Director of Public Prosecutions (Cth) v Knipe

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0087

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	Appellant
v
STEPHEN JAMES KNIPE	Respondent

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JUDGES:	PRIEST, BEACH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2025
DATE OF JUDGMENT:	18 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 228
JUDGMENT APPEALED FROM:	[2024] VCC 207 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Respondent convicted of 13 charges of grooming a person to procure a child to engage in sexual activity outside Australia, 4 charges of procuring a child to engage in sexual activity outside Australia, 8 charges of using carriage service to solicit and transmit child abuse materials, 2 charges of possessing child abuse material obtained using a carriage service and 2 related summary bail offences – Sentenced to total effective sentence of 3 years and 10 months’ imprisonment with non-parole period of 2 years and 8 months’ imprisonment – Whether individual and aggregate sentences manifestly inadequate – Whether total effective sentence and non-parole period manifestly inadequate – Whether Verdins limbs 1–3 applicable – Whether respondent could identify children he sought to procure for sexual activity – High gravity of offending – Aggregate and individual sentences fail to reflect overall criminality – No basis to find respondent diagnosed with paedophilic disorder – Error to reduce moral culpability because of paedophilic disorder – No basis to extend mercy – Aggregate and individual sentences manifestly inadequate – Total effective sentence and non-parole period manifestly inadequate – Appeal allowed – Respondent resentenced to total effective sentence of 7 years 6 months’ imprisonment.

Criminal Code Act 1995 (Cth) ss 272.14(1), 272.15A(1), 272.30(1)(b), 474.22(1), 474.22A(1), sch 1; Crimes Act 1914 (Cth), ss 16B; Criminal Procedure Act 2009, s 287.

DPP v Karazisis (2010) 31 VR 634; R v Gajjar (2008) 192 A Crim R 76, followed.

Verdins v The Queen (2007) 16 VR 269; Brown v The Queen (2020) 62 VR 491; Ryan v The Queen (2001) 206 CLR 267, discussed.

Dinsdale v The Queen (2000) 202 CLR 321; DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69; DPP (Cth) v Walls [2014] VSCA 323; DPP v EB (2008) 186 A Crim R 314; DPP v Snow(a pseudonym) [2020] VSCA 67; DPP v Frewstal Pty Ltd (2015) 47 VR 660; Guode v The Queen [2020] VSCA 257; Leimonitis v The Queen [2018] VSCA 198; R v Major (1998) 70 SASR 488; The State of Western Australia v Collier (2007) 178 A Crim R 310, referred to.

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Counsel
Appellant:		Ms R Sharp KC DPP (Cth) with Mr J Manning
Respondent:		Mr P Kounnas
Solicitors
Appellant:	Mr M de Crespigny, Commonwealth Solicitor for Public Prosecutions
Respondent:	Gallant Law

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PRIEST JA:
BEACH JA:
TAYLOR JA:

On 8 February 2024 the respondent pleaded guilty to an indictment containing 27 charges of child sexual offending. These were:
•13 charges of grooming a person to make it easier to engage in sexual activity with a child outside Australia[1] (charges 1 – 3, 5, 6, 9 –11, 14, 15, 17, 18 and 20).
•4 charges of procuring a child to engage in sexual activity outside Australia[2] (charges 4, 19, 21 and 22).
•2 charges of using a carriage service to solicit child abuse material[3] (charges 24 and 25).
•2 charges of using a carriage service to transmit child abuse material[4] (charges 8 and 12).
•2 charges of using a carriage service to solicit and transmit child abuse material (charges 7 and 26).
•2 charges of using a carriage service to solicit and transmit child abuse material and cause child abuse material to be transmitted to himself[5] (charges 13 and 16).
•2 charges of possessing or controlling child abuse material obtained or accessed using a carriage service[6] (charges 23 and 27).
[1]Contrary to s 272.15A(1) of the Criminal Code (Cth).
[2]Contrary to s 272.14(1) of the Criminal Code.
[3]Contrary to s 474.22(1) of the Criminal Code.
[4]Contrary to s 474.22(1) of the Criminal Code.
[5]Contrary to s 474.22(1) of the Criminal Code.
[6]Contrary to s 474.22A(1) of the Criminal Code.
Two further offences of grooming a person to make it easier to engage in sexual activity with a child outside Australia were taken into account pursuant to s 16B of the Crimes Act 1914 (Cth) (‘scheduled offences’).
The respondent also pleaded guilty to two related summary offences, namely committing an indictable offence whilst on bail[7] and contravening a condition of bail without reasonable excuse.[8]
[7]Contrary to s 30B of the Bail Act 1977.
[8]Contrary to s 30A(1) of the Bail Act, as at 29 March 2023. The respondent was convicted and discharged on both summary offences.
On 19 April 2014 the respondent was sentenced[9] as follows:
[9]DPP (Cth) v Knipe [2024] VCC 207 (Judge McInerney) (‘Reasons’).

Charge	Offence	Max Penalty	Sentence	Commencement
1, 3, 6, 9, 10, 11, 14, 15, 17, 18, 20	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year aggregate	19 June 2026
2, 5	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 2 months aggregate	19 June 2026
4, 19	Procure a child to engage in sexual activity outside Australia	15 years	1 year 4 months aggregate	19 October 2026
7	Use a carriage service to solicit and transmit child abuse material	15 years	1 year	19 January 2026
8	Use a carriage service to transmit child abuse material	15 years	1 year	19 January 2026
12	Use a carriage service to transmit child abuse material	15 years	1 year	19 January 2026
13	Use a carriage service to solicit and transmit child abuse material and cause child abuse material to be transmitted to himself	15 years	1 year	19 January 2026
16	Use a carriage service to solicit and transmit child abuse material and cause child abuse material to be transmitted to himself	15 years	1 year	19 February 2026
21, 22	Procure a child to engage in sexual activity outside Australia	15 years	1 year 2 months aggregate	19 October 2026
23	Possess or control child abuse material obtained or accessed using a carriage service	15 years	2 years	19 April 2024
24	Use a carriage service to solicit child abuse material	15 years	1 year 6 months	19 May 2025
25	Use a carriage service to solicit child abuse material	15 years	1 year 6 months	19 June 2025
26	Use a carriage service to solicit and transmit child abuse material	15 years	1 year 6 months	19 July 2025
27	Possess or control child abuse material obtained or accessed using a carriage service	15 years	2 years 6 months	19 April 2024 (Base)
Total Effective Sentence (Cth):		3 years 10 months
Non-Parole Period:		2 years 8 months
Pre-sentence Detention Declared:		387 days
Section 6AAA Statement:		Total Effective Sentence 5 years Non Parole-Period 3 years 6 months
Other Relevant Orders: 1. Sentenced as a registrable offender. Length of the reporting period is Life.[10] 2. Parole authority to implement treatment recommendations to the degree it is able.

[10]Pursuant to s 34 of the Sex Offenders Registration Act 2004.

