Director of Public Prosecutions v Dunstan

[2025] VCC 296

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

 Revised

Not Restricted

Suitable for Publication

CR 24-01332

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAX DUNSTAN

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2025
DATE OF SENTENCE:	19 March 2025
CASE MAY BE CITED AS:	DPP v Dunstan
MEDIUM NEUTRAL CITATION:	[2025] VCC 296

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW

Catchwords:  Sentence – using a carriage service to offend – using a carriage service to cause child abuse material to be transmitted to offender and to transmit child abuse material – using a carriage service to access child abuse material – possession of a drug of dependence

Legislation Cited:             Commonwealth Crimes Act 1914, Sex Offender Registration Act2004

Cases Cited:

Sentence:Total effective sentence of 22 months imprisonment, to be released on a Recognisance Release Order after 8 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr S. Dhanapala	Office of Public Prosecutions
For the Accused	Mr G. Chisholm	James Dowsley & Associates

HIS HONOUR:

1Max Dunstan, you have pleaded guilty to: -

2One charge of using a carriage service to offend (Charge 1, maximum penalty 5 years' imprisonment);

3One charge of using a carriage service to cause child abuse material to be transmitted to yourself and to transmit child abuse material (Charge 2, maximum penalty is a term of imprisonment of 15 years);

4One charge of using a carriage service to access child abuse material (Charge 3, also a maximum penalty of 15 years' imprisonment); and

5One charge of possession of a drug of dependence (Charge 4, for which the maximum penalty is a term of imprisonment of 12 months).

6Exhibit 1 was an agreed summary of prosecution opening which set out in detail the circumstances of your offending.

7Following an investigation by the Victorian Joint Anti Child Exploitation team (JACET) a search warrant was executed at your home address on 23 January 2024. Your phone was seized and was found to contain child abuse material originating from various conversations on Telegram, which is a chat application which permits the sending of both messages and media files to other users.  A key feature, and I must say a key attraction, of the app for those interested in child abuse material, is its end-to-end encryption. Your offending broadly consists in your on-line communications with likeminded users to transmit and obtain offensive and child abuse material.

8One of your correspondents on the app had the username ‘DirTY Dog’ with whom you communicated between 4 July 2020 and 1 January 2024.  On 19 September 2020, you sent a video file depicting yourself urinating on a baby change table in a public bathroom (Charge 1).

9Charge 2 concerns your interactions and chats with five users between 6 January 2023 and 30 December 2023, during which you caused text-based child abuse material to be transmitted to yourself, and you transmitted text-based child abuse material, three child abuse videos, and one child abuse image.

10To ‘Pacman_07’ you sent a video of a pre-pubescent male child being anally penetrated by an adult male.

11On 15 February 2023, you received from ‘DirTY Dog’ text-based child abuse material describing in graphic terms the violation of a female infant.

12With username ‘Perv’, in a conversation on 1 November 2023 in which you were an enthusiastic and equal participant, you discussed in graphic terms the violation of a newborn child while the mother is watching.

13On 12 December 2023 you sent a child abuse image and a video showing the anal penetration of two infants to John.

14Between 25 December 2023 and 8 January 2024, you communicated with ‘MFEB’. On 30 January 2023, you sent a video of three adult males masturbating and ejaculating over a prepubescent male child to that user.

15Charge 3 concerns your accessing of 60 child abuse files (37 images and 23 video files) between 30 December 2023 and 8 January 2024 during your conversation with ‘MFEB’.  The child abuse material accessed depicted infants and young children being anally and vaginally penetrated by adult male penises. Paragraph 26 of Exhibit 1, the Summary of Prosecution Opening, describes a sample of the child abuse material.  It includes an image of a female infant being anally penetrated by two adult male penises simultaneously, and a video where the infant victim is screaming and crying throughout the digital and penile penetration of her. Your response to the receipt of the child abuse material on 30 December 2023, can only be described as celebratory in tone, as paragraphs 27 and 28 of the summary of prosecution opening demonstrate.

