Director of Public Prosecutions v Clapp
[2025] VCC 576
•30 April 2025
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01717
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAI PATRICK CLAPP |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | LATROBE VALLEY | |
DATE OF HEARING: | 31 March 2025, 16 April 2025 | |
DATE OF SENTENCE: | 30 April 2025 | |
CASE MAY BE CITED AS: | DPP v Clapp | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 576 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence
Catchwords: Sexual offences against children. Grooming for sexual purposes of 2 victims. Contact offending in the form of sexual assaults and penetration offences on 3 occasions with one of those victims. Possession of CAM. Victim impact Youthful first-time offender. Early plea of guilty. Accused shaped by early exposure to pornography and CAM himself. Highly intelligent. Perhaps neurodiverse. Remorse. Some delay. Responsive to treatment. Standard sentence offences. Serious Sexual offender. Rolled up charges. Current Sentencing Practices. Totality. Non parole period.
Legislation Cited: Crimes Act 1958, Sentencing Act1991, Sex Offenders Registration Act 2004
Cases Cited:Clarkson [2011] VSCA 157; Adamson v The Queen [2015] VSCA 194; Bugmy [2013] HCA 37; Verdins (2007) 16 VR 269; McKee and Brooks [2003] VSCA 16; Vaisey [2021] VSC 584; Grossi [2008] VSCA 51; R v DP (2007) 176 A Crim R 382.; DPP v Watson [2016] VSCA 73; DPP v Conos [2021] VSCA 367; De Leeuw v The Queen [2015] NSWCCA 183; R v Phillips [2012] VSCA 140; R v Tezer and Davis [2007] VSCA 123; R v Merrett, Piggott and Ferrari [2007] VSCA 1; Brown v The Queen (2019) 59 VR 462; McPherson v The Queen [2021] VSCA 53; DPP v Patil [2020] VSCA 337; DPP v Greene (a pseudonym) [2023] VCC 942; DPP v McPherson [2019] VCC 757; DPP v Purcell (a pseudonym) [2020] VCC 757; DPP v Roe (a pseudonym) [2025] VCC 533; Kamal v The Queen [2021] VSCA 27; The Queen v Kilic [2016] HCA 48; DPP v Weybury [2018] VSCA 120; Pan [2022] VSCA 98 ; DPP v Spottiswood [2021] VSCA 146; Power v The Queen (1974) 131 CLR 623
Sentence: TES: 8 years and 10 months with a non-parole period of 4 years 8 months.
PSD: 30 days
s.6AAA : 11 years with a non-parole period 7 years 6 months
SORA registration for life
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HIS HONOUR:
OVERVIEW
1Jai Clapp, on 31 March 2025, you pleaded guilty to the following 11 charges on indictment, carrying the accompanying maximum penalties;
# Charge & date Legislation Maximum Grooming 1 Between 4 July 2023 and 16 July 2023
Grooming a child for Sexual Conduct. I will call the victim in that matter 'April'[1]49M(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)2 Between 4 July 2023 and 9 September 2023
Grooming a child for Sexual Conduct, this is in relation to a different victim who I will refer to as 'Danielle'[2]49M(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)Incident 1 – 5 July 2023 3 On the 5 July 2023
Sexual assault of a child under 16
in relation to 'April'49D(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)
Standard sentence – 4 years4 On the 5 July 2023
Sexual assault of a child under 16
in relation to 'April'49D(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)
Standard sentence – 4 yearsIncident 2 – 9 July 2023 5 On the 9 July 2023
Sexual assault49D(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)
Standard sentence – 4 years6 On the 9 July 2023
Sexual penetration (rolled up charge) [3]49A(1) Crimes Act 1958 Level 2 imprisonment
(25 years maximum)
Standard sentence – 10 yearsIncident 3 – 16 July 2023 7 On the 16 July 2023
Sexual penetration of a child
(rolled-up charge)49A(1) Crimes Act 1958 Level 2 imprisonment
(25 years maximum)
Standard sentence – 10 years8 On the 16 July 2023
Sexual penetration of a child (rolled up charge)49A(1) Crimes Act 1958 Level 2 imprisonment
(25 years maximum)
Standard sentence – 10 years9 On the 16 July 2023
Sexual penetration of a child under 12 (penile penetration)49A(1) Crimes Act 1958 Level 2 imprisonment
(25 years maximum)
Standard sentence – 10 yearsCAM charges 10 On the 28 November 2023
Knowingly possess child abuse material (computer)51G(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)11 On the 28 November 2023
Knowingly possess child abuse material (phone)51G(1) Crimes Act 1958 Level 5 imprisonment
(10 years maximum)[1] A pseudonym.
[2] A pseudonym.
[3]Indictment amended to reflect the rolled-up nature of the charge on 15 April 2025
2One can see that the offending involves the grooming of two child victims and the possession of Child Abuse Material (CAM), as well as acts of sexual assault and sexual penetration of a child under 12.
3No other word is more apt than 'abhorrent' when describing your offending. It has had catastrophic effects on the principal victim and her family. Courts have denounced offences of this kind as 'inherently evil and depraved', violating the basic norms of civilised behaviour and striking at the value the community places on the lives and well-being of the young.
4You are a young man with no prior criminal history of any kind. You are tertiary educated. You enjoy a great degree of family support. Sadly, you were exposed to graphic pornography online at a very early age, and your sexual appetites and offending behaviours seemed to have been warped by that exposure. You have taken responsibility for your offending and pleaded guilty early. You have commenced treatment, which is to your credit.
5There is no question that the only sentence available is that of a head sentence and a minimum term.
6I am going to sentence you to a total effective sentence of eight years and 10 months in prison with a non-parole period of four years and eight months.
7The reasons for that sentence follow.
OFFENDING DETAILS [4]
[4]Taken from Exhibit A: Summary of Prosecution Opening dated 14 January 2025 (as amended on 15 April 2025).
Offender and victim
8You were born in February 2000 and were 23 at the time of the offending. You were living in Officer with your father. At the time, you drove a red Mazda, inside which some of the offending occurred.
9The principal victim in the matter I will refer to as April. She was 11 years of age, in Grade 6 at the local primary school when the offending occurred.
10At the time of the offending, she was living with her sister, mother, who I will call Beth,[5] and her mother's partner, whom I will call Craig.[6]
[5] A pseudonym.
[6]A pseudonym.
Background
11On about 28 June 2023, the Victim met you online through the Snapchat App using its 'Quick add' feature, allowing users to add 'friends' previously unknown to them. The feature was being used by the Victim in a competition with her best friend to see who could get their Snapchat score to 100,000. Your Snapchat username was: Jaiwateryes.
12You initially conversed about day-to-day matters, including April telling you that she was 11 and that she was in Grade 6. You told the Victim that you were 17.
13Over the following days, you and the Victim spoke daily and ultimately organised to meet up on Wednesday, 5 July.
14The messaging between you was not confined to mundane or innocent matters. As will become clear, the messaging included highly sexually explicit conversations that constituted grooming of a child under 16 for the purposes of facilitating a child being involved in a sexual offence with you.[7] I will deal with the contact offences first, and then return to the grooming via messaging that played an important role in facilitating this offending against this Victim.
[7]S.49(M)1 Crimes Act 1958.
15During the same period, you were grooming a second child, who I will call Danielle by electronic means. That grooming thankfully did not result in contact offending, but took place over a longer period of time than that which occurred against April.
The Contact Offending against April
Incident 1: 5 July 2023
16On Wednesday 5 July 2023, you drove to meet up with the Victim in the town she lived in. You met her in the early afternoon, at a local park. You and the Victim initially sat at a bench in the park talking for a short time before you asked the Victim to go for a walk. You walked around chatting for about 10 to 15 minutes and then walked back to where your car was parked.
17You and the Victim then sat in the backseat of your car and watched a YouTube clip. You placed your arm around the Victim's waist, catching her off guard. She had her head resting on your shoulder. You placed your hand on the Victim's face, turning her towards you and then kissed her on the mouth (Charge 3 – Sexual Assault rolled up – which involves kissing the victim three times on the mouth. For the sake of clarity this is the first of three occasions.)
18Following this you took the Victim's hand and placed it on your crotch, where your penis was erect. The victim's head was on your chest. You took the Victim's hand and placed it around your penis over your clothing and moved her hand up and down (Charge 4 – Sexual Assault – this relates to the act of grabbing the complainant’s hand and placing it on your penis). This lasted for perhaps a couple of seconds.
19The Victim had never been kissed, and this had 'never happened' to her before, and she 'backed away a bit' shaking. She started to cry silently, and you pulled the Victim back into your arms, telling her, 'I'm sorry for doing that' and 'It's ok'.
