
13The analysis of the iTunes iOS backup further revealed that you used your Kik account to transmit, and caused to be transmitted, child-pornography material with various other Kik users between about 19 September 2018 and 6 January 2019. You were a member of various group chats, including:
(a) FUNFABULOUS60ishFRIENDS;
(b) #yungtoes;
(c) #boysgroupforrfun;
(d) #boysightunderwear;
(e) #babygirls14;
(f) #oldmenandyunggurls;
(g) #schoolgurlz;
(h) #melblitgirls4dad;
(i) Melbourneteengay
where, after joining a group, you would privately message other members, suggesting that you trade child-pornography material.
14Over the period of offending, you exchanged messages with fifteen individual parties, including: “openminded12016”, “Happiness Smith”, “Me Mo”, “Chloe Case”; “St3v3n Gerrard”, “Steve”, “XX”, “Heisenburg”, “Hey Goodlooking”, “Filthy Pawz”, “P Pogba”, “Mark Atter”, “Vorname Nachname”, “G Play” and “Stu Wags”.
15Counsel for the prosecution refers to what he describes as the “most significant” of these chat exchanges between you and the party “openminded12016” and the party “Happiness Smith”.
16Initially, reference was made to “openminded 12016”, with whom you exchanged messages between 16 September and 12 October 2018, premised upon exchanging CAM material and expressing your sexual desires to each other. During this exchange, you caused to be transmitted 101 files and transmitted two files.
17You requested and engaged in conversation about the types of child pornography, and throughout the conversation you prompted “openminded 12016” to transmit child pornography to you through conversational prompts, a sample of which is listed below:[8]
[8]See exhibit 1 at paragraph [17].
(a) “Want to share a pic or two”;
(b) “Any penetration”;
(c) “You got any more pics?”
(d) “more graphic?”;
(e) “I want to see everything the wilder the better”;
(f) “Young push with things in it”,
(g) “Got any movies”;
(h) “Covered in cum, young gaping open, finger in arse”;
(i) “Any with things in them”;
(j) “I am interested in every thing you have to offer”;
(k) “Would like to see a dick all the way in”;
(l) “Any older with pets”;
(m) “Got ones with fingers in”;
(n) “Show me the worse you have and I will tell you if it is too much”;
(o) “Any more with insertions”;
(p) “Got any teen stuff”;
(q) “Any anal stuff”;
(r) “young boys playing with y girls?”.
18Also, counsel for the prosecution made a selection of the child pornography transmitted to you, which includes:[9]
(a) a naked pre-pubescent female bent over a chair (or similar) with her genitalia exposed;
(b) a naked pre-pubescent female naked from waist down on bed with legs apart and genitalia exposed;
(c) a pre-pubescent female engage in penetrative sexual activity with an adult male;
(d) a sleeping female toddler with an adult male penis placed on her mouth;
(e) a female toddler with an adult male penis placed on her mouth;
(f) a female toddler, naked from waist down on a chair with her legs spread open and an adult male penis positioned close to her genitalia.
[9]Exhibit 1 at paragraph [18], which also includes the file reference.
19Counsel for the prosecution then referred to exchanged messages between you and “Happiness Smith” over the period from 23 September 2018 to 6 January 2019. Counsel notes that the conversations predicated initially around the exchange of adult pornographic material, but progressed to the exchange of child pornography. During this exchange, you caused to be transmitted ten files and transmitted twenty-two files.
20You prompted “Happiness Smith” on a number of occasions to transmit child pornography to yourself, samples of which are referenced below:[10]
(a) “what about the vid I asked for”;
(b) “I want verification vid to make sure I am safe sending you what I have”;
(c) “Where is your contribution”;
(d) “nice got any young g & b playing”;
(e) “haven’t you got anything new?”;
(f) “you can send me stuff if you want”;
(g) “have you got younger”.
[10]See exhibit 1 at paragraph [20].
21Furthermore, you, as part of the conversation, offer to transmit child pornography to “Happiness Smith”, including:[11]
(a) “what vids would you like this time”;
(b) “now be specific what do you want to see”;
(c) “How young will you go”;
(d) “give me a number”;
(e) “what do you want?”;
(f) “I think I have shared all I have”;
(g) “how young can I go????”.
[11]See exhibit 1 at paragraph [21].
22Furthermore, a selection of the child pornography transmitted to you included:[12]
(a) two pubescent females engaged in sexual activity;
(b) media depicting a pre-pubescent female engage in penetrative sexual activity with a male;
(c) a video of a pubescent male engaged in penetrative sexual activity with a male;
(d) a video of a pre-pubescent female engaged in solo sexual activity.
[12]Exhibit 1 at paragraph [22], which also includes the file references.
23A selection of the child pornography transmitted by you includes:[13]
(a) three pubescent naked males engaged in sexual activity;
(b) a pre-pubescent child engaging in penetrative sexual activity with two adult females;
(c) a pre-pubescent female with her top pulled up to expose breast;
(d) a pubescent female engaging in penetrative sexual activity with an adult male.
[13]Exhibit 1 at paragraph [23], which also includes the file references.
24Counsel for the prosecution also subsequently set out details of various exchanged messages between you and the balance of the fifteen individual parties referred to earlier in this sentence.[14]
[14]See paragraphs [24]-[36] of exhibit 1.
25It is to be noted that beyond “Openminded 12016” and “Happiness Smith”, you transmitted, and caused to be transmitted, the following files in relation to the other sites with which you exchanged messages. I set out a summary prepared by counsel for the prosecution in relation to all the parties you had conversations with and the number of child pornography files transmitted to you, and the child pornography you caused to be transmitted.
Chatgroup
Child pornography transmitted
Child Pornography caused to be transmitted
Dates of the offending
“Openminded12016”
2 files
101 files
16 September-12 October 2018
“Happiness Smith”
22 files
10 files
23 September 2018-6 January 2019
“Mo Mo”
1 file
4 files
26 September 2018
“Chloe Case”
3 files
8 files
26 September- 3 October 2018
“St3v3n Gerrard”
4 files
3 files
26 September 2018
“Steve”
4 files
-
26 September 2018
“XX”
3 files
3 files
26-27 September 2018
“Heisenberg”
5 files
3 files
26-30 September 2018
“Hey Goodlooking”
1 file
1 file
26 September 2018
“Filthy Pawz”
-
3 files
26 September 2018
“P Pogba”
1 file
2 files
29 September 2018
“Mark Atter”
2 files
3 files
29 September 2018
“Vorname Nachname”
Text-based child pornography
Text-based child pornography
14 October 2018
“G Play”
-
2 files
3 December 2018
“Stu Wags”
1 file
2 files
3 December 2018
26You have no prior convictions and have served no pre-sentence detention.
27Counsel for the prosecution set out a table of the procedural history involved in this matter and I reproduce that history below:
PROCEDURAL HISTORY
Event
Date
Offending period
16 September 2018-6 January 2019
Search warrant executed
6 November 2020
Date charged
4 January 2023
File hearing
20 January 2023
1st committal mention
10 March 2023
2nd committal mention
21 April 2023
3rd committal mention
26 May 2023
4th committal mention – matter committed for trial
30 June 2023
Matter resolved
19 July 2023
1st directions hearing
31 July 2023
2nd directions hearing
30 August 2023
Plea hearing
11 April 2024
Your background and circumstances
28Your counsel tendered the following material:
(a) psychological reports of forensic psychologist, Ms Pamela Matthews (“the psychologist”), dated 15 August 2023 and an addendum report, dated 15 December 2023;[15]
(b) reports of treating psychologist, Ms Daria Sizenko (“the treating psychologist”), dated 27 September 2023 and 8 April 2024;[16]
(c) list of medical condition and medical materials;[17]
(d) character references from the following:
(i)Mr Giovanni (“John”) Surace, dated 5 April 2024, a friend and business partner of yours since 2003;
(ii)Ms Heather Beard, dated 4 April 2024, who has been your de facto partner for thirty years.[18]
[15]Exhibit “A”
[16]Exhibit “B”
[17]Exhibit “C”
[18]Exhibit “D”
29I note that by oversight your counsel’s written submissions, dated 10 April 2024 and entitled “Outline of Plea Submissions”, were not tendered. I direct that such document be tendered and marked as exhibit “E”.
30Partly based on some of the documents tendered on your behalf and partly based on various submissions made to me by your counsel, I note the following:
· You grew up in Brunei and Nigeria, where you father worked for Royal Dutch Shell and British Petroleum on rigs. Your mother was a homemaker. When aged ten, your parents and two sisters moved to Australia, where your father commenced employment as a gas safety engineer and your mother continued as a homemaker. Your parents are now deceased.
