Director of Public Prosecutions v Dierickx
[2022] VCC 928
•16 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR-22-00633
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW DIERICKX |
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JUDGE: | Judge Lauritsen | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 1 June 2022 | |
DATE OF SENTENCE: | 16 June 2022 | |
CASE MAY BE CITED AS: | DPP v Dierickx | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 928 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Use of carriage service – possession of child abuse material – production of child abuse material – twelve charges – presumption of cumulative sentences on some charges – structure of Commonwealth and State sentences – very good prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Commonwealth Criminal Code; Commonwealth Crimes Act 1914; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:DPP (Cth) v Garside [2016] VSCA 75; DPP v Swingler [2017] VSCA 305; Mokbel v R [2013] VSCA 118; Worboyes v R [2021] VSCA 169; DPP v Meharry [2017] VSCA 387; DPP v Watson [2016] VSCA 73; R v Leask (2013) 236 A Crim R 1; Rajasekar v R [2017] NSWCCA 113; DPP v Hum (a pseudonym) [2022] VSCA 57; DPP v Mokdissi [2021] VCC 440
Sentence:Total effective sentence of 56 months’ imprisonment, being 42 months cumulative upon the State non-parole period of 14 months and a non-parole period of 32 months, being 18 months Commonwealth non-parole period, cumulative upon State non-parole period of 14 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Carlander | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr C. Edwards | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Andrew Dierickx, you have pleaded guilty to these charges:
(a) a charge of using a carriage service to cause child pornography material to be transmitted to yourself;
(b) three charges of using a carriage service for sexual activity with a person under 16;
(c) a charge of producing child abuse material. This is a rolled up charge. It contains five occasions of the offending conduct occurring between 14 March 2019 and 1 November 2019.
(d) three charges of using a carriage service to transmit child abuse material;
(e) two charges of using a carriage service to solicit child abuse material;
(f) a charge of using a carriage service to cause child abuse material to be transmitted to yourself; and,
(g) a charge of possessing or controlling child abuse material obtained or accessed using a carriage service.
2The maximum penalties for each of these offences charged is 15 years’ imprisonment, except for Charge 3, where the maximum penalty is 10 years’ imprisonment. Charge 3 contains an offence under the Victorian Crimes Act 1958, 1958. The other charges are bought under the Commonwealth Criminal Code. The inclusion of the offence in Charge 3 is due to the absence of a similar offence under Commonwealth Law.
Circumstances
3
The circumstances of your offending are set out in a very detailed document entitled, ‘Amended Summary of Prosecution Opening on Plea’, which is
Exhibit A. Your counsel takes no issue with the factual content of that document. I will summarise the offending described in Exhibit A in the order in which it appears in that document.
4After two reports to the Australian Federal Police, a warrant to search your residence was obtained and in your presence, it was searched on 8 July 2021. The police members found and seized a number of electronic devices. You gave the police the information necessary for them to access those devices. The agreed summary does not suggest you were compelled by order or otherwise to do so.
Complainant B
5A file was found on your computer. It is a recording of a video call between you, an adult female, with the user name ‘Angie’ and a naked female infant. This infant is referred to as ‘Complainant B’. The recording shows the child’s vagina and you watching. You then send a message through the chat function, ‘Rub her’ and you are seen exposing your penis and masturbating. These circumstances comprise Charges 3 and 8. Charge 3 concerns producing child abuse material. Charge 8 concerns engaging in sexual activity with a person under 16.
Complainant C
6
There are two files on your computer relating to
Complainant C. They were accessed by you on 1 November 2019. The first file shows the recording of a video call between you and an adult woman. The woman is playing with a female infant, referred to as Complainant C. The woman pulls the infants pants down several times with the camera focussing on the vagina. These are also the circumstances of Charge 3, a charge of producing child abuse material. While this happens you said, ‘Yes. I see. Too young’. Later, you sent a message, ‘Too little’.
7The second file is another recording of a video call between you and another adult woman with the user name, ‘Virginia’ and Complainant C. The woman pulls the pants down of Complainant C, exposing her buttocks. She gives a ‘thumbs up’ sign as you watched. This is the second instance constituting Charge 3 and Charge 9. As I said, Charge 3 concerns producing child abuse material. Charge 9 concerns you causing child abuse material to be transmitted to yourself.
