Director of Public Prosecutions (Cth) v Legge

[2024] VCC 549

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-02041

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID JONATHON LEGGE

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2024
DATE OF SENTENCE:	24 April 2024
CASE MAY BE CITED AS:	DPP (Cth) v Legge
MEDIUM NEUTRAL CITATION:	[2024] VCC 549

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                Sentence – Pleas of guilty – Possess or control chid abuse material obtained or accessed using carriage service (1) – Use carriage service to transmit and make available child abuse material (1) – Intentionally transmitted and received images/videos/text based material from two different media applications to 8 different recipients over 6 month period – Actively sought out child abuse material – Possession charge relates to single date and sentenced on that basis – No prior criminal history – Highly co-operative with police from an early stage – Frank admissions on interview – Heartful contrition - Traumatic and turbulent upbringing – Physical and mental health issues – Expert opinion – Severe anxiety and depression with suicidal ideation – Adjustment disorder with mixed anxiety and depressed mood – Excellent progress with counselling

Legislation Cited:        Crimes Act 1914 (Commonwealth); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:R v Tootell;ex parteA-G (Qld) [2012] QCA 273; R v GAW [2015] QCA 166

Sentence:                   Convicted and sentenced to Total Effective Sentence 2 years and 6 months’ imprisonment to be released on a Commonwealth Recognisance Release Order after serving 10 months’ imprisonment to be of good behaviour for 4 years and with other conditions – Sex Offender Registration for period of 15 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Mr B. Scaramozzino	Commonwealth DPP
For the Offender	Ms A. Roodenburg	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1David Jonathon Legge, you have pleaded guilty to one charge of possess or control child abuse material obtained or accessed using a carriage service, and one charge of use carriage service to transmit and make available child abuse material.

2The maximum penalty in relation to each of these offences is 15 years’ imprisonment.  I must have regard to the maximum penalties in sentencing you.

3I sentence you on the basis of the prosecution opening dated 23 February 2024, in its entirety.

4At the time of the offending, you were 36 years old, and you are now 37.

5In June 2023 an investigation was conducted into the upload of child abuse material ('CAM') to the Google platform between 8 and 12 February 2023 by a user with the account name 'David Legge'.

6The investigation identified that the IP addresses during the offending were assigned to your home address and to a telecommunications service to which you subscribed.

7Subsequently, a search warrant was executed at your home on 25 July 2023.  After the execution of the warrant, you took part in a recorded conversation where you made admissions in relation to the alleged offending saying that you had last looked at child abuse material on the morning of the execution of the search warrant and that there would be child abuse material stored on your Proton drive.

8A preliminary analysis of your devices at your home resulted in police finding child abuse material.  You were arrested and taken to a local police station.

9You took part in a record of interview and made a number of admissions which were set out in the prosecution opening, but more briefly, you admitted that you were in possession of child abuse material as at the date of the interview.  You said, 'I’m not going to sit here or deny it or anything.  Yes, I had it.  It’s true.'  You told police that you were a member of some chat groups and people would send you some things privately and you would then store the material, save it, then send it on to other people.  You told police that this activity started in late January, early February 2023.  You said that you were on 'Reddit' and saw someone saying that they wanted to start a chat group in 'Telegram.'  You said that you then got a link and joined the group and ended up managing it for a 'little while.'

10You said that when you stopped managing it people still sent you things which you would save and forward.  When asked what you meant by this you said that you were talking about child pornography.

11When asked if before January or February of 2023 you had ever viewed child abuse material you said it was probably just a case of 'opening it up, seeing it, closing it down and not forwarding or saving or storing it.'  When asked how you felt when you saw child abuse material you said, '… it is awful what happens.  It also takes me back to when I was younger being sexually active younger and there’s just so many conflictions that I’ve always had with it.  It’s something that I’ve struggled with …'.  You went on to say that it was 'vile and so wrong' and should never see the light of day.  You said that despite this you still saved it and forwarded it. 

12In relation to receiving child abuse material from people you said you had received 'hundreds over time, over the months.'  You said that you had so much material varying from really young toddlers to 17-and-a-half-year-olds.  You said that people would come to you and ask you to send something, and you asked them what they were after, and you would send material that they were specifically interested in.  You said that you were in a few groups on Viber that uploaded child pornography.  You said you got the material straight from there and put it onto the Proton drive as this meant you could view it without downloading.  You said that you would view the material and decide whether it 'might be good for the stash …'.