On 17 May 2024 the Director of Public Prosecutions for the Commonwealth of Australia filed a Notice of Appeal containing three grounds. At the hearing of the appeal the Director was given leave to add a fourth ground. Accordingly the grounds of appeal are:
1.The individual sentences on charges 7, 8, 12, 13 and 16, the four aggregate sentences, the total effective sentence and the non-parole period are manifestly inadequate.
2.The learned sentencing judge erred by applying and taking into account the first, second and third of the [limbs] in R v Verdins[11], because either:
[11](2007) 16 VR 269 (‘Verdins’); [2007] VSCA 102.
(a)the respondent’s paedophilic disorder, mild personality disorder, and/or mild depressive disorder were not a proper basis for the invocation of the [limbs]; or
(b)any reduction in the sentence by the application of the [limbs] was offset by the need for community protection.
3.The learned sentencing judge erred by finding that the respondent would not have been able to identify any child with or about whom he communicated.
4.The learned sentencing judge erred by imposing an aggregate sentence on:
(a)charges 1, 3, 6, 9, 10, 11, 14, 15, 17, 18 and 20 (the First Aggregate);
(b)      charges 2 and 5 (the Second Aggregate);
(c)      charges 4 and 19 (the Third Aggregate); and/or
(d)     charges 21 and 22 (the Fourth Aggregate).
The Director argued grounds 2 to 4 as particulars of ground 1. We adopt the same approach.
For the reasons that follow ground 1 should succeed. The appeal should be allowed and the respondent resentenced in the manner indicated in paragraph [105].

The offending

The offending relates largely to the respondent’s online communications. It fell into two distinct periods, demarcated by the respondent’s first arrest.
The conduct relevant to charges 1 – 22 occurred between 8 June and 12 September 2022. During this period the respondent used Facebook Messenger to communicate with adults and children located in the Philippines.
The scheduled offences occurred in that timeframe and in relation to the mothers of the children connected with charges 4 and 19.
On 15 September 2022 members of the Australian Federal Police (‘AFP’) executed a search warrant at the respondent’s home. His iPhone and iPad were seized. Upon later analysis a total of 66 images and videos containing child abuse material were located (charge 23). The respondent was charged and admitted to bail.
The conduct relevant to charges 24 to 26 then occurred between 31 December 2022 and 29 March 2023. This gave rise to the two related summary bail offences. During this period the respondent used both Skype and IMO[12] to communicate with adults and children located in the Philippines.
[12]A free international video call and instant messaging application.
On 29 March 2023 members of the AFP executed a further search warrant at the respondent’s home. Two iPhones were seized. Later analysis revealed five unique files of child abuse material located on one of the phones (charge 27).
The sentencing judge had the benefit of a very detailed Summary of Prosecution Opening which described and extracted portions of the messages exchanged between the respondent and others. The full ‘chats’ were reproduced in an annexure to the Summary.[13] Other annexures described the child abuse material files relevant to charges 23 and 27. It is unnecessary here to repeat the detail of these documents. The following examples suffice to illustrate the offending and understand the reasoning below.
[13]Except for those related to charges 8, 11, 15 and 21 because the totality of the messages supporting those charges appeared in the Summary.
The 13 grooming charges involved the respondent ‘chatting’ with seven different named individuals and one unidentified 16-year-old child with the intention to make it easier to procure five named children and multiple unidentifiable children to engage in sexual activity outside Australia.
For example, charges 5, 10 and 14 involved an intention to make it easier to procure Betcha Evangelista’s 5-year-old daughter to engage in sexual activity outside Australia.
(a)Charge 5 involved the respondent consistently chatting to Betcha Evangelista between 21 June and 7 September 2022. Some examples include:
(i)On 21 June 2022 the respondent asked Betcha if her daughter was still masturbating. He asked for naked pictures of Betcha and her daughter and said he wanted to have sex with her daughter. The respondent requested Betcha to arrange for her daughter to leave him a voice message ‘telling me she wants me fuck her’. He said that he would go to the Philippines and have sex with her daughter while Betcha watched. Betcha asked for money.
(ii)On 23 June the respondent told Betcha that he wanted her daughter ready for sex and described the sexual acts he wished to perform upon her. He told Betcha to keep teaching her.
(iii)On 28 and 29 June 2022 the respondent asked for details to facilitate a money transfer to Betcha. He said she had better give him good sex and asked what he would see when he called later. Betcha described the sexual activity she would engage in with her daughter. The respondent asked if Betcha’s daughter knew how to give a ‘blowjob’ and said he would like to watch her give one to a very young boy.
(iv)On 5 and 6 July 2022 Betcha described sexual acts which she said her daughter performed on a video and provided details for payment of the video.
(v)On 18 July 2022 the respondent asked Betcha if it was true that ‘Ampe’ (being Ampe Dela Cruz who ‘chatted’ with the respondent about Betcha’s 5-year-old daughter relevant to charge 14 and also an unidentified 10–12-year-old girl relevant to charge 17) had engaged in sex with Betcha’s daughter.
(vi)On 16 August 2022 Betcha sent the respondent an unknown attachment following which the respondent made observations from which it might be inferred that he had observed Betcha’s daughter engaged in sexual acts.
(b)Charge 10 involved the respondent consistently chatting to an unidentified 16-year-old female user of Facebook Messenger between 18 and 31 July 2022. Some examples include:
(i)On 18 July 2022 the respondent told the user that he was pleased to meet them and already had a few friends in the Philippines. The respondent asked whether the user had had sex before. She said she was good in bed but had a broken phone. The respondent said that he wanted to get to know her more and ‘then I send you plenty of money’. The respondent asked where in the Philippines the user was located. He told her where his friend and daughter were located and asked if the user would like to ‘try a girl’. The user agreed. The respondent said he would help fix her phone, give her bus money and, after she had had sex with the mother and daughter, giver her ‘10k’. He said that his friend’s daughter was ‘very very horny sweetheart for her age’ and was ‘only 5’.
(ii)On 19 July 2022 the respondent asked if the user would have sex with Betcha’s daughter saying ‘she very young but like sex already’. They discussed the sexual acts the user would engage in with the child.
(iii)On 26 July 2022 the respondent suggested that the user could teach Betcha’s daughter how to give a ‘blowjob’ and asked her to visit Betcha’s house as soon as she had the money.
(iv)On 27 July 2022 the respondent said he had sent the money and later provided a reference number.
(c)Charge 14 involved the respondent consistently chatting to Ampe Dela Cruz between 3 August and 19 August 2022. Some examples include:
(i)On 3 August 2022 the respondent told Ampe that he did not believe that she had engaged in sex with Betcha and her daughter. Ampe said that she had. The respondent asked for details.
(ii)On 4 August 2022 the respondent said he was going to the Philippines in October for 10 days and nominated the hotel at which he would be staying. He said that Betcha and her daughter would meet him there.
(iii)On 5 August 2022 the respondent told Ampe that he wanted to see her, Betcha and Betcha’s daughter. He told her not to get jealous if she watched him have sex with Betcha and her daughter.
(iv)On 7 August 2022 the respondent asked Ampe for details about sexual acts she had performed with Betcha and her daughter
(v)On 12 August 2022 the respondent said he hoped Ampe would do a video for him of sex with Betcha’s daughter. Ampe asked for money. The respondent said ‘Please sweetie not lie to me and I want some really really hot hot sex with Betcha and daughter’. He said that he had sent more money and asked if Ampe would go to Betcha’s house that night.
The four charges of procuring a child to engage in sexual activity outside Australia involved the respondent communicating directly with four identified children with the intention of procuring each child to engage in sexual activity outside Australia either with the respondent online and/or physically with others. In short:
(a)The charge 4 offending involved communications between the respondent and a 9 to 10-year-old girl between 20 June and 2 September 2022. (His communications with her mother formed the grooming relevant to the first scheduled offence.)
(b)The charge 19 offending involved communications between the respondent and a 12-year-old girl between 25 August and 2 September 2022. (His communications with the girl’s mother formed the grooming relevant to charge 18 and the second scheduled offence.)
(c)The charge 21 offending involved communications between the respondent and either the 8 or 15-year-old daughter of Ann Santiago on 9 September 2022 in which he procured the child to engage in sexual activity with another child, record the activity and send the video to him. (The respondent’s communications with the girl’s mother formed the use of carriage service for child abuse material relevant to charge 13.)
(d)The charge 22 offending involved communications between the respondent and a 14-year-old girl between 10 and 12 September 2022.
The two charges of using a carriage service to solicit child abuse material related to two single dates. On 31 December 2022 the respondent used Skype to communicate with Mavis Gyimah to ask ‘what’s the youngest boy you sex with? Do you have a fantasy sex a very young boy?’ (charge 24). On 2 March 2023 the respondent used IMO to communicate with a user who identified as a 16-year-old girl. She asked for ‘3k’. The respondent sent a receipt for the transfer of the money. He then asked that she tell him ‘something hot and sex you have done sweetie’ and also asked ‘have you any pictures you sweetheart please’ (charge 25).
The two charges of using a carriage service to transmit child abuse material involved the respondent transmitting text-based child abuse material. On 8 July 2022 he used Facebook Messenger to describe to Jhena Gojo Cruz that he had had ‘very nice very hot sex’ in Manila with a 10-year-old girl and her mother (charge 8). Between 26 July and 13 August 2022 the respondent told Maria Bielgo how he had had sex with his aunt’s 11-year-old daughter (charge 12).
The three charges of using a carriage service to solicit and transmit child abuse material and cause child abuse material to be transmitted again involved mostly text-based child abuse material via Facebook Messenger.
(a)Between 1 July and 14 August 2022 the respondent communicated with Haruko Yamdad. Each described to the other sexual activities with children, namely a 15-year-old and 12-year-old. The respondent said he had never had sex with a 10-year-old but wanted to with Haruko (charge 7).
(b)Between 28 July and 12 September 2022 the respondent communicated with Ann Santiago (whose daughter was the subject of charges 15 and 21). The respondent said his dream was to have sex with Ann Santiago’s daughter once. He asked her to sell him videos of her daughters. The respondent also made multiple requests for ‘hot pictures’ of the daughters (charge 13).
(c)Between 18 August and 9 September 2022 the respondent communicated with Abby Nebres. The respondent said that he was always masturbating while thinking of her or a very young girl. They also exchanged descriptions of children engaged in sexual activity as the ‘kind of porn [that] makes you really horny’. On 7 September 2022 Nebres sent the respondent an unknown file. In the chat that followed Nebres said that the boy was ‘so young’ and was her son. The respondent asked Nebres to make up a story about her son having sex with her (charge 16).

