Director of Public Prosecutions v Hays (a pseudonym)
[2024] VCC 1533
•1 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRUNO HAYS (A Pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 September 2024 |
| DATE OF SENTENCE: | 1 October 2024 |
| CASE MAY BE CITED AS: | DPP v Hays (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1533 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Charges of using a carriage service to cause child abuse material to be transmitted, causing a child to engage in sexual activity in presence, using a carriage service to access child abuse material and possessing or controlling child abuse material using a carriage service – not accepted that risk of sexual re-offending is low – high moral culpability – early plea of guilty – some assistance given to authorities – delay – good prospects of rehabilitation – totality – sex offender reporting obligations for life.
Legislation Cited: Crimes Act 1914; Sentencing Act 1991.
Cases Cited:Hurt v R and Delzotto v R [2024] HCA 8; Trinh v R [2024] VSCA 61; CDPP v KMD [2015] VSCA 255; Worboyes v R [2021] VSCA 169; Tones v R [2017] VSCA 118; R v Verdins (2007) 16 VR 269; R v Cardwell [2021] QCA 112; Curle v R [2024] NSWCCA 117; DPP v Smith(a pseudonym) [2024] VCC 1094.
Sentence:Total effective sentence of five years’ imprisonment with a non-parole period of three years’ and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion | Office of Public Prosecutions |
| For the Offender | Mr T. Brown | HBH Legal |
HIS HONOUR:
Introduction
1Bruno Hays[1], I will sentence you to a total effective sentence of five years' imprisonment and will fix a non-parole period of three years and three months' imprisonment.
[1] A Pseudonym.
2You pleaded guilty to a charge of using a carriage service to cause child abuse material to be transmitted, a charge of causing a child to engage in sexual activity in your presence, a charge of using a carriage service to access child abuse material and a charge of possessing or controlling child abuse material using a carriage service. In addition, you admit three other offences which I take into account when sentencing you on three of the charges.
3The circumstances of your offending are described in the ‘prosecution opening for plea’ which is Exhibit A.
Circumstances
4In August and September 2021, you were 48 and 49. Since 13 September 2020 you had conducted a long-distance relationship with Edna Torres[2], aged 26. Edna lives in an apartment in Pasig[3] in the Philippines with her daughter, Adeline[4]. Edna has two younger sisters, Mollie[5], aged 15, and Toni[6], aged 10 or 11. Edna’s mother is Mallory Sellers[7].
[2] A Pseudonym.
[3] A Pseudonym.
[4] A Pseudonym.
[5] A Pseudonym.
[6] A Pseudonym.
[7] A Pseudonym.
5On 8 and 17 August 2021, using a carriage service, you caused child abuse images of Mollie to be transmitted to yourself. On 8 August, Mollie sent you two images of herself standing naked. On 17 August, Mollie sent you two images of herself, photographed from the neck down and standing naked. She also sent you an image of a vagina of a pubescent girl. The events of these two occasions constitute Charge 1. This is a rolled-up charge which is a charge containing two or more instances of the offence charged.
6On 21 August 2021, Mollie sent you two images of herself. In one, she was naked below the neck and in the other, naked below her stomach. Both images are child abuse material. This constitutes the scheduled Item 3, using a carriage service to access child abuse material. I will take those circumstances into account when sentencing you on Charge 1.
7On 29 August 2021, you sent messages to Mollie requesting to see her sister, Toni, on the toilet. Ultimately, after several messages, you saw Toni with her legs extended towards her head with her underwear pulled down and exposing her vagina. Toni was outside of Australia at the time. This constitutes Charge 2.
8Previously, on 13 August 2021, you sent messages to the Sellers account saying 'Horny', ‘Toni bath' and 'Bath Toni in video'. These constitute the matters in scheduled Item 1 and are taken into account in sentencing you on Charge 2.
9On 2 September 2021 Edna sent you an image of Adeline. Adeline was naked below the waist sitting on the floor with her legs apart. This is child abuse material and constitutes Charge 3. The image affected you sexually for 25 seconds after receiving it, you wrote 'I’m hard'.
10Earlier, on 13 August 2021, you wrote to Edna, saying:
'There is poses that I would like to see with no clothes on Brat.'
11You then sent two images of a clothed Adeline posing with her legs apart. This soliciting of such material forms the basis of the offence in scheduled Item 2 and I will take it into account when sentencing you on Charge 3.