20You and the Victim then went for another walk, during which you pulled the Victim 'in' for two more kisses on her lips and grabbed her buttocks, making her feel nervous (Balance of Charge 3 – Sexual Assault rolled up – involving kissing the victim three times on the mouth.)
21At approximately 4.30 pm, you and the Victim returned to your car as the Victim's mother had contacted her telling her she 'needed to come home'. You parted ways, and you told her 'It was nice meeting you'.
22By this time, according to the Victim, she had been in your company for about two hours.
23A few hours later, the Victim contacted her cousin, via Snapchat telling her that she was 'seeing' a male named Jai. When her cousin asked the Victim about Jai's age the Victim replied, 'You're gunna, like , not like me for this but 17'.[8] At this time, the Victim told her cousin that you had, 'said he doesn't want to do anything weird anyway'.[9] By 'weird' I infer that she believed you were not going to be actively sexual with her. She formed that view because of what you told her. What you told her was not true.
[8]See VARE of April at Q237 on Page 94 of the Depositions.
[9]See VARE of [cousin of April] at Q18 on Page 161 of the Depositions
24That night, the Victim spoke with you on Snapchat and you told her that she was a 'good kisser'. When discussing what had happened, the Victim told you she was not ready to 'do all that type of stuff and wasn’t comfortable' and you responded that you were ‘gunna be more understanding of it and take things slow’. The Victim thought this meant that you would not do anything like that again. This was not true either.
25Between Wednesday, 5 July and Sunday, 9 July 2023, you and the Victim communicated via Snapchat almost daily. During one exchange, the Victim told you that she was worried about her mother finding out about the relationship and deleting the Snapchat communication. On hearing this, you provided your mobile phone number as an alternative means of contact, and the Victim wrote it down.
Incident 2 – 9 July 2023
26On 9 July 2023 at 1.00 o'clock in the afternoon, the Victim left her home address and walked to a local park. When she arrived, you were waiting in your red Mazda. You asked if she would like to, 'go for a drive around' and she sat in the front passenger seat.
27You drove around and ultimately parked the vehicle in a carpark.
28You then asked the Victim if she, ‘wanted to get into the backseat’ and she replied, ‘Sure, I guess’. Once you were both in the rear of the vehicle, you remained sitting up, and the Victim lay down with her head on your thighs.[10]
[10]See VARE of April at Q266 on Page 98 of the Depositions.
29You and Victim watched YouTube clips on your phone for a short while before you reached over and placed your hand on the Victim's thigh, gradually getting closer to her vagina. You then placed your hand down under the Victim's underwear and rubbed the Victim's vagina (Uncharged act, led for context).
30You digitally penetrated the Victim's vagina with two fingers telling her, ‘I have two fingers in’ (Charge 6– Sexual penetration of child under 12 – rolled up this is the first of two incidences of digital penetration).[11] When you did this, the Victim felt very uncomfortable and remained silent and said nothing.
[11]Amended on 15 April 2025, to reflect amendment to indictment.
31You then whispered to the Victim, ‘I want to put three in’ before inserting three fingers into the vagina (Charge 6 – Sexual penetration of child under 12 – rolled up, this being the second of the two incidents of digital penetration).[12] This hurt the Victim 'a bit'. The digital penetration lasted for approximately three minutes before the Victim sat up and you then kissed her on the lips (Charge 5 – Sexual assault by kissing the victim on the mouth).
[12]As above.
32The Victim realised the time was close to her curfew and asked you to drop her close to her home. There was no further conversation between you about what had just transpired on the drive back to her home area.
33Over the following days, you both kept Snapchatting. During the Snapchats you asked the Victim whether ‘it felt good?’ and the Victim did not know how to respond. You also asked the Victim to perform oral sex on your penis but the Victim told you that she was not, ‘comfortable’ with that and, ‘I’m 11, I’m not going to do that stuff at this stage’ while you kept asking, ‘Just one lick’ and then apologised saying, ‘Sorry for asking’. According to the Victim, this was the second time that she had stated her age to you.
Incident 3 – 16 July 2023
34On Sunday 16 July at about 3.30 pm, the Victim again met you at the same park. You returned to your car as the Victim was cold. Once in the vehicle, you started the engine and drove to a path near the Victim's school where you parked.
35At 4.30 pm, the Victim's stepfather sent a text message to her asking, ‘Where are you? You were meant to be at the park’ and the Victim replied that she was, ‘Having a walk around tbh’. The text message exchange lasted for about 15 minutes, with the Victim providing misleading details as to what she was doing. Once the Victim finished sending these messages, she had moved from the front seat into the rear of the vehicle where you both just 'chilled' and 'hugged'.
36You then crawled over the top of the Victim so you were beside her. You lay down on the seat. You positioned yourself above the Victim and kissed her before starting to grind your erect penis against her vagina over her clothing.
37You then sat up and with the Victim's legs splayed across your lap, pulled the Victim's pants and underwear down to her mid-thigh exposing her vagina. You rubbed the Victim's vagina and then digitally penetrated her vagina (Charge 7 – Sexual penetration of child under 12 rolled up – this is the first of three acts of penetration).
38You then pulled your pants down and started 'grinding' your penis against the Victim's vagina.[13]
[13]Not a charged act.
39You then positioned yourself between the Victim's splayed legs with her vagina exposed and digitally penetrated her vagina again (again this is part of Charge 7) before orally penetrating her vagina twice (Charge 8).
40You again positioned yourself above the Victim and penetrated the Victim's vagina with your penis (Charge 9 – Sexual penetration of child under 12 – this represents the single act of penile penetration). You were not wearing a condom. This hurt the Victim.
41You then stopped penetrating the Victim's vagina with your penis and went back to rubbing your penis against the Victim's vagina before digitally and orally penetrating her vagina again (in furtherance of Charges 7 and 8).
42The Victim states the entire incident lasted for about 10 minutes. Afterwards, the Victim was panicking, shaking and crying uncontrollably while you hugged her saying, ‘It's ok’.
43At approximately 5.15 pm, you dropped the Victim in the vicinity of her school and at 5.30 pm she arrived home.
44Later that night, you Snapchatted with the Victim about what had happened. When you asked the Victim how she ‘felt about it?’, she replied, ‘That it hurt, that I was scared and that I didn't know what to do’.
Complaint
45On Friday 21 July 2023 at about 7.22 pm, the Victim contacted her best friend, on Snapchat and disclosed the recent of those incidents. Shortly after disclosing the incident, the Victim and you argued over Snapchat and the Victim 'unadded' you from Snapchat.[14]
[14]See VARE of April at Q446 on Page 120.
46On Saturday 22 July, that is the following day at 2 o'clock, the Victim disclosed the offending to her cousin on Snapchat. Her cousin then telephoned the Victim's mother, telling her that the Victim had 'been sneaking off from the park to see a 17-year-old'. The victim's mother then went through her daughter's phone but could not find a reference to you and so searched conversations that she had with friends.
47The Victim then told her mother and stepfather, with the latter then conducting searches on the Web for you. They located you through their own Snapchat account, and they asked you to contact them about their daughter. You deleted or blocked them. The victim's mother then took the Victim to the Moe police station to report the matter.[15]
[15]This may be why you stopped contact with April, but I cannot say with certainty when the snapchat messaging stopped given it is unclear when the messages were sent by April’s mother.
48On 23 July 2023, the Victim attended Morwell and provided a VARE statement to Police. The phone was acquired for analysis.
Digital Forensic Materials
49A Digital Forensic Officer (DFO) analysed the Victim's mobile phone, and that device was found to have sexually explicit materials sent to the Victim by you via Snapchat on it, between 4 July and 16 July 2023.
Grooming of April
50As I said earlier, these messages that I am about to come to put the sexual assault and sexual penetration offences into context. They span the total period of contact offending I have already spent some time detailing.
51
The messages are persistent, highly sexualised and designed to facilitate sexual contact between you and the 11-year-old victim. You portrayed yourself as a
17-year-old to April, rather than the 23-year-old you were. I infer this was done to appeal to the young victim, who may be less willing to meet someone twice her age, as opposed to someone six years older. One can conclude, of course, that your messages achieved their desired purpose.
52A sample of messages sent from Snapchat account Jaiwateryes to the April (Charge 1 – Grooming a child under 16) appear below. The grooming is obviously ongoing over time, occurring before and after the contact offences. The messages include the following.[16]
[16]Because of the platform used, the Court was only privy to the messages you had sent, not the complainant’s response to them. Other aspects of the conversation with the victim are alluded to in the ROI (claiming you loved her), but did not form part of the plea opening.
