Director of Public Prosecutions v Adam
[2021] VCC 118
•11 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST | |
| CR-20-00545 | |
| DIRECTOR OF PUBLIC PROSECUTIONS v RAMIZ ADAM | |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 July and 24 November 2020 |
| DATE OF SENTENCE: | 11 February 2021 |
| CASE MAY BE CITED AS: | DPP v Adam |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 118 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence — using a carriage service to transmit an indecent communication — using a carriage service to solicit child abuse material — possession of child abuse material — rolled-up charge — plea of guilty — lack of remorse — community protection — youthful offender — young offender — recognisance release order — community correction order — sex offender registration |
| Legislation Cited: | Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic) |
| Cases Cited: | Adamson v The Queen (2015) 47 VR 268 |
| Sentence: | Total effective sentence of one year and nine months with immediate release on recognisance of $1000 to be of good behaviour for two years Section 6AAA declaration: total effective sentence of four years with non-parole period of two years |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Churchill (for plea) Ms N Deltondo (for sentence) | Office of Public Prosecutions |
| For the Accused | Mr C Pearson | Zora Law |
HER HONOUR:
1Ramiz Adam, you have pleaded guilty to using a carriage service to transmit an indecent communication. There are six charges, and the maximum term of imprisonment is seven years. You pleaded guilty to using a carriage service to solicit child abuse material. There are 11 charges, and the maximum term of imprisonment is 10 years. You also pleaded guilty to possession of child abuse material, for which the maximum penalty is 10 years, and that is a rolled-up charge.
2Charges 1–17 (they are the charges of transmit and solicit) relate to 11 unknown ‘online’ victims from various locations across the world, all of whom you believed were under the age of 16 years at the time of your communications. Six of your victims told you they were 15 years old, two told you they were 14 years old, and three told you they were 13 years old. Your offending spans the period of 25 May 2018 to 23 February 2019. You were aged 19–20 years old at the time of your offending.
3You used websites and your social media accounts to solicit persons under the age of 16 to engage in sexually explicit conversations from which the production and transmission of intimate images occurred. You then retained the images, storing them on your devices.
4You used assumed identities and at various times falsely gave your age as between 15–19 years. If asked for a photograph, you would send a photograph not of yourself but of an unknown younger male.
5Forensic analysis of your internet searches identified that you researched how to upload photographs from Google without revealing their origins, and how to locate and conceal internet protocol (‘IP’) addresses.
6The web application you used paired you with strangers from various parts of the world for online conversations.
7An examination of your chat logs disclosed that between 3 September 2017 and 27 June 2019 you were conversing online with over 4000 other users. You initiated the majority of your online interactions, and they were invariably based around the exchange of pornographic material.
8On a number of occasions, you would send photographs of bundles of Australian currency and expensive wristwatches, with comments such as: ‘I want to spoil u babe’ and ‘I can be ur sugar daddy’.
9Sometime around May 2018, you progressed from engaging in chats with individuals older than you, to individuals you believed were younger. You spent most of your time in your bedroom, either on the phone or personal computer, visiting pornographic websites and chatting on various online chat websites. Sometime after June 2018, you performed an iPhone data backup onto your Apple laptop, and thus you saved all the data from your phone onto your laptop hard drive.
10Tendered on the plea as exhibit D was the revised ‘Summary of Prosecution Opening’, which sets out in some detail the facts and circumstances of your offending, and I annex that document to my reasons for sentence.
11In broad terms, the particular circumstances of your offending were as follows.
Charges 1 and 2: Transmit and Solicit
12Between 25 May and 4 June 2018, you initiated and then participated in an online conversation with a female from Canada who told you she was 15 years old. You said you were 16 and from New Zealand.
13The conversation was mostly instigated by the victim asking you for pictures of your underwear. As the conversation progressed, you asked each other for naked pictures. During the conversation, you offered to show the victim your penis and asked her to show you her vagina.
14The victim sent several photographs of what appear to be female breasts and a vagina. You sent a picture of naked breasts to the victim.
Charge 3: Solicit
15On 25 May 2018, you commenced a conversation with a male from Germany who stated to you he was 15 years old. You asked him about the size of his penis and asked to see his penis. The victim sent you two photographs of a penis.
Charge 4: Solicit
16On 26 May 2018, you commenced a conversation with a victim who stated that he or she (I am unclear in respect of this charge) was 15 years old. You said you were 16. You promptly began an explicit exchange, asking the victim if he or she liked ‘black cocks’. The victim asked you for a picture of a penis and you said, ‘If I can see ur ass’. However, on this occasion the conversation ended without an exchange of images.
Charges 5 and 6: Transmit and Solicit
17On 27 May 2018, you commenced a conversation with a male in the United Kingdom who told you he was 15 years old. You told the victim you were 16 years old and sent a photograph of an unidentified young male. You told the victim that your father owned a jewellery shop and said you might send him a watch if his ‘dick is big and nice enough’. The victim tried to engage you in a conversation aimed at getting to know one another, but you persisted in asking for naked pictures. The victim remained reluctant to comply, but you insisted and advised him how to take the pictures without attracting the attention of the other people in the house.
18Eventually, the victim sent several images of a penis. You complimented the victim on the images and asked for more. The victim refused to send any more images and the conversation ended.
Charges 7 and 8: Transmit and Solicit
19On 27 May 2018, you commenced a protracted conversation with a male who told you he was 13 years old. The conversation contained numerous messages with several pornographic photographs being exchanged.
20In your conversations, the victim referred to your online communications as your ‘relationship’. Your conversations were sexually explicit, and you instructed the victim about the kind of photographs you wanted him to take of his penis and send to you. When the victim became unwilling to comply, you told him you would give him a watch. When the victim told you that he was not looking for money or expensive things, you told him he was your boyfriend and that you loved him.
21When the victim continued to decline to send you nude photographs, telling you he was only 13 and that he would wait until he was 14 or 15, you reassured him that your communications were private and told him that you could not wait two years.
22The conversation ended with the victim saying, ‘Bye hun *kisses on the lips softly*’. Throughout the conversation, a total of 19 images were sent by the victim. On each occasion, you complimented the victim on the images, using words such as ‘Wow’, ‘Yummy’ and ‘Mmmm’.
Charges 9 and 10: Transmit and Solicit
23On 30 May 2018, you commenced a protracted conversation with a male who said he was 15 years old. The conversation lasted until 6 July 2018. You told the victim you were 16 years old.
24You asked the victim for pictures of his penis and, after receiving a picture, said to the victim that his penis was huge.
25Thereafter, you persistently asked the victim for more images of his penis, offering inducements such as money and jewellery, as well as telling the victim that you were in a relationship.
26Eventually, the victim started sending more images and videos. The victim asked for pictures of your face. You refused to reciprocate, saying, ‘I’m ugly tho I don’t like showing my face’.
27You instructed the victim on how to pose for you in the photographs and videos he made for you. Your requests included videos of the victim in the shower and of the victim urinating.
28The victim told you several times he was in love with you and had strong feelings for you. The conversation ceased on 6 July 2018. The conversation contains 1,008 messages with a total of 139 pornographic photographs sent by both parties.
Charges 11 and 12: Transmit and Solicit
29On 12 June 2018, you started communicating with a user who identified himself as a 14-year-old male. You told him you were 16 years old and from the United Kingdom. You asked him for a picture of a penis. The victim sent a picture, and this was the extent of the interaction between you and this victim on these charges.