Complainant D
8There were three files on your Sandisk card. The first file, created on 18 April 2019, contains a text and video conversation between you and an unknown person. First, there is a text exchange set out in paragraph 22 of Exhibit A. The exchange concerns a female child, described as Complainant D. There follows a recording of a video call. The video call shows the child properly. She is a pre-pubescent female and is dressing. You are watching. You say: ‘Undress the girl. No. Show your pookee’.
9The second file, also created on 18 April 2019, contains a text and video conversation between you and another unknown person. The other person asks you to send money so she can buy food.
10The third file, created eight days later contains a video call between you and an adult woman with the user name ‘Angel’. She is accompanied by Complainant D. You are naked. You say to Complainant D: ‘Hello, sweetie. How are you?’ You re-direct the camera towards your penis and begin to masturbate. The woman turns the camera away from Complainant D to herself. These circumstances constitute Charge 3 and Charge 4. Charge 4 concerns engaging in sexual activity with a person under 16.
Complainant E
11On 8 March 2019, you created another file which was found on your SanDisk card. It contains text and a video conversation between you and an adult woman, who you refer to as Grace. Grace is accompanied by a pre-pubescent female wearing underwear, described as Complainant E. The conversation between you and Grace is recorded in paragraph 28 of Exhibit A. Part of the call, occupying 46 seconds, is missing. Its contents are unknown. There are two images of Complainant E in underwear. During your conversation with Grace, you open an image of the child and zoom in towards her buttocks.
12These circumstances constitute Charge 1, being the offence of causing child pornography material to be transmitted to yourself using a carriage service.
Complainant F
13This is another file, created on 14 March 2019 and located on the SanDisk card. It contains text and a video conversation between you and a female child, Complainant F. The text has you telling Complainant F you are masturbating. The video shows you masturbating and Complainant F poking her tongue out and pouting.
14These circumstances constitute Charge 2 and Charge 3. Charge 2 contains the offence engaging in sexual activity with a person under 16.
Complainant A
15On 16 October 2019, you had a WhatsApp conversation with a person purporting to be a 14 year old female from the United Arab Emirates. The person is described as Complainant A. The conversation is contained in paragraph 32 of Exhibit A. During the conversation, you send a video of an adult male masturbating. You ask her age and she says 14. You send an image of your penis. She sends you an image of a female child. You ask to see her body. You ask is she is a virgin.
16These circumstances constitute Charge 7, being an offence of soliciting child abuse material.
Charge 5
17
On 28 September 2019, you engaged in a WhatsApp conversation with an unidentified person purporting to be in Italy. To a request from this person, you sent three files containing child abuse material: first, a video of a pre-pubescent female without underwear on and focussed on her vagina; second, a video of a pre-pubescent child in a bath; and third, a video of a
pre-pubescent child, lying on a bed without underwear and showing her vagina.
18These circumstances constitute Charge 5, which is the offence of transmitting child abuse material.
Charge 6
19On 13 October 2019, you started a conversation on WhatsApp with an unidentified male, purporting to be in Malaysia. The conversation continued the next day with you asking about, ‘Naughty’ girls offering ‘MEGA’ links and suggesting a ‘trade’. Despite this person saying he did not have ‘naughty’ girls, you persisted. At his request, you sent this person a MEGA link.
20MEGA is an internet based cloud storage service, which allows users to save files, including images and videos.
21These circumstances constitute Charge 6, the offence of using a carriage service to solicit child abuse material.
Charge 10
22On 13 February 2020, you engaged in a WhatsApp conversation with ‘Mary’, who purports to be in Botswana. You had had previous contact with Mary.
23
Charge 10 concerns the exchange between the two of you on
13 February 2020 and is set out in paragraph 43 of Exhibit A. During the exchange, you transmitted images of a penis, a pre-pubescent child holding her anus open and a pre-pubescent child being masturbated by an adult. These circumstances constitute the charge of transmitting child abuse material.
24The next day you queried Mary before sending an image of a child wearing underwear and saying, ‘I like’.
25The events of 13 February 2020 constitute Charge 10, using a carriage service to transmit child abuse material.
Charge 11
26On 1 July 2021, you engaged in a Facebook Messenger conversation with a person, using the profile name ‘Cecile’. The conversation is set out in paragraph 46 of Exhibit A. You are talking about a child named ‘Anang’. During the conversation, you transmitted text based child abuse material. Although images were transmitted, three images were sent by the other person. The nature of the image sent by you is unknown.
27The exchange constitutes Charge 11, using a carriage service to transmit child abuse material.