· One of your sisters died in 2009 after you nursed her until her death and your other sister is still alive, aged seventy-six. You informed the psychologist[19] your family were never close, and described your father as an “authoritarian remote man” and that your mother also “lacked warmth”. You also note that you suffered no developmental exposure to substance misuse, family violence, child abuse or sexual abuse.
[19]See exhibit “A”
· In Australia, you continued your education at St Michael’s Primary School, followed by boarding at Scotch College. You informed the psychologist that you had a few friends, but generally felt that you were at the bottom of the social hierarchy at the schools. You asserted that you were bullied and teased, but treated this as normal school behaviour. You described yourself as an average student, but good at rugby and swimming.
· You finished school at Year 11, but thereafter discovered a love of learning at night school, continuing to take on a subject each year until you were forty-six years of age. After finishing school, you continued to play rugby with local teams for a few years.
· You informed the psychologist that your “first job” was with the Bank of New South Wales, being an information technology training officer as the bank commenced to use computers. During your four years at the bank you studied cable telephone engineering and after leaving the bank worked setting up telephone exchanges, moving to the mobile radio division with the same employer.
· You moved on to a position as a regional manager for a Canadian auto electronics firm and quickly moved to a mobile communications company and was with this firm for quite some time. You then moved into industrial or electronic manufacturing as a test engineer, testing designs using microprocessors. “Phillips” bought out your employer and you became general manager of the Asia Pacific Region and ultimately took a package around your mid-forties.
· You then took a sabbatical, working for Quest as a manager, and during this time studied air conditioning and then spent four years installing air conditioners.
· You also undertook an adult electrician’s apprenticeship and became a qualified electrician at fifty, after which you began to teach electrical apprentices and did so for fifteen years on a part-time or full-time basis. Over the last five years you have been an invigilator for licence testing of electrical inspectors. You are now retired.
· You have been with your current partner for twenty-eight years. Prior to that relationship you had two marriages – the first lasted for a couple of years and then you were married for about fifteen years and have two children from that relationship, a son and daughter aged 35 and 37. You continue to have a relationship with your children, but have no grandchildren.
· You reported to the psychologist that you are an occasional and light consumer of alcohol and have never used illicit drugs, and are not a gambler. You report that you sometimes view pornography, but have no real interest, as you have suffered erectile dysfunction for the past five to six years associated with your diabetes.
· In regards to your physical health, you have reported that you do have Type 2 diabetes, diagnosed five years ago, and are currently treated with Metformin. Furthermore, you suffered a stroke at the end of 2021 and have been prescribed Aspirin, cholesterol medication, and Atacand (for blood pressure) and Moxonodine (blood pressure), and Pantoprazole for reflux. You have also been prescribed antihistamine and vitamin D tablets. Earlier migraines have subsided with blood-pressure treatment.[20]
· At the time of your consultation with the psychologist, you were about to undergo surgery for cataracts on both eyes. In the past, you suffered a head injury incurred in a motorcycle accident when you were seventeen and reported a later spinal injury and history of pneumonia.
· Regarding your mental health, you reported to the psychologist that you have had long-term problems with anxiety, for which you have been medicated with Valium. At the time of consultation, you reported that you suffered from anxiety events approximately twice a week.[21]
[20]See exhibit “C”.
[21]I refer to exhibit “C”, which lists the various medical conditions and medication taken by you.
The psychological reports of the forensic psychologist, Ms Pamela Matthews[22]
[22]See exhibit “A”.
31This psychologist examined you on 31 July 2023 and prepared a report dated 15 August 2023. In that report, the psychologist noted the subject offending, obtained a “psychosocial history” and made an assessment of your “mental state” and administered various “psychometrics”. On the basis of this material, she made a “risk assessment”, diagnosis and offered various opinions.
32In relation to the subject offending, the psychologist recorded that you informed her that once you had retired from teaching you missed the “social interaction of the workplace”. As a result, you joined online chat groups as a social outlet and found yourself chatting with other individuals about CAM out of curiosity. The psychologist records that:
“[You] became aware it was not the correct thing to do and did not go back again.”
Furthermore, she recorded:
“[You] realised the error and stopped; it was very disturbing material. [You] thought [you] had deleted it.”
33The psychologist administered, what was referred to as the DASS, which is a forty-two item questionnaire that includes three self-reports designed to measure the negative emotional states of depression, anxiety and stress. She reports that, on the DASS questionnaire, it indicated that you suffered from “extremely severe levels of depression, severe levels of anxiety and mild levels of stress”. The psychologist noted that your profile indicates a “reactive exacerbation of existing anxiety symptoms and reactive depression”.
34The psychologist also administered a seven-item Child Pornography Offender Risk Tool (“CPORT”). She expressed the opinion that, based on such assessment your risk of further child abuse or online fantasy child abuse offending is indicated at 5 per cent over five years and your risk of non-contact offending is indicated at 0 per cent.
35Under the heading of “diagnosis and opinion”, the psychologist states:
“It is positive that [you] removed [yourself] from the child abuse online group [you] engaged in based on [your] understanding of wrongdoing. While [your] behaviour is concerning, the duration of [your] behaviour would not warrant a diagnosis of paedophilia or hebephilia, given that [your] activity occurred over a period of less than six months.
[Your] estimated risk of further non-contact child sexual offending or the emergence of contact child sexual offending is low.
[You], by [your] own report, indicates [your] involvement in the online child abuse group relates to a need for social contact as [you] moved into retirement. The research in this area would suggest that some men initially experience an improved mood on retirement while others do not, while the general trajectory is of increasing depression moderated by financial sources, and emotional and social support systems and health. In [your] case, [you] missed the social aspects of work; [you have] suffered repeated health setbacks and [your] social and emotional support outside of work other than [your] partner and daughter were limited. Hence the most appropriate diagnosis is an Adjustment Disorder, as described by DSM-5TR, related to a known stressor, with mixed anxiety, depressive and behavioural symptoms.
The writer also believes [your] mood state has been exacerbated by being charged in this matter and further health problems, being cataracts in both eyes, which would be difficult for a man who loves to read and study. [You] would currently meet a DSM-5TR diagnosis for Major Depressive Disorder, reactive to [your] situation.
[Your] mood state is likely to exacerbate further should [you] be imprisoned, and of concern to the writer would be an exacerbation of [your] sense of worthlessness and suicidal ideation. [You] would need immediate mental health support should imprisonment be a sentencing outcome. Given [your] age and health difficulties [you] will likely experience time in custody more onerous than most, and given [your] age, the rehabilitation options available to [you] will be minimal.
From a rehabilitation perspective, it would assist [you] in accessing counselling that can aid [you] in understanding the impact of child abuse material on victims, with the transition to retirement, and [your] mental state.”[23]
(Emphasis added.)
[23]See exhibit “A”, report of Ms Matthews, dated 16 August 2023 at pages 6-7.
36The psychologist also supplied an addendum report, dated 15 December 2023[24] after being supplied the first report from the treating psychologist.[25] Before referring to the addendum report, I will refer to the evidence of the treating psychologist.
[24]See exhibit “A”.
[25]See exhibit “B”, report from Ms Dara Sizenko, dated 27 September 2023.
Reports of Ms Daria Sizenko, your treating psychologist[26]
[26]See exhibit “B”.
37In her first report, dated 27 September 2023, the treating psychologist notes that you were referred to her by your solicitor following the charges relevant to this sentence. She notes that, as at the time of that report, you had attended twenty appointments over the period from 14 February 2023 to 27 September 2023.
38The treating psychologist records that you informed her that, as a result of feeling lonely, you joined several online chat forums on different topics. Again, you informed her that when you joined the forum containing CAM, you were uncertain as to why people would be interested in such materials and only “briefly engaged” with the forum, as you were curious about the people involved. Furthermore, you informed her that, as the rules of the forum required people to re-post to remain in the group, you had to re-post other people’s materials so as to not get removed.
39In particular, you informed the treating psychologist that you failed to consider the legality of such content and although thinking it “inappropriate”, did not think of the possibility of it being illegal, as it was readily available online.
40The treating psychologist records that initially sessions were focused on the collection of background information and identifying initial factors contributing to the offending behaviour, and she notes that further attention was given to exploring and challenging unhelpful thought patterns through Cognitive Behavioural Therapy and exploring general life needs.