Charge 13: Solicit
30On 7 July 2018, you started communicating with a male who told you he was 13 years old. You told him you were 16 years old. The conversation lasted until 9 July 2018. You posted a picture of Australian currency and told the victim that if he showed you his penis, you might share some of the money with him.
31The victim told you that he was not going to show you his penis for money and you responded, ‘I want to spoil u babe’.
32The victim remained reluctant to comply and so you sent another picture of Australian currency and a message: ‘More money’. The victim told you he was not willing to send any images.
33You persisted in requesting images of the victim’s penis despite his protestations, telling him you could be his ‘sugar daddy’.
34The following day, the victim sent two images of a penis, to which you responded, ‘Wow so hot’. There was no further conversation between you and the victim.
Charge 14: Solicit
46.Between 7 and 9 July 2018, you commenced a conversation with a male user who told you he was 15 years old. Again, the conversations consisted of highly explicit exchanges in which you offered money for pictures of the victim’s penis.
35The victim sent you photographs of his penis and he asked you for a payment of $60 before sending you more images. You promised the victim large cash payments, stolen credit cards, and gifts such as headphones and watches. The victim asked for PayPal payment, which was continually rejected by you. However, you continued to offer various gifts in exchange for the images of the victim’s penis.
36You continued to negotiate with the victim. However, the victim refused to send any more images without payment and the conversation ended on 9 July 2018.
Charge 15: Solicit
37Between 27 January and 1 February 2019, you commenced an online conversation with a male who told you he was 13 years old. The conversation started with a discussion between you and the victim about payment for images of the victim’s penis.
38During the conversation, you coached the victim on how to hide your conversations if confronted by his parents, as well as directing the victim on how to take nude photographs. You referred to yourself as the victim’s ‘sugar daddy’.
39When the victim raised concerns that he was a ‘minor’ and that you could both go to gaol, you told him you were only 14 years old in order to reassure him.
40After seeing the image of the victim’s penis, you advised the victim that he should consider a career in the ‘porn industry’.
41You continued to ask the victim for more images of his penis. However, the victim refused to send any more without a payment. The conversation continued to revolve around a discussion about how much you would pay for nude photographs.
Charges 16 and 17: Transmit and Solicit
42On 23 February 2019, you engaged in an online conversation with a victim who identified himself as a 14-year-old male from Florida in the United States.
43The victim sent you a photograph of a penis, to which you responded that you would pay $100 for more ‘nudes’.
44You sent a picture of a penis to the victim. The victim sent several pornographic videos and photographs to you. You continued to ask the victim for more videos and photos and made further offers of money.
45You told the victim that you were from Miami, Florida, and that you could meet and that you would book a hotel room. You advised him on how he could avoid being detected by his parents. It is to be noted here that you were in Melbourne and this offer was pure fantasy, intended only to keep the victim’s interest and participation in the online conversations and exchange of images.
46After the victim was unwilling to meet, you offered an incentive of $100 and received six further images. You directed the victim on how to pose, and said you had a female friend with whom you could both have sex.
47The victim ended the conversations on 24 February 2019. You continued to try to make contact on 25 and 26 February 2019.
Charge 18: Possessing Child Abuse Material
48Turning finally to charge 18, which is a rolled-up charge of possessing child abuse material. It relates to 223 images and eight videos.
49The images were part of the online messenger conversations saved on both your laptop and your Apple iPhone 6. The material was categorised using the Child Exploitation Tracking System Scale (‘CETS’).
50Two-hundred and seventeen of the images were categorised as ‘no sexual activity’. That is, they can be described as images depicting children but no sexual activity. They depict such things as genitals, nudity, and solo urination. A further six of the child exploitation images were classification three, which were of non-penetrative sexual activity and masturbation.
51The majority of the images sent and received were from user ‘kari.k.swag’, who was the victim in respect of charges 9 and 10.
52During a forensic analysis of your Apple laptop computer, eight videos of child exploitation material were also located and saved on the hard drive and bookmarked in the internet browser as favourites. The videos depict prepubescent and pubescent boys masturbating in front of the camera. The videos are saved under the name of ‘youngboyswebcams’. The child pornography material located on this device was then categorised using the CETS Scale, and the eight videos were categorised as child exploitation featuring non-penetrative sexual activity.
53That is the summation of the charges.
Record of Interview
54I turn now to the record of interview. You were interviewed by police on 27 June 2019. You denied having child exploitation material and said that you had never been involved with anyone under-age. You said that maybe you had spoken with people online and asked them to send you pictures when you were 17 or 18, but you said that you had not met them in person.
55You acknowledged that you understood a ‘child’ was someone under 16 years of age. You admitted that you had sent and received nude photographs, but you said this occurred when you were 16 or 17 years old. When police tried to question you about your age, you refused to acknowledge that you were 19 years old in October 2018, insisting you were only 18 years old at that time. In answers that you gave police, you appear to have held the belief that you had done nothing wrong because you were under the age of 20 or 21 years old.
Matters to Be Considered in Commonwealth Sentencing
56Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take into account a number of different matters, if they are relevant and known to me. In arriving at your sentence, I take into account the following matters which were raised at your plea hearing, and I begin with your plea of guilty.
Plea of Guilty
57You have pleaded guilty and this is a significant matter in mitigation. Your plea is an early one. You pleaded at a committal mention hearing on 9 April 2020. Your plea has spared the community the cost of a trial. It therefore has utilitarian value, which is of heightened value in the present circumstance of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. By virtue of your plea, you accept full criminal responsibility for your actions. I will discuss the issue of remorse later in these reasons.
Background
58I turn now to consider your background and antecedents. In doing so, I will refer in the main to the Forensicare report of Associate Professor Troy McEwan of 20 October 2020. The report was prepared pursuant to s 8A of the Sentencing Act 1991 (Vic). Associate Professor McEwan spoke with you on 23 September 2020.
59You were born on 22 February 1999 in Mosul, Iraq. You are presently 21 years old. You are the youngest of six children. Your parents had a further five children who died in infancy.
60You and your family are Christian, and you fled Iraq due to the ISIS occupation and the threats to your safety. You moved to Turkey in around 2009 and came to Australia on refugee visas in 2012 when you were 13 years old.
61You told Associate Professor McEwan that you have a loving and supportive relationship with your parents. Mr Pearson, your counsel, however informed me at your plea hearing that you are too ashamed to talk to your parents about your offending and your current situation, and they remain unaware of your legal predicament. You do, I am told, have the support of one of your sisters.
62Your parents prospered in Australia and were able to start their own business. Your mother has unfortunately become unwell, and you act as a carer for her. Her English is limited, and you translate for her.
63You went to English school when you arrived in Australia, but told Associate Professor McEwan that you learnt no English there because, like you, all the other children were Arabic speakers and you continued to speak Arabic to one another.
64You went to the local Craigieburn high school in year 7. You were a poor student, which you attributed to your poor English skills. You experienced bullying at school and you regularly absented yourself from school as a consequence. You started year 10, but your attendance was poor, and you were told you needed to repeat. At this point, you decided to leave school, which you did without satisfactorily completing year 10.
65You then spent around 12–18 months at home playing games on your computer.
