Director of Public Prosecutions v Graham
[2022] VCC 1260
•3 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 21-00315
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL GRAHAM |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2022 | |
DATE OF SENTENCE: | 3 August 2022 | |
CASE MAY BE CITED AS: | DPP v Graham | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1260 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sex Offender Registration Act 2004; Sentencing Act 1991; Serious Offenders Act 2018
Cases Cited:R v De Leew [2015] NSWCCA 183; DPP vGarside (2016) 50 VR 800; [2016] VSCA 74; DPP v Graham [2012] VCC (Taft J 28 August 2012) DPP v Graham 2014 VCC (Taft J 4 June 2014); R v Merrett, Piggott and Ferrari (2007) VR 392; Director of Public Prosecutions v Hum (a pseudonym) [2022] VSCA 57; R v Verdins - [2007] VSCA 62
Sentence: Total effective sentence of 5 years and non-parole period of 3 years and four months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr P. Smallwood | Galbally & O’Bryan |
HER HONOUR:
Introduction
1
On 6 December 2019 and 6 February 2020 police conducted searches of the home of a registered sex offender. After the first search, where a range of drugs were found, the resident of the house was charged with drug offences and bailed. Some of the devices seized were later found to contain a very large quantity of child abuse and other offensive material. A further search was made on
6 February 2020 which again found drugs and more child abuse material. The owner of the devices had not been complying with his obligations under the
Sex Offender Registration Act.
Plea to
2
Paul John Graham, you have pleaded guilty to one charge of bestiality, the maximum penalty for which is five years' imprisonment; one charge of trafficking in a drug of dependence, being 1,4-butanediol, the maximum penalty for which is 15 years' imprisonment; one rolled up charge of failing to comply with your reporting obligations under your Sex Offender Registration Act ('SORA') order, the maximum penalty for which is five years' imprisonment; possessing a drug of dependence, the maximum penalty for which is one year imprisonment or
30 penalty units; and two charges of possessing child abuse material (“CAM”), the maximum penalty for which is 10 years' imprisonment.
3You also agreed to have a summary offence dealt with in the course of your plea; that is committing an indictable offence while on bail, trafficking in butanediol, the maximum penalty for which is 30 penalty units, or three months' imprisonment.
Prosecution Opening
4Turning now, to the prosecution opening. On 31 March 2022 you applied for a sentence indication in this court, the factual basis for the indication was dealt with in the course of that hearing, ultimately you elected to plead guilty and a summary of prosecution opening on plea was provided. This was the subject of amendment by agreement, and the final document provided after the plea to reflect those amendments is dated 22 July 2022, it was subsequently filed via email. That document is attached to, and forms part of, these reasons, and I will refer to just some parts of it in summary here.
5Your offending unfolded between 5 December 2019 and 6 February 2020.
6Before that, you were placed on the Sex Offenders Register in 2012 and again in 2014 as a result of prior offending to which I will return later in these reasons.
7On 11 February 2019 you went to Prahran police station for your annual interview, pursuant to your obligations under your SORA registration. You provided a range of information including street and online addresses. You acknowledged receipt of a notice of reporting obligations that was given to you.
8In November of the same year, police investigations revealed that you were using a range of online accounts and email addresses that had not been reported to police, and therefore breached your obligation to report these details within the seven days of creating or using them.
9This conduct constitutes part of Charge 3 – Failure to comply with reporting obligations.
First search
10Turning now to the first of the two searches. On 6 December 2019 police executed a search warrant at your address in Toorak.
11During the search police found the following:
(a) 16 small plastic vials and 6 glass bottles of 1,-4 butanediol (later analysed to be in the amount of 883.1 millilitres) [This forms part of Charge 2, trafficking in a drug of dependence];
(b) police also found a range of substances which together make up Charge 4, (possession of a drug of dependence), they were:
(i)methamphetamine;
(ii)cocaine;
(iii)ecstasy; and
(iv)cannabis.
