Director of Public Prosecutions v Dunstan (a pseudonym)
[2024] VCC 99
•8 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN DUNSTAN (A PSEUDONYM) |
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JUDGE: | HER HONOUR DEPUTY CHIEF JUDGE M. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17th October and 19th December 2023 | |
DATE OF SENTENCE: | 8 February 2024 | |
CASE MAY BE CITED AS: | DPP v Dunstan (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 99 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Indecent act with or in presence of child under 16 – Producing child abuse material – Sexual assault of a child under the age of 16 – Possession of child abuse material
Sentence:TES: 10 years 8 months imprisonment with a minimum of 8 years before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Martin | OPP |
| For the Accused | Ms K. Rolfe | James Dowsley and Associates |
HER HONOUR:
INTRODUCTION
1 At the outset I remind those listening that publication of anything likely to identify the complainants in a sexual offences case is prohibited by an Act of Parliament. While I will use actual names in delivering these sentencing remarks orally, in my published remarks pseudonyms will be used for the names of the complainants and the names of any family member, including the accused. For ease of reference in these remarks I will use first names only other than for the accused, but I mean no disrespect to family members in doing so. I will also avoid using other identifiable details.
2 Next, when I reach the point where I must refer to details of the offending I will pause and anyone online who does not wish to hear these can indicate that. They will be placed in an online waiting room and brought back into the hearing when that part of my sentencing remarks is completed.
THE INDICTMENT
3 For the purpose of the sentence indication hearing held on 12 October 2023, the prosecution provided the court and the accused with a draft indictment containing a list of proposed charges of sexual offending against six children and of possession of child abuse material. A sentence indication hearing is held when the accused person requests a judge to give an indication of the maximum total effective sentence that would be given if they were to plead guilty to all those offences.
4
After hearing from counsel for the prosecution and the accused I agreed to consider the application. Following further submissions from counsel in writing and orally on that day I decided to give such an indication and I announced that should you, Mr Dunstan, plead guilty the maximum total effective sentence I would impose is 11 years' imprisonment. I allowed a reasonable time for you to decide whether to accept that indication and plead guilty and on
17 October 2023 you accepted the sentence indication and the formal indictment was filed by the prosecution. You were arraigned on the same 19 charges and entered pleas of guilty to each of them.
5 In summary, those charges are as follows:
·4 charges of committing an indecent act with a child under 16;
·7 charges of producing child abuse material;
·7 charges of sexual assault of a child under 16; and
·1 charge of possession of child abuse material.
6 The maximum sentence prescribed in legislation for each of these offences is 10 years' imprisonment.
7 The charges of sexual assault of a child under 16 are prescribed standard sentence offences and the standard sentence is four years' imprisonment. I will come back to this later.
8 There are reasons why a maximum total effective sentence - which I indicated for this case would be 11 years' imprisonment - is different from the maximum sentence prescribed in legislation. Sentencing is not simply an arithmetical exercise of multiplying the 19 charges by the maximum sentence prescribed in legislation to reach a maximum total effective sentence of 190 years' imprisonment. That is not the law in Victoria nor anywhere in Australia. There are many factors that I must take into account and weigh up in exercising the discretion provided to me by law to ultimately decide what I consider to be the just and appropriate sentence in all the circumstances.
CHRONOLOGY
9 Before I turn to outline and consider those many factors I will set out the chronology.
10 Mr Dunstan, you are one of five children. Your brother Gary[1] has a number of children with his wife, including Brian, Michael and Bronwyn, who are your nephews and niece respectively. They all live in a State other than Victoria.
[1] All names used are pseudonyms
11 Brian is married to Petra and has five children.
12 Michael is married to Deirdre and has two children.
13 Bronwyn is married to Barry and has three children.
14 All of these children are your great-nephews and great-nieces.
15 You lived in regional Victoria and often provided holiday opportunities for these children, in their home State, or at or near your home, including paying for fares to Victoria.
16 You were also a registered foster carer.
17 The dreadful offending to which you have pleaded guilty involving individual children known to you occurred between March 2017 and January 2020 in Victoria. Charge 19 of possession of child abuse material, to which you also pleaded guilty, is for a period between May and August 2021.
18 Your offending came to light in the following way.
19 In November 2020 one of your great-nieces, Kate, told a social worker and her father, your nephew Michael Dunstan, that you had sexually assaulted her in her home State on a camping trip in about 2015 when she was aged 10. Michael advised his brother Brian and sister-in-law Petra of this and they went to Michael's house with their eldest daughter Ellie.
20 Ellie was asked by Michael if anything inappropriate had happened between you and her and she gave quite detailed information confirming abuse had indeed occurred. When asked she said she was ‘okay’ to speak to police about it.
21 Brian took Ellie home and returned with his son Jake. Jake was asked the same thing and provided information confirming your abuse of him. Jake also said he was ‘okay’ to talk to the police.
22 On the same day and in the next few days both Michael and Brian told their sister Bronwyn about Kate's disclosure and encouraged Bronwyn to speak to her children. Bronwyn spoke to her daughter Amanda who provided information confirming your abuse of her.
23 As a result of these disclosures six children made recorded interviews with police between 23 November and 11 December 2020 describing your sexual abuse of them in their home State and interstate, including Victoria. As the abuse was said to have happened during the time that some of those children were staying at your home, or camping in the nearby region, the case was transferred to Victoria for investigation of those allegations.
24 The sentence I am imposing today is not for offending you committed against some of the children in a State other than Victoria. However, that information gives context to your offending and also demonstrates the ongoing sexual interest you have in young children.
25 In May 2021, you were arrested and a search warrant was executed at your house with a number of electronic devices seized. You were interviewed, but apart from denying that you had showers with the children, as alleged by them, you exercised your right to silence.
