Director of Public Prosecutions (Cth) v Senarath
[2024] VCC 873
•11 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01238
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MISSAKA SENARATH |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2024 | |
DATE OF SENTENCE: | 11 June 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Senarath | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 873 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — use a carriage service to solicit child abuse material to be transmitted (2 charges); groom a person to make it easier to engage in sexual activity with a child outside Australia (9 charges); persistent sexual abuse of a child outside Australia (1 charge); possess or control child abuse material obtained or accessed by using a carriage service (1 charge) — plea of guilty —offending discovered following baggage examination at Melbourne International Airport
Legislation Cited: Crimes Act 1914; Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Hurt v The King and
Delzotto v The King [2024] HCA 8; Beattie v The Queen [2009]
NSWCCA 51; R v Verdins & Ors [2007] VSCA 102; DPP (Cth) v D’Alessandro [2010] VSCA 60; R v De Leeuw [2015] NSWCCA 183; R v Caldwell [2021] QCA 112; Director
of Public Prosecutions v Smith [2010] VSCA 215; R v Middleton [2023] ACTSC 50; R v Horner [2023] ACTSC 23; R v Dean [2023] ACTSC 98; R v Henderson [2023] ACTSC 110
Sentence: Total effective sentence of 13 years and 8 months imprisonment with a non-parole period of 9 years and 6 months. Total effective sentence (state) 3 months imprisonment. Total effective sentence (Cth) 13 years and 6 months.
Section 6AAA declaration: 17 years and 6 months imprisonment with a non-parole period of 14 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms R. Champion | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Mr L. McAuliffe | ISK Law Pty Ltd |
HER HONOUR:
Introduction
1
Missaka Senarath, you have pleaded guilty to two charges of use a carriage service to solicit child abuse material to be transmitted to yourself, that is Charges 1 and 3, and there is a maximum term of imprisonment of 15 years; nine charges of groom a person to make it easier to engage in sexual activity with a child outside Australia, for which the maximum penalty is also a term of imprisonment of
15 years; one charge of persistent sexual abuse of a child outside Australia for which the maximum penalty is a term of imprisonment of 30 years; and one charge of possess or control child abuse material obtained or accessed by using a carriage service and the maximum penalty is a term of imprisonment of 15 years.
2The charge of persistent sexual abuse of a child outside Australia carries a statutory minimum sentence of 7 years.
3You have also pleaded guilty to one related summary charge of visually capturing a person’s genitals – upskirting, contrary to s41B of the Summary Offences Act 1966 (Vic) and there is a maximum penalty of 2 years imprisonment for that offence.
4Tendered on the plea as Exhibit 1 was a Summary of Prosecution Opening and I attach that document into my reasons for sentence.
5Your offending was discovered following a baggage examination and subsequent seizure of your mobile phone at the Melbourne International Airport on
23 September 2022. You had returned to Melbourne from the Philippines.6In broad terms, your offending can be summarised as follows;
(a) Forensic examination of your mobile phone, and devices later seized from your home, identified evidence of offending, including: 'chat' conversations between you and nine unknown persons, where you sought to make arrangements to travel to the Philippines to engage in sexual activity with a child for payment (Charges 2 and 4-11);
(b) 'Chat' conversations between you and 12 unknown persons, during which you requested and received child abuse material (Charges 1 and 3);
(c) Videos depicting the persistent sexual abuse by you of a prepubescent female child in the Philippines on 21 September 2022 (Charge 12);
(d) At least 697 images and 794 videos classified as child abuse material (Charge 13);
(e) 'Upskirting' videos taken by you of your family friend’s 11-year-old daughter and that is the State summary charge.
7Your offending in respect of all charges spanned the period 15 May 2020 through to 21 September 2022.
8Investigators organised for the original images and videos of the unknown female child you abused in respect of Charge 12 to be examined by paediatricians at the Royal Melbourne Hospital who prepared a forensic paediatric report which opines the age of the child was approximately 10 years.
Record of Interview
9On 15 November 2022 at about 8:45 am you were conveyed to Australian Federal Police headquarters for the purpose of engaging in a record of interview. At about 10:26 am, the police conducted a record of interview with you and requested that you engage in a non-intimate forensic procedure, including taking photos of your head and hands. You did not consent to this procedure and an order was made pursuant to s23XJ of the Crimes Act 1914 (Cth) requiring you to comply. At about 11.16 am, a forensic procedure was completed.
10During the record of interview, you:
(a) Admitted that you had travelled to Philippines between 18 and 23 September 2022;
(b) You stated, 'I don’t have any information for you to give you to go, you know, to another investigation. I haven’t harmed anyone, I haven’t - um - nothing – there's no one at risk. I just – you know, I’ve been a lot of under stress, and I may have a look – watched things that I shouldn't be'.
(c) Stated, 'It's just me being under stress and watch some pictures and videos, maybe, that I shouldn’t'.
(d) When asked if you had paid for the material, you said, 'No, no, no. I don’t – I don't – you know, I don't buy anything'.
(e) You stated, 'I may have talked to people; I may have, you know, watched things, and, you know, any other people do, maybe some of those are – you know, you can label as other, you know, illegal materials, but I've never harm anyone. I never force anyone'.
11You otherwise denied the allegations and gave a no comment record of interview.
12I turn now to set out more fully the circumstances of your offending in respect of the individual charges and I begin with Charge 1 which is a charge of cause child abuse material to be transmitted to yourself and the person you spoke to is Chelsea.
Charge 1: Cause child abuse material to be transmitted to self (Chelsea)
13Between 16 May 2020 and 17 June 2020, you engaged in a text message conversation with a person named 'Chelsea'. At the commencement of your conversation, Chelsea advised you that she sold nudes and nude videos.
14Chelsea also told you that she was 18 and you responded by asking her if she could introduce you to her younger friends.
15Following this conversation, Chelsea told you she was not 18 and only just turned 17. You offered to buy a pair of underwear from her and reiterated you were interested in her younger friends. You told her, ‘The younger the better and the rewards get higher'.
16Chelsea transmitted to you an image and a video of a naked pubescent female, categorised as child abuse material.
17On the 17, 24 May and 7 and 17 June 2020 you messaged Chelsea asking if she had had any luck with her younger friends.
18Throughout this conversation, you solicited child abuse material by requesting that Chelsea send you child abuse material of herself or connect you with younger friends who would send you material. As a result, you caused Chelsea to transmit to you one video and one image of a naked pubescent female, categorised as child abuse material.
Charge 2: Grooming person to make it easier to engage in sexual activity with a child outside Australia and the person you spoke to in respect of this charge was 'Pau' or 'PM'
19Between 28 August 2021 and 8 January 2022, your engaged in a WhatsApp conversation with 'Pau & Marian'. Throughout this conversation, you engaged in communications with the intention of making it easier to engage in sexual activity with a child outside Australia. The conversations between you and PM often related to your desire to engage in sexual activity with the child, 'Marian' and your ability to reward PM for allowing you to do so, or for providing you with images and videos of Marian. As part of your conduct, you solicited and caused child abuse material to be transmitted to you.
20The communications between you and PM commenced on 28 August 2021, when you stated, 'Thank you for the show' and 'Can’t wait to see you again'.
21You then had lengthy discussions about having sexual activity with Marian. During this discussion you offered to pay 300 Philippine pesos at a minimum per month to PM to have a 'little naughty fun' with Marian. You told PM you would organise for her and Marian to come to Australia. In your discussions, you asked PM if Marian was okay with the video earlier and told PM that you 'can’t have enough of her' – meaning Marian. PM told you that she had told Marian to call you Uncle Manny.
