Director of Public Prosecutions v Dixon (a pseudonym)

[2023] VCC 1195

IN THE COUNTY COURT OF VICTORIA

Revised

           Not Restricted

     Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02233

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOAH DIXON (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2023
DATE OF SENTENCE:	11 July 2023
CASE MAY BE CITED AS:	DPP v Dixon (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1195

REASONS FOR SENTENCE

---

Subject:              Criminal Law. Sentence upon plea of guilty.

Catchwords:       Production of child pornography – Distribution of child abuse material –

Possession of child abuse material - Knowingly installing an optical

surveillance device for purposes of visually recording private activity –

Breach of trust - Premeditated contumacious conduct - Early plea of guilty

-  Covid-19 delay - History of alcohol use – Significant anxiety and severe

personality disturbance - No prior criminal history - Serious sexual

offender.

Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004.

Cases Cited:       Worboyes v The Queen [2021] VSCA 169; Hill v State of Western

Australia [2009] WASCA 4; DPP v Winter [2016] VCC 863; DPP v

Canavan [2017] VCC 1109; DPP(Cth) v Garside [2015] VCC 1344;

DPP v Soebadio [2017] VCC 129; DPP (Cth) v Guest [2014] VSCA 29;

DPP v D'Alessandro [2010] VSCA 60.

Sentence:            Total effective sentence of 3 years imprisonment with a non-parole period

of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Van Dyk	Ms F. Coppini
For the Accused	Mr A. Bayliss

HIS HONOUR:

1Noah Dixon[1], you have pleaded guilty to one charge of production of child pornography, one charge of distributing child abuse material and one charge of possession of child abuse material. 

[1] A pseudonym.

2Having consented to the jurisdiction of this court to deal with the summary offence, you also pleaded guilty to knowingly installing an optical surveillance device for purposes of visually recording private activity, in this case activity in a bathroom.  This last summary charge is said to have been committed between 2015 and 2016.

3The circumstances of your offending are summarised in a document tendered by the prosecution upon your plea hearing as agreed facts.  I will outline the offending briefly by reference to that document.

4You were between 20 and 26 years old at the time of these offences.  In this sentence, I will refer to other persons relevant to the charges via a letter and when the sentence is published I will anonymise your name in order to protect their privacy and confidentiality by using a pseudonym for you.

5You are employed full-time as an electrical engineer apprentice and you live in Heidelberg Heights in Victoria.

6At the time of this offending you were in a de facto relationship with your now ex-fiancé Tracey Ball[2].  The victim, Lydia Ball[3], is Tracey's younger sister.

[2] A pseudonym.

[3] A pseudonym.

7Tracey Ball and Lydia Ball lived together in their family home where you would stay every weekend from 2015 to 2016, prior to you and Tracey Ball getting your own home.  Lydia Ball was aged between 15 and 17 years old at the time of the offences.

8On 11 January 2021 the Child Protection Triage Unit of the Australian Federal Police sent a report from the National Centre for Missing and Exploited Children to Mernda Sex Offences Unit.  The report showed that a KIK user, KIK being an instant messenger application for mobile phones by the name of Bibird6489, had been distributing child abuse material from their KIK account which included 17 images and videos of adult males with infant or toddlers and pre-pubescent females.  Information provided from KIK to police showed that Bibird, B-i-b-i-r-d, 6489, was registered on 12 November 2021 to BR using a false email address.  Police were subsequently able to link you to that account through subscriber checks on the IP connections.

9On 30 July 2021 at 6.45 police attended your home with a search warrant.  Your partner at the time, Tracey Ball, answered the door and police explained why they were there.  She went to the bathroom where you were showering and informed you.  When Tracey Ball returned police asked her where your phone was and she advised them that you had it with you in the bathroom.  Police immediately attempted to open the locked bathroom door and yelled for you to open it, advising you they were police.  They again attempted to gain entry and were successful, finding you shaking and nervous, your phone approximately a metre away from you on the sink.

10Police seized the phone, advised you to get dressed and waited for you in the kitchen.  It appeared from later discovering in investigation that in that time you had some time to delete material on the phone.

11Police asked you if there was any child abuse material on your phone, to which you replied that you were being blackmailed into sending that material and had been approximately four year earlier. You were arrested then and began reprimanding yourself saying that you knew it was the wrong thing to do, you hated yourself, and you had yourself thought of reporting yourself to police because of what you had done.