66You have had some work as a painter, but you have recently been made unemployed due to the COVID-19 pandemic. Again, since losing your job, you are spending your time at home doing very little, it would appear.
67Associate Professor McEwan says you described strong feelings of mistreatment and bullying during your teenage years.
68He says you were reluctant to talk to him about intimate relationships. You told him you were attracted to women of your own age, but you perceived yourself to be unattractive and were not confident approaching women.
69You denied being attracted to males and you denied being attracted to children. When Associate Professor McEwan put to you that most of the victims of your offending were male, you said you had targeted boys because you thought it would be easier to get photos from boys than from girls.
70Although you reported feelings of depression and having had suicidal thoughts in the past, you have had no contact with the public mental health system.
71Associate Professor McEwan has concluded that you have no diagnosed mental illness and that your current self-reported feelings of depressed mood and emotional volatility are referrable to your current situation in the criminal justice system.
72You have never abused drugs or alcohol.
73You were ambivalent about your offending when you spoke to Associate Professor McEwan. You acknowledged what you had done was unlawful, but you did not seem to understand why it was. You repeated to him what you had told the police, that is, you thought interacting with children when you were under 21 was lawful. And again, as you had done with the police, you insisted, falsely, that you were only 18 when you offended.
74You told Associate Professor McEwan that you did not believe that the children with whom you interacted were harmed by your behaviour. You told him that you did not believe you were doing anything wrong because you were only a teenager at the time. When Associate Professor McEwan challenged you on this, reminding you that you had misstated and lowered your age when communicating with children online, you told him you did not state your real age because you were worried that the children would not speak to you if you did.
75Associate Professor McEwan concluded that there was no evidence to indicate that you had paedophilic sexual interests. He was of the opinion that your offending was largely situational, and at the time you offended you were at home and unemployed, and with no real sense of purpose. He says you may have been experiencing some symptoms of depression but there was no suggestion that any depressive illness caused your offending. He said it was possible that you turned to sexual gratification as a way of improving your mood. He regarded you as a person with few coping skills and a strong feeling of social inadequacy. He says it appears you engaged with children as you found them less threatening than adults. He says it is unclear whether you experience a deviant attraction to adolescent boys or whether you become sexually aroused by a range of sexual stimuli.
76Associate Professor McEwan assessed you as presenting a moderate risk of general (that is, non-sexual) reoffending. He says there are no validated instruments to guide the assessment of the risk of further sexual offending involving the possession or solicitation of child exploitation material in people who have not committed contact offences. He states that the present state of knowledge suggests that rates of recidivism in this group are low.
77He states that denial of sexual offending is not uncommon among offenders, given the shame and community abhorrence of sexual offending. He therefore notes that denial of sexual offending should not be equated with an increased risk of sexual recidivism.
78He states that your prospects of rehabilitation will be maximised if you can engage in treatment designed to help you recognise why you offended, and engage in psychological therapy to help you counter your feelings of inadequacy and to develop the coping strategies that you lack.
79You do have a criminal history. You were sentenced in the Magistrates’ Court to an 18-month community correction order on 18 February 2019. You were convicted of two charges of threats to kill, which occurred in October 2018, and two charges of extortion with threats to kill, again, in October 2018. These threats were made against your former school. You made demands for money. This offending occurred in the context of you being unemployed and idle and, it seems, ruminating on your experience of bullying at school. I am told your offending was amateurish and that police easily apprehended you, as you made the threats from your own IP address.
80You are not an Australian citizen and, consequently, if you are sentenced to a term of imprisonment of 12 months or more, you will automatically fail the Migration Act 1958 (Cth) character test, triggering mandatory deportation (although this order may be appealed).
81You told Associate Professor McEwan that, if deported to Iraq, you would be able to build a good life there, where you still have lots of family. Associate Professor McEwan regarded your understanding of your situation as superficial, and he was of the view that you did not properly grasp its full implications.
82On the basis of the report of Associate Professor McEwan and the submissions of your counsel Mr Pearson, I regard you as an immature individual who at this point in your life is failing to thrive and develop in the community.
83Your lack of productive employment outside the home has led you to become an isolated individual, absorbed only in your online activities. Twice now, and by that I mean your prior offending and the offending for which you now fall to be sentenced, you have indulged in a dangerous fantasy life, oblivious it seems to the danger you pose to others and the harm that you have caused.
84You do not fully appreciate the wrongfulness of your conduct and, because of this, I do not find that you have shown any remorse. I regard your prospects of rehabilitation as guarded at best. I am concerned that you have not spoken to your parents and sought their support. However, whatever my assessment of your prospects of rehabilitation, you are still a young man, only 21, shortly to turn 22, and I must craft a sentence which fosters your rehabilitation as best I can. Your youth has heavily moderated the sentence that I will impose.
Objective Gravity and Moral Culpability
85I turn now to assess the objective gravity of your offending and your moral culpability.
86For children and young people, the cyber world is an important place to interact with others, in particular their peers. They should be free to do so without predatory adults intruding upon their activities. This happens all too regularly. Children and young people are particularly vulnerable in this realm to those who would conceal their identity, deceive them, and inveigle them into sexual practices beyond their maturity. It matters not that children themselves often go looking for sexual experiences, as was the case here in respect of many of your victims. The law must endeavour to protect children and young people from sexual exploitation by adults. This often involves protecting children against themselves and against the consequences of their own immaturity and poor decisions.
87The law imposes an absolute prohibition on sexual activity with children under 18 in order to protect them from the harm that is presumed to be occasioned by premature sexual experience. This includes future harm, and this presumption is equally applicable to cyber offending.[1]
[1]Adamson v The Queen (2015) 47 VR 268.
88Your offending was protracted and involved multiple victims. Your conversations with your victims were sexually explicit. You on occasion offered financial incentives to your victims to encourage them to keep communicating with you. On occasion, you emotionally exploited your victims, telling them that you loved them and that you were in a relationship.
89You encouraged your victims not just to transmit child pornography, but to create child pornography, by encouraging them to take explicit photographs of themselves. Reprehensible although this is, you did not encourage your victims to engage in acts of sexual penetration, nor did you encourage them to recruit or involve others in sexual activities and, excepting the occasion when you asked your victim to film himself urinating, you did not encourage your victims to perform acts of overt degradation or self-abuse, as is often seen in the solicitation of child exploitation material.
90The dangerousness and the long-term consequences of children sending sexualised images of themselves online is seldom recognised by children themselves. These images can remain in circulation indefinitely, although in your case this does not appear to have occurred. You retained the material you obtained for your own gratification. Indeed, the majority of the images in respect of charge 18, that is the possession of child exploitation material, are images of your victim in respect of charges 9 and 10.
91On this charge (that is, charge 18, the possession of child exploitation material), the prosecution accepts that your offending fell toward the lower end of the scale for offending of this kind.
92Your offending in respect of charges 17 and 18 was in breach of the community correction order to which you were sentenced on 18 February 2019, and that is an aggravating aspect of that offending.
93The offence of soliciting child abuse material is a ‘sexual offence’ under the Sentencing Act 1991 (Vic). Accordingly, if you are sentenced to a term of imprisonment on charges 2, 3 and 4, you fall to be sentenced as a serious sexual offender on charges 6, 8, 10, 12, 13, 14, 15, 17 and 18.