The two charges of possessing or controlling child abuse material obtained or accessed using a carriage service related to the images and videos found on the respondent’s iPhones and iPad on each occasion he was arrested.
(a)The material located on 15 September 2022 included images of the genitals of prepubescent and peri-pubescent girls and videos depicting various acts of sexual penetration by adults upon prepubescent girls (charge 23).
(b)The material located on 29 March 2023 included images of the genitals of prepubescent of girls and videos depicting the genitals of a prepubescent girl and sexual activity between an adult male and a prepubescent girl (charge 27).

The plea hearing

The matter was listed for plea on 8 February 2024.
In advance of that date both parties filed written sentencing submissions. The respondent also filed a ‘Psychological Court Report’ dated 5 January 2024 authored by Simon Candlish, a consultant psychologist. That report included the following (emphasis added):
(a)Under a subheading ‘Level of Personality Functioning Scale’ Mr Candlish said that the respondent reveals mild disturbance in his sense of self with a chronic sense of inadequacy and behaviours that serve to maintain this perspective.
(b)Under a subheading ‘Sexual deviance’ Mr Candlish wrote:
[The respondent’s] sexual offending and the nature of his behaviours and disclosures reveals a sexually deviant arousal to children. The extent of his interests and persistence is suggestive of a paedophilic disorder. He has no known history of contact sexual offending against children. He has described an arousal to adult females, although he has never acted on this apparent sexual interest, seemingly due to issues related to his sexual issues and personality impairment.
(c)Under a subheading ‘The nature, extent and effect of the condition experience by [the respondent] at the time?’ in the ‘Opinion’ segment of his report, Mr Candlish wrote ‘[The respondent] had a mild depressive disorder and a personality disorder of mild severity at the time. He also developed a paedophilic disorder.’
(d)Immediately following, under a subheading ‘What the relationship is, if any, between [the respondent’s] condition and the offending?’ Mr Candlish wrote:
[The respondent’s] personality impairment has contributed to avoidant behaviour, social issues, social withdrawal and low mood. These social and avoidance-based issues have led to greater reliance on internet pornography and sexualised communications online. He has used online sexual activity as an alternative to actual sexual contact with adult females as well as to manage his low mood. His sustained immersion in online sexual activity and his lack of psychological sophistication and awareness have contributed to a worsening of this behaviour and ultimately his offending. These issues have contributed to a more insular lifestyle, reducing his empathic regard and consequential thinking skills. His personality and mood issues have reduced his capacity for self-restraint regarding deviant arousal.
(e)Under a subheading ‘Psychological intervention’ in the ‘Intervention Recommendations’ segment of the report, Mr Candlish made no recommendation for specific sex offender or specific paedophilia treatment.
The respondent’s written sentencing submissions expressly stated that Mr Candlish’s report did not contain a diagnosis of paedophilic disorder. Moreover they did not advance an argument that any Verdins limb was enlivened by it.
In those circumstances the prosecution did not seek that Mr Candlish be made available for cross-examination.
In oral argument on 8 February 2024 the prosecution submitted, somewhat surprisingly, that the respondent had a paedophilic disorder. The respondent’s counsel submitted that Mr Candlish’s report was ‘somewhat indecisive’ and the diagnostic label of paedophilic disorder had not been substantiated. No submission was made as to the applicability of limbs 1, 2, 3, 4 or 6 of Verdins.
It was put that Verdins limb 5 was enlivened. That submission was not resisted by the prosecutor, but that Mr Candlish had identified only a mild personality disorder was argued to be relevant to the weight it should be given.
The matter was then adjourned to 19 April 2024 for sentence.
On 6 March 2024 the judge caused an email to be sent to the parties seeking further submissions about a number of matters, including one expressed as follows:
His Honour has considered Verdins [limbs] one, two and three and is tentatively of the view, subject to hearing submissions, that a combination of [the respondent’s] personality conditions and paedophilic disorder is such as to bring these [limbs] into operation, in particular given the enlightenment as to such principles provided by the Court of Appeal in Brown v The Queen[14]… [5] and [69].
[14](2020) 62 VR 491 (‘Brown’); [2020] VSCA 212.
On 4 April 2024 the prosecution filed written supplementary sentencing submissions. With respect to operation of the Verdins limbs, the prosecution first noted the respondent’s disavowal of a diagnosis of paedophilic disorder in Mr Candlish’s report. As to his personality disorder, the prosecution submitted that it was said to be of mild severity but, more particularly, Mr Candlish was unable to establish a causal link between the respondent’s personality disorder and the offending. It was put that while his personality issues were to be taken into account as part of his personal circumstances and context of the offending, they did not explain the respondent’s deviant sexual interest in children. With reference to authority, the prosecution next argued that paedophilia is not a disorder which provides a reason to mitigate sentence for sexual offending against children.[15] Finally, with reference to Brown, the prosecution submitted that even if a mental impairment was found to have causal significance to the offending, a reduction in moral culpability may point to a heightened need for community protection.
[15]The prosecution referred to R v Guider [2002] NSWSC 756; Ryan v The Queen (2001) 206 CLR 267 (‘Ryan’); [2001] HCA 21; DPP v OJA & Ors (2007) 172 A Crim R 181; DPP v EB (2008) 186 A Crim R 314 and WCB v R (2010) 29 VR 483.
Another matter raised by the judge in the email was that he was tentatively considering a series of aggregate sentences. The prosecution supplementary written submissions noted that the judge had the power to impose (an) aggregate sentence or sentences but argued that it would be inappropriate to do so. The reasons advanced were that individual sentences would: avoid opacity, particularly for rolled-up charges; allow for a separate assessment of gravity for each offence, all of which involved separate victims and distinct criminality; and better serve as comparable sentences throughout the Commonwealth, thereby having higher deterrent value.
The respondent did not file any supplementary written submissions.
On 11 April 2024 the matter was mentioned before the judge. The following exchange occurred between the judge and the prosecutor:
His Honour:    Well the paedophilic disorder seems to me can still come up as part of Verdins. The question is the balancing.
[Prosecutor]:    Matter for Your Honour, of course.
His Honour:    I understand the evidence and I see the authorities that you put to me.
[Prosecutor]:    Yes.
His Honour:    But it seems to me on the principles of [Brown], paedophilic disorder is clearly part of it and in my view, the old principles of what would the community think if we took this into account, that’s gone.
[Prosecutor]:    That’s not the Crown position but I understand what Your Honour’s saying.
The respondent’s counsel argued that Brown had ‘overtaken’ the authorities referred to in the written prosecution supplementary sentencing submissions. It was put that ‘contemporary thinking’ had moved on and Brown was a clear statement of the way such matters should be considered.