12You assisted police by providing the password to your mobile phone and the separate password required to access photos on that phone.  You informed police that you owned a silver Lenovo laptop and two micro-SD cards and advised them where to locate the items.  When police asked what they would find on the SD card you admitted there was footage of Tracey Ball's younger sister having a shower.  You stated that you had secretly filmed her on your watch which you left in the bathroom for the purposes of capturing the footage.  That is Charge 1, production of child pornography, and the related summary offence of install an optical surveillance device.

13Police seized the items from the house, being one black Oppo android mobile phone, one silver Lenovo laptop and two micro-SD cards and reader.  They opened the Oppo phone using the passwords provided by you and discovered a folder which contained multiple video and images dated from July 2021.  The two videos were viewed which showed child abuse material involving a baby being orally penetrated by an adult male and a toddler-aged child being vaginally and anally penetrated by an adult male.  That is Charge 3, possession of child abuse material.

14Police took you to Mernda Police Station for interviewing that night where you declined to have legal advice stating you wanted to be truthful and just wanted this to stop.

15During the interview you stated, inter alia, a few years ago someone emailed you a large link containing images of children, adults, lots of stuff on it.  This person wanted you to forward the link to someone else, which you did because you were scared that they had your name and date of birth.  You interpreted the request to forward this email on as blackmail because it contained your name and address, however, admitted that no such threats were ever made to you and that the same person sent you another link, you forwarded it on and from there it escalated and became a habit.  You explained that you felt important to these people 'like sending them stuff they wanted', even though you asserted that you never actually felt like it is satisfaction from looking at it.  'I am not saying I didn't look at it', you said, 'I did but I was never into it'.  Charge 2 of distributing child abuse material.

16Prior to this you had never looked up child pornography, you said.  You tried to stop all the time and every time you would get something you would delete it because you did not want to see the images, but then 'the habit would kick back in'.  Sometimes you would open Telegram, another like application, see a message sent from someone and then delete the app because you did not want to be part of it.  You hated yourself the whole time and had not felt happy since it started. 

17You called that a viscous cycle of feeling unhappy and then feeling important to the people you sent the material to which brought you happiness and then hating yourself for feeling happy over that.  It put you in a constant cycle of depression, you said, sending the images would bring you up because you felt needed by the recipients but then you would hate yourself, go down, delete the apps, only then to reinstate and the cycle would continue.  You repeated that you really tried to stop often because you never wanted to see what was there and you hated yourself for all of this.

18The links received contained images comprised of sexual activities with children and adults, not all of them were children.  You confirmed they were images of adults performing sexual acts with children of various ages up to age 18, including penetration of babies and adult penis vaginally penetrating children of approximately eight or nine years of age.

19When asked how this made you feel you said that you hated it and never wanted to watch it but you felt gratification from sending it to people who it would have made happy because this made you feel needed.  You wanted to help police because you did not want to be doing this and never wanted to.  You voluntarily admitted there would be images of your partner's then under-age sister that you had taken through your watch left in the bathroom.  Charge 4, produce child abuse material.

20You estimate the image sharing had been going on for approximately eight or 12 months because it was irregular, but it had commenced approximately four years before but you could not be certain on the timespan, and you were released pending summons.

21On 16 November 2021 police contacted the Victim Lydia Ball, who was unaware that you had filmed her in the bathroom. 

22On 25 November 2021, the victim identified herself in multiple screenshots from the videos and was able to advise that they were recorded around 2015 to 2016.  She told police you would stay over every weekend with her sister and always had a toiletry bag, which she now suspects is how you set up the filming.  She said you were like a brother to her.  She considered you family and was shocked in disbelief that there was something hidden recording her showering and getting dressed while she was still a child.  The victim identified multiple pieces of her clothing, underwear and a shower cap whilst having confirmed identity in numerous images.

23The KIK, Mega and Telegram applications that you had disclosed to police during your record of interview were not located on your phone, and police subsequently discovered that you had deleted content after police had arrived to arrest you while you were in the bathroom.

24Your devices were forwarded to a digital forensic officer who extracted the following data, categorised using the Interpol Baseline 4 classification model:  Tier 1, 23 images and 81 videos of child abuse material involving pre-pubescent children under the age of 13 years old, and Tier 2, 8791 images and 25 videos of child abuse material involving pubescent children under 18 years old.