22After this conversation, PM sent you an image of a prepubescent girl wearing a dress, taken from behind. You stated, 'Please send me a couple more pictures of her…is there anything she like, a toy that I can try to buy online and send it to you?'.
23During the approximately five months that you spoke with PM, you messaged most days. Throughout the conversations, you regularly discussed engaging in sexual activity with Marian, referred to her as your 'little girlfriend' and asked for videos and images of her. Your requests included, for example, a request to see Marian getting changed after a shower, a video of Marian nude pointing to where you can kiss her, a video of Marian saying, 'Uncle Manny it's only you for you, do you like it', and a video of Marian pulling down her pants and saying 'Hi Uncle Manny'.
24On 11 October 2021 and again on 25 October 2021 you said to PM that you were in contact with someone who had two daughters aged 12 and 13. You said you were not sure if you could trust this person, but said, 'Marian is not the girl for action in real'.
25You continued messaging PM telling her you would visit and bathe Marian. You told PM that you liked seeing videos and photos of Marian but were frustrated that 'I can only dream about it'.
26In a message on 16 November 2021, you told PM you wanted to kiss every inch of Marian. PM told you she would let you if you supported Marian’s study. You said you would and that you cared about Marian.
27In a message on 19 November 2021, you referred to Marian as your 'little girlfriend'.
28Throughout your conversations, you regularly discussed sending money to PM and PM regularly requested money from you in exchange for material. On some occasions, you purchased items for PM, including a bicycle for Marian and a hotel room for PM.
29The conversations between you and PM ceased on 8 January 2022 when PM said, 'The thing you want for Marian is child abuse'. In this conversation you said to PM 'You offered and it took five months and 30k Philippine peso approximately reward'.
30You received approximately 13 images and six videos of Marian during the conversation with PM, which are categorized as child abuse. They include:
(a) An image of the lower torso and upper legs of a prepubescent female. The child is wearing underwear which is pulled down to expose her genital area.
(b) A video of a prepubescent female naked, putting her underwear on, with a focus on the genital region.
(c) A video of a naked prepubescent female standing on a bed putting underwear on. The focus is on the child’s genital region.
(d) A video of a naked prepubescent child in a plastic bathing tub. There is a focus on the genital region of the child.
(e) An image of a prepubescent female child holding a towel, with a focus on the child’s genitals.
Charge 3: Is a charge of solicit child abuse material and cause child abuse material to be transmitted to self between 7 September 2021 and 3 August 2022
31Between 7 September 2021 and 3 of August 2022 you solicited child abuse material and caused it to be transmitted to you during online conversations with 11 separate users. They were:
(a) Country Girl PH;
(b) Genelyn;
(c) Lovingonrine98;
(d) Bedt;
(e) Andy;
(f) Bablyn;
(g) Unknown user 125;
(h) Kimberley Animos;
(i) Urasian;
(j) AsianLover4U;
(k) Wet.
32Charge 3 is a rolled-up charge capturing all 11 conversations.
Country Girl PH
33On the 7 September 2021, you commenced a conversation with 'Country Girl PH'. You asked her what she had and she told you she had a daughter and a son.
34You asked about the daughter and were told she was 15. You told Country Girl PH that you would send money to see pictures of her.
35You indicated that you had sent 500 Philippine pesos, then stated, 'Send me a couple of nudes and we'll do another 500'. Country Girl PH said she could not do nudes. You replied, 'Not just a couple, please do more pictures of her and some more videos, will send another 500. If we're both happy, will continue to do in the future'. You again requested 'Nudes of her :)'.
36Country Girl PH sent you images of a female. You responded, 'No that’s not her !!@', 'Her'. Communication ceased shortly thereafter.
Genelyn
37On 8 September 2021 you commenced a conversation with 'Genelyn' via WhatsApp requesting child abuse material in return for payment. You asked Genelyn what she had, and she replied she had a daughter and a niece aged 3 and 6. You offered her 500 Philippine pesos to start sending pictures and videos and told her there was more money on offer depending on what she had. You expressed a preference for the 6-year-old.
38Following this discussion about payment, Genelyn sent you a video. It is not known what the video was of. You responded, stating that the video was ready made and you wanted a video made especially for you. You continued to express some scepticism that the video depicted the child offered by Genelyn. Genelyn reassured you that it was and said, 'We will make more for u’. You replied, 'Mm.. I wish that’s my d@#$ there instead of the bottle ;)'.
39Later in the conversation you asked the child’s name and if she had done anything like that before. You asked if there was any chance you could meet her and 'taste' her if you came to the Philippines. You asked Genelyn to keep your details private.
40On 10 February 2022, Genelyn told you that the children had been taken from her care. You sent a message to Genelyn which stated, 'What can you offer me if I help?' Genelyn responded, 'I more than willing to do anything', 'just to get them', 'any kind of show you want'.
41You requested Genelyn to hook you up with a younger girl. She replied 'Younger than 4?' to which you responded that her girls are okay if she is happy to offer them. You told her you had another 8-year-old girl on offer in Manila, but you did not trust the person offering her to you. You complained that 'I can’t just send first and then keep getting excuses with no results'.
42Later that day, you made a final request for child abuse material from Genelyn. No further material was received by you, and the conversation ceased on 1 March 2022.
Lovingonroine98
43On the 8th of September 2021, you began speaking with 'Lovingonrine98' via WhatsApp. She offered you her 7-year-old daughter. You requested some pictures.
44After a discussion about payment, you stated, 'I said I’ll do 1000 Philippine pesos, if you don’t even start with one picture, then I’ll find someone else'. Later, you stated, 'I just sent another 300, will do another 500', 'Once I get some pictures & videos nude'. No material was received.
Bedt
45On the 13th ofSeptember 2021, you commenced a conversation with 'Bedt' via WhatsApp. You and Bedt discussed you paying for a show and Bedt stated she had a niece. You asked how old and Bedt told you that her niece was 14. You stated, 'Can I see a picture of her first?' As a result, Bedt sent you an image of a female, which was not child abuse material. You replied, 'Send me some of her nudes, pics & videos'. You subsequently stated, 'She is not 14, you’re lying' and ceased contact with Bedt.
Andy
46On 23 October 2021, you commenced a conversation with 'Andy' via WhatsApp. Andy advised you that she was a single mum and had a daughter.
47You asked for a picture of Andy and her daughter. Andy sent you an image of an adult female and another image of a prepubescent female, which was not child abuse material.
48On 21 October 2021, the conversation between you and Andy continued. You stated, 'Picture?', and 'I already found someone in Manila & we begin to help each other last few week', and 'I need to think & you have prove [sic] your [sic] genuine & I can trust you..'.
49Later in the conversation you asked Andy how much reward they were expecting for 'Some nudes & videos getting undressed'.
50Following this, Andy sent you two images, one of a prepubescent female and one of a pubescent female, neither of which were child abuse material. You indicated that you had sent 1600 Philippine pesos in total.
51On 28 October 2021, Andy sent you an image of a naked pubescent female and a pubescent and prepubescent female sitting in a plastic tub full of water, with the younger female wearing only shorts. Andy asked you what you would like next, and you stated, 'Need to see more of the younger one'. Andy requested more money and sent you a video of a pubescent female undressing in front of the camera, fondling her breasts and masturbating. Again this was not classified as child abuse material. Andy also sent an image of a prepubescent female child looking distressed. Again it was not child abuse material. You said, 'I already sent 1600 for 2 x pictures? That’s not how it’s going to work, I won’t keep paying you for each picture and video'.
52Later in the conversation, you again requested 'More of the younger one?'. No further material was received.