Charge 12
28On 8 July 2021, you possessed 61 files stored in your devices. First, there were 12 images of pre-pubescent or younger children, clothed and unclothed stored in your mobile phone. Second, there were three files containing five images with four of them depicting oral sex with a pre-pubescent female child stored in a SanDisk card. Third, there were 39 files stored in your laptop computer and depicting forms of sexual activity involving pre-pubescent children, including vaginal and oral sex. The various images and videos are more particularly described in paragraph 48 of Exhibit A. These circumstances constitute Charge 12, a charge of possessing or controlling child abuse material obtained or accessed using a carriage service.
Arrest and Interview
29You were arrested on 8 July 2021 and interviewed. You made admissions. You told some falsehoods. A summary of what you said is set out in paragraph 50 of Exhibit A. You were charged and bailed that day.
Personal Circumstances
30You are now 59. You were born and raised in Dandenong and are the second youngest of four boys. Your parents were born in Belgium. Your father was a carpenter but also drove taxis, while your mother owned a shop. Your father was a domineering, overbearing and overprotective person. Although you knew your father loved you, he could be threatening when angry. You described your mother as gentle. Both your parents are now deceased. Your relationship with two of your brothers has soured because of the revelation of your offending. On the other hand, your relationship with your brother, Robert, and his wife is excellent. They are providing you with accommodation.
31You found primary school upsetting and disliked attending because you were bullied because of your size.
32You completed Year 11 at a secondary school after failing that year at another school. You did not attempt Year 12, preferring to obtain work in a bank. You worked as a clerk and then as a teller. After seven years at that bank, you had a period of unemployment before becoming a customer service officer with Centrelink. You worked with Centrelink for 17 years before being fined and demoted over what appears to be a well meant breach of conduct. You no longer wanted to work for Centrelink. You applied for and received a redundancy package.
33After another period of unemployment you obtained work delivering bread, before doing seasonal and casual work. In about 1988, and again after some unemployment, you completed a cookery course. Thereafter, you have worked as a cook.
34You describe your first marriage as chaotic, with your wife being violent and leaving you. She had bikie associations and you were fearful of her associates.
35Your second marriage lasted 14 years. There are three children, two girls and a boy, aged 9, 11 and 17. You had fortnightly contact with the children until charged. The conditions of your bail prevented contact, except briefly at Christmas.
36After your separation from your second wife, you discovered online chatting and met a Filipino woman. You have visited her in the Philippines and are engaged to be married. She lives in the Philippines.
37Up until very recently, you lived alone. You lost your employment when the fact of your offending became known.
Psychiatrist
38Nina Zimmerman is a forensic psychiatrist. On 15 February 2022, she interviewed you at the request of your solicitors.[1]
[1] Report dated 7 April 2022
39Dr Zimmerman took a detailed history. Much of what I know about you comes from her history. She read the summary of facts contained in the police brief, which is not Exhibit A, a transcript of the record of interview and your thoughts on what you have done.
40Dr Zimmerman strongly recommended your participation in a sex offenders programme, ‘to better understand the factors that contributed to his offending, including trigger factors’. She noted the ability of Corrections Victoria to provide such programmes. She thought you were motivated to undertake such programmes. She was wary of your statement that you would never reoffend, stressing the need for a programme.
41As to your risk of reoffending, Dr Zimmerman combined her clinical assessment of you with the application of appropriate risk assessment tools. The first tool was the Risk for Sexual Violence Protocol. At length, she discussed the five areas, which she called ‘domains’ with each domain divided into categories. As part of her analysis of these domains, she diagnosed you as suffering from Paedophilic Disorder.
42To her, the most likely situation where you would reoffend occurs when you are under stress due to interpersonal relationship conflict or the ending of a relationship and found yourself socially isolated and unable to work. In those circumstances, you risk a deteriorating mood and the tendency to turn for solace to viewing child pornography.[2]
[2] Report at paragraph 122
43Apart from engaging in a sex offenders programme, Dr Zimmerman recommends engagement with your general practitioner to treat your mood. She also recommends you being employed.
44Dr Zimmerman considered you a moderate risk of sexual reoffending, meaning, you require special management strategies in order to reduce your risk of reoffending.
Legal Considerations
45Eleven of the twelve charges contain offences under the Commonwealth Criminal Code. Section 16A of the Commonwealth Crimes Act 1914, sets out the matters which I must take into account when sentencing you for those offences. The remaining charge is an offence created by the Victorian Crimes Act 1958. In sentencing you for that offence, I must take into account s5(1) of the Sentencing Act 1991 and where relevant, the matters set out in s5(2) of that Act. In addition, I must pay regard to part 2A of the Sentencing Act, in relation to the single State offence.