12In addition, 27 electronic devices were seized; mobile phones, hard drives, and laptops.
13Later, police would find a range of text messages on your phone that revealed your trafficking. These messages show you responding to requests, specifying payment and arranging times to meet. (Charge 2 Trafficking a drug of dependence. )
14After the search, you were taken to Prahran police station where you took part in a record of interview. Your answers were a mixture of your exercise of your right to silence as well as some admissions to ownership of some of the seized items, and you denied ownership of others.
15Later that day, you were charged with drug offences and with failing to comply with reporting obligations. You were granted conditional bail by police, and one of your obligations was to appear at court on 3 April 2020.
16The contents of the electronic devices that were seized at your home were analysed.
17That analysis revealed 13,516 items of child abuse material, made up of both still images and videos. Of those, 13,470 images and videos were categorised according to the Child Exploitation Tracking System. [Charge 5 – Possession of child abuse material] That system ranks the seriousness of such content from category one, involving no sexual activity, through to category five, involving sadism, bestiality, and child abuse, and level 6, animated or virtual content.
18I have extracted the categorisation tables in my written form of reasons.
19Apple iPhone6 plus:
| Category | Image | Video | Total |
| 1 | 4,073 | 1 | 4,074 |
| 2 | 221 | 1 | 222 |
| 3 | 286 | 0 | 286 |
| 4 | 641 | 1 | 642 |
| 5 | 59 | 0 | 59 |
| 6 | 59 | 0 | 59 |
| Total | 5,339 | 3 | 5,342 |
20Samsung S10 phone:
Category Image Video Total 1 695 3 698 2 470 24 494 3 451 11 462 4 463 82 545 5 63 6 69 6 64 0 64 Total 2,206 126 2,332 21256 GB Samsung EVO Sd card;
Category Image Video Total 1 1,908 184 2,092 2 454 420 874 3 334 253 587 4 345 1,620 1,965 5 43 58 101 6 176 1 177 Total 3,260 2,536 5,796 22The child abuse material (CAM) in your possession at that stage depicted, amongst other things, the following:
(a) children aged from newborns to toddlers, infants and teenagers;
(b) penile/vaginal, penile/anal, penile/oral, digital penetration and object penetration;
(c) acts of humiliation and sadistic sexual bondage, urination and physical torture;
(d) acts of penetration between children and animals; and
(e) children in distress that were crying and screaming throughout the various forms of sexual abuse.
23The material ranged from brief to protracted sexual acts, committed on children lasting in excess of two hours.
24Some descriptions of some of the material found were provided by the informant in the course of the sentence indication hearing and are set out at paragraph 32 of the prosecution opening. I have read these descriptions, and take them into account in arriving at this sentence, and I extract three here.
'An image depicting a young female child who is approximately eight years old and completely naked, with all four limbs contorted and completely restrained and suspended in a leather bondage device. The girl has a ball gag inside her mouth and has her genitals exposed.'
'A video of a young girl approximately 10 years old on her hands and knees outside a building with an adult male filming a large male dog repeatedly mounting and attempting to have sex with her.'
'A video depicting a male’s erect penis repeatedly anally penetrating an infant male who is approximately three months old and with the adult male eventually ejaculating onto the infant's genitals and stomach, while all the while the infant is incredibly distressed, constantly screaming and writhing in what appears to be intense pain.'
25The investigators examining the footage found that a large proportion of the child abuse material you possessed showed children being sexually abused by people who appeared to be their parents. There were also videos and images that involved an adult male anally penetrating both male and female children from newborns to those that appeared to be about four years of age. Many of the children were in pain, highly distressed and crying.
26
Analysis of some material also revealed 'Mega' accounts, a 'cloud' file hosting system as I understand it, that included members of the group requesting
'Pedo' vids; there were 46 child abuse images located there. This forms part of Charge 5. Your email was linked to this Mega account.