Prior to incident 1
(a) 4 July 2023, 3.16pm
"Now send one with your boob more out frfr''
After incident 1, but before incident 2
(b) 5 July 2023 between 7.36pm and 8.29pm
"Next time I'll suck them"
"Yeah lick them up fr"
"I'm still horny"
"Yeah you can send nudes maybe"
"Should have kissed more"
(c) 6 July 2023 between 12.59am and 5.50pm
"Bby I've been horny all day"
"Can you send now or no"
"What about a little boob pie"
"Just start with making out and some touching"
"Like glugglugglug"
(d) 7 July 2023 7.13pm
"I'm horny thinking about you"
"Be ily and you're hot"
(e) 8 July 2023 between 6.13pm and 6.17pm
"I love you"
"I really do"
"IK I ask for these things, I'm sorry",
"It just helps me prove that you really love me"
"I mean yeah, be you wouldn't send them to anyone else"
"Are. you ok with touching"
"Like I did on Wednesday"
(f) 9 July 2023 6.23pm and 8.58pm
"I'll give you meat"
"I could play with it and kiss you all day"
"I love you too Nisha"
After incident 2 but before incident 3
(g) 12 July 2023 between 4.57pm and 7.40pm
"Would you send nudes for me to come tonight"
"Whatever type you wanna send"
"What you think looks hot"
"On your chest"
"And horny"
(h) 14 July 2023 between 11.02pm and 11.42pm
"We did kiss bbg"
"How's your boob hickey going"
"What if I ate you out?"
"I didn't feel any hair bbg"
"It can't be worse than my dick"
"Nah my dick isn't bad trust"
"Your pussy probablt looks good too dw"
"They all do bbg"
"But when you're horny no one cares"
"Eat that pussy"
"The eventually you can eat me
"I mean you were wet af so you were definitely horny"
"Getting horny thinking about it"
"One finger or two fingers"
"My dick would fit ngl"
(i) 16 July 2023 between 9.12am and 9.13am
"Your pussy is better"
"Gonna taste test"
Investigation and Arrest
53On Tuesday 28 November 2023 at 10.00 am, police attended your home in Officer and executed a search warrant. You were present then, and the following items were seized and photographed:
a)1x Galaxy mobile phone
b)1x Personal computer tower
c)1x laptop
54You provided Police with the access codes to those devices.
First Record of Interview
55At 11.32 am, a formal record of interview (ROI) was conducted.[17] During that record of interview, which covers close to 400 questions and answers, you were not exactly frank, instead, you denied all the allegations of ever met or communicated with the Victim. You were unable to provide an explanation as to how the Victim could provide a personal description of you, your vehicle, the Snapchat messages between you and her, or the call check records indicating your mobile phone utilising cell towers located in the Victim's location on the above relevant dates. At about 1.10 pm, the interview concluded, and you were released pending further investigation and possible summons.
[17]See Depositions at p. 269: Exhibit 27 - First Record of Interview and Transcript.
Further investigation
56In that vein, the further investigation disclosed the following.
CAM
57Some 2,233 images or videos of child abuse material were located on your devices namely your phone and your computer tower.
58Amongst those images the following examples were located (Charges 10 – on the computer and 11 – on the phone– Knowingly possess child abuse material);
(a) An image of a prepubescent female child (approximately 7 years of age) being orally penetrated by an adult male's penis;
(b) An image of a naked prepubescent female child (approximately 7 years of age) sitting on the ground looking up with a naked adult male standing above her and positioned with his genitals in close proximity to the child's face;
(c) An image of a female baby (approximately 6 months old) naked and spreadeagled on her back covered in male ejaculate with an adult male penis positioned over the child;
(d) A 3-minute video depicting an adult male anally penetrating a prepubescent female (approximately 2 years old) with his penis;
(e) A 1 minute and 39 second video depicting a naked female baby (approximately 18 months of age) on her back with an adult male standing. over her with his erect penis exposed and ejaculating over the child's body.
59It was common ground on the plea that there were few, if any duplicated images that appeared on both devices. The vast majority were on the tower with only 10 on the phone. It was agreed that what I have described is a fair representation of what was found on the computer. The depraved nature of this material is consistent with your own account of seeking out more and more extreme material of this type over time.
Grooming of Danielle.
60The next aspect of your offending is the grooming of the victim I will refer to as 'Danielle'. Analysis of your mobile phone revealed SMS conversations between a number ending in 298 (who is Danielle)[18] and one ending in 183 (which was your phone) between 7 July 2023 and 28 September 2023, that is to say at a time overlapping with your offending against April, but extending beyond the time of that offending. (Charge 2 – Grooming a child under 16).
[18]A pseudonym. The phone is actually registered to this victim’s mother.
61This victim was a real child who lived interstate. She had not made a statement, and her family had wished to have nothing further to do with the matter.
(a) 7 July 2023
You: We're gohna smash - 8.11pm
You: I have a big dick frfr - 813pm
You; Do you wanna see my dick or sumn - 8.14pm
You: Sit on my face kitten - 8.35pm
You: I was promised titties - 9.58pm
You: Pop a titty or block. -10.09pm
You: Why can't you just pop a titty smh - 10.11pm
(b) 8 July 2023
You: How old are you btw - 1.26pm
Danielle: 15 Darling - 3.34pm
Danielle: How old are you - 4.06pm
You: 1? - 4.06pm
You: Show your titties and then I'll get hard and show fr - 4.29pm
You: I have a big dick trust - 4.31pm
Danielle: Image sent depicting female wearing black singlet top - 4.32pm
You: Put your hand on them - 4.32pm
Danielle: MY HAND!?! - 4.32pm
You: Yes - 4.33pm
You: Like grab them - 4:33pm
Danielle: Image sent of female with hand placed on her right breast over clothing - 4.35pm
You: Yesss, now make a video squeezing them - 4.37pm
Danielle: NAHHH YOU GOTTA FOLLOW UP ON UR END FIRSR - 4.34PM
Danielle: First* - 4.34pm
You: Get me hard and I will - 4.34pm
Danielle: Video sent of female grabbing/squeezing right breast over clothing - 4.35pm
You: I want to see your tits tho too - 4.42pm
Danielle: Image sent depicting breasts - 4.44pm
You: Mmm damn they're amazing - 4.44pm
You: What about a booty pie? -4.48pm
Danielle: Sends image depicting female from behind focussing on buttock area whilst wearing pants - 4.48pm
You: Looks nice and slappable to me - 4.49pm
You: Pull your pants down tho - 4.49pm
You: I want to fuck you so bad tbh - 8.16pm
(c) 9 July 2023
Danielle: Sends image depicting female nude in shower - 7.30pm
You: Ohh okay- 7.39pm.
You: Hot babe - 7.39pm
You: Show me your ass too - 7.39pm
You: You're so hot I can't believe you're all mine - 7.48pm
Danielle: Send unknown content 7.50pm
You: Fr I wish we could smash rn -7.53pm
Danielle: Send unknown content 7.54pm
You: Yes - 7.56pm
You: Fuck your pussy so good - 7.56pm
You: You'd look even hotter with my cum on your face tho - 8.31pm
(d) 6 September 2023
Danielle: Do you really want me to talk abt what happened? - 9.52pm
You : Ye - 9.52pm
Danielle: Ok - 9.52pm
Danielle: This random chick.added me and I added her back then she started sending me nudes n shit so I blocked her. Then that night she messaged me· on a whole different account and sent mess of my boobs - 9.54pm
Danielle: And said if I didn't pay her she was gonna leak them
Danielle: Then that's when I left. I was gone abt 9.30 and they found me at 1.30 - 9.55pm
Second Record of Interview
62On Wednesday 20 March, you attended Pakenham for an interview by appointment. You were put under arrest in relation to the possession of CAM located on the mobile phone and tower seized by police on 28 November.
63You were interviewed. You exercised your rights in making 'No comment' in response to the allegations that were put to you.
64Following the interview, you were charged with possess child abuse material amongst other things and bailed to the Latrobe Valley Magistrates' Court on 16 May 2024. You were on bail until the plea, when I remanded you in custody.
Case history
65The matter proceeded in the following way;
DATE EVENT 4 July 2023 – 16 July 2023 Offending against April 4 July 2023 – 9 Sept 2023 Offending against Danielle 28 November 2023 Possession of CAM
Date of arrest
ROI 120 March 2024 ROI 2
Charge date
Bailed16 April 2024 Filing hearing
(abridged for filing hearing and variation)19 July 24 Plea offer 9 August 2024 FCM to permit negotiations to take place 4 October 2024 Committal mention
Plea of guilty
BailedNov 2024 Treatment begins with Mr. Hanley 10 January 2025 Plea adjourned from January circuit pending psychological report form Mr. Hanley 31 March 2025 Plea heard
Remanded in custody16 April 2025 Further plea 30 April 2025 Sentence
30 days PSD66I will say that I consider that you have entered a plea of guilty early. I make findings elsewhere about the effect the passage of time since the offending plays in the sentence that I impose.