16During the execution of the search warrant at your address, police found 1.25 grams of methamphetamine (Charge 4).  The methamphetamine was plainly for your personal use.

17You were arrested and answered 'no comment' in your record of interview, as was of course your right.  A filing hearing was heard on the 29 January 2024.  After a relatively short delay to enable outstanding material to be provided and resolution discussions to commence, the matter proceed by way of a straight hand-up brief on 9 August 2024. I view yours as an early plea of guilty.

18Exhibit 4 MD was a psychological report from Dr Mathew Barth dated
21 January 2025.  I also received a treating psychologist's report from Geoffrey Burrows dated 29 January 2025 (Exhibit 5 MD), a patient health summary from your GP clinic (Exhibit 6 MD) and two letters in support, one from your employer, Jon Caneva (Exhibit 8 MD), and one from a long-term friend outlining the support you have provided and continue to provide (Exhibit 7 MD).

19I turn now to your personal circumstances. You were born in March 1965, the youngest in a sibship of six.  You are now aged 59 and were between the ages 55 and 58 at the time of this offending. You grew up in Eudunda, rural South Australia, where your family farmed sheep and cattle. You describe your family as hard working, but 'very poor'. Your material needs were met and you neither witnessed nor experienced abuse, mistreatment, criminality or substance abuse. However, you describe your parents as withdrawn, rarely displaying love or affection, and, in your words, they 'swept everything under the carpet'.  Both your parents are deceased, your father passing in 2020, and your mother in 2023.  You remain in contact with your two sisters but are estranged from your three brothers, apparently over a disagreement around your parent’s estate.

20You attended a local school and struggled to attain basic literacy skills but performed better at mathematics and science.  You describe being very shy and lonely and had difficulty establishing friendships.  At the age of 12 you realised that you were same sex attracted. In the late 1970s it seems there were no role models for a gay adolescent living in a small county town and in consequence you experienced embarrassment, confusion and isolation.

21After completing secondary school, you completed an apprenticeship as a panel beater and worked in that industry for 18 months post apprenticeship. You then moved to Mount Isa with your sister, where you worked in the mining industry, and as a surveyor’s assistant. You returned to Eudunda, and recommenced work as a panel beater, and then consequently managed a farm machinery dealership for approximately four years.

22In your late 20s you moved to Melbourne where you studied photography, you found work and also, importantly for you, found a gay community.  You established enduring personal (Exhibit 7 MD) and professional (Exhibit 8 MD) relationships. You worked in hospitality, you managed various ventures, some of which are ongoing.  Your treatment at the hands of a more recent boss meant that you were placed on WorkCover for psychological distress.

23You currently have multiple health issues, including a protruding disc and severe ear infection. You have been HIV positive for many years, which is effectively managed through pharmacotherapy. You are in receipt of a disability support pension due to severe and chronic arthritis in your hip.  You are currently prescribed a number of potent anti-inflammatories to manage the pain and you are on a waitlist for a hip replacement. I have received this morning a document from the Alfred Hospital (Exhibit 9 MD) identifying a pre-admission clinical appointment in that regard.

24Dr Barth (Exhibit 4 MD) noted your report of past periods of depression, due to insecurities regarding your sexuality, chronic low self-esteem, the impact of workplace harassment and your hip problems. You stated that you had consulted several psychologists but found them unhelpful. You have been prescribed Valium for the past three years to assist with sleep when you become anxious or agitated. Your presentation was such as to meet a diagnosis of ‘major depressive disorder – with anxious distress – recurrent episodes of moderate severity.