Bablyn
53
On 14th November 2021, you engaged in a WhatsApp conversation with 'Bablyn'. Bablyn advised you that she was a single mum. On 15 November 2021, Bablyn sent you an image. It is unknown what the image depicted. You responded, 'How old are they?' Bablyn stated '12, 16, 3'. Bablyn indicated that the 12 and the
16-year-old were her daughters and she could provide material depicting them naked. You told her that you had had trouble with other girls offering similar material and asked her how you could trust her. You said you would not continue until she proved herself.
54Bablyn continued to offer naked images of the children for payment, and you stated, 'Send me semi 1 first then, I know you’re serious'. Bablyn sent you an image of a clothed pubescent female. You responded 'Is this even the same girl? I'm not sure, where’s the 12-year-old?'. Bablyn sent a further image to you (not captured in download) and you replied, 'She doesn’t look 12’.
55After some further discussion about payment and material, you stated, 'So you have to send me a naked one of the 12-year-old, then after that I will reward you with 500 Philippine pesos'. 'You send more and then I’ll reward 500 more'. No further material was received, and communication ceased.
Unknown user (account number 639301366125) ('User 125')
56On 30 November 2021 you engaged in a WhatsApp conversation with an unknown user, using an account number ending in 125. User 125 sent messages to you indicating she had a daughter.
57Following this, you responded, 'What can you offer me?' User 125 replied, 'U like to see her fully naked', 'And me and daughter video'. You replied 'Sure' and asked how old the child was, to which User 125 confirmed she was 10. You indicated you were only interested in the child. You then had a discussion about payment in which you complained to User 125 that you had had bad experiences and you wanted her to prove that the child on offer was real.
58No material was received and communication ceased that day.
Kimberly Animos ('KA')
59On 27 April 2022, you engaged in a Skype conversation with 'Kimberly Animos' ('KA'). You asked, 'So what do you have?', 'I’m looking for a girl'. KA sent you an image of a girl who appeared to be in her late teens and this was not child abuse material. You replied, 'Who’s she to you? Relative? Has she done anything like that before?. KA advised you that it was her cousin.
60Later that day, you stated, 'I’ll do 500 Philippine pesos first, once I see some pictures videos, I’ll do another 500 Philippine pesos'. You requested that your details be kept private.
61Following this, you requested child abuse material of KA’s cousin.
Urasian
62On the 4 May 2022, you engaged in a conversation with Urasian via WhatsApp. Urasian asked you to send 30 tokens and you asked Urasian if she had another girl and how old she was. Urasian said he had a 10-year-old and again requested 30 tokens.
63You said you wanted pictures and videos of the girl and said you wanted 'one normal picture' to prove that Urasian really had the child before you would send the 30 tokens.
64Urasian sent you an image of a peri-pubescent child wearing a black bra.
65Later in the conversation, you again requested 'nudes' and said, 'I’ll send you 500 Philippine pesos first & then you make some nude pictures and videos of her, not one, a few, after that I will send another 500 Philippine pesos'. Urasian advised you that you needed to send more money for videos, and you replied, 'No, deal was pictures and videos. I have other girls doing the same for me in PH (Philippines). I help them regularly and they sending [sic] me every couple of days & also I can have them when I come to PH, I rather continue with them'. The conversation then ceased.
Asianlover4u ('AL')
66On 14 July 2022, you engaged in a WhatsApp conversation with 'Asianlover4u' ('AL'). You asked, 'Do you have a daughter?', and AL replied,''Me have two girls, '10 and 5'. You responded 'Nice !! 'Can I meet them?'. When AL asked what for, you stated, 'Can I get a little naughty with her?' and offered 5000 Philippine pesos. You then requested sexy pictures of them. You offered 500 Philippine pesos if AL would make videos of them stripping or anything sexy. You said to send at least 10 nudes and then you would send a further 500 Philippine pesos.
Wet
67Finally, on 3 August 2022, you engaged in a WhatsApp conversation with 'Wet'. At the beginning of the conversation, 'Wet' stated, 'Send PayPal', 'I don’t show girl naked'. You responded, 'Who you have? and Wet replied '11 girl'. You asked if you could meet her when you came to Philippines and spend time with her. You said, 'I will send token if you can send me some nudes of her & make a video stripping. If I can meet her, I will give you 5000 Philippine pesos once we meet'. Wet replied, 'No sorry'.
Charge 4: Grooming person to make it easier to engage in sexual activity with a child outside Australia (Rose)
68Between the 22nd of January and 9th August 2022, you engaged in a WhatsApp conversation with 'Rose'. You engaged in communications with Rose with the intention of making it easier to procure a child for sexual activity outside Australia. In the course of your discussions, you also solicited child abuse material from Rose and caused child abuse material to be transmitted to you.
69On 30 January 2022, you had a conversation with Rose in which she told you she could create a video of her daughter with her cousin both naked and with 'open pussy'. You asked if you could meet her daughter and spend time with her if you came to the Philippines. Rose agreed.
70The conversation continued to 31 January 2022, and you stated, 'my privacy must be guaranteed before we go ahead, once I come to PH, will meet you & spend time with her & reward you well'. You sent Rose an image of a remittance for 1000 Philippine pesos. Rose then sent you an image of a prepubescent female with her top pulled down to expose her naked chest area and this is child abuse material. Rose claimed that this was another daughter.
71Conversations continued between you and Rose between 31 January 2022 and
30 July 2022.72In a conversation on 30 July 2022, you said you were coming to the Philippines next month and wanted to meet her daughter. Rose said she and her daughter were in Manila and asked for help for food in exchange for a picture and video. You asked Rose how old her daughter was and what you could do with her. You asked if she had ever done anything like this before. Rose said she had. You requested nudes and a stripping video and told Rose that when you come next month if you can spend time with her daughter, you will reward her well.
73You and Rose continued to discuss payment and whether payment should be sent before images and videos were sent. You told Rose not to waste your time and that there were other girls that you could meet.
74You did not receive a reply.
75On 8 August 2022, you messaged Rose and said, 'Are you happy for me to meet your daughter if I come there?'. Rose told you, 'Yes I'm really happy'. You then discussed payment before you ceased contact, stating that you had another girl in Angeles City and that Rose was wasting your time.
Charge 5: Grooming person to make it easier to engage in sexual activity with a child outside Australia (Jhoy)
76Between 29 April and 21 September 2022, you engaged in a WhatsApp conversation with Jhoy. You were looking to procure a child for sexual activity and you solicited child abuse material from Jhoy and caused child abuse material to be transmitted to you.
77On 29 April 2022, you told Jhoy you were looking for a younger girl and asked if she had a daughter or a younger friend. You said you could send money via PayPal. Jhoy told you she had a daughter and a son, and you asked how old her daughter was. Jhoy said her daughter was 8 years old. You requested a picture and offered to send 500 Philippine pesos if Jhoy would send you a picture of the child with her underwear pulled down.
78Jhoy sent you an image of a prepubescent female child’s body showing her lower torso and upper legs. The child was wearing underwear. You replied, 'Will reward you more in coming days, it’s not a once off thing'. Jhoy then sent you an image which is categorised as child abuse material. You replied, 'This is not once off, if you continue to send me pictures and videos when you can, I’ll continue to reward you, but not for every photo video'.
79You then asked if you could meet the child in the Philippines and said that you could pay well.
80On 30 April 2022, you engaged in the following conversation with Jhoy in which you discussed her daughter, Kim. You told Jhoy to keep sending pictures and videos and that you would reward her and send her about 500 Philippine pesos a month once you get paid. You asked Jhoy if you could get naughty with Kim when you came to the Philippines. Jhoy agreed that you could. You said to Jhoy you couldn’t get enough of looking at the pictures and videos. You told Jhoy that you were planning to come to the Philippines just to see her.