94The Court is therefore required to consider protection of the community as the principle purpose for which sentence is imposed, although the prosecution do not seek a disproportionate sentence. The Court is also required to impose a cumulative sentence unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.
95Your offending was objectively serious. I regard your offending as manipulative, oppressive and potentially corrupting. I regard your offending on the charges of transmit and solicit as a moderately serious example of both those offences.
96It is clear that you are an immature and unsophisticated individual, and you maintain a stated and erroneous belief that, being a young person yourself, you did not do anything wrong. However, it is clear that you did in fact appreciate, at the time you offended, that what you were doing was wrong. This was the reason you chose to lie about your age.
97I find your moral culpability is high.
Sentencing Principles
98I now turn to relevant sentencing principles.
99The purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort.
100I take into account that if sentenced to an immediate term of imprisonment, this would be your first time in custody, and I take into account the current difficult conditions in the prison system caused by the restrictions necessitated by the COVID-19 pandemic.
101General deterrence and denunciation are important sentencing considerations here. Children and young people must feel safe to go about their lives and to enjoy their lives free from the unwanted and harmful sexual advances of adults. It is the obligation of the law to make it clear to anyone who would behave as you did that this kind of behaviour will result in stern punishment, and to unequivocally denounce such conduct.
102I also regard the sentencing principles of community protection and specific deterrence are engaged, given your criminal history and the ongoing nature of your offending, and your inability to fully recognise the wrongfulness of your conduct and the harm you have done.
Submissions
103Both counsel referred me to comparator cases.
104Mr Pearson referred me to a number of decisions of this Court in which a term of actual custody was avoided. Ms Churchill, who appeared to prosecute, on the other hand referred me to decisions in which offending broadly comparable to yours resulted in sentences of immediate custody.
105These cases have been of some assistance as a yardstick to help inform the sentencing range, but my duty is to impose a sentence that is appropriate to you in the circumstances of this case.
106Ms Churchill submitted that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period. Mr Pearson submitted that a community correction order could achieve both the punitive and rehabilitative aspects of sentencing.
107I had you assessed for a community correction order and you were found to be suitable.
108Weighing up all the matters which I am required to consider, I have ultimately decided that a sentence which does not result in you serving a period of actual custody would meet all the varied and often competing sentencing considerations. I do so, having regard to your youth, your plea of guilty and the need to foster your rehabilitation. You are a young offender and your youth mitigates your sentence, as expressed in the following well established principles:
i.Youth, particularly with a first-time offender, should be a primary consideration for a sentencing court.
ii.In the case of youthful offenders, rehabilitation is usually more important than general deterrence. This is because punishment may in fact lead to further offending. Punishment focused on rehabilitation is to be preferred and benefits the community as well as the offender.
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided.
109The benchmark for what is serious as justifying adult imprisonment might be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
110That said, the weight to be attached to youth correspondingly reduces as the level of seriousness of the criminality increases. The aim expressed in the above principles is consistent with protection of the community. There is great public benefit in the rehabilitation of a young offender and maximising the prospects that they will live a productive and law-abiding life.
111I have concluded that this can best be achieved by a sentence served in the community, but which involves structures to support your rehabilitation and address your risk of reoffending, combined with supervision both from Corrections and by the monitoring of the Court.
112In respect of your Commonwealth offences, I intend to impose a substantial period of imprisonment which will hang over your head and, if you are foolish enough to reoffend in any way, may be imposed.
113It is in the community’s interest that you rehabilitate, and community protection is best achieved by promoting your rehabilitation.
114I have also had regard to the principal of parsimony.
Sentence
115I am now going to proceed to sentence and I will ask you to stand at this point, Mr Adam. It is quite lengthy and quite complex; I will tell you when I require you to sit down.
116I begin with charges 1–17, which are the Commonwealth offending.
117You are convicted on all of those charges. The sentences are as follows.
118On charge 1, four months’ imprisonment.
119On charge 2, six months’ imprisonment.
120On charge 3, six months’ imprisonment.
121On charge 4, six months’ imprisonment.
122On charge 5, six months’ imprisonment.
123On charge 6, nine months’ imprisonment.
124On charge 7, nine months’ imprisonment.
125On charge 8, 12 months’ imprisonment.
126On charge 9, 12 months’ imprisonment.
127On charge 10, 15 months’ imprisonment.
128On charge 11, four months’ imprisonment.
129On charge 12, six months’ imprisonment.
130On charge 13, nine months’ imprisonment.
131On charge 14, 12 months’ imprisonment.
132On charge 15, 12 months’ imprisonment.
133On charge 16, nine months’ imprisonment.
134On charge 17, 12 months’ imprisonment.
135Charge 10 is the base charge, beginning today, 11 February 2021.
136The following charges also begin today, the effect of which is there is no cumulation in respect of these charges: charges 1, 5, 7, 9, 11 and 16.
137I make the following orders for cumulation. I am going to give the parties a document which has the start dates.
138On charge 2, I order one month cumulation; charge 3, one month cumulation; charge 4, one month cumulation; charge 6, one month cumulation; charge 8, two months cumulation; charge 12, one month cumulation; charge 13, two months cumulation; charge 14, three months cumulation; charge 15, three months cumulation; and charge 17, three months cumulation.
139That makes a total effective sentence of two years and nine months.
140I direct that you be immediately released on a recognisance release order in the sum of $1,000 to be of good behaviour for two years.
141You are sentenced as a serious sexual offender on charges 6, 8, 10, 12, 13, 14, 15, 17 and 18, and I direct that that be entered into the records of the Court.
142On charge 18, you are sentenced to a community correction order of two years duration and I will explain the conditions to you shortly.
143Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of pre-sentence detention.
144Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of four years, with a non-parole period of two years.
145Sit down now please, Mr Adam, and let me explain those sentences to you.
146You probably do not understand the difference between Commonwealth and State sentences. But the bulk of your sentences, the bulk of your charges and your sentences which relate to what you did on the internet, talking to the various children, I have sentenced you to an overall term of imprisonment of two years and nine months. However, I am not sentencing you to a period of immediate custody. You do not have to go to gaol, and I am sure that is a great relief to you.
147However, you are to be of good behaviour for two years. And in effect, what that means is that that sentence of two years and nine months is hanging over your head. If in the period of two years you commit further offending — and it does not have to be serious offending, such as the offending for which you are being sentenced now — if you commit any kind of offending and you are in breach of this order, you may be resentenced, and you may be resentenced to that two years and nine months in gaol. And there is a $1,000 bond that goes with that. You do not have to pay that today. But if you breach that order, you may have to pay that money. So, it is hanging over your head. The effect of that order is that you have to be of good behaviour for two years or you may go to prison. If you are not, that order may come crashing down upon you and you may have to go to gaol for two years and nine months.
148Now in respect to the final charge, which was knowingly possess child abuse material, I have sentenced you to a community correction order. You have already been on one of these and I am sure you know what they are. It is for two years, it begins today. So, effectively, it will end on 10 February 2023. You are to attend at the Coolaroo Community Correctional Services within two clear days of the commencement of this order. That is today.
149Now, there are things that you must not do while you are subject to this order. You must not commit any further offences and you must obey all lawful directions of Corrections. Whatever they tell you to do, whatever meetings or courses they require you to do, you must attend those and obey all their directions. It is detailed further in the report.