Charge 1:  Possess or control child abuse material obtained or accessed using a carriage service.

13In relation to Charge 1, I was told that after being interviewed with the police, material seized from you was analysed.  The analysis included a review of data found on your Proton drive and Proton mail account.  I was told that Proton drive was a cloud storage solution with end-to-end encryption and Proton mail was an end-to-end encrypted email service.

14A review of your Proton drive identified 11 images and 460 video files classified as CAM.

15Your mobile phone was also analysed, and police identified 420 images and 312 video files classified as CAM on this device.

16I was told that a sample of the CAM found by police included:

(a)   Images and videos of male children, from infants to 16 years of age, posing naked or partially clothed in a sexually explicit manner and with a focus on the genitals or anus.  Some images or videos were taken close up and some images or videos depicted the child or an adult spreading the skin around the child’s genitals or anus.

(b)   Images and videos of male children, from infants to 16 years of age, touching or holding the penis of adult males, performing oral sex on the penis of adult males or pictured with semen on their genitals, body or face.

(c)   Images and videos of male children, from infants to 16 years of age, being anally penetrated by the penis of adult males, the tongue or finger of adult males or adult females, or objects being held by adult males or adult females.

(d)   Videos of male children, from infants to 16 years of age, being anally penetrated by the penis or tongue of a dog.

17In sentencing you in relation to Charge 1, I also take into account further offending by virtue of s16BA of the Crimes Act 1914 (Cth), as follows:

18Your Leader branded laptop was also analysed by police.  There was an application called MEGA which was a cloud storage application which could be accessed on an internet enabled device.

19Analysis of your MEGA account revealed that in the rubbish bin of this account there were 1,697 CAM files comprising 94 images and 1,603 videos.  Each file had a creation date of 29 April 2023 and last access was between 4 May 2023 and 14 May 2023.

20In total you possessed 1,203 files and accessed 1,697 files of child abuse material.

Charge 2

21The basis for Charge 2 is that upon reviewing your various devices police found that between 30 January and 30 July 2023 you used two different social media applications, Signal and Telegram, to transmit and make available child abuse material.  In total you transmitted five links of child abuse material to others on Signal and made available text-based child abuse material to six different recipients on Telegram.  You also transmitted six video files of child abuse material to two users on Telegram.

22In relation to your offending using Signal, I was told that this application was an encrypted messaging service for instant messaging, as well as voice and video calls.  The instant messaging function included sending texts, voice notes, images, videos and other files.  Communication within Signal includes both one-on-one and group messaging.

23You used the Signal application on your Samsung phone to participate in a group chat titled 'Friends' with two other members.  The purpose of the group was to send and receive CAM.  You made admissions that you set up the links and sent links to some friends in Signal 'recently too'.  When asked about whether the links were in relation to child abuse material you said that they were.

24An analysis of the group chat revealed that you transmitted five internet links between 8 July and 30 July 2023.  Each link gave the other members access to your personal Proton account and access to specific CAM files within.  Each link was password protected with you providing the password within the group chat.

25You also provided commentary alongside some of the links sent.  These included: 'Tell me what you think', 'How beautiful', 'M'mm good morning bois', b-o-i-s – a further quote 'What good bois', b-o-i-s, and 'This is us three with our sons'.

26Police reviewed your Telegram application and identified six chats with other users where you transmitted both videos and text-based child abuse material.  The full transcripts of the offending conversations were annexed to the summary of prosecution opening and I have viewed these.  They make for most disturbing reading.  A representative sample of the offending within each chat was set out in the summary of prosecution opening.

27In a chat with one user on 30 January 2023 you said that you knew 'his dad' and that he had told you last week that he had been grooming his son.  He said that the boy had answered the door naked, and the father was on the couch, that you went to say 'hello' and the boy then made his dad 'suck his dick'.  He said that whilst this was happening you 'rimmed his hole'.  He said that his hole was loose because his dad had fucked him earlier that day and that you made the boy suck your dick and you made out with his father.  You said that the boy was 'swallowing my precum' and that he had asked you if you needed to piss and to piss in his mouth.  You said, 'then after I blew in the boy, his dad fucked him.  It was so hot LOLLL,' then asked, 'What do you think about me fucking a 14-year-old?'

