Director of Public Prosecutions (Cth) v Kanen

[2022] VCC 783

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
 Not Restricted
 Suitable for Publication

Case No. CR-21-01250

THE QUEEN

v

Robert Andrew KANEN

---

JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2022
DATE OF SENTENCE:	29 April 2022
CASE MAY BE CITED AS:	DPP (Cth) v KANEN
MEDIUM NEUTRAL CITATION:	[2022] VCC 783

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Commonwealth offences- use of carriage service- child abuse material and online sexual activity - plea of guilty- no prior criminal history- mental health- good prospects of rehabilitation;

Legislation Cited:      Criminal Code (Cth), Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004 (Vic);

Cases Cited:R vVerdins [2007] VSCA 62, Worboyes v The Queen [2021] VSCA 169, Pham v The Queen (2015) 256 CLR 550;

Sentence:                  Total Effective Sentence of 2 years and 11 months imprisonment. Recognisance Release Order for period of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L Skoblar	Commonwealth Director of Public Prosecutions
For the Accused	Ms M Casey	Victoria Legal Aid

HER HONOUR:

1Robert Andrew Kanen, you have pleaded guilty to:

(a) One charge of use a carriage service for sexual activity with a person under 16 years of age, contrary to sub-section 474.25A(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years' imprisonment; (Charge 1)

(b) Three charges of use a carriage service to cause child abuse material to be transmitted, contrary to sub-section 474.22(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years' imprisonment; (Charges 2, 3 and 5); and

(c) Two charges of use a carriage service to procure a person under the age of 16 for sexual activity, contrary to sub-section 474.26(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years' imprisonment; (Charges 4 and 6).

2The circumstances of your offending are set out in a comprehensive Summary of Prosecution Opening which was Exhibit A on your plea hearing.  In essence, you used a carriage service to engage in sexualised communications with 4 separate recipients, all females under the age of 16 years.  Each of these victims resided in New South Wales.

3Charge 1 relates to a single occasion in which you communicated with a 13 year old girl, who I will refer to as Emma[1], and sent her a live video of yourself masturbating.  Emma had operated a Snapchat account and you added her to your account in September 2019, which had the username “robertkanen19”.  In November 2019, Emma had posted photographs of herself, and you commented on those photographs about how pretty she was and that she had a nice body.  On 28 November 2019 when Emma was at home, you called her via the Snapchat application.  Emma was able to see you on video, but you were unable to see her and her friends, who were also present. The conversation that followed was then interrupted by Emma’s mother, who asked if you knew how old she was. Later that evening you made a second video call by Snapchat to Emma, who was present with two friends. When she answered the call, you moved the camera from your face to your genital area; your pants were down and the video showed you masturbating through your underwear, then moving your underwear to one side and exposing your penis as you continued to masturbate. Emma was able to screen record this video call.  The following day, Emma’s mother became aware of the call and you were blocked on Snapchat. You subsequently contacted Emma on Instagram, noting that you knew the area where she lived and saying that you would soon be travelling in the area and wanted to catch up.  Emma did not reply and there was no further contact. Emma’s mother contacted NSW Police and noted the identifying details she was able to ascertain from your Snapchat account.

[1] A pseudonym.

4Charge 2 relates to the transmission of a series of communications over a 3-week period, to 14 year old Leia[2], during which you requested sexualised images in return for gifts.  In December 2019, Leia added you on Snapchat and requested that you send her gifts as payment for sending you images.  You and Leia exchanged a number of messages, during which you agreed to purchase her gifts and mail them to her in exchange for receiving child exploitation photographs of her. From the first week of January 2020, you sent Leia a number of gifts, in exchange for child abuse images of herself.

[2] A pseudonym.

5A package containing underwear (G strings), make-up products and air pods that you sent to Leia was intercepted by her mother on 31 January 2020. The package contained your name and mobile number. Leia’s mother contacted you to enquire about the package, and then contacted New South Wales Police, after ascertaining from her daughter that a male had sent the package in return for images. Leia’s mother saved images from your Snapchat account which were provided to police.

6There were no further communications between you and Leia, but Leia had advised her friends, who I will refer to as Adele[3] and Monique[4], that they could contact you on Snapchat and obtain gifts in return for child exploitation images.