41In particular, she noted that maladaptive thought patterns were explored, with you identifying selective reasoning (focusing on a single element of an activity of an event, rather than the whole) and jumping to conclusions (making an assumption without sufficient evidence) as significant perpetuating factors. Apparently you further emphasised the effect loneliness and isolation had on your behaviour, noting that you would have been unlikely to linger on the forum if you were in a different state of mind.
42In particular, the following was recorded:
“[You] acknowledged struggling with patterns of minimisation (downplaying the severity of an event of behaviour) when discussing [your] offence. Challenges for cognitive distortions were explored, with particular focus being given to exploring decision-making and problem-solving. [You] described [yourself] as typically being quite logical and methodical, reviewing all available information when making a decision. [You] noted that as [you were] unaware of the illegal nature of the materials at the time, [you] felt [you] would not have been able to avoid the initial offence. [You] similarly stated that illicit materials should not have been online in the first place. Impacts of CAM were discussed, with [you] stating that [you] understood the abuse children would have been subjected to, but did not previously consider the long-term implications or that such materials may precipitate further abuse. [You], however, continued to maintain that [you] would not have been able to avoid the initial offending, as these were not things [you were] previously aware of. [You] stated that since leaving the forum, [you have] not thought of engaging with CAM again, noting no interest in the materials. [You] added that since the arrest [you have] been cautious of [your] internet use in general, avoiding any type of online interaction with strangers.”[27]
[27]See exhibit “B”, report of Ms Sizenko, dated 27 September 2023 at page 2.
43Ultimately, in her first report, the treating psychologist stated:
“[You were] an active participant during the sessions. [You were] open and willing to discuss maladaptive thought patterns and personal limitations. [You] continued to review topics discussed in session in between appointments, demonstrating improvements in insight. [You] noted [you] continued to utilise [your] methodical approach to decision-making, but [have] also started to pay more attention to [your] emotions, thoughts, and needs. [You are] confident that [you] will not engage with CAM or similar materials again, but [understand you] would need to continue to exercise caution online and engage in self-regulation and impulse control when engaging with things [you are] unfamiliar with.”[28]
[28]Ibid
44In her more recent report, dated 8 April 2024, the treating psychologist notes that you had attended a further five appointments, ranging between October 2023 and March 2024, with a further appointment arranged in the future. She concludes that report by stating:
“[You] continued to engage throughout the appointments. [You] remained open when discussing maladaptive thought patterns and personal faults and limitations. [You] similarly [continue] to be cautious online, being considerate and reflective of sites [you engage] with and avoiding any types of chat forums. [You were] able to demonstrate further improvements in insight, being able to reflect on and process maladaptive thoughts with prompts and independently. Although [you note] that [your] mental state may improve once the legal proceedings have concluded, [you] may further benefit from therapeutic support. This would be favourable to both quality of life improvement and as a protective factor relating to offence rehabilitation. Regarding further offence-specific treatment, if such is deemed necessary by Court, [you] may benefit from group-based treatment, such as the Better Lives Program offered by Corrections Victoria. The group setting can provide further opportunities for building additional insight through understanding the experiences of others as well as fostering communication and other social skills.”[29]
(Emphasis added.)
[29]See exhibit “B”, report of Ms Sizenko, dated 8 April 2024 at page 2.
45Returning to the addendum report of the psychologist, dated 15 December 2023, in particular, she stated in such report that:
“In concrete terms, [you were] lonely, unwell, had limited social support and was depressed; [your] offending occurs in this context. [You] found a group online to talk to and was ‘curious.’ It would be difficult to say if [your] interest in child pornographic fantasies is transient or more persistent, given the short period over which the conversations occurred. It may have been morbid curiosity, attention-seeking, or a lapse in normal self-control in which [you have] made public fantasies in [your] head. [Your] position is that [you were] attention seeking, wanted company, and wanted to be part of a group, as [you] had been at work.”[30]
[30]See exhibit “A”, addendum report of the psychologist, dated 15 December 2023 at page 2.
The references
46In the reference from Mr Giovanni (John) Surace, dated 5 April 2024, he describes knowing you as a friend and business partner since 2003. In particular, he notes you came to work for him as an apprentice, but have continued to be a great friend and are considered to be part of Mr Surace’s family.
47In particular, he describes you as an:
“… intelligent, hardworking person, a great problem solver and a great help to [him] in [his] business particularly in understanding and implementing the standards required”.
48He also describes you as someone who has always tried to help people when they have asked you, whether it be with your knowledge or trade skills, and, in particular, you have an affinity with the elderly.
49Mr Surace notes that, when you approached him for a reference, you expressed “deep regret” and pledged that you would never be involved in this type of activity again.
50In her reference, dated 4 April 2024, Ms Heather Beard describes herself as your de facto partner for 30 years. She describes you as an intelligent and interesting person with humour, curiosity, generosity and kindness, and who is also dependable and trustworthy. She also notes that you are self-motivated and a hardworking person, eager to learn new skills, enabling you to change careers a number of times in the course of your life.
51She notes that you have made a good life providing well for yourself and your family, is generous with your time and knowledge, and advice to others, are well liked and respected by colleagues, and much loved by family and friends.
52In particular, she notes that, from her observation you are both “ashamed and remorseful for the actions that brought [you] to this point”. She describes it as an aberration of character.
53She also notes that the situation has caused a great deal of stress and has impacted both on your physical and mental health, and over the last twelve months you have received a diagnosis of Type 2 diabetes, with other manifestations of stress.
Matters in mitigation of your sentence
54Before referring to specific matters submitted by your counsel in mitigation of your sentence, your counsel made the following general submissions:
(a) the authorities are “united in expression of the seriousness of offending of this nature”. In particular, reference was made to several Court of Appeal decisions outlining the various factors relevant in determining the objective seriousness of offending relating to possession and access to CAM. I refer to the following:
“The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v)in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed.”[31]
[31]See Director of Public Prosecutions (DPP) (Cth) v Garside (2016) 50 VR 800 at 809, paragraph [23], cited with approval in Dennis v R [2017] VSCA 251 at paragraph [41] and Maine v R [2018] VSCA 56 at paragraph [17].
(b) Your counsel submitted that “while charge 1 is substantially more serious than charge 2”, the offending material does not sit at the “higher-end of seriousness” for offending of this nature when applying the various factors enunciated above. In particular, it was submitted that:
(i)the number of images/materials sits at the lower end of the range of offences of this nature dealt with in the County Court;
(ii)collectively, the nature and content of material in relation to both charges is at the mid-range;
(iii)there is substantial (if not total) overlap between the material said to have been transmitted/received in relation to Charge 1 and the material possessed in relevant to Charge 2;
(iv)there is no suggestion of ongoing access of the stored material by you, and, indeed, the evidence supports the fact that you had not realised the material remained on the computer and you believed you had deleted it;
(v)there is no suggestion, nor any evidence, that the materials were for the purposes of sale;
(vi)the offending does not involve grooming, procuring, or any attempt at direct contact with children (or online users holding themselves out as children);
(vii)nor is there any suggestion that you would profit from the offences;
(viii)while the offending relevant to Charge 1 occurred over four months, an examination of comparable cases does not place this timeframe at the higher end of the scale;
(ix)the conduct relevant to Charge 1 ceased more than five years ago and has not been engaged in ever since;
(x)the conduct relevant to Charge 2 occurred more than three-and-a-half years ago and has not been repeated since;
(c) it was further submitted that it is “a distinguishing (if not unique) feature” of the circumstances that you desisted from the offending relevant to Charge 1 more than five years ago. While the material remained in your computer, you believed it had been deleted and there was no evidence to the contrary, being evidence of access/viewing of the material between January 2019 and November 2020. Your counsel submitted that, typically with respect to this type of offending, it is only the arrest and charge of the offender which brings an end to the active offending.
Your counsel highlighted that this is not the case in your circumstances and at the time of your arrest you had not shared or sought CAM for close to two years. Furthermore, there was a further period of two-and-a-half years between your arrest and charge, with the end result that you come “before the Court without having offended for many years”, so it was submitted it was a matter of some “significant mitigatory weight”.
55In particular, your counsel submits that the following matters are relevant to your sentence:
(a) Your plea of guilty
Your counsel noted that you were charged on 4 January 2023 and on 17 April 2023, those acting for the prosecution indicated a forthcoming plea proposal, and on 17 May 2023, such offer was made, with a counteroffer by you made on 18 May 2023. Ongoing discussions resulted in the matter being resolved on 19 July 2023.
Your counsel submits that your plea of guilty was at the earliest opportunity and as is clear from the timetable of events, you indicated a willingness to plead guilty to an appropriate resolution at a very early stage.