27On 28 December 2019, some 22 days after release on bail, it appears that someone using an IP account with which you were connected, accessed that Mega account and deleted the child abuse material held there.
28Analysis of one of your phones revealed a video, 11 minutes and 25 seconds in length which depicts you performing penetrative sexual acts with two male German Shepherd dogs. The video shows it was created at 3.20 pm on 22 May 2019.
29Specifically, the video shows you sucking the penis of one of the dogs until it ejaculates. An unidentified male is filming this process and can be heard speaking to you and to the dogs. There is, at one stage some encouragement for one of the dogs to mount you while you kneel on all fours.
30This conduct constitutes [Charge 1 – Bestiality].
31Analysis of another of your phones revealed text messages apparently sent to you by a person who had observed you using child pornography to masturbate.
Second search – February 2020
32Turning now to the second search on 6 February 2020. A further search warrant was executed at your home in Toorak, and you were arrested.
33The search of your home, again, found various drugs, specifically:
(a) 502 millilitres of 1,4-butanediol in 12 small plastic vials and containers [Charge 2 – Trafficking in a drug of dependence];
(b) small quantity of cannabis [Charge 4– Possession of a drug of dependence]; and
(c) a small quantity of methylamphetamine [Charge 4– Possession of a drug of dependence].
These matters go respectively to Charge 2, Trafficking and the cannabis and methylamphetamine to Charge 4, possession of a drug of dependence.
34
Again, a range of electronic devices with storage capacity were found, including an iPhone with a phone number that was activated by you on 6 December 2019, the same day you were charged and released on bail. You were obliged to report this number to police by 13 December 2019, and you did so a day late on
14 December 2019. This goes to Charge 3, the rolled up count of failing to comply with your reporting obligation.
35Text messages found on this phone also appeared to be evidence of drug trafficking, conduct in breach of the bail that you were granted as a result of the previous search, and this constitutes Summary Charge 10, committing an indictable offence while on bail.
36Further analysis of your phone revealed a number of online user names you had created and failed to report to Victoria Police in accordance with your reporting obligations. This gives rise to another aspect of Charge 3.
37That day you took part in a second interview and in that interview among other things, you admitted to possession of methylamphetamine and cannabis. You admitted to not reporting your new phone number and online user names. You told police that your ex-boyfriend, Noah had set you up, the files were planted by him and that you had not viewed the material.
38Analysis of the devices seized on 6 February 2020 revealed further child abuse material. On the Apple MacBook that was taken there were four 'category one' videos.
39Another table that I extract in my written reasons shows that there was found on a Seagate portable hard drive a total of 81 separate items of child abuse material and in all 85 items were located at the second search. Most of which were still images though there were some videos.
Category Image Video Total 1 24 0 24 2 24 2 26 3 0 2 2 4 0 5 5 5 0 0 0 6 24 0 24 Total 72 9 81
Procedural chronology
40Turning now to the procedural chronology of your case: your case resolved following a sentencing indication hearing conducted on 12 April 2022.
Prior criminal history
41Turning now to your prior criminal history: I have taken your criminal history into account, noting in particular that on 28 August 2012 you appeared in the County Court and were sentenced for accessing, possessing, and making available child pornography. On that occasion you were sentenced to a total effective term of two years with release on a recognizance release order after eight months. You were put on the sex offender register for life.[1]
[1]DPP v Graham [2012] VCC 1218
42Less than two years later, on 4 June 2014 you appeared in this court again before Judge Taft in relation to charges of transmission and possession of child pornography. On that occasion, you received a sentence of immediate imprisonment of eight months and the court also extended the operational period recognizance release order originally imposed in 2012.[2]
[2]I have taken this from Judge Taft's reasons; the prosecution opening misstated the sentence imposed in this case.
43In his reasons for that sentence Judge Taft said:
'Mr Graham, let me make it abundantly clear to you that if you reoffend you will suffer the consequence of further breaching a recognizance release order and a lengthy prison sentence is all but inevitable.'