[3] A pseudonym.

[4] A pseudonym.

7Adele added you on Snapchat on 31 December 2019.  You were to be known as a ‘sugar daddy’, which Adele knew entailed the expectation that she send you explicit photographs of herself and, in return, you would send her gifts.

8Charges 3 and 4 relate to the transmission of a series of communications to 14 year old Adele over a 3-month period in which you requested sexualised images from her in return for purchasing her gifts (charge 3); and in which you requested that Adele make arrangements to engage in sexual activity with you (charge 4).  From around the start of February 2020, there was an agreement between you and Adele that she would provide images of herself wearing bikinis or partially naked, with a link to (or screen shots of) the gifts that Adele wanted you to purchase in return. Once you received the images, you purchased the gifts.

9You were aware of Adele’s age as you had been sent photographs of her in either school uniform or whilst she was at school. You initially sent the gifts to Adele’s home address and later sent the gifts to her friend Monique’s home for Adele to collect, as Adele was concerned her mother would notice the gifts being sent to her.  In addition to sending Adele gifts, you also sent explicit images and videos of yourself, messages with explicit comments about what you would like to do with Adele, and encouraged Adele to break up with her boyfriend.

10In March 2020, you suggested to Adele that you meet in person, informing her that you would travel to NSW for this purpose. Aware that she needed a new phone, you sent her a message via Snapchat stating, “I’ll get you a new phone if you have sex with me”.  Adele agreed to meet you at a local shopping centre and asked her friend, Monique to attend.  Adele informed her sister, who suggested that she and her boyfriend follow to ensure the girls were safe.

11You travelled to New South Wales, and on 14 March 2020 you met Adele and Monique in the make-up section of Target at a local shopping centre. You gave Adele a hug hello and attempted to kiss her on the lips but she turned her face away. You spent four hours with Adele and Monique purchasing gifts from various stores including clothing and underwear.  At the conclusion of the shopping trip, you invited the girls to your hotel room and indicated you wanted to engage in sexual activity, but they declined.  You left the shopping centre after Adele called over her sister and her sister’s boyfriend and introduced them to you.  You returned to Victoria the following day and continued communications with Adele until the end of April 2020.  You and Adele exchanged gifts and images during those communications.

12Charges 5 and 6 relate to the transmission of a series of communications over a 4-month period, to 14 year old Monique during which you requested sexualised images from her, in return for gifts purchased for her. During the course of your contact, you requested that Monique make arrangements to engage in sexual activity with you.

13Monique had become aware of you being known as a ‘sugar daddy’ from Leia and Adele. She was aware that she would be expected to send you sexualised images of herself and, in return, you would send her gifts.

14In early January 2020 Monique sent you a friend request on Snapchat and advised you that she was currently in Year 8 at high school, sending you photographs of herself either in uniform or at school. There was an agreement that Monique would provide images of herself being partially naked with a link to (or screenshots of) the gifts that she wanted you to purchase for her. Once you received the images, you purchased the gifts and sent them to Monique’s home address.

15You and Monique would communicate on Snapchat almost daily, exchanging naked images of each other.  These included you sending her images and videos depicting your erect penis and you masturbating.  You requested Monique send you images of her vagina.

16As already noted, you travelled to New South Wales in March 2020 and made arrangements to meet Monique. Prior to travelling to meet both girls, you made it clear that you wanted to engage in sexual activity with Monique. Specifically, you indicated that you wanted Monique to give you a ‘blow job’ in the bathroom of the shopping centre where you would meet. I have already described the circumstances of your meeting with Monique and Adele.

17Monique continued communicating with you until at least 31 May 2020 and examination of your phone revealed a request for $70 from Monique made on 26 May 2020. Monique stated that she had made arrangements to meet you in New South Wales so that you could take her back to Victoria.  Although you were in New South Wales in early June 2020, you did not visit Monique.

18New South Wales Police commenced an investigation on 25 May 2020 following reports with respect to Leia and Adele, and the earlier report with respect to Emma. Your social media accounts were examined and police determined where you resided. Police were provided with a number of the explicit images and videos sent to you by Adele. You were arrested on 25 June 2020 following the execution of a search warrant at your premises. A number of exhibits relevant to the investigation were seized, including your mobile phone. An examination of the phone revealed 188 saved screenshots of Snapchat messages between yourself and Adele and five audio recordings and video chats between the two of you. You declined to participate in a record of interview. You have been in custody since your arrest.