In particular, in was submitted that:
(i)by your plea you accepted responsibility for what was alleged and that there is a “substantial utilitarian benefit” to the community in avoiding a jury trial;
(ii)that your plea of guilty is evidence of remorse (noting that there is further evidence of remorse, as set out in the various references, psychological report and, indeed, comments to the police at the time of the execution of the warrant;
(iii)such a plea was entered into when the ordinary operation of the Court had been affected by the COVID-19 pandemic, and such a plea should attract “a natural and palpable amelioration of sentence” and reference was made to Worboyes v R.[32]
[32][2021] VSCA 169
Counsel for the prosecution, in his written submissions, in a document headed “Prosecution Submissions on Plea”,[33] accepted that you pleaded guilty at an early stage, although noted that your plea of guilty was in the face of a strong prosecution case. Furthermore, it is accepted by the prosecution that, by entering into your plea of guilty, you demonstrated remorse, acceptance of responsibility and a willingness to facilitate the course of justice. In particular, it was accepted that the Court may allow a discount for the utilitarian benefit of such plea and a discount pursuant to the principles enunciated in Worboyes;[34]
[33]See exhibit 2.
[34]Op cit
After a consideration of all of the material, I do accept that the plea of guilty was an early plea, does demonstrate remorse and, indeed, renders a utilitarian benefit to the community. Furthermore, I accept that you are entitled to a discount based on the principles enunciated in Worboyes.[35]
[35]Op cit
(b) Application of Verdins’ principles
Your counsel relies on the evidence of the psychologist, who diagnosed you to be suffering from an adjustment disorder with mixed anxiety, depressive and behavioural symptoms, all of which amounted to a major depressive disorder. It was submitted that in light of the evidence of the psychologist which contained various opinions (as set out in paragraph 35 of these Reasons), your mood state is likely to be exacerbated should you be imprisoned and your mental condition will render you to greater burdens of imprisonment than a prisoner who does not have such a mental state. Accordingly, it was submitted that Principles 5 and 6 enunciated in R v Verdins; R v Buckley; R v Vo are enlivened.[36]
[36](2007) 16 VR 269
Counsel for the prosecution, in his written submissions, accepts that, on the evidence before the Court, both Principles 5 and 6 are enlivened by your adjustment disorder and any potential time in custody would be more burdensome.
I accept that you are entitled to have taken into account as a mitigating factor Principles 5 and 6 of Verdins,[37] which are enlivened based on the evidence of the psychologist;
[37]Op cit
(c) Your previous good character
Your counsel noted, of course, you have no prior convictions and present for sentencing purposes as a first-time offender.[38]
[38]Reference was made to the Victorian Court of Appeal decision of Hoang Dung Tran v R [2011] VSCA 383 at paragraphs [29], where it was effectively stated that an offender with no prior convictions is a matter of significant mitigation.
Counsel also referred to the references, which describe you as loved, supported and respected in the community, and that such offending was out of character. Furthermore, your counsel again highlights such offending only essentially occurred for a number of months and at the age of seventy, and you have otherwise seemingly led a blameless life.
In his written submissions, counsel for the prosecution, although accepting that you have no relevant prior convictions (or for that matter any prior convictions), submitted it was “appropriate for less weight to be given to this as a mitigating factor”, as it is a well-established principle that prior good character is of diminished significance for offending involving sexual offending against children, as such offences are frequently committed by persons of otherwise good character.
I consider that only some limited weight should be given to your previous good character and lack of convictions. The authorities make clear that a person of “prior good character” is to be given less weight. In particular, I refer to Director of Public Prosecutions (DPP) (Cth) v Garside[39] wherein the Victorian Court of Appeal, in noting that child pornography offences generally require that a person’s prior good character is to be given less weight, and refer to, with approval, to the comments of Price J in Mouscas v R,[40] wherein he stated:
[39](2016) 50 VR 800
[40][2008] NSWCA 181
“‘the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor.’”;[41]
[41]See Garside (op cit)
(d) Prospects of rehabilitation
Your counsel submitted that the prospects of your rehabilitation can be described as “excellent” and that the prospect of any re-offending is “very low”. In particular, in support of such submissions he referred to the following:
(i)you have no prior history of such offending, nor, indeed, any offending;
(ii)that you desisted from the subject offending years ago;
(iii)that the risk assessment undertaken by the psychologist revealed that you have a risk of further child abuse or online fantasy child abuse offending rated at 5 per cent over five years. Your risk of non-contact offending is indicated at “0”. In her opinion, the psychologist opines that your estimated risk of “further non-contact child sexual offending or the emergence of contact child sexual offending is low”.
Also, according to the psychologist, your duration of offending behaviour would not warrant a diagnosis of paedophilia of haemophilia.
(iv)your counsel also refers to how you have sought treatment from the treating psychologist, and such treatment is ongoing, and which has been of great assistance to you;
In his written submissions, counsel for the prosecution notes that it is accepted by the prosecution that it is “promising that [you have] taken proactive steps toward rehabilitation, including 26 appointments that have focused on offence specific rehabilitation”.
Counsel for the prosecution notes, as conceded by your counsel, that you still exhibit minimising behaviour in relation to your offending and as opined by the treating psychologist, you still do “not understand why CAM can still be uploaded to the internet and is not immediately blocked by law enforcement”. Furthermore, she adds, “it’s not an excuse, but [CAM] shouldn’t be there”.
Furthermore, counsel for the prosecution also submits that you have shown a continued lack of responsibility in relation to your conduct, continuing to state to your treating psychologist that you only engaged in the offending to remain in the group and “copying others responses in order to remain on the forum”. It was submitted that this is inconsistent with the facts set out in the opening, which show that you joined numerous different groups, instigating many of the chats and asking for more explicit material, which clearly shows you being an active participant, rather than passive, as you describe. In this respect, the prosecution submits that you continue to show some lack of insight, there is still significant progress to be made in relation to your rehabilitation and there should be some caution shown by the Court’s assessment of your prospects. In particular, it was submitted that any sentence ordered against you should include a continuation of offence-specific treatment.
I do consider that there is some force in the submissions made by counsel for the prosecution and that, indeed, the material would suggest that you were more than a passive participant, but rather actively involved in seeking out further videos and other materials. However, consistent with the evidence of the treating psychologist, you have made improvement over time and I consider that your prospects of rehabilitation are “reasonable”, particularly taking account of the evidence suggesting that you have not been involved with similar offending for some time now;
(e) The issue of delay
It was submitted by your counsel that a distinguishing (if not unique) feature of the circumstances of this case was that you desisted from the offending relevant to Charge 1 some five or more years ago. While the material remained on your computer, you believed it had been deleted and there was no evidence to the contrary.
Your counsel referred to the matter of R v Todd[42] which was cited with approval by the High Court in Mill v R,[43] where Street CJ identified several considerations relevant to the assessment of delay. These remarks have frequently been applied in Victoria. Street CJ stated:
“‘… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.’”
[42][1982] 2 NSWLR 517 at 519-520
[43](1988) 166 CLR 59 at 64
It was submitted by your counsel that both limbs of delay are enlivened here – that is to say, you have been held in “uncertain suspense” with respect to these offences since November 2020, when a search warrant was executed in your premises. Thereafter, you were not charged until 4 January 2023, with the matter resolving on 19 July 2023.
In particular, it was submitted that you have demonstrated rehabilitation in the intervening period, having engaged in treatment and more importantly you have not offended in any way. It was submitted that you have no outstanding matters before any court.
Counsel for the prosecution, in his written submissions, comments that the prosecution accept there has been some delay in this proceeding, between when the search warrant was executed on you and the charge date, and you should be “afforded this factor in mitigation”.
After a consideration of all the material, I accept that there has been some degree of delay through no fault on your part. I consider that you are entitled to the benefit of the so-called two limbs associated with delay ꟷ that is, you have had hanging over your head the consequences of your offending for that period of delay and you have demonstrated during the period of delay that you have not re-offended and, indeed, entered into rehabilitation treatment. I accept that these matters are relevant to mitigation of your sentence.
(f) The issue of totality
Your counsel submitted that the common law principle of “totality” has been held to be accommodated by s16A of the Crimes Act 1914. (“Crimes Act”).[44] In particular, it was submitted that the principle of totality requires that some concurrency between the offences is “just and appropriate”.
[44]See Hili v R; Jones v R (2010) 242 CLR 520.