Arrest
12On 10 September 2021, you were arrested. The police seized your iPhone and laptop. You gave the police your personal identification number so they could access your iPhone. Your iPhone and laptop contained 117 images and 29 videos, all depicting child abuse material. You possessed both devices on 10 September 2021. That possession constitutes Charge 4.
13The iPhone contained 13 child abuse images, 10 of which were of Mollie and Toni. The laptop held 104 images and 29 videos. There were 55 images of Mollie and Toni created in December 2020. There were other children shown from infants to pubescent teenagers, with the majority being Asian children. There were some pubescent boys and some showed sexual activity from sexualised poses to penetrative intercourse with adults. Exhibit A contains an Annexure A, which describes the contents of a sample of the videos.
14There are:
(a) four videos of a child aged between about 18 months and two years with her legs apart and showing her vagina in various sexualised poses;
(b) two videos of a naked prepubescent boy masturbating in the presence of another person who is rubbing his chest;
(c) four videos of pubescent females each masturbating herself;
(d) a video of a naked adult female performing fellatio on a naked pubescent male;
(e) a video of an adult male masturbating a prepubescent male; and
(f) two videos of a prepubescent female, naked below the waist with her legs apart. The videos focus on her vagina.
15The police interviewed you. You told them 'Sugar baby' was your girlfriend in the Philippines, Edna. You and she had been in a long-distance relationship since September 2020. She has a daughter, Adeline, aged two. On 2 September 2021, the child is depicted in the image. You denied obtaining sexual gratification from seeing the image. You talked to Edna daily and had sent her a total of between $7,000 and $8,000. Your comment 'I’m hard' did not relate to the child. You denied there were devices at your home containing child abuse material. You admitted deleting child abuse material without knowing the identity of the senders. You denied asking Edna to send images of her daughter. Of the image sent on 2 September, you said:
'It was just - normal, everyday, you know, there was nothing meant by it.'
16You chatted with Mallory Sellers. You thought Toni was 17.
17Analysis of your phone showed three applications including WhatsApp. Information on this application revealed the ages of the children; Mollie, 15, and Toni, 10 or 11. It also contained a conversation between you and Edna on 4 March 2021 where she accused you of pursuing her sisters, Mollie and Toni, and warned you to stop contacting them. However, you continued to contact them by using their mother's Facebook account.
18On 5 August 2021, you chatted with Mollie using her mother's account. This conversation included Mollie saying:
'My mom is here I can’t see' - (meaning show) – 'my body to you'. You replied, 'Watch me cum'.
19Three days later you chatted again with Mollie. The content of the two conversations are set out in paragraphs 16 and 17 of Exhibit A. Between those conversations Mollie sent you images of her standing naked. This is part of Charge 1. The second conversation ends with you saying:
'I miss you. I want to taste you. I'm horny baby.'
20There was another chat with Mollie the next day which resulted in you sending her the equivalent of $113. She used the money to buy a phone.
21On 13 August 2021, you sent messages to Mollie on her mother's account. One said 'Horny' and ' Toni bath', and another, 'Bath Toni in video'. These requests form the basis of scheduled Item 1 and related to Charge 2.
22On 17 August 2021, you chatted again with Mollie. After she told you she was bathing you sent messages: 'Send pics' and 'Ass and puki'. 'Puki' means the vagina. Mollie sent two images of herself from the neck down and naked. A third image depicted the vagina of a pubescent girl. These images form part of Charge 1. You told her not to tell Edna, that you loved her, namely, Mollie, and wished she and you could be together. She asked for money and the next day you sent her the equivalent of $85.82.
23On 21 August 2021, Mollie sent you two naked images of herself taken from below the neck and below her stomach. Since both images constitute child abuse material, they form the basis of scheduled Item 3 which is related to Charge 1. Following a request, you sent her the equivalent of $87.40.
24On 29 August 2021, you chatted again with Mollie. You wanted to see Toni in the toilet. In a two-minute video one can see Toni with her legs extended towards her head and her underwear pulled down and exposing her vagina. This constitutes Charge 2. Shortly afterwards you chat with Mollie and following her request for money you send her the equivalent of $74.00. Overall, there were five transfers of money to Mollie totalling $457.84.
25Exhibit A includes the relevant material found on your devices into categories. In relation to Edna, there are these conversations.