81Between 1 May 2022 and 21 July 2022, you were in daily contact with Jhoy. During these conversations, you would refer to Jhoy’s daughter, 'Kim' as your little girlfriend, and would discuss your desire to engage in sexual activity with Kim in the Philippines. You continued to send monetary payments to Jhoy and in response, Jhoy would send child abuse material to you.
82On 21 July 2022, you advised Jhoy you were trying to travel to the Philippines.
83On 8 August 2022, you began communicating with Jhoy via a new mobile number on the WhatsApp application. Between this date and 20 September 2022, you continued to discuss engaging in sexual activity with Kim in the Philippines and transmitted money to Jhoy in exchange for child abuse material.
84
On 6 September 2022 you confirmed you would arrive in the Philippines on
19 September 2022.
85On 19 September 2022, while you were in the Philippines, you messaged Jhoy wanting to see Kim that night. Throughout the series of messages, you become increasing agitated as Jhoy failed to bring Kim to you. You told Jhoy you wanted Kim to stay with you, 'tomorrow and Wednesday' and you would then bring her home. You told Jhoy to tell Kim’s teacher that she is sick. You said to Jhoy you have another girl in Manila.
86On 20 September 2022, you had a conversation with Jhoy about where you would meet.
87On 20 and 21 September 2022, voice calls were made in a chat between you and 'Love', suspected of being Jhoy, in which you berate her for not bringing Kim to see you. She makes excuses that Kim is sick. You say you have sent 80,000 pesos only to be disappointed.
88On 21 September 2022, you advised 'Love' you were getting ready to go home. Love tried to call and message you. You did not respond. Love again claimed Kim was sick. You told her that you were very disappointed and this is your last communication.
89During your conversations with Jhoy you received approximately 15 images and 10 videos from Jhoy which were child abuse material, including:
(i)An image of a prepubescent female child’s body with a hand pulling down the child’s underwear to expose her genitals.
(ii)An image of a naked female child about 8 years, standing in a room with her genitals exposed.
(iii)A video of a naked child dancing and posing sexually, including bent over with her buttocks towards the camera and spreading her buttocks apart with her hands.
(iv)A video of a naked female child washing. The child’s genitals are captured in the video.
(v)Close up images of a prepubescent child’s vagina.
(vi)A video of a naked prepubescent female child dancing in a sexual manner, rubbing her vagina with her hands and pulling her labia apart to expose her vagina and her buttocks apart to expose her anus.
(vii)An image of a prepubescent female child in her underwear in a sexual pose.
(viii)A video of a prepubescent female child wearing a dress pulled up to expose her anus and genitals. An adult female is heard talking during the video.
Charge 6: Grooming person to make it easier to engage in sexual activity with a child outside Australia (Hanna Mhae) ('HM')
90On 26 May 2022, you engaged in a WhatsApp conversation with 'Hanna Mhae' ('HM'). In this conversation you engaged in communications with the intention of making it easier to procure a child to engage in sexual activity with you outside Australia.
91In this conversation you asked HM, 'who do you have?'. She told you she had a daughter who was nine. You asked to see a picture and she sent you a picture of a female child aged around nine. You asked HM what the child had done before and then asked if you could meet her and spend time with her. You told HM you would send 500 and once she had proved what she will really do you would send the balance. You said you would reward her 'really well' 10K+. You said you had another girl from Angeles City and you were planning to come and see her daughter. You said you could meet HM at the same time. You continued to ask her what her daughter could do for you when HM said 'show only'. You told you were looking for someone to meet.
92On 27 May 2022, HM sent you an image of people purporting to be her and her daughter and requested 500 Philippine pesos to buy medicine. You stated, 'As I said I’m not planning to go ahead as I have a better offer from the other girl..sorry', '& I thought you would send me some nudes…That’s ok..'.
93On 3 September 2022, you messaged HM stating you would be in the Philippines in a couple of weeks and asking to meet. You contacted HM again on 10 September and 20 September 2022 without response.
Charge 7: Grooming person to make it easier to engage in sexual activity with a child outside Australia (Unk)
94Between the 4th of July and 19th of September 2022, you engaged in a WhatsApp conversation with the user 'Unk'. You engaged in communications with the intention of making it easier to procure a child to engage in sexual activity with the child outside Australia. In doing so, you solicited child abuse material from 'Unk'.
95On 4 July 2022, you commenced the conversation with Unk. You asked Unk who she had and she told you she had a four and 15 year old daughter. You asked if you could meet them if you came to the Philippines. You asked what they had done and if you could see. You asked if you could have a 'naughty time' if you came to the Philippines. You told Unk you had a girl with a daughter in Angeles City who you were visiting next month you asked Unk if you could meet her and her daughter at the same time and asked what you could do to her.
96Later in the conversation, you said, 'Hi babe, so are you really happy to do pictures and videos? & meet in person?', 'I already have a girl with daughter who’s in Angeles City there & planning to visit them next month', 'Can meet you same time?'. Unk replied 'Sure'. You then said, 'What can I do with her if I come there?'.
97You then discuss payment and told Unk you had sent half and would send more once you got pictures and videos and more when you arrived there. Unk sent you an image of a child who was purportedly her daughter and asked for more money. You said you would send more money when you got videos of her stripping or some nude pictures.
98On 5 September 2022, you advised Unk you were coming to the Philippines next month and asked how old her daughter was. You then asked for a picture of her daughter. You then discussed whether money or a picture should be sent first.
99On 19 September 2022 you advised Unk that you were in the Philippines and tried to voice call her. No further messages were received from Unk.
Charge 8: Grooming person to make it easier to engage in sexual activity with a child outside Australia (Pinay Piinay) ('PP')
100Between 8 July 2022 and 19 September 2022, you engaged in a WhatsApp conversations with user 'Pinay Piinay' ('PP'). You engaged in these communications with the intention of making it easier to procure a child to engage in sexual activity with that child outside Australia. In doing so, you solicited child abuse material from PP.
101You told PP you were coming to the Philippines next month. PP told you she had a daughter and you asked how old she was and if you could have a ‘naughty time’ with her. PP told you her daughter was one year and eight months. You responded that was 'maybe a little too young' but asked PP if she would really let you 'get a little naughty with, promise I won’t hurt her'.
102PP sent you an image of a toddler. You asked her if she had any older friends aged between five and 10. PP said she had a six-year-old and you asked if you could come and do things with her.
103You told PP that you were looking to get nudes and stripping videos once you had sent money.
104On 8 September 2022 you messaged PP and said you were coming to the Philippines the following week and asked if you could meet.
105On 19 September 2022, you sent a message to PP advising you were in the Philippines.
106There were no further chats with PP.
Charge 9: Grooming person to make it easier to engage in sexual activity with a child outside Australia (Kittykate) ('KK')
107On 12 July 2022, you engaged in a WhatsApp conversation with user 'Kittykate' ('KK'). You engaged in communications with the intention of making it easier to procure a child to engage in sexual activity with you outside Australia.
108KK told you she had a 9-year-old daughter and you asked to meet. KK asked what you wanted from her and you said you would send 20 tokens in exchange for a couple of pictures. You said you were meeting another girl when you come to the Philippines and said you could meet KK’s daughter at the same time. You said you could send money via PayPal or token once you knew what was on offer.
109After some discussion about payment, you asked KK what the child could offer, and KK asked you what you wanted. You replied, 'Can I get naughty with her?, 'First show me couple of pictures', 'Then I will send you 500 Philippine pesos, you can make couple of videos & some pictures of her for me'. KK did not respond and you stated, 'Once we meet I’ll reward you 3000 Philippine pesos'. You did not receive a response.