In his written submissions, counsel for the prosecution noted that s19(5) of the Crimes Act provides that, when sentencing an offender for multiple Commonwealth sex offences, the Court is not to make an order which has the effect that the sentences for each offence are to be served partly cumulatively or concurrently. However, the Court may impose a partly cumulative or concurrent form of imprisonment if satisfied that, in posing the sentence this way, it would still reach a sentence that is of a severity appropriate in all the circumstances.[45]
[45]See Crimes Act, s19(5)-s19(7).
In particular, the prosecution submitted that there should be some degree of cumulation between the two charges on the Indictment to reflect the different offence types and distinct criminality involved.
As I make plain later in these Reasons, I consider there should be some cumulation between the two offences, given they relate to different considerations;
(g) Burden of imprisonment
It was submitted by your counsel that three factors personal to you would make your time in custody more burdensome beyond the matters relating to your mental ill health.
First, the nature of your convictions will make it likely that your time in custody will be served in protection.
Secondly, your vulnerability as a offender who is experiencing an intense emotional reaction to your legal matter.
And, thirdly, your age and state of health are likely to make any term of imprisonment significantly more difficult for you than a younger man without your health issues. In this case, reference was made to exhibit “C”, which lists your medical conditions and medical material. In this respect, you seemingly suffer from hypertension, diabetes mellitus, Vitamin D deficiency, oesophageal dysmotility and the anxiety disorder to which reference has been made.
It was submitted that the likelihood of restrictive conditions and isolation, coupled with the fact that any custodial sentence would be the first time you have been in such an environment, all add weight to the relevance of your fragile mental state.
Furthermore, your counsel also submitted, during the course of your plea, that there is a continuing degree of hardship, albeit not as extreme as during the peak of the pandemic, being experienced by prisoners as a result of the COVID-19 pandemic. Although accepting that such hardship is not as palpable as at the time of the peak of the pandemic, it was submitted that prisoners still suffer some degree of hardship, through lockdowns, limited access to visitors and a reduction of programs which would normally run in prison being either suspended or cancelled.
In general, I accept the submissions made by your counsel in relation to these matters and take them into account in relation to your sentence.
56Ultimately, your counsel stated that it was conceded that a term of imprisonment is within range, but submitted that so is a non-custodial disposition, such as a Community Correction Order (“CCO”). The primary submission of your counsel was that you can and should be released on a CCO or, in the alternative, sentenced to a term of imprisonment, but released forthwith pursuant to a Recognizance Release Order, (”RRO”) or a combination of both (that is a RRO with immediate release, combined with a CCO). In this respect, reference was made to s20 of the Crimes Act, which states:
“(1)Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a) …
(b)sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
(i) if none of the offences is a Commonwealth child sex offence – either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances--after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances--immediately.
(1A) …
(1B) …
(2) …
(2A) …
(3) …
(4) …
(5) …
(6) … .”
(Emphasis added.)
57Your counsel submitted, correctly in my view, that there was no definition as to what constitutes “exceptional circumstances” within the meaning of s20(1)(b)(ii).
58Your counsel also accepted that general deterrence and denunciation are important matters in cases of this nature, but further submitted that such matters are but “some of the purposes for which a sentence must be imposed and they must be balanced against other purposes outlined in the Act”. In particular, it was submitted that you enjoyed the company of you family and friends and have had a solid work history, and the lack of prior criminal history or subsequent criminal matters and the progress you have made in treatment, that consideration of the protection of the community is significantly ameliorated.
59Furthermore, given the evidence of the psychologist, you should be considered to pose a very low risk of recidivism.
60In particular, counsel submitted that the “exceptional circumstances in this matter” are established relevant to Charge 2 based on:
(a) the lower end of objective gravity of Charge 2, including the circumstances;
(b) the time past between the offending and sentence, being three-and-a-half years;
(c) the lack of evidence of access to the material between ceasing the offending relevant to Charge 1 and November 2020;
(d) your personal circumstances, including your age, positive work history and family support;
(e) your lack of prior convictions;
(f) the rehabilitation achieved in the interim, including the lack of any further offending;
(g) your progress in treatment; and
(h) the fact that the purposes of the sentence can otherwise be met by not sentencing you to prison.
61It was further submitted that a CCO would allow for the ongoing treatment and supervision of you and be punitive in nature. A CCO can be “onerous and punitive”.[46]
[46]Reference was made to Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309.
62Your counsel referred to a number of cases with a caveat that current sentencing practice is but one consideration and not a governing sentencing consideration. Reference was made to Director of Public Prosecutions v Dalgliesh (a pseudonym).[47]
[47](2017) 262 CLR 428 (per Kiefel CJ, Bell and Keane JJ)
The response of the Prosecution
63Counsel for the prosecution ultimately submitted that, having regard to the proper application of Part 1B of the Crimes Act and the nature and circumstances of the offending, the only appropriate sentencing disposition is a term of imprisonment involving an actual period of time to be served in custody.
64Counsel for the prosecution submitted that the following matters are relevant in determining an appropriate sentence in relation to the subject offending:
(a) pursuant to s16A(1) of the Crimes Act, the Court must impose a sentence that is of a severity appropriate in all of the circumstances;
(b) in addition to any other relevant factors, the Court must specifically take into account the matters listed in s16A(2) of the Crimes Act that are relevant and known to the Court. In particular, although not referred to specifically in s16A(2) of the Crimes Act, other key common law principles of sentencing – such as parity,[48] proportionality[49] and totality[50] also applied, as they are relative to fixing a sentence of a “severity appropriate in all of the circumstances of the offence” as required by s16A(1) of the Crimes Act;
[48]Reference was made to Postiglione v R (1997) 189 CLR 295.
[49]Reference was made to Wong v R (2001) 207 CLR 584.
[50]Reference was made to Johnson v R (2004) 205 ALR 346 at 622.
(c) section 16A of the Crimes Act sets out a non-exhaustive list of relevant factors to be taken into account when passing sentence on a Federal offender. These factors include:
(i)the fact that the offender has pleaded guilty to the charge;[51]
[51]See s16A(2)(g) of the Crimes Act.
(ii)the social utility inherent in the offender’s guilty plea;[52]
(iii)the maximum applicable penalty;[53]
(iv)the need to ensure that the offender is adequately punished for the offence;[54]
(v)principles of general deterrence;[55]
(vi)the nature and circumstances of the offence, including the offender’s moral culpability;[56]
(vii)the degree to which the offender has shown contrition for the offence:
ꟷ by taking action to make reparation for any injury, loss or damage resulting from the offence;[57] or
ꟷ in any other manner;[58]
(viii)the degree to which the offender has co-operated with law-enforcement agencies in the investigation of the offence;[59]
(ix)the deterrent effect that any sentence or order under consideration may have on the offender;[60]
[52]See s16A(2)(g) of the Crimes Act.
[53]See Markarian v R (2005) 228 CLR 357 at paragraphs [30]-[31].
[54]See s16A(2)(k) of the Crimes Act.
[55]See s16A(2)(ja) of the Crimes Act.
[56]See s16A(2)(a) of the Crimes Act.
[57]See s16A(2)(f)(i) of the Crimes Act.
[58]See s16A(2)(h) of the Crimes Act.
[59]See s16A(2)(h) of the Crimes Act.
[60]See s16A(2)(j) of the Crimes Act.
(d) Section 17A(1) of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless, having considered all other sentences, the Court is satisfied that no other sentence is appropriate in the circumstances.
65Counsel for the prosecution then set out what was referred to as “general principles relevant to sentencing for child sex offences”. In particular, it was submitted that appellate authorities in Australia held that the following propositions apply to sentencing for this class of offending.
(a) there is an intrinsic harm caused by sexual offences involving children;[61]
(b) A sentence involving an immediate term of imprisonment is ordinarily warranted;[62]
(c) there is a paramount public interest in promoting the protection of children, as accessing and possessing CAM is not a victimless crime and the possession of CAM creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market;[63]
(d) such offending is difficult to detect;[64]
(e) general deterrence is a significant sentencing consideration, as there is paramount public interest in promoting the protection of children, given the vulnerability of children online and the need to protect them from sexual abuse by predators using electronic facilities;[65]
(f) where general deterrence is of significance, personal mitigatory factors such as prior good character, age, and prospects of rehabilitation, must therefore be given less weight than might otherwise be given.[66] The subjective circumstances of an offender must not overshadow the objective gravity of the offences;[67]
(g) Specific deterrence, denunciation and punishment are also important sentencing considerations.[68]
[61]See Clarkson v R; EJA v R (2011) 32 VR 361 at 364. paragraph [3] of the summary, where the court said “The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent”.