44You did not breach the recognizance release order but you did reoffend and this is that inevitable lengthy prison sentence.
Nature and Gravity, degree of responsibility
45Turning now to the nature and gravity of your offending. Charge 5, the possession of child abuse material represents a grave example in this category of offending. The child abuse material in your possession is horrific and voluminous. Your participation in the business that maintains the market for this sexual cruelty to children is reprehensible. Your fulfilment of your desires, not entirely chosen by you as I will come to acknowledge, causes, albeit indirectly, very young children to be sexually tortured.
46I did not view the material but I have heard parts of it described in detail and I have had to think about it. In doing so, Mr Graham, the world becomes a very bleak landscape populated only by momentary sexual gratification against a backdrop of cruel torture of children who are most of all owed tenderness and protection.
47
I have had regard to what the authorities say about the indicia of seriousness in this category of offending, in particular by reference to the cases of
R v De Leeuwand in Victoria DPP v Garside.
48I accept that your possession of these materials is confined to two single dates in Charges 5 and 6 rather than over an extended period. However, the second possession was while you were on bail having had other material of a similar nature seized from you just a few short months before.
49Your breach of your Sex Offender Registration Act obligations is a rolled up charge while some of the individual acts are minor in nature they do occur in the broader context of your commission of fresh sexual offending being the possession of child abuse materials. I do not sentence for individual counts, but being a rolled up charge, this will have a higher sentence than what it would otherwise attract.
50The trafficking offence, while persistent, is clearly relatively low-level, though again appears to be compulsive and in part committed on bail; and similarly, the possession of the drugs found in your house.
51I have considered the offence of bestiality, 11 minutes of conduct that is rather degrading.
52I will return to your moral culpability after considering the psychological material in this case.
Background and personal history
53First to your background and personal history. You are 46 now, you were 43 at the time of your offending.
54You were born in Melbourne, the younger of your parents' two children.
55You grew up in the south-eastern suburbs. You described your early years as being marred by experiences of rejection, abandonment and sexual exploitation.
56Your father was a heavy drinker who was also physically abusive, and you describe him as being gay.
57You have one older sister, with whom you are close.
58You report your mother refused to acknowledge you as her child and refused to care for you. You were able to experience a degree of healing in the relationship when you provided some care to your mother as she was dying of cancer. You are now estranged from your father.
59You had no stable caregivers in your childhood, you were passed between various carers and relatives, (like, in your words, 'a house cat').
60Your first experience with sexual abuse took place at the hands of the brother of one of your babysitters when you were aged approximately five years old.
61You report that this abuse became regular involving penetrative acts perpetrated against you. You state that this caused you considerable physical pain as well as humiliation.
62You say that despite that pain and humiliation you welcomed the attention. This abuse progressed to include acts of bestiality.
63You say that from around eight, your abuser began to 'pimp you out' arranging sexual encounters with large numbers of men, sometimes for money. You report that these sexual acts were often accompanied by further acts of violence and humiliation.
64You say that from around age 14 the babysitter's brother no longer controlled you, but you continued to engage in sexual activity as a means of making money and obtaining the attention you desired. I note your conviction for loitering for prostitution in a public place in 1995 in the Prahran Magistrates' Court. You were 19 when you were dealt with for that offence.
65You attended a number of primary schools in the south-eastern suburbs, you found school generally difficult. You found it hard to progress with the basics of literacy and numeracy; your academic skills remain poor.
66You were ostracised and harassed by other children, you experienced a low level of violence from these students.
67You continued through schooling, attending two different secondary colleges. You were required to repeat Year 7; you failed Year 12 but did not repeat.
68You continued to experience ostracization from your peers, primarily due to your sexuality. You did find some friend towards the end of your secondary schooling.
69But ultimately, you left school and worked in various jobs in sales, call centres and as a clairvoyant. You began, but did not complete a TAFE course, you have done some short courses whilst in custody.
