Director of Public Prosecutions v Hulsman

[2024] VCC 1466

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00157

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HULSMAN

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2024
DATE OF SENTENCE:	13 September 2024
CASE MAY BE CITED AS:	DPP v Hulsman
MEDIUM NEUTRAL CITATION:	[2024] VCC 1466

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Guilty plea - Commonwealth Criminal Code - using a carriage service to access child abuse material - using a carriage service to transmit and cause to be transmitted child abuse material -  possession of child abuse material obtained or accessed using a carriage service – mandatory minimum head sentence- value of guilty plea - cooperation with police -   complex background – mental health issues – drug issues – repulsive child abuse material - sexual gratification – criminal history – general deterrence - punishment – denunciation - protection of children.

Legislation Cited: Crimes Act 1914 (Cth); Sex Offenders registration Act 2004 (Vic)

Cases Cited:Bugmy v The Queen [2013] HCA 27; Verdins & Ors [2007] VSCA 102; R v Delzotto [2022] NSWCCA 117; Hurt v The Queen [2022] ACTCA 49.

Sentence:  Total effective sentence of six years, non-parole period of 3 years      and 9 months. Sex offenders’ registration order for life.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Addams	Office of Public Prosecutions
For the Accused	Mr S. Cooper	Doogue and George Defence Lawyers

HIS HONOUR:

1Andrew Hulsman, you have pleaded guilty to three offences against the Commonwealth Criminal Code: using a carriage service to access child abuse material, using a carriage service to transmit and cause to be transmitted child abuse material and possession of child abuse material obtained or accessed using a carriage service.  The maximum penalty for each offence is 15 years imprisonment

2You were 50 years old at the time of the offences.  You are now 51 years old.  You have a previous court appearance for the same type of offending, although your prior conviction was not as serious as the offences in this case.  You received a community corrections order in 2021, which you contravened.  When the contravention was dealt with in April of 2023, you were placed on a further community corrections order for two years.  The offending in this case took place between June and August 2023, just a few months after the imposition of the community corrections order.  You were remanded in custody on 22 Aug 2023.  You have not been granted bail.  Therefore, you have been in custody in respect of these charges or 388 days, which will be deducted from the sentence that I impose in this case.

3The facts on which your offences are based are set out in an extensive prosecution summary which I will summarise.

Charge 1

4On 10 June 2023, you participated in a Zoom video meeting with other Zoom users under the username 'Melbourne Aussie'.1

5During the meeting, the host of the meeting broadcast child abuse material (CAM) videos to the other participants via screen sharing.

6The Zoom meeting was recorded by New South Wales police.

7You were present in the meeting for approximately 38 minutes.  During this time, video material classified as Category 1 CAM, was shared by the host of the meeting and thereby accessed by you.  Category 1 material includes, in line with the prosecution annexure A, a real child, prepubescent, perceived to be under the age of 13 years, involved in a sex act, witnessing a sex act or concentrated on the anal or genital region of the child. 

8I do not have any further description of the material that was broadcast during the meeting, but obviously it was depraved material.

9You participated in the Zoom meeting with your video switched on and your AirPods in your ears.  That is the basis for Charge 1 in this case.

Charge 2

10Between May 2023 and August 2023, you communicated with various individuals on the Telegram messenger application with the username 'Melbourne OzVers'.

11A review of the Telegram chats identified twelve chats in which you transmitted child abuse material in the form of video files.  In some of those chats, you received child abuse material videos.

Telegram chat with 'Matthew Henderson'

12The first such chat was a Telegram chat with Matthew Henderson.  Between
21 May 2023 and 27 July 2023, you communicated with user 'Matthew Henderson'.

13On 27 May 2023, you transmitted a Category 1 child abuse material video file, which was a two minute and six second video of a prepubescent female child (approximately seven years old).  The child is lying on her back naked with her hands over head tied to each other.  She is on a bed and there is a dog licking her vulva.  An adult male penetrates the child's mouth with his penis.

14On 28 May 2023, you transmitted a further category 1 video file to Matthew Henderson, user Matthew Henderson.

Telegram chat with 'Aus Btm Pig'

15Between 25 May 2023 and 6 August 2023, you communicated with 'Aus Btm Pig'.  On 28 May 2023, you transmitted a Category 1 video file.

16On 9 July 2023, an exchange took place.  The transcript extracted in the prosecution opening reads as follows: 

There is a reference to the transmission of the file.

Then Aus Btm Pig responded 'Yum'.