Victim Impact

19A victim impact statement was prepared on behalf of one of your victims, Monique.  Monique is a vulnerable young person. Monique has described not being able to trust people or that people will not take advantage of her.  Once a social and outgoing girl, Monique is described as no longer being confident away from her home unless in the care of safe adults.  Since the offending, Monique has not been able to engage in schooling due to anxieties and is currently in receipt of medication.

Commonwealth Sentencing

20Turning to some principles in relation to Commonwealth sentencing. In sentencing for Commonwealth offences, the court is required to have regard to the matters set out in part 1B of the Crimes Act 1914 (Cth) (‘the Act’). In particular the court must have regard to the list of matters set out under subsection 16A(2) which provides a non-exhaustive list of factors to be taken into account as far as they are relevant and known when sentencing a Federal offender. Pursuant to section 16A(1) of the Act, I must impose a sentence which is of a severity appropriate in all the circumstances of the case, bearing in mind the requirement in section 16 (2)(k) that a person be adequately punished for the offending.

21Section 17A restricts a court from imposing imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

22In sentencing for online child exploitation offences, a number of principles have been established. An immediate term of imprisonment is ordinarily imposed for offending involving child pornography and online sexual exploitation of children, offences such as grooming and procuring.

23Each of the charges to which you have pleaded guilty carry a maximum penalty of 15 years' imprisonment, reflecting the seriousness with which Parliament views offences of this type.

24General deterrence is the primary sentencing consideration for this type of offending, due to the vulnerability of children online and the need to protect children from sexual abuse. Given the primacy of general deterrence in the sentencing consideration, it follows that mitigating factors such as good behaviour, age and prospects of rehabilitation must carry less weight than they may otherwise. It was, however, submitted by your counsel that general deterrence should be moderated due to your enduring mental illness.

25Specific deterrence, denunciation, punishment and protection of the community are also highly relevant sentencing considerations for offending of this type.  Offending involving child exploitation material and online sexual activity involving children can be difficult to detect, and the protection of children in the community is therefore an important consideration. Moreover, offending involving child pornography or online sexual exploitation occurs on an international level and is becoming increasingly prevalent with the advent of the internet as an accessible means of allowing people to access child exploitation material or to communicate with children. There is a paramount public interest objective in promoting the protection of children.

Nature and Gravity of the Offending

26Turning to the nature and gravity of your offending, I regard your offending here as serious. As the prosecution points out, you were clearly aware of the age of the children involved. All were aged 14 and under, and there was a significant age difference of over 40 years between you and each of them. Ordinarily, this would represent a considerable imbalance in life experience and maturity; a matter to which I attach some weight. You sent the recipients sexually explicit images of yourself; you received and retained explicit images of two of the children involved. You communicated with the children using sexually explicit and graphic language, which increases the seriousness of the offences. You asked two of the recipients to engage in sexual activity with you and took steps to travel interstate and meet with them. To some degree, this represents an escalation in your offending. Furthermore your offending occurred over a period of some six months. You did not voluntarily cease communicating with any of the children.  The behaviour in which you engaged was predatory and demonstrated a clear sexual interest in teenage children. The court denounces your conduct.

27Your counsel, Ms Casey submits that this is an unusual solicitation–type offending which needs to be considered in the context of your enduring mental illness. To some degree I accept that submission; certainly with regard to your mental health. Ms Casey submits that the offending has a transactional flavour, particularly given that three of the complainants initiated contact with you seeking a ‘sugar daddy’, and sending you sexualised images of themselves with links to gifts that they wanted. Whilst I accept that the contact with some of the complainants was not initiated at your instigation, nonetheless you responded to these vulnerable young females, and took advantage of them. Sending gifts in exchange for sexual images from 13 or 14 year old females is particularly reprehensible. Most concerningly, your contact with two of these girls went beyond online fantasy and extended to you meeting them in person, and later seeking to have them attend your hotel with you for the purposes of sexual activity.