70Your main work as an adult has been operating an integrative medical centre, which incorporates a variety of traditional and 'complementary' treatments. You note that your business partner a GP and a psychologist along with your sister, are great supporters and that you would be able to return to work at this business whenever you are released.
71You identify as gay and have had some relationships with men. You have had one significant relationship, that you describe as 'on again, off again', for around four years.
72You admit to the extensive use of pornography. You acknowledge that you seek out child abuse material. You state that this reflects your own experiences and that you are not focussed on being the perpetrator in such material, but rather upon imagining yourself into the scene via the experience of the abused child. You explain that you have been unable to achieve arousal without accessing such material. You describe your attitude to sex as being, 'do what you like, no matter what it is, I'm not here'.
73You have been using drugs since you were a child. You began drinking alcohol at a very early age and drank regularly from age 10.
74You worked in a bottle shop from age 14, and found yourself with unlimited access to alcohol and you regularly binge drank.
75You began using cannabis around age 15 and became a regular smoker in your teenage years.
76From your late teenage years you also began to use illicit stimulants. You began with MDMA and amphetamines, largely in the context of casual sexual interactions.
77At around aged 20 you were introduced to methamphetamine and your addiction accelerated. You report that this resulted in a high level of addiction, disinhibition, and compulsive behaviour.
78You often used GHB as a means of 'coming down' from extensive methamphetamine use.
79Your drug use continued until your incarceration in these matters.
Mental health
80Turning now to considerations about your mental health. I have had regard to a range of psychiatric and psychological reports tendered on your sentence indication and on your plea, and to the oral evidence of Mr Handley given on the sentence indication hearing.
81The reports and other evidence fall into three categories. The first are the reports of Dr Byron Rigby, a psychiatrist,[3] who has been consulting you as a psychiatrist and providing you with some psychological treatment during your incarceration. The next are the reports of Mr Peter Handley,[4] as well as his oral evidence. The third category is the report of Mr Patrick Newton dated 14 July 2022. Mr Newton's report considered the earlier reports and culminated in a risk assessment and opinion.
[3]See reports dated 1 October 2020, 4 December 2020, 2 December 2021 and 20 March 2022
[4]Reports dated 10 December 2020, 5 December 2021, 10 December 2021.
82I have taken all of the psychological material into account on your plea. I have also had regard to the summaries of psychological evidence and treatment quoted in the sentences of His Honour Judge Taft of this court on the 2012 and 2014 sentences.
83According to Mr Handley, who consulted and treated you over, by my count, 28 one-on-one sessions while you have been on remand, you have engaged very positively with the treatment provided by him while on remand. Mr Handley noted that aspects of this treatment have been made more difficult on account of the frequent sexual assault perpetrated against you while in custody. Mr Handley described you as developing insight into your offending, but acknowledged the history of that insight, which has been noted in previous cases.
84Your treatment from Dr Rigby has unfolded over more than 20 occasions of contact while you have been in custody.
85It is clear that you have demonstrated an extended and committed approach to seeking the professional intervention of both Dr Rigby and Mr Handley.
86I accept that these efforts have been sincere and persistent. The overall picture, however, is so much more complicated than simply referring to your history of committing to engaging in treatment.
87Helpfully, Mr Newton grappled with this complicated relationship between your seeking treatment, apparently making gains in terms of insight, and then reoffending.
88
Mr Newton noted that your early identity was established on a foundation of self-denigration and defilement, through which you hoped to ingratiate yourself to the men who abused you, to gain attention from them, and to connect with them. In this way, it seemed that you developed the need to humiliate yourself in order to form connections with other people. You equate closeness to others with humiliation and pain. It became central to your sexuality, and compulsive.
Mr Newton writes that your need for humiliation and denigration extends beyond the sexual into other risk-taking behaviours in particular your use of illicit drugs. Mr Newton diagnosed a 'borderline personality disorder'.
