Director of Public Prosecutions v Huerta (a pseudonym)
[2024] VCC 1511
•30 September 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| FELIX HUERTA (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 May 2024 |
DATE OF SENTENCE: | 30 September 2024 |
CASE MAY BE CITED AS: | DPP v Huerta (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1511 |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence upon plea of guilty.
Catchwords: Using a carriage service to groom another person to make it easier to
procure a person under 16 years of age - possess or control material
being child abuse material obtained or accessed using a carriage service
- fail to comply with the reporting obligations under the Sex Offenders
Registration Act 2004 (Vic) - distributing and accessing child abuse
material - breach of a recognisance release order - some evidence of
remorse - relevant criminal history – early plea of guilty - no history of
psychiatric admissions and long-term medication or medical history –
guarded prospects of rehabilitation.
Legislation Cited: Sex Offenders Registration Act 2004 (Vic); Crimes Act 1914 (Cth).
Cases Cited: DPP v Garside [2016] VSCA 74; DPP v Thomas [2016] VSCA 237;
De Lorenzo v DPP (Cth) [2017] VSCA 270; Hurt v The King; Delzotto v
The King [2024] HCA 8; Trinh v The King [2024] VSCA 61; ABC (a
pseudonym) v R [2023] VSCA 280; R v Stillar [2023] QCA 31; R v Taylor
[2022] NSWCCA 256; Glasheen v R [2022] NSWCCA 191.
Sentence: Total global effective sentence of 5 years imprisonment with a non-parole
period of 3 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms H. Baxter | Mr S. Dhanapala |
For the Accused | Mr A. Paull |
HIS HONOUR:
1Felix Huerta[1], you pleaded guilty to four charges of using a carriage service to groom another person to make it easier to procure a person under 16 years of age under s474.27AA of the Criminal Code (Cth), as well as a charge of possess or control material being child abuse material obtained or accessed using a carriage service contrary to s474.22A1 of the Criminal Code (Cth).
[1] A pseudonym.
2You also pleaded guilty to another charge of failing to comply with the reporting obligations under s46(1A) of the Sex Offenders Registration Act 2004 (Vic).
3You also seek that two additional charges of distributing and accessing child abuse material contrary to s474.22(1) of the Crimes Act (Cth), which you admit, be taken into account for the relevant charged conduct, Charge 6, pursuant to s16VABA of the Crimes Act 1914 (Cth).
4You also fall to be sentenced for a breach of recognisance release order imposed by this court on August 2021 and I will come to those details in a moment.
5The circumstances of your offending are set out in a written prosecution opening, which was an agreed set of facts and was exhibited during the plea. I will summarise the circumstances.
6Between 13 February 2023 and 2 March 2023, you exchanged messages with 'one.samantha' via Chatiw and Snap applications, which enable private and text image communication between users. This conversation involved a covert police operative purporting to be this person Samantha, an adult single mother with an eight-year-old daughter named Ava. Your username was 'AnyNursingMums'.
7On 13 February 2023, you sent the following messages:
'Hi, did you get arousal in your breastfed'
'Do you have an issue with nudity at home when your kids are around you'
8Samantha responded. You then asked her how old her daughter was, to which she responded 'Eight'. You then sent the following messages in which you asked:
'If I was your partner would it bother you if she saw me naked?'
'What if I got hard seeing both of you naked'
'Do you think she might look at my cock much' [in reference to her daughter]
'What if she asked to feel it'
'Do you think she might let me feel her'
9You provided the username 'andrew444' on Snapchat and between 16 and
17 February 2023, you sent the following messages which included:That she hasn't seen a man with an erection, there's a good chance I'd be hard in the shower with you'
10And when asked how you felt about being caught, you responded:
'Well I'm very "open minded" and kinda liked it, but I didn't tell me ex that'
11You and Samantha re-engaged on Chatiw to talk about 'open minded stuff'. These conversations were more sexualised. Your username on Chatiw was 'openmindedforfem', which you provided to Samantha on Snapchat.
12On 17 February 2023, you sent messages which included reference to thoughts about Ava:
'If I would get hard seeing her naked'
'Do you look at her pussy much when she's naked'
'Do you think she might be curious to feel my cock''
'Would you let her explore my body if she asked'
'I know Ava is still young but if anything has to happen between her and I, she could tell the wrong person and then I'm shit creek'
13When asked what 'exploring' the offender, you said:
'Mostly her playing with my cock'
'Would you be turned on watching Ava and I play with each other'; and
'Would it be a bad idea showing Ava a pic of my cock'
14On 18 February 2023, you discussed with Samantha that you had previously been to gaol. You told her you had trust issues as a result. You suggested that if you talked on the phone or video and maybe if you saw Ava as well, your trust would be 'solid'.
15You and Samantha proceeded to have sexualised conversation including sending an explicit picture of your penis to Samantha between 27-28 February 2023. You sent other messages which included: (1), in which you resent the picture of your erect penis. 'I have a video of me coming too'. Samantha asks what he was thinking about at the time and you responded that you were thinking about Ava. This was in reference to Ava walking around naked at home when it is hot.
16You also sent:
'Is it bad I thought about Ava while wanking and coming'
'So you're going to show Ava my cock pic?'
'You ask her to send a voice clip of her and Ava, so you can hear what Ava thinks about your cock'
'Would you take a pic of her undie drawer'
17During the 1 and 2 March 2023, you sent messages which included:
'Would you take a pic of your legs and Ava's legs when you are cuddling on the couch. I would love to see the pic of Ava's knickers so I can save it'
18You told Samantha that you were asking for specific pictures because the last time the undercover cop did not tell you her pretend daughter's name and would not video that with you. You became suspicious that Samantha was an undercover police officer and ended the conversation. You told her:
'If cops show up at my door I know why'
19Charge 3 is a rolled-up charge comprising of conduct on two separate single days, namely 16 March 2023 and 11 May 2023. This conduct occurred between you and two different covert operatives who adopted a false persona for these purposes.
20On 16 March messages were exchanged between Sam and you via Chatiw. This conversation involved a covert operative purporting to be Sam, an adult single mother with a seven-year-old daughter named Indiana. Your username on Chatiw was 'justme39'.
21On 16 March you sent messages which included 'how old is your daughter', to which Sam replied 'seven'.
'Does she walk around the house naked or in undies'
'If I was your partner would it bother you if she saw me naked'
'What if I got hard from looking at her naked'
'I guess she's gonna find out what a hard cock looks like anyway'
22Sam responds, 'how would you explain that you are hard lol', to which you respond 'I'll point to her pussy'.