28Your offending was not sophisticated. I accept, as Ms Casey submits, that you made no attempts to disguise yourself online, nor did you provide any false information about yourself. The fact that you are a much older man was evident.  You committed these offences using a Snapchat account in your own name.  You sent gifts to the victims with the return sender details marked with your name and mobile phone number. You provided personal information about yourself and where you lived, to your personal profile, thus allowing you to be detected.

29You did not share the images with anyone else nor did you post them online.

Personal circumstances

30You are now 58 years old and come before the court with no prior criminal history. You were born in Adelaide to parents of Canadian background. Your father was a geophysicist, working for petroleum companies in oil and gas, which required your family to move regularly. This included spending time in Adelaide, Melbourne, the Philippines and Indonesia. You experienced severe bullying in your teens, and often felt ostracised. You had difficulties maintaining intimate relationships. Your father suffered from bowel cancer and passed away when you were aged 22. You were living with your mother and two sisters prior to being remanded for this offending.

31You attended Salisbury and then Box Hill Primary Schools. You attended Mitcham High School up until Form 3, and completed your schooling by attaining the International Baccalaureate at an international school.

32You completed a degree in applied science with a major in geology at Perth University. You commenced a Post-graduate PhD at Monash University, however, did not complete this following ill-health and a diagnosis of schizophrenia.

33Your employment history includes several jobs, including working as a researcher for Monash University. Following this, you started your own business designing and selling software programs related to mining and geology, which you conducted until your arrest in June 2020.

34You gave something of an account of the offending to forensic psychiatrist, Dr Pandurangi. In your late 40s you visited several online dating websites where you had conversations with adult females which were often sexualised and involved the exchange of explicit photographs. In November 2019 you discovered Snapchat, which you initially believed was a dating or social networking app. At the time of this offending, your mental health had deteriorated and you were sleeping poorly.  In the 12 months prior to your incarceration, your alcohol use significantly increased, which you attribute to peer pressure during online chats where participants would talk about drinking.  You began chatting to the teenage victims online and purportedly used the communication as a distraction to escape the pain of your mental and physical illness. According to what you told Dr Pandurangi, you deluded yourself that they were adults.

Mental Health

35You have a long-standing diagnosis of schizophrenia. Your first contact with the public mental health service was in the mid-1980s when you were 21 years old.  You had been hospitalised to a psychiatric unit and commenced on antipsychotic medications. There were further psychiatric hospitalisations in 2003 and 2004.  A further psychiatric admission took place in May 2019 when you displayed florid psychotic symptoms in the context of a move to Leopold and ceasing medication for four months. There was further contact with Barwon Health in June, July and August 2019. Whilst in custody, you have spent time at Thomas Embling hospital in August 2021 when you were certified under the Mental Health Act.

36Tendered on your plea was a report by Dr Prashant Pandurangi dated 5 April 2022.  Dr Pandurangi had regard to reports prepared by psychologist Dr Mathew Barth, dated 14 December 2020; neuropsychologist Anna McLaren, dated 14 June 2021; and psychologist Jeffrey Cummins, dated 21 October 2021.  Dr Pandurangi also had access to your Justice Health communications between June 2020 and March 2021 and other relevant documentation.

37Dr Pandurangi notes that you developed paranoid psychotic illness in your early 20s and since then you have been in contact with mental health services. You have had long periods of mental health stability during which time you were able to run a business and support your family. Your psychiatric hospitalisations have been in the context of changes to your medication or non-adherence to the prescribed treatment. Dr Pandurangi has confirmed a diagnosis of paranoid schizophrenia. When unwell, you present with persecutory and bizarre delusions; perceptual disturbances; and disorganised, sexualised or hostile behaviours.  There is some evidence of negative symptoms and cognitive deficits, which is attributable to your underlying chronic mental illness.

38Dr Pandurangi notes that there is no indication to suggest that you suffer from paedophilic disorder.  In Dr Pandurangi’s view, the nature of your offences could be considered more as a type of sexual solicitation; that is, individuals who use internet technologies to commit their offending, rather than typically viewing child exploitation materials online, which could have proceeded to a contact offending.