89In addition, Mr Newton noted that the material you were in possession of indicates that your interest goes however beyond the recapitulation of your own abusive experience, to encompass a more general interest in child abuse material, pointing to 'a more generalised paedophilic interest and arousal'. Mr Newton noted you suffer from an 'other specified paraphilia with mixed paedophilic and masochistic features'.
90Mr Newton noted you present with a number of factors associated with an elevated risk of recidivism to sexual offending. He notes that your offending is underpinned by 'entrenched, multifaceted and diverse sexual deviance'. Mr Newton's opinion is that you fall into the high-risk range; that is, substantially above average relative to other sex offenders undergoing sentence. The most likely scenario, according to Mr Newton, is offending online, with little to suggest that your risk of contact offending would be elevated.
91Mr Newton reports you suffer relatively mild symptoms of depression. He notes the sexual abuse you endure in custody interferes with the therapeutic progress you have otherwise been attempting with Dr Rigby and Mr Hanley.
92Mr Newton commended both continued offence specific treatment and attention to your drug and alcohol rehabilitation, noting your drug and alcohol use elevates your risk of reoffending.
93In short, the psychological material before me indicates that your treatment is being hampered by the abuse you are suffering in custody, that while you have sincerely pursued psychological treatment in relation to your offending and have developed insights about the harmfulness of your conduct, there is an undertow more powerful than the insight you have previously developed at least, and entrenched in the fabric of your personality and harmful desires, that pulls powerfully in the other direction. There is much work to do before your risk will be reduced and the court can have confidence in your ongoing rehabilitation.
94It was submitted on your behalf that unlike some in your circumstances, you do not attempt to minimise or deflect the seriousness of what you have done; and it is to your credit that you have turned and faced both your culpability and your problems and looked at these issues squarely.
Moral culpability
95Turning now to your moral culpability. Your previous offending illuminates your moral culpability for this offence; as Mr Fisher who appeared for the director submitted. If anyone is aware of the harmfulness of sexual abuse of children, it has to be you, both from your own experience, and from the work you engaged in that was described in Judge Taft's sentences. The portrait of your culpability is made very complex by your history of traumatic abuse as a young person. Your counsel invoked the principles of Bugmy, by reference to the profoundly unstable and dangerous existence you were forced to lead as a very young person, and which wove into your character a series of very problematic needs and desires. Your early childhood explains a lot about why you are here, and this disadvantage is undiminished by time, and it will be given full weight in your favour. It also, however, speaks to the need for community protection to which I will return.
Matters in mitigation
Plea of guilty
Turning to the further matters in mitigation. First your plea of guilty.
96Your counsel considered that this was not an early plea though for context I note that the only witness cross-examined at committal was a police witness. Your plea of guilty in this case saved the court and the community the costs both human and financial of running a trial or trials in your case. This is a matter of great significance on your sentence. There is an aspect of remorse that inheres in your plea and a willingness to facilitate the course of justice.
97This factor in mitigation is fortified by the demands of the particular time in which you entered your pleas of guilty. That is, in an era where the consequences of the COVID-19 pandemic have continued to multiply throughout the court system causing significant delay and making the administration of justice in Victoria intensely difficult. Trial waiting times continue to contract and you are one of those who have assisted that process. This again is a matter of significance in your sentence.
Delay
98Delay, it was submitted in your case, is relevant in both of the ways contemplated by authority on the subject.[5] It has revealed a lengthy process of your attempt at rehabilitation, and it also has a punitive aspect. You have been on remand during that whole period of uncertainty, and this is punitive, and I take it into account.
[5]See R v Merrett, Piggott and Ferrari (2007) VR 392
Rehabilitation
99Given the considered conclusions of Mr Newton, and given your reoffending after doing two sentences for similar offending already, and reoffending while on bail after the first searches, I am driven to arrive at an assessment of your risk of reoffending as being somewhat bleak. Perhaps softening this position to some degree is the work you have done while you been in custody, which I accept was sincere work, and which shows you are willing on a day in day out basis to do the work you need to do.