23On 11 May 2023, messages are exchanged between Sienna and you via Chatiw and Kik. Kik enables private text communication between users. This conversation involved a covert operative purporting to be Sienna, an adult single mother with a six-year-old daughter named Harper. Your username on Chatiw was 'preferredcurvyBBW'.
24At the start of the conversation it is confirmed that Sienna's daughter is six years old. You then sent messages which included:
'If I was your partner would it bother if she saw me naked'
'What if I told you I'd get hard seeing her naked'
'Would you let me wank in front of her'
'What about fucking in front of her'
'I'm so hard talking about this'
'I'd love to shower with her'
'I'd get turned on if I undress her'
Do you think she'd know if I was trying to feel her pussy while taking her undies off, if my hand went down the front part'
25You and Sienna then moved the conversation onto Kik. You sent the following messages:
'Do you think it should be legal for adults and children to engage in sexual acts as long as learnt about consent?'
26Sienna responds that you really have to teach them right. You respond:
'Only if they don't tell anyone'
27When asked what you would do to Harper you answered:
'Hopefully lick her'
28Charge 4, between 28 March 2023 and 4 May 2023 messages were exchanged between 'onesharon' and you via Chatiw and Facebook Messenger. Messenger enables private text communication between users. This conversation involved a covert operative purporting to be Sharon, an adult single mother with an 11-year-old daughter named Lily. Your username on Chatiw was 'cashformums'. Sharon informed you that she had an
11-year-old girl.29Between 28 and 30 March 2023, you then sent messages which included:
'Does she walk around the house naked or in undies'
30When asked what your name meant, you responded:
'Offering to help mums that are struggling to pay rent, bill or foot'.
31'If I was your partner would it bother you if she saw me naked'
32When asked if you liked nude children, you said:
'Yes, is that bad'
33That you think the age of consent should be about seven to eight years.
'I've seen videos of children and they seem to enjoy it' [referring to sexual videos of children']
'If I was your partner what would you do if you caught me and your daughter in the shower'
34And when asked, what would be happening in the shower, you wrote:
'She might be feeling my cock'
'If I had sex with your daughter I'd be very gentle and I'd make sure her first time is memorable'
'I've been attracted to young girls for over 10 years'
35On 20 April 2023, you sent messages which included:
'If I was your partner would you have an issue with Lily seeing me naked. I'm sure she's at that age where she's starting to get curious about boys and sex'
36You go on to say that you like being naked and that maybe you could persuade the both of them to be less embarrassed about being naked with you, and that you are sure Lily would become comfortable around you and things might happen naturally.
37On 23 May 2023, you told Sharon she seemed nice and genuine. You then continued to send messages which included:
'So Lily has never seen a cock?'
'She is definitely want to have a good look at my cock, I think'
38In response to telling you that Lily doesn't see her dad much, you responded that you would be a good father figure.
39On 4 May 2023 you then provided your full name to Sharon to speak to you on Facebook Messenger. You then had a brief conversation on Messenger. Sharon informed you she is based in Sydney and you said you are closer to Melbourne. During the conversation you asked Sharon to come to Melbourne and that you should meet over the holidays and do something fun.
40On 29 March in relation to Charge 5, messages were exchanged between Bianca and you via Chatiw and Keybase. Keybase enables private text communication between users. This conversation involved a covert operative purporting to be Bianca, an adult single mother of a six-year-old daughter named Maddy. Your username on Chatiw was 'singleforfem'.
41On 29 March 2023, at the start of the conversation it is confirmed that Bianca's daughter is six years old. You ask if her daughter has got any pairs of knickers. You then go on to say that you will wank with them and come in them. You then proceed to say the following during the conversation:
'Does she walk around the house naked or in undies'
'If I was your partner would it bother you if she saw me naked'
'What if I got hard seeing her naked'
'Would you let me wank in front of her'
'I'm getting hard now thinking about it'
42Bianca asks you if this is really what you want to do and you tell her 'yes, but it's hard to find a mum that's into it'.
43You and Bianca discuss communicating on an alternative and you selected Keybase and you sent the following during that conversation:
'I'd still get hard seeing you and Maddy in knickers'
'It would be interesting to see how she responds to seeing my cock'
'Would you let her play with it'
44A search warrant was executed on 31 May 2023 at your residence. You provided passwords to devices and social media applications pursuant to s3LA order. Your digital devices were subsequently found to contain child abuse material. The material was categorised in accordance with the Interpol baseline categorisation system as depicted in the table, which is included in the prosecution opening document at paragraph 49. The material is listed there in four categories with one being the most serious and four being not illegal or child abuse material.
45In total you were in possession of 1,791 child abuse material images and 55 child abuse material video files categorised as follows:
46Category 1
471,468 image files and 51 video files.
48Category 2
49323 image files and four video files.
50Examples of category 1 images and video contained in your devices are given at paragraph 52 of the opening. Example of category 2 images and video contained in your devices are given at paragraph 53 of the opening.
51Those matters are the foundation of Charge 6.
52You made admissions that between approximately 13 February 2023 and 31 May 2023 you had distributed and accessed child abuse material frequently by sharing and viewing it on peer-to-peer platforms over that period. Relevant admissions include you stating that the child abuse material on your devices were obtained from peer to platforms, that you additionally shared the material obtained on these platforms with other users, and that you would view the material approximately two to three times a week.
53This is the schedule conduct, items 1 and 2, of distributing and accessing child abuse material pursuant to s474.22(1) taken into account on sentencing pursuant to s16BA of the Crimes Act 1914 (Cth).
54On 31 May 2023, you participated in an interview and made the following admissions and statements. You had online identities on Chatiw and Chatib and commenced chats earlier in 2023 around February. Those were sexually explicit chats including many of the matters summarised above.
55You explained how you would contact people and what platforms you would use, including that you would use Chatiw daily. Your SD card was inside your laptop which contained images and videos of child abuse material. You confirmed that the child abuse material located on the devices came from file sharing peer to peer platforms such as Mega.
56Your other devices contained child abuse material and were 'just images, just children like from around newborn age to they're maybe 10-12'. That your age preference is pre-teen between six to 10 years of age. When asked what you intended to do with the images, you stated you would share them with other shares, because they would share back other images back.
57To transfer videos you had to use Keybase and that is the one you used. You admitted you looked at child abuse material for sexual gratification and you would look at child abuse material two, three times a week, and you would share and get images sent back from other people, just random people around the world. When asked how old you believed the children in the child abuse material files were, you responded 'probably from a couple of months to up to 10 or 11 years old'.