39Dr Pandurangi is of the view that your offending occurred due to a combination of distal factors such as enduring mental illness, lack of stable or mature age appropriate relationships, and deficits in social functioning; and more proximal factors, such as your attempts to establish a casual relationship through dating sites, disinhibiting effects of alcohol and potential deterioration in mental health and chance events.

40Opining that you were clearly suffering from schizophrenia at the time of the offending, Dr Pandurangi notes that there is no clear evidence available which indicates a direct or causal relationship between your underlying mental illness and the offending, but he considers the offending is most likely reflective of the disabling effects of a chronic and enduring mental illness, informed deficits in social functioning, isolation, negative symptoms and an inability to form intimate relationships.  Accepting that your mental health had deteriorated at the time, in Dr Pandurangi’s view, it would have significantly contributed, along with the disinhibiting effects of alcohol, to a poor judgement and ability to make reasoned decisions.

41Your counsel, Ms Casey submits that the principles in R v Verdins[5] are enlivened here and that all six limbs have application. The prosecution do not take issue with this and accepts that the diagnosis of paranoid schizophrenia could causally be linked, indirectly, to the offending. However, as Ms Skoblar, on behalf of the prosecution, notes, you were aware that your conduct was wrong and you engaged in the conduct over an extended period in an organised and persistent way.

[5] [2007] VSCA 62.

42Given the causal link, I accept that there should be some moderation of general deterrence.  I accept that your paranoid schizophrenia has made imprisonment more burdensome, specifically resulting in you having difficulties interacting and engaging with other prisoners. Imprisonment has meant that you have been unable to participate in treatment programs that would otherwise have been available to you. Furthermore, I accept, and the prosecution concedes, that there is a serious risk that your condition will deteriorate during the course of a lengthy custodial sentence, given your history in custody. I take this into account and moderate your sentence accordingly.

43Dr Pandurangi opines that you are likely to need assertive and ongoing treatment of your schizophrenia, and that you require close monitoring of your mental health, compliance with medications and any associated side-effects.

Prospects of Rehabilitation

44Dr Pandurangi considers you to be at low risk of similar sexual reoffending. Regarding risk of future sexual violence, you would be currently considered a low priority; that is, in terms of the level of intervention required to prevent sexual violence.  You pose a low risk of serious harm and you do not pose an imminent risk.

45According to Dr Pandurangi, upon your release from custody, you would need a referral to either a local public mental health service or to a private psychiatrist.  Dr Pandurangi recommends this be through Corrections Victoria’s Forensic Intervention Service (FIS) to determine your suitability for their programs.  Given your risk profile, it is unlikely you would be suitable for the mainstream group sex offender treatment program and may benefit more from an individualised psychological treatment, focusing on your motivations for the offending.

46The prosecution submits that whilst there are reasonable prospects of rehabilitation, that I should view your prospects with some caution given your limited explanation for the offending and the length of time over which it occurred.  A court sentencing a Federal offender for a Commonwealth child sex offence must take into account the objective of rehabilitation on the basis of what is relevant and known to the court; namely, whether it is appropriate when making an order, to impose any conditions about rehabilitation or treatment options; and whether it is appropriate, in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program.

47As I will discuss in a moment, your counsel concedes that a term of imprisonment is appropriate. Ms Casey, on your behalf, submits that you ought be immediately released on a recognisance release order pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth). Given your mental health issue, it is submitted that the conditions on the recognisance release order should focus on treatment conditions, including mental health treatment and monitoring, and further programs to reduce your risk of re-offending.

48I agree that your ongoing treatment and rehabilitation is an important consideration, and that this will be relevant when having regard to the need to protect the community. The prosecution submits that an immediate term of imprisonment is warranted. During the oral hearing, the prosecutor, Ms. Skoblar, submitted that a sentence which would ultimately involve you being released upon a recognisance release order would be within range.  I am satisfied here that only a sentence involving imprisonment is appropriate.

49I ordered an assessment pursuant to section 20(1)(b) of the Act to determine your suitability for a recognisance release order with the imposition of a number of conditions. That assessment, prepared by Ms Kuang on behalf of Community Correctional Services, is dated 13 April 2022. A Mental Health Advice and Response Service report has not been prepared as I am told it only extends to state matters. I understand that Forensicare can provide treatment but will not do so in a supervisory capacity.