25The Tier 1 videos included babies and toddlers in obvious distress being penetrated orally and anally by adult males, as well as sexual acts involving children with animals.

26The Tier 2 videos included those made by you involving the complainant between 2015 to 2016 when she was aged between 16 and 17.

27A victim impact statement was received from Lydia Ball and read out to the court.  Upon first discovery of your offending against her some years after it occurred she was in disbelief and shock.  It was a painful process made worse by the relationship which she felt she had with you in her family's life.  This betrayal of trust for someone who had ensconced himself in the life of her family and in her life was very hurtful.  She described you being 'like a brother', leaving her with a deep sense of disappointment and betrayal, which, she writes, she will carry for the rest of her life and which has remained 'a constant burden on my mind'. This was related to a summary charge in the production of Charge No.1 on the indictment.

28This was conduct accessing at a time when you were in a relationship with Lydia Ball's sister and cultivated an intimate familial relationship with Lydia Ball and her family, as shown in photographs found in the depositional material.  You installed the device in December 2015, removed it intermittently and reinstalled it at convenient occasions over a period of some three and a half months.  It was premeditated contumacious conduct requiring planned execution as to exploit opportunity for filming, co-ordinating your presence within the exact timeframes for voyeuristic purposes while invading the privacy and dignity of a supposed personal friend for you, for your own gratification and titillation.  It involved a significant breach of trust committed in the victims' own family home, committed repeatedly.

29In my view this is a serious offence which carries high moral culpability deserving of punishment in order to deter others who may be like-minded in so abusing trust based on affection and family connections, to justly denounce such conduct and punish the offender for it in retribution for the crime.  It amounted to the charge of production of child pornography which carries a maximum of ten years' imprisonment and the summary charge which carries two years maximum.

30In my view the sentence on the summary charge should be concurrent with the sentence on Charge 1 as it is effectively subsumed by that charge in that it merely describes the method involved in that illicit production by the installation of the device.

31During your interview with police you asserted that you filmed Lydia Ball in this way five different occasions and you otherwise accepted the allegations put to you co-operatively.

32The incidents were discovered upon your arrest and interview on 30 July 2021, leading to Lydia Ball's statement in November 2021, resulting in a charge on summons in March 2022, uplifted from the Magistrates Court to this court in July 2022 to form part of this indictment and to be dealt with by way of a secondary summary charge once the application for summary jurisdiction for the other charges was refused.

33Charge 1 is a sexual offence as defined in the Sentencing Act, Schedule 1, as are Charges 2 and 3, and pursuant to Part 2A of the Sentencing Act, your conviction to a term of imprisonment for two or more sexual offences, you are to be sentenced as a serious sexual offender.

34I take your plea into account.  This matter resolved into a plea at an early stage of proceedings.  The plea carries a utilitarian value, having avoided a criminal trial and having resolved the matter relatively expeditiously and at a time at which delays and backlogs related to the pandemic are still being dealt with by the criminal justice system.  It was made at a time when the Covid emergency is not totally resolved and in the prospect of a sentence of imprisonment at a time when the Covid situation means a higher risk of infection in the closed prison environment, more onerous general conditions in custody, additional stress and concern for prisoners and their families.

35Therefore, pursuant to the principles in Worboyes, a Court of Appeal decision, the plea which would reduce your sentence will do so in a greater degree than otherwise would be the case, reflecting a more palpable and pronounced amelioration of your sentence.

36As to remorse accompanying your plea, I accept that some remorse can be inferred from your plea and by your answers in the record of interview.  You have written a letter of apology and remorse referred in that letter of support by others received by the court on your behalf.

37I accept that you are remorseful, particularly as to Charge 1.  Although this also extends to the other two charges, remorse is always a difficult sentiment to assess.  Your state of persistent cognitive distortions, limited insight and psycho-sexual pathology, which I will more fully deal with in a moment, means that in your case your remorse in relation to the offending involved in Charges 2 and 3 is more qualified conditions by those observations provided by the expert evidence adduced and therefore rendering the quality of remorse somewhat reduced and in need of further development.

38I take your personal history and background into account.  You are 27 years of age.  Your parents separated when you were six months old and you remained in the care of your mother.  You were in fortnightly contact with your father until age six, from which point your father ceased contact, reportedly at the request of his new partner.  You reported this decision to have been devastating to you and keenly 'felt the lack of male connection'.