58You described what the child abuse material depicted, including children masturbating, the involvement of adults, and a parent performing oral sex on a child.
59You admitted you felt aroused and masturbated to the images. You said you had destroyed child abuse material in the past but then, when your life was in a rut, 'where I just didn't give a shit about life', you got back into it. You said 'I knew it was wrong, I knew that the children in those images and videos were victims', and you would 'do it without thinking about the repercussions'. 'I know I did get help in the past but I need more, I need significant help'. When shown specific chats you made admissions to sending the transmissions.
60Subject to your reporting obligations, you were required to report internet instant messages chat room usernames and any other username or identity, and between 13 February 2023 and 31 May 2023, you failed to report nine usernames. These are listed in the prosecution opening at paragraph 11.f
61Charge 2 is in relation to sex offender registration, failing to comply with reporting obligations between 13 February 2023 and 31 May 2023.
62On 25 August 2021 you were sentenced as a registered sex offender and placed on the sex offender registry for life. This arose in the context of being sentenced for child sexual offences, which I shall explain in a moment.
63On 8 September 2021, you had participated in an initial registered sex offender interview, and in that interview a notice of reporting obligations was explained to you, to which you signed an undertaking to comply with your reporting obligations.
64You also fall to be sentenced for a breach of recognisance release order imposed by this court in August 2021, as I have said. The six charges on Indictment No.CR-23-01887 relate to the fresh offending just outlined.
65As I have said, you also fall to be sentenced for a breach of a recognisance release order imposed by this court on 25 August 2021. On that day, upon your plea of guilty, I sentenced you in relation to four child sexual offences. You were sentenced to 24 months' imprisonment and pursuant to s21B of the Crimes Act (Cth) you were released after serving 12 months on recognisance release order. As a condition you were ordered to be of good behaviour upon your release from custody for a period of three years.
66You were released from custody on 24 August 2022, and therefore you were subject to the good behaviour condition up to 23 August 2025. By committing the fresh offending, you failed to comply with the conditions of the order. The breach of the recognisance release order was listed alongside the indictment matters and I will deal with that in due course during this sentence.
67It is however, relevant to recite some of the details of that prior conviction in order to place your current situation in its full context and to highlight the striking similarity of this fresh offending to those prior offences.
68In August 2021 you were convicted of using a carriage to transmit child pornography material, s474.19(1) of the Code; a charge of possess or control child abuse material obtained or accessed using a carriage service, s474.22A(1) of the Code; and two charges of use a carriage service to transmit child abuse material, s474.22(1) of the Code. Each of these four charges carried maximum penalties of 15 years' imprisonment.
69You were 37 years of age when you came before the court on that occasion. You had no prior convictions at that stage and the offences were committed between late August 2019 and October 2019.
70At that time you were living with your parents and using internet applications, live chat rooms under screenname 'lovesinglemums'. You had initiated text‑based conversations with ones who purported to be a single mother, but was in fact a police officer. The text conversation was remarkably similar to that in which you engaged in the fresh offending.
71Later, you had a phone conversation with a purported single mother about your personal life, how you became interested in children preferably between aged four to 10, and your online habits. You described in graphic detail sex acts you hoped to perform with her child.
72In September 2019 you had used Skype to have a text‑based conversation with an unidentified user, where the same sexualised themes in relation to children was conducted.
73When you were arrested in April 2020, you provided email and usernames to the police and surrendered your telephone, hard disc drives, computers, USB devices, DVDs. When analysed, several of these contained child abuse material: you had 304 images and 34 videos; 21 images and 20 videos were in category 4 and two images were in category 5. In addition to child abuse material images, you had in excess of 30,000 files of non-illegal nudist photos and videos focused on female children.
74When you were interviewed, you said your sexual preference was for minors aged between five to 10 years of age; that you had exchanged videos with other men for more than two years; and that you traded images and videos up to four/five years before.
75At the time of the sentence, I described the conversations to which the charges related as graphic and abhorrent, not isolated, but taking place over a period of months, and disclosing a desire for sexual contact with young children. I sentenced you on the basis that community protection and appropriate punishment, as well as general and specific deterrence and denunciation were warranted.
76I expressed the view that internet-based chats were repellent and contumacious and allowed effectively anonymous, gratuitous, extreme and provocative communication which enabled socially and sexually dysfunctional individuals to engage in sexual gratification of corrupt moral quality. But at the same time, I wrote that it was, in my view, of comparative low-grade criminality and culpability.
77I distinguished it from the possession and transmission of material which amounted to child pornography. General deterrence, I noted, should aim to discourage people from using the internet and various applications in a way which turns it into a wasteland of depravity, which distorts the social fabric of our community. Three years later that effect may unfortunately already be a reality.
78I found some evidence of remorse in your plea at the time. I noted that you appeared to lack a full insight into the exploitative nature of child abuse material, although you appeared to understand that sexual contact with minors is wrong.
79In Ms Lechner's psychological report dated 30 March 2021, her opinion was that your risk of reoffending if you did not engage in treatment was moderate/low. At the time of her assessment, you were engaged in psychotherapy with a psychologist to treat symptoms of a paedophilic disorder.
80Dr Treeby, in a report of 23 December 2020, found that your psychological difficulties do not meet the threshold of a formalised mental health diagnosis.
81Based on the reports I received, I found that if you received ongoing treatment your prospects of rehabilitation were reasonable. Suzanna Copp, a psychologist, wrote a brief note dated 23 April 2021, confirming that you had participated in psychological therapy between 3 June 2020 and April 2021. Her report however lacked specificity as to how that therapy addressed your paedophilic disorder.
82Ms Lechner referred to you engaging in psychotherapy every two months, after initially seeing her fortnightly. In her view, more frequent sessions were advisable and as part of my order I included specific mention of psychological assessment and treatment and rehabilitation by way of the sex offender treatment programs.
83In terms of what took place between that sentence, your reclusion, your release after 12 months on 24 August 2022 during the life of the recognisance order, I received a report dated 30 August 2023. Whilst in prison you were found to be eligible to undertake the low/moderate Better Lives program. You attended 24 sessions equalling 72 hours of participation, resulting in completion of that program.
84In addition, you completed individual sexual self-regulation program undertaking three 1-hour sessions delivered by Forensic Intervention Services.
85On 29 July 2022, a referral was made to the Central Intake Unit to determine your suitability for further offence specific treatment. This was one month before your release.