28In a chat log with another user on 8 March 2023, it was recorded that you said, 'I told his bi daddy that if he does not start raping his boi, I will, so I did.'  You also said, 'Almost too late to start grooming and raping.  You should be raping others like I was at his age.'

29On 6 April 2023 you transmitted three CAM videos to the same user to whom I have just referred.  In one video file an adult was seen to be performing anal penetration with a sex toy on a male child who was aged about six years old.  In a second video, a male adult and a male child around four years old are seen to be kissing each other with open mouths.  The adult can be seen sticking his tongue in and around the child’s mouth.

30In the third video, a male adult is naked and holding a smoking implement whilst holding an infant boy in his lap.  The adult can be seen masturbating and smoking an unknown substance using the smoking implement.

31On 17 March 2023, you said:

'I’m going to rape bois when I go; my mates boi was five and I told him that if the boo wasn’t raped, I would.  He didn’t so I did.  I started raping when I was 12.  24 ears (sic) later I am addicted still; I love getting the bois down to (their) undies.  Then going behind them and put my hands into their sexy undies and tug the dick.  Then start warming'.

32On 28 March 2023 you said:  'I raped a boi yesterday – nine years old, his uncle has been grooming him since he was four – I blew his boi cunt twice'.  These chats on 17 and 28 March were with another user who used the name 'Barry'.

33On 27 March 2023, in a chat log with another user, you transmitted two CAM videos, one depicting a male child aged between 12 to 14 years performing a sexual act on a sex toy whilst an adult held the sex toy.  The second video file depicted a compilation of various images and videos of male children performing sexual acts with other male children and male adults.  The video was named 'The bet", which apparently was meant to be 'best' 'of kiddy porn … ideal 2015'.

34In relation to another user, on 1 June 2023 you said, 'Six years old then start grooming', and 'suck his boy dick?' and '[h]ave the boy? skinny dipping so you can help yourself'.

35On 2 June 2023 you said to another user, ' I hope he was trained younger.  I would have five boys ages 3, 7, 10, 12 and 16.  Have the older boys help me rape the younger ones'.

36In total you transmitted five video files of child abuse material.

37Mr Legge, your offending is most serious, and I must impose a sentence that is of a severity which is appropriate in all of the circumstances.  In sentencing you I must ensure that you are adequately punished for your offending. As the learned prosecutor said in his written submissions, you intentionally transmitted and received images and videos of child abuse material, as well as text-based child abuse material on two different social media communication applications, to eight different recipients over approximately a six-month period.

38Also, you saved and stored a significant amount of child abuse material on a cloud storage application.  The nature of the material that you had in your possession and material which you transmitted was utterly depraved and repugnant.  Rather than being a passive recipient of child abuse material, you actively took steps to obtain it, seeking it out through the Telegram group chat to the point where at one stage you were the manager of the group.  The depravity of the material which you possessed, transmitted, and received was of an explicit nature and were serious examples of child abuse material, which was conceded by you through your counsel, Ms Roodenburg.

39As the prosecution opening set out, the material included images and videos of male children from infants to 16 years of age being subjected to anal penetration by adult male penises or with other parts of their body, as well as objects being held by adult males or females.  The things that you said in the text messages were horrific and you saw fit to communicate with six different recipients which is a rather solid number of people.

40Also, the transmission of material occurred over a six-month period, as I have said, although as your counsel pointed out, there were various dates within this period rather than regular occurrences of such conduct.  The transmission of material was sent, as I say, to eight different recipients, contributing to the distribution and continued harm and cycle of abuse perpetrated on victims.  I accept the possession charge relates to a single date; however, it is not submitted by you that your possession related to a single isolated occasion. 

41I do not speculate in relation to the duration, and I sentence you on the single date of alleged offending, but it is not confined to that date, lest it be said otherwise.

42As the learned prosecutor said, you were aware and understood the wrongfulness of your actions and yet you chose to continue to play an active role in it.