26 Between May and August 2021, the electronic devices were subjected to forensic analysis and thousands of child abuse images were discovered. Police returned to your house and seized further devices from there as well as from your workplace.
27 In the final analysis, over one million child abuse images were discovered in your possession. As I will return to, this shocking figure appears to be the largest number of images of child abuse for possession of which a person is to be sentenced in Victoria and possibly Australia.
28 Included in that appalling catalogue were videos some of your great-nieces and -nephews and of a girl who was in your foster care, Jayne Montgomery. These particular videos form the basis of the charges of producing child abuse material to which you have pleaded guilty. Jayne made her recorded interview with police in October 2022 after she was identified in one of the videos. A pair of shorts matching those you were wearing in the recording you made of her, and in which you appeared, were found in your bedroom during execution of the second search warrant.
29 On 10 August 2021 you were arrested again, and on this occasion remanded in custody where you have remained since and will remain for some considerable time to come.
30 Victoria Police laid charges relating to your offending and these were filed in the Magistrates' Court on 10 August 2021. On 1 December 2022 a Magistrate committed you to this court to stand trial.
31 You first appeared in this Court on 23 January 2023. Between then and June 2023 there were unsuccessful efforts to resolve this matter to a plea of guilty, both by the parties and, at their request, by the Court. It was first listed for a sentence indication hearing in September 2023 which was adjourned to 12 October 2023, the day that I first became involved in the matter. As mentioned, you accepted the sentence indication on 17 October 2023. The plea hearing was held on 19 December 2023 and adjourned to today for the sentence to be delivered.
32 I recognise that difficult period of uncertainty for the children and their parents, not knowing whether they will be required to give evidence or whether the case might resolve to a plea of guilty. While an accused person generally receives an acknowledgement for reducing that period by an early plea of guilty the plea entered in this case was not as early as it could have been.
BACKGROUND TO THE OFFENDING
33 I will now turn briefly to describe the background to the offending before giving an overview of the offences to which you, Mr Dunstan, have pleaded guilty.
34 I outlined your family cohort at the beginning of the chronology. As I said at the sentence indication hearing, with the opportunities you provided, financially and geographically, for the children and their parents to holiday interstate and go camping with you, both in their home State and in regional Victoria, it was, on the face of it, an innocent relationship between you, your nephews and nieces, and your great-nephews and -nieces, which would have been thoroughly enjoyed by them in spending time with you in the range of fun activities that would otherwise have been innocent but for the gross exploitation of those relationships.
35 By way of example of that exploitation, you had a granny flat at your property in which the parents stayed while their children slept in the house where you also slept. On occasion you paid fares for their travel to you and set up itineraries for the families. On your suggestion you arranged for the children to sometimes come to you without their parents. Your home bathroom had a shower with two outlets, providing the perfect vantage point for your depraved actions in filming the children showering together in a family group. Your vehicle had a pop-up tent on the roof and you owned a pop-up shower, both of which enabled you to continue your sickening activities when taking the children camping.
36 Against that background of you making and using the opportunities to exploit and abuse multiple members of your extended family and a foster child, there are the specific sexual acts which constitute the charges on the indictment.
37 In addition to those charges, the prosecution relied on other acts not the subject of charges to provide the overall context to the offences on the indictment and also to demonstrate the sexual interest you had in children, both those to whom you had access physically in Victoria and elsewhere and those who you accessed online. The evidence of that sexual interest is overwhelming.
38 I can and do only pass sentence on the charges that have been brought by the prosecution. However, if I do not specifically mention the sexual abuse that is not included on the indictment, including that which you perpetrated against children who are not included on the indictment, everyone involved can be assured that I have taken into account all of those other cunning and manipulative sexual exploitations relied on by the prosecution and not disputed by you, Mr Dunstan, by way of background in deciding the appropriate sentence.
39 I turn then to set out an overview of the specific charges. Of necessity this is a summary, and again I emphasise that I have taken all of the evidence into account. At this point if any affected family members wish to leave the hearing while I outline these disturbing facts they may do so and they will be brought back in when I have finished that part of the sentence. Thank you. I understand there has been no indication that anyone wishes to do that so I will proceed.
THE CHARGES
40
The first four charges involve your abuse, Mr Dunstan, of Amanda, the oldest child of Bronwyn and Barry. When aged eight, she took a trip alone to your home in March of 2017, after you requested of her mother that Amanda stay with you, and paid for her flights. You took her camping and set up your pop-up shower. Despite being told by her mother that Amanda was able to shower on her own, you entered the shower with her and soaped her body, including touching her bottom and vagina. Those acts are rolled up into
Charge 1 of indecent act with a child under 16.
41 While at your home you entered the bathroom on all but two of the occasions when Amanda was showering and, despite her saying no to your offer to soap her, dry her and dress her, you did so anyway. Sometimes you showered at the same time.
42 During that week at your home, after enticing Amanda with a photo of a bath lit up with lights, you drew a bath for her and placed glow sticks around the tub to provide light when she got into the water. You ran your hands over her chest and stomach, touching the area of her breasts. You took photos of her naked in the bath and showed them to her. All of this sexual activity is rolled up into Charge 2 of indecent act with a child under 16.
43 When you showed the photos to Amanda she, at eight years old, realised, even in her innocence, that they were 'bad' and asked you to delete them. You requested to keep one and she deleted all but one and cropped the image so that only her head could be seen. The extent of your depravity and feeling of invincibility is demonstrated by you telling her mother that you had put glow sticks in the bath for Amanda.