86In September 2022, shortly after your release in August, an intervention pathway was agreed involving a Forensic Intervention Services clinician, which outlined treatment recommendations. You were deemed a moderate risk of sexual recidivism and the recommendations included no unsupervised contact with children under 16, active case management, support from a forensically trained psychologist to address relationships and intimacy, sexual fantasy management and consent, and case management in consultation with Forensic Intervention Services to manage the risk of reoffending.
87Upon release you reengaged with psychologist Suzanna Copp. You attended five sessions between release and later remand with Ms Copp. Ms Copp told Correctional Services that for purposes of their report, that 'you were seemingly doing well'. Your compliance with the order was also seemingly positive, accruing only one unacceptable absence from supervision. You were referred to the employment pathway broker and you successfully obtained casual seasonal employment over the 2022/23 Christmas period.
88That contract ended and no further progress was made. You were attending appointments every three weeks by the time of your arrest.
89Your living situation was that you were residing with your mother, where you slept in the living room. You were not motivated to change that situation, according to the Correctional report.
90The report includes the notation that during appointments you reported continued use of online platforms, including chat rooms to talk to women to discuss family and relationship issues, including conflict situations. You expressed a desire to travel interstate to visit a woman who had children you had met on an online site. You could not leave the State without permission and the request was not approved. Perhaps this decision was partly motivated by the fact that during the offending dealt with in August 2021, one feature had been your stated willingness to fly to Sydney, where the mother to whom you were talking, said she lived with her young daughter.
91You were arrested on 31 May 2023 on these fresh offending. I recite this history because it is highly relevant to my sentencing exercise. You present now before the court with very relevant prior convictions, the nature and circumstances of which are practically a carbon copy of the fresh offences.
92Your method for communication, the conversation which you develop, literally repeat the patterns, subjects, questions, and responses which were present in the past offending.
93Your possession of child abuse material involves a worsening of the scale of the material obtained or accessed. The previous offending were charges relating to using a carriage service to transmit child abuse material. They were similarly committed by online chat and messaging. Although the four charges here 1, 3, 4 and 5 are of using a carriage service to groom another person to make it easier to procure a child believed to be under 16 years of age, in their factual circumstances they are remarkably similar.
94The prior offending, including the possess child abuse material, are child sexual abuse offences pursuant to s3(1) of the Crimes Act and are deemed to be second Commonwealth child sex offences as listed in table 16AAB of the Act, and carry a minimum head sentence of at least four years, subject to s16AAC. I will deal with this issue of a mandatory sentence and the sentence for breach of a recognisance order in a moment.
95The possession and control of child abuse material obtained or accessed using a carriage service, Charge 6, relates to possession on the day of your arrest, that you admitted that you had accumulated the collection over a period of months, which places this offence in its proper context. This material came from file sharing peer to peer, peer platforms, and were used by you for sexual gratification. You would also share them with others around the world.
96You told police you knew it was wrong, that the children in the videos and images were victims, but later you struggled, noted Ms Lechner, to explain why viewing images of and talking about child abuse is wrong, lacking a full understanding that it exploits children and provides an evil market.
97Those children depicted in the material in your possession are real children, abused in the most repulsive and vile manner for the gratification of men. Such repugnant images circulate in a depraved market which grows and is easily accessible. They are real victims with untold damage done to them. I said as much in my sentencing remarks in 2021, and I repeat it now.
98General deterrence is a paramount principle to be applied in this type of offending. In your case, given your prior conviction and the circumstances of your offending, specific deterrence is also a primary sentencing focus. The courts sentence must denounce your conduct and send a clear message to others wishing to engage in this exploitation, by just punishment, but given your circumstances clearly the sentence must endeavour to act as a deterrent specifically aimed at you, and community correction.
99The legislator's response to this type of offence is significant in terms of how the applicable penalty has progressed, reflecting in its current 15 year maximum, that the internet can give access to ever greater depravity and corruption. This material is readily available but difficult to detect, which demonstrates the importance of general deterrence, given the international nature of the problem and the prevalence of the material.
100Those who access this market must be made responsible for that access and their mitigatory factors must be limited in weight. So for such possession and control of child abuse material, Charge 6, I will accord your personal mitigatory factors less weight than would otherwise be the case.
101In the August 2021 sentence, in imposing sentencing I drew a distinction between the possession offence and the conduct which gave rise to the transmission, contrary to ss474.19(1) and 474.22(1). That is, the conversation in which you took part. I viewed the culpability and criminal responsibility for those later offences, as of a different dimension from the possession of actual child abuse material. I did so out of caution.[2] I viewed it as somewhat lower grade criminality, as I was of the view that moral and criminal culpability for such offending was difficult to assess, and while being abhorrent and graphic in content, it remained factually conversational in character using a medium which encourages such communication without a sense of self-restraint or shame. It is gratuitous, extremely provocative and often anonymous.
[2] See 34 and 35 of the sentence.
102The punishment was imposed cognisant of these limitations. However, your contumacious reoffending in these fresh offences not only remains repulsive in their content, and a startling repetition of the modus operandi of your earlier offending, but occurs after a period of punishment and reclusion for very similar offending, indeed almost identical offending, and after the intervention of education, therapy, and efforts to assist you not to reoffend. This conduct is deserving of denunciation and specific deterrence, as well as community protection and appropriate punishment.
103I take your plea into account. Pursuant to s16A(2) of the Crimes Act (Cth) I have regard to its timing and to its utilitarian value. It is accepted that you entered your plea in a timely fashion, at the time of a committal mention in November 2023, upon a straight hand‑up brief procedure. Your first plea hearing was adjourned in order to await the decision of the High Court in Hurt and Delzotto.
104Your plea proceeded in May 2024. The sentence has been delayed by me having to deal with a serious illness and its treatment. I will take this further delay into account.
105Part of the consequences of delay is in relation to fairness to the offender. The delay I have just mentioned relates to the period post-plea from 14 May to today, being 30 September. I accept that has left you waiting with uncertainty as to your sentence and with its attendant anxiety. I have taken this into account.
106The second aspect of delay is one related to prospects of rehabilitation by way of rehabilitative efforts having been undertaken. Although not occurring during period of delay, rather during reclusion, and upon your release. I also take them into account irrespective of their success or otherwise. You undertook these programs and I will accord appropriate credit for those efforts, despite their apparent failure.
107Your plea has avoided the cost and delay of a trial and brought finality to the proceedings, having spared the witnesses from witnesses and demonstrating your acceptance of responsibility and a willingness to facilitate the course of justice.