You said 'It's my way of being funny, my sense of humour, hopefully putting a smile on your face this Sunday evening - making it through another Melbourne's cold winter day 2023

17The transmitted CAM file was a 2-second video of an infant (3 months old) being orally penetrated by an adult penis. The baby appears to be in distress.

Telegram chat with Pete MC

18Between 24 May 2023 and 20 August 2023, you communicated with 'Pete MC'.

19On 24 May 2023, you sent the message: 'Hi there sexy fucker pedo'.  You then transmitted three category 1 CAM video files. You then sent the message: 'Thinking of you with those three videos above'.  On 27 May 2023, you transmitted a further category 1 CAM video file. On 28 May, you transmitted another category 1 CAM video file.  On 31 May, you transmitted three category 1 CAM video files and a category 2 CAM video file. On 9 July 2023, you transmitted another category 1 CAM video file, which was the same video of an infant being abused and in distress that you had sent to 'Aus Btm Pig' that day.

Telegram chat with '@SmokerPervP'

20Between 27 May 2023 and 25 July 2023, you communicated you communicated with that user.

21On 27 May 2023 the following exchange took place:

You said 'High sexy pedo'.

He said 'Hi Bro'.

You said 'HAIL'. 

22You then transmitted four category 1 video files to that user.  One of the files transferred was the same video relating to the seven-year-old child with the dog licking her vulva and the adult male penetrating her mouth, which you sent to Matthew Henderson.

23On 28 May there was a further transmission of a category 1 video file.  Amongst other things:

'@SmokerPervP' said 'Show me the children'.

You said 'They are all the ones that I've got.  I don't have any, I don't really have that money in my collection at tomorrow'.

24On 12 June 2023 you transmitted five category 1 CAM video files and a category 2 video file to '@SmokerPervP'.

Telegram chat with 'Pervboii …'

25Between 28 May 2023 and 28 August 2023, you communicated with that user.

26On 28 May, the following exchange took place:

You said, 'Hi sexy motherfucker pedo'.

He said, 'hi sir'.

27On 9 July, you transmitted a category 1 video file to him.

28On 12 August you transmitted another category 1 CAM video file, including the title 'Sodomized Hole', and you asked him in the discussion, you said to him:

'You like?!'

29You transmitted a further category 1 video file.

30On 20 August 2023, you transmitted a 44 second video of a female infant being anally penetrated by an adult penis. This was the 'Sodomized Hole' video.

Telegram chat with 'PAUL65AU @pm.me (Telegram Sydney)'

31You transmitted a category 1 CAM file to this user on 9 July, which was the same video of an infant in distress you had sent to 'Aus Btm Pig' and 'Pete MC' that day.

32You communicated with this user between May and July 2023.

Telegram chat with 'Gera Drh'

33You communication with this user was between 9 June 2023 and 11 June 2023.

34On 9 June, you transmitted eight category 1 CAM files, including the same video of the 7-year-old child that you had sent to '@SmokerPervP' and 'Matthew Henderson' on 27 May 2023. You said to him:

'Happy with them?'

He said 'Those videos are so fucking sexy' and 'So much'.

You said 'Where are you located?'

He said 'I live in Mexico City'.

35He transmitted a category 1 video file and a further two category 1 CAM files.  Then there was further discussion in which you said:

'Hell fuck yeah sick as all your pedo videos.

He said 'I can't stop of strocking my pedo coc.  I love it'.

You said 'Hell fuck yeah I will'.

Then you said 'Heil 666'.

He said 'Hail SATAN' et cetera.

36On 11 June 2023, you transmitted a further category 1 CAM file29  including a
1-minute and 42-second video of a prepubescent female being vaginally penetrated by an adult male.

Telegram chat with 'castww'

37You communicated with that user between 10 June and 20 August.

38On 10 June 2023, you wrote to him 'HAIL SATAN' and 'Zero no limits here'. On
12 June 2023, you transmitted two category 1 CAM video files, including a
50-second video of a 12-month-old toddler where an adult male is holding the toddler facing his anus at the camera. The adult uses his index finger to anally penetrate the toddler.

39On 20 August 2023, you transmitted a further category 1 CAM video file.

Telegram chat with 'Topdogoz (NKP & Zoom Room Sydney)'

40Between 9 July and 27 July, you communicated with that user.

41On 9 July you sent a category 1 CAM video file, which was the same video of an infant in distress that has been referred to, that you sent to 'Aus Btm Pig', 'Pete MC' and another user '[email protected] (Telegram Sydney)' .

Telegram chat with 'N N'

42Between 12 August and 20 August 2023, you communicated with user 'N N'.