26On 13 August 2021, you wrote expressing a wish to see Adeline naked. You then sent two images of Adeline clothed and posing with her legs apart. You asked Edna to photograph her daughter unclothed. This forms the basis of scheduled Item 3 which is related to Charge 3.
27On 2 September 2021, Edna sent you a photograph of Adeline naked below the waist and sitting on the floor with her legs apart. This is child abuse material and constitutes Charge 3. Twenty-five seconds after receiving this photograph you replied, 'I’m hard'.
28Following your arrest, you were bailed and there is no pre-sentence detention.
Victim impact statements
29There are no victim impact statements.
Criminal history
30In 1991, you appeared twice in the Magistrates’ Court on criminal charges and were fined. Neither the charges nor the sentences have any bearing on my sentencing you on these charges.
31In offences of these kind, previous good character is given less weight in sentencing because these offences are frequently committed by persons of good character.
Personal
32You are now 52. At the time of these offences, you were living with your mother and stepfather in Gooram[8], near Merton[9].
[8]A Pseudonym.
[9]A Pseudonym.
33You were raised in Barjarg[10] which is between Lima South[11] and Mansfield[12]. You have two brothers and two sisters. You are the youngest. You have little or no contact with them. Your father died in 1974 when you were two.
[10]A Pseudonym.
[11]A Pseudonym
[12]A Pseudonym.
34When you were 10, your mother re-married and the family moved to a farm. Your stepfather had three children. In the past, you have had some contact with them. You enjoyed the freedom of growing up on the farm. You regard your stepfather as a father figure.
35You left school at 15 to become a jackaroo. At 21, you changed to shearing. At that age, you obtained a truck driver licence. You have worked as a truck driver.
36In 2000, you were seriously injured in a motor vehicle accident. You suffered injuries to parts of your spine including the neck and one of your shoulders and collar bones. There were surgeries on your spine and shoulder. Your shoulder is still painful. These injuries prevented you from driving for a year.
37In 2013, you and your then partner, Rebecca, bought three trucks and established a trucking business. However, your separation in 2016 led to the collapse of the business, the liquidation of the company operating it and your bankruptcy. These events depressed you and you sought psychological treatment. You returned to the same psychologist briefly in 2022 over these charges.
38In 2020, you or your company bought a truck. You have a contract with D & S Logistics[13] which provides you with full-time trucking work, mainly travelling between Perth and Sydney. The return trip between those cities takes 10 days. You spend two or three days in Perth before returning to Sydney. To an extent, your truck is your home. About $258,000 is owed on the truck. If imprisoned the truck must be sold. Hiring a replacement driver is uneconomic.
[13] A Pseudonym.
39You have had three relationships of note. You were divorced from Abby[14] in 2008. There are two children, now aged 19 and 27. You retain contact with the younger child only. He lives in Perth and suffers from serious mental health issues due to the prospect of you being imprisoned.
[14]A Pseudonym.
40Your relationship with Rebecca lasted about four years, ending in 2016.
41Between 2016 and 2017 you were in a relationship with Berta[15]. There is a child, Cecilia[16], now aged seven. Despite Cecilia living with her mother in Merton, you have no contact with her.
[15]A Pseudonym.
[16]A Pseudonym
42You have had two internet relationships, the last with Edna. You have not met her face-to-face but communicate by text messages and video conferencing. This relationship lasted for about a year and ended with you being charged with these offences.
43Owing to the age and health of your mother and stepfather, it is possible one or other, or both, will not see you outside of prison. This is a source of distress for you and them. In addition, they rely on you to perform physical tasks about their property.
44It is distressing to know you think about suicide. These thoughts led you to consult a psychologist in Mansfield on about four occasions. Given the long delays in your case, this is a significant factor in mitigation.
Psychologist
45Simon Kennedy is a clinical and forensic psychologist of considerable experience. At the request of your solicitors, he interviewed you on 27 February 2023.
46Dr Kennedy described your personality style as relatively introverted. From the perspective of work, you are mainly alone but you have contact with others. He believes your personality is related to you having online relationships.
47Using a particular test, Dr Kennedy assessed your intellectual and general cognitive functioning as average.
48Dr Kennedy examined you using a psychological instrument called the 'Personality Assessment Inventory'. It showed you tended towards social detachment, suspicion, irritability, depression and impulsiveness. You gave some thought to suicide. You were introverted and were likely to have difficulty with long-term relationships.