Sentencing Remarks

In his sentencing remarks the judge initially described the gravity of the offending as objectively ‘most serious’, involving the breach of Australian laws designed to prevent predatory Australian nationals using the economic deprivation and disadvantage of foreign nationals to achieve their sexual desires.[16] That description was later augmented by other observations and findings:
[16]Reasons, [8].
(a)The offending lacked sophistication. It could be, and was, easily detected.[17]
[17]Reasons, [43].
(b)The sexual activity relevant to the grooming and procuring charges was to be ‘remote or online sex’ as there was no evidence of the respondent ever going to the Philippines or any other country.[18]
[18]Reasons, [9]–[10], [50].
(c)One had to be ‘particularly suspect of the participants and their role’ in the grooming and procurement charges.[19]
[19]Reasons, [59].
(d)The respondent engaged in the chats relevant to the grooming charges in order to create sexual excitement for himself. He ‘indulged in an expansive and detailed undertaking’ to achieve sexual arousal. The chats are an ‘unreal, intricate and sustained situation of pretence’ created by the respondent’s personal inadequacies.[20]
[20]Reasons, [30].
(e)Five[21] files were exchanged during the chats relevant to the grooming charges. One of him masturbating (charge 19), two of a vagina (charges 1 and 4) and one of his penis along with an unknown file (charge 10). These were put as matters of context only.[22]
[21]Reasons, [31]. The judge referred to four files, but detailed five.
[22]Reasons, [31].
(f)On at least 10 occasions during the chats relevant to the grooming charges the respondent had forwarded monies, but ‘regularly bemoan[ed]’ that he was being used and lied to.[23]
[23]Reasons, [32].
(g)The respondent knew that his ‘limited financial funding’ would have assisted his cause, but this needed to be ‘kept in perspective.’[24]
[24]Reasons, [44].
(h)The prosecution submission with respect to the procuring charges (charges 4, 19, 21 and 22) that it was an irresistible inference that the respondent viewed photographs, video or video chat of persons or children the subject of the discussion had not been proven beyond reasonable doubt.[25]
[25]Reasons, [27].
(i)With respect to the procuring charges, the respondent would not have been able to identify any child he was communicating with.[26]
[26]Reasons, [33]. This finding was made beyond reasonable doubt.
(j)The judge had ‘strong doubts’, despite the respondent’s pleas of guilty, that the alleged child recipients in the four procuring charges were in fact children.[27]
[27]Reasons, [49].
(k)That the children involved in charges 1, 5, 10, 14, 18 and 29 were represented as being under the age of 10 years. Pursuant to s 272.30(1)(b) of the Criminal Code that was an aggravating factor. As all the other children were aged between 12 and 15, ‘pursuant to the statute such charges do not aggravate the offending.’[28]
(l)The plans discussed in the procuring conversations were never actually fulfilled.[29]
(m)That the transmission of child abuse material involved:
(i)Some ‘low key’ material (charge 8).[30]
(ii)An ‘expression of a desire’ to have sex with a 10 year old (charges 7 and 26).[31]
(iii)The respondent ‘dreaming, hoping, or seeking that there be a “pretence”’ in regard to his desire to have sex with children and a ‘suggestion’ of him masturbating at the same time (charge 26).[32]
(iv)The exchange of ‘sexualised messages’ in which the respondent talked about ‘dreaming’ of sexual activities and engaged in a ‘pretence’ where the recipient would ‘make up a story’ so the respondent could masturbate (charges 13 and 16).[33]
(n)The child abuse material found on the respondent’s devices at the time of both of his arrests three items was level 1, one item was level 6 and the balance were level 4 on the COPINE scale.[34] ‘Importantly’,[35] none of that material could be connected to the grooming, procuring or transmission charges.
[28]Reasons, [24.1(k)].
[29]Reasons, [49].
[30]Reasons, [12].
[31]Reasons, [12].
[32]Reasons, [13].
[33]Reasons, [14].
[34]Reasons, [17].
[35]Reasons, [16].
The respondent’s submissions in mitigation of his sentence were noted by the judge. His offending was described as a ‘fantasy undertaking’.[36] The respondent argued that the principles of totality and concurrency were important and that he should receive a ‘merciful’ sentence.[37] His plea of guilty was characterised as being of utilitarian benefit and entitled him to a Worboyes[38] discount. The respondent had no prior offences.[39] The respondent had an excellent work history.[40] He was a paedophile.[41] His prospects of rehabilitation should be viewed optimistically.[42] Verdins limb 5 was enlivened as a result of his diabetes, a post-stroke medical condition and his personality difficulties.[43] The respondent’s later and further submission that Verdins limbs 1, 2 and 3 were also applicable was referred to.[44]
[36]Reasons, [35].
[37]Reasons, [35], [41].
[38]Worboyes v R [2021] VSCA 169.
[39]Reasons, [37].
[40]Reasons, [41].
[41]Reasons, [38].
[42]Reasons, [39].
[43]Reasons, [40].
[44]Reasons, [42].
The judge described Mr Candlish’s report as being of ‘great assistance’ in understanding the totality of the relevant circumstances.[45] The psychologist’s statement that the respondent had a strong sense of underlying personality inadequacy and had never engaged in prosocial activity was noted, as was the respondent’s lack of social and sexual contact with women. Mr Candlish’s opinion that the respondent used online activity as an alternative to actual sex and to manage mood was accepted.[46] The judge described the paragraph of Mr Candlish’s report which stated that the respondent had a sexually deviant arousal to children suggestive of a paedophilic disorder[47] as an opinion that the respondent had a paedophilic disorder.[48]
[45]Reasons, [21].
[46]Reasons, [23].
[47]See above [23(b)].
[48]Reasons, [22].
Under a subheading ‘Unique case’ the judge described the respondent as ‘a stunted person with no social skills’.[49] The judge found that the ‘use of internet facilities (the crimes in this instance)’ was caused by the combination of the respondent’s mild personality impairment and his paedophilic disorder as they led to a reduction in empathetic regard and consequential thinking skills. In turn those matters led to a reduction in capacity for self-restraint regarding his deviant arousals.[50] The judge said that his ‘rigorous scrutiny’ of the facts and his acceptance of Mr Candlish’s professional opinion led to the conclusion that Verdins limbs 1 to 3 were enlivened.[51] The respondent’s paedophilic disorder could not be disregarded. The judge said ‘[i]t is, in the circumstances of this case, upon the mentality of the person that this Court is dealing with, of vital importance.’[52]
[49]Reasons, [51].
[50]Reasons, [52].
[51]Reasons, [53].
[52]Reasons, [55].
While accepting that community protection was a countervailing sentencing consideration, the judge said that the respondent’s history established that he was ‘not predatory insofar as children are concerned’[53] and his moderate future risk was with respect to the possession of child abuse material and sexualised conversations. Any risk of actual contact with a child was low.[54]
[53]Reasons, [56].
[54]Reasons, [56].
The judge concluded:
I consider the totality of the circumstances here call for understanding by the Court and mercy, and in order to achieve same, appropriate concurrency and cumulation in regard to the sentence of a stunted man with personality defects who comes before the Court at fifty-nine years of age with no prior offending.[55]
[55]Reasons, [61].
In order to achieve ‘such mercy and understanding’[56] the judge determined that he would, where possible, pass aggregate sentences.
[56]Reasons, [62].