Charge 10: Grooming person to make it easier to engage in sexual activity with a child outside Australia 'Mab Scarlette22' ('MS')
110Between 14 July 2022 and 19 September 2022, you engaged in a WhatsApp conversation with user 'Mab Scarlette22' ('MS'). You engaged in communications with the intention of making it easier to procure a child to engage in sexual activity with you outside Australia. In doing so, you also solicited child abuse material from MS.
111You told MS you were coming to the Philippines next month and asked if she had a daughter. MS said she had a daughter and asked why you wanted to see her daughter.
112You asked if you could 'get a little naughty with her' and offered 5000 Philippine pesos. MS expressed some hesitation; you said you would reward her if she changed her mind.
113You then asked for a picture of the child and MS sent you one. MS stated, 'That’s her my eldest'. She confirmed her daughter was 12 years old and you replied, 'Wow!!, I would reward 10,000 Philippine pesos if I can have a night with her'.
114You asked MS for a photo of the child for 10 tokens. She said no and you asked again for a photo of the child with her pants pulled down a little showing her 'flower'. You said you would pay 100 tokens.
115You messaged MS again on 3 September 2022 and received no reply.
116On 19 September 2022 you messaged MS that you were in the Philippines. You received no reply.
Charge 11: Grooming person to make it easier to engage in sexual activity with a child outside Australia (micamica90) ('MM')
117On the 8th of September 2022 and the 19th of September 2022, you engaged in a Skype conversation with MM. You engaged in communications with the intention of making it easier to procure a child to engage in sexual activity with you outside Australia. In doing so, you also solicited child abuse material from MM.
118On the 8th of September 2022, you asked MM to send a picture of her daughter. MM agreed and sent you an image of a female child, aged about 12 years of age, wearing a pink cap and a black singlet top.
119You asked what you could do with the child and MM told you that you could do anything you want in exchange for payment. MM said you could meet with the child. You asked how much to meet with her and spend time with her.
120You and MM discussed how much money you could provide, and you stated you would pay 8K to meet her and would send 1K today.
121Later that day, you asked MM to send more 'normal' pictures of the child. MM sent you two images of the same female child, one in the water/ocean and one a close up of her face. You asked for the child’s name and for nudes and videos. You and MM then discussed money for further material.
122On the 19th of September 2022, you sent MM a message stating:
'Hi, I’m in Philippine'. MM responded, 'You can send now 1500 then I meet you today or tomorrow'.
123You replied:
'Cash on meet up only', 'Are you happy to meet?'.
124You received no response.
Charge 12: Persistent sexual abuse of a child outside Australia (unknown child)
125On 21 September 2022, you engaged in sexual activity with an unknown child under the age of 16 while in the Philippines.
126You engaged in two instances of sexual penetration of the child under 16 and one instance of sexual activity with the child. The evidence of this offending was identified in videos located on your Samsung Galaxy S8, with a creation date of 21 September 2022. Other videos and images created in close proximity to these files suggest that the offending occurred in the Philippines. The child present in the videos is yet to be identified.
127The offending occasions are as follows:
a. Occasion one: Digital penetration of a child
(i)At about 11:03 pm (Manila time), you were filmed rubbing and digitally penetrating the vagina of a pre-pubescent female child. As this occurred, the child said 'ow' and was visibly experiencing pain. The child is lying on a distinctive blue, white and cream doona with a leaf pattern.
(ii)The video was 12 seconds and saved in 'Album 4' of your Samsung Galaxy S8.
b. Occasion two: Oral penetration of a child
i. At about 11:14 pm (Manila time), video captured your head and a
pre-pubescent female child’s lower torso and genital area. You were performing cunnilingus on the child. The child is lying on the distinctive blue and white doona cover with a leaf pattern. The recording pans up to show the child’s naked chest and face.ii. The video was 31 seconds and saved in 'Album 4' of your Samsung Galaxy S8.
c. Occasion three: Sexual activity with a child
i. This was at about 11:08 pm (Manila time) you are captured on video with your penis touching the genital area of a pre-pubescent female. You were holding your penis and it cannot be clearly ascertained from the video whether your penis penetrated the child’s anus or vagina. The video panned out to show the child’s chest area and the child is lying on the distinctive blue and white doona cover with a leaf pattern.
ii.This video is 17 seconds and again is saved in:Album 4' on your Samsung Galaxy S8.
128Located with the video files were a number of images of you and a prepubescent female child inside a room with the distinctive blue, white and cream doona cover. Five (5) of the images are child abuse material, depicting:
(a) A prepubescent female child lying on the bed with her shirt pulled up to expose her breast/chest area.
(b) A prepubescent female lying on her back on a bed in just her underwear.
(c) A close‑up of a prepubescent female’s lower torso and genital area. The female has her underwear pulled down to expose the top of her genital area.
(d) A naked prepubescent female lying naked on her back with her legs apart and her genital area exposed.
(e) A close-up view of a prepubescent vagina.
Charge 13: Possess or control child abuse material
129Examination of your devices revealed images and videos categorised as child abuse material, possessed by you between 23 September 2022 and 15 November 2022. A sample of the material on these devices was viewed and categorised as child abuse material. In total, there were 697 images, 754 videos in total, 1,451 in total.
130Material located on your Samsung Galaxy S8 phone included:
(a) Videos of naked pre-pubescent female children of Asian appearance. The videos include naked pre-pubescent girls dancing in a sexually explicit manner and bathing, with a focus on their genital and anal areas. The videos also included naked pre-pubescent children touching their genitals, pulling their labia apart, with a focus on their genital areas. One of the recordings depicted an adult female fondling her breasts before squeezing the nipples of a naked pre-pubescent female child, touching the child’s genital area and pulling the child’s labia apart.
(b) The images predominantly depict naked pre-pubescent female children, some with a focus on the genital and anal region. There was a single image of naked pre-pubescent male with an erect penis.
131Material located on a laptop computer included:
(a) Videos files depicting:
(i)Adults engaging in acts of sexual penetration and other sexual activity with prepubescent and peri-pubescent children, including adult males engaging in sexual intercourse with female children and adult females engaging in sexual intercourse with male children.
(ii)Peri-pubescent females defecating.
(iii)Naked children posing sexually and masturbating.
(iv)Children engaging in sexual activity with other children, including acts of sexual penetration.
(b) Images depicting predominantly naked female children sexually posing with a focus on their vagina or anal region.
132Material located on an external hard drive included:
(a) Video files depicting:
(i)
Adult males performing cunnilingus on naked prepubescent and
peri- pubescent females.
(ii)Adult males digitally penetrating naked pubescent and peri-pubescent female children’s vaginas and anuses.
(iii)Pubescent and peri-pubescent females performing fellatio on adult males.
(iv)Adult males vaginally and anally penetrating pubescent and
peri- pubescent female children with their penises.(v)Close up views of prepubescent vaginas, including hands pulling the children’s labia apart.
(vi)Sexual aids being used on prepubescent and peri-pubescent female children.
(vii)Prepubescent males sexually penetrating a prepubescent female and a female child performing fellatio on the male child.
(b) Image files depicted:
(i)Naked prepubescent and peri-pubescent females posing sexually with a focus on their genital and anal area.
(ii)Naked prepubescent female child with ejaculate on her face.
(iii)Naked prepubescent and peri-pubescent females performing fellatio on naked adult males or masturbating naked adult males (including an adult male with three prepubescent female children).
(iv)
Naked adult male performing cunnilingus on prepubescent and
peri- pubescent females.
(v)An adult inserting a sexual aid into the vagina of a prepubescent female.
(vi)Adult males vaginally penetrating prepubescent and peri-pubescent female children with their penises.