108Another concomitant matter to your plea was your cooperation with investigators, your admissions in the interview were important, and particularly were by virtue of some admissions made by you, you were then charged with two schedule offences which without your admissions would have remained unknown. This is a matter from which flows amelioration of your sentence.
109Although investigators had the required other material concerning your offending behaviour through the undercover operative, you did provide passwords to your devices.
110Both your plea and admissions are properly to be considered indicative of some remorse. Remorse is a difficult sentiment to evaluate. It may be best viewed as a progression of awareness and insight, often difficult to distinguish from regret at the predicament which criminal conduct leaves in its wake. However, I do assign some measure of remorse both to your plea and your cooperation with investigators and take it into account.
111I take into account your personal circumstances. It was acknowledged by the defence that the vast majority of the material produced in support of the plea was material which this court had received before in 2021. There has been little change in your circumstances and it was submitted the material remained relevant to this sentence. It was conceded by the defence that a term of imprisonment is appropriate. It was also acknowledged by defence that the mandatory minimum sentences be imposed on the relevant subsequent offences for the purposes of s16AAB of the Crimes Act.
112The contravention of the recognisance order imposed by me was admitted as having been committed by the fresh offending during the operative period of that recognisance. Further, it was submitted by the defence, that in the circumstances the most appropriate approach to the contravention is that the order be revoked and that you should be ordered to serve the balance of the sentence not served at the time of your release, pursuant to the provisions of s20A(5)(c)(i).
113You are now 41 years of age. You were raised in Geelong. Your childhood was unremarkable and you were not subjected to physical or sexual abuse. You are one of four children to your parents, who separated when you were 13. Both of your parents re-partnered and in your teens and 20s you lived with your father and stepmother. Both of your parents are now retired.
114You attended school till Year 11 and completed a certificate in work education at the Gordon TAFE.
115You were bullied and harassed at school primary due to your condition of craniosynostosis, of which you were born. This required surgery at two months of age and resulted in a misshapen skull and jagged teeth. This has impacted on your poor body image and confidence socially.
116You found employment with Woolworths and you worked there on a part time capacity for 19 years as a shelf stacker and trolley collector. That employment ceased upon disclosure of the prior offending however, I do take this stable and long work record into account to your credit.
117You are currently unemployed and in receipt of a Disability Support Pension for a mild intellectual disability.
118You have had two intimate relationships of short duration initiated by online contact and you have no children.
119You have a good relationship with your parents including prison visits and regular phone contact. You also contact friends when you can access your phone calls whilst incarcerated. You have no substance use issues.
120In primary school you were medicated with Ritalin and were diagnosed with ADD when 13. I will come to more recent assessments in a moment.
121You have never been admitted to any psychiatric facility and you are not currently medicated.
122Since your remand you have been mostly at the Hopkins Correctional Centre.
123Two issues arise from your remand. The plea for your prior offending was adjourned on one occasion to clarify your diagnosis of craniosynostosis, and its likely impact on your incarceration. That is, to what extent reclusion may or could expose you to physical injury related to that condition. No CT scan was done and a clinical associate professor wrote to the court on that occasion that he could not express an opinion as to the extent of your vulnerability by assault or contact or injury. Despite no evidence before me then, in my sentence I indicated I would refer to this aspect in my order, to alert Correctional Services and to enable the proper management of any such vulnerability. As I did then, I accept that your own perception of your vulnerability, whether real or imagined, may impact on your imprisonment and upon your burden of detention, and I have taken this aspect into account, noting that on this occasion also I did not receive any evidence as to this aspect and the particular vulnerability in custody.
124The second matter which was raised during the plea and that was an allegation that you had been the victim of ongoing physical and sexual assaults by a cellmate. I was told a brief of evidence had been submitted for authorisation and that it was likely that those matters would be prosecuted.
125I was also provided with a statement made by you about those allegations dated 27 August 2023. The statement alleges sexual offences as well as assaults, on one occasion described as being 'hit in the ribs and head'. I was informed that the alleged offender had not yet been charged but was moved to another prison.
126This matter was said to highlight your vulnerability however on the basis of the allegations contained in your letter, this matter appears to me to be unrelated to your particular physical conditions in particular, rather than to being unfortunately exposed to abuse by a fellow prisoner. At this stage, it is not reasonable for me to draw any conclusions as to these allegations, which will impact on your sentence except to repeat that I take into account that your reclusion may be experienced by you as more burdensome because of your awareness of your condition, and also by the nature of the offending for which you are imprisoned.
127Before returning to the applicable sentencing considerations, I will refer to the reports which the court received. These were the reports received when you appeared before me in 2021 and the defence was content to rely on their content as currently relevant.
128Dr Matt Treeby in his neuropsychological report dated 23 December 2020 summarised your psychosocial, educational and occupational history. He noted both your parents remain supportive and described your situation during your last decade, when you lived with your stepbrother at age 30, then moved next door to a home of a married couple, then in a one-bedroom unit for a number of years, and finally returning to your father's home from 2017.
129Around 32 years of age you had a relationship with a woman who had mental health issues and required psychiatric admission during the five-month relationship.
130Your next relationship ended when the woman was informed of your offending. As of the date of the report, you told Mr Treeby you had resumed that relationship somewhat tentatively. You told Mr Treeby how the old offending came about and that you knew what you did was wrong but 'it was hard to switch off'.
131He summarised the developmental medical and psychiatric history. He refers to medical files which indicated that when you were four years of age you were diagnosed with a mild intellectual disability. Mr Treeby comments that the basis on which that diagnosis was made is not entirely clear. He also notes that at age 23 you were diagnosed with attention deficit disorder by way of inattention only. Following a psychiatric review, you were prescribed Ritalin for three or so years in primary school. There is no history of psychiatric admissions and long-term medication or any medical history of relevance.
132Mr Treeby noted that counselling received over six sessions between June 2020 and August 2020 from Ms Copp, as well as the kind of treatment in which you participated.
133He administered malingering tests and found that your neuropsychological profile was valid and reliable. Your premorbid and intellectual function was broadly estimated to fall within the low/average to average range. Your intellectual capacity is in the low/average to average range.
134Other measures tested by Mr Treeby, like verbal skills, perceptual skills, executive function, literary function, all fell between low/average and average levels with self-reported psychological distress being moderately elevated to mild.
135Mr Treeby expressed that in his opinion, cognitive factors cannot account or help explain the offending. Non-cognitive matters such as sexual interest, coping strategies, and interpersonal issues appeared more relevant to any explanation.