[62]R v Jongsma (2004) 150 A Crim R 386 at 395; Hill v The State of Western Australia [2009] WASCA 4 at paragraph [28]; R v Booth [2009] NSWCCA 89 at paragraph [48]; R v Sykes [2009] QCA 267 at paragraph [24]; DPP v Groube [2010] VSCA 150 at paragraph [24], DPP v D’Alessandro (2010) 26 VR 477 at 483-4, paragraph [21], DPP (Cth) v Guest [2014] VSCA 29 at paragraphs [23-24]; DPP v Smith [2010] VSCA 215 at paragraphs [23] and [26]-[29].
[63]R v Coffey (2003) 6 VR 543 and 552; R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469 at paragraph [21]; R v Jongsma (op cit) at 14; Heathcore (a pseudonym) v R [2014] VSCA 37 at paragraph [40]; R v Jones (1999) 108 A Crim R 50 at 9; R v Gent (2005) 162 A Crim R 29 at 43; Commonwealth Director of Public Prosecutions v D’Alessandro (op cit) at paragraph [23].
[64]R v Asplund; Asplund v R (2010) 216 A Crim R 48 at 50; R v Gajjar (2008) 192 A Crim R 76 at paragraph [52].
[65]Asplund (op cit) at paragraph [50]; R v Gajjar (op cit) at paragraph [27]
[66]R v Gajjar (op cit) at paragraphs [27]-[28]
[67]R v Coffey (op cit) at paragraph [30]
[68]R v Burdon; Ex Parte A-G (Qld) (2005) 153 A Crim R 104 at 108
66Counsel for the prosecution also referred to s16A(2AAA) of the Crimes Act, which provides for matters that must be taken into account because the offender is to be sentenced for a Commonwealth child sexual offence. It provides that a court sentencing an offender for a Commonwealth child sexual offence must take into account the objective rehabilitation of the person, including by considering whether it is:
(a) appropriate when making an order to impose any conditions about rehabilitation or treatment options; and
(b) appropriate in determining the length of any sentence or non-parole period to include sufficient time for the person to undertake a rehabilitation program.
67Counsel for the prosecution then submitted that the principles set out above demonstrate that your offending is “objectively serious”. In particular, counsel for the prosecution submitted that the following factors demonstrate the objective seriousness:
(a) you intentionally transmitted and received images and videos of CAM, as well as text-based CAM, to fifteen different recipients over approximately a three-and-a-half-month period in late 2018 to early 2019. In total, you received 145 files and transmitted 49 files. Additionally, you saved and stored a significant amount of CAM on phone backup within a desktop computer, which was located at the search warrant almost two years later, in November 2020;
(b) there are separate and distinct forms of offending present, including transmitting CAM to a large number of other users and causing significant quantities to be transmitted to yourself, which involved both file and text-based material, and possessing CAM;
(c) although your counsel submitted at paragraph 9 of his submissions that “there is substantial (if not total) overlap between the material” subject of the two charges. It is noted that the exact amount of overlap has not been confirmed, however it is noted that you possessed more than double the amount of CAM that is subject of Charge 1, in that you possessed a total of 330 unique files, and 335 total files (five of which were duplicates);[69]
(d) you took intentional and considered steps to obtain CAM, as clearly set out in the facts of the offending. You sought out and joined a number of different group chats on Kik, where you would then privately message others, instigating chats for the purpose of exchanging CAM.[70] The offending was therefore deliberate and pre-mediated. It was not isolated, impulsive or opportunistic, and is inconsistent with your own version of how the offending started, as addressed below;
(e) The total amount of CAM possessed by you was 330 unique files, which was submitted to be a considerable quantity;
(f) the depravity of the material possessed, transmitted and received by you includes explicit, serious and depraved examples of CAM. The material as described in exhibit 1 includes images and videos of infants and toddlers, and includes penetrative sexual activity with adults, including penis to mouth, vagina and anus and 200 of the 330 files involved pre-pubescent children under the age of thirteen;
(g) the period of offending in Charge 1, being three-and-a-half months, and the transmission of material to fifteen different recipients, contributed to the distribution and continued harm and cycle of abuse perpetrated on victims. It was submitted that such activities are a serious example of this offence in particular, involving a large number of other recipients and a significant amount of material.
[69]See Exhibit 35 – Child Abuse Material Report.
[70]See Summary of Prosecution Opening at paragraph [14].
68It was submitted on behalf of the prosecution that your conduct was deliberate, with the intention of collecting CAM and disseminating it to others. The sharing of such material elevates the offending beyond merely being a passive recipient and the prosecution submitted that this, in combination with the significant quantity of files, the depravity of the files, participation with at least fifteen others in the CAM, and the length of the offending, can only be viewed as a serious example for an offence of this type, requiring an immediate term of imprisonment.
69Counsel for the prosecution noted that, pursuant to s19AB(1) of the Crimes Act, if a sentence or an aggregate sentence of imprisonment exceeds three years, the Court must fix a single non-parole period unless ss(3) and (4) of s19AB of the Crimes Act have application.
70Furthermore, counsel highlighted that, if a sentence or aggregate sentence of imprisonment exceeds six months, but does not exceed three years, a single RRO and not a non-parole period is required, unless ss(3) and (4) of s19AC of the Crimes Act has application.
71It was submitted that, in all the circumstances, a RRO is appropriate. In this respect, reference was made to s20(1)(b) of the Crimes Act.[71] In particular, counsel for the prosecution submitted that a term of immediate imprisonment is ordinarily immediately appropriate and expected in crimes of this nature.[72] Counsel noted that the Crimes Act has, in more recent years, enshrined this principle in legislation by providing that, unless there are “exceptional circumstances”, immediate release on Recognizance is not available for a person sentenced for a Commonwealth child sex offence. This statutory presumption only applies to Charge 2, not Charge 1.[73]
[71]Which has already been set out earlier in these Reasons for Sentence.
[72]See Garside (op cit) at 819, paragraphs [62]; and 824-5, paragraphs [86]-[87]
[73]The amendment involving the addition of the words “exceptional circumstances” applies to offences committed on or after 23 June 2020. Accordingly, such amendment does not apply to Charge 1, bearing in mind that the offending occurred between 19 September 2018 and 6 January 2019, but does apply to Charge 2, given that the date of offending is on 6 November 2020.
72Counsel for the prosecution submits that what constitutes “exceptional circumstances” for the purposes of s20(1)(b)(ii) of the Crimes Act is deliberately not defined. However, he submits that case law provides assistance into considering what might amount to exceptional circumstances. The following cases were referred to:
(a) R v Tootell; Ex parte A-G (Qld),[74] where the court stated as follows:
[74][2012] QCA 273 at paragraph [18]
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”;
(Emphasis added.)
(b) In R v Gaw,[75] the court quoted R v Quick; ex parte A-G (Qld),[76] where it was stated as follows:
“‘What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.
… the court, in the sentencing process, must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in s 9(6), warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind.’”
(Emphasis added.)
[75][2015] QCA 166
[76][2006] QCA 477
73It was submitted by counsel that a “reasoning process” is required to be undertaken to determine whether circumstances are mitigating factors to be weighed in the sentencing exercise or are so exceptional as to warrant imposing a non-custodial sentence in all the circumstances of an offence. This requires considering both the objective seriousness of the offending and the need for general deterrence.[77] Counsel for the prosecution referred to what he termed “a helpful discussion” in a recent decision of R v Jones,[78] wherein it is stated:
“… Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour of a finding that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and the protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria”
(Emphasis added.)
[77]Reference was made to R v Toottell ex parte A-G (op cit) at paragraphs [18]-[27]
[78][2022] SASCA 105 at paragraph [45]
74In particular, counsel for the prosecution submitted that, in distinction to your counsel, the circumstances of your offending in relation to Charge 2 were not “exceptional” and could not be seen to be “unusual”, “special” or “uncommon”. Furthermore, counsel for the prosecution also disputed that the categorisation of the offending constituted by Charge 2 to be on the “lower level” of objective seriousness, considering the total number of files possessed was 330, as noted above, and the material included depraved sexual activity, including penetration and very young children.
Conclusion
75You have pleaded guilty to the offence of using a carriage service to transmit child pornography and causing child pornography material to be transmitted to you (Charge 1), which is contrary to ss474.19(1) of the Criminal Code Act1995 (Cth) and the offence of possessing or controlling CAM obtained or accessed using a carriage service (Charge 2), which is contrary to s474.22A of the Criminal Code Act1995 (Cth).