46Where you are to be sentenced on two or more Commonwealth child sex offences committed on or after 23 June 2020, there is a presumption of cumulative sentences. The offences in Charges 11 and 12 were committed after that date.
47In sentencing you for these kind of offences and I am referring to all of them at this stage, in the DPP (Cth) v Garside[3], the court said this:[4]
[3][2016] VSCA 75
[4] At paragraph 25
‘…The matters relevant to sentencing for child pornography offences were further expanded upon by the New South Wales Court of Criminal Appeal in the recent decision of De Leeuw, in these terms:
Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
(a) 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:…’
Part 2A of the Sentencing Act 1991
48As I said earlier, unlike the other charges, the offence in Charge 3 is created by the Crimes Act 1958. Part 2A of the Sentencing Act 1991 makes provision for the sentencing of serious offenders.
49First, you are a ‘serious sexual offender’ because you have been convicted of two or more sexual offences for each of which you will be and have been sentenced to a term of imprisonment.
50Second, in considering whether you are to be sentenced as a serious offender, I must have regard to a conviction or convictions for a relevant offence irrespective of whether recorded –
(a) in the current trial or hearing; or,
(b) in another trial or hearing; or,
(c) in different trials or hearings held at different times; or,
(d) in separate trials of different charges in the one indictment.
51Third, in sentencing you, a court may only treat a conviction for an offence as a conviction for a relevant offence if it is satisfied beyond reasonable doubt that it is.
52Fourth, in sentencing you, a court must have regard to a conviction for an offence against the law of the Commonwealth and must treat it as a conviction for a relevant offence if it is satisfied beyond reasonable doubt that –
(a) the offence is substantially similar to a sexual offence; and,
(b) you were for that offence sentenced to a term of imprisonment.
53Fifth, if the court in sentencing a serious offender for a relevant offence considers a sentence of imprisonment is justified, the Court, in determining the length of a sentence –
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed;
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstance.
54Sixth, every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on you, whether before or at the same time as that term.
Commonwealth and State Sentences
55In the DPP v Swingler[5], the court discussed sentencing where the indictment contained State and Commonwealth charges, as is the case here. The court said:[6]
‘How then should a judge, faced with a joint Commonwealth–State indictment of the kind filed in this case, go about sentencing an offender such as the respondent? Logically, there seem to be three possibilities, as follows:
1. The judge can simply sentence for each offence on the indictment, in the order in which each offence is listed. He or she can then differentiate between them by making orders as to cumulation or concurrency with regard to the State offences and orders as to commencement with regard to the Commonwealth offences. The sentencing judge adopted that approach in the present case but, as can be seen, it was not an unqualified success.
2. The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.
3. The judge can group all the Commonwealth offences together, and deal with them first. This potentially gives rise to the difficulty that State offences ordinarily operate from the date of sentence, as per s 17(1) of the Sentencing Act. They cannot, as a general proposition, be made to commence at the expiration of a Commonwealth sentence, subject only to s 16(4)…’
[5][2017] VSCA 305
[6] At paragraph 78
56I will not read out the terms of that sub-section because the sub-section has no application here and I would adopt the approach set out in the second option identified by the court.
Discussion
57At the time of your offending you were aged between 56 and 58. You were interested in children aged 13 and some well under that age. At 59, I do not consider your age is relevant in the sense dealt with in Mokbel v R[7], to which your counsel makes reference.
[7][2013] VSCA 118
58As the court said in Garside’s case, absent exceptional circumstances, a sentence involving an immediate term of imprisonment is ordinarily warranted. There are no exceptional circumstances in your case. This is the conclusion reached by that Court, after considering the various matters in the passage I quoted.
59Overall, the objective seriousness of your offending is in the middle range. Although the number of videos and images is not large and their content is typical of what is generally seen, some of the material results from your interaction with a child. In some instances, you displayed your penis and masturbated in the presence of a child.
60Whether it is interactive or not, one expect these children to suffer long lasting damage to their psychological makeup through what is done to them. They are unidentified and, probably, never will be.
61
Charge 3 alleges the intentional production of child abuse material between
14 March 2019 and 1 November 2019. The charge does not allege a single instance of production between those dates. In effect, it alleges six occasions:
(a) a file involving complainant B;
(b) two files involving complainant C;
(c) two files involving complainant D;
(d) a file involving complainant F.