Director’s contentions

Ground 1 — manifest inadequacy

As noted above, grounds 2 to 4 were subsumed as particulars of the first ground. It is convenient therefore to detail the arguments relevant to the subsidiary grounds before returning to those in respect of the manifest inadequacy ground.

Ground 2 — Verdins

The Director argues that the judge erred in two respects as to the application of Verdins limbs.
First, the evidence of Mr Candlish as to the respondent’s mild personality impairment and mild depressive disorder did not found a causal connection between the impairment/disorder and the offending.
Secondly, the reduction of the respondent’s moral culpability and associated amelioration of general deterrence was contrary to a clear line of authority unaffected by anything said in Brown.
The Director argues that if a paedophilic disorder could be used to moderate moral culpability and/or general deterrence, it would lead to the result where two relevantly identical offenders charged with identical sexual offending against children would receive different sentences if only one had a diagnosed paedophilic disorder. Moreover extending leniency to an offender on that basis would be contrary to contemporary community attitudes concerning child sexual offending.
The Director submits that the respondent’s paedophilic disorder was relevant to the instinctive sentencing synthesis, but only as a mental condition[57] which provided context for the offending and informed the assessment of the respondent’s prospects of rehabilitation and the need for community protection.

Ground 3 — identification of children

[57]Crimes Act, s 16A(2)(m).

The Director argues that two of the judge’s findings were not open. First, that the respondent would not have been able to identify any child he was in communication with relevant to the four procuring charges. Secondly, that it could not be inferred beyond reasonable doubt that the respondent had viewed photographs, videos or video chats of persons or children the subject of the discussions in the grooming and procuring charges.
As to the first, it is submitted that the respondent, by his pleas of guilty, admitted each element of the four procuring charges including that he intended to procure or make it easier to procure a child or children he believed to be under the age of 16 years. The respondent did not and could not contend otherwise.
As to the second, the Director points to statements in the chats about the respondent’s desire for children of a particular age, along with communications from him immediately after the transmission of a file, that indicate he had viewed images or video of the child purported to be the subject of discussion.
The Director further notes the respondent’s admissions to police following his first arrest included that:
(a)He had been sent pictures of the daughters of the women he had spoken to.
(b)He had received material of young girls naked and a couple performing oral sex.
(c)Half of the material sent to him via Facebook depicted children.
(d)The sent material included images of the sexual penetration of children.
The Director also refers to the evidence that the respondent had told Mr Candlish that the adult females he interacted with would send images of their children ‘standing there playing with themselves’.
The Director submits that as a result of his erroneous findings, the judge failed to correctly assess the respondent’s culpability. His conduct was not confined to text based communications as part of a fantasy, devoid of true appreciation of the children he believed he was targeting. Rather, the respondent sought and received visual depictions of the children he sought. This reinforced his belief that he was procuring children under the age of 16 to engage in sexual activity per ss 272.14(1)(c)(ii) and 272.15(1)(c)(ii) of the Code and informed his intention in sending the communications.
Ground 4 — aggregate sentences

The Director argues that it was inappropriate to impose aggregate sentences in this matter. The nature of the offending was such that individual sentences were called for. The Director further argues that the actual aggregate sentences imposed were, in any event, wholly inadequate, and the basis for the selection of charges grouped within each of the four aggregates was difficult to logically reconcile. The Director argues that each of the aggregate sentences fails to adequately reflect the number of victims or the seriousness of the offending.
The first aggregate sentence of 12 months’ imprisonment encompassed 11 of the 13 grooming charges. Those charges involved Facebook Messenger chats with eight distinct persons. They related to five identified children aged 5, 9, 13, 14 and 15 years old, two specific unidentified children aged 15 and between 10 to 12 years old and multiple unidentified children referred to as a 10-year-old, a ‘young’ girl, ‘really young’ girls, a ‘younger girl’, ‘a very young boy about 12 yr old’, ‘a very young girl’, a ‘10yr old girl’, a boy and girl aged 12 and 13 years, ‘a young boy’ and a ‘young girl 12-15 yr old’. The second aggregate sentence of 14 months’ imprisonment related to the remaining two grooming charges. The third aggregate sentence of 16 months’ imprisonment encompassed the two procuring charges that had associated scheduled offences. The fourth aggregate sentence of 14 months’ imprisonment encompassed the remaining two procuring charges that had no associated scheduled items.

Ground 1 — Manifest inadequacy

The Director argues that the error of manifest inadequacy is clear and egregious. The argument is put on four broad bases.
First, the judge failed to give adequate weight to the seriousness of the offending, particularly the overseas procuring and grooming counts. The Director argues that the intended sexual activity was put before the judge in two ways: online sexual activity between a child and the respondent and remote sexual activity between a child and a person in the Philippines, whether or not the respondent was also present online. The criminal intentions which the respondent admitted to being behind the communications through his pleas of guilty therefore went beyond sexual excitement and masturbation. The judge failed to appreciate the gravamen of the offending or have regard to the purpose of ss 272.15, 272.14, 474.22 and 474.22A of the Code and the mischief they target. The arguments made pursuant to grounds 3 and 4 are relevant to this submission.
Second, the judge failed to have sufficient regard to the prescribed maximum penalties. Each of the offences are punishable by a maximum penalty of 15 years’ imprisonment.
Third, the judge failed to give sufficient weight to the principles of general and specific deterrence, protection of the community, denunciation and just punishment. Again, the arguments made pursuant to grounds 3 and 4 are relevant to this submission.
Fourth, the judge gave too much weight to factors in mitigation including the respondent’s good character, ill health, Verdins limbs and totality. The arguments made pursuant to ground 2 are relevant to this submission.