25You report a history of binge drinking during your late teens and twenties, with your current alcohol intake between 1-2 drinks per day.  You have used other illicit substances, including cannabis, MDMA, ecstasy, methylamphetamine and GHB, and you also used heroin on one occasion. You told Dr Barth (Exhibit 4 MD) that your use of methylamphetamine had become problematic in recent years, as you are a weekly user.  Dr. Barth opines that your drug use is sufficiently intense to meet the criteria of a stimulant use disorder, to a moderate level. Concernedly, you currently do not intend to stop using methamphetamine.

26You identify as exclusively homosexual in sexual preference.  You are currently single and living in rented accommodation. You have had two significant relationships, both characterised by emotional dysfunction and intimacy deficits and lack of real connection.

27You are ambivalent about any future relationships, preferring casual sexual encounters.  Relevantly, you report using pornography as a sexual outlet and commenced viewing internet-based pornography in the early 2000s. The frequency of your use has increased in the last five years.  While you initially viewed mainstream pornography, you subsequently sought more diverse pornography. You deny being addicted to pornography. Your account of the offending is that you chatted on Telegram with a number of individuals at a time of particular loneliness and isolation during the COVID pandemic. These chats progressed to discussion of underage sex and the sending and receiving of child abuse material.

28You deny any sexual attraction to children.  However, as Dr Barth made clear: your offending indicates that your sexual adjustment is unequivocally disordered such as to warrant the diagnosis of ‘Paedophilic Disorder – Nonexclusive Type’ and ‘Other Specified Paraphilia – Urophilia’, which in lay person's terms is your sexual arousal from urinating or what used to be called 'wetting yourself'.

29Dr Barth assessed you as a moderate risk of sexual re-offending. Relevant factors include your limited insight into your offending, your simplistic coping skills, your history of depressive mood disturbance, your continued substance use, your social isolation, your unemployment, your slow progress in treatment, and your continued denial of being attracted to the material that you accessed and posted. Mitigating and protective factors include your perseverance in continuing treatment, your positive attitude to addressing your psychosexual issues in the future, your lack of psychopathic traits and your lack of criminal history.  

30Mr Burrows set out in Exhibit 5 MD your treatment goals: to gain insight, to address relevant issues, to enhance victim empathy and to develop a relapse prevention plan.  He notes how your continued denial of sexual interest in the material impacts your ability at this stage to engage in relapse prevention strategies.

31Completion of specialist sex-offender treatment programs could reduce your risk, an opinion that both Mr Burrows and Dr Barth agree upon.  As Dr Barth noted:

'The sooner (he) can participate in the intensive and structured specialised treatment he requires to address the severity of his psychosexual problems, the better his prognosis may be in the long-term.  At present the ingrained nature of his problems is such that his prognosis cannot be better than guarded.  Such will clearly depend on how he progresses in any treatment offered to him'.

'Custody would require from him a considerable period of adjustment: he would be at considerable risk of deterioration in his mood.  His level of distress would be more severe than for a prisoner not facing his psychological and personal challenges', writes Dr Barth.

32I unhesitatingly accept that proposition.

Counsel submissions

33Mr Dhanapala set out in clear submissions the relevant sentencing principles and factors that are engaged in offending that involves child abuse material.  They are rightly described as uncontroversial and well established. General deterrence is the primary sentencing consideration and, in consequence, mitigatory factors such as prior good character, age, and prospects of rehabilitation are afforded less weight than they might otherwise be given in the sentencing synthesis. Specific deterrence, denunciation, punishment and protection of the community may also have work to do.  A sentence of immediate imprisonment will almost invariably be warranted save for exceptional circumstances, which was not argued in your case.  

34The offending was objectively serious.  While the number of files and images accessed was not as many as is so often encountered, the images depicted very young children and infants. Nor is text-based child abuse material victimless or a harmless crime, he submitted.  Charge 1 was a moderate example for this type of offending.  Charges 2 and 3, moderate to serious examples. He conceded your plea was entered at the earliest opportunity.  You cooperated with officers providing them with your passcode to your mobile device.  He submitted that in light of your denial of sexual interest in the child abuse material and your continued use of methamphetamine, your prospects for rehabilitation should be viewed with some caution.