62I will sentence you as a serious sex offender on this Charge. The principal purpose of my sentence on this Charge will be the protection of the community from you. Apart from that, I will not impose a disproportionate sentence or order that the sentence be served cumulatively upon the other sentences I will impose.
63With the sentencing a person is guilty of State, as opposed to Commonwealth, offences. As I have already said, s5(1) and s5(2) of the Sentencing Act 1991 must be considered. The former sets out the purposes of sentencing. There are five, one of which is the protection of the community from you. Briefly, the other four are just punishment, specific deterrence, general deterrence, rehabilitation and denunciation. For this charge, I must treat the protection of the community from you as the principal purpose for which the sentence is imposed.
64With sentencing for Commonwealth offences, as I have already said, I must have regard to the matters set out in s16A of the Commonwealth Crimes Act 1914, where relevant to these charges.
65Although the prosecution submitted the offence in Charge 8 was objectively the most serious of the 11 Commonwealth offences, I do not agree. Even though the circumstances of Charge 8 are very unpleasant, I consider Charge 12 as the most serious. It involves 61 files, although this number of files is low compared to other cases involving this type of offending. In paragraph 21 of the prosecution’s written outline, there are assertions of fact extending beyond the agreed summary. I will disregard them. Nevertheless, the description in Exhibit A, of many of the videos and images on those files discloses particularly unpleasant content.
66The offence in Charges 11 and 12 were committed after the commencement of sub-sections 5, 6 and 7 of s19 of the Crimes Act 1914. As the prosecution submitted, the effect of sub-sections 5 and 6 is to establish a presumption of cumulation with sub-section 6 giving effect to the principal of totality. This principal applies in your case even though there are statutory provisions which must be heeded.
Culpability
67Your culpability for these offences is high. You told Dr Zimmerman:[8]
‘He said that sex was important to him at the time of offending. He added that he developed a “fantasy world” and what he was doing felt exciting because it was illicit. Mr Dierickx said that it was so easy, as he was on a chat site and a link just came up and “one thing led to another”. He described what he found to be sexually exciting and it became an addiction’.
[8] Report at paragraph 64
68Your realisation of the harmful effect of your behaviour on the children only came after the police referred to them as victims.
Criminal History
69Until you had committed these offence you had not been found guilty or convicted of any offence. For many years you enjoyed a good character and you must be given credit for that.
Guilty Plea
70A guilty plea to an offence may have several aspects. First, your pleas of guilty are evidence of your remorse for your offending and obviously, an acceptance of responsibility for your offending. Second, they were entered at the earliest reasonable opportunity. Third, from the perspective of the Victorian criminal justice system, they have the benefit of saving the time and cost of a trial and enable other cases, which require a trial, to be heard earlier than would be otherwise be the case. At any time this assists the course of justice. However we do not live in normal times.
71A plea of guilty at this time has an added benefit. This was made very clear by our Court of Appeal in the case of Worboyes v R:[9]
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[9][2021] VSCA 169 at 35
72The court then reiterated the point a few paragraphs further into its judgment:[10]
‘For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’
[10] At paragraph 39
73At present, the experiences of judges in this court is that a significant number of criminal jury trials are failing because someone intimately associated with a trial contracts the virus, leading to the discharge of the jury without verdict. This serves to emphasise the importance of your pleas of guilty in the present circumstances.
74In view of the above, your pleas of guilty entitle you to a very significant discount on the sentences which would otherwise be imposed if you had pleaded not guilty but had been found guilty after a trial.
Co-operation with Police
75When the police searched and seized your devices, you gave them the information to access them. When you were interviewed by the police, although you gave untrue answers, the majority of your answers were truthful. Overall, you have assisted the police and others in their prosecution of you.
Prospects of rehabilitation
76
As I said earlier, your pleas of guilty evidence your remorse. You expressed shame for what you had done to Dr Zimmerman.[11] You told her you would never re-offend because of what you had gone through in the last 10 months.[12]
Dr Zimmerman commented on your motivation to engage in treatment. She still sees your need to understand the risks you still pose despite your confidence about the future.[13]
[11] Report at paragraphs 59 and 67
[12] Report at paragraph 74
[13] Report at paragraphs 88 and 89
77You have the support of your brother, Robert, and his wife, Beatrice. Both have given you great support, including accommodation between when you first appeared before me and today. They will offer you their support after you are released from prison.