133Material located on the Hitachi hard drive identified child abuse material, namely:
(a) a. Video file depicting:
(i)Peri-pubescent females masturbating including one another with a sexual aid.
(ii)Prepubescent female masturbating an adult male and the adult male undressing the child and then fondling her buttocks and genital area.
(iii)An adult male sexually penetrating a peri-pubescent female child.
(b) Images predominantly depicting naked pubescent and peri-pubescent females in sexual poses. Most of the images depicted were in a series which included multiple images of the same child.
Summary Charge 6: Visually capture another person’s genital or anal region
134On 17 November 2022, media files were located on your Samsung Galaxy S8 phone dated 2 January 2022, which depicted you and a young pre-pubescent female child. The video depicted:
(a) You inside your home asking someone to hold a television. A young girl is then seen holding the television while you attend to a cable attached to the back of the television. The recording is made from the floor looking upwards. Young boys are seen and heard in the recording. The recording captures the female child’s genital area. She is wearing a skirt and underwear. The recording device is moved to clearly capture the genital and anal region of the child as she is standing directly above the recording device.
(b) You ask the young female child if she can hold the television again and a recording is made from the same location, with the child standing over the recording.
135Enquiries revealed that the child depicted in the videos is the child of your close family friend. The video was identified as recorded at your home and it was identified from the distinctive furniture depicted.
136The child was born in October 2010. She was 11 years old at the time the videos were recorded. That concludes the summation of the charges.
Plea of Guilty
137I now turn to the matters which I am required to have regard to on your plea, and I begin with your plea of guilty. This matter resolved at a committal mention in the Magistrates’ Court on 14 July 2023. This is a plea at the earliest opportunity which has been of considerable benefit to the community in obviating the need for what would have been a lengthy and costly trial. The timing of your plea predates the announcement that the backlog of trials occasioned by the COVID-19 pandemic had been cleared in this Court and I therefore accept that your plea of guilty attracts a Worboyes[1] discount.
[1] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
138However, while I accept that you are entitled to a Worboyes discount for your plea of guilty, when applying the Worboyes discount it is necessary to consider the degree of pandemic related delay at the time the plea was entered. In July 2023 the situation in this Court was not what it was in 2020 when trials were suspended indefinitely at the height of COVID uncertainty. Accordingly, you will get a Worboyes discount, but it will be reflective of the circumstances at the date of your plea and will not be of the magnitude that pleas were attracting at the height of the pandemic.
Co-operation with Authorities.
139After some initial reluctance to provide the PIN code to your mobile phone to investigators, you did provide it to investigators. You have also made some limited admissions to child pornography on your phone and to looking at material that you should not have. But generally, in your record of interview you minimised your conduct and you refused to consent to a non-intimate forensic procedure. I find your co-operation with authorities to have been minimal.
Personal circumstances
140I turn now to your personal circumstances and antecedents.
141
In outlining your personal circumstances, I rely in the main to the report of
Mr Simon Candlish, Consultant Psychologist with whom you met and were interviewed on 21 February and 2 March 2024, and who prepared a report dated 12 March 2024 which was tendered at your plea.
142You were born in February 1978, and you are presently 46 years old.
143You were born in Sri Lanka. You have two younger brothers. Your parents are both still alive and still married.
144You reported to Mr Candlish a positive upbringing, although you did witness some violence associated with the long-running civil war in Sri Lanka.
145You completed the equivalent of Year 12 in Sri Lanka and with your parents’ support you relocated to Australia in 1999 to complete your tertiary studies.
146You completed a Diploma in Engineering and a Diploma in Information Technology. I am unclear where you obtained your diplomas. You wanted to attend university in Queensland but were unable to do so because of financial constraints.
147You worked in a succession of menial jobs to support yourself in Australia.
148You returned to Sri Lanka in 2006 where you worked for an environmental project. This project ended in 2008 and you returned to Australia in 2009.
149You met your wife when you were 24 years old, and she was 17 and a half years old. You married in 2009 when you would have been around 31 years old. You told Mr Candlish that your marriage was delayed because of financial difficulties. You lived with your wife’s parents who relocated to Australia to be near their daughter. You and your wife have two sons, who are now aged 11 and 9.
150In around 2010 you found employment in a managerial role at a hotel. You worked at the hotel for about three years, and then you worked in a winery for two years. After you left the winery, you worked in factories and in cleaning until around 2017.
151You and your wife bought a home in 2014. It seems from the outset you have struggled to pay the mortgage on your home. You were eventually made bankrupt and despite you having secured another position as a night manager at a hotel, your home was sold pursuant to a court order on 22 November 2022.
152You have only used drugs recreationally in your youth. You have only abused alcohol in the context of the stress associated with your bankruptcy.
153You have no criminal history.
154References were tendered at your plea from your younger brother and your wife.
155Your younger brother says he and your parents, and your other sibling were all shocked when they heard about the charges. He says that he and your parents regretted that they did not do more to support you when you were struggling in Australia. He says you have always been a loving son, brother and husband, and a good father.
156Your wife says she had known you for 24 years. She says you are a devoted father and a supportive husband. She speaks at length about the effect of the bankruptcy and losing the family home. She says at the age of 38 with you in custody she has become a homeless single parent of two young children. She has since moved into rental accommodation with her children. Your wife continues to support you and regularly visits you in prison.
157In addition to the matters set out in your wife’s reference I was informed by your counsel that your wife is presently only earing around $24,000 a year which is supplemented by Centrelink benefits. As well as her children, your wife also provides for her parents, who are now aged 80 and 70.
158You are a permanent resident of Australia, but you are not an Australian citizen. Consequently, you are liable to deportation at the conclusion of your sentence.
159On your mental health and the effects of incarceration upon you and your risk of reoffending Mr Candlish gives the following opinions.
160You reported to Mr Candlish struggling with your mental health due to your financial difficulties. You said you were depressed and abusing alcohol in around 2022. You said you had contemplated suicide in 2022.
161You have been in custody since your arrest on 15 November 2022. You report struggling with your mental health in custody. You have been seeing a psychiatric nurse. You were prescribed an anti-depressant medication in January 2023 which you stopped taking in February 2023.
162At your interviews Mr Candlish found you to be experiencing obvious distress and feelings of helplessness, but not experiencing any perceptual or thought disorder.
163On your offending you reported to Mr Candlish that you had come across child abuse material accidentally in your thirties. You denied developing an addiction to this material and denied sexual arousal to child abuse material. You admitted you knew it was wrong to look at child abuse material.
164You told Mr Candlish that your online contact with individuals involved you being asked for money and being sent images of clothed children. You said you did not regard yourself as having had contact with many individuals online.
165You told Mr Candlish you went to the Philippines for a conference in 2022. You said you got drunk and were taken to the nightclub area where there were exotic dancers.
166You admitted having committed a contact sexual offence in the Philippines. You said it was a chance encounter and that the adult woman pursued you for financial assistance. You admitted touching and orally penetrating a girl aged 12-13 years old. You did not discuss the upskirting offence.
167Mr Candlish conducted a number of psychometric tests. He opines on the basis of his testing and your presentation that you meet the criteria of a major depressive disorder of mild severity. You also appear to meet the criteria for alcohol use disorder in remission and paedophilic disorder (female children, non-exclusive). You are also aroused by adult females.
168Mr Candlish gives the opinion that you fall into the moderate-low risk for reoffending. He gives the opinion that you reveal risk factors associated with stress, self-awareness and relationship issues and sexual deviance, but you have a number of protective factors including that you have had an otherwise pro-social lifestyle and that you are heavily invested in returning to family life.