150You must report to the community corrections officer within two clear days of the order starting. I have told you about that. You must let the community corrections officer know within two clear working days of any change of address or job. You must not leave the State of Victoria without getting permission to do so. And as I said, you have got to obey all lawful directions and instructions.
151There will be community work, 200 hours. I order that if you satisfactorily undertake 50 hours of treatment and rehabilitation, they can be credited as community work hours for the purposes of the order. You are to be under the supervision of Corrections for two years. You must undergo any mental health assessment and treatment. That may include all sorts of different treatments which are outlined in the order. You must participate in any programs or courses that address factors in relation to the offending as directed by the regional manager.
152I am going to impose a condition of judicial monitoring. That is, you will come before me and I will see how well you are doing, and you must appear before me in three months’ time on 11 May 2021 at 9:15am in this Court. So, you will come before me and I will assess that you are compliant with that order.
153So, Mr Adam, you are at a real crossroads in your life now. You are subjected to the recognisance release order, which I have explained to you, I hope satisfactorily, and if I have not, I am sure Mr Pearson will explain to you. That means you have to be of two years’ good behaviour, otherwise that sentence of imprisonment in all likelihood will be imposed. And you are on this community correction order. It is the second community correction order. You breached the first one. But there are to be no breaches of this. If you breach it, you will fall to be resentenced. That might involve the order being cancelled and you being sentenced to a term of imprisonment. Do you understand all that I have said to you? It is a lot. And there is more, it is quite complex.
154In relation to the Sex Offenders Registration Act 2004 (Vic), the offences pursuant to the Criminal Code (Cth), being class 2 offences, you are subjected to mandatory registration for the remainder of your life. That is, you will be a registered sex offender for life.
155I am going to make the disposal order sought by the prosecution. Such an order was not opposed.
- - -
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
Indictment: K12718967.1
Director of Public Prosecutions v
Ramiz Adam
REVISED SUMMARY OF PROSECUTION OPENING ON PLEA:
Date of Document:
Filed on behalf of: Prepared by:
ABBEY HOGAN
Solicitor for Public Prosecutions 565 Lonsdale Street
Melbourne Vic 3000
20 August 2020 Director of Public Prosecutions Solicitors code: 7539 Reference: NMD
Telephone: (03) 9603 7699
BACKGROUND
1. The offender, Ramiz Adam, is 21 years old and was born in Iraq on the 22nd of February 1999. At the time of the offending he was aged between 19 - 20 years old and employed as a painter on casual basis.
2. The offender is pleading guilty to the following offences:
a. Using a carriage service to transmit an indecent communication contrary to section 474.27A of the Criminal Code (Cth) – 6 charges (‘Transmit’);
b. Using a carriage service to solicit child abuse material contrary to section 474.22(1)(a) of the Criminal Code (Cth) – 11 charges (‘Solicit’);
c. Possession of child abuse material contrary to section 51G(1) of the Crimes Act 1958 – 1 charge (Rolled up).
3. Charges 1 to 17 relate to eleven un-known ‘online’ victims from various locations across the world. The offender believed all of whom were under the age of 16 years at the time of their communications. The victims had the following usernames:
a. JESS MORONTO (Charges 1 & 2)
b. BOY LINUS KNIEPMANN (Charge 3)
c. HUPLAPOPER KASEY LODGE (Charge 4)
d. JOSHUA TRUE (Charges 5 & 6)
e. UNVMESVY (Charges 7 & 8)
f. KARI.K.SWAG SAVAGE KING (Charges 9 & 10)
g. JDLOVESYOU47 (Charges 11 & 12)
h. YESDAASHIM27 (Charge 13)
i. DEVYNBI DEVIN LANZ (Charge 14)
j. FIDGETSKIT PLAYBOY J (Charge 15)
k. SHADOWRICKY059 (Charge 16 & 17)
4. The offender utilised websites and his social media accounts to solicit persons under the age of sixteen to engage in sexually explicit conversations from which the production and transmission of intimate images occurred. He then retained the images by storing them on his devices.
5. An analysis of the chat logs established the offender used the assumed identity “Gabriel 16483” (varying from 15-19 years old) to converse with multiple individuals using the “Kik” application. This web application pairs strangers from around the world together for online conversations. Users of the application begin an online conversation (text, audio or video) within another visitor who is chosen at random. The users can select which countries the other user is in to engage in online conversations. The chat logs start on the 3rd of September 2017 and finish on the 10th of October 2018. On this latter date, an initial search warrant was executed at the offender’s premises when his apple phone and apple laptop were seized and the accused was arrested on an unrelated matter.1
1 Refer D/S/C Andrej Mijanovic, p.63. This initial search warrant was part of police investigation for an unrelated matter regarding two charges of making threats to kill on 2 October 2018 and two charges of extortion with threats to kill on 9 October 2019. The offender was sentenced to a CCO on 18 February 2019 for a period of 18 months at Melbourne Magistrates’ Court.
6. Once the offender had established a conversation with another person he would ask for nude photographs and partake in an exchange of pornographic material. The standard beginning of conversations initiated by the offender would be: “Big dick?” On a number of occasions he would send photographs of bundles of Australian currency and photographs of high end wristwatches with such comments as: “I want to spoil u babe” and “ I can be ur sugar daddy”.
7. Sometime around May 2018, the offender progressed from engaging in chats with individuals older than him to individuals he believed were younger than him. He spent most of his time in his bedroom, either on the phone or personal computer, visiting pornographic websites and chatting on various online chat websites. Sometime after June 2018, the offender performed an iPhone data back up onto his Apple laptop, thus saving all the data from his phone onto the laptop hard drive.
8. Based on the examination of the chat logs between the 3rd of September 2017 and the 26th of June 2019 the offender participated in online chats with over 4000 users. When asked for his age he would vary in reply and used ages from 15-19. When asked to send a photograph of himself the offender would send a photograph of an unknown young male. The majority of the conversations were initiated by the offender and were based on the exchange of pornographic material.
9. Further forensic analysis identified a number of internet searches such as:
a. how to take a picture off google without showing where its from
b. how to hide pictures google photos, how to take google pics without showing where its from
c. how to get someones ip address on mac
d. how to hide ip
10. Through analysis of the chat logs it was established that the offender used the assumed identity “Gabriel 16483” and “Trump Supporter” to converse with multiple individuals. The chat logs start on the 31st of December 2018 and finish on the 27th of June 2019 when the
second search warrant was executed at the offender’s premises and his Samsung mobile phone was seized. 2
CHARGES 1 & 2: TRANSMIT & SOLICIT
11. On the 25th of May 2018 the offender commenced a conversation with the username jmoronto Jess Moronto. The communication lasted until the 4th of June. During the conversation the victim told the offender she was 15 years old.
Victim: Age Offender: 16
Hbu
Victim: 15.
Where u from Offender: Australia
U?
Victim: Nz
12. The conversation was mostly instigated by the victim asking the offender for pictures of his underwear. As the conversation progressed the two asked each other for naked pictures. During the conversation the offender stated:
Offender: Maybe 1 day I can fuck u Do u wanna c my dick Can I see ur puss?