49Dr Kennedy used another psychological instrument called 'The Risk of Sexual Violence Protocol' (RSVP). It rated the risk of sexual violence into five categories: low, low-medium, moderate, moderate-high and high. After briefly summarising the findings under four headings, Dr Kennedy considered your risk of sexual violence as low. He did not administer any actuarial tests such as Static-99.
50The fact of these charges has reduced your tendency to involve yourself in any relationship, including a relationship over the internet.
51Dr Kennedy gave oral evidence. He did not assume you were guilty of these charges and did not use an actuarial tool to assess your risk of re-offending. If he assumed your guilt on these charges, then he tentatively placed your risk as higher than low, between the medium-low and the medium-high categories. However, he was unclear whether the victims were strangers to you or not. The answer to that factor is material and would alter the assessment of your risk. He conceded a re-examination of you might change aspects of the various results including the results of the RSVP.
52Ultimately, Dr Kennedy conceded his report should not be relied upon in its current form for sentencing. In terms of reliable opinion, it should not be taken into account. For reliability, there must be a second assessment for it is inappropriate to give an 'off-the-cuff' assessment. The ultimate risk evaluation needs to be looked at very carefully.
53Although your counsel tended to disown Dr Kennedy’s report in light of his oral evidence, there are aspects of which are useful. His report contained useful information about your background. He did not diagnose you as suffering from any recognised psychological disorder, including an adjustment disorder. What I do not accept is your risk of sexual re-offending is low. I would not hold Dr Kennedy to his 'off-the-cuff' assessment of your risk given during his oral evidence.
54Your psychometric evaluation pointed to stress, elevated ideas of suicide, likely related to these charges. Because of your personality, you are impulsive.
References
Harrell
55Elnora Harrell[17] is your mother. She describes the events of your life, commenting: 'So his life has been a battle'. In March 2023, she noted your stepfather was 86 and feeble and she was 80. They would like you to help with their farm as they cannot.
[17] A Pseudonym.
56She says you are hardworking, obliging to others, and a good person.
Case
57Sal Case[18] is a director of at least two significant corporations. He met you more than 10 years ago through his former partner who is your sister.
[18] A Pseudonym.
58Owing to your status as a discharged bankrupt, you could not obtain a loan to buy a truck. Mr Case arranged a loan for you.
59In April 2023 you told Mr Case of these charges. He noted you were extremely apprehensive and concerned. He described you as down to earth, reticent, unpretentious, trusting and naïve.
60He believes if you are imprisoned for more than a year, the truck will be sold and you may not obtain finance to buy another. It is unclear why 12 months is important. He attached a photograph of your truck to his reference.
Conrad
61Joseph Conrad[19] is a fleet allocator for D & S Logistics. He says you have been contracted with D & S since October 2021. You work from the yard of one of their biggest customers. You work full time, primarily on the run from Sydney to Perth and return. He describes you in glowing terms, ending his brief reference with: 'I know when I have Bruno on the job, I can set and forget because our freight is in safe hands'.
[19] A Pseudonym.
Discussion
Mandatory sentencing
62The existence of a mandatory minimum term of imprisonment on the offence in Charge 2 focuses attention on that offence. Certain sexual offences committed after 23 June 2020 are subject to mandatory minimum terms of imprisonment. The offence in Charge 2 is such an offence[20]. Subject to two exceptions, it attracts a minimum sentence of five years' imprisonment. The first exception allows a reduction in the minimum sentence of up to 25 per cent where there is a plea of guilty. The second exception allows up to a further 25 per cent reduction for an offender's co-operation with the law enforcement authorities.
[20] S 16AAA of the Crimes Act 1914.
63The offence in Charge 2 is created by s 272.9 of the Criminal Code, which provides:
(a) A person commits an offence if:
(i)the person engages in sexual activity (other than sexual intercourse) with another person (the child); and
(ii)the child is under 16; and
(iii)the sexual activity is engaged in outside Australia.
64The dictionary defines the expression 'engage in sexual activity' as: 'Without limiting when a person engages in sexual activity, a person is taken to engage in sexual activityif the person is in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.
65Excluding ‘sexual intercourse’, sexual activity is any activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or the bodily actions or functions (whether or not that activity involves physical contact between people)'.
66As can be seen, sexual activity may or may not involve physical contact. The expression covers a wide variety of actions in physical or non-physical circumstances.