76Both charges involve serious offences, as is made manifest by the maximum penalty of fifteen years’ imprisonment in relation to each offence. Furthermore, such offending is inherently serious, as it involves the sexual exploitation of infant, toddler, pre-pubescent and pubescent children. As the authorities establish, there is a paramount public interest in promoting the protection of children, as accessing and possessing CAM is not a victimless crime. The possession of CAM provides a market for the continued corruption and exploitation of children and children are sexually abused in order to supply that market.[79]
[79]See R v Coffey (op cit) at 552; R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP (op cit) at paragraph [21]; Heathcore (a pseudonym) v R (op cit) at paragraph [40]; R v Jones (op cit) at paragraph [9].
77Following an investigation by police, you were identified as the person with the IP address of the social media application Kik account “evilsteve999”. A search warrant was executed at your home on 6 November 2020 and pursuant to the warrant, an iPhone 6S, CoolerMaster computer tower and an iPhone 4 were seized. The seized devices were subsequently analysed, which resulted in the identification of the CoolerMaster computer tower and an iOS iTunes backup function. An iOS backup function is used to create a whole-system backup and extraction of a phone device’s contents, which can be put back into the phone, or another phone, should the phone be damaged. Located within the iOS iTunes backup was a large quantity of Kik Messenger chats with your account name “evilsteve999”. These chats were analysed and found to contain CAM. In total, 330 unique CAM files were identified in the iOS iTunes backup account.
78The 330 unique CAM files were broken down into images and videos and characterised as either Category 1 – depicting a real pre-pubescent child under thirteen years of age, or Category 2 – other illegal content depicting a child under the age of eighteen years.
79There were 200 Category 1 files made up of 197 images and three videos and 130 Category 2 files made up of 129 images and one video.
80In relation to the images, counsel for the prosecution set out what he described as a “sample description” of such images, which included:
(a) pre-pubescent and pubescent females depicted naked, or partially naked, in sexually-provocative poses, with focus on breasts and genitalia;
(b) pre-pubescent and pubescent females involved in solo sexual activity or with each other;
(c) infant, toddler, pre-pubescent and pubescent females involved in sexual activity, predominantly with adult males and a few with adult females;
(d) infant, toddler, pre-pubescent and pubescent females involved in penetrative sexual activity with adult males including penis to mouth, vagina and anus;
(e) infant, toddler, pre-pubescent and pubescent females with ejaculate on them;
(f) toddler, pre-pubescent and pubescent females restrained with arms and legs bound, and shown in a physically-degrading manner, including small cages.
81Counsel for the prosecution also supplied what he described as a sample description of the videos found in your possession, which included:
(a) a thirty-one second video depicting a pre-pubescent female (approximately four years old) performing oral sex on an adult male;
(b) a twenty-six second video depicting an adult male engaged in penile/vaginal sex with an early pubescent female;
(c) a forty-four second video depicting a pubescent male performing oral sex on an adult male;
(d) a thirty-four second video depicting a pre-pubescent female (approximately eleven years old) engaged in solo penetration.
82The 330 unique CAM files is the basis of Charge 2 – that is, you being in possession of, or controlling, CAM material obtained or accessed using a carriage service.
83The analysis of the iTunes iOS backup further revealed that you used your Kik account to transmit, and cause to be transmitted, child pornography material with various other Kik users between 19 September 2018 and 6 January 2019. In particular, you were a member of approximately fifteen group chats, where, after joining a group, you would privately message other members, suggesting that you trade child pornography material.
84Counsel for the prosecution referred to what he described as the “most significant” of these chat exchanges between you and two of the other parties, “openminded12016” and “Happiness Smith”:
(a) over the period between 16 September to 12 October 2018, you exchanged messages with “openminded12016” premised upon exchanging CAM and expressing your sexual desires to each other. During this exchange, you caused to be transmitted 100 files and transmitted two files. You requested and engaged in conversation about the type of child pornography and throughout the conversation you prompted “openminded12016” to transmit CAM to you through conversation prompts, a sample of which is listed below:
(i)“Want to share a pic or two”;
(ii)“Any penetration”;
(iii)“You got any more pics?”
(iv)“more graphic?”;
(v)“I want to see everything the wilder the better”;
(vi)“Young push with things in it”,
(vii)“Got any movies”;
(viii)“Covered in cum, young gaping open, finger in arse”;
(ix)“Any with things in them”;
(x)“I am interested in every thing you have to offer”;
(xi)“Would like to see a dick all the way in”;
(xii)“Any older with pets”;
(xiii)“Got ones with fingers in”;
(xiv)“Show me the worse you have and I will tell you if it is too much”;
(xv)“Any more with insertions”;
(xvi)“Got any teen stuff”;
(xvii)“Any anal stuff”;
(xviii)“young boys playing with y girls?”.
Also, counsel for the prosecution made a selection of the child pornography transmitted to you, which includes:
(xix)a naked pre-pubescent female bent over a chair (or similar) with her genitalia exposed;
(xx)a naked pre-pubescent female naked from waist down on bed with legs apart and genitalia exposed;
(xxi)a pre-pubescent female engaged in penetrative sexual activity with an adult male;
(xxii)a sleeping female toddler with an adult male penis placed on her mouth;
(xxiii)a female toddler with an adult male penis placed on her mouth;
(xxiv)a female toddler, naked from waist down on a chair with her legs spread open and an adult male penis positioned close to her genitalia.
(b) over the period from 23 September 2018 to 6 January 2019, you exchanged messages with “Happiness Smith”, such conversations premised initially around the exchange of adult pornography, but progressed to the exchange of child pornography.
You prompted “Happiness Smith” on a number of occasions to transmit child pornography to yourself, samples of which are referred to below:
(i)“what about the vid I asked for”;
(ii)“I want verification vid to make sure I am safe sending you what I have”;
(iii)“Where is your contribution”;
(iv)“nice got any young g & b playing”;
(v)“haven’t you got anything new?”;
(vi)“you can send me stuff if you want”;
(vii)“have you got younger”.
Furthermore, as part of the conversation, you offered to transmit material to “Happiness Smith”, including:
(viii)“what vids would you like this time”;
(ix)“now be specific what do you want to see”;
(x)“How young will you go”;
(xi)“give me a number”;
(xii)“what do you want?”;
(xiii)“I think I have shared all I have”;
(xiv)“how young can I go????”
Furthermore, counsel for the prosecution set out a selection of the child pornography transmitted to you which included:
(xv)two pubescent females engaged in sexual activity;
(xvi)media depicting a pre-pubescent female engage in penetrative sexual activity with a male;
(xvii)a video of a pubescent male engaged in penetrative sexual activity with a male;
(xviii)a video of a pre-pubescent female engaged in solo sexual activity.
A selection of the child pornography transmitted by you to him included:
(xix)three pubescent naked males engaged in sexual activity;
(xx)a pre-pubescent child engaging in penetrative sexual activity with two adult females;
(xxi)a pre-pubescent female with her top pulled up to expose breast;
(xxii)a pubescent female engaging in penetrative sexual activity with an adult male.
Overall, you received 145 files and transmitted forty-nine files.
85After a consideration of the material, I accept the submission of counsel for the prosecution that you took intentional and considerable steps to obtain CAM, as clearly set out in the facts of the offending. You sought out and joined a number of different group chats on Kik, where you would then privately message others, instigating chats for the purpose of exchanging CAM. The offending was deliberate and premeditated. In particular, it was not isolated, impulsive or opportunistic and is inconsistent with your version of being a passive member of any chat group.
86In determining the objective seriousness of your offending in relation to Charges 1 and 2, your counsel submitted that, although Charge 1 was “substantially more serious than Charge 2”, the offending material does not sit at the “higher end of seriousness” for offending of this nature.
87Your counsel referred to the various circumstances set out in Garside;[80] which would ordinarily determine the objective seriousness[81] of any particular offending.
[80](Op cit) at paragraph [23]
[81]Refer to paragraph [54] of these Reasons where such factors are set out.