44
Also during that week you performed a so-called massage on Amanda, telling her it was your job to massage people. It was not and, even if it was, massaging naked children is not in any job description. You put oil on her and rubbed the front and back of her body, squeezing her naked buttocks and
rubbing her chest and stomach, touching the area of her breasts. These sexual acts are rolled up into Charge 3 of indecent act with a child under 16.
45 During that stay, you called Amanda into your bedroom in the mornings to watch a movie with you in your bed. On one occasion as she was climbing over you to get out of the bed she saw your erect penis protruding from your clothing and asked you what it was. That occasion is the subject of Charge 4 of indecent act with a child under 16, but your erect penis was exposed to Amanda on another occasion during that visit.
46 The next charged offence took place in December 2017. Brian, Petra and their five children came to stay at your home. In your bathroom you set up a hidden camera which you operated so as to brazenly capture the images of you doing so. The video then depicts the four oldest children aged from just under four years to 11 years, the fifth child was then a baby, naked in the shower and includes vision of you carrying Zoe into the bathroom, positioning her in front of the camera and undressing her. You also filmed yourself washing and drying the children. This was unnecessary for their care and so was purely for your paedophilic tendency.
47 The sick nature of this activity is only heightened by the brazenness of it happening with the parents in close proximity. Indeed, their father is heard on the video calling out to the two oldest children to get out of the shower. I will speak of the impact on the families after describing your heinous offending, but I will say now that learning of this event happening in their presence, as it were, has been devastating for the parents. The recording of the children in the shower on this occasion is the subject of Charge 5, production of child abuse material.
48
The next offences in time are those you committed against Jake who is Brian and Petra's second child. In March 2018 Jake, his sister Ellie, brother Ian and cousin Kate all came to stay at your home. Jake was aged 10 years. On an occasion where they had been riding motorbikes, you gave Jake a
so-called massage, saying it was to loosen his joints. I will not describe it as a massage to avoid legitimising it in any way. During this activity you touched his penis a number of times and caused him to get an erection. That sexual act of yours is the subject of Charge 13 of sexual assault of a child under 16.
49 As if this was not serious enough, you compounded your criminality by filming this sexual activity, which is the subject of a separate charge, Charge 14. You filmed yourself carefully adjusting the camera for the best view or angle. This video discloses what you said and did beyond Jake's memory and description in his recorded interview with police. You covered his upper body and eyes with a towel and rubbed his body, moving to his penis, masturbating him for a number of minutes.
50 The recording of this sexual activity is the subject of Charge 14, production of child abuse material. The so-called massage went on for about 14 minutes. In it you conducted a sickening conversation that falsely created an impression that Jake was of an age and in a position to consent and to communicate consent to willingly participate in your revolting acts. A child can never consent to sexual activity and you well knew that. This was part of your perverted role playing for the benefit of the video for you to no doubt view later.
51 You committed a similar offence against Jake in filming yourself masturbating his penis to an erection. It is uncertain whether this took place in the March 2018 visit or a visit in April 2019. Jake was aged 10 to 11 years. You touched his penis for about 10 minutes and again engaged in the type of sickening conversation I just described. That sexual act is the subject of Charge 15 of sexual assault of a child under 16. The recording of this sexual activity is the subject of Charge 16, production of child abuse material. The so-called massage went on for about 28 minutes.
52 The next charged offences in time took place in April 2019 when you arranged and paid for the three oldest children of Brian and Petra, that is Ellie, Jake and Ian, to return to Victoria with you to stay at your home.
53 During the stay you repeated the inaccurate assertion previously made to Amanda that it was your job to massage people and told Ellie to get onto the massage table. She did so and was naked. She was aged 12 to 13 years. You rubbed her back and then asked her to turn over to continue the so-called massage, whereupon you touched her vagina with your fingers in a circular motion. That sexual act is the subject of Charge 6 of sexual assault of a child under 16.
54 Again you filmed this sexual activity which is the subject of a separate charge, Charge 8. This video discloses what you said and did beyond Ellie's memory and description in her recorded interview with police. You covered her face with a towel and rubbed her breasts, including her nipples, in a circular motion. That sexual act is the subject of Charge 7 of sexual assault of a child under 16.
55 The video shows that you repeatedly rubbed her vagina. This is included in Charge 6. You are heard in the video, revoltingly, asking Ellie, 'Is that nice?', you are shown kissing her on the lips a number of times and after she asked if you had finished, you asked, 'Was that so bad?' When she sat up on the table, naked, you hugged and kissed her and asked, 'Do you still love me little girl?' and asked her twice in different ways to confirm this.
56 Apart from the repeated touching of her vagina this evidence is not the subject of any charge, but provides context to your offending and also demonstrates the ongoing sexual interest you had in Ellie as well as your general paedophilic tendency. The recording of this sexual activity is the subject of Charge 8, production of child abuse material. The so-called massage went on for about 20 minutes.
57 Not content with those disgusting acts you repeated and filmed the sexual activity in another so-called massage during the time Ellie was staying with you. You touched her vagina in the same way you had on the first occasion and did so in a way that was as close to penetration as could be. That is the subject of Charge 9 of indecent act with a child under 16[2].
[2] In the delivery of sentence, I indicated at this point that I had mistakenly referred to the touching of the vagina in Charge 6 as being ‘as close to penetration as could be’ and corrected it to be included in the description of Charge 9, not in Charge 6.
58 Again you kissed her on the lips a number of times and placed a towel over her eyes. Again you filmed this disgusting violation which shows you rubbing her breasts and stomach with oil, touching and rubbing the lips of her vagina. On this occasion you also placed Ellie's hands on her stomach and guided them over her breasts in a circular motion to her stomach and over her vagina. These sexual acts are rolled up into Charge 10 of sexual assault of a child under 16. The recording of this sexual activity is the subject of Charge 11, production of child abuse material.
