Director of Public Prosecutions (Cth) v Wallace
[2024] VCC 2076
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-23-002048
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| V |
| KERRON WILLIAM WALLACE |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2024 | |
DATE OF SENTENCE: | 18 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Wallace | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2076 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Use carriage service to solicit child abuse material, use carriage service to transmit child abuse material and cause child abuse material to be transmitted to himself, use carriage service to cause child abuse material to be transmitted to himself, possess or control child abuse material
Legislation Cited: Criminal Code (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Cases Cited:De Leeuw [2015] NSWCCA 183, DPP (Cth) v Garside (2016) 50 VR 800, R v Verdins (2007) 16 VR 269, Lazarus v R [2023[ NSWCCA 214, Chenhall v R [2021] VSCA 175, Henderson v R [2024] ACTCA 3, Curle v R [2024] NSWCCA 117 and Mertell v R [2022] ACTCA 69.
Sentence: TES 6 years 3 months NPP 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Kerlin | Commonwealth DPP |
| For the Accused | Ms F. Banihali | Victoria Legal Aid |
HER HONOUR:
1Kerron Wallace, you have pleaded guilty to one charge of use a carriage service to solicit child abuse material, contrary to subsection 474.22(1) of the Criminal Code (Cth), four charges of use a carriage service to transmit child abuse material and cause child abuse material to be transmitted to yourself, contrary to subsection 474.22(1) of the Criminal Code (Cth), one charge of use a carriage service to cause child abuse material to be transmitted to yourself, contrary to subsection 474.22(1) of the Criminal Code (Cth) and one charge of possess or control child abuse material obtained or accessed using a carriage service, contrary to subsection 474.2 2A(1) of the Criminal Code (Cth).
2The maximum penalty for each of these seven offences is 15 years imprisonment.
3You have further admitted that in relation to Charge 1, the offence of using a carriage service to cause offence contrary to s.474.17(1) of the Criminal Code (Cth) can be taken into account in accordance with s.16BA of the Crimes Act 1914 (Cth).
Circumstances of offending
4The circumstances of your offending were comprehensively outlined in the Summary of Prosecution Opening dated 4 November 2024. I will summarise that offending here.
5On 26 September 2022, the Australian Federal Police commenced an investigation after receiving a report from the United States-based National Centre for Missing and Exploited Children.
6On 14 December 2022, police executed a search warrant in relation to your person, your home and your vehicle. At 7:11 am you were approached at your workplace and police located a white iPhone 8 which you stated was your current mobile phone.
7You provided two incorrect PINs before stating that you were not sure what the passcode was. You were served with a s.3LA order before providing a further incorrect PIN and indicating that you could not remember what the passcode was. The phone was seized by police, as was a white and rose gold iPhone 7 later located in the bedroom of your home.
8You were arrested and conveyed to the AFP Melbourne office for interview. You told police that:
a) you are the only person who used the white iPhone 8 mobile phone;
b) you last accessed the iPhone 8 earlier that morning using the passcode; and
c) the passcode for the iPhone 7 found at your home was the same as for the iPhone 8.
9In total, you provided nine incorrect passcodes to police.
10On 21 December 2022, items located by police were forensically examined by AFP members.
11Both mobile phones were linked to your personal email address and on each phone, child abuse material in the form of images and videos was found within the 'photos' application.
Charge seven – possessing child abuse material
12Investigators located a total of 284 videos and 18 images classified as child abuse material on your devices. This comprised of 214 videos and 3 images located on the iPhone 8 and 70 videos and 15 images located on the iPhone 7. 8 images were duplicated across the two devices.
13The contents of the child abuse material was fully described in the written prosecution opening and will not be repeated here given its truly depraved nature, involving penetrative offences committed against children between the ages of 3 and 12.
14On 17 January 2023 you were charged by police.
15Between 18 January 2023 and 24 February 2023, police continued to review the data extracted from your devices. The Telegram application was located on both devices and automatically signed into the account with a username and mobile number attributed to you.
16The WhatsApp application was also installed on both devices and a number of conversations between you and unknown users were identified.
17Child abuse material was both sent and received by you across these applications. This material included further horrific penetrative images which will again not be repeated here. Google searches made by you were also of a disturbing nature.