39Your mother did not re-partner until more recently, some four years' ago.  She worked long hours in medical administration in order to support the two of you and was solely responsible for discipline and guidance.  She worked long hours and this, at times, left you to your own devices for significant periods of the day.  You remain in good terms with her and she is supportive of you through this matter.

40You have no ongoing contact with your father.  Maternal grandparents were also supportive but your grandmother died when you were aged nine and you reported your grandfather to seem to you remote and distressed over many years after your grandmother's passing.

41You were not the victim of childhood sexual abuse, mistreatment or violence. 

42You have recounted that your first family holiday overseas was in 2015 with Tracey Ball and her family on a pacific cruise.

43You attended Parade College for your secondary schooling after unremarkable primary education.  You experienced no significant academic behavioural or disciplinary problems at Parade but you did not form close connections with other students.  Your VCE results were good.

44You suffered a range of problems with your joints and have frequent migraines.  You had to undergo, aged 20, reconstructive surgery for both your hips and shoulder joints.  Notwithstanding these physical challenges you were an avid sportsman.  When you left school you completed a degree in sports science but your physical injuries had made physical activity increasingly difficult as you grew older. 

45You then decided to pursue an apprenticeship as an electrician and you worked in that role as of July 2022, becoming a fully licensed electrician and as at April 2023 you have been employed for two years with a solar insulation company in an endeavour, in this year, to establish your own business.

46Two detailed and lengthy psychological reports were received from two very experienced clinical and forensic psychologists, Mr Patrick Newton and Mr Ian Healey.

47These reports were very comprehensive and helpful in attempting to provide an assessment of your mental state, the genesis and development and impact of your offending and an evaluation of your personal psycho-social and sexual development from the court's consideration, as well as opinions and risk assessments.  They were very extensive body of expert opinion which I have read carefully, repeatedly, and will summarise for these purposes.

48Before doing so I should note that you provided some explanation for your offending both to the police and to the psychologists mentioned.  These reflections, in my view, are your attempts to rationalise your involvement and rather than provide explanations they illuminate your frame of mind as regards the nature of your involvement.  Both experts treat these with caution and each provides insightful analysis of your current mental state.

49Mr Newton remarks that you engaged in the assessment in a friendly but limited manner with superficial rapport.  You impressed as an immature man for your age with shallow understanding of your emotional and interpersonal world.  Your discussions about your offending were limited, bordering on the evasive.  Validity scale suggested the presence of significant negative distortions which led Mr Newton to exercise 'quite considerable caution', when interpreting psychological testing.

50This, in my experience, is not unusual in cases involving the index charges.

51Mr Healey in his first report dated 11 August 2021 describes your presentation as highly uncertain emotional labile person who has suffered problems with marked inadequacy and depression in childhood years.  Mr Healey provided an updated report in May 2022.

52You had been attending under a mental health plan from your GP from August 2021 to December 21, and more recently from February 2022.  I will summarise his first two reports.

53Mr Healey wrote that you had been prescribed medication for depression from 2012 for a long history of that condition but as of the date of his first report you were not on such medication. 

54He gave a history of alcohol use from age 17 and then almost daily intoxication between ages 19 to 20. 

55At age 20 you began a relationship with Tracey Ball.  You lived with her at her grandparents' house for about two years when your fiancé moved back to her parents' home and you moved back with your mother.  In 2020 you had moved into your grandfather's property which you were buying through a private sale arrangement.

56Your alcohol consumption, you explained, was to ease poor self-esteem and poor self-image.

57Mr Healey related how aged 11 you accessed and viewed pornography inadvertently and you became a regular viewer on a daily basis.  This early introduction to sexuality was a distorted one with 'a completely perverse view of sexuality and the meaning of relationships'.

58This voyeurism continued until your relationship with Tracey Ball, which you concealed from her.  Consistent with addiction you drifted back into viewing it in the course of an otherwise seemingly inseparable relationship, unaware of the addictive process.

59You provided Mr Healey with the same explanation you gave to Mr Newton and to police for your offending, that is that aged between 19 and 20 you received an email from a particular un-named source which provided you with pornographic under-age material, and you were asked to email the material to others and you did so.

60Ultimately child pornography was sent to you which you passed on to others.  You were aware of the material being sent, although you asserted no interest in it and wished to cease the distribution.  You derived 'precarious comfort' from the appreciation of others involved in this network.  You felt unable to extricate yourself from it and its ongoing demands.  Even when you did manage to stop you returned to it.  You professed to appreciating such distribution involved the exploitation of children.  You expressed guilt at your involvement to Mr Healey, together with sadness and depression, and you have not consumed alcohol since July 2021.