100You have some support in the community, your sister and your business partners and you have purposeful work available to you in the community.
101
The fabric of your character has been so wrought by your early childhood experiences as not easy for you to change things from here, but you are at least capable of facing the right direction. I refer for example to the letter of
Ms Kylie Doyle of the Callanish program who writes of your role as a peer educator while in custody. You have diligently it would seem, participated in whatever courses have been offered to you when in custody. This shows you are prepared to accept that kind of assistance when available to you.
102You will also need to grapple with the parallel issue of your drug abuse, which, as the expert reports show, is not unconnected to your other problems, but with which you need to deal if you are to stay out of trouble.
103In the end Mr Graham, the value of insight is that it prevents further offending because you know the harm that you are doing to yourself and to others. Treatment is not an end in and of itself.
Hardship in custody
104The time you have been on remand has been one of the most onerous times for Victorian prisoners in history, as prisons go in and out of lockdown and conditions are calibrated and made harsher, in response to the COVID-19 health crisis, which, as I deliver this sentence in the middle of Melbourne winter, is again offering big challenges to hospitals and to prisons in particular.
105Moreover, you have been subject to sexual violence in gaol in a way that has the potential to compound your existing difficulties, and I take these matters into account.
Verdins limb 5
106On your plea it was submitted that your psychiatric and medical presentation could mean your incarceration weighs more heavily upon you than upon a person in normal health, that is, that limb five of the case of Verdins[6] is engaged. Dr Rigby makes various diagnoses, they are set out in paragraphs 1 and 2 of his report bearing the date of September 2020, and I take this additional burden into account on your sentence.
[6] R v Verdins - [2007] VSCA 62
Parole sentence
107Your counsel always conceded that your case must be dealt with by way of a head sentence with a non-parole period, and that is the sentence that I am about to impose.
Willingness to assist authorities
108On your plea it was submitted that a willingness to assist the authorities should be counted in your favour, in that you made an offer to assist police investigator person who may have been featured in some of the communications revealed on the seized devices. The offer was not taken up and no assistance was ever actually given by you. It is a factor in your favour that you make this offer. I give it some, but not great weight, in the overall scheme of this sentence.
Totality
109I must apply the principle of totality and I must resolve the tension between that principle with my obligations pursuant to the serious sexual offender provisions,[7] and I am noting that a disproportionate sentence was not urged by the prosecution.
[7]Serious Offenders Act 2018 sub section 6D and E
Current sentencing landscape
110I have considered other cases in this sentencing landscape, no case is particularly like yours, but I have taken into account other cases both of this and higher courts in considering your sentence.
Purposes of sentence
General deterrence
111Turning now to the purposes of sentence. Firstly, general deterrence. Authority tells me that general deterrence is to be a paramount consideration in sentencing for child pornography offenders. This sentence will reflect that need.
Community protection
112The possession of child pornography material creates a market for the continued corruption and exploitation of children, I will refer in a moment to the particular requirement for the community protection in relation to Charges 1, 5 and 6 on this sentence.
113
I have already referred to the consequences of childhood deprivation and abuse in mitigation, and as the Court of Appeal has recently restated in the case of
DPP v Hum[8], an inability to control offending behaviour may also increase the importance of community protection.
114Further, this sentence must punish you for what it did. Moreover, I regard that there is a very significant role for specific deterrence in your case. Judge Taft's sentence failed to deter you. Expert treatment failed to prevent you from reoffending. The numbers, that is the length of this sentence now have to do their work. Mr Graham, if you continue to offend in this way the numbers will continue to rise and you will continue to spend more and more of your life incarcerated.
[8] Director of Public Prosecutions v Hum (a pseudonym) [2022] VSCA 57
Serious offender provisions
115The 'serious offender' provisions of the Act are intended to have more than a formal effect and on Charges 1, 5 and 6 you fall to be sentenced as a serious sexual offender, and I must sentence on these charges on the basis that the principal purpose of the sentences is the protection of the community, and they are presumed to cumulate unless I order otherwise.