Victim Impact
67I have received Victim Impact Statements (VIS's) from both April[19] and her mother.[20]
[19]Exhibit B: Victim Impact Statement April* 20 February 2025.
[20]Exhibit C: Victim Impact Statement Beth* 20 February 2025.
68The offending has had a significant and continuing emotional and social impact on your child victim, who is now 13. Amongst other things, it has made her 'suicidal, depressed and scared to leave' her house sometimes. She has attempted to cut and harm herself. The victim impact statement establishes that the deleterious effects of your crime are still very much at work, more than 18 months after you committed them.
69The impact of your crime extends beyond the effect on April, though. It affects her family as a whole. The impact on the Victim is confirmed by her mother, in her own VIS. The impact on her mother of the offending on her then 11-year-old was to cause her anxiety levels to 'go through the roof'. The offending occurred in a small community where the Victim and her family lived. Since then, the Victim and her family have had to leave their 'forever home' in an effort to make their now traumatised daughter feel safe. This has had a financial impact on them, but their concerns are much more than about money.
70I have not received a victim impact statement from Danielle, though I can infer the harm caused to her. The presumption of harm to children being prematurely exposed to sexual activity is dealt with in Clarkson;[21] a harm that is recognized to extend to grooming offences such as this.[22]
[21][2011] VSCA 157.
[22]Adamson v The Queen [2015] VSCA 194.
MATTERS PERSONAL TO YOU
Details
71You are now aged 25. You were 23 when you offended.
Childhood and adolescence
72You were brought up in unusual circumstances with your parents being separated under the one roof for as long as you can remember.
73Your father moved out of the family home only about three years ago. That home environment was devoid of affection and instead was permeated with an atmosphere of conflict.
74Your father is a forklift operator, and your mother a mental health nurse. You have a younger brother who is unemployed and continues to reside with your mother, whilst you were living with your father.
75Your childhood and adolescence were marked with social anxiety/avoidance and consequent isolation. You retreated within yourself and into your own imagination. You later sought refuge in the online world after your exposure to pornography at the incredibly early age of about eight.
76Your parents describe you as a child who never caused issues,[23] but they did not know (nor could they expected to be) the inner turmoil that you had suffered for so long.
[23]Exhibit 4: Character Reference Trudy Clapp 23 March 2025.
Education and employment
77You grew up in Aspendale Gardens, Pakenham area and attended local primary schools and secondary schools. You were, by all accounts, a gifted student, completing VCE in 2017 with an ATAR score of 92. You then became the first person in your family to attend University, going on to complete a Bachelor of Engineering at Monash, graduating in September 2024.[24]
[24]Exhibit 5: ATAR Results; Exhibit 6: Bachelors of Software Engineering Degree; Exhibit 7: Monash University transcript.
78Your emotional and social development, though, did not match your intellectual advancements, as I will develop in more detail in a moment.
79While studying, you worked for a period of around 18 months at a Dan Murphy's and then as a machine operator. After graduation, you obtained a position at Fluger in software development, which was the commencement of your engineering career. This was cut short after you were made redundant. Following that redundancy, you worked at Extel as a casual factory worker and machine operator.
80You have demonstrated a willingness to work, but of course, your future employment prospects will be very different after the sentence I have imposed.
Psychosocial development
81A report from Mr Peter Hanley,[25] psychologist was tendered on your behalf that assisted me in understanding certain aspects of your make-up and personality that are relevant and informative on this plea. He has been involved in treating you.
[25]Exhibit 2: Treatment Report by Dr Peter Hanley 17 March 2025.
82He suggests that consideration ought to be given to investigating whether or not you are neurodiverse, given the way you present and approach the world.[26]
[26]This was the topic of discussion and submissions on the further plea date. Mr Norton made a considered decision not to request further professional investigations on this issue.
83You were exposed to pornography – including underage imagery from a very young age and were subject to sexual touching by a slightly older friend prior to the age of 10.
84Those initial sexual experiences shaped you very much for the worse. As a child, you developed a compulsive use of pornography, which included child abuse material from your early teens. You could not have hoped to understand the way in which such exposure to this content would warp your views of intimacy and sexuality. Without any intervention to correct this course you had been set on, things became much worse.
85You rather compulsively sought out more extreme pornographic content as you grew older, and by the age of 15 had been exposed to, and sought out, illegal material, including CAM.
86You explained to Mr Hanley that you sought novelty and would build collections of material until fear of police intervention or disappointment from your parents would motivate you to delete the material and attempt to abstain – unsuccessfully, before once more returning to the dark web to gratify yourself. There was obviously an aspect to this behaviour where you knew it was wrong to possess and view it.
87Your first consensual sexual experience occurred when you were 21, but tellingly, the bulk of your 'intimate' relationships have taken place in the somewhat artificial and unreal world online.
Context to offending
88By the time you offended at age 23, you had been a habitual user of pornography for close to a decade. Your use of CAM had been entrenched. You formed the belief you were addicted to pornography and tried to reduce your reliance on it.
89You felt envious of the closeness that you saw in other people's friendships and wanted to feel known and understood by others, but found it difficult to bridge the gap between your public persona and private life.
90Prior to the offending, you had been participating in discussions on Discord and Reddit and were accessing the 'dark web' via links that were shared with you. You were exposed to attitudes online that glamorised the sexual abuse of children, which resonated with some of your own experiences as a child.
91You told Mr Hanley that during the exposure to offence-facilitating attitudes, you had become interested in younger and younger girls, and at the time believed that sex with an 11-year-old would not be substantially different from sex with an adult – an astonishing belief that you have subsequently revised.
92You said at the time of offending, you were aware that you were breaking the law and taking a significant risk, but felt compelled to finish what you had started, and felt like you had nothing to lose and nothing to live for.[27]
[27]Exhibit 2: Treatment Report by Dr Peter Hanley 17 March 2025, [8].
93Your mother stated that you believed that you had 'ruined your life'. Insofar as a feeling of helplessness or inevitability might have contributed to this offending, that need not be the case in the future.
94As I remarked during the course of the plea, the sentence I impose must give you some hope of living a useful life upon release. Those who do not see any hope in their future are difficult to treat and difficult to deter. You are young, intelligent, much loved and receptive to treatment. On that basis alone, there is hope.
95Mr Hanley sets out a useful synopsis of the factors personal to you which are relevant to the commission of the offence that I will read for the benefit of all:
Mr Clapp presented as an anxious and socially awkward young man with prominent depressive symptoms. He was frank and unfiltered in his self-disclosures, offering a naïve transparency that has been conducive to therapeutic progress, but suggestive of autistic traits and difficulties with social cognition.
Mr Clapp's offending can be understood in terms of his early exposure to pornography and sexual behaviour as a child, followed by sexual compulsions and fantasies that served as a substitute for same-age relationships that he felt too socially anxious to develop. His offending appears to have been motivated by a desire for intimacy, social approval, sexual arousal, and fulfillment of sexual fantasy with a non-threatening female. His behaviour appears to have been disinhibited by insensitivity to social conventions, depression, exposure to pro-offending attitudes online, compulsive urges, and cognitive distortions regarding the likely impact of his behaviour on the victim.[28]
[28]Exhibit 2: Treatment Report by Dr Peter Hanley 17 March 2025, [12]-[13].
96I believe that all of your offending needs to be seen in light of the above.
97I invited submissions on this very issue on 16 April 2025 by way of further plea and was assisted by the submissions furnished by the Crown on 28 April 2025.[29] I have considered the submissions of both parties on this issue.
[29]Exhibit F: Additional submissions from the Crown, accompanied by the article entitled “Growing Enlightenment: Sentencing Offenders with Autism Spectrum Disorder in Australia” published in Volume 44(4) of the 2021 University of NSW Law Journal, 1702.
98At risk of repetition, you are intelligent, but not emotionally so. Moreover, you yourself were introduced to vile and depraved internet content at an unspeakably early age.
99Experiences such as that leave a mark on a person. Indeed, substantial sentences are often imposed for offending that involve exposing children to graphic sexual contact simply because of the damage that it can do to them. Without intervention to correct the damage done, it is understandable how you became desensitised, disinhibited and developed attitudes that fostered the kind of mindset that saw you offend.
100It is always necessary to examine the personal circumstances of an accused when assessing their culpability for a crime. That moral blameworthiness need not be measured only by reference to specific categories that are familiar to the law (Bugmy[30] in the context of deprivation and exposure to alcohol and violence especially, Verdins[31] in the case of impaired mental functioning and mental illness, McKee and Brooks[32] in the context of early drug use and addiction or Grossi[33] in the context of pathological gambling addiction).