61You expressed resolve to not be involved in the distributive activity again but were reminded by Mr Healey that in periods of stress there would remain the temptation to revert to such involvement. 

62At the time of writing both reports Mr Healey placed much protective positive function to the support and presence of Tracey Ball in your life, which you termed 'a high level of support'.  That has now ceased, which in all likelihood enhances the future risk somewhat given your vulnerability to addiction and the effective ending to further plans to marry and have children.

63Mr Healey conducted a number of tests which he summarised from p.7 of his first report.  I will not set out these results.  They highlight your raised anxiety, indecisiveness, experience of life as a strain much of the time, social introversion and withdrawal, feelings of inadequacy and poor self-esteem.  You function at a high average level intellectually.

64In his second report he wrote that you are now on Zoloft daily, an antidepressant medication.  He reported no evidence of risk of sexual violence as at May 2022, and this report appears to have been written at a time just prior to Tracey Ball's decision to break up the relationship with you.

65Mr Newton's very detailed report is of April 2023, almost a year on from Mr Healey's second report.  Personality assessment showed an elevated risk for emotional disturbance in the context of social withdrawal and health concerns, including suicidal ideation and significant anxiety and severe personality disturbance.

66You have described a sexual relationship with Tracey Ball marred by tension about the frequency of intimacy, which you had been unable to resolve, with your relationship finally concluding in September of 2022.

67You described to Mr Newton your persisting and compulsive interest in pornography viewed every day, seeking out novel material for sexual gratification, even throughout your relationship with Tracey Ball.  As the sexual frustration in your relationship escalated, so did your emersion in pornography deepen, deepening the dysfunctional morays of online pornography, feeding dissatisfaction and resentment towards her in a self-reinforcing viscous circle.  You needed novel and diverse material to rekindle your interest.  'While he denied searching for child abuse material, he could offer no cogent explanation for the large amount of material found on his devices'.

68Mr Newton described your childhood and adolescence and the symptoms of anxiety and depression diagnosis fully in 2021 and 22 with the medication as standard clinical dose.  He noted that alcohol use, particularly in relation to your health problems which led to impaired liver function, which was now under control, as your drinking has reduced significantly.

69You had considerable difficulty discussing your offending with him.  You told him 'you found validation and the praise I got from people involved in my offending'.  You asserted this praise you had found reinforcing and led you to engage with such individuals on a repeated basis.  You asserted, despite your acknowledged obsessive use of pornography, that sexual gratification from the images had not been germane to your offending.  Mr Newton found these assertions difficult to accept and challenged you robustly regarding them.  You reiterated your statements but you were unable to explain how you had come to possess so large a quantity of child abuse material and how it had come to be saved across your various devices.  I similarly find these assertions difficult to accept.

70In regard to the covert recording, you simply said 'I wanted to see her naked, I thought it would be nice to see her naked'.  You had saved the recordings but denied using them for sexual gratification.  You expressed regret at the effect on the victim and her family.

71Mr Newton noted your ongoing depression and ongoing physical malaise with life seemingly lacking direction and purpose, expressing somatic concerns rather than emotional states.  Mr Newton found your distressed state to be largely reactive in nature to your current predicament, rather than reflecting the outworking of a primary mental disorder.  You are likely to need antidepressant medication in the long term.

72He found your social judgment is immature, reflecting immersion in the dysfunctional morays of online pornography, although there was nothing to indicate that your awareness of the wrongfulness of your behaviour was impaired.

73Your reflections on your relationships remain superficial and immature and ability to reflect on issues associated with intimacy is poor.  While denying interest in images depicting children or prepubescent persons, you could not explain how such material had come to be distributed across your devices or to account for your connection with individuals who had reportedly sent you such material.

74These explanations, noted Mr Newton, do not accord with his vast experience and he is reluctant to accept them at face value.  As I have indicated, I am also so reluctant.

75You denied that the desire to watch Lydia Ball naked was motivated by erotic sexual considerations rather than a sense of intimacy, compensating for sexual frustrations with Tracey Ball.