43In assessing the objective gravity of your offending, I am most mindful of the quantity of material in your possession, the nature of it as set out in the prosecution opening at paragraph 12, the duration of your offending, noting that you are charged in relation to one day of offending concerning Charge 1, but six months in relation to Charge 2, and the nature of the material that you transmitted to others including the chats to which I have referred as set out in the prosecution opening.  I have also factored in the number of recipients in relation to the transmission charge and the amount of material sent.  The prosecution submitted that your offending 'can only be viewed as on the upper end of seriousness for an offence of this type …'.  Your counsel took issue with this aspect.

44In my view, compared with other cases of this nature, your offending, although most serious, does not fall at the upper end.  However, I would describe it as being of mid-range for offending of this type.  I accept that there was no payment or profit in relation to your offending and you had no proximity to the people who created the material.  Having said this, in offending as you have, you have contributed to the evil industry of child abuse material where the victims have no power to control the dissemination of their images, potentially in perpetuity.  I accept that the images and videos were stored on your personal phone and in cloud storage in your own name.  I accept that there was little in the way of planning and sophistication employed by you to cover your tracks.

45In relation to Charge 2, I accept that the contents of your discussions with others did not reflect reality in terms of your apparent fantasies to engage in sexual offending against child victims.  Thankfully, this is the case, otherwise you would be facing even more charges.  However, your fantasies were utterly repugnant, base and evil.

46You have no prior convictions or court appearances for any matter, which is a matter in your favour.

47I must give appropriate weight to all sentencing considerations including specific deterrence and general deterrence.  In your case strong weight must be given to general deterrence in a bid to deter others from offending as you have.  In sentencing you, I have also had regard to general principles relevant to sentencing a person for child sex offences as set out at paragraph 11 of the learned prosecutor’s written submissions, as follows:

(a)   there is an intrinsic harm caused by sexual offences involving children.

(b)   a sentence involving an immediate term of imprisonment is ordinarily warranted.

(c)   there is a paramount public interest in promoting the protection of children, as accessing and possessing child abuse material is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children and children are sexually abused in order to supply that market.

(d)   such offending is difficult to detect; and

(e)   general deterrence is a significant sentencing consideration as there is a paramount interest in promoting the protection of children given the vulnerability of children online and the need to protect them from sexual abuse by predators using electronic facilities.

48I pause here to observe that in your case there is no suggestion that there was any physical approach by you to children, or over the airways for that matter, by you to children whilst you were online.  To continue with the list that I was referring to:

(a)   where general deterrence is of significance, personal mitigatory factors such as prior good character, age and prospects of rehabilitation must therefore be given less weight than might otherwise be given.  The subjective circumstances of an offender must not overshadow the objective gravity of the offences.

(b)   specific deterrence, denunciation and punishment are also important sentencing considerations.

(c)   the fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences.

(d)   offending involving child abuse material occurs on an international level and the advent of the internet as a means to access child abuse material means that such offending is becoming increasingly prevalent.

(e)   in a case of dissemination, the number of persons to whom the material is distributed is relevant; and

(f)    whilst the volume of material is an indicator of the seriousness of the offence, the type of material and degree of its depravity is the primary focus and quantity is the secondary focus.

49Section 17A (1) of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless, having considered all other available sentences, the court is satisfied no other sentence is appropriate in the circumstances.

50Section 16A of the Commonwealth Crimes Act sets out a non-exhaustive list of relevant factors to be taken into account, factors which I will address in the course of my sentencing remarks and have to some extent already. Section 16A (2AAA) of the Crimes Act (Cth) provides for matters which must be taken into account because the offender is to be sentenced for a Commonwealth child sex offence, providing that a court sentencing an offender for such offences must take into account the objective of rehabilitating the person, including by considering 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 the rehabilitation program. However, this requirement does not displace or override the requirement that the sentence must be of a severity appropriate in all the circumstances of the offending and rehabilitation should not be the sole focus at the expense of other relevant sentencing considerations of significance such as general deterrence.

51Section 20(1)(b)(ii) of the Commonwealth Crimes Act provides that unless there are exceptional circumstances, immediate release on recognisance of an offender is not available for a person sentenced for Commonwealth child sex offences.  Exceptional circumstances are not defined in the legislation.  I have had regard to the authorities as set out by the prosecution in R v Tootell;ex parteA-G (Qld)[1] the court said that 'exceptional' ought to be construed:

'… as an ordinary familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered'. [18]

A footnote is referred to and omitted in my remarks.