I’m feeling horny wat do u wanna c today
13. The victim sent several photographs of what appear to be female breasts and vagina. The offender sent a picture of naked breasts to the victim.3
2 D/S/C Andrej Mijanovic, p.65
CHARGE 3: SOLICIT
14. On the 25th of May 2018 the offender commenced a conversation with the username 15yo_Boy Linus Kniepmann. The conversation was initiated by 15yo_Boy Linus Kniepmann:
Victim: Hi! I'm 15 m Germany and you? Btw how are you? Offender: Do u have a big cock
?
Victim: I dunno, I never mesuared it Offender: Show me
15. Two photographs of a penis were sent by the victim to the offender.4
CHARGE 4: SOLICIT
16. On the 26th of May 2018 the offender commenced a conversation with a username
hulapoper Kasey Lodge. The following is an excerpt of this chat:
Offender: Hey Victim: Hi Offender: Age
?
Victim: 15 wbu
Offender: I’m 16
Do u like black cocks Or only white
What cocks do u like
My friends dick is 11 inches Victim: Can I see?
Offender: If I can see ur ass ?5
17. The chat ended with no images being exchanged.
CHARGE 5 & 6: TRANSMIT & SOLICIT
18. On the 27th of May 2018, the offender commenced a conversation with ‘Joshua True’ with the username single_life sucks. He started the conversation with a greeting and a picture of a penis. When asked by the victim what he looked like the offender sent a picture of an unidentified young male.
Victim: How are u
Old I mean Offender: I’m 16
Hbu
Victim: 15
Offender: Great mmm
My dad has a jewelry store
I can maybe send u a watch
If ur dick is big and nice enough I’ll try and get u a watch
Victim:Ok well I'm Josh I'm 15 I love nicki manji I love making friends I'm funny and very clingy at time and I'm bipolar asf
What else do u want to know before I see ur cock lol
19. Throughout the chat the offender was persistent in asking the victim for naked pictures. The victim repeatedly told him he was not willing to send any pictures and was trying to get the know him better.
Victim:OMG boy u gotta get a nigga time to know u y u rushing Im trying to get to know u bby boy
20. The offender told the victim he was a single, outgoing guy who liked sports and games and then told the victim:
Offender: What else do u want to know before I see ur cock lol Do u think I should shave my ass
I’ll send u pics when I shave
21. The victim continued to tell him that he was unable to send any pictures but the offender persisted in his request, coaching the victim on how to do it.
Victim:And to TBH I’m can’t send u the pic cuz I’m at my friend’s house playing the Xbox right next to him
Offender: Go to the toilet
Take a quick pic please
Offender: Go somewhere and take a pic pls I really want to see how big ur cock is
Victim:How i am i his grandmac sleep downstairs and his mama walking all around the house
cleaning and shit it crazy u can do shit in this house Offender: Go outside
Behind the house or something
22. The victim attempted to direct the conversation towards getting to know the offender better, however he persisted in keeping the conversation sexual in nature.
Victim: So where do u live Offender: Uk
Victim:I always wanted to visit the uk But I never had a reason to
Offender: Lol u should visit
So I can suck ur dick6
23. Eventually the victim sent several images of a penis. The offender complimented the victim on the images and asked for more. The victim refused to send any more images and the conversation ended.
CHARGE 7 & 8: TRANSMIT & SOLCIT
24. On the 27th of May 2018 the offender commenced a protracted conversation with a Kik user by the name of Unvmesvy. The conversation contains numerous messages between the parties with several pornographic photographs being exchanged by both. The following is an excerpt of the conversation;
Victim: Is our relationship is going to be just this Offender: I just want to see how big is ur cock the can talk
Can u stand up and show me ur hard cock and body I want to be ur lover
25. There are several exchanges of nude photographs. The offender instructed the victim as to the type of photographs he wanted.
Accused: Can I see ur dick underneath ur balls Or like mine
Show me ur dick pls haha
Take a side dick pic or mirror dick pic
26. Throughout the conversation the victim advises the offender that he will not send any more nude photographs to which the offender offers the victim financial incentive in exchange for the nude photographs.
Offender: I’ll buy you something
Wat do u want me to get u
I can get u a watch from my dads store Expensive watch
Victim: I don’t want any money or expensive things I want you
Offender: Aww
Well I’m all urs My baby
Ur my boyfriend
I want to cuddle with u
27. The offender repeatedly advised the victim their relationship was real and that he was in love with him. The conversation continues:
Offender: We have to do both to keep this relationship going Nudes are fun
Why do u want to stop I’m not good enough
:’(
Victim:We have to talk I can't send nudes anymore at all I'm sorry but I just can't this is not for me now im down with the tough playing but
this needs to stop I understand if you wanna move on because of this I know but I don't wanta. Send nudes
I'm only 13
Offender: I sent nudes when I was 9
LOL Ur 13 it’s normal
Victim: I'ma send you nudes when I turn 14, Or 15 Offender: What’s the difference lol
Ur 13 now
It’s only between us so no one knows about our sexting and nudes What’s the point of waiting until ur 15
Ur 13 now u want to wait until ur 14 to send nudes lol what’s the difference only couple months
Victim: I said 15
Offender: I can’t wait 2 years u know That’s a long time
Victim: I dunno I don’t feel comfortable sending these things Offender: Ok
It’s hard
I don’t want to become friends
I want to be in relationship with u not friends Victim: But I can’t give you what you want though Offender: U understand babe
That means we gotta send eachother pics I’m giving u everything
It’s only between us so no one knows about our sexting and nudes What’s the point of waiting until ur 157
28. The conversation ended with the victim saying “Bye hun *kisses on the lips softly*.” Throughout the conversation a total of 19 images were sent by the victim. On each occasion the offender complimented the victim on the images using words such as “ Wow”, “Yummy” and “Mmmm”.
CHARGES 9 & 10: TRANSMIT & SOLICIT
29. On the 30th of May 2018 the offender commenced a protracted conversation with a username kari.k.swag. The conversation lasted until the 6th of July 2018. The offender asked for the images of the victim’s penis and after receiving one image, complimented the victim by saying: “That’s so big, can I see it from the side?”
30. The victim then asked for an image from the offender. He sent an image of a penis and asked the victim about his age.
Offender: How old are u? Victim: 15
Offender: Omg
Ur cock is huge Victim: How old are u Offender: 16 lol
7 Refer to exhibits 1,2,4,5 and exhibit 12 (Kik messenger chat log 5)
31. Th offender persistently asked the victim for more images of his penis, offering inducements such as money and jewellery as well as telling the victim they are in a relationship.
Victim: How would you like it Offender: It wouldn’t fit
U will destroy my ass
Can I see a vid of u jerking off Mmm
If we get into this relationship and took it serious my dad has a jewelry store
I can maybe get u an expensive watch Victim: Lmao nah u don’t have to do that Offender: I will buy u something lol
Can I see more of ur dick tho Mmm
Victim:Lmao u gone have to hold off till tomorrow Well later on today
Offender: Why
I just want to see more of it
Victim: Ik but I got school in like a couple more hours Offender: I thought in minutes
Cmon send few more please What kind of bf r u
Victim: Lmao so we’re dating Offender: I’ll even be ur sugar daddy
Cmon send few more please
?
What kind of bf r u
Our relationship just began and ur going to sleep
32. Eventually the victim started sending more images and videos asking for the pictures of the offender’s face. He refused to reciprocate saying: I’m ugly tho I don’t like showing my face.