59 The so-called massage went on for about 29 minutes. In it, as with Jake, you conducted the same perverted conversation that falsely created an impression that Ellie was of an age and in a position to consent and to communicate consent to willingly participate in your revolting acts. I repeat, a child can never consent to sexual activity and you well knew that.
60 During the time in April 2019 that Ellie, Jake and Ian were staying at your home you filmed them taking their showers. As for Charge 5, you filmed yourself setting up the hidden camera. You called Ian, aged seven, into the shower and Jake, aged 11, came with him. You washed the hair of both boys. Both are seen in the recording naked in the shower and in the bathroom afterwards. Ellie then came in and had her shower and then called out to you for a towel, which you provided to her, and kissed her while she was naked. The recording of the children in the shower on this occasion is the subject of Charge 12, production of child abuse material.
61 During this period you were a registered foster carer. Two brothers, and later their sister, came into your care. Jayne was aged seven to eight years between March and October 2019 when you filmed her naked in the shower at your home, again depicting yourself setting up the hidden camera. The recording of this sexual activity is the subject of Charge 18, production of child abuse material. The recording went for about 11 minutes.
62 In December 2019, you paid for Jake to fly to Victoria to stay with you on his own. On one occasion during this time Jake was sleeping with you in your bed and you rubbed his back and touched his penis until it was erect. You then, according to him, 'tried to' suck his penis, but Jake said no and said he was going to bed because he was tired. On another occasion you again touched his penis, causing it to become erect, and then asked Jake if he wanted to do the same thing to you. Again Jake said he was tired and wanted to go to bed. He was aged 11 years. These sexual acts are rolled up into Charge 17 of sexual assault of a child under 16.
63 Lastly I turn to Charge 19, an offence of possession of child abuse material. As I said earlier, you are to be sentenced for possession of the largest quantity of child abuse material that has likely been prosecuted in Australia. Analysis of the seized items showed a total of 1,042,551 images.
64 Recognising that there can be duplication, the investigation team provided the total number of images of child abuse material meeting one of the categories in the Interpol Baseline and then provided the number of unique images in that category. Across the devices there were just over 322,000 unique images or videos classified as Category 1 and just over 206,000 unique images or videos classified as Category 2.
65 Material classified as Category 1 depicts a real pre‑pubescent child under the age of 13 years approximately, either involved in or witnessing a sex act, or the material is focused on the anal or genital region of the child.
66 Material classified as Category 2 depicts material not included in Category 1, but which is illegal in Victoria, and depicts a pubescent child between approximately 13 and under 18 years, either involved in or witnessing a sex act, or the material is focused on the anal or genital region of the child.
67 I was provided with summary descriptions of sample material viewed by the investigator. I did not view the material. The defence take no issue with the summary descriptions provided in the Agreed Statement of Facts[3] and I am satisfied that those descriptions convey the depth of the shocking depravity of child abuse material you had amassed. I will not go into further detail. It is sufficient to say that the images and videos include male and female pre‑pubescent children either involved in or witnessing penetrative as well as non-penetrative sexual acts, with some in distress and some very, very young. There are also pubescent children involved in these. I am satisfied beyond reasonable doubt that the sample material is indicative of the hundreds of thousands of unique images and videos you had in your possession.
[3] Exhibit A on the plea
68 I will have more to say about the seriousness of your offending across all the charges after the next important aspect of my sentencing, which is acknowledgement of the impact of your offending on your victims.
IMPACT ON THE VICTIMS
69 Because of the way a sentence indication hearing is conducted, I received victim impact ‘reports’ at the time of the indication and the victims were not present at that hearing. Those reports were tendered without objection as victim impact ‘statements’ at the plea hearing, at which some family members were present but the statements were not read out.
70 That does not mean those impacted do not have a voice. I have read and reread the impact statements and take their contents very much into account in deciding the appropriate sentence. However, as they have not been read out in open court I will not go into detail about them.
71 What I will say, is that no victim or person affected by the criminal acts of Steven Dunstan should feel guilty about what they themselves did or did not do at the time. While that is a natural and completely understandable response by parents, other relatives and the children directly concerned to the shocking discovery of the gross breach of trust, the fact is that the only person who is guilty is Steven Dunstan and he has said that word 19 times in this court.
72 No child is ever responsible for what an adult does to them by way of a criminal act. What happened to the children, to each of you, is a crime and none of it was your fault. I say to all of the children directly involved do not let your life be defined by what happened to you. Take every opportunity to receive the love and support that still surrounds you. You are not alone in this. I offer the hope that over time things will become a little better. Having today's hearing behind you will hopefully mean you can begin to move on with your next stage of life without having to think about the possibility of having to give evidence and be questioned about what happened.
73 But harm was also caused to others. The stone cast into the pool of what was a large but close‑knit family has not had just a ripple but a tidal wave of consequences for trust, relationships and self-belief for the adults, not just the children. And while parents are responsible to ensure the safety and wellbeing of their children, I say to them the only person responsible for what happened to your children is Steven Dunstan. What he did has all but destroyed the close wider family relationships you and your children all once enjoyed, but do not let that happen to your relationships in your closest family. You need to support each other and you need to support your children. While this has had a devastating impact, as I said to the children, do not let this define you and your own family.
74 I recommend that you all, adults and children, take the opportunity for obtaining professional help to work through the difficult days, which the OPP can provide details about. I do wish all of you well for the future.
75 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long-term and serious and include both physical and psychological harm[4] and can include future harm[5].