50You have been assessed as a low risk of general re-offending. This is in light of your lack of prior criminal history and your willingness to engage in therapeutic treatment.  A number of conditions have been recommended, including supervision, treatment and rehabilitation with respect to alcohol use, treatment and rehabilitation with respect to your mental health, and an offence-specific program is endorsed.

51I have heard further submissions from the parties in response to this assessment.  Ms Casey submits that I need not mandate Corrections to supervise you, given that you are a low risk of re-offending, and the specific treatment required, bearing in mind your mental health considerations.  The prosecution does not urge me to do otherwise.

52Given that this is your first and only contact with the criminal justice system, I am of the view that you have very good prospects of rehabilitation, particularly if you are able to continue to receive appropriate mental health treatment, and with the benefit of suitable programs.  I will return to this in a moment.

Plea of Guilty

53I take into account your plea of guilty. This was a plea entered at the earliest opportunity, and is of significant utilitarian value. You have spared the community the significant expense of a trial and, importantly, you have spared the victims the ordeal of having to give evidence. Your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of your remorse.

54Your plea of guilty has an additional value, given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[6] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. Your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence, both for your plea of guilty itself and taking into account that this plea has occurred during the pandemic.

[6] [2021] VSCA 169.

Time on Remand during Covid-19 Pandemic

55You have been in custody since your arrest on 25 June 2020. All of your pre-sentence detention has been served during the COVID-19 pandemic. You have been in quarantine due to prison placements and transfers, and have experienced the difficulty of being in custody during a pandemic. There has been a suspension of personal visits and there have been few courses available to prisoners whilst in custody. It is submitted, and I accept, that your time in custody has been made more difficult as a result of the restrictions related to COVID-19.  I take this into account.

56You have also experienced additional difficulties in custody, including bullying by other prisoners, and you have been assaulted in custody.  By April 2021, you had ceased your antipsychotic medication and you were ultimately transferred to Thomas Embling.

Relevant sentencing factors

57The basic purposes for which a court may impose a sentence are just punishment; deterrence, both specific and general; rehabilitation; denunciation, and protection of the community. I have regard to the factors set out in section 16(2) of the Crimes Act 1914 (Cth).

58The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I am to have regard to the protection of the complainant.  I also have regard to principles of parsimony.

59The prosecution submits that specific deterrence is a relevant sentencing consideration in this matter.  Whilst you do not have any prior criminal history, the offending here occurred over an extended period of time.  As the prosecution points out, there was an escalation in the seriousness of the offending and you only ceased your offending upon police detection.  The sentence I impose must deter you from re-offending.

60General deterrence is an important sentencing consideration for the reasons that I have already outlined.  Those who might be tempted to engage in similar conduct must understand that online sexual communication with children, involving procuring or the sending or receiving of explicit material, will not be tolerated.

61Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.

Current Sentencing Practices

62I have had regard to current sentencing practices. A table of comparative sentences has been provided by the prosecution. The table includes sentences imposed in matters involving offences against section 474.26(1) of the Commonwealth Criminal Code.  It contains decisions of appellate courts reviewing sentences imposed for procuring child pornography, transmitting an indecent communication and/or using a carriage service to groom a person under 16, in circumstances where the matter proceeded as a plea of guilty.  Of course, no two matters are alike, but to the extent to which they inform me as to current sentencing practices, they have been useful, and for the purposes identified in Pham v The Queen..[7]

[7] (2015) 256 CLR 550.

Totality and Proportionality

63The offences to which you have pleaded guilty involve distinct and serious conduct, against four complainants.  I accept the prosecution submission that there should be some degree of cumulation between the offending involving each of the four victims.  However, I am mindful of the need to consider principles of totality and to impose a sentence that is just and proportionate.  Accordingly, my intention is to have a considerable degree of concurrency between Charges 3 and 4, involving the same victim, Adele; and charges 5 and 6, involving the same victim, Monique.

Sentence

64I now turn to the sentence that I am going to impose and I am going to ask that a table of that sentence be sent to both counsel so that you can check it as I go through it.