43The conversation is extracted in the Crown opening, but effectively you transmitted the CAM video file entitled 'Sodomized Hole' and you transmitted another category 1 video file.

44On 20 August, you transmitted three further category 1 CAM video files36 and one of the files transmitted was a 45-second video of a female toddler being vaginally penetrated by an adult penis. I have already described the content of the 'Sodomized Hole' video.

Telegram chat with 'Mitc Gingerwunk95'

45Your communication with this user was between 12 August and 21 August 2023.   

46On 12 August, you transmitted the 'Sodomized Hole' video to him, saying:

Hail 666 Satan:

47You also transmitted another category 1 video file.  You said to him:

'Zero no limits here Evil the better'.

He said, 'Fucking hot'.

48You transmitted a further category 1 video file.

49On 20 August, you transmitted two further files.

Telegram chat with 'D K'

50Between 19 August 2023 and 20 August 2023, you communicated with user 'D K'.

51On 19 August, you transmitted two category 1 CAM videos. One of the videos was entitled 'Sodomized Hole (1)', it was the same video.

52On 20 August 2023, you transmitted two further category 1 CAM videos to him.

Search Warrant

53On 22 August 2023, police executed a search warrant at your residence in Fitzroy and seized the following items:

·1 x Apple iPhone 13 Pro;

·1 x Apple iMac;

·1 x Apple iPad; and

·1 x HP laptop.

You provided police with the PIN codes to those devices, but police did have a warrant in relation to searching those devices. 

Charge 3

54Examination of your devices revealed that you possessed or controlled a total of 575 CAM files (comprised of 573 unique files) across four devices and the Telegram download of the 'Saved Messages'. The table set out in the Crown opening, which I will not recite, detailed the total number of child abuse material files located on each device and gives an overall breakdown.

55Examples of the child abuse material located on the iPhone 13 Pro are:

56A two-second video of an infant (3 months old) being orally penetrated by an adult penis where the baby appears to be in distress.

57A 52-second video of a 12-month-old toddler with the adult male holding the toddler facing his anus at the camera and the adult uses his index finger to anally penetrate the toddler. Obviously those videos were transmitted in Charge 2.

58Then there was a 2-minute and 6-second video of a prepubescent female laying on her back.  This is the video described earlier that involved the dog licking her vulva with an adult male penetrating the child's mouth.

59A 15-second video of a female infant where an adult female rubs the infant's vulva with her thumb and then licks the infant's vulva.

Category 2 files

60A 1-second video of a pubescent male (14 years old) holding a camera in one hand and using his other hand to masturbate.

61A 51-minute and 8-second video showing a computer-generated prepubescent male child, seven years old, and four adult males. The child is naked and has derogatory remarks written all over his body, including 'WORTHLESS CUNT', 'I'M A SLUT', 'RAPE ME'. The child is continuously orally and anally penetrated by four adult males, urinated on and hit with a paddle.

62The CAM files located on the iPad included:

Category 1 file

63Showing a prepubescent female child laying on her back naked and there is an erect adult penis near her vulva.

Category 2 file

64Showing a cartoon pre-school male and a cartoon adult male where the child is naked with an erect penis and sitting on the naked male adult.

65The CAM files located on the iMac are:

Category 2 files

66An image depicting a cartoon pre-school male (5 years old) and a cartoon adult male. The child is naked with an erect penis and is sitting on the naked male adult.

67A 1-minute and 32-second video depicting two pubescent males and one prepubescent male (8 years old). The two pubescent males inject the pubescent male with an unknown substance. The child appears affected by the substance and appears to go in and out of consciousness.

68Examples of child abuse material located on the HP laptop are described as follows:

Category 1 files

69An image depicting an infant (3 months old) with an adult male penetrating the infant's mouth with his erect penis.

70A 2-minute and 19-second video which is a compilation of child abuse video files. It depicts prepubescent males, ranging from 3 years to 8 years old, being orally and anally penetrated.

71Examples of CAM located in the Telegram Account 'Saved Messages' are as follows:

Category 1

72A 43-second video depicting a prepubescent male lying on his back naked. The child's hands are restrained, he has a ball gag in his mouth. There is an adult touching his buttocks and pulling his butt cheeks apart to expose his anus.

73A 21-second video showing an adult male masturbating while watching a video playing on a television. The video shows an infant (1 month old) being orally penetrated by an erect penis.

74A 37-second video showing a male toddler (about 18 months old) where there is an adult male is sitting on a couch with the toddler. The adult male has an erect penis, and the toddler strokes the penis with his hands. The adult male pulls the toddler onto his lap and begins to stroke the toddler's penis.