Consideration
116It has not been easy to balance the competing factors in sentence hearing this case, there are a number of features of this sentence which have factors pulling sharply in opposite directions. The resulting sentence is as follows.
Disposition
117On Charge one, bestiality, you are convicted and sentenced to four months' imprisonment.
118On Charge two, trafficking in a drug dependence, you are convicted and sentenced to eight months' imprisonment.
119On Charge three, a rolled up charge of failing to comply with reporting obligations, you are convicted and sentenced to seven months' imprisonment.
120On Charge four, possession of a drug of dependence, you are convicted and sentenced to one month imprisonment.
121On Charge five, possession of child abuse material, you are convicted and sentenced to three years and ten months' imprisonment and (this will be the base sentence).
122On Charge six, possession of child abuse material, you are convicted and sentenced to 12 months' imprisonment.
123On the related Summary Offence of committing an indictable offence while on bail you are convicted and fined a total of $400.
124I make the following orders for cumulation.
125
One month of the sentence on Charge 1, three months of the sentence on
Charge 2, three months on the sentence on Charge 3, and seven months of the sentence on Charge 6, will be served cumulatively upon each other and upon the sentence on Charge 5, resulting in a total effective sentence of five years' imprisonment.
126I fix a non-parole period of three years and four months which you must serve before becoming eligible for parole.
Presentence detention
127
I declare that pursuant to s18 of the Sentencing Act you have already served
909 days by way of pre-sentence detention, to be reckoned as already served under this sentence.
Section 6AAA
128Pursuant to s6AAA of the Sentencing Act I declare had you been sentenced after pleading not guilty and being found guilty by a jury, I would have imposed a sentence of six years and seven months with a non-parole period of four years and four months.
SORA application
129The prosecution applies for a third order for registration of you as a sex offender and I make that order. I have accepted that there is a symbolic role for making of such an order in that it restates and renews your understanding of your obligations
Disposal, forfeiture
130I make the orders for forfeiture of cash found at the scene and disposal of the storage devices and drugs as sought.
131Mr Graham I am now obliged to really tell you that I am making another order for a sex offender registration for you and it's for the period of life. You now have experience of complying with your orders and not complying with your orders and you have received now a sentence for not complying with your orders.
132I am going to ask through your lawyers that your understanding of that registration is renewed on this occasion and you can just imagine Mr Graham, that in future, this moment when I am reading the sentence to you and asking your lawyers to reconfirm your understanding of that, might be referred to if you ever got in trouble for breaching the orders again.
133So, it's a serious thing and I'm just renewing your understanding and your recommitment to having to serve those obligations in future. Mr Smallwood, might I call on you or your instructor to remind Mr Graham about the consequences of breaching those orders and the content of those orders going forward.
134MR SMALLWOOD: Yes, indeed Your Honour, I undertake to do so.
135HER HONOUR: Thank you. Mr Fisher is there anything formal that I've missed?
136MR FISHER: No, there's not, thank you Your Honour.
137HER HONOUR: All right. Mr Smallwood.
138MR SMALLWOOD: Just one matter, Your Honour.
139HER HONOUR: Yes.
140MR SMALLWOOD: The serious offender status falls to be noted in the orders to be made.
141HER HONOUR: Did I not say that?
142MR SMALLWOOD: In relation to Charges 1, 5 and 6, Your Honour referred to the Serious Offenders provisions during the course of Your Honour's sentencing remarks.
143
HER HONOUR: Yes. I meant to make, yes, formal mention I think at s6F required me to enter into the records of the court. Yes, the fact that you were being sentenced as a serious offender on those charges. I'm grateful for that
Mr Smallwood.
144MR SMALLWOOD: As the court pleases.
145HER HONOUR: Thank you both counsel for your assistance in this case. And I will adjourn until tomorrow at 10.30. Thank you.
146COUNSEL: If Your Honour pleases.
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