65On Charge 1, use carriage service for sexual activity with person under 16, you are convicted and sentenced to 4 months' imprisonment.

66On Charge 2, use carriage service to cause child abuse material to be transmitted, you are convicted and sentenced to 6 months' imprisonment.

67On Charge 3, use carriage service to cause child abuse material to be transmitted, you are convicted and sentenced to 10 months' imprisonment.

68On charge 4, use carriage service to procure a person under 16 for sexual activity, you are convicted and sentenced to 15 months' imprisonment.

69On Charge 5, use carriage service to cause child abuse material to be transmitted, you are convicted and sentenced to 12 months' imprisonment.

70On Charge 6, use carriage service to procure a person under 16 for sexual activity, you are convicted and sentenced to 15 months' imprisonment

71Charge 6 will be the base sentence.

72I order that 1 month on Charge 1 be cumulative on the sentence imposed on Charges, 2, 3, 4 ,5 and 6.

73I order that 3 months on Charge 2 be cumulative on Charges 1, 3, 4, 5 and 6.

74I order that 4 months on Charge 3 be cumulative on Charges 1, 2, 4, 5, and 6.

75I order that 8 months on Charge 4 be cumulative on Charges 1, 2, 3, 5 and 6.

76I order that 4 months on Charge 5 be cumulative on Charges 1, 2, 3, 4 and 6.

77The total effective sentence is therefore 35 months' imprisonment.

78The sentence on Charge 6 is to commence today.

79The sentence on Charge 1 is to commence 3 months before the expiration of the sentence on Charge 6.

80The sentence on Charge 2 is to commence 3 months before the expiration of the sentence on Charge 1.

81The sentence on Charge 3 is to commence 6 months before the expiration of the sentence on Charge 2.

82The sentence on Charge 4 is to commence 7 months before the expiration of the sentence on Charge 3.

83The sentence on Charge 5 is to commence 8 months before the expiration of the sentence on Charge 4.

84I direct that you be released after serving 673 days in gaol, upon you entering into a recognisance in the sum of $500, to comply with the following conditions

·that you are to be of good behaviour for 18 months;

·that you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee, for 18 months;

·that you attend for assessment and, if assessed as suitable, attend sex offender treatment program or programs to reduce re-offending, as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee;

·that you are to attend for mental health treatment as directed by the Deputy Commissioner, Community Correctional Services and/or his nominee.

85The recognisance release order is for 18 months.

86I declare 673 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered into the records of the court and that the period be deducted administratively.

87Now, no doubt, Mr Kanen, your counsel will explain to you what the effect of my order is, but, in effect, you have been sentenced to a total effective sentence of 35 months in gaol, but you are to be released after serving 673 days in custody upon your entering into a recognisance release order.  As I have said, the recognisance release order is in the amount of $500, but you do not have to pay the $500 at the time of entering the recognisance release order.  That $500 would be forfeited if you were to breach the order. 

88Now, the order requires you to be of good behaviour for a period of 18 months, and that order also requires you to comply with a number of conditions, as I have read out. 

89Now, Mr Kanen, as I have said, there are a number of conditions imposed on the order, which you must comply with.  The period of 673 days is the period that has been imposed as being the minimum period before release on the recognisance release order, and I take into account that you have already served 573 days.  So the effect of it is that, upon you entering into the recognisance release order, you would be released from custody immediately.  Do you understand what I’ve said to you, Mr Kanen?

90OFFENDER:  Yes, Your Honour.

91HER HONOUR:  All right.  Now, in relation to my intention, I will make it clear that although one of the conditions is that you are to be under the supervision of the Deputy Commissioner, Community Correction Services and Sex Offender Management or his nominee for 18 months, that is in relation to the Deputy Commissioner having the power to direct and supervise the order itself and it is not my intention to order that you attend for supervision. 

92Now, turning to the Sex Offenders Registration Act, all six charges on the indictment are Class 2 offences, and accordingly, pursuant to section 34(1C) of the Sex Offenders Registration Act, the reporting period is required for life.

93I make the order for forfeiture sought, which I understand is by consent. 

94But for your plea of guilty, I would have sentenced you to four years and three months’ imprisonment, with a non-parole period of three years and three months' imprisonment. 

- - -