[4]R v Clarkson (2011) 32 VR 361, 368[26], 371 [33]
[5]Adamson v R [2015] VSCA 194. [56]
76 It is recognised that any sexual offending against a child by a carer constitutes an abhorrent abuse of trust in part due to the inherent vulnerability of the young victim in such cases. You, Mr Dunstan, were their carer in position if not name. Children are entitled to feel safe and protected when in the care of an adult. As stated years ago in the Supreme Court of Victoria, and restated in similar ways many times since:
'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'[6]
[6] R v Sposito (Unreported, Supreme Court of Victoria Court of Criminal Appeal, 8 June 1993) as cited in DPP v Dalgliesh (a pseudonym) [2017] VSCA 360, [67].
77 Mr Dunstan, I must also acknowledge the harm you have caused to the countless victims, hundreds of thousands of them, in the half a million unique images and videos you had in your possession.
78 Just because the victims are not identified does not mean that child pornography or child abuse material is a victimless crime. Every real child depicted in the images you possessed is a victim, not just during the appalling abuse suffered at the time of the creation of the material, but forever, as these images cannot be wholly removed from the internet. As they grow older and learn the real significance of what was done to them, if they were not old enough to realise it at the time, they will have to live for the rest of their lives with the awful knowledge that at any given time someone depraved like you will be looking at them, thereby perpetuating their abuse.
79 The shocking toll of child sexual abuse is well recognised by the courts and by me in sentencing you, Mr Dunstan, for what you did to your great-nieces and great-nephews, to your foster daughter and to the enormous number of unknown victims by obtaining, possessing and keeping their images. I take into account the harm caused to all the children, known and unknown, to the parents of the known victims and to the wider family.
SERIOUSNESS OF THE OFFENDING
80 This may be difficult for the parents and their children, the known victims, to hear, but I assess the possession of the child abuse material as the most serious of the offences for which I am about to sentence Mr Dunstan. I will attempt to explain why.
81 This finding does not mean that the offences committed against Mr Dunstan's great-nieces and -nephews are not serious. They are. But my assessment of Charge 19, the possession of child abuse material, in accordance with the law, is that offence is the most serious of all your offending.
82 The law as set out in numerous cases[7] provides that the objective seriousness of offending involving child abuse material is ordinarily determined by reference to a number of factors which I have applied to Charge 19.
[7] The principles were cited with approval in DPP (C’th) v Garside [2016] VSCA 74, [25]
83 The first of these factors is the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted. As I said earlier, the images and videos include male and female pre‑pubescent children, as well as pubescent children, either involved in or witnessing penetrative, as well as non-penetrative sexual acts, with at least one in distress and some very, very young. This puts the offence high on the scale of seriousness, although not at the highest level because, sadly, there is material out there which depicts worse things being done to children which did not seem to form part of your collection.
84 The next factor is the number of images, which I have already referred to. I accept that this is only one factor to take into account in assessing the seriousness, but it cannot be ignored that this was an extraordinary number of images for you to have in your possession, seemingly without precedent in the prosecution of this type of offence. This puts Charge 19 very high on the scale of seriousness.
85 The next two factors do not apply here: there is no evidence that you possessed the material for the purpose of sale or further distribution and you did not profit from the offence. As I said in discussion with counsel, this does not reduce the severity of the offence. Instead it is noted in my assessment of the overall seriousness of Charge 19 that these factors do not exist to make the offence more serious.
86 The next factor is the number of children depicted in the material in your possession for your personal use and thereby victimised. As I have stated, there are many hundreds of thousands of such children. This puts Charge 19 very high on the scale of seriousness.
87 The last factor is the length of time the material was in your possession. The offence is charged from May to August 2021, being the period in which the searches of your home and workplace uncovered the numerous electronic devices on which this appalling material was stored and discovered on analysis. However, I take into account that the first of the videos you recorded in your home - which are included in this possession charge - dated back to December 2017, with the other home recordings made in 2018 and 2019, and so remained in your possession for years. Further, it is unrealistic to assume that you amassed this enormous collection over the period in the charge. I am satisfied beyond reasonable doubt that you had a large amount of child abuse material in your possession for a period measured in years rather than months. This finding also makes Charge 19 more serious.
88 In addition to the factors I have just mentioned, I also take into account that:
·offending involving child abuse material occurs on an international level, and the internet has proven to be a means of providing ready access to such material, thereby increasing the prevalence of the offence;
·further, given the anonymity provided by the internet, the offence is difficult to detect, as was the situation here, because without the disclosure by Kate, searches would not have been conducted and the material would not have been discovered;
·the crime of possession of such material creates and encourages a market for the continued corruption and exploitation of, and harm caused to, children, and
·there is a paramount public interest objective in promoting the protection of children because possession of child abuse material is not a victimless crime; as I explained earlier, children are sexually abused to supply the market and the fact that here the offender is not involved in the distribution or sale of the material does not mitigate the offending. I have no information in this case as to whether Mr Dunstan paid to access websites from which he obtained the child abuse material.
89 My overall assessment of the seriousness of Charge 19 is as very high level offending, but not at the highest level, primarily due to the absence of the very worst child abuse material.
90 Turning to the offending perpetrated against the victims known to you, I assess those offences overall as of a high level of seriousness for indecent assault and sexual assault of children under 16 primarily because of the gross breach of trust.
91 That offending constitutes serious offending by reason of the following:
·First, the egregious breach of trust in continually abusing your relatives who trusted you and loved you, not recognising at their young age that what was occurring was criminal;
·next, they were all vulnerable because of their ages;
·next, you exploited that vulnerability by creating and acting on countless opportunities to offend against them over a period of two and a half years as framed on the indictment;
·next, you engaged in your heinous sexual conduct in your home where the children came for holidays, or on camping trips, in both instances where they were entitled to feel safe and protected, not abused, by their great-uncle and carer;
·next, some of this abuse brazenly occurred in close proximity to the parents, this giving a sense of your conduct being acceptable for the children, and has been devastating for the parents who, inaccurately, think they failed to protect their children;
·next, there is about 39 years difference in age between you and the eldest of your known victims; and
·lastly, there is and remains a significant impact on your known victims and unknown victims as I have described.