35Mr Chisholm, in detailed and helpful submissions, recognised the relevant sentencing purposes and conceded an immediate term of imprisonment as the inevitable disposition.  However, in mitigation of such sentence he relied upon:

36The context for your offending.  COVID had led you to a period of social isolation which compounded your long-standing self-esteem issues and depression.  You accordingly spent more time online to assuage your loneliness and isolation.  This was the context whereby your offending occurred.  Mr Chisholm was merely setting out the context for your offending: he was not seeking to suggesting justification or excuse.  

37He also relied upon your early plea of guilty which brought with it the practical benefit of saving the community the time and expense of a trial and I agree that that benefit must be recognised, and it will be.

38He pointed to your multiple health issues.  He pointed to Dr Barth's conclusion that there was a significant risk of deterioration in your mental health, thereby engaging limb 5 of the well-known case of Verdins. 

39He pointed to your prospects of rehabilitation, for which he submitted there were considerable grounds for optimism in that:

40You have no prior convictions, had a long-standing work history – although now constrained by your chronic health issues.

41He pointed to your willingness to engage in treatment, although recognising that there were current impediments to meaningful progress and that you have the community support of at least two prosocial peers.

42I am of the view, in that regard, that until you are able to accept that your interest in the material which you accessed, your prospects of rehabilitation must be viewed with some caution.

43Lastly, Mr Chisholm reminded me correctly of the sentencing principle of totality.  I hope I do no disservice to either counsel in their submissions on the plea.

Objective gravity

44Now, Mr Dunstan, with more platforms such as Telegram, providing end to end encryption and thus the possibility of correspondence taking place in relative secrecy, the internet has become an even greater forum for the dissemination of desires that can only be described as depraved. Such platforms, despite the best efforts of law enforcement agencies and government, enable deliberately and wilfully, the legitimisation and sharing of desires that once would have been hidden from view and attended with a degree of guilt and shame. Such desires once would have never have spoken their name, but now are truly celebrated in the virtual world, a fact that should bring a chill to us all.

45The images that you had accessed and transmitted depicted the violation of children and infants.  The courts have stated time and time again that those who access and transmit such material when caught will almost inevitably be met with a term of imprisonment for the simple reason that those who consume this material in any form feed the market for the abuse of children.  Without customers there would be no market, a market that is based upon a fundamental betrayal of our common humanity by the degrading and traumatising exploitation of children for the sexual gratification of others.

46Now I accept that the number of images was certainly not as extensive as is so often encountered in the courts, albeit they were still significant. I accept there was no suggestion of personal profit. Nonetheless, you accessed images of young children engaged in penetrative acts, images of complete depravity and it is indeed, Mr Dunstan, difficult for this court to conceive of more depraved images than the sadistic sexual violation of infants. You deny any sexual interest in the material, maintaining that you merely sought to sexually arouse your correspondents or maintain your communications with them. I do not accept that explanation. The only rationale for engaging with such material is that you had, in fact, a sexual interest in it.

47Further, any notion that text-based material somehow represents a lesser offence without attendant harm needs to be firmly corrected.  Whilst such material does not depict the actual violation of children, it has the ability to normalize the sexual exploitation of children, and in that normalisation it both feeds the demand for visual material, and indeed may influence the actions of those who received the text-based material.

48It may be that you were lonely, Mr Dunstan, in the time of COVID and therefore spent more time on the net, but this context cannot excuse your offending. The ease with which you transmitted images and text-based material of such depravity, demonstrates clearly that any moral compass you possessed had long been abandoned. Your moral culpability for this offending I find is high.

49As for the offending in Charge 1, this was not harmless fun, but rather a clear demonstration of your deviant sexual interest in urination and an affront to anyone who may need to use a baby changing table in a public space.  It was an image I find calculated to cause maximum offence and outrage.