Respondent’s contentions

The respondent submits that the judge’s sentencing discretion did not miscarry and that none of the complaints of manifest inadequacy are made out.

Ground 2 — Verdins

The respondent argues that the judge was correct to find that Brown displaced the previous line of authority that a paedophilic condition is not a proper basis upon which moderation of an offender’s moral culpability or the need for general deterrence can be effected. While the respondent concedes that his mild depressive disorder and mild personality impairment would not in and of themselves enliven limbs 1 to 3 of Verdins, he argues that ‘read as part of the constellation of disorders alongside the paedophilic disorder’ the judge did not err in his application of the Verdins limbs.

Ground 3 — identification of children

The respondent argues that it was open on the evidence for the judge to be suspicious of the overseas participants in the chats and for that view to inform his broader understanding of the offending.
Alternatively, the respondent argues that even if the errors complained of are established, they had no material bearing on the exercise of the sentencing discretion.
Ground 4 — aggregate sentences
The respondent argues that the imposition of aggregate sentences was appropriate given the similarity of the offending and the need for the total effective sentence to accommodate the principles of parsimony and totality.
Ground 1 — manifest inadequacy
The respondent argues that the sentences may be lenient but they are not manifestly inadequate. It is put that the aggregate sentences, individual sentences and orders for cumulation appropriately synthesise the objective and subjective factors. Further, the total effective sentence is sufficient to satisfy the need for general deterrence.
The respondent argues that the judge was correct to consider the ‘fantasy’ nature of the chats and that he had never left Victoria in assessing the gravamen of the offending. The respondent was an isolated and not well-travelled individual. The judge’s suspicion of the overseas participants was nothing more than a reflection of the manner in which the offending had been facilitated by the adults with whom the respondent communicated.

Discussion and analysis

The ground of manifest inadequacy, like that of manifest excess, is a stringent one, difficult to make good.[58] The Director must demonstrate that the sentence imposed was wholly outside the range of sentencing options available to the judge in the sound exercise of his sentencing discretion.
[58]DPP v Karazisis (2010) 31 VR 634, [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’); [2010] VSCA 350.
In this case the Director has done so.
While manifest inadequacy (or excess) is a conclusion not dependent upon the identification of specific error,[59] in this case the Director has also established the errors alleged under cover of grounds 2 to 4. The nature of those errors are so significant that they are also addressed below.

Gravity of the offending

[59]Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J); [2000] HCA 54; Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).

The grooming and procuring offences in ss 272.15A(1) and 272.14(1) of the Code respectively were inserted with effect from 23 June 2020.[60] Parliament has established a 15-year maximum penalty. They add to an established suite of provisions concerned with the online sexual exploitation of children. They are a specific response to the growing prevalence of offenders using the internet to groom adults with the aim of procuring a child for overseas sexual abuse. It is immaterial where the grooming occurs provided the intention is to procure a child to engage in sexual activity outside Australia. It does not matter if the child is a fictious person presented as a real person[61] or if it is impossible for the sexual activity to take place.[62] Further, the offences are not limited to sexual activity ‘in real life’.[63]
[60]Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) s 3, sch 4 item 6.
[61]Code, ss 272.14A(4), 272.15A(4).
[62]Code, ss 272.14A(3), 272.15A(3).
[63]Code, Dictionary (definition of ‘engage in sexual activity’).
As was said by the Attorney-General in his Second Reading Speech:
Disturbing new forms of child sex abuse are on the rise due to technological developments and increased global interconnectedness. This bill will fill gaps in the existing framework by introducing new offences to cover emerging forms of child sex abuse.
…
The bill also introduces a new offence criminalising the grooming of third parties to make it easier to procure children to engage in sexual activity in Australia and overseas. This is necessary to combat the growing prevalence of offenders grooming adults, such as parents or carers, domestically or in developing countries via the internet, with the aim of ultimately procuring a child for sexual abuse.[64]
[64]Victoria, Parliamentary Debates, House of Representatives, 11 September 2019, 2445–6 (Christian Porter, Attorney-General).
It follows that the gravamen of the offending is the intention of the offender in using the internet as a means of gaining access to children for subsequent sexual offending. Accordingly, an offender’s moral culpability is not lessened merely because the child is, or might be, fictitious. While harm to an actual child will aggravate an offence,[65] the absence of a ‘real victim’ does not mitigate the seriousness of the offending.[66] The predatory use of the internet as a means of gaining access to children overseas intending that they engage in sexual activity can never be anything other than serious conduct. It exploits the innate vulnerability of children and exposes them to the risk of the significant harm that results from sexual offending. That the offending often targets poor children in developing countries heightens that vulnerability and risk. The grooming and procuring criminalised in ss 272.15A(1) and 272.14A(1) are manipulative and corrosive activities in which the safety and psycho-sexual development of children is sacrificed for an offender’s deviant sexual gratification.
[65]R v Fuller [2010] NSWCCA 192, [35] (McLellan CJ at CL, Hislop J agreeing at [49], Barr AJ agreeing at [50]).
[66]R v Gajjar (2008) 192 A Crim R 76, [56] (Maxwell P, Nettle and Weinberg JJA); [2008] VSCA 268; The State of Western Australia v Collier (2007) 178 A Crim R 310, [25] (Steytler P, McLure JA agreeing at [50], Miller JA agreeing at [51]); [2007] WASCA 250.
The judge’s many references which characterised the respondent’s conduct as ‘pretence’ or ‘fantasy’, and as ‘remote or online sex’ by a man who had never left Victoria much less travelled to the Philippines, coupled with the judge’s expressed suspicions of ‘the participants and their role’, his observation that the respondent bemoaned being lied to after forwarding money and his finding that the respondent was ‘not predatory insofar as children are concerned’[67] demonstrate that the judge failed to adequately understand the gravamen of the offences with which the respondent had been charged as well as the seriousness of his actual conduct.
[67]Reasons, [56].
That error was compounded by the judge’s erroneous findings. First, that the respondent would not have been able to identify any child he was in communication with relevant to the four procuring charges. Secondly, that it could not be inferred beyond reasonable doubt that the respondent had viewed photographs, videos or video chats of persons or children the subject of the discussions in the grooming and procuring charges (as contended in ground 2).
As already stated, there was ample evidence before the judge that the respondent was intending to procure specific children. Charges 4 and 19 concerned a 9 to 10-year-old girl and a 14-year-old girl respectively, and the respondent’s communications with the mothers of those girls formed the grooming relevant to charge 18 and the two scheduled offences.
Further, for the reasons advanced by the Director, the judge was also wrong to conclude that the respondent had not viewed photographs or videos of persons or children the subject of the discussion in the grooming and procuring conversations. The respondent admitted to doing so, both to police and Mr Candlish, and the chats themselves also demonstrate that fact. Examples include that during the chat relevant to charge 1 the respondent said ‘Mother video rubbish sweetie not see much at all?’ and ‘I not see much on video? Why she always send rubbish? [crying face emoji x 2]’.
The respondent’s overall offending was frequent, persistent and determined. He created and used a fake Facebook identity after his previous accounts were blocked. In his messages forming the basis of the grooming and procuring charges, the respondent particularised the sexual activity he intended the subject child to engage in. It included penetrative sex — including with objects — masturbation and fondling and also included acts performed by children alone, between children and between adults and children. As already noted, the age of the subject child was as young as 5 years and often 10 years or lower. A number of the charges involved the respondent communicating with more than one person in relation to the same child or communicating to the same person in relation to more than one child. His provision of monetary payment was exploitative of persons residing in a developing country who represented themselves as needing money for food and medicine.
The respondent’s offending was, without qualification, grave.