92 Having described, therefore, what I take into account for the offending I must now turn to matters personal to you for further consideration of the appropriate sentence.
PERSONAL HISTORY
93 Your personal history is unremarkable or, perhaps in this Court, remarkable, in the sense that it does not include any physical or mental impairment, drug or alcohol abuse, lack of education or employment, or lack of family support in your formative years, indeed, up until the offending came to light. You have no criminal history. As I said in an earlier hearing, there is no part of your background that provides some inkling of why you committed these offences.
94 You are now aged 59 years. You are the fourth of five children. The family moved frequently during your childhood due to your father's employment, but it was not an unhappy time. The family settled in regional Victoria and you completed your secondary schooling there. You undertook a building apprenticeship with your father and on obtaining qualification you worked in that industry as a builder and later transporting building materials. You have been gainfully employed all your adult life, including in other capacities outside the building industry.
95 You have had a number of significant relationships, including a five-year marriage which produced a daughter who is now an adult and with whom you have had no contact for about 15 years. You have a current partner who you apparently met through foster care and she continues to support you despite this offending coming to light.
96 Apart from your work as a foster carer you have also participated in community life as a goal umpire and with an organisation providing meals to homeless people. Of course your work as a foster carer must now be seen in light of the recording of one of your foster children in the shower during the time she was under your care.
97 So how is it that a person of your background has committed these heinous crimes? I received a forensic psychological report[8] commissioned by your lawyers which I turn to next to see if that sheds light on this question.
[8] Exhibit 2 on the plea
ASSESSMENT OF RISK OF REOFFENDING
98 You were described in the report as having no evidence of psychotic symptoms or meeting criteria for mental illness, personality disorder, mood disorder or substance use disorder and with an estimated average intelligence.
99 However, you were assessed as satisfying the criteria for diagnosis of having a paedophilic disorder, attracted to children of both genders at the time of the offending and still existing now[9]. This would appear obvious from the offending which you have now admitted, but this assessment was obtained before you entered your pleas of guilty.
[9] Described as being ‘extant’ at the date of the report, September 2023.
100 The report writer undertook an assessment of your risk of reoffending in the same way. On an assessment of what are described as ‘stable’ risk factors, which do not change, you were found to be a low risk of sexual reoffending relative to other male sex offenders. ‘Dynamic’ risk factors are amenable to change with treatment and other interventions. On assessment of these factors your risk of reoffending in the same way is increased by the fact that you have not undertaken any treatment.
101 You have been on remand since your arrest and treatment programs for paedophilic disorder, or any sexual offending, is not available to you. This will become available after sentence and you have said through your counsel that you are willing to undertake such treatment.
102 The report writer was of the opinion that it will likely be a challenge to safely manage you in the community without such treatment. I agree. You will not be in the community again for some time, but your risk of reoffending is inextricably linked to your paedophilia and that risk is only likely to be managed or reduced by you obtaining treatment, given your very serious sexual offending. That treatment can start in prison and, indeed, you will not be released on parole unless you have completed a sex offender program conducted by Corrections Victoria.
103 I assess your risk of reoffending as high. Your offending only stopped when you went into custody and had no access to children or the internet. You have a diagnosis of paedophilia and without successful treatment you will remain a risk to children. With such treatment your rehabilitation and the protection of the community will be enhanced.
ACCEPTANCE OF RESPONSIBILITY AND SIGN OF REMORSE
104 I turn now to discuss acceptance by you of responsibility for your offending and for the harm you have caused. Up to and at the time you were assessed by the forensic psychologist in September 2023, you were not admitting the offending and gave no expression of remorse. When you said to the psychologist, 'I am really sorry if they felt like I have violated them, because that certainly was not my intention. At no time did I set out to hurt those kids', that was still a denial of your criminal activity towards your relatives and to the countless unknown victims, and showed a distinct lack of remorse. This combination has increased the impact on them of your offending, particularly for their parents.
105 On the day you pleaded guilty this was the first sign that you had begun to accept responsibility for your dreadful crimes. That is a first step. There is still some way to go and treatment will promote your understanding of the true nature of what you have done. Actual acceptance of responsibility will promote the healing of your victims. I do accept your pleas of guilty as the first sign of remorse for your crimes and the beginning of acceptance of responsibility. I have taken this into account in deciding the appropriate sentence.
106 It was not the earliest indication of a plea of guilty, but I do recognise that it did mean that the children who had been waiting to see what the outcome would be did not have to proceed to give evidence and that is factored into the sentence that I am about to impose.
107 In addition, I have given a very modest amelioration of sentence under what is described as the Worboyes[10] discount, applying the same reasoning as Her Honour Justice Hollingworth in the Supreme Court when she said[11]:
'It is not disputed that you are also entitled to an additional discount called a Worboyes discount, something that arose during the early stages of the COVID-19 pandemic. However, that additional discount will be a very modest one, given the Supreme Court has long since cleared its pandemic backlog.'
[10]Worboyes v DPP [2021] VSCA 169, [39]
[11]R v Batsanes & Smith [2023] VSC 693, [52]
108 It is worth remembering that the Worboyes discount came about in this way in the Court of Appeal in 2021:
'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 effects.'[12]
[12]Worboyes [39] – emphasis added
109 The fact is that we are no longer in the currency of the pandemic. This Court is no longer afflicted by the pandemic's effects and that had already become apparent just at the time you entered your plea of guilty. Nevertheless, as I indicated and as I confirm, I have ameliorated the sentence in a very modest way following the discussion I had on the date of the plea with your counsel.