67In Hurt v R and Delzotto v R[21], the High Court considered the operation of s 16AAB of the Criminal Code which is a companion provision to s 16AAA. These propositions emerge from the two joint judgments:
(a) the prescribed minimum sentence is a yardstick against which a case is assessed. If a conviction is appropriate then the starting point is the minimum term with that minimum reserved for the offence in the least worse possible cases. The non-custodial dispositions are unavailable. Since s 16AAA requires a conviction, in theory, a disposition under s 19B of the Crimes Act 1914 could apply. But given the maximum penalty for the offence, the existence of the minimum term and the language of s 19B, I cannot imagine a set of circumstances for this offence where it would apply;
(b) to reduce a sentence of imprisonment below the minimum requires the existence of an exception. There are two such exceptions. Absent these exceptions, an offender cannot be sentenced below the minimum term[22];
(c) one can sentence under s 16AAA by determining the prima facie sentence using the minimum as a yardstick before considering the applicability of the discounts in the exceptions[23]. In Trinh v The King, there is a helpful paragraph in the judgment of Taylor JA on this sentencing process[24].
(d) the court rejected the approach submitted by the appellants, that is Hurt and Delzotto. Once convicted, a court determines the person is to be sentenced to imprisonment and the length of the term resulting from synthesising all the relevant factors (excluding the minimum term). If the resulting term is less than the minimum, then it is raised to the minimum. At which point, if applicable, the exceptions operate[25]; and
(e) both joint judgments refer to the Minister's second reading speech to the amending Bill[26]:
'During that speech, the Attorney-General remarked that the government was 'fed up with lenient sentencing practices that fail to protect the community from child sex offenders.'’
[21] [2024] HCA 8.
[22] Trinh v R [2024] VSCA 61 at [44].
[23] At [104].
[24] [2024] VSCA 61 at [44].
[25] At [44] per Gaegler CJ and Jagot J.
[26] At [92].
68In your case, Mr Hays, the gravity of the offence in Charge 2 is informed by the circumstances of the Schedule 1 item. How one uses an item like the Schedule 1 item was discussed in the case of the CDPP v KMD[27], where the court quoted, with approval, a passage from another judgment:
'Although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for various offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence'.
[27] [2015] VSCA 255 at [84].
69This is the proper sentencing approach to the application of the matters of which you have admitted your guilt under s 16BA.
70The offence in the Schedule 1 item was a prelude to the offending in Charge 2, demonstrating your wish. To a limited extent it shows your course of criminal conduct. From the perspective of specific deterrence and the community's expectation of punishment for the offence in schedule Item 1 results in an intensification of the sentence to be imposed on Charge 2. The same considerations apply to the other scheduled items.
Deterrence
71The nature of your offending places general and specific deterrence at the forefront of sentencing considerations. Deterring you and others from committing these or similar offences is of paramount importance. The maximum penalties for the offences are an indication of the seriousness with which Parliament views the use of carriage services to offend in this way.
72I do not know how you were detected. Exhibit A merely says as a result of information received from an overseas authority, the police obtained a search warrant to search your home[28]. Using the internet does give you anonymity which makes detection hard. These are offences committed electronically and almost invariably in private out of the sight of others. The difficulty in detecting these offences emphasises the need for general deterrence, being the need to impose penalties which will deter other like-minded persons from committing these offences.
[28] At [5].
Nature and circumstances of the offences
73The offending in the first three charges occurred while you drove interstate. They occurred during the restrictions imposed by the pandemic. Those long trips left you socially isolated. You entered a relationship with Edna which you call 'make believe'. However one describes the relationship, your attentions focused on her daughter and sisters.
74The offending occurred over a short period, between 8 August and 10 September 2021. You alone were the audience of the images. There was no wider distribution of the child abuse material. You received no monies for the material but you paid Edna and her sisters monies to obtain it.
75With Charge 2, the 'sexual activity' is that of 10- or 11-year-old Toni exposing her vagina to you. She was in the Philippines while you were in your truck at Eildon[29] in South Australia. The definition of 'sexual activity' in the Criminal Code is broad but does not include sexual intercourse. The Code defines the words 'sexual intercourse' broadly. You used Mollie, a child herself, to make Toni available for your offending. You overcame Mollie’s reluctance. You viewed and copied the acts of Toni for further use by you.
[29] A Pseudonym.