169On your continued incarceration Mr Candlish gives the opinion that:
sustained incarceration is likely to cause a worsening in Mr Senerath’s depressive symptoms and an increased risk for suicide. He is more likely to experience increased anxiety about his marriage and his children and experience strong levels of guilt and helplessness. He is reluctant to take anti-depressant medication related to underlying guilty and so might suffer impacts as a result. His depressive disorder could therefore increase in severity.[2]
[2] Report of Simon Candlish dated 12 March 2024 at paragraph 118
Submissions.
170I turn now to the submissions of the parties and I begin with the submissions made by Ms Champion, who appeared on behalf of the Commonwealth Director. She submitted the following.
171Ms Champion submitted that Charge 12 attracted a prescribed minimum penalty. She referred me to the relevant statutory provisions[3] according to which a Court may impose a sentence of imprisonment less than the prescribed minimum only if it considers that it is appropriate to reduce the sentence because the court is taking into account the person is pleading guilty and/or the person has cooperated with law enforcement agencies. In the circumstances the Court may reduce the sentence by an amount that is up to 25 per cent of the period equal to the prescribed minimum penalty in respect of each head of reduction, with an overall reduction of 50 per cent if the court is taking into account both heads of reduction.
[3] S.16AAA, 16A(1), 17(A)(1), 16A(2)(g), 16A(2)(h) Crimes Act 1914 (Cth)
172She referred me to the High Court decision in Hurt v The King and Delzotto v The King[4] which considered the operation of the prescribed minimum penalty regime. She submitted the following relevant principles could be distilled from the judgment.
[4] [2024] HCA 8
173First, the consideration must be directed to the statutory minimum sentence at all steps in the sentencing process.
174Secondly, the statutory minimum penalty functions as a yardstick representing the least worst category of case for which a sentence of imprisonment is required before applying any potential discounts. The yardstick imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances.
175Thirdly, the statutory minimum sentence is not to be considered just as a final step in the process if the sentence to be imposed is imprisonment.
176Fourthly, the circumstances that may operate to reduce a sentence below the statutory minimum period are exceptional.
177Fifthly, a legitimate procedure in imposing a sentence involving the provisions concerning a prescribed minimum penalty offence is to determine prima facie with the use of the prescribed minimum sentence as a yardstick before considering the potential discounts.
178Finally, that the statutory minimum sentence regime should result in more serious sentences of imprisonment and longer terms of imprisonment overall.
179On the relevant sentencing principles related to the use of the internet for child abuse material, Ms Champion submitted, in accordance with the principles well established in the authorities, that this is not victimless offending, and the consumption of child abuse material perpetuates the existence of a market for the production of this kind of material and the continued exploitation of children. General deterrence is the predominant sentencing consideration.[5]
[5] DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21]; R v De Leeuw [2015] NSWCCA 183 at [72].
180In assessing the objective gravity of the offending regard must be had to the nature and content of the material, the number of images possessed, the number of children involved, how long the offender possessed the material and whether the possession was for the purpose of sale or distribution and whether the offender will profit from the offence.[6]
[6] R v Caldwell [2021] QCA 112 at [72]
181In respect of the charges of grooming and the charge of persistent sexual abuse of a child outside Australia. Ms Champion submitted this offending involves the actual participation of you in the sexual abuse or in attempts to procure a child for sexual abuse.
182She referred me to the case of Beattie, a decision of the New South Wales Court of Appeal in which Price J set out a number of matters relevant to the assessment of the gravity of this type of offending and which include the consideration of:
(i) the age of the child and the number of children involved in the offending;
(ii) the gravity of the sexual offence;
(iii) the extent of any cruelty or physical harm experienced by the child in the
offending;(iv) the vulnerability of the child to sexual exploitation, including the country in
which the child resides and the child’s impoverished circumstances;(v) the role of the offender in the production of the offence, including the selection of the child, the nature and duration of the offence, the number of adults directly involved in the commission of the offence, and whether the offender provided any payment or other material benefit to a third party for the offence;
(vi) the level of control exercised by the offender, including by communications and directions with persons overseas, before or whilst the sexual offence occurs;
(vii) the degree of planning, organisation or sophistication employed by the offender in causing the child to engage in the offending;
(x) whether the sexual offence was recorded by the offender,
(xi) whether the sexual offence was recorded by the offender with the intention of disseminating the recording to other persons;
(xii) whether any payment or other material benefit was intended to be received or was received by the offender for causing the child to engage in the sexual offence; and
(xiii) whether the offender acted alone or in a collaborative network of
like-minded people.[7][7] DPP (Cth) v Beattie [2017] NSWCCA 301 at [127]
183On your offending Ms Champion submitted that your offending was objectively very serious, and your moral culpability was high.
184She submitted that your offending fell into three broad categories soliciting and receiving child abuse material, the direct physical abuse of a child and the possession of child abuse material. In assessing the gravity of your conduct relevant considerations are that it occurred over a two and a half year period and involved communications with 21 internet users with all communications directed at either receiving child abuse material or meeting a child for direct sexual abuse.
185
On the grooming charges, Ms Champion noted that there were apparently 11 children on offer whose ages ranged between 1 year and 8 months to
12 years old, and that on eight occasions you solicited child abuse material and received child abuse material on three of those occasions. In respect of nine of the charges you offered financial reward, in respect of eight of the charges you proposed a meeting in the Philippines and on five occasions you sought to meet with a child in the Philippines during your planned trip.
186She submitted on Charges 1 and 3 – and they are the charges of soliciting child abuse material and causing child abuse material to be transmitted to you, that these were both rolled up charges. Charge 3 spanned a period of 11 months (albeit there was no activity for six months) and involved you receiving child abuse material on 15 occasions and on one occasion offering a financial reward.
187On Charge 12 Ms Champion submitted that the child involved was very young. It was the opinion of the forensic paediatrician that the child was around 10, and by your own admission the child was as young as 12. Ms Champion submitted that the offending involved two acts of penetration of the child’s vagina, the child experienced pain and the activity was filmed and was clearly planned.
188On Charge 13 she submitted a large amount of material of a highly depraved nature was found over four devices.
189Ms Champion referred me to a number of cases which both give guidance in respect of sentencing principles for this kind of offending and as comparator cases.[8]
[8] R v De Leeuw [2015] NSWCCA 183 at [72]; DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21]; Director
of Public Prosecutions v Smith [2010] VSCA 215 at [23]..
Defence submissions.
190Mr McCauliffe who appeared on your behalf relied on the following matters in mitigation of sentence.
191First on your plea of guilty, which he submitted attracted a Worboyes discount, and in respect of Charge 12 should attract a sentencing discount. He further submitted that your cooperation in giving investigators the code to your phone and your admissions to possessing and accessing child abuse material should entitle you to a further discount on Charge 12.
192Secondly, he submitted on the basis of Mr Candlish’s report Verdins[9] limbs 5 and 6 were engaged in sentencing you.
[9] R v Verdins & Ors [2007] VSCA 102 (“Verdins”)
193Thirdly, he submitted again on the basis of Mr Candlish’s report, your lack of a criminal history and your hitherto good character and work history, that I should assess your risk of reoffending as low or moderate to low and your prospects of rehabilitation as good.
194Fourthly, he submitted there was no requirement that an offender demonstrate that his family will suffer exceptional hardship upon his incarceration in order for family hardship to be taken into account in the sentencing exercise. Mr McAuliffe submitted that your incarceration has left your wife and children in very difficult circumstances with your wife having to provide for your children and her parents on a very low income. Your wife also suffers a number of health problems including severe migraines.
195Fifthly, you face a real prospect of deportation after sentence. This is relevant in two ways. First, a term of imprisonment will weigh more heavily on you with the prospect of deportation hanging over you, and secondly it destroys any chance of a future life in Australia, where you have lived for the most part since 1999. In this regard it constitutes a form of extra-curial punishment.