[30][2013] HCA 37.
[31](2007) 16 VR 269.
[32][2003] VSCA 16, see also Vaisey [2021] VSC 584, Incerti J.
[33][2008] VSCA 51.
101Your personal circumstances do not fit neatly into any of those categories, but that is not to say your culpability is not somewhat diminished by the way that you were made. You knew on an intellectual level that what you were doing was wrong, but years of extensive and prolonged exposure to the dehumanising effects of pornography generally, and child abuse material specifically, from your early childhood unquestionably shaped you.
102Your view of sex and intimacy has been, until now, largely defined by those early experiences that Mr Hanley referred to above. When you did offend, you did not offend dishonestly, you did not offend by acts of sheer interpersonal violence. It is no coincidence, in my view, that you offended in a sexual way, specifically in relation to children. My view is that one can only properly understand the cause of this offending through the lens of those earlier experiences – experiences that became normalised and escalated over time.
103It seems to me that if I am properly to acknowledge the known harm done by behaviour such as yours on others, for instance, then I must also acknowledge the harmful role premature exposure to sexualised imagery and content played in your own development and the impact it has had on your own life.
104I am not saying you are not responsible for your own actions, but I do not consider your background in this regard as simple 'context'. I consider it has a role to play in modestly reducing your culpability, and I take it into account that way.
Post offence
Relationship
105Since April 2024, you have been in a committed, age-appropriate relationship with Tanika Rogers, now 20. She is fully aware of the nature of your offending and provided a reference[34] and offered ongoing support. She attended your plea. She describes you as caring, supportive and selfless. These characteristics are hard to reconcile with the exploitative nature of your offending.
[34]Exhibit 3: Character Reference of Tanika Rogers 19 March 2025.
Treatment
106You commenced psychological treatment on 27 November 2024 with Mr Hanley.
107I have referenced that report already. It assisted me in understanding how you came to engage in the conduct you did. It establishes that you are amenable to treatment. It is measured and considered and does not overstate your progress, nor does it understate the work that needs to be done for you to be fully reclaimed.
108Nothing in the report gave rise to the application of the principles in Verdins, but I stress that does not rob the report of value.
109Mr Hanley says that you are an introverted, insecure young man who has difficulties forming meaningful relationships. He describes you as 'experiencing clinically significant symptoms of depression'.
110You have already engaged in five sessions of 1 hour each as part of the Melbourne Private Psychology Sex Offender Treatment Program (SOTP) – which is an individualised program aimed at reducing risks of recidivism.
111You have made considerable gains in the course of that treatment, which has been carefully targeted to the issues confronting you and the factors that contributed to the offending. You are motivated, frank, cooperative and reflective.
112You are developing insight into the triggers for this offending, but work still needs to be done to improve your levels of understanding of harm and empathy. Mr Hanley acknowledges that this will take time, given how long you were exposed to the harmful content online and how entrenched your thinking was.
Other Support
113Despite the difficulties in their relationship, both your parents have supported you throughout the proceedings and will continue to do so during your sentence and beyond.
114Your parents are fully aware of the offending and continue to support you. They, like Ms Rogers, describe you as being wracked with guilt.
115If there was any doubt about your degree of self-loathing, it is evident in your letter of apology written to the primary victim and her parents.[35]
[35]Exhibit 8: Letter of Apology.
116There is a superficial argument that posits that all parents would stand by their children come what may. In my experience, that is not always the case, especially for offending of this kind. Many offenders in your situation are ostracised by family and friends and fall to be sentenced without such support. The significance of family support (especially now that they are fully aware of the deeper issues in your life) cannot be overstated.
MATTERS OF SENTENCING PRINCIPLE
The Gravity of instant offending
117General deterrence is an important sentencing consideration. Other members of the community must understand that sexual offences against children will not be tolerated.
118As Vincent JA said in R v DP:[36]
Specific and general deterrence assume great significance as sentencing considerations and, putting it bluntly, those who exploit and abuse young children, must anticipate that the response of our society, which our courts represent, will be severe.[37]
[36](2007) 176 A Crim R 382.
[37]Ibid 393 [46].
119Mr Norton acknowledged that general deterrence and denunciation must be prominent sentencing aims, in combination with the need to justly punish you, and these aims can only be met with the imposition of a considerable total effective sentence together with a non-parole period. An analysis of the relevant principles I am dealing with now, so much is inarguable.
The offending against April
Contact offending
120Offences committed against children, particularly involving sexual acts/abuse, can only be regarded as particularly serious within the criminal legislation framework.
121The fact that sexual penetration of a child under 12 attracts a maximum penalty of 25 years and a standard, not mandatory, standard sentence of 10 years applicable to it, is reflective of the community's abhorrence of such criminal acts and the seriousness with which those offending against children will be treated.
122The sexual assault charges alone carry a maximum penalty of 10 years (as do the grooming charge), and the contact offences you have pleaded to, falling short of penetration, carry with them a standard, not mandatory, sentence of four years for similar reasons.
123In assessing the general gravity of the offending, the court must have regard for the fact that sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. The legislative scheme means that a child under 16 simply cannot consent to sexual penetration. The prohibition has dual purposes in protecting the child from harm that can come from premature sexual activity and deterring adults who would contemplate having sex with someone under the age of 16. This prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent 'consent'.[38] The presumption of harm, of course, is borne out in this case.
[38][2011] VSCA 157.
124
The Crown submits that the offending against April is to be properly seen as to
mid-to-high gravity.
125There are a number of factors relevant to assessing the gravity of the offending, including:
a)The offending was targeted and calculated. Obviously, the way in which you cultivated this relationship with your principal Victim for the purpose of exploiting it is represented by the separate grooming charges, and I have taken care not to treat that as an aggravating factor here, so as to avoid doubly punishing you .
b)You knew the Victim was 11 almost immediately after the commencement of communicating with her, and were reminded of that fact by her;
c)The age disparity between you – a university student of 23, and the Victim of 11, still at primary school
d)The sexual penetrations took place without any protection shielding this Victim from the possibility of sexual disease and/or pregnancy risks at a young age;
e)The duration of the penetrations
f)The distress of the Victim
g)Your behaviour against the Victim was not isolated, but rather continued over multiple occasions during a period of weeks; and finally
h)Unquestionable serious victim impact
Grooming
126As the Court of Appeal re-iterated in DPP v Watson[39], mobile phones and internet access afford an offender 'with unparalleled world-wide opportunities to exploit the young and impressionable'. In that case, the Court went on to recognise that:
[39][2016] VSCA 73; (2016) 259 A Crim R 327.
127 Today’s technological landscape presents a dangerously easy playing field for manipulation of children. The prevalence of such offending means that significant weight must be attached to general deterrence.[40]
[40]Ibid [89].
128Charge 1 was committed against the same victim, April. The features that reflect the gravity of that offence are:
a)The grooming consisted of sexually explicit messages sent by way of Snapchat over a 12-day period.
b)Not only were the messages sexually explicit, they were at times quite manipulative in the sense they attempted to persuade a child to send images of herself and the like in order to 'prove' her affection for you.
c)There were usually multiple messages of this nature on a single day. There were 15 such messages on 14 July for instance.
d)These messages were sent at various times of the day including late at night and early into the hours of the morning; and finally
e)The grooming was followed of course by you actually meeting with the Victim on three occasions being 5, 9 and 16 July 2023.
Offending against Danielle
129The grooming offending against this victim thankfully never resulted in contact offending. This victim told you that she was 15.
130This grooming consisted of sexually explicit messages sent between you by way of Snapchat messages in the three-month period between 7 July and 28 September. This period is substantially longer than your similar grooming of April.
131The messages were usually exchanged at night, but some were sent during the afternoon, and they included videos and pictures that the Victim sent of herself with your encouragement.
132The fact that cybersex offences may occur without physical proximity is irrelevant because the internet permits intimidation and coercion to be employed to ensure the child's participation. It is also irrelevant that the child may be exploring their sexuality online or may even enjoy the attention of the offender; but this does not relax the protections for children online. Similarly, the attitude, demeanour, conduct, 'attractiveness' of the victim, and their effect on the respondent is irrelevant. Harm continues to be presumed by the interaction, with the responsibility on adults to avoid premature sexual activity with children under 16. That includes 'preparatory' offending, such as procuring or grooming.
133I alluded earlier to the issue faced by a sentencing judge in dealing with charges of grooming and contact offences involving the same child, where the spectre of double punishment arises. I have approached this task carefully with guidance from the Court of Appeal in Conos.[41]
[41][2021] VSCA 367.