136Contrary to childhood records there is no evidence that you have long standing learning difficulties and Mr Treeby's assessment rules out an intellectual disability.
137Low mood, anxiety and stress did not meet the threshold for a formalised mental health diagnosis. You would however benefit from counselling with a forensic and clinical psychologist, wrote Mr Treeby, as well as benefitting from referral into the specialised offender assessment treatment service for an appraisal of risk, recidivism, and your acknowledged paedophilic sexual interest.
138The assessments suggested you have the cognitive capacity to benefit from specialised, evidence-based intervention. You have your parents' support and Mr Treeby opined these factors combined should have favourably enhanced your progress and prospects of rehabilitation. Sadly, this proved not to be the case and you now find yourself before the court, having undergone a significant measure of intervention but ultimately you found that it, in your own words, 'hard to switch off' from the offending.
139A letter from Dr Paul dated 12 October 2020 from South Barton Medical relied on by Dr Treeby was also tendered, and a report dated March 2021 by Carla Lechner, clinical psychologist, was also relied upon. She described you as a fairly isolated man, given to believe you had an intellectual disability. She wrote 'he does not in fact evidence cognitive compromise' then referring to Mr Treeby's report. She opined that you currently fulfil the criteria for paedophilic disorder, but you recognise your interests are inappropriate and deviant. Having engaged in psychological support at the time of this report, Ms Lechner opined you presented with a moderate/low risk likely to decrease with ongoing support and its consequences.
140Once again, I note that given the fresh offending it appears clearly enough that your disorder was again able to find active expression, despite the kind of treatment which Ms Lechner posited as likely to decrease a risk of reoffending.
141Such a prognosis or evaluation is always qualified as being based on the effect of certain remedial processes undertaken, like psychological therapy, but these are not a panacea and can fail. They appear to have failed here to have sufficiently given you the skills to control your deviant urges or enable you to manage your disorder. To my mind, this recurrence calls not only for general deterrence to emphasise to others who may be like-minded to offend in this fashion, but specific deterrence specifically aimed at deterring you from further like offending.
142In this context then, community protection in my view is particularly significant. The court must denounce such conduct in no uncertain terms. Ms Lechner reported similarly to Dr Treeby as to your personal history and that you exhibited no psychotic processes. She reported upon your offending behaviours similarly and noted you understood why sexual contact with minors is wrong but had trouble explaining why viewing images and talking about child abuse is wrong, lacking in understanding as to the exploitation involved of real children.
143Ms Lechner acknowledged that there is no specific measure to provide actuarially and dynamically based protocols for assessing the risk of recidivism in offenders like you, but referring to relevant research literature, she outlined the factors contributing to increased risk. Sexual deviance is one especially significant marker and poor interpersonal competence and history of criminal behaviour, rank with other factors here present.
144Some factors that are applicable to you, like time spent online accessing deviant pornography and diversity of content to access, have not been empirically tested yet. Ms Lechner based her risk assessment on the factors present and for these opine that your risk of re-engaging in such behaviour would be 'moderate/low if you were not engaged with treatment'.
145You appeared, she wrote, well-motivated to rectify your interests. She thought your risk was moving to the low range on the basis of your reported positive response to therapy. This trajectory has not been fulfilled in your case. She strongly advised an increase in therapy sessions to ensure good maintenance of this progress. She found you presented with symptoms of paedophilic disorder, and you expressed regret and shame to her.
146It was also noted by Ms Lechner that arrest, interview and court attendance had been salutary and had deterrence impact. It would appear any salutary benefit was evanescent and deterrent impact fleeting.
147Ms Lechner wrote you were likely to find a period of immediate incarceration difficult to manage in light of your immature social skills, and that you had expressed fear of being assaulted in light of the vulnerability of your skull.
148Susan Copp provided a short letter dated 23 April 2021, in which she noted your attendance at 11 sessions of therapy between June 2020 and April 2021. She described you as an active participant, practising therapeutic strategies to good effect. She had provided education in order to create and apply preventative strategies and anxiety management by way of cognitive and behavioural interventions.
149You re-engaged with therapy by way of Mr Holt from April to July 2021, upon your release, on five occasions at your own expense before your remand on this fresh offending.
150During the course of the plea I was informed that you have focused on getting your life into order. You were committed to these sessions of hypnotherapy and counselling and in a letter dated 9 May 2024, Mr Holt noted your found improvements within yourself through this process. You had been assessed by Forensicare and been placed on a waiting list for a problem behaviour program, but had not been able to access it. I take these efforts, as I have said, into account.
151You found seasonal work with the help of an employment agency to which you were linked by way of Correctional Supervisions however, employment ceased in February 2023. The new agent at the employment agency appeared to you to not be as helpful as the previous one. You became despondent and isolated. You then returned to chat rooms.
152When you were interviewed, you stated you needed significant help. In the interview you gave police information about peer-to-peer platforms used to share child abuse material. By virtue of these admissions, the two scheduled charges were proffered, which without admissions would have remained unknown and your sentence will be reduced by virtue of this cooperation. These admissions, I accept, are also indicative of some remorse.
153It was conceded by the defence that the offending before the court is objectively extremely serious. I have already mentioned the nature of sexually gratifying conversation which you found arousing by way of engaging in fantasy, which however amounted to grooming to facilitate precuring a child to engage in sexual activity with you. Not fantasy or fanciful activity but real activity.
154You operated nine separate usernames which are relevant as revealing your intention to achieve engagement in offending conduct.
155In sentencing you for the Commonwealth offences I have regard to the matters set out in paragraph 1B of the Act. Section 16A2 in particular sets out a non-exhaustive list of factors to be taken into account, as far as they are relevant and known. Section 16A1 and 2K are also relevant as to appropriate severity and adequate punishment requirements.
156Sentencing for the four grooming offences is informed by well-settled principles, which apply to sentencing for online child exploitation offences including procuring and grooming. I refer to general principles because the offence the subject of the first four charges mentioned, commenced on 23 June 2020 and was not in force at the time of the offending, the subject of the breach proceedings.
157There is no intermediate appellant authority which deals with an offence pursuant to s474.27AA however the explanatory memorandum to the amending Act, which introduced the offence, makes clear that it was inserted to address where an adult sender communicates with a person with the intention of making it easier to procure a child, and to complement the existing procurement and grooming offences. This charge is directed to grooming of a third party for those purposes. Online sexual exploitation of children is prevalent, difficult to detect given the internet's anonymity, and an immediate term of imprisonment is ordinarily imposed.