110 I do take into account that you entered custody at the height of the COVID pandemic and suffered deprivations over a considerable period of time with prison lockdowns as outbreaks of the virus occurred. That is a considerable impost on what is already a difficult thing being a prisoner and I have moderated the sentence accordingly.
SEX OFFENDER REGISTRATION AND SERIOUS SEX OFFENDER STATUS
111 Before I turn finally to announce the sentence, there are two further matters I must deal with. The first is that as a result of my sentence today you become a registrable sex offender. As a result of the offending you will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to that Act for the rest of your life. Because you are appearing on a video link I do not require you to sign the acknowledgement of receiving a form advising you of your reporting obligations. That form will be provided to you through Corrections Victoria in due course.
112 The second matter I need to deal with is that you are to be sentenced as a serious sexual offender from Charge 3 on if you receive a term of imprisonment on Charges 1 and 2, which will happen. Being sentenced as a serious sexual offender means the protection of the community from you is the principal purpose for which sentence is imposed.
113 I have had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality.[13] This is already an overall difficult sentencing exercise in respect of that principle. When the criminal activity the subject of the sexual assault charges is also the subject of charges of producing child abuse material, it has been a considerable challenge to avoid imposing double punishment, but also recognise the seriousness of the offending in a particular charge. The difficulty is compounded by the number of charges and for the charges where the criminal acts occur in the same incident, and/or are rolled up, there is considerable overlap of offending to be taken into account.
[13]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343
114 Unless I direct otherwise, total cumulation on the sentences imposed for Charges 1 and 2 is required for the sentences imposed for Charges 3 through to 19. In order to achieve the purpose of protection of the community I have the power to impose a sentence on Charges 3 and following that is greater than is proportionate to those offences. However, the prosecution do not seek that and I do not intend to do that for the reasons I have given and also bearing in mind that I am of the view that an appropriate sentence can be imposed using the usual sentencing principles as to proportionality.
115 The principle of totality still appears to have a role to play despite the terms of s6E of the Sentencing Act[14].
[14] Above
116 In all of these circumstances I have decided to direct otherwise and allow for considerably less than total cumulation.
SENTENCE
117 Turning finally to the sentence, the Court must denounce your offending and impose a sentence that is just in all the circumstances and that reflects the community's abhorrence of sexual offending against children, with the grave breach of trust and damaging effect that has caused to all of your victims, named and nameless. Further, by my sentence I must seek to deter you and other men from sexual offending against children.
118 Lastly, as sexual assault of a child under 16 is a standard sentence offence I must consider the standard sentence of four years' imprisonment for each of those charges amongst the other factors to take into account when deciding what the appropriate sentence is in your case. I find the offending on those charges is objectively at or below the mid-range of seriousness because of the nature of the offending, including where the offending covers more than one sexual act.
119 Having identified and considered what I find to be the relevant factors in assessing the sentence on each charge, including my assessment as to the serious nature of the offending, I have formed the conclusion that sentences at or below the standard sentence are appropriate as will become apparent as I go through.
120 Steven Dunstan, you are convicted and sentenced as follows:
121 On Charge 1, indecent act with a child under 16 (rolled up) - 3 years' imprisonment.
122 On Charge 2, indecent act with a child under 16 (rolled up) - 2 years 6 months' imprisonment.
123 On Charge 3, indecent act with a child under 16 (rolled up) - 3 years 3 months' imprisonment.
124 On Charge 4, indecent act with a child under 16 - 12 months' imprisonment.
125 On Charge 5, producing child abuse material - 3 years, 6 months' imprisonment.
126 On Charge 6, sexual assault of a child under 16 - 3 years 9 months' imprisonment.
127 On Charge 7, sexual assault of a child under 16 - 3 years' imprisonment.
128 On Charge 8, producing child abuse material - 3 years 6 months' imprisonment.
129 On Charge 9, sexual assault of a child under 16 - 4 years' imprisonment.
130
On Charge 10, sexual assault of a child under 16 (rolled up) - 3 years
10 months' imprisonment.
131 On Charge 11, sexual assault of a child under 16 - 3 years' imprisonment.
132 On Charge 12, producing child abuse material - 3 years 6 months' imprisonment.
133 On Charge 13, sexual assault of a child under 16 - 3 years 6 months' imprisonment.
134 On Charge 14, producing child abuse material - 3 years 6 months' imprisonment.
135 On Charge 15, sexual assault of a child under 16 - 3 years 3 months' imprisonment.
136 On Charge 16, producing child abuse material - 3 years 6 months' imprisonment.
137 On Charge 17, sexual assault of a child under 16 (rolled up) - 4 years' imprisonment.
138 On Charge 18, producing child abuse material - 3 years 6 months' imprisonment.
139 On Charge 19, possession of child abuse material - 6 years' imprisonment.
140 You are to be sentenced as a serious sex offender on Charges 3 through to 19 and I direct that this be entered on the record.
141 The sentence on Charge 19 is the base sentence.
142 I direct that six months of the sentences imposed on Charges 2, 3, 6, 7, 9, 10, 13, 15 and 17 and two months of the sentence imposed on Charge 1 be served cumulatively on Charge 19 and on each other. That makes a total effective sentence of 10 years, eight months' imprisonment.
143 I have been asked to consider a non‑parole period that provides for your conditional release earlier than might usually be the case. I have decided that in all the circumstances a period of eight years must be served before you become eligible for parole. I therefore direct that you serve a minimum of eight years before becoming eligible for parole and I have set that non‑parole period having regard to the factors your counsel relied upon and my assessment of them.
144 I declare that you have served 913 days in pre‑sentence detention including today. These will be deducted administratively from your sentence.