76Schedule Item 1 occurred 16 days before the offence in Charge 2 was committed in that you asked Mollie for child abuse material of Toni before committing that offence. Coupled with the circumstances in schedule Item 1, this is not an offence within the least serious category of this offence.
77Because you knew Edna, Adeline, Mollie and Toni, you made no attempt to hide your identity. The question of sophistication does not arise. I daresay you gave little thought to the wrongfulness of your actions, which is a reason for the strict penalties. To remind people like you of the possible penalty if they use the internet for these purposes.
78Adeline, Mollie and Toni are children from a third world country. You exploited them for your sexual gratification. Your blameworthiness for the offending is high.
Maximum penalties
79For the offences in Charges 1, 3 and 4, the maximum penalty for each is 15 years' imprisonment. For the offence in Charge 2, the maximum penalty is 20 years' imprisonment.
80Of the offences contained in the four charges, the offence in Charge 2 is listed in s 16AAA of the Crimes Act 1914 (Cth). That section requires the imposition of a minimum sentence of five years' imprisonment. However, s 16AAC(2) permits the reduction of the minimum period by up to 50 per cent, being the combination of two reductions, each of 25 per cent. The exceptions are pleading guilty and co-operation with the law enforcement agencies in their investigation.
Guilty pleas
81On 20 September 2022, you were committed for trial. Only the informant gave evidence at the committal hearing, whose examination dealt with the issue of engaging in the sexual activity in Charge 2. You pleaded not guilty at that hearing and, on 14 October 2022, you indicated your intention to plead guilty to these charges. You were arraigned on these charges on 24 November 2022. A plea hearing was set on 25 May 2023 but was adjourned to await the judgment in R v Hurt and R v Delzotto.
82An issue arose during the plea hearing as to my jurisdiction to determine the first three charges. Each alleged offending in another State. To answer the objection, with your consent, on 23 September 2024, a fresh indictment was filed in this court and you pleaded guilty to the charges in that indictment. It is arguable you pleaded guilty at the first opportunity. However, realistically, the earlier timeline is appropriate for determining the timing of the entry of your guilty pleas. I will treat them as early pleas, made emphatically. Oddly, you do not rely upon them as evidence of your remorse, and in fact I am not invited to find you are remorseful.
83As I said, in October 2022, you indicated your intention to plead guilty. This occurred during the crisis created by the pandemic for the criminal justice system. Criminal jury trials were in abeyance. The benefit of guilty pleas in these circumstances was first acknowledged in the case of Worboyes v R[30]. The judgment was delivered the year before. The crisis in the criminal justice system was still present in October 2022. Above the usual benefits of guilty pleas, the need for additional amelioration of penalty was needed in October 2022 and must be reflected in my sentences.
[30] [2021] VSCA 169.
Assistance to authorities
84You gave the police the personal identification number for your iPhone voluntarily. Although the police possessed a search warrant which could have compelled you to do so, you were unaware of that fact. This iPhone had the Moneygram application. Presumably, this allowed the police to discover payments from your bank account. The police did not ask you for the password to your laptop. Their experts accessed its hard drive without your help.
85In your interview with the police you admitted certain things and were helpful with other matters. You were disingenuous about the ages of Mollie and Toni. The denial of sexual gratification from the image of Adeline and receiving normal photographs of her were false. You falsely denied the photographs of Adeline depicting her as naked or sexualised and the comment 'I’m hard' referred to another matter.
86Given the information discovered on your devices, what you told the police in the interview supported their discoveries. Your falsehoods did not impede their investigations. You were of some assistance to the relevant authorities.
Delay
87In Tones v R, the court said[31]:
'It is well established that significant delay between the time that an offender is interviewed by the police and the time that charges are laid, and the delay between the laying of charges and trial, can be a powerful mitigating factor. There are two limbs to delay. The first limb concerns unfairness to the offender, in the sense that the relevant charge, or the prospect of such a charge, was 'hanging over' the accused's head and caused him or her anxiety ('unfairness limb'). The second limb concerns whether during the period of the delay the offender made progress towards rehabilitation and whether there are good prospects of ongoing rehabilitation ('rehabilitation limb')'.
[31] [2017] VSCA 118 at [36].