CAM
134The two charges of knowingly possess child abuse material cover the material found on your personal computer (Charge 10) and mobile phone (Charge 11), both of which were seized on 28 November 2023. There were a total of 2,233 images or videos that constituted the child abuse material.
135Child abuse material offences are considered especially grave. Production and viewing of child abuse material is an international problem becoming increasingly prevalent. In determining an adequate sentence for these offences, a court needs to be mindful of the fact that the internet is rapidly evolving and provides an easy means of exploiting children because of the anonymity it affords increases the difficulties in detecting such crimes. The expanded breadth of offending involving internet use, increased maximum penalties for those offences are indicative of their gravity.
136The Court of Appeal has unequivocally said the objective seriousness of using the internet to exploit children is grave, even if the offender is not procuring the exploitation themselves. In other words, being charged only with accessing or possessing CAM does not mitigate the gravity of the offending or the offender's culpability. This is because possession of the child abuse material is not victimless, it encourages and creates a market for the corruption and exploitation of children who are sexually abused in order to meet demand.
137The matters relevant to sentencing for offences involving child abuse material are well established and were enunciated by the New South Wales Court of Criminal Appeal decision of De Leeuw v The Queen[42] in these terms:
[42][2015] NSWCCA 183 at [72]; quoted with approval in Garside v The Queen (2016) 50 VR 800, [2016] VSCA 74 at [25] and in Chenhall v The Queen [2021] VSCA 175 at [42]
“Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted
b. The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted
(ii) the number of items or images possessed
(iii) whether the material is for the purpose of sale or further distribution
(iv) Whether the offender will profit from the offence
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised
(vi) the length of time for which the pornographic material was possessed
c. General deterrence is the primary sentencing consideration for offending involving child pornography
d. Less or limited weight is given to an offender’s prior good character
e. Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography
f .Offending involving child pornography is difficult to detect given the anonymity provided by the Internet
g. The possession of child pornography material creates a market for the continued corruption and exploitation of children
h. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime—children are sexually abused in order to supply the market
i. The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.
138The number of images is not especially substantial when one looks at other examples of this type of offending, but it is of course measurable in thousands. In any event the number of images is not the sole measure of gravity here.
139Amongst the images and videos were depictions of extremely young children being subjected to explicit sexual acts including sexual penetration by an adult. There is no evidence you paid for the images or were to on sell them. Nor is there any evidence as to how long you possessed them (bearing in mind it is a single date offence).
Plea of guilty and remorse
140You pleaded guilty at the earliest practical stage, knowing that imprisonment was inevitable. There was no and will be no cross-examination of either of your Victims. Though you denied the offending in your interview, you were at least cooperative in the sense that you provided the passcodes to devices necessary to corroborate large parts of the principal Victim's account, and provided the basis for the entirety of Charges 10 and 11, it seems.
141Another aspect of your behaviour I take into account is that no statement was ever required from Danielle. You pleaded guilty to the grooming of her on the basis of your phone records alone.
142You accepted without question the need to amend the indictment to reflect the rolled-up nature of Charge 6.
143The utilitarian benefit of this plea is very significant. You saved the principal victim and her family the trauma of a trial. You are entitled to a discount for both the objective and subjective elements of the plea.[43]
[43]R v Phillips [2012] VSCA 140.
144This is a plea, though, that is accompanied by genuine remorse. Your conduct since arrest – in particular your engagement with Mr Hanley – demonstrates a willingness to try to improve yourself and rehabilitate.
145More than that, your expressions to your girlfriend (and mother for that matter) – which come in the context of facing up to this offending, which is inevitably of the kind met with opprobrium – are a powerful indicator of remorse. There is direct evidence in the form of your own letter to the principal Victim and her mother[44] authored by you, having read their victim impact statements. That letter is genuine and without cynicism, and it is indicative of insight, developing empathy and maturity.
[44]Exhibit 8: Letter of Apology.
Youth
146There is always a place for an offender's youth in the sentencing calculus. Your comparative youth plays a meaningful role in this exercise, despite the gravity of this instant offending.
147You do not fall within a cohort of offenders who would be eligible for Youth Justice, for instance (you are not under 21). I do consider you to be a youthful offender when these matters occurred, given you were only 23 when they were committed. I must still sentence you as a young man of 25. Though highly intelligent, I repeat, you are not especially emotionally mature.
148With your youth comes the promise of reform. The truth of that basic premise is fortified by your actual progress with Mr Hanley.
149Your age, lack of prior criminal history and receptiveness to treatment remain important sentencing considerations, especially when I am to assess your prospects of being reformed.
Prior character
150As I have said, you have no prior convictions of any kind, or any pending or subsequent matters. You are otherwise a person of good character. People speak of positive features of your personality, which cannot be overlooked either.[45] There is no finding here that can be made that your good character helped you commit the offences.[46]
[45]Exhibit 3: Character Reference Tanika Rogers 19 March 2025.
[46]S 5AA(1) Sentencing Act 1991.
Delay
151You were arrested and first interviewed on 28 November 2023. You made denials then of course. You were then interviewed on 20 March 2024 when you declined to comment, and it was from then that you were charged. The filing hearing in this matter was not until 16 May 2024. By July of that year the wheels were in motion to resolve the matter by way of plea offer, culminating in the matter settling in October that same year. The matter was adjourned (appropriately in my view) for you to undertake treatment which has been beneficial.
152You have had the matter hanging over your head since your initial arrest in November 2023 and have then engaged in meaningful, directed treatment.
153Whilst the delay is not 'inordinate'[47] it is nonetheless significant especially when offence specific counselling and treatment has commenced, as it has here.[48]
[47]And I want to make it clear, as far as I am concerned it hasn’t been delay created by a tardy attitude towards the matter by the Crown, nor do I consider it one manufactured by the accused to put off the inevitable or seek some cynical sentencing advantage in doing so.
[48]R v Tezer and Davis [2007] VSCA 123; R v Merrett, Piggott and Ferrari [2007] VSCA 1.
Standard sentence
154The four (4) offences of sexual penetration of a child under 12 (those being Charges 6,7,8 and 9) each have a standard sentence of 10 years.[49]
[49]Sections 5A and 5B of the Sentencing Act 1991 also apply.
155The three (3) charges of sexual assault of a child under 16 (Charges 3, 4 and 5) have a standard sentence of four years.[50]
[50]Sections 5A and 5B of the Sentencing Act 1991 applies.
156The standard sentence is a numerical guidepost for Courts when sentencing specified offences. It is a guidepost, not unlike the maximum penalty is.[51] It does not permit or involve two-stage sentencing. It does nothing to displace the instinctive synthesis that is so fundamental to sentencing.
[51]The regime also deals with the setting of non-parole periods, which I will come to later, once matters that concern such a decision have been canvassed.
157The period specified as the standard sentence is 'the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness'.[52]
[52]Sentencing Act 1991 s.5A(3).
158The Court must give reasons for imposing the sentence, any non-parole period fixed under the Act shorter than that which is specified in s11A(4), and state how the sentence imposed relates to the standard.[53] This requires me to identify the facts, matters and circumstances bearing on my judgment as to the appropriate sentence.
[53]Sentencing Act 1991 s.5B(5).
159The principles bearing on the application of the standard regime were authoritatively considered in Brown v The Queen.[54]
[54]Brown v The Queen (2019) 59 VR 462.
160I emphasise the standard sentence is just one of many factors I am required to consider, many of which pull in different directions. It does not represent a starting point for a sentence from which I then add or subtract depending on various factors of aggravation or mitigation as may be.
161I am not required to (nor will I) classify the subject offending on a scale of seriousness. My interpretation of the regime is that I am fully to identify the facts, matters and circumstances bearing on the judgment that I have reached as to an appropriate sentence, and I have very much endeavoured to do so in these reasons.
162The individual sentences I have imposed on the charges fall short of the standard sentence due to my assessment of the nature and gravity of the offences, and where I have assessed each offence as falling within the range of seriousness for that offence. I have also had regard to the mitigating effects of other factors I am required to take into account for sentencing you
163I am also mindful of the comments made by Priest and Forrest JJA in Luke Anthony McPherson v The Queen[55]
Before concluding we should mention the difficult task with which sentencing judges are confronted when considering the standard sentence for this type of offending. The standard sentence is designed to represent a ‘mid-range’ example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional ‘mid-range’ very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless — it must be given its place in the sentencing calculus — but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less’.
[55][2021] VSCA 53 at [31].
Rolled-up counts
164The matter is slightly complicated by the fact that some of these charges are rolled up. Charges 3, 6, 7 and 8 are all pleaded as rolled up charges.
165Where a sentencing court is required to apply the principles of standard sentencing for a rolled-up charge, a Court should approach the task in a manner conceptually similar to how it would approach taking into account the maximum penalty for an offence with respect to a rolled-up charge.