General deterrence

As is well established with respect to all online sexual exploitation offences against children, general deterrence is the paramount sentencing consideration.[68] Specific deterrence, just punishment, denunciation and protection of the community are to be emphasised in the sentencing process. Relatively, less weight is to be afforded to subjective matters, including that an offender is of prior good character.[69]
[68]R v Gajjar (2008) 192 A Crim R 76, [27] (Maxwell P, Nettle and Weinberg JJA); [2008] VSCA 268; DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69, [27] (Maxwell P, Nettle and Weinberg JJA); [2008] VSCA 269; DPP (Cth) v Walls [2014] VSCA 323, [16] (Neave, Whelan and Beach JJA).
[69]R v Gajjar (2008) 192 A Crim R 76, [27]–[28] (Maxwell P, Nettle and Weinberg JJA); [2008] VSCA 268.
In this case the judge referred to the prosecution submission that general deterrence was of prime importance[70] and stated that he had taken into account the matters in s 16A of the Crimes Act (which includes ‘the deterrent effect that any sentence or order under consideration may have on other persons’[71]) but otherwise made no reference to importance of general deterrence in his sentencing synthesis. In the circumstances of this case it was a surprising omission and one of the further indications that the judge was wrong in his assessment of the gravity of the respondent’s offending.

Aggregate sentences

[70]Reasons, [24.1(c)].

[71]Crimes Act, s 16A(2)(j).

The imposition of the four aggregate sentences, the grouping of the charges within those aggregates and the terms of them indicate that the judge failed to consider what notional individual sentences might otherwise have been imposed and whether any of them should have been made concurrent before arriving at the aggregate terms. In so doing the judge failed to impose a sentence reflecting the overall criminality involved.[72] The imposition of a single sentence must be ‘closely related’[73] to the separate sentences that would otherwise have been imposed.
[72]R v Major (1998) 70 SASR 488, 490 (Doyle CJ) (‘Major’); [1998] SASC 6569.
[73]Major (1998) 70 SASR 488, 490 (Doyle CJ).
While the offences to which the respondent pleaded guilty were a series of offences of a similar character,[74] the imposition of individual sentences with modest orders for cumulation in the circumstances of this case is not ‘an artificial exercise’.[75] Rather, it avoids the vice of the series of aggregate sentences imposed by the judge which obscured the spectrum of seriousness as between the individual offences (particularly with respect to the first aggregate) and failed to acknowledge the impact of each crime on its victim or victims. Individual sentences allow for a proper assessment of the respondent’s criminality and the imposition of just punishment. They give clear effect to the paramount importance of general deterrence. They unambiguously denounce the offending.

Verdins

[74]Sentencing Act 1991, s 9(1).

[75]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 670, [44] (Maxwell P); [2015] VSCA 266.

Given the prosecutor’s concession before the judge that Verdins limb 5 had limited work to do, the judge did not err in giving limited weight to the respondent’s mild depressive disorder and mild personality impairment in this manner.
The judge was wrong, however, to find that this disorder and impairment, in combination with the respondent’s paedophilic disorder, enlivened Verdins limbs 1, 2 and 3 because they led to ‘a reduction in empathetic regard and consequential thinking kills, leading to a reduction in capacity for self-restraint regarding his deviant arousals.’[76]
[76]Reasons, [52].
Whether, as a matter of principle, a paedophilic disorder will ever be relevant to an offender’s moral culpability or his or her suitability as a vehicle for general deterrence under the rubric of the Verdins limbs is considered immediately below. First it must be observed that in this case there was no evidence before the judge that the respondent had a paedophilic disorder. The judge was wrong to conclude that there was.
When pressed at the hearing of the appeal to identify where in his report Mr Candlish’s diagnosis of paedophilic disorder was to be found, the respondent’s counsel said it was the combination of the paragraphs reproduced in full in paragraph [23(b)–(d)] above. As already noted the contrary submission was made to the judge by the respondent’s counsel in writing before the plea hearing. And, at the plea hearing, Mr Candlish’s report was described as ‘somewhat indecisive’ in that the diagnostic label of paedophilic disorder had not been substantiated.
The respondent’s submission to this Court cannot be accepted. It is simply impossible to read Mr Candlish’s report as revealing any such diagnosis. Even if the clear meaning of these three paragraphs could be tortured to rise above an opinion that the respondent’s offending was suggestive of a paedophilic disorder on the basis that anyone who acts on a deviant sexual attraction to children is likely to warrant the diagnosis, the fact that Mr Candlish did not recommend any specific sex offender treatment undermines any such conclusion. The highest Mr Candlish’s ‘intervention recommendations’ reached with respect to his paedophilic interests was that the respondent:
would benefit from exploring the factors associated with his decision to engage in sexual offending and develop insight into the factors that led to this. He should explore his own cognitive distortions. He would benefit from developing risk management strategies including ways to manage deviance.
As the respondent accepts that his mild depressive disorder and mild personality disorder did not in and of themselves enliven limbs 1 to 3 of Verdins, it follows that as a matter of evidence the judge was wrong to ameliorate the respondent’s sentence using these limbs.
It remains necessary to consider the relevance of a paedophilic disorder to the Verdins limbs in the sentencing of a child sexual offender.
In Brown this Court held that an offender diagnosed with a personality disorder is to be treated the same as any other offender who relies upon an impairment of mental functioning as mitigating sentence in one or more of the ways identified in Verdins.[77] The Court said ‘any categorical exclusion of personality disorders, whether of such disorders in general or of a particular type of personality disorder, could not be sustained’.[78]
[77]Brown (2020) 62 VR 491, [6] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212.
[78]Brown (2020) 62 VR 491, [28] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212.
This observation in Brown should not be read to mean that a psycho-sexual dysfunction should ordinarily be regarded as a matter mitigating a sexual offender’s moral culpability and the need for general deterrence in the formulation of an appropriate sentence.[79] This Court has not had the benefit of any evidence to establish that a paedophilic disorder is, in general, an impairment of mental functioning in the relevant manner. Moreover, what matters in any case is not the diagnostic label, but what expert evidence demonstrates about how the condition affected the offender’s mental condition at the time of the offending and how it will do so in the future.[80]
[79]DPP v EB (2008) 186 A Crim R 314, [14] (Nettle JA, Buchanan JA agreeing at [22], Redlich JA agreeing at [23]); [2008] VSCA 127.
[80]Brown (2020) 62 VR 491, [69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212.