33. The victim told the offender a number of times that he was not ugly and complained that he would never show his face. The offender snubbed the comments saying: “Show me u in the shower and I’ll show u some pics of me?”
Offender: Show me ur cock without underwear Can u record a vid of u pissing
?
Victim: I don’t have to pee Offender: I like piss
Try
Victim: I already peed Offender: Show me ur cock then
Try pissing a little when u record Victim: Lmao y don’t u ask your other boy Offender: Ur my only boy
I love u Show me
34. The victim sent further videos and images whilst being instructed by the offender of how to pose. He criticised the victim for covering his genitals in the images saying: Why did u cover ur dick. That was a good shot u ruined it.
35. The victim told the offender several times he was in love with him and had strong feelings for him. The conversation ceased on the 6th of July 2018. The conversation contains 1008 messages with a total of 139 pornographic photographs sent by both parties 8
CHARGE 11 & 12: TRANSMIT & SOLICIT
36. On the 12th of June 2018 the offender started communicating with a Kik user by the name of jdlovesyou47. The victim asked the offender how old he was to which he replied: 16 m from uk
37. The offender asked the victim about the age to which user replied:
Victim: 14.m.guam Offender: Nice
Do u have a shaved cock
?
38. The offender asked the user to send nude photographs and said It’s ok if ur dick is small mine is small 2. After receiving a nude photograph, the offender sent a photograph of a male penis and the conversation ended. 9
CHARGE 13: SOLICIT
39. On the 7th of July 2018 the offender started communicating with a Kik user by the name of Yesdaashim27. The conversation lasted until the 9th of July 2018. The offender posted a picture of Australian currency and after couple of messages proceeded to ask:
Offender: Do u have a big cock ?
Show me
I might share some of my money with u
40. After the victim responded that he did not know the offender, he sent another picture of Australian currency and a message: More money. The victim told the offender he was not willing to send any images:
Victim:If you think money is going to make me show you then your hella wrong
Offender: I want to spoil u babe
I have other things to show u
41. The offender persisted in requesting images of the victim’s penis despite the protestation from the victim.
Victim:I know nothing about you I don’t even know what u look like How old are you
Offender: 16
And u?
Victim: 13 Offender: Perfect
I can be ur sugar daddy
Victim:Hmmm okay well im tired rn so im gonna text you later or tomorrow
Offender: Show cock before u go
Babe
Victim: I can’t Im at a family party and the bathroom is occupied. Offender: LOL Go somewhere and do it quick?
Victim: Im lowkey tired just wait until tomorrow
Offender: Just do it now quick and then we will text tomorrow I’m really interested in u10
42. The following day the victim sent two images of the penis to which the offender responded:
Wow so hot. There was no further conversation between he and the victim.
CHARGE 14: SOLICIT
43. On the 7th of July 2018 the offender commenced a conversation with the username devynbi Devin Lanz. The conversation was initiated by the offender and lasted until the 9th of July 2018:
Offender: Big cock
?
U here
44. The offender then attached a photograph of what appears to be bundles of Australian currency.
Offender: Big dick
?
I could share some money with u Victim: Who are you?
Offender: I’m a guy interested in u Do u have a big cock
?
Show me
I’ll promise to give u cash
I even have a stolen credit card it’s full with money
45. The offender then received several photographs of a penis which he complimented by saying: Wow, Can I see it from side.
46. The victim then asked the offender for a payment of $60 before sending any more images. The offender enticed the victim by promising large cash payments, stolen credit cards and gifts such as headphones and watches. The victim asked for a PayPal payment, which was continually rejected by the offender who continued to offer various gifts in exchange for the images of the victim’s penis.
Offender: I have outdrawn all my money from the bank I only have cash Victim: PayPal?
Offender: I’m not sure how much I have in PayPal
I’ll buy u whatever u want and send them to u How old are u
?
Victim: 15
Offender: Mmm
Show me another pic of ur dick Or a vid11
47. The offender continued to negotiate with the victim, however the victim refused to send any more images without the payment. The conversation ended on the 9th of July 2018.
CHARGE 15: SOLICIT
48. On the 27th of January 2019 the offender commenced an online conversation with the Kik username fidgetskit Playboy J. The conversation started with a discussion between the offender and the victim in regards to payment for the images of the penis sent by the victim.
49. During the conversation the offender coached the victim how to hide their conversations if confronted by his parents as well as directing the victim of how to take nude photographs:
Offender: You don’t want to text me?
I thought you agreed to being ur sugar daddy Victim: Yeah I did’ I’m just upset rn
Offender: Im home
Still want the gift card?
Victim: Yeah
Offender: Can I get more dick pics now Ill make it 50
Victim: She seen me naked
You got me in trouble They are mad
Offender: Alright ill do it now
Delete our conversation Ill let you when im done
Victim: Okay
11 Refer to exhibits 1,2,4,5 and exhibit 16 (Kik messenger chat log 9)
Offender: Delete kik and install it later So they don’t tell u to open kik They will see our messages You doing fine
Where are you now?
Victim: Still in trouble
My moms room
Offender: Does that mean u wont send me pics anymore?:/ Victim: I cant send anymore
She is monitoring my phone through an app and it shows if I send any pictures or videos
Offender: Oh shit
We should talk later then
Maybe shes looking at our messages She should leave you alone
Youre not a child anymore Victim: She is my mother
I’m 13
I’m a minor
I don’t even know your age We both can go to jail
Offender: Im 14
50. After seeing the image of the victim’s penis, the offender advised the victim that he should consider career in porn industry:
Offender: You should become a porn star When u grow older
Victim: Y
Offender: With a dick like yours many guys would choose to do porn
Victim: I don’t want to do porn I want to do my technology classes in college and be successful
Offender: Porn is a successful career
51. The offender continued to ask the victim for more images of his penis, however the victim refused to send any more without a payment. The conversation continued to revolve around the amount with the offender promising the payment in numerous messages but not making one.
52. The conversation continued as follows: The offender said: Show me some dick?. The victim then sent a photograph and said That’s the only picture you get. The offender continued:
Offender: Cmon man Victim: No
I have limits
Because of when I got caught Offender: Im giving u $100 dollars extra Victim: Keep
Your Damn Money12
53. The conversation ended on the 1st of February 2019.
CHARGES 16 & 17: TRANSMIT & SOLICIT
54. On the 23rd of February 2019 the offender engaged in an online conversation with username ShadowRicky059. He received a photograph of what appears to be a penis. The following is an excerpt of this chat:
Offender: That’s your dick?
That’s a big one
May I see another pic?
I have $100 I will give it to rn for nudes
12 Refer to exhibits 6,7 and exhibit 17 (Kik messenger chat log 10)
55. The offender sent a picture of a penis to the victim. The victim sent several pornographic videos and photographs to the offender who continued to ask for more:
Offender: Send a video standing like that playing touching ur dick and body Send more pics standing up
From up
I wanna get to know u Where are u from?
Victim: USA Offender: Same
What state?
Victim: Florida
Offender: Im from Miami and you?
Which city are u from?
I can come to u and have fun, ill give you $200 Victim: Nope I good
Offender: Why?
I want to suck ur dick
56. The offender told the victim he was ready to book a hotel for the two of them and coached the victim on how to avoid being detected by his parents.