Charge two – transmit cause child abuse material to be transmitted
18You engaged in a conversation over the Telegram encrypted messaging service with another user with the name ending '1812210241' between 28 August 2022 and 11 September 2022.
19On 10 occasions you sent payments in the form of 'Steam' gift cards to the other user, valued at a total of $350. In return, you received 86 videos and 1 image, all depicting child abuse material.
20During the chat you discussed the unknown user's 8-year-old daughter and engaged in graphic sexualised conversations about her.
Charge three – transmit and cause child abuse material to be transmitted
21You engaged in conversation over Telegram with the user named 'Alice Tiffany Rose' (ATR) between 29 August 2022 and 8 December 2022.
22
You sent ATR 25 gift cards, valued at a total of $620 and in exchange received
64 videos and 14 images depicting child abuse material.
23You and ATR discussed ATR's 14-year-old daughter and arranged a price for which you would get her pregnant. You further engaged in disturbing conversations concerning a 10-year-old child and a 13-year-old child with ATR. You made a number of depraved comments which I will not repeat here.
Charge four - transmit and cause child abuse material to be transmitted
24Between 30 August 2022 and 13 December 2022, you engaged in a conversation over Telegram with the user named 'Goddess'.
25You indicated an age preference for 4 to 7 year old children. Goddess then sent 2 videos of child abuse material. You asked for further material but Goddess demanded payment first.
26Throughout your sexually explicit discussions, you agreed to pay $5,000 via 'Steam' gift cards to engage in sexual activity with three children, aged 3, 5 and 11 years, as offered to you by Goddess. You expressed an intention to have paid the full sum by the end of April.
27You sent 33 gift cards to Goddess valued at a total of $1,650, together with 8 videos and 5 images containing child abuse material. You further made a number of comments related to getting the children pregnant.
Charge five – transmit and cause child abuse material to be transmitted
28Between 17 September 2022 and 12 November 2022, you engaged in conversation over Telegram with the user named 'Astral Blast'.
29During this time, you transmitted 37 videos and 11 images of child abuse material and received 21 videos and 3 images in return. You engaged in lengthy sexually explicit discussions with this other user.
Charge six - cause child abuse material to be transmitted to self
30Between 19 September 2022 and 12 December 2022, you engaged in conversation over Telegram with the user named 'Tiffany Rose'. At the outset Tiffany Rose told you 'by the way I'm just 14'.
31As the conversation progressed, on three occasions you sent payments in the form of 'Steam' gift cards to Tiffany Rose valued at a total of $290. In exchange you received 7 videos of child abuse material.
Charge one – solicit child abuse material
32Between 23 September 2021 and 4 November 2022, you used the WhatsApp application to solicit child abuse material from 6 different WhatsApp users.
User 1
33The first conversations, between 23 September 2021 and 12 March 2022 on the iPhone 7, were with a user called 'Pussy Lovers', in which you solicited material involving children aged from 3 to 12 engaged in sexual activity. On 15 occasions you sent the user 'Steam' gift cards but none of the attachments you received in return were classified as child abuse material.
User 2
34Between 13 March 2022 and 1 May 2022, you engaged in conversations with a user named 'Hi'. You requested material including that of a 5 and an 11 year old engaging in sexual activity and sent 3 'Steam' gift cards to the user but the attachments you received in return have not been verified as child abuse material.
User 3
35Between 13 March 2022 and 24 July 2022, you engaged in conversations with a user named 'Taylor Hogan'. You asked for videos and made enquiries about the children the subject of the video. You were offered a video of a 9-year-old and agreed to buy it for $80.
36There was more discussion as to the contents of the video and you ultimately paid Taylor Hogan the $80, however no images were received in return.
User 4
37Between 16 March 2022 and 24 March 2022, you engaged in conversations with a username ending '2348132228641'. You were sent an attachment said to be of a 13-year-old which you said you liked, before you forwarded a gift card for $20 and received 5 pornographic attachments in return.
38On 21 March 2022, the user asked you for your 'Kik' username so you could chat with the user's 15-year-old daughter. You did so and began to chat with her.