166Rolled-up charges require an offender's agreement and are only for the purposes of a guilty plea. They simplify the sentencing court's task and work to the benefit of the offender by allowing multiple instances of similar offending to be dealt with as a single charge rather than through numerous separate charges. That is obviously the case here and confirms the cooperative approach you have taken in resolving the matter.
167When sentencing for a rolled-up charge, the court must consider all of the circumstances of the offence and the offender including if the offending was carried out over an extended period, victimised multiple persons, and the totality of harm described in the charge.
168While I must consider all the relevant circumstances of a rolled-up charge, the pleading must still be considered or treated as presenting a formal one, one single formal charge. The maximum penalty is therefore limited to the maximum for a single charge.
169'A rolled-up charge is a collection of a bunch of counts bundled together into a single count…the sentence on a rolled-up charge must take into account all of the individual offences it comprises.'[56] A 'significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence'.[57]
[56]DPP v Conos [2021] VSCA 367, [74].
[57]DPP v Conos [2021] VSCA 367, [75].
170At risk of repetition, to return to the standard sentence regime, that must be treated as a guidepost (in respect of objective factors only) and nothing more and there is a 'lessened utility' of the standard sentencing guidepost, as opposed to the maximum penalty guidepost, explained at [57] of Brown the notion of assessing the present offending against a hypothesised offence of the mid-range of seriousness is affected by the relevant charge being rolled up.
Parole period
171
In fixing a non-parole period for a standard offence, s 11A(4)(c) of the Act requires the court, where the imprisonment is less than 20 years imposed, to fix a
non-parole period at least 60 per cent of the head sentence and I will return to this in more detail after an analysis of other sentencing considerations relevant to the setting of a non-parole period.
Serious Offender Provisions – Part 2A – community protection
172Once you are sentenced to a term of imprisonment, and you will be on Charges 6 and 7, you fall to be sentenced as a Serious Sex Offender on Charges 8 and 9 pursuant to s6D and 6E of the Sentencing Act 1991.
173In sentencing on those charges, the protection of the community must be regarded as the principle sentencing purpose. Unless otherwise ordered, any sentence of imprisonment imposed on Charges 8 and 9 must be served cumulatively upon the sentences imposed on Charges 6 and 7.
174The Prosecution does not seek a disproportionate sentence in order to properly prioritise protection of the community, and that is a sensible concession in my view. In the short term you will be unable to offend because of your removal from society at large until eligible for parole. The community can be best protected in the long term, especially when dealing with a relatively young first offender engaged in treatment, by fostering conditions in which they may reform. That is, of course, the most durable form of community protection.
175Accordingly, the sentence will be a proportionate one to the gravity of the offending, and I am mindful of the principles of totality
176Principles of totality and parsimony are applicable in view of the sheer number of charges for which you are to be sentenced.
177I have had regard to the principles as set out in DPP v Patil (a pseudonym),[58] in [177] of my reasons.
[58][2020] VSCA 337 (Maxwell P, Forrest T and Weinberg JJA).
Current sentencing practices
178While each case must, of course, be assessed on its own facts and circumstances, other sentencing cases may be of assistance in guiding the Court where such cases bear similar features or where such cases deal with relevant principles.
179Your offending is covered by four types of charges, all with different maximums, some involving standard sentences, some of them being rolled up, and others requiring consideration of the serious offender regime.
180I have familiarised myself with current sentencing practices for the offences of sexual penetration of a child under 12, sexual assault of a child under 16,[59] grooming and possession of child abuse material, as best I can.
Case collections
[59]Since the introduction of a standard sentence regime.
181I have done so via reference to the case collection available through the Judicial College (JCV) for the offences of
a)Sexual penetration of a child under 12.[60]
b)Sexual assault of a child under 16.[61]
c)Child pornography and grooming offences.[62]
[60]JCV at 3.4.2 Court of Appeal overview – focussing on those cases dealing with sexual penetration of a child under 12 after the introduction of the standard sentence regime, as well as relevant County Court sentences covered at 3.4.5 (which also has cases relating to CAM).
[61]JCV at 3.4.4 Court of Appeal overview – focussing on those cases dealing with sexual assault of a child under 16 after the introduction of the standard sentence regime.
[62]JCV 3.8 Court of Appeal and County Court decisions.
Statistical data
182I have also had regard to the statistical data applicable to the offences.
183Without unnecessarily focusing on one aspect of the above, I note in crude terms, the following:
a)Between 1 July 2018 and 30 June 2023, the median term of imprisonment for a single charge of sexual penetration of a child aged under 12 was seven and a half years, and the most common range of imprisonment lengths was between eight and nine years.[63] The median non-parole period in cases of standard sentence offences of sexual penetration of a child under 12 is 6.88 years.
b)
Between 1 July 2018 and 30 June 2023, the median term of imprisonment for sexual assault of a child under 16 was 1.83 years, and the most common range of imprisonment was between zero and one year.[64] The median
non-parole period for cases of sexual assault of a child under 16 was 2.75 years.[65]
c)Between 1 July 2018 and 30 June 2023, the median term for knowingly possess CAM was one year, the most common range of imprisonment lengths was between zero and one year.[66] The median non-parole period for such cases was 1.92 years.[67]
d)Between 1 July 2018 and 30 June 2023, the median term of imprisonment for grooming was one year, and the most common range of imprisonment lengths was between zero and one year.[68] There is no data available on the median non-parole.
[63]SacStat higher court outcomes 1 July 2018 to 30 June 2023.
[64]SacStat higher court outcomes 1 July 2018 to 30 June 2023.
[65]SacStat higher court outcomes 1 July 2018 to 30 June 2023.
[66]SacStat higher court outcomes 1 July 2018 to 30 June 2023.
[67]SacStat higher court outcomes 1 July 2018 to 30 June 2023.
[68]SacStat higher court outcomes 1 July 2018 to 30 June 2023.
Comparative cases
184I was provided with four cases that are said to be comparable (or instructively different for that matter), that I will address in the briefest terms.
a)DPP v Green[69] who, at age 21 committed multiple acts of sexual assault and penetration against more than one child, in a gross breach of trust, over a significant period of time. He was sentenced to total effective sentence of 13 years and eight months with a non-parole period of eight years and six months after trial.
b)DPP v McPherson[70] where the accused was in his 30s and committed penetrative offences against a young child under 10. He was in a position of trust. There was some mitigation of sentence to be found in his very poor mental health.[71] He was sentenced to nine years with a non-parole period of six after trial.
c)In DPP v Purcell[72] where the accused pleaded guilty to sexual offending against five children between the ages of nine and two. There was also produce and possess child abuse material. He was in his 40s when he offended. He had significant functioning impairment, but also had relevant prior convictions. He was sentenced to 11 years four months with a non‑parole period of eight years.[73]
d)Finally, DPP v Roe[74] , who in his 50s offended against five child victims form two families between the ages of five and nine over the course of a whole year. He was sentenced after trial to 16 years, eight months with a non-parole period of 10 years.
[69](a pseudonym) [2023] VCC 942.
[70][2019] VCC 757.
[71]Which itself say a greater than 60% disparity between head sentence and non-parole period.
[72](a pseudonym) [2020] VCC 757.
[73]S.6AAA declaration of 14 years 4 months with a non a prole period of 11 years.
[74](a pseudonym) [2025] VCC 533.
185One of the observations that can be made of that collection of cases, is three out of four of the offenders concerned pleaded not guilty. There are obviously accused who do not accept responsibility for their offending the way you did, which in my view underscores the value of your plea of guilty.
186The cases above largely involved multiple victims, who were younger than April, involved a position of trust, with horrific victim impacts across whole families – all matters that aggravate that offending.
187The sentences are higher than I would impose here, not because of some de facto application of the principle of parity, but because proper application of the relevant sentencing principles compels such a conclusion.
188I have approached the use of statistical data and other cases with the necessary caution.[75] They are certainly informative and instructive, but I do not consider they set the outer limits for the exercise of my sentencing discretion.[76]
[75]Kamal v The Queen [2021] VSCA 27.
[76]The Queen v Kilic [2016] HCA 48.
189To repeat, I have not engaged in the exercise of ascribing labels such as 'high, moderate or low'.[77] The vagueness of that terminology and the limits of language make that exercise rather futile.
[77]DPP v Weybury [2018] VSCA 120 per Priest JA, [54].
Totality
190I am most mindful of the significance in this case of the application of the principle which requires me when sentencing for multiple offences to ensure that the aggregate term I impose is a just and appropriate one which is a proper measure of the criminality involved.