Offender: Do u want? Victim: I love too but Offender: But what
Victim: Motel would ne weir and doing it at bushes could be weird Offender: No one can see us in bushes
Victim: My parents are going to ask me where I going Offender: Hmmmm
We can do it in the morning Or afternoon
Say to them u want to walk outside
Or something
57. After the victim was unwilling to meet, the offender offered an incentive of $100 and received 6 further images, whilst directing the victim on how to pose and offering a female friend for them both to have sexual intercourse with. The offender then asked the victim for his age to which the victim replied 14.13 The victim stopped the conversation on the 24th of February 2019 and the offender attempted to contact the victim a further two times on the 25th and the 26th of February 2019.
CHARGE 18 (Rolled Up):
58. The offender is also charged with a rolled up charge of possessing child abuse material in relation to 223 images and 8 videos.
59. The images were part of Kik messenger conversations saved on both his laptop and iPhone Apple 6 (Charge 19). This material located was then categorised using the Child Exploitation Tracking System (CETS) Scale. A summary of this categorisation is as follows:
1 - CEM-No Sexual Activity 217 2 - CEM-Child Non-Penetrate 0 3 - CEM-Adult Non-Penetrate 6 4 - CEM-Child or Adult Penetrate 0 5 - CEM-Sadism or Bestiality 0 6 - CEM-Animated or Virtual 0 7 - Non-illegal but connected 0 8 - Adult Pornography 0
60. Of the 223 images, 217 are CEMS classification 1 which can be described as non-sexual activity that depict genitals, nudity and solo urination. A further 6 images are CEMS classification 3 which are non- penetrative sexual activity /masturbation. The majority of images were sent and received to/ from user kari.k.swag (139 images).
13 Refer to exhibits 6,7 and exhibit 18 (Kik messenger chat log 11)
61. During forensic analysis of the Apple laptop computer, 8 videos of CEM were also located saved on the hard drive and bookmarked in the internet browser as favourites. 14 The videos depict prepubescent and pubescent boys masturbating in front of the camera. The videos are saved under the name of youngboyswebcams. The child pornography material located on this device was then categorised using the Child Exploitation Tracking System (CETS) Scale. A summary of this categorisation is as follows:
1 - CEM-No Sexual Activity 0 2 - CEM-Child Non-Penetrate 8 3 - CEM-Adult Non-Penetrate 0 4 - CEM-Child or Adult Penetrate 0 5 - CEM-Sadism or Bestiality 0 6 - CEM-Animated or Virtual 0 7 - Non-illegal but connected 0 8 - Adult Pornography 0
RECORD OF INTERVIEW
62. On the 27th of June 2019 the offender was interviewed at the Craigieburn Police Station.15 He acknowledged using KIK application and spending most of his free time on the internet. In regards to possessing child exploitation material he stated the following:
·I don’t have any pornograph… I don’t have anything to do with children, like, I’ve got nothing.I maybe spoken to few people, you know, but I never met with anyone online, I never asked, I don’t know when was the last time I asked, you know for someone to send me the picture of them, but I don’t remember doing that. I’m not paedophile (Q30).
·I have some stuff on it from when I was 17 and 18 so I’m telling you like, whoever I talked to I haven’t met them in person…it’s not like I’ve done sexual stuff with them (Q32).
·I haven’t touched anyone under age or whatever….maybe I messaged some people but you see like thirty years old people, forty years old people messaging
14 Refer to exhibit 1 (laptop), exhibit 2 analysis (p.75) and exhibit 3 (child exploitation catalogue)
15 ROI transcript p.478
other people, if that was the case the jails would be full of people…I’ve never done sexual stuff with anyone (Q54).
·I haven’t done anything with a kid… I haven’ t done anything with them, you know. Maybe it was chat online, you know, but nothing – nothing more than that (Q57).
63. When asked about what he considered to be child pornography he said the following:
·I don’t know, girls under ten, fifteen maybe? Fourteen maybe? (Q98-99).
·That’s what child pornography is you know- you text someone, you’re 14, I’m 15 let’s meet up, this and that, that’s what I think child pornography is (Q145).
·I’ve messaged a lot of girls from the UK.. They’re all over 18, one hundred per cent sure. But I never did tell them to send me nudes or something like that, you know. That’s the worst. I haven’t done that (Q164).
·Sending pictures is the next level, but I haven’t done that. I can’t remember the last time I asked someone to send me nude, you know, and if I did I was probably joking…I don’t get off on nudes (Q148-149).
64. When asked to elaborate on his definition of a “child” he agreed that he considered persons under the age of 16 to be children. The offender acknowledged that he sent and received nude photos using KIK application and stated:
·I was 17, 16 at the time when I sent nudes (Q158)
·That was a while ago when I first got my phone (Q165).
65. When questioned about his age the offender refused to acknowledge he was nineteen years old in October 2018. When asked how old he was in October 2018:
·I would’ve turned 18 (Q169)
·I can 100% tell you that I had court before I turned 19 (Q173)
·But I was legal then, I was legal…isn’t it the age for you know, 21 or 20? (Q238- 241)
·This was last year man, I was 18 (Q246).
66. The offender acknowledged that he had the phone since February 2018 but he questioned the time stamps on the download extract: 16
· This is 2018 in July- where is the proof? You can make replica, how do I know it’s real? (Q257-259)
· Are you sure these are the dates, cause you can make it yourself and make me fall in trouble (Q266-267)
· Show me your proof that this was actually, like, from my phone (Q284).
MAXIMUM PENALTIES
67. The maximum penalties are as follows:
a. Using a carriage service to transmit an indecent communication - section 474.27A of the Criminal Code (Cth) – 7 years;
b. Using a carriage service to solicit child abuse material – section 474.22(1)(a) of the
Criminal Code (Cth) – 15 years;
c. Possession of child abuse material - section 51G(1) of the Crimes Act 1958 – Level 5, 10 years.
ORDERS
68. In relation to the Sex Offender Registration Act 2004, the offences pursuant ss. 474.27A and 474.22 of the Criminal Code are all Class 2 offences. Accordingly, the offender is subject to mandatory registration for the remainder of his life (s.34(1)(c)).
16 Refer to exhibits 21 and 22
69. The offender is to be sentenced as a serious sexual offender pursuant to s 6B of Sentencing Act 1991 if convicted of 2 or more sexual offences for each of which he has been sentenced to a term of imprisonment.
70. The definition of a ‘sexual offence’ under the Sentencing Act in Schedule 1 includes offences pursuant to to section 474.22 of the Criminal Code (Cth) and 51G(1) of the Crimes Act 1958. Accordingly, if the offender is sentenced to a term of imprisonment on charges 2, 3 and 4, he would then be sentenced as a serious sexual offender on charges 6, 8, 10, 12, 13, 14, 15, 17, and 18.
71. It is noted that charges 16, 17 and 18 breached a CCO imposed for which offender was sentenced on 18 February 2019 for a period of 18 months at Melbourne Magistrates’ Court.17
72. The prosecution seeks a forfeiture order. A draft order will be provided.
MATTER HISTORY
Filing Hearing: 8 November 2009
Committal Mention: 31 January 2020
Further Committal Mention: 19 March 2020
Further Committal Mention: 9 April 2020 – Plea of guilty entered Plea listed: 14 July 2020
Kristie Churchill Crown Prosecutor
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