39On 24 March 2022, the user told you they had sexualised pictures of his daughter and forwarded you 3 pornographic images. These images were, however found to be adult pornography rather than child abuse material.
User 5
40Between 16 March 2022 and 4 November 2022, you engaged in conversations with 'Dawsonjames226'. The user offered you what he termed 'sexy pics' of his girls engaging in sexual activity which you said you wanted to see.
41On 26 March 2022, the user asked if you had bought the card you promised them. You made further requests and on 8 occasions sent payment in the form of 'Steam' gift cards. You received files in return, but all files received were adult pornography.
User 6
42Between 11 May 2022 and 28 October 2022, you engaged in conversations with a user named 'Tega Sweet Life'. You requested specific child abuse material and on 6 occasions sent payment in the form of 'Steam' gift cards. You received files in return, but none were classified as child abuse material.
16BA charge – using a carriage service to cause offence
43Between 16 June 2022 and 18 June 2022, you engaged in a conversation over WhatsApp with a user named 'Jeffrey'.
44Jeffrey purported to be a child and you commenced an offensive and ongoing conversation about the purported child engaging in sex acts with her father. The conduct falls short of child abuse material.
45I take this conduct into account when passing sentence on Charge 1.
Offence gravity
46Your offending is extremely serious and involves transmission of child abuse material to and from several other people. The contents of your requests and conversations were graphic and disturbing.
47When sentencing for child abuse material offences, there is a well-established list of considerations to be taken into account, as summarised in R v De Leeuw [2015] NSWCCA 183 and adopted in DPP (Cth) v Garside (2016) 50 VR 800. These include:
(i)The nature and content of the material;
(ii)The number of items or images possessed;
(iii)Whether the material is for the purpose of sale or further distribution;
(iv)Whether an offender will profit from the offence;
(v)The number of children depicted and thereby victimised; and
(vi)The length of time for which the pornographic material was possessed.
48The charges on the indictment span the period September 2021 to December 2022, over a year of offending. While you are not said to have profited yourself from the offending, you paid others for child abuse material.
49The number of files you possessed was substantial and you both sent and received images from others online. The nature of the material was abhorrent and the nature of the conversations depraved, involving children aged from as young as 3 years. The number of images represents a large number of children who were harmed in the production of this material. They were being violated in the most unthinkable ways.
50Each and every image involves a child victim. These are crimes which cause real and lasting harm to the children who are subjected to abuse for the vile gratification of offenders like you. The public interest in the protection of children is high.
51While there were no Victim Impact Statements received in this matter, a number of children have suffered harm and the impact on them cannot be underestimated.
Personal circumstances and psychological assessment
52I turn now to your personal circumstances.
53You are 49 years of age, having been born in July 1975 in New Zealand. You were adopted as a baby and have a younger brother. Your family moved to Australia when you were in late primary school.
54Your parents separated when you were in your early 20s.
55After finishing primary school in Melbourne, you attended Baxter Technical College until Year 10. You did not receive special or remedial education but were treated by a speech therapist for a time and experienced difficulties with spelling, writing and pronunciation.
56After leaving school you completed a TAFE course for people with learning difficulties before successfully completing a horticulture course. You have worked in several fields and have held a position as a traffic controller for the last 8 or 9 years.
57You had a relationship with a woman called Donna to whom you have one child, now aged in their mid-20s. Donna died some time ago, but you maintained contact with your child after this when they lived with their grandmother.
58You were then in a relationship with another woman who had a child from a previous relationship.
59You are socially quite isolated and believe you have suffered from depression for a number of years. You were, for a time, living in shared accommodation with an older man for whom you performed some carer duties.
60You then took in a colleague who was at risk of homelessness but were left $3,000 out of pocket by this person.
61You have suffered from a number of health complaints, the most significant being a bout of pneumonia in 2020 after which you consider your personality changed from bubbly to depressed. I will return to the apparent cognitive effects of this illness later.
62You were living with your mother until your remand but have not told her the extent of your offending. You report having disclosed it, at least in part, to a friend. Your mother reminds you to shower and eat but you are essentially able to live independently.