75A 1-second video showing an infant with his mouth open. There is an adult holding the infant's head in place while he ejaculates into the infant's mouth. The caption on the video reads: 'eat my fuckin pedocum you fuckin cunt slut'.

76There are two category 2 files.  A 1-minute and 12-second video showing a pubescent male (14 years old) being anally penetrated by an adult male and a 20-second video showing a pubescent male masturbating.

Record of Interview

77When interviewed by police you made the following admissions:

·You said you saved videos, 'child abuse stuff', on Telegram (Q163-165, 270).

·Some Zoom rooms have video sharing, including children and animals (Q203-211)

·Child abuse videos showed 'Underage people having sex', 'maybe against their will' and the age range would be 'Babies to probably teenagers' (Q221-225).

·You agreed that in the videos the children are having sex, including with dogs and adults (Q256-261).

·You save 'stuff that I'm able to masturbate' in the Telegram application (Q280-283).

·Child abuse material is one of your sexual interests when you are 'high' (Q297-298).

·You are interested in 'babies, teenagers, and for different reasons' (Q300).

·No one else has the passcode to your iPhone (Q372-375).

·You use Telegram on your iPhone. No one else has access to your Telegram application (Q376- 377).

·You admitted sharing child abused material on Telegram (Q422).

·You share the videos you have saved with people overseas (Q425-434).

·You have been doing this since 2017 and the most recent time you sent child abuse material was probably the day before the interview (Q435-437, 444).

·People post links to rooms and some work, and it goes to Zoom (Q464-468).

·Some groups will share videos for 40 minutes or an hour (Q474).

·You agreed you have been in rooms where there has been child abuse material (Q475).

·The last time you were in a room with child abuse material was late last night or early this morning, but you cannot give the time (Q482).

·You agreed there have been instances where there has been child abuse material being played and that you have been 'wanking' to that (Q484).

·You are on camera all the time. You 'jerk[s] off' on camera and smoke your pipe (Q499- 500).

·When you are on an ice binge for five days you have a 'Zoom addiction'(Q506-507).

·You said 'I feel like the community is safe from me. Physically…' (Q520-521, 523, 619-621).

·'Melb Aussie' could have been the username you were using (Q549-562).

·When asked about 10 June 2023, you thought that might have been a long weekend and you would have been on a 'four-day binge' (Q575-583).

Sentencing principles

78Turning then to sentencing principles that relate to offences in this case.

79Section 16A(2) of the Crimes Act (Cth) sets out a non-exhaustive list of factors to be taken into account in sentencing . Section 16A(1) requires the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. Pursuant to s16(2)(k) a person must be adequately punished for the offending.

80The principles in sentencing for offences involving child abuse material are set out in the prosecution sentencing submissions and are well established and include:

·General deterrence is the primary sentencing consideration

·Punishment and denunciation are also important sentencing considerations

·Offending involving child abuse material occurs on an international level and has become increasingly prevalent because the internet provides an easy avenue for individuals to access and possess such material

·Such offending is difficult to detect due to the anonymity provided by the internet

·There is a paramount public interest in promoting the protection of children as the possession of child exploitation material is not a victimless crime because children are sexually abused to supply the market

81The offending is not mitigated by the fact that you did not profit from the offending. There is no evidence you paid for the material or were involved in commercially the distribution or sale of the material, although had you done that, it would have been and aggravating feature.

Nature and circumstances of the offending – s 16(A)(2)(a)

82The objective seriousness of offences involving child abuse material is ordinarily determined by a consideration of:

·The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

·The number of items or images concerned;

·The number of children depicted and thereby victimised;

·Whether the material was for the purpose of sale or further distribution;

·Whether the offender profited from the offence; and

·The length of time over which the material was possessed.

83Considered from an overall perspective, the offending occurred over approximately three months, so it was a course of conduct which included accessing, transmitting, and causing to be transmitted such material, and possessing child abuse material. Charge 1 occurred over one day, so that does not represent a course of conduct, but Charges 2 and 3 obviously do.

84Charge 1 involved you accessing category 1 child abuse videos over a period of about 38 minutes on one day. Whilst the material shared was in highest category of seriousness, this was a relatively brief example of accessing the material, although considering the admissions you made about participating in such activities regularly it cannot be said it was an isolated example of such conduct and your counsel, Mr Cooper, did not make that submission.  I do not punish you for the uncharged material, but it provides context to your participation in that Zoom room on that day, on 10 June 2023.  Nonetheless, I must keep in perspective that it was an access offence that occurred on one day over 38 minutes.