196Mr McAuliffe made detailed submissions about the assessment of gravity in respect of each offence. He accepted that Charges 2 and 5 were serious examples of the grooming charges, but submitted in respect of all of other charges that they were lower end examples of the offence. In respect of Charge 12 he submitted that I should assess its objective gravity as below the middle range and noted that it was offending that occurred on a single day.
197Mr McAuliffe acknowledged the importance of the sentencing principles of general deterrence, community protection and punishment but submitted given your lack of a prior criminal history there was little or no role for specific deterrence in the sentencing exercise.[10]
[10] Defence also referred me to comparator cases and set out cases referred to in the defence case. See
annexures B, C and D. R v Middleton [2023] ACTSC 50; R v Horner [2023] ACTSC 23; R v Dean [2023]
ACTSC 98; R v Henderson [2023] ACTSC 110
Objective Gravity.
198I turn now to my own assessment of the objective gravity of your offending and your moral culpability.
199Your offending was objectively very serious and your moral culpability very high.
200In respect of the grooming charges, these involved you over a lengthy period pursuing the objective of having sexual contact with children living in impoverished circumstances. You pursued children who were under 12 years of age, and you offered financial incentives to the purported adults who had care of the children. The prosecution provided me with a table of the agreed conversion rates between Philippine Peso and Australian dollars. The agreed conversion rate for PHP500 was roughly $14. It is clear you sought to exploit and abuse these children, and you did so for a pittance. On eight occasions you made plans to meet the child in the Philippines. On five occasions you sought to meet the child when you were in the Philippines. I regard Charges 2, 4 and 5 as serious examples of the offence given the duration of your offending, the exchange of child abuse material and the steps that were taken to meet the child involved. I regard Charges 6-11 as lower end examples of the offence, bearing in mind however that the charge of grooming for sexual conduct with a child is always inherently serious.
201In respect of Charge 12, although your offending occurred on a single day, it involves two occasions of penetration which you filmed, and which caused the child pain. The child involved was, on your own admission, only around 12 years old and you paid to abuse her. I accept the prosecution submission that the offending was planned, indeed that is then inescapable conclusion given your pursuit of children in the Philippines over such an extended period. Your offending in respect of this offence is not in the least worst category. In my view, given the factors I have outlined, it is a serious example of the offence.
202In respect of the charge of possession of child abuse material, the material was found on four of your devices. It was not an insignificant amount of child abuse material and much of it was of a highly depraved nature.
203The upskirting offence is yet another highly disturbing aspect of your conduct. It involves the violation of an 11-year-old child who was the child of a close family friend who was at your home. Your conduct here is not only depraved but involves a grave breach of trust.
Application of sentencing principles.
204The sentencing principles of general deterrence, denunciation and just punishment are all engaged in sentencing you as are, given the very serious and repeated nature of your offending, specific deterrence, and community protection.
205You have pleaded guilty, and I have discussed already in these reasons that you are entitlement to an appropriate Worboyes discount by virtue of your plea.
206I accept that there is some remorse implicit in your plea but I stop short of making any finding of full and insightful remorse of your part. You have consistently tried to minimise your behaviour, and this has continued as recently as your discussions with Mr Candlish.
207You lack insight into your conduct but notwithstanding this I am prepared to assess your prospects of rehabilitation as reasonable. I make this finding in accordance with the opinion of Mr Candlish that you are strongly motivated to return to family life and pose a moderate to low risk of reoffending.
208On the basis of Mr Candlish’s report I accept there is some application of Verdins limb 5. You are suffering a major depressive disorder of mild severity and this will make your time in custody more difficult than would be the case for a prisoner without your mental health difficulties. I reject however there is any application of Verdins limb 6. I accept the prosecution submission that the material does not demonstrate that incarceration poses a serious risk of significant adverse effect on your mental health. The material does not substantiate this and in any event it is your own refusal to take antidepressant medication which makes any assessment of the effects of incarceration on your mental health very difficult.
209I have had regard to the comparator cases. These cases have been of some assistance in sentencing you, but ultimately, I must sentence you on the facts and circumstances of your particular case.
210
I take into account the hardship occasioned to your family by your imprisonment. I also take into account the concern about your family’s situation will make your time in custody more difficult, as will the prospect of deportation at the end of your sentence. The prospect of deportation also places in jeopardy your life in Australia where you have lived since 1999 and I take this into account as a form of
extra-curial punishment relevant to my assessment of what constitutes just punishment in your case.
211There is a presumption of cumulation for sentencing for Commonwealth child sex offences. However, this presumption does not displace the application of the principles of totality or parsimony.[11]
[11] S.19(5) Crimes Act 1914 (Cth)
212Totality is an important sentencing consideration given you face a number of very serious charges all potentially attracting significant terms of imprisonment. I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending.
213I have had regard to the maximum penalty in respect of all the offences and the statutory minimum sentence in respect of Charge 12.
214In respect of Charge 12 as I hope I have made clear your offending does not fit in the least worst category. You are entitled to a discount by virtue of your plea of guilty, and a very modest discount in respect of your very limited cooperation with authorities.
Sentences
215I now will proceed to sentence. In the circumstances you can remain seated, Mr Senarath. I will let the parties know before I proceed that I have a document prepared which has the structure of sentence, that you can check.
216You are convicted on all charges.
217Beginning on the summary charge, you are convicted to three months' imprisonment, which starts today.
218Turning to the Commonwealth charges.
219On Charge 1, you are sentenced to three months' imprisonment.
220On Charge 2, you are sentenced to three years' imprisonment.
221On Charge 3, you are sentenced to two years' imprisonment.
222On Charge 4, you are sentenced to three years' imprisonment.
223On Charge 5, you are sentenced to four years' imprisonment.
224On Charge 6, you are sentenced to 18 months' imprisonment.
225On Charge 7, you are sentenced to two years' imprisonment.
226On Charge 8, you are sentenced to 12 months' imprisonment.
227On Charge 9, you are sentenced to 10 months' imprisonment.
228On Charge 10, you are sentenced to 18 months' imprisonment.
229On Charge 11, you are sentenced to 10 months' imprisonment.
230On Charge 12, you are sentenced to eight years' imprisonment.
231On Charge 13, you are sentenced to 18 months' imprisonment.
232Now in terms of the Commonwealth offending Charge 12 is the base charge and it will start two months after the commencement of the State charge. It will therefore start on 11 August 2024.
233No cumulation will be made on the following charges and they will also therefore have a start date of 11 August 2024 and they are Charges 1, 8, 9 and 11.
234I order one year cumulation upon Charge 12 and upon each other in respect of Charges 2,4 and 5.
235I order six months' cumulation upon Charge 12 and upon each other on charges 3, 6, 7, 10 and 13.
236The start dates for the other charges are therefore as follows.
237Charge 2 -11 August 2030
238Charges 4 and 5 – 11 August 2031
239Charge 3 – 11 February 2034
240Charge 6 – 11 February 2035
241Charge 7 -11 February 2035
242Charge 10- 11 February 2036
243Charge 13- 11 August 2036
244That makes a total effective sentence of 13 years and eight months' imprisonment. I set a non-parole period of nine years and six months. To be clear, the total effective sentence on the State charge is three months and the total effective sentence on the Commonwealth charges alone are 13 years and six months.
245You have served 573 days of pre-sentence detention not including today.
246You are a registered sex offender for life.
247I make the forfeiture orders sought by the prosecution.
248But for your plea of guilty, I would have sentenced you to a sentence of 17 years and six months with a non-parole period of 14 years.
249The document can be handed to the parties.
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