76The comments, wrote Mr Newton, reflect the presence of voyeuristic pathology.  Beyond the issues which arise from such conduct you had considerable difficulty outlining a clear understanding of psycho-sexual development of young women, attributing precocious sexual maturity to under-age individuals.  You had believed child abuse material was victimless but through counselling with Mr Healey you had understood the full impact, although your empathy for these depicted remains superficial.  You appeared to show genuine remorse for the covert filming you conducted.

77Your sexual deviance is sufficient to meet the duration and severity criteria for unspecific paraphilic disorder, which requires offence-specific treatment.

78Mr Newton's risk assessment at p.12 of his report found you to be of low moderate range but with a somewhat above average risk of recidivism relative to other sex offenders.  Noteworthy risk factors noted at paragraphs 58 and 59 indicate a level of risk higher than indicated only by historical factors.  He notes that the persistence of cognitive distortions and sexual deviance inherent in your conduct are very concerning and offenders manifesting these features are at significantly elevated risk of recidivism.

79You continue to endorse noteworthy offence support cognitions, leading to limited insight into offending and poor victim empathy.  These suggest that your issues of sexual deviance are not resolved. Continued interdiction of unsupervised conduct with potential victims and successful completion of offence-specific treatment are recommended.

80Your elevated risk of impulsive self-harm requires appropriate precautions to be maintained with a real risk that your mental state could deteriorate following sentence.  Your naivety and immaturity would combine, opines Mr Newton, to render you a relatively vulnerable prisoner.  Those features would lead to an increase in the burden of imprisonment upon you relative to one who did not face your particular challenges.

81It is important to state at this point that the offending the subject of charges is clearly very serious.  The voyeuristic pathology in action in the covert recording of Lydia Ball is particularly concerning.  It was repeated and ongoing in a quasi-familial context in an egregious breach of trust.  It is reprehensible, cowardly conduct of a vile nature.  The extended nature of the pornography related offending, the distribution of this material for self-gratification and seeking self-approval and likely much else, the disastrous effect caused by such abhorrent sexual conduct between adults and children, the contribution to this vile market bespeaks of grave offending requiring general deterrence above all.

82Pornography involving children is not a victimless crime, it is an international and evil abhorrent trade, it is prevalent, readily available in a market which by its very existence encourages the exploitation of innocent children and the production of this vile material.  Those who make up the market and aid its extent and pervasiveness must not escape responsibility for such exploitation.

83The law also makes clear that limited weight is to be given to an offender's prior good character in these circumstances.  In this context I note that you have no prior criminal history.  Although it is not said here that you profited financially from the offending, a relevant matter for me to note your purpose for distribution and involvement was accruing to you kudos and seemingly personal benefit, extraordinary as that aspect would appear.

84Charges 2 and 3 reflect a nine-month date range on the indictment within the context of your admissions to police that you had first received and distributed child abuse material four years prior.  Answers 304 to 306.

85The quantum distributed is unknown.  However, that which was possessed, I repeat, was 23 images and 81 videos in category Tier 1 and 8791 images and 25 videos for category Tier 2. 

86The ages involved in the overall offending span from a six-month-old infant to 16-year-old Lydia Ball.  The sexual assaults upon the children depicted children performing sexual act with animals, an adult penetrating an infant's mouth to visible distress, penile penetration by an adult of a toddler's anus, adult men penetrating children between eight and nine vaginally.  The effect of such abuse is lifelong and cannot be under-estimated.  The distribution and access of possession of child pornography stimulates the supply of such material to the incalculable harm to the children involved.  See Hill v State of Western Australia [2009] WASCA p4.

87These offences are also difficult to detect, another factor in the estimation of its gravity.  I do not accept your explanation given in your record of interview that you initiated consensually to distribute the child abuse material because you felt blackmailed.  No threats were ever made to you. 

88Because you fall to be sentenced as a serious sexual offender on Charge 3, protection of the community is to be given primacy in this disposition by regarding it as a principal purpose of the sentencing exercise.  The prosecution, however, did not seek a disproportionate sentence and I do not intend to impose one, nevertheless, conscious of the principal purpose of community protection to be applied.  

89While current sentencing practices are not limiting upon the court, or a controlling factor in order to impose a proportionate and appropriate sentence, I have referred to authorities in what are said to be comparable cases.  Such cases do provide a spectrum within which to locate this offending, and although there are in these type of cases many comparable aspects, inevitably each sentence reflects the specific circumstances pertaining to the offence and the offender.  I have referred to DPP v Winter [2016] VCC 863, DPP v Canavan [2017] VCC 1109, DPP(Cth) v Garside [2015] VCC 1344, DPP v Soebadio [2017] VCC 129 and particularly DPP (Cth) v Guest [2014] VSCA 29 and DPP v D'Alessandro [2010] VSCA 60.