63
I received a psychiatric report from Associate Professor Danny Sullivan dated
18 July 2024 and a neuropsychological report from Mr Martin Jackson dated
13 November 2024.
64You told Dr Sullivan that you believed you have been caught in relation to the present offending because of a 'tip-off'. You maintain that you were not looking at child pornography but rather wanted to 'save' the children
65Dr Sullivan opined that you meet a diagnosis of recurrent depressive disorder of moderate severity, or alternatively, persistent depressive disorder. He also found it likely that you have a paedophilic disorder.
66It was recommended that you commence anti-depressant medication, however you have not undertaken any treatment of your own volition in the 5 months since the assessment.
67You reiterated to Mr Jackson that you were trying to purchase a child to get them out of the child sex scene, to save them. You admitted to having the images on your devices and having had the conversations alleged but maintain that you were trying to help people, namely the children.
68Mr Jackson conducted a number of tests which determined that you have a full scale IQ of 77, in the borderline range. He found that your current impairments are 'due to a combination of ongoing mental health issues (particularly severe depression) and a likely hypoxic brain injury from the severe episode of pneumonia which required an extended hospital stay in April 2020..
69I note that you do not have an intellectual disability and there was no relationship between your cognitive condition and the offending.
Sentencing principles
70On the Commonwealth charges before the court, you are to be sentenced in accordance with the Crimes Act 1914 (Cth). Pursuant to s.16A(1) of that Act, I am required to impose a sentence that is of a severity appropriate to all of the circumstances of the offence. You must also, pursuant to s.16A(2)(k) be adequately punished for the offending.
71Section 16A(2) of the Act sets out a list of factors, all which I have taken into account in passing sentence upon you
16A(2)(g) and 16A(2)(f): Plea of guilty and remorse
72You have pleaded guilty to the charges. You have therefore saved the community the time and expense of running a trial. As such, you have facilitated the administration of justice and you are entitled to a benefit for the utilitarian value of your plea.
73While your plea demonstrates some level of acceptance of responsibility for your offending, in that you accept the images were on the phone and that you had the conversations, I cannot find remorse on your part in circumstances where you maintain you were trying to save the children rather than partake in their abuse. Your explanation is also at odds with your diagnosis of paedophilia.
Other sentencing factors
74The 15 year maximum sentence available for these offences indicates the seriousness with which they are viewed by Parliament.
75Given the serious nature and the type of charges which you face, general deterrence is the most important sentencing consideration. Other members of the community must be deterred from committing similar offences and it must be understood that stern punishment will follow should they do so.
76Internet crime such as yours is increasingly prevalent offending and is often difficult to detect. It creates a market for the exploitation of vulnerable children.
77You must also be specifically deterred from engaging in this type of conduct in future and the community must be protected from you.
78Mr Jackson found that your cognitive condition and severe depression may have an impact on your ability to cope with imprisonment and as such, your counsel placed reliance on limb 5 of R v Verdins (2007) 16 VR 269. The application of this principle was conceded by the prosecutor. I agree that imprisonment will be harder for you than for a prisoner without your health conditions.
79Mr Jackson found that 'from a neuropsychological perspective, [you] have good prospects of rehabilitation'. This must of course be tempered by your ongoing denial of engaging with the child abuse material for any reason other than trying to save the children and your diagnosed paedophilia. I consider your prospects of rehabilitation to be guarded. You are yet to engage in any form of treatment or rehabilitation but doing so may, with time, improve your future prospects. Specific deterrence is an important consideration, particularly until you take accountability for your actions.
80I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.
81Having come to the conclusion that I have no alternative but to impose a term of imprisonment, I direct that my reasons for so finding be entered into the records of the court under s.17A(2)(b) of the Crimes Act 1914 (Cth).
82There is a presumption of cumulation in matters of Commonwealth child sex offences. I give weight to the principle of totality and note that I consider it necessary to impose partial concurrency in circumstances where not to do so would result in an oppressive and unjust sentence.
Sentencing submissions
83Mr Kerlin, for the prosecution, submitted that a period of imprisonment comprising a head sentence and a non-parole period is called for.