[1][2012] QCA 273 at paragraph [18]

52In R v GAW,[2] the court referred to a previous decision of the court where it was said that there was:

'… no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.

… the court in the sentencing process must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case … warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind'.[3]  [54]

[2][2015] QCA 166

[3](Ibid) at paragraph [54] (referring to R v Quick; ex parte A-G (Qld) [2006] QCA 477)

53It seems to me that there is a tension between some of the statutory provisions to which I have been referred by the prosecution, which was the subject of discussion at the plea hearing.  However, at the end of the day it is accepted that in order to avoid immediate jail you must demonstrate exceptional circumstances bearing in mind that where, as in this case, general deterrence is the primary sentencing consideration, mitigating factors such as prospects of rehabilitation must be given less weight than they would ordinarily be given.  However, your prospects of rehabilitation are still relevant and ought to be taken into account in determining the appropriate sentence. 

54I have had regard to all of these matters and considerations in your case.

55I take into account your background.

56You are 38 years old.

57You grew up in rural New South Wales, initially with both of your parents and your younger brother, however, after your parents’ separation you lived with your mother and stepfather.  Your father was a drug addict and alcoholic with significant mental health issues, often requiring hospitalisation.  Your mother and stepfather also drank excessively and could be violent towards you.  I understand that your stepfather was also violent towards your mother.

58Due to your dysfunctional home life, you moved out of home when you were 16 years old.

59You attended six primary schools and three high schools, completing Year 11, but you did not return to school after this. You were bullied at one of the high schools that you attended.  You were excluded for being gay and were harassed 'put down and ridiculed' because of your sexuality.

60After leaving school, in 2005 you moved in with your aunt to take care of her.  I understand that before this you moved to Coffs Harbour where you lived near your father and would see him nearly every day.

61According to your report to Dr Tony Pastore, you, your father and aunt lived in a suburb called St Marys for a year before you and your father moved out to live in your own residence close by.  Your counsel told me that your aunt went to live with your mother who became her carer.  In any event, according to your report to Dr Pastore you lived with your father for about one and a half years then moved to the Blue Mountains with a friend for about four years, until you were 22 years old.

62You have not had any ongoing contact with your mother since 2011 until recently, after you called her to tell her about being charged with these offences.  You now have regular contact with her on a weekly basis and you have daily phone contact with your father.

63You became aware that you were gay when you were about 11 or 12 years old.  You had a boyfriend when you were 12, he was 14, and was a neighbour in the same street as where you were living at that time.  You had a consensual intimate relationship that endured for about three years.

64Following this relationship, you had one or two other relationships which were very brief with the longest lasting three months.  Each of the relationships was consensual and the individuals were one or two years older than you.

65The last relationship before meeting your husband was when you were about 17 years old, and that relationship lasted for about three months.

66You met your now husband when you were 22 years old in February 2009.  Your husband was 39 years old at that time.

67In terms of your education and work history, after leaving school you went on to complete a number of short courses at TAFE and you completed a diploma in management.

68You have a strong work history, mainly in the field of customer relations, working for various employers for extensive periods.  In September last year you commenced a new job for a software company, however, you resigned in March this year due to your situation in respect of these proceedings.

69In terms of your upbringing, I accept that it has been traumatic and turbulent.  I give full weight to your background however; your counsel did not rely on Bugmy principles as such.

70I take into account that you suffer from a bulging disc and experience some physical discomfort as a result of this.  You also suffer from chronic eczema and are prescribed Mirtanza for depression and Valium as needed for anxiety.  You also take Tenofovir which is an HIV prophylactic medication.

71In terms of your mental health, Dr Pastore, with whom you had completed 17 sessions as at the time of the plea hearing, reported that you initially presented with severe anxiety and extremely severe depression, however, after some months of treatment your stress and anxiety levels had increased although your depression symptoms decreased to a severe level.  At times you have experienced suicidal ideation.  He was of the view that you would require careful monitoring if incarcerated to ensure you did not engage in self-harm.  Dr Pastore diagnosed you with an adjustment disorder with mixed anxiety and depressed mood.  He noted that your depression seemed primarily marked by affective features such as feelings of sadness, loss of interest in normal activities and a loss of a sense of pleasure.