90Having stated that limited weight is to be given to your prior good character, in order to properly evaluate that limited weight I, nevertheless, note that letters of support were provided to the court on your behalf.

91Susanna Atkins[4] wrote a letter of support dated June 23 and wrote of your genuine remorse.  He comments on the separation from your fiancé and resulted isolation, property settlement effect and mental health impact.  He writes of the impact on your career in sport due to major surgeries but of your excellent work ethic and supportive and loyal friendship.

[4] A pseudonym.

92Your mother wrote a long and impassioned letter on your behalf.  She writes of her confusion as to the genesis of this involvement but reflects on your regret.  She wrote with dignity and insight of her own past history and how it impacted upon you, as she endeavoured to raise you on her own.  She recognises that this history caused some disconnection, exacerbated by turmoil and accommodation in schooling.  The impact of your physical difficulties added to these problems.

93She writes of you as a kind, compassionate and generous person.  She describes your efforts at counselling and to overcome this predicament.  She speaks in support of your future prospects and commitment to no reoffend.  I take this impressive letter into account.

94Angel Mercer[5], who worked with you as an electrician has written of your helpful and friendly nature.

[5] A pseudonym.

95Alberto Gill[6], a senior sales executive at Ray White Real Estate writes about your dedication to sport, particularly cycling, and your charity fundraising efforts.  More recently he advised you about property ownership and he has styled the letter as a character reference but mentions the matters before the court and his background as a police officer for some 15 years and he expresses support for your future endeavours.

[6] A pseudonym.

96In a letter authored by you, you apologise to Victim Lydia Ball and her family and seek mercy and leniency.  You professed shame and apologised to her and the children in the material which you possessed and shared, as well as to your own family.  You reflected on your isolation and how your repulsion at your actions would send you back into a spiral of further offending.  You write that the covert filming took place in a deep depressed state and self-medication with alcohol and Codeine, leading to poor thinking which you deeply regret.  Zoloft has greatly improved your mental state and has enabled you to be more socially adept and not so isolated.

97You have confided in friends and family about your offending as part of your therapy and your business has a positive outlook.  You express an intent not to commit further offences and willingness to engage in specialist sex offender's program.

98In my view the recent relative gains and insight gained through therapy offered by Mr Healey are relevant to a proportionate disposition and such progress should be factored into any synthesis of the material before me.

99Although arguments were not addressed to Verdin's principles during the course of your plea, it is my view that the relevant aspects of Mr Newton's opinion Limbs 4 and 5 are enlivened and act as mitigating factors as going to the consequence of imprisonment, but the weight of this factor, given the underlying conditions, is nevertheless light.

100The totality of the circumstances given, also your age, relative immaturity, in my view, require a merciful disposition.

101On Charge 1, you are convicted and sentenced to one year imprisonment. 

102On Charge 2, you are convicted and sentenced to two years' imprisonment. 

103On Charge 3, you are convicted and sentenced to one year imprisonment.

104On the summary charge you are convicted and sentenced to four months, concurrent with Charge 1 and the other sentences.

105I order that six months on Charge 1 and six months on Charge 3 be cumulative on Charge 2.

106That makes a total effective sentence of three years.  I fix a non-parole period of 18 months.

107I note that I sentence you for Charge 3 as a serious sexual offender and have taken into account the provisions of s6D of the Sentencing Act and its requirements.

108Charges 1,2 and 3, being Schedule 2, Class 2 offences pursuant to the Sex Offenders Registration, upon conviction being recorded on three Class 2 offences, you become subject to mandatory registration on the Sex Offender Register for life.  This does not form part of the sentence of the court but you become subject to the obligations under the Act as a consequence of your conviction.  The obligations under that register are onerous and you should carefully abide by the obligations that arise thereunder.

109But for your plea, I would have sentenced you to three years and nine months.

110I have signed the disposal order in relation to the schedule thereto which comprised the phone, the laptop and the SD cards.

111I will note in my order that all care should be taken upon your entry into the Correctional system to ensure your safety and continued administration of your antidepressant medication.

- - -