88You were charged on 10 September 2021. Additional charges were laid in October 2021 and in March 2022. There were a series of offers and counter-offers to resolve the charges against you. There was a committal hearing. Only the informant was examined. In October 2022 you indicated an intention to plead guilty and were arraigned in November 2022. The proceeding was listed for a plea in May 2023 but was adjourned awaiting the decision of the High Court in Hurt and Delzotto v R. That judgment was delivered on 13 March 2024. The plea hearing occurred on 5 September 2024.
89None of the delay is attributable to you or your lawyers, three years is a long time to wait for a determination. The unfairness limb is engaged.
90You have not re-offended since being charged. You have not formed any other internet relationships. These matters engage the second limb.
Rehabilitation
91In light of his oral evidence, Dr Kennedy's assessment of you being a low risk of re-offending is not relied upon by you. Dr Kennedy did not re-assess your risk. What I would take from his evidence is you are higher than a low risk but how much higher one cannot find.
92Essentially, you have no criminal history and nothing else is pending. You have enjoyed good character for many years. In this kind of offending, courts place less weight on previous good character.
93For a person who has never been imprisoned, not even on remand, my sentences of imprisonment will act as a very powerful disincentive to re-offending in this or a similar manner. The fact of these charges has deterred you from forming any further internet relationship. More importantly, you have not re-offended since committing these offences.
94You retain the support of your family. Although you will lose your truck, you are an experienced and capable truck driver. Obtaining such employment following your release should not be difficult.
95Despite the lack of remorse your prospects of rehabilitation are good.
Verdins
96You do not rely upon any of the limbs or principles stated in R v Verdins[32].
[32] (2007) 16 VR 269.
Comparable cases
97The Director's counsel referred to and summarised three appellate decisions[33]. Your counsel referred to my sentencing remarks in DPP v Smith(a pseudonym)[34].
[33] R v Cardwell [2021] QCA 112; Trinh v R [2024] VSCA 61; and Curle v R [2024] NSWCCA 117.
[34] [2024] VCC 1094.
Totality
98When dealing with more than one charge, the principle of totality requires a review of the overall effect of the individual sentences to arrive at a total sentence which is proportionate to the total criminality constituted by the conduct the subject of the separate charges[35]. What is proportionate must include the new ingredient of a mandatory minimum term of imprisonment for Charge 2.
[35] CDPPv KMD [2015] VSCA 255 at [89]. See also CDPP v Beattie [2017] NSWCCA 301.
99The four charges encompass offending over a short period and, in effect, a course of criminal conduct, mainly involving three children. Charge 1 deals with Mollie, Charge 2 with Toni, Charge 3 with Adeline, and Charge 4 with images and videos, some of which involve Mollie and Toni. Each charge involves different victims, although Charge 4 does include Mollie and Toni. Having different victims requires some degree of accumulation of the sentences. Applying the principle requires some concurrency of sentences but does not justify complete concurrency.
Sentence
100On Charge 1, a charge of using a carriage service to cause child abuse material to be transmitted, I sentence you to 15 months' imprisonment.
101On Charge 2, a charge of causing a child to engage in sexual activity in your presence, I sentence you to three and a half years' imprisonment.
102On Charge 3, a charge of using a carriage service to access child abuse material, I sentence you to 12 months' imprisonment.
103On Charge 4, a charge of possessing or controlling child abuse material obtained using a carriage service, I sentence you to 12 months' imprisonment.
104The sentence on Charge 2 starts today. The sentence on Charge 1 starts nine months before the end of the sentence on Charge 2. The sentence on Charge 3 starts six months before the end of the sentence on Charge 1. The sentence on Charge 4 starts six months before the end of the sentence on Charge 3.
105The total effective sentence is five years' imprisonment. I will fix a non-parole period of three years and three months' imprisonment.
Sex Offenders Registration Act
106The four charges comprise a Class 1 offence and three Class 2 offences under the Sex Offenders Registration Act 2004. As such, you must comply with the reporting obligations under that Act for the rest of your life.
S 6AAA
107As I raised with counsel this morning before I started reading these sentencing remarks, because these are Commonwealth offences, it has not been my practice to make declarations under s 6AAA of the Sentencing Act 1991, which is a Victorian Act, but I realise practices vary. The existence of a mandatory minimum term, and subject to the exception regarding a plea of guilty, in my view makes a s 6AAA inappropriate in relation to these particular charges, and I will not make a declaration in that regard, notwithstanding the authority from the Court of Appeal referred to by Ms Champion.
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