78I believe you will avail yourself of whatever is offered in prison by way of sex offenders programmes and will learn from them. You have found the period between your charging with offences and these proceedings difficult and say you will not reoffend. For someone who has never been imprisoned, you will find the fact of imprisonment a much greater deterrent and incentive to rehabilitate yourself.
79Unusually, but with the agreement of the prosecution, I extended your undertaking of bail after you had pleaded guilty to these charges, so that you could leave you flat and stay with your brother, Robert. Unfortunately, someone in your brother’s home contracted the virus. There have been changes in the timing of the delivery of these sentences. You have done whatever has been asked of you, including a PCR test at a hospital in Traralgon. Your willingness to comply with these changing arrangements reinforces my view your prospects of rehabilitation are very good.
Comparable Cases
80Counsel for the director provided summaries of six comparable cases and I refer to them.[14]
[14] DPP v Meharry [2017] VSCA 387; DPP v Watson [2016] VSCA 73; R v Leask (2013) 236 A Crim R 1; Rajasekar v R [2017] NSWCCA 113; DPP v Hum (a pseudonym) [2022] VSCA 57; DPP v Mokdissi [2021] VCC 440
Pre-Sentence Detention
81There is no pre-sentence detention.
Sentence
82On Charge 1, the charge of using a carriage service to cause child pornography material to be transmitted to yourself, I sentence you to nine months’ imprisonment.
83On Charge 2, a charge of using a carriage service for sexual activity with a person under 16, I sentence you to 15 months’ imprisonment.
84
On Charge 3, a charge of producing child abuse material, I sentence you to
26 months’ imprisonment.
85On Charge 4, a charge of using a carriage service for sexual activity with a person under 16, I sentence you to 18 months’ imprisonment.
86On Charge 5, a charge of using a carriage service to transmit child abuse material, I sentence you to 15 months’ imprisonment.
87On Charge 6, a charge of using a carriage service to solicit child abuse material, I sentient you to six months’ imprisonment.
88On Charge 7, a charge of using a carriage service to solicit child abuse material, I sentient you to 18 months’ imprisonment.
89On Charge 8, a charge of using a carriage service for sexual activity with a person under 16 years of age, I sentence you to 18 months’ imprisonment.
90On Charge 9, a charge of causing child abuse material to be transmitted to yourself using a carriage service, I sentence you to 12 months’ imprisonment.
91On Charge 10, a charge of using a carriage service to transmit child abuse material, I sentence you to 18 months’ imprisonment.
92On Charge 11, a charge of using a carriage service to transmit child abuse material, I sentence you to six months’ imprisonment.
93On Charge 12, a charge of possessing or controlling child abuse material obtained or accessed using a carriage service, I sentence you to 24 months’ imprisonment.
94For Charge 3, I will set a non-parole period of 14 months’ imprisonment. This sentence commence immediately.
95For Charge 12, the sentence of 24 months’ imprisonment will commence immediately at the expiration of the non-parole period for Charge 3.
96For Charges 1, 2, 4, 5, 6, 7, 8, 9 and 10, the sentences on each of them will commence 18 months after the commencement of the sentence on Charge 12.
97For Charge 11, the sentence of six months imprisonment will commence upon the expiry of the sentences on Charges 4, 7, 8 and 10.
98I will set a non-parole period for the Commonwealth Charges of 18 months’ imprisonment.
99The total effective sentence is 56 months’ imprisonment, being 42 months cumulative upon the State non-parole period of 14 months and a non-parole period of 32 months (being 18 months Commonwealth non-parole period, cumulative upon State non-parole period of 14 months).
s6AAA Declaration
100
For the purposes of s6AAA of the Sentencing Act and in respect of all of the charges, if you had not pleaded guilty to that offence and had been found guilty after a trial I would have sentenced you to 84 months’ imprisonment with a
non-parole period of 50 months’ imprisonment.
Sex Offenders Registration Act
101Charge 1 to 12 are Class 2 offences under the Sex Offenders Registration Act 2004. These are registerable offences and you are a registerable offender. The convictions on those charges mean you must comply with the reporting obligations under that Act for the rest of your life.
102My associate will in due course give you a written notice. It tells you of your reporting obligations and the possible consequences if you fail to comply with your reporting obligations.
Other Matters
103In relation to Charge 3, you are sentenced as a Serious Sex Offender.
104Are there any matters either counsel wishes me to address that I have not already done so?
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