158As much is conceded by the defence to be required. General deterrence must be primary in the sentence and personal mitigatory factors be given less weight than might otherwise be.[3]
[3]DPP v Garside [2016] VSCA 74 at 63; DPP v Thomas [2016] VSCA 237 at 193.
159Special deterrence, denunciation of punishment and community protection must also be important considerations and I apply them in this sentence. I assess the seriousness of your offending as objectively serious. The number, type and length of conversations, their frequency, persistence, the nature of the sexual matters referred to, your intent as revealed in them, are all relevant in this assessment.
160I accept there were not inducements or threats offered, but it is more useful to focus on what you did than what you did not do. The fact you were communicating with an undercover operative is not mitigatory, but it is also true that your victim was not a member of the public. You spoke to five different persons whom you believed to be mothers of young children. The intended victims were as young as six and this pursuant to s162D of the Crimes Act is an aggravating factor for Charges 1, 3 and 5.
161Your communications spanned from 13 February to 4 May 2023. You used encrypted messaging applications. You detailed in clear terms what you would like to do to the children. You were aware these activities were wrong and could expose you to problems if your activities were revealed. The suspicions in relation to Charge 3-5 that police were involved gave rise to an opportunity to reflect and desist, but you did not desist. You committed these offences while subject to a recognisance order and sexual offender registration, having served 12 months' imprisonment, having been released only six months before the similar offending. These factors make your offending objectively grave and they aggravate the grooming offences.
162The principles in sentencing for possession or control of child abuse material are similarly uncontroversial. The factors which determine the offences severity include the number of items involved, the number of children depicted, the length of time the material was possessed, and the nature and content of the material.
163You were found to possess 1,791 images and 55 video files over seven devices, with children as young as two years old depicted. In my view, this is serious offending.
164The seriousness of Charge 6 is increased by the distribution and access offending subject to the schedule offending to be taken into account. I will briefly outline how the schedule offences are to be treated.
165You are not to be punished for the admitted offences which are to be taken into account, and those offences are not to be taken as offences for which you have been convicted.[4]
[4] See s16BA(10).
166The practical effect is that a more severe sentence or a sentence of a more severe type will usually be imposed on the primary offence, here Charge 6, than would have been imposed if dealt with by itself,[5] wherein considering an analogous provision Spiegelman CJ examined how the court does so by giving greater weight to the need for personal deterrence, than the community's entitlement to retribution for serious offences for which no punishment has been imposed. His Honour emphasised that the maximum penalty for the primary offence and the principle of totality limit the extent to which such greater weight may be given.[6]
[5] See Attorney General application under s37 of the Crimes Sentencing Procedure Act 1999
NSWCCA No.1 of 2002.
[6] See De Lorenzo v DPP (Cth) [2017] VSCA 270 at 36.
167The nature and seriousness of the schedule offences is relevant in determining an appropriate sentence for the offence, for which the offender is to be sentenced, by the exercise of instinctive synthesis of all relevant factors. There is no requirement to state or quantify the sentence that may otherwise have been imposed had there been no schedule offences, and I will not do so.
168Returning to Charge 6 then, I noted that the majority of the material is category 1, the remainder category 2, the lowest categories. There was no other evidence as to the sharing of the material to various people, except by your admissions.
169As to the charge which concerns the breach of the recognisance order, the prosecution submitted that given the objective seriousness of the breach of the order committed by way of further offending, almost identical terms, the court should sentence in accordance with s20A(5)(c)(i), that is to revoke the order and order that you be imprisoned for that part of the prison sentence not served, which in this instance is 12 months.
170It was conceded by the defence that this approach to the contravention, applicable here. In my view this is correct and I will tailor the period by way of some concurrency with other terms imposed, to reflect the context in which the breach occurred and in order not to double punish you, where the matters of breach and offending, as here, are inevitably linked.
171I also consider, as I indicated, that your efforts during the currency of the order post-release, should impact upon the period of concurrency and I have taken this aspect into account.
172As to Charge No.2 on the indictment, involving the failure to comply with the reporting obligations under the Sex Offender Registration Act, four usernames were not disclosed by you to police and were utilised to commit this offending. I accept the submission by the prosecution that the only purpose which can be reasonably inferred for the non-disclosure, was to attempt to engage in this offending and remain undetected.
173One matter which is also relevant to the considerations under s16A(2) is your prospects of rehabilitation. In view of the history and circumstances I have outlined, I find your prospects to be guarded, if not poor. In my view, despite the extent of therapy and interventions in the past, your risk of reoffending is high. I accept that the pathway to rehabilitation should not be closed to you and that your particular disorder should be viewed as potentially amenable to management and control, but this is a task undertaken over significant period of time and considerable effort, insight and commitment on your part.
174In the meantime, the need for community protection and deterrence remain paramount and require reclusion with the obvious separation from the opportunities and temptations freedom in the community offers. I must take the objective of rehabilitation into account and I do so. In this context the opportunity to undertake further offence specific programs and other rehabilitative treatments will, I hope, be available to you while in prison and thereafter. I do not, in order to allow for that opportunity, intend to impose a disproportionate sentence and it will be of severity appropriate in all the circumstances, to foster your prospects of rehabilitation as well as community protection.
175Given the prior matters of one charge of using a carriage service to transmit child abuse material and the other charges, these charges are child sexual abuse offences pursuant to s3 of the Crimes Act, Charges 1, 3, 4, 5 and 6 in the indictment here to be dealt with, are deemed to be second Commonwealth child sex offences as listed in the tables to s16AAB of the Act. They carry a minimum head sentence of at least four years subject to s16AAC.
176It was conceded by the defence that this section applies to Charges 1, 3, 4 and 5 and that the minimum sentences of four years are to be imposed under the legislative provisions, unless one or more of the exceptions under s16AAC applies.
177You submitted through counsel that exceptions under sub-section 2A and B apply to you, with an available 50 per cent discount to be applied in recognition of your plea and admissions.
178The prosecution submitted that the plea of guilty and the cooperation by way of admissions must be taken into account in the instinctive synthesis. The prosecution submitted that the minimum of four years applies to the category of least serious offending and that the category of most serious carries a 15-year minimum.
179Given the circumstances of your offending, its seriousness, its frequency, the ages of the children involved, the commission of it soon after you were released from custody and subject to a recognisance order, in my view Charges 1, 3, 4 and 6 do not fall within or are close to the least serious category. I agree with the prosecution's submission that Charge 5 falls within that categorisation so that the exceptions under s16AAC in relation to your plea, and the important admissions which are the genesis of the scheduled offences, will bring the sentence below the mandatory minimum.