Further, the Court in Brown acknowledged the divergent ways in which a relevant impairment of mental functioning affects the sentencing decision and that the enduring character of personality disorders is likely to often make protection of the community a significant sentencing consideration.[81]
[81]Brown (2020) 62 VR 491, [70]–[72] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212.
Thus, even if an offender’s moral culpability can be reduced because of a paedophilic disorder, that diagnosis cannot reduce the objective gravity of the offending or the need for paramount emphasis on general deterrence in the sentencing exercise. And, the need for specific deterrence and protection of the community will almost inevitably outweigh any mitigation arising from a reduced moral culpability.
So much was said by McHugh J in Ryan:
Whether or not paedophilia is an ‘underlying condition’ — and it appears not to be a psychiatric illness — it is by no means clear that a paedophile should be punished ‘less severely than would be appropriate for a series of wilful and completely unconnected offences’[82]. If two men commit similar offences against children — one because he was a paedophile and the other for sexual gratification — I doubt that the general public would see any difference in the two cases. Indeed, the public view — which cannot be disregarded if courts are to maintain the confidence of the community — may be that the paedophile should get the heavier sentence of the two because he is more likely to re-offend.[83]
[82]Quoting Ryan (2001) 206 CLR 267, [128] (Kirby J); [2001] HCA 21.
[83]Ryan (2001) 206 CLR 267, [40] (McHugh J); [2001] HCA 21.
McHugh J further observed that the effect of diminished moral culpability arising from a condition is a double-edged sword as protection of the community becomes a material factor in the sentencing exercise.
As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case.[84]
[84]Ryan (2001) 206 CLR 267, [41] (McHugh J); [2001] HCA 21.
In the same case Hayne J said:
If it is to be said to be relevant to the task of a sentencing judge to know that the term ‘paedophile’ can be used in relation to an offender, the immediate questions are how and why is that relevant. It is not enough to say that it is an ‘explanation’ of his conduct or a ‘cause’ of his offending. Those statements assert a relationship between the ‘condition’ or ‘state’ of ‘paedophilia’ and the offender's conduct which is not demonstrated by the bare fact of its application. Moreover, it is far from clear that the relationship between a ‘condition’ or ‘state’ of ‘paedophilia’ and an offender or his conduct will generally go in mitigation of sentence. If, on examination of the particular offender's circumstances, it is demonstrated that the offender is likely to re‑offend, the likelihood of re‑offending might ordinarily be thought to go in aggravation, not mitigation.[85]
[85]Ryan (2001) 206 CLR 267, [156] (Hayne J); [2001] HCA 21.
It follows that even if Mr Candlish’s report amounted to a diagnosis of paedophilic disorder (which it did not), the judge erred in finding that Verdins limbs 1, 2 and 3 were enlivened by the combination of the respondent’s mild depressive disorder, mild personality impairment and paedophilic disorder.

Mercy

The judge made numerous references to the need for ‘mercy and understanding’ in sentencing the respondent.
Although no specific complaint was made by the Director in this regard, it is important to record that the judge was wrong to do so. There was no basis upon which it was proper to extend mercy to the respondent.
The discretion of mercy is reserved for wholly unusual circumstances which allow a judge to give weight to matters not ordinarily considered in mitigation of sentence or give additional weight to ordinary matters to reduce a sentence below what would otherwise be appropriate.[86] As this Court said in DPP v Milson:[87]
Mercy may justify the imposition of a sentence which may bear less heavily upon an offender than if he or she were to receive his or her just deserts. Mercy thus permits considerations such as extreme disadvantage and hardship to be recognised as a factor mitigating sentence. Mercy may also come into play where a judge forms the view that leniency at that particular stage of the offender’s life might lead to reform. Mercy must, however, be exercised ‘upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment.’[88]
[86]See generally DPP v Snow (a pseudonym) [2020] VSCA 67, [80]–[89] (‘Snow’).
[87][2019] VSCA 55.
[88]DPP v Milson [2019] VSCA 55, [51], quoting Kane [1974] VR 759, 766.
Thus in Snow, the offender experienced or witnessed ‘alcohol and drug abuse, physical violence, sexual violence, poverty and, to some extent, depravity’ during the early years of her life in a small, remote indigenous community.[89] In Guode v The Queen[90] the offender’s life had been marred by the Sudanese civil war. She had seen her husband shot and had been raped until she was unconscious. This Court held that on the evidence mercy was warranted. ‘Mercy permitted the applicant’s extreme disadvantage and hardship, amongst others, to be recognised as a factor mitigating her sentence’.[91]
[89]Snow [2020] VSCA 67, [15]–[17].
[90][2020] VSCA 257.
[91]Guode v The Queen [2020] VSCA 257, [46] (Ferguson CJ, Priest and Beach JJA).
No such circumstances existed with respect to the respondent. The sentence imposed upon him needed to reflect the true gravity of his offending and his personal circumstances. Mercy had no role to play.

Conclusion

Ground 1 must succeed. The individual sentences on charges 7, 8, 12, 13 and 16 and the four aggregate sentences, the total effective sentence and the non-parole period are manifestly inadequate.

Resentence

The individual sentences and aggregate sentences must be set aside and the respondent resentenced as follows.

Charge	Offence	Max Penalty	Sentence	Commencement
1	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 4 months	19 March 2028
2	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	2 years	19 August 2028
3	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 4 months	19 March 2028
4	Procure a child to engage in sexual activity outside Australia	15 years	3 years	19 October 2028
5	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	2 years 6 months	19 September 2028
6	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 2 months	19 February 2028
7	Use a carriage service to solicit and transmit child abuse material	15 years	1 year 6 months	19 November 2026
8	Use a carriage service to transmit child abuse material	15 years	1 year 2 months	19 October 2026
9	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 8 months	19 June 2028
10	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	2 years	19 July 2028
11	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year	19 February 2028
12	Use a carriage service to transmit child abuse material	15 years	1 year 2 months	19 October 2026
13	Use a carriage service to solicit and transmit child abuse material and cause child abuse material to be transmitted to himself	15 years	2 years	19 December 2026
14	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 8 months	19 May 2028
15	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year	19 February 2028
16	Use a carriage service to solicit and transmit child abuse material and cause child abuse material to be transmitted to himself	15 years	1 year 6 months	19 June 2027
17	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 6 months	19 March 2028
18	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year 8 months	19 April 2028
19	Procure a child to engage in sexual activity outside Australia	15 years	2 years	19 June 2029
20	Groom a person to make it easier to engage in sexual activity with a child outside Australia	15 years	1 year	19 February 2028
21	Procure a child to engage in sexual activity outside Australia	15 years	1 year 2 months	19 November 2027
22	Procure a child to engage in sexual activity outside Australia	15 years	1 year 6 months	19 December 2027
23	Possess or control child abuse material obtained or accessed using a carriage service	15 years	2 years	19 April 2024
24	Use a carriage service to solicit child abuse material	15 years	1 year 6 months	19 May 2025
25	Use a carriage service to solicit child abuse material	15 years	1 year 6 months	19 June 2025
26	Use a carriage service to solicit and transmit child abuse material	15 years	1 year 6 months	19 July 2025
27	Possess or control child abuse material obtained or accessed using a carriage service	15 years	2 years 6 months	19 April 2024
Total Effective Sentence (Cth):		7 years 6 months
Non-Parole Period:		5 years
Section 6AAA Statement:		Total Effective Sentence 10 years Non Parole-Period 7 years 6 months
Other Relevant Orders: 1. Sentenced as a registrable offender. Length of the reporting period is Life.[92]

[92]Pursuant to s 34 of the Sex Offenders Registration Act 2004.

Pursuant to s 19(6) of the Crimes Act and for the reasons above, these are sentences that are of a severity appropriate in all the circumstances. Accordingly the sentencing orders do not require, pursuant to s 19(5) of the Crimes Act, that no term of imprisonment imposed for a Commonwealth child sex offence be served partially cumulatively or concurrently with an uncompleted term of imprisonment imposed for another Commonwealth child sex offence. Wholly cumulative sentences would be disproportionate to the respondent’s overall offending.
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[2025] VSCA 228

18 September 2025