145 Now, I need to hear from counsel as to the ancillary orders I understand, but just pardon me a moment. Yes, thank you. Ms Martin.
146 MS MARTIN: Thank you, Your Honour. Your Honour, as foreshadowed in the opening and the draft orders filed, there's an application for forfeiture and disposal of most of the devices that were seized during the investigation. In relation to the forfeiture order, five of those exhibits are in dispute and they are Exhibit 18, 19, 28, 37, 40 and 80 - pardon me, six exhibits that are in dispute.
147 HER HONOUR: Yes.
148 MS MARTIN: The prosecution maintains the application that those exhibits be forfeited and ultimately destroyed, notwithstanding that there's no direct link between those devices and the child abuse material that is before the court for the - yes, the child abuse material that's before the court, whether that's of the Dunstan children or the anonymous CAM. Our position is that, given that the more than one million images and videos were stored on USBs, CDs and storage devices, and clearly came from another device - I submit that it's open for Your Honour to find that those particular devices are used in - were used in connection with the offending and are therefore tainted property.
149 It's ultimately a matter for Your Honour, but I do note Your Honour's comment about - and really I'm going to piggyback on Your Honour's comment in relation to Charge 19 that Your Honour was satisfied beyond reasonable doubt that given the large volume of CAM in his possession he clearly must have possessed that over a number of years and not confined to the small timeframe for Charge 19.
150 HER HONOUR: So just say that again in terms of no direct link, but you submit that I should conclude that they must have been used or - - -
151 MS MARTIN: Yes, Your Honour, that's really what I'm saying. Because we know, for example, that - items I should say - some of the items that form the basis of Charge 19 are the USBs, a series of CDs. the SanDisk USB and then the storage device. Clearly that material was transferred onto the CDs and the USBs. You can't get onto the internet from those devices. They clearly came from somewhere. What those devices don't tell us is what other - or those items don't tell us is what particular devices were used to download those items, but, in my submission, it is open for Your Honour to be satisfied that those particular devices, the laptop, the six exhibits that are in dispute, must have been used in connection with the offending and are therefore - or were used in connection with the offending and are therefore tainted property under the Confiscations Act.
152 HER HONOUR: I'll certainly hear from Ms Rolfe, but I'm just wondering, does this have to be decided now?
153 MS MARTIN: No, Your Honour, it doesn't.
154 HER HONOUR: Well, I'll hear from you, but if the parties wanted to put in some brief bullet point submissions then I'd be assisted.
155 MS MARTIN: Thank you, Your Honour.
156 MS ROLFE: Yes.
157 MS MARTIN: There's a couple of exhibits on the application for the forfeiture order that the Crown will withdraw and they can be returned to Mr Dunstan, but I probably don't need to trouble Your Honour with that because, of course, we'll provided updated draft orders.
158 HER HONOUR: Yes.
159 MS MARTIN: And likewise there's no dispute in relation to the matters - sorry - to the disposal order. Again there'll be some amendments to that. The Crown will remove some of the exhibits and Mr Dunstan can arrange collection of those items with the informant at the appropriate time down the track.
160 HER HONOUR: All right. Thank you very much.
161 MS MARTIN: Thank you, Your Honour.
162 MS ROLFE: Your Honour, there's no issue providing dot point submissions in relation to this, but if I can just indicate, with respect to the disposal order that's sought there was issues raised. That's been negotiated. So it is only these six items and they are as outlined, those relevant exhibits, by my learned friend. Now, I understand how the prosecution put this argument that, well, other devices are used in order for images to be stored on the relevant storage devices, which range from laptop, USB, a particular PC and a hard drive.
163 There's no issue taken with that. However, the prosecution are really relying on the possibility of these items being used and that, in my submission, is not sufficient looking at the definition of tainted property as it is defined in the Confiscation Act and that is Your Honour must be satisfied that those items were used and Your Honour simply can't be. When Your Honour considers the list of items that are on the forfeiture order there's a large - a very large number of items. It includes a number of laptops. No issue taken in relation to that, but this is - what Your Honour has is a tablet, two iPads, an iPhone 4S - and I'm instructed that that was purchased after the first arrest - a digital TV media player and another tablet.
164 So it's a particular category of items, Your Honour, and whilst with some extensions those relevant items can be used in order for material to be transferred, it's not as straightforward as perhaps a laptop. So the opposition is really on the basis that Your Honour cannot be satisfied that these items are tainted property as it is defined under (a) of the definitions in the Confiscations Act.
165 HER HONOUR: All right. Thank you. Well, that gives me an idea of where that's heading and I'll receive those in due course.
166 MS ROLFE: Yes.
167 HER HONOUR: And where the orders are not in dispute I will make those orders accordingly today.
168 MS ROLFE: As Your Honour pleases.
169 HER HONOUR: Now, one thing that I neglected to say was the sentence that I would have imposed. It doesn't void the sentence if I don't announce it, but I neglected to say that, Mr Dunstan, if you had not pleaded guilty and this matter had gone to trial as you know there would have been many more offences because these were, some of them, combined offences, rolled up as we call it, and there were other matters that may have been brought back in by way of a charge.
170 So it is very difficult for me to say what the sentence would have been if you had not pleaded guilty, but, having gone into this in the amount of detail that I have, and considering the number of charges that would have been likely had you been found guilty of all of those after a trial, I can say that if you had been found guilty after a trial the sentence you would have received would have been in the region of 20 years' imprisonment, with a minimum of 18 years.
171 All right. Well, can I thank everyone for their patience and apologise again for the delay in getting to you this afternoon and no doubt each of you will be having conferences with your respective client or associated people. So thank you to counsel and your instructor. Yes, thank you. We'll adjourn the court sine die.
172 MS ROLFE: As Your Honour pleases.
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