191There must be an appropriate relatively between the totality of all criminality and the totality of the sentence I impose, and this is true when I consider the interaction between the charges on the indictment. I have determined an appropriate length of imprisonment for each and every charge, taking the applicable sentencing considerations into account and designated the highest term as the base and then I have determined the extent to which there should be any cumulation regarding each count. Finally, I have stood back and considered in light of totality what an appropriate sentence ought to be.
192For most offences, a court is less likely to order the cumulation of sentences where they arise out of a single incident involving a single victim, and where the individual offences do not involve fresh harm. However, in relation to sexual offending, it is appropriate to acknowledge by orders of cumulation that acts closely associated in time do represent separate and substantial harms. The objective gravity of the total offending is relevant to assessing the need to cumulate sentences for individual sentences.
193The total nature of the offending against April warrants a measure of cumulation between counts and incidents, given that each act adds to the overall violation of that child. Mr Norton submitted that there ought to be increased cumulation as between incidents, with greater levels of concurrency between offences that occur within an incident. I agree
194The grooming of April is separate criminal conduct, of course. That grooming was ongoing for the entire period of the contact offending and was engaged in for the purposes of facilitating that very offending. At risk of repetition, I stress I have taken care not to doubly punish you for the features of this offending that overlap.
195The contact offending occurred within a period of seven days, between 5 July and 16 July 2023.
196The grooming of Danielle obviously involves the exploitation of a separate child for your own sexual gratification. Your conduct extends in a temporal sense, well beyond the grooming of April, although you never manifested that in contact offending.
197The CAM charges comprises 10 and 11 involve considerable overlap that could have easily been represented by a single charge.
Specific deterrence and prospects of rehabilitation
198The gravity and nature of this offending instinctively call into question your prospects for reform.
199Your Counsel argued that a proper examination of the factors present should lead me to conclude that your prospects are good. That is said because of your plea of guilty, remorse, lack of prior convictions (as well as your progress on bail), young age and enduring family support. Such a finding is fortified by your 'recent engagement, motivation, insight and progress' with Mr Hanley.
200I agree that your prospects for reform are sufficiently positive to lead to a sentence which both encourages and facilitates your rehabilitation. You have lost so much because of this offending and have expressed genuine contrition. I believe I can find that you are specifically deterred.
Parole period
201Section 11A(4)(c) of the Sentencing Act 1991 provides as follows (emphasis added);
(4) Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least—
(c) 60 per cent of the relevant term if it is a term of less than 20 years.
202Mr Norton submitted that it is in the interests of justice that you serve less than 60 per cent of the head sentence in terms of my fixing a non-parole period.
203You will undoubtedly require supervision, monitoring and assistance upon release. In affixing an appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentence is to be imposed.
204You are still young and, even after serving a sentence of several years, will re-enter the community as a relatively young man. Noting your background and personal vulnerabilities, it is said that you may be particularly vulnerable to the weight of a lengthy sentence. It is important too to recognise that the treatment you have undertaken means something, and that you can have the prospect of a useful life upon your release in the future.
205It is in the community's interests that you be able to capitalise on the positive work engaged in. This can and should be facilitated by way of a substantial differential between the head sentence and non-parole period.
206The phrase 'interests of justice' is not identified or defined in the Act, nor does it appear to be a threshold of the kind that exceptional circumstances is, for instance. It is submitted that the promotion of rehabilitation (and by rehabilitation, community protection) should be central to this consideration of the 'interests of justice' question as it applies to the setting of a non-parole period.
207In Court of Appeal considered in DPP v Pan[78] this very question, that was in the context of a Crown appeal where the sentencing judge imposed a non-parole period 66.7 per cent of the head sentence, as opposed to the 70 per cent of the head sentence which the Act contemplates for murder. In that case, the Judge was moved to impose a lower non-parole period, not least of all because of the accused's youth, his plea, and the sheer length of the head sentence.[79]
[78][2022] VSCA 98.
[79]See also Spottiswood [2021] VSCA 146, [41].
208Mr Hardijadbrata made a sensible concession on this point. He conceded that because of your age, there are sound reasons why I might be minded to allow for a greater period of parole than 70 per cent of the head sentence.
209I have had regard to the provisions of s11A(4)(c) and the above cases. I have had regard to the broader considerations that inform the setting of a non-parole period.
210I have concluded that a non-parole period of less than 60 per cent of the head sentence will represent an appropriate disparity between the head sentence and minimum term in this case. Such a non-parole period, which is less than the 60 per cent referred to in the statute, nonetheless properly reflects the minimum term justice demands you serve before being eligible for release.
211This period pays due regard to your prospects for reform (which I repeat I have found to be good) whilst maintaining the appropriate weight to be given to necessary and important countervailing factors when sentencing. It is an appropriate mitigation of punishment in favour of your reform through eventual conditional freedom.[80]
[80]Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.
SENTENCE
212I come now to the part of my sentence where I formally pass sentence on you, Mr Clapp. Having considered the matter as you can tell at some length, and balancing and weighing the necessary factors, I convict and sentence you as follows.
213Counsel, the sentence is expressed in a chart, and I will take you carefully through it. You can see that it is divided into charge number, charge date, maximum penalty. The sentence column will have the sentence that I have actually imposed. The next column in the chart is the cumulation on the base, which will be Charge 9, and on other charges. And the final column is simply a running total once you add the measures of cumulation upon the base.
# Charge & date Maximum Sentence Cumulation on base and other charges Total on
6y base on charge 9Grooming
1 Between 4 July 2023 and 16 July 2023
Grooming for Sexual Conduct with a Child under the age of 16 (April)10 years
15 m 3m 6yrs 3m 2 Between 4 July 2023 and 9 September 2023
Grooming for Sexual Conduct with a Child under the age of 16 (Daneille)10 years
20 months
4m 6yrs 7m Incident 1 – 5 July 2023 3 On the 5 July 2023
Sexual assault of a child under 16
(Rolled up charge - kissing on the mouth 3 times)10 years
SS – 4 years12m
2m
6yrs 9m 4 On the 5 July 2023
Sexual assault of a child under 16
(grabbing victim’ s hand and placing it on penis)10 years
SS – 4 years14m 4m 7yrs 1m Incident 2 – 9 July 2023 5 On the 9 July 2023
Sexual assault of a child under 16
(kissing on mouth)10 years
SS – 4 years10m
2m
7yrs 3m 6 On the 9 July 2023
Sexual penetration of a child under 12
(rolled up digital penetration 2 times)25 years
SS – 10 years3yrs 8m 4m 7yrs 7m Incident 3 – 16 July 2023 7 On the 16July 2023
Sexual penetration of a child under 12
(rolled up charge digital penetration 3 times)25 years
SS – 10 years4yrs 6m 8yrs 1m 8 On the 16 July 2023
Sexual penetration of a child under 12
(rolled up charge lingual penetration 3 times)25 years
SS– 10 years
SSO4yrs 6m 8yrs 7m 9 On the 16 July 2023
Sexual penetration of a child under 12
(penile penetration)25 years
SS – 10 years
SSO6 yrs 6y base CAM charges 10 On the 28 November 2023
Knowingly possess child abuse material (computer)10 years 14 months 3 m 8yrs 10m 11 On the 28 November 2023
Knowingly possess child abuse material (phone)10 years 3 months Nil - TES : 8 years 10 months (106 months)
NPP: 4 years 8 months (56 months) (approximately 53% of the head sentence)PSD
214You have been in custody since 31 March 2025. Pursuant to s18 of the Act, I declare that you have served 30 days by way of pre-sentence detention and those details will be entered in the records of the court.
Serious offender
215I note that you were sentenced as a Serious Sexual Offender on Charges 8 and 9, and that declaration will be made in the orders of the Court.
SORA
216You will be registered for life with respect to the Sex Offenders Registration Act 2004 (SORA). This is a matter that I cannot and do not take into account for the purposes of imposing sentence.
Section 6AAA
218Mr Clapp, the Act requires me to tell you what you would have received but for your plea of guilty. But for your plea of guilty I would have ordered you to be sentenced for imprisonment for a period of 11 years and set a non-parole period of seven years and six months.[81]
[81]s5(2BC) Sentencing Act 1991: In sentencing an offender a court must not have regard to any consequences that may arise under the Sex Offenders Registration Act 2004 from the imposition of sentence. I confirm the following classifications pursuant to the Schedules of the Sex Offenders Registration Act 2004: Grooming for sexual conduct with a child under 16 – see Class 2, see Schedule 2, item 9A. Sexual assault of a child under 16 – Class 2 - see Schedule 2, item 5A. Sexual penetration of a child under 12 – Class 1- see Schedule 1, item 1. Knowingly possess child abuse material – Class 2, see Schedule 2, item 15.
Forfeiture
219I will make the ancillary orders, namely the forfeiture order of the phone and the personal computer tower by consent.
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