180The way in which the provisions for sentencing for mandatory minimum offences is to be approached was addressed by the High Court in Hurt v The King and Delzottov The King [2024] HCA 8. The statutory minimum fixed one end of the sentencing yardstick in the same way that a statutory maximum does at the other end. It sets an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, and therefore increases the appropriate term of imprisonment generally for that offence.
181Sections 16AAC(2) and (3) are statutory mechanisms that allow a court to impose a sentence less than the mandatory minimum where it considers that adequate recognition cannot be given in an offender's plea of guilty or cooperation, without having to go below the minimum sentence. The court held that it is appropriate to first determine a sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the discount.
182This in practical term means engaging in the instinctive synthesis of all relevant factors and then consider separately the factors under s16A(2)(g) and (h), and then determine whether 16AAC mechanism is required to go below the prescribed mandatory minimum sentence, a reduction ordinarily appropriate only where the prime facie sentence determined falls within or close to the least serious circumstances.
183This means in your case as to Charges 1, 3, 4 and 6, which in my view fall above the least serious circumstances, I do not need to impose a sentence below that prescribed as a mandatory minimum sentence.
184In relation to Charge 5, a single date offence, this offence falls towards the least serious circumstances and I can consider and impose a sentence below that prescribed mandatory minimum head sentence, within the limits of the reductions provided in 16AAC(2) and (3).
185I indicate that where the provisions for mandatory sentencing do not apply because the charges are not toward the least serious circumstances, that is 1, 3, 4 and 6, that I have considered the weight to be given to the early plea and your cooperation with police. Notwithstanding the involvement of undercover police, some of the admissions were important to secure your plea to the scheduled offences, which were based on your admissions.
186As to Charge 3, a rolled-up charge, your admissions to the usernames used was important.
187As to Charges 1, 3 and 4, your admissions confirmed what you had reported through your SORA obligations.
188As to Charge 2, while the offence aggravates the grooming offences as having been committed by use of usernames not reported pursuant to the SORA obligations, and conversely the breach of the obligation under SORA are aggravated by the use of the non-reported usernames, to commit grooming offences, I am very conscious to avoid double punishment upon you out of this mutual aggravation. Rather to impose an appropriate and proportionate penalty for Charge 2, the failure to comply with the reporting obligations contrary to provisions of the Sex Offender Registration Act.
189The purpose of that Act is to enable monitoring of behaviour. The failure here, in my view, was intended to avoid that supervision and the usernames were used for purposes of the offending. A small measure of cumulation in relation to that charge is appropriate.
190As to Charge 5, your admissions were valuable and reduce your sentence.
191Charge 6 is aggravated by the schedule offences, as I have indicated above.
192In terms of current sentencing practice, as at the time of the plea I was referred to no comparable cases or authorities which had been decided by appeal courts, after the introduction of the grooming offences or the High Court decision in relation to mandatory sentencing, which in any event is the approach adopted generally by trial and intermediate appellate courts throughout Australia.
193I was provided with some cases which have dealt with mandatory sentencing for child sex offences, apart from Hurt and Delzotto, and they were Trinh v The King [2024] VSCA 61; ABC (a pseudonym) v R [2023] VSCA 280; R v Stillar [2023] QCA 31; and R v Taylor [2022] NSWCCA 256; and Glasheen v R [2022] NSWCCA 191. I have read and considered each one.
194Pursuant to s19(5) of the Crimes Act, there is a presumption that a sentence of imprisonment for a Commonwealth child offence be ordered to be served wholly cumulative upon an uncompleted term of imprisonment for another Commonwealth child sex offence.
195This requirement does not apply if the court is satisfied that imposing the sentence in a different manner would still result in a sentence which is of an appropriate severity in all the circumstances.
196The Prosecution submitted in this case that some degree of cumulation is required given the circumstances of the offending.
197I agree that given the number of victims, the different kind of offending conduct, and the separate instances of offending, some cumulation is warranted. I am firmly of the view and am satisfied that the sentences I will impose are at appropriate severity in the circumstances and whole cumulation is not necessary to achieve all the purposes of sentencing.
198I am in this context mindful of the principle of totality, which is an important aspect to consider and apply in the context of the various offences and the circumstances pertaining to the offending, as well as those pertaining to the offender.
199This important consideration has also relevance in the application of the mandatory minimum provisions and relevant reductions.
200On Charge 1, you are convicted and sentenced to four years' imprisonment. That will be the base sentence.
201On Charge 2, which is the State offence of failing to comply with reporting obligation, you are convicted and sentenced to one year imprisonment.
202On Charge 3, you are convicted and sentenced to four years' imprisonment.
203On Charge 4, you are convicted and sentenced to four years' imprisonment.
204On Charge 5, you are convicted to two and a half years' imprisonment.
205On Charge 6, the possess and control child abuse material charge, you are convicted and sentenced to four years' imprisonment.
206On the charge of contravention of recognisance release order, I find the contravention proven. I order that the recognisance release order be discharged and order that you serve the balance of the sentence not served at the time of release, that is 12 months.
207I order that one month on Charge 2, three months on Charge 3, three months on Charge 4, one month on Charge 5, and three months on Charge 6 be cumulative on the base sentence of Charge 1. On the charge which pertains to the recognisance release order breach, which is 12 months, I have cumulated 1 month.
208That makes a total global sentence of five years' imprisonment.
209I order a non-parole period of three years and three months.
210I order that the State sentence on Charge 2 of one year commences today 30 September 2024.
211I order that the first charge Commonwealth offence of four years begins one month from today, that is on 30 November 2024. The sentence on Charge 3 begins three months thereafter, and when I say thereafter, thereafter 30 November. The sentence on Charge 4 commences six months after that three months has concluded. And then the sentence on Charge 5 commences seven months thereafter. And on Charge 6 commences 10 months thereafter. And then the recognisance contravention commences 11 months thereafter.
212But for your plea, I would have sentenced you to six years with a non-parole period of four years.
213Charges 1, 3-6 on the indictment are class 2 offences within the Sex Offender Registration Act 2004. Upon sentence you will be a registerable offender as defined by the Act, required to comply with various obligations pertaining to reporting for the remainder of your life.
214I declare that you have spent 488 days, excluding today, in custody by way of pre-sentence detention and I will note that number in the court's records.
215There is a forfeiture order and I will sign it.
216I order that the interim suppression order made at the Magistrates’ Court is revoked.
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