72I accept that any time in jail will be harder for you because of your mental health issues and there is the potential for decline in your mental health, which I also factor in.  This is especially so in circumstances where this would be your first period of incarceration which is a matter that I also take into account.

73I also allow that time in custody would be harder for you due to experiencing some physical discomfort due to your medical conditions to which I have referred.

74I accept that you were highly co-operative with police from the outset, making very frank admissions in the record of interview, providing access and passwords to each of your devices and accounts and admitting to the ownership and use of these. Such matters are relevant by virtue of s16A (2)(h) of the Crimes Act 1914 (Cth) but also relevant to other matters such as contrition and my assessment of prospects of rehabilitation and the weight which attaches to specific deterrence. Your counsel also relied on this aspect in relation to the question of whether exceptional circumstances was made out, that is, that you were highly co-operative at an early stage and pleaded guilty at such an early stage to the offences for which I now sentence you.

75I allow for a significant discount because of your pleas of guilty which occurred at a very early stage, which I have said, and which has therefore facilitated the course of justice, providing a significant utilitarian benefit. 

76I also allow for the fact that you have expressed heartfelt contrition in relation to your offending which you conveyed to police officers at the time and which you have made manifest by your early pleas of guilty.  You have expressed your deep remorse and regret to both Dr Pastore as well as your family and friends.  You are remorseful for the pain and suffering you have caused your family by your offending, however, your level of insight in relation to the harm that child pornography causes the victims is a work in progress which has been developing in conjunction with your counselling sessions with Dr Pastore.

77Further evidence of your remorse and preparedness to rehabilitate is exemplified by the therapy in which you have engaged with Dr Pastore since November of last year and the fact that you have also attended over 40 sessions at Sex Addiction Anonymous.  Although not directly relevant to your offending, the work that you have done with that organisation has been of great benefit to you.  I was told that in working with this organisation you had to disclose the nature of your offending and you have done so.  I have viewed the 12 steps document from this organisation, a number of which appear to be relevant to your ability to develop insight in an appropriate way.

78According to Dr Pastore you have made significant gains in understanding how you came to commit these offences and you have learnt to deal with impulses you may experience in relation to viewing CAM in the future.  He was of the view that you had made 'excellent progress'.  He assessed your risk of re-offending as being within the low-moderate risk category.

79You are blessed with good family and friendship support, as evidenced by the character references filed on your behalf and by the character evidence given by your husband at the plea hearing.  I see that you have good family and friendship support here in court today.  I accept that you are of otherwise good character having considered all of this evidence.

80I accept that you are motivated to continue to rehabilitate which is also a matter in your favour.

81In sentencing you I have taken into account all of the evidence given by your husband at the plea hearing.

82In all the relevant circumstances I find that your prospects of rehabilitation are very good, and I need only place minimal weight on specific deterrence.  On the other hand, there is nothing which detracts from your moral culpability which I find is high, and as I have said, I must attach strong weight to general deterrence and denunciation, and I must ensure that you are adequately punished for the offending.

83Your counsel submitted that a combination of factors in mitigation amounted to exceptional circumstances in your case.  The combination of factors relied upon were said to be your mental health issues, your early pleas of guilty, genuine remorse, significant steps taken in rehabilitation, your dysfunctional childhood, 'low risk of re-offending', lack of prior convictions, your stable life nowadays and your supportive family.  Your counsel referred me to a case where factors such as these were considered sufficient to amount to exceptional circumstances.  However, as she most properly conceded, the offending in Phibbs v The King [2023] VSCA 123 was a good deal less serious than your offending. Exceptional circumstances were made out by that offender in combination, however, one of the factors was the offending being at the lower end of objective seriousness, which I am afraid is not your situation. I was also referred to other cases by each of the parties and I have regard to current sentencing practice bearing in mind that this is but one consideration when imposing sentence and is not a controlling factor.

84The prosecution submits that a recognisance release order is within range in your case, however, they submitted that exceptional circumstances had not been made out and therefore a component of the recognisance release order sentence ought involve immediate imprisonment.