88In particular, your counsel submitted:
(a) the number of images/materials sits at the lower end of the range of offences of this nature dealt with in the County Court;
(b) collectively, the nature and content of material in relation to both charges is at the mid-range;
(c) there is substantial (if not total) overlap between the material said to have been transmitted/received in relation to Charge 1 and the material possessed in relevant to Charge 2;
(d) there is no suggestion of ongoing access of the stored material by you, and, indeed, the evidence supports the fact that you had not realised the material remained on the computer and you believed you had deleted it;
(e) there is no suggestion, nor any evidence, that the materials were for the purposes of sale;
(f) the offending does not involve grooming, procuring, or any attempt at direct contact with children (or online users holding themselves out as children);
(g) nor is there any suggestion that you would profit from the offences;
(h) while the offending relevant to Charge 1 occurred over four months, an examination of comparable cases does not place this timeframe at the higher end of the scale;
(i) the conduct relevant to Charge 1 ceased more than five years ago and has not been engaged in ever since;
(j) the conduct relevant to Charge 2 occurred more than three-and-a-half years ago and has not been repeated since;
89Further, it was submitted by your counsel that, in the circumstances of this matter, you desisted from the offending relevant to Charge 1 more than five years ago. While the material remained in your computer, you believed it had been deleted and there was no evidence to suggest that you accessed or viewed any such material between January 2019 and November 2020 (when the search warrant was executed). In particular, your counsel submitted that, typically with this type of offending, it is only the arrest and charge of an offender which brings an end to the active offending. It was submitted this is not the case in the circumstances of this matter.
90After a consideration of all of the material, I clearly accept that the files involving Charges 1 and 2, were neither for the purpose for sale or further distribution, and that you did not profit from the files. Furthermore, the number of files, although significant, is not at the very high end of the number of files sometimes found in other cases.
91However, I consider the nature and content of the material and in particular the age of the children and the gravity of the sexual activity depicted, to be at a high level. Further, the number of children depicted, and therefore victimised, is not insignificant. I also take into account that, over the period from 19 September 2018 and 6 January 2019, you were an active participant in the transmission of material and caused the material to be transmitted, which involved, substantially, Category 1 images and videos.
92In all the circumstances, I consider that the objective seriousness of the offending in relation to Charge 1 is beyond mid-level but not at the highest level, whereas the objective seriousness in relation to Charge 2 is somewhat higher than mid-level, but not as high as the objective seriousness relating to Charge 1.
93I consider that your moral culpability in relation to the offending constituted by Charge 1 is high and again I note that you were an active participant over the period from 19 September 2018 to 6 January 2019, which is made plain by the various comments that have been recorded in relation to you seeking further material and discussing material exchanged between various other users on the social media application Kik. I consider that your moral culpability is not as high in relation to offending constituted by Charge 2, bearing in mind that you maintained you thought you had deleted the files from your system and according to you, you were unaware of them being in the system when seized at the time of the search warrant.
94In mitigation of your offending, I do take account of the following matters:
(a) that in relation to Charge 1, the offending is limited to the period from 19 September 2018 to 6 January 2019, after which there is no evidence of CAM transmitted by you or you causing material to be transmitted to you;
(b) in relation to Charge 2, although you were found to be in possession of CAM as at 6 November 2020 (the date of the search warrant), there is no evidence that you accessed or viewed such material over the period from 6 January 2019, up to 6 November 2020.
95As I have already indicated earlier in these Reasons, I consider that you are entitled to have considered the following mitigating factors in relation to your sentence:
(a) your early plea of guilty, which I accept is some evidence of your acceptance for what was alleged against you; and I also accept there is a utilitarian benefit to the community in avoiding a jury trial. Furthermore, I also accept that such a plea of guilty is some evidence of remorse and should also attract the discount enunciated in Worboyes;[82]
(b) I accept that you are entitled to have taken into account, Principles 5 and 6 of Verdins,[83] which are enlivened, based on the evidence of the psychologist;
(c) I consider that you are entitled to some limited weight to be given to your previous good character and lack of convictions;
(d) I consider that your prospects of rehabilitation are reasonable – particularly taking into account the evidence suggesting that you have not been involved in similar offending for some time now. Furthermore, I take note of the evidence of the psychologist, that the prospects of you re-offending are “low”. However, as already stated, I do accept the prosecution submission that, on the evidence, you continue to show some lack of insight and there is still some progress to be made in relation to your rehabilitation, which gives rise to the caution shown by the Court in assessing your future prospects;
(e) the issues of delay are enlivened, that is to say, you have been held in “uncertain suspense” with respect to these offences since November 2020 and that thereafter during the period of delay, you have demonstrated no further offending and have, indeed, sought treatment from your treating psychologist;
(f) I also consider that the burden of imprisonment, both brought about by the nature of your offending and, indeed, a continuing degree of hardship brought about by the consequences of the COVID-19 pandemic is also relevant;
(g) I also accept that you have some remorse for your offending, as demonstrated by your comments to the psychologist and by the contents of the two reference on which you rely. I do temper my opinion by what I have stated earlier that you do show some lack of insight and there is still some progress to be made in relation to your rehabilitation.
[82]Op cit
[83]Op cit
96Consistent with the authorities, general deterrence and denunciation are significant sentencing considerations, as there is paramount public interest in promoting the protection of children and the need to protect them from sexual exploitation.[84] Where general deterrence is of significance, personal mitigatory factors such as prior good character, age and prospects of rehabilitation must therefore be given less weight than might otherwise be given. I refer to Garside,[85] wherein the majority of the Victorian Court of Appeal stated:
“What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending … no broader principle need be laid down as each case must be decided according to its own circumstances.
The respondent could call in aid a number of mitigating factors, including his lack of prior offending, age, familial support and remorse and prospects for rehabilitation. These factors were relied on by the respondent before the sentencing judge to justify ‘mercy’. But the authorities to which we have referred demonstrate that such factors must be given less weight than they ordinarily would in sentencing for possessing and accessing child pornography as such offenders generally have similar backgrounds and are of prior good character.”
[84]See R v Aspland; Apsland v R (op cit) at paragraph [50]; R v Gajjar (op cit) at paragraph [27]
[85](Op cit) at 819, paragraphs [62]-[63]
97Specific deterrence, and for that matter, protection of the community, do not loom large as sentencing considerations, given your lack of prior convictions, your reasonable prospects of rehabilitation, and, indeed, the period of time over which you have not offended since the subject offending.[86]
[86]See R v Burdon; Ex Parte A-G (Qld) (op cit)
98Both your counsel and counsel for the prosecution referred me to a variety of decisions in relation to this type of offending. I have read those decisions, and although they have been helpful in discerning the relevant legal principles applicable in matters such as this, there is limited assistance in coming to an appropriate sentence, as each matter turns on its own facts.
99Contrary to the submission of your counsel, I do not consider that a CCO should be ordered in lieu of any period of imprisonment. As I have pointed out, at the time the offending relative to Charge 1 occurred, a term of imprisonment would ordinarily be expected for such offending. Indeed, as stated in Garside,[87] only in “exceptional circumstances” would that not be the case. Bearing in mind my findings in relation to the objective seriousness of your offending and your moral culpability, I consider the only disposition is to order an immediate sentence of imprisonment in relation to both charges.
[87]Op cit
100I consider that there should be some limited cumulation in relation to Charge 2, as, indeed, the two offences involve different criminality. However, it must be remembered that in order for files to be transmitted, they must be in your possession initially.
101However, again, taking into account your ongoing attendance on the treating psychologist, and, indeed, the various mitigating factors to which reference has been made (with varying weight), I intend to order that you be released on entering a RRO after serving a certain period of imprisonment.
102I do refer to s20(1)(b) of the Crimes Act and in particular to paragraphs (ii) and (iii). In all the circumstances, I am not satisfied there are “exceptional circumstances” relevant to Charge 2. In this respect, I accept the submission of counsel for the prosecution, that it cannot be sensibly maintained that there are circumstances either individually, or taken collectively, which are out of the “ordinary course”, or “unusual”, or “special”, or “uncommon”. At best, the highest it can reasonably be put is that you have not offended for a number of years now, which goes to your prospects of rehabilitation, but do not satisfy, in my view, the “exceptional circumstances” test.
103Please be upstanding:
(a) in relation to Charge 1 on the Indictment, you are convicted and sentenced to a period of imprisonment of ten months, commencing from this date.
(b) in relation to Charge 2 on the Indictment, you are convicted and sentenced to a period of imprisonment of six months, such sentence to commence from 17 November 2024;
(c) the total effective sentence is twelve months;
(d) I further order that you be released upon entering a RRO on 17 August 2024 and upon entering a RRO with a surety in the sum of $100, be subject to the following conditions:
(i)to be of good behaviour for the duration of your sentence;
(ii)that you continue to undergo treatment with your treating psychologist, Dr Daria Sizenko, as required in relation to your offending behaviour for the duration of your sentence;
(e) I further order that you be registered as a “registrable sex offender”, pursuant to the Sex Offenders Registration Act 2004 and you will be required to comply with the reporting obligations of that Act for fifteen years.
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