50It was common ground that your offending engaged sentencing principles of general and specific deterrence, just punishment and denunciation, requiring a term of imprisonment.   I am quite satisfied that having regard to the principles set out in sections 16A(1) and 17A of the Commonwealth Crimes Act and the matters listed in section 16A (2) that the only appropriate disposition on each charge is conviction and a term of imprisonment, with the fixing of a recognisance release order after a certain term pursuant to section 20(1)(b) of the Commonwealth Crimes Act.  It has not been argued on your behalf, that I should find special circumstances on your part to enable your immediate release upon a recognisance release order, and I do not so find.

51In fixing a term, I have had regard to all the matters urged upon me by your learned counsel.  However, as has been conceded by him, and as you are well aware, the objective gravity of your offending is such that it can only be met with an immediate term of imprisonment.

Sentence

52On Charge 1, you are convicted and sentenced to a term of imprisonment of eight months. 

53On Charge 2, you are convicted and sentenced to a term of imprisonment of 12 months. 

54On Charge 3, you are convicted and sentenced to a term of imprisonment of 14 months. 

55On Charge 4 you are convicted and discharged.

56The sentence on Charge 1 commences today. The sentence on Charge 2 commences three months after the start of the sentence on Charge 1 and the sentence on Charge 3 commences five months after the start of the sentence on Charge 2.

57This makes a total effective sentence of 22 months' imprisonment.

58I order that you are to be released on a Recognisance Release Order after 8 months.

59Pursuant to section 6AAA, had you not pleaded guilty, you would have been sentenced to a total effective sentence of three years with a non-parole period of two years.

60Now, Mr Chisholm I will reply upon you to assist Mr Dunstan with the mandatory conditions of the recognisance release order. 

·     Firstly, that Mr Dunstan enter a recognisance of $1000.

·     To comply with the conditions to be of good behaviour for a period of three years.

·     To comply with the mandatory conditions of being subject to the supervision of a probation officer, the Deputy Commissioner or his nominee for a period of three years,

·     To obey all reasonable directions of the probation officer or their nominee,

·     You must not to travel interstate or overseas without the written permission of the probation officer,

·     You must undertake such treatment or rehabilitation programs that the Deputy Commissioner of Community Corrections Services and Sex Offender Manager or their nominee reasonably direct. 

61And conditions necessary to give effect to the mandatory conditions:

·     You must report to Ringwood Community Corrections Centre, Maroondah Highway, Ringwood within two clear days of release from custody.

·     You must report to and receive visits from a Community Corrections Officer or Officers.

·     You must notify an Officer of the specified Community Corrections Centre of any change of address or employment within two clear working days.

·     You must further attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner or their nominee

·     You must attend, undertake and complete the sex offenders program within a period of two years or, alternatively, undertake and complete treatment with Geoffrey Burrows for a period of two years.

62By virtue of your pleas of guilty and the conviction, you are now a registrable offender under the provisions of the Sex Offender Registration Act and the period of your registration requirement is a term of 15 years.  Now before you sign the document, I want to explain what that means to you.  When you are released, within a reasonable time or as soon as practicable, you go to your nearest police station.

63You have to give your address and your occupation, the registration number of any of your vehicles, but most importantly in this modern age, you have to provide not just your mobile phone and any other devices you may have, but every single domain name, email address, avatar or persona you have online, and provide details of any changes. Failure to do it is a criminal offence.  They are dealt with in the Magistrates' Court.  They are always prosecuted, and magistrates almost invariably deal with matters by a short but immediate term of imprisonment. 

64All right, so, Mr Chisholm, I have signed those two orders. Mr Chisholm, if you want to go with Mr Kornhauser.

65MR CHISHOLM:  Yes if I may.

66HIS HONOUR:  Please, of course you may.

67MR CHISHOLM:  Your Honour, those are signed.

68HIS HONOUR:  We will make copies of those and a copy will be provided. 

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