85A central question in your case is obviously whether exceptional circumstances have been established so as to avoid the imposition of immediate imprisonment.

86Having given your case careful consideration, I am afraid that your offending is too serious and the weight attaching to relevant sentencing considerations are such that the factors relied on by your counsel do not suffice to amount to exceptional circumstances.  However, I have done what I can, all relevant matters considered, to keep the period of immediate imprisonment to a minimum so as to maximise your chances of continuing on a positive path when you are released.

87You are convicted of each of the offences. 

88You are to be registered under the Sex Offender Registration Act 2004 (Vic) for a period of 15 years. You must report your personal details to the Chief Commissioner of Police annually for 15 years. You must first do so, that is report, within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you now by my Associate. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

89In relation to Charge 1, you are sentenced to two years and six months’ imprisonment, such sentence is to commence today.

90In relation to Charge 2, you are sentenced to 18 months’ imprisonment.  This sentence is also to commence today. 

91Therefore, the total effective sentence in your case is two years and six months’ imprisonment, however, I direct that you be released after serving 10 months’ imprisonment upon entering into a recognisance of $5,000 to comply with the following conditions:

(a)   to be of good behaviour for a period of four years; and

Mandatory conditions pursuant to s20(1B) of the Crimes Act 1914 (Cth)

(b)   to be subject to the supervision of a probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) for a period four years; and

(c)   obey all reasonable directions of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee); and

(d)   not travel interstate or overseas without the written permission of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee); and

(e)   undertake such treatment or rehabilitation programs that the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) reasonably directs.

Conditions necessary to give effect to mandatory conditions.

(f)    report to the Reservoir Community Correction Centre closest to you by 4.00 pm within two clear working days of your release from custody.

(g)   report to and receive visits from a Community Corrections officer or officers; and

(h)   notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after that change.

Conditions regarding Sex Offenders Program

(i)    attend for assessment and, if assessed as suitable, treatment for Sex Offender programs or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.

92I have made these orders because you have been charged with the offences on the indictment and in view of the matters set out in my sentencing remarks herein, I have sentenced you to a total effective sentence of two years and six months’ imprisonment.  However, in view of all relevant matters set out in my sentencing reasons, I have decided that you be released after serving 10 months of the total effective sentence if you comply with the conditions of this order.

93If you fail without reasonable excuse to comply with the conditions of the order then you may be dealt with for breaching the recognisance release order in which case you may be required to pay the sum of $5,000 and to serve the balance of the sentence of imprisonment, namely 20 months’ imprisonment.

94The orders that I have made may be discharged or varied under s20AA of the Crimes Act 1914 by a party in these proceedings who has standing.

95I will now ask that your counsel assist you in attending to the signing of the recognisance release order, and I indicate that if not for your pleas of guilty I would have sentenced you to a total effective sentence of five years’ imprisonment with a non-parole period of three years.

96Just while that is being attended to, Ms Roodenburg, I might have canvassed this on the last occasion, but do you ask that we convey custody management issues to the prison in accordance with matters that have been - - - 

97MS ROODENBURG:  Yes, Your Honour, particularly the first time in custody and his mental health issues, a need to be observed carefully.

98HER HONOUR:  Yes, thank you. 

99MS ROODENBURG:  I should say, Your Honour, he has his medication with him in the boxes as well so that should go - - - 

100HER HONOUR:  Yes, I'm not sure how custody manages those things but, yes, thank you for that.  I'll just give you a look at the proposed order and recognisance just to make sure that there are no submissions in relation to that before I ask Mr Legge to sign.

101MS ROODENBURG:  Thank you, Your Honour. 

102MR SCARAMOZZINO:  Thank you, Your Honour. 

103HER HONOUR:  And again, if you could approach the dock.  Thanks, Ms Roodenburg.

104MS ROODENBURG:  Thank you, Your Honour. 

105HER HONOUR:  Yes, thank you, is there anything else arising?

106MS ROODENBURG:  Not from my perspective, Your Honour.

107MR SCARAMOZZINO:  No, Your Honour, thank you.

108HER HONOUR:  Yes, thank you.  Could you please remove Mr Legge, thank you.  Thank you, we will now adjourn.

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