84The prosecutor provided the court with a number of comparable cases including Lazarus v R [2023] NSWCCA 214, Chenhall v The Queen [2021] VSCA 175, Henderson v R [2024] ACTCA 3, Curle v R [2024] NSWCCA 117 and Mertell v R [2022] ACTCA 69. I take these into account insofar as they are relevant to my sentencing task, noting that the first two cases cited resulted in a head sentence and non-parole period, while the latter three cases resulted in Recognisance Release Orders after a period of imprisonment.
85Your counsel, Ms Banihali, conceded a period of imprisonment but submitted that you should thereafter be released on a Recognisance Release Order. She provided no authorities in support of this proposition but submitted that you are not so far entrenched in criminal behaviour that your conduct cannot be adequately addressed by a period of supervised release.
86While you have no relevant prior convictions and this is your first time in custody, your offending was persistent, involved communication with numerous other users and a large amount of child abuse material. You have no insight into your offending and it is for these reasons that I do not consider a Recognisance Release Order would appropriately reflect the gravity of your offending.
s.16BA charge
87I note you have signed a s.16BA notice admitting the scheduled offence of using a carriage service to cause offence and have expressed a desire to have that offence taken into account.
88I take the scheduled offence into account when passing sentence on charge 1. I note the maximum sentence on charge 1 remains 15 years and while I am not sentencing you on the scheduled offence, I may impose a more severe sentence on charge 1 than I otherwise would, having taken the scheduled offence into account.
89I consider that the scheduled offence provides context to charge 1 and increases the weight I must afford to specific and general deterrence and just punishment.
Disposition
90Mr Wallace would you please stand.
91On Charge 1, using a carriage service to solicit child abuse material, you are sentenced to 12 months imprisonment.
92On Charge 2, using a carriage service to transmit child abuse material and cause child abuse material to be transmitted to yourself, you are sentenced to 12 months imprisonment.
93On Charge 3, using a carriage service to transmit child abuse material and cause child abuse material to be transmitted to yourself, you are sentenced to 12 months imprisonment.
94On Charge 4, using a carriage service to transmit child abuse material and cause child abuse material to be transmitted to yourself, you are sentenced to 18 months imprisonment.
95On Charge 5, using a carriage service to transmit child abuse material and cause child abuse material to be transmitted to yourself, you are sentenced to 12 months imprisonment.
96On Charge 6, using a carriage service to cause child abuse material to be transmitted to yourself, you are sentenced to 12 months imprisonment.
97On Charge 7, possess or control child abuse material obtained or accessed using a carriage service, you are sentenced to 18 months imprisonment.
98Charge 1 is to commence today.
99I direct that the sentence on Charge 2 is to commence 9 months after the commencement of the sentence on Charge 1.
100I direct that the sentence on Charge 3 is to commence 9 months after the commencement of the sentence on Charge 2.
101I direct that the sentence on Charge 5 is to commence 9 months after the commencement of the sentence on Charge 3.
102I direct that the sentence on Charge 6 is to commence 9 months after the commencement of the sentence on Charge 5.
103I direct that the sentence on Charge 4 is to commence 9 months after the commencement of the sentence on Charge 6.
104I direct that the sentence on Charge 7 is to commence 12 months after the commencement of the sentence on Charge 4.
105That makes a total effective sentence of 75 months or 6 years 3 months imprisonment.
106I direct that you serve a minimum non-parole period of 4 years imprisonment before being eligible for release on parole.
107The purpose of fixing that non-parole period is to allow you the possibility of a period of supervised release into the community to further your rehabilitation.
108If you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked, and you may be ordered to serve the balance of your sentence in prison.
109Pursuant to s.18(4) of the Sentencing Act 1991 (Vic) and s.16E(2) of the Crimes Act 1914 (Cth), I declare that you have served 15 days by way of pre-sentence detention excluding today, and I direct that the fact of this declaration and its details be noted in the records of the court.
110
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I declare that had you not pleaded guilty the sentence I would have imposed would have been a global total effective sentence of 8 years imprisonment with a global non-parole period of
5 years 6 months imprisonment.
111Each of charges 1-7 is a class 2 registrable offence for the purposes of the Sex Offenders Registration Act 2004. Accordingly, you are to be placed on the Register for the remainder of your life.
112Would you please now sign the notification of registration paperwork? You may be seated to do so. Ms Banihali, you can assist Mr Wallace if you like. Thank you.
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