85Charge 2 is a 'rolled up' charge, involving transmitting 58 child abuse videos to
12 separate users, and causing four child abuse material videos to be transmitted to yourself.  The offending occurred over approximately three months. Of course, a rolled-up charge incorporates multiple instances of a particular offence and therefore all other things being equal the criminality involved in a rolled-up charge is greater than for a single episode of such offending.  

86Most of the videos transmitted were highly depraved and involved the sexual abuse of pre-pubescent children. The material was repugnant. You admitted deriving sexual gratification from it. The material includes videos showing the sexual abuse of very young children, including infants being orally and anally penetrated. There were additional degrading features in one of the videos which included the child with her hands tied and a dog licking her genitals.  

87Your conduct in transmitting such videos and images contributes to the market that is based on the exploitation and degradation of children. Although you did not profit from the offending or pay for the material by swapping and transmitting these files, you fuelled the market for such material.  

88Charge 3 involves the possession of 573 unique child abuse material videos. As with Charge 2, most of the files were category 1 child abuse material of a depraved nature showing the sexual abuse of pre-pubescent children. Again, the files in your possession included videos showing the sexual abuse of infants as young as three months' old. As with Charge 2, the videos included degrading and cruel features, for example, the computer-generated video where the child had degrading comments written on his body and is raped and urinated on and hit with a paddle.

89Your counsel, Mr Cooper, conceded the offending was inherently serious and that there are aggravating features to the offending including the depraved nature of the files. He submitted that the gravity of the offending is limited by the quantity of the child abuse material relative to what is often seen in these cases. I accept that whilst the number of overall images and videos was lower than sometimes seen in these cases, and that is one factor to consider, balanced against the highly depraved content of the child abuse material, and your continuing immersion in child abuse material over the period of these offences, it is not a matter that substantially reduces the gravity of the offending.  

90In my opinion Charges 2 and 3 are serious examples of transmit and possession offences falling comfortably into the mid-range of such offences. Charge 1 is a significant enough example of accessing child abuse material, but its gravity is limited by the short duration of the charged incident.   

General and Specific deterrence: ss 16A(2)(ja) and 16(2)(j)

91Turning then to some of the factors I am required to assess under s16A(2) of the Crimes Act (Cth).

92Firstly, general and specific deterrence.  As I have already observed general deterrence is the most important sentencing factor for offences such as these. To promote the protection of children, individuals motivated to participate in the market for child abuse material and commit these types of prevalent difficult to detect offences must understand significant punishment will follow detection and conviction. Having regard to your previous conviction for similar offences, the need to deter you from further offending is also a significant sentencing factor.

93The weight to be given to deterrence has been the subject of submissions based on your upbringing and your mental state and I will address these factors when I deal with your personal circumstances and your mental state issues.  

Contrition s 16A(2)(f), Cooperation s 16 (2) (h) and Guilty plea – s 16A(2)(g)

94You pleaded guilty at the second committal mention in this matter on 8 February 2024 after negotiations had taken place as to the appropriate charges. Your guilty pleas were entered at the first reasonable opportunity. This is conceded.

95I accept your guilty plea indicates a willingness to facilitate the course of justice and has significant utilitarian value. You have saved the court and the prosecution authorities the use of resources required for a trial. You also cooperated with police by making admissions and providing the PIN codes to your devices. The provision of the PIN codes is not in my opinion cooperation that relates to Charge 1, given the evidence for that offence was a police video of the Zoom meetings.

96I consider your expressions of shame and disgust noted in the reports of Ms Fakri and Associate Professor Darjee are further evidence of remorse.  I have taken these matters into account in mitigation. They are also relevant to your prospects of rehabilitation.

97In assessing your guilty plea, I have also taken into account the strength of the prosecution case.  That is particularly so, it seems to me, in relation to Charge 1, where the Zoom meeting was on video and where you are captured participating in the Zoom meeting.

98Overall, the prosecution had a very strong case in relation to all charges.

Character, antecedents, age, means and physical and mental condition - s 16A(2)(m)

99The following reports were tendered at the plea hearing: a report from psychologist Rebeca Fakri along with an addendum report; a report from Associate Professor Rajan Darjee, a forensic psychiatrist and a further addendum report; and a neuropsychological report from Ms Jane Lofthouse.

100Your personal circumstances are set out in detail in the various reports that were tendered at the plea hearing.

101You were born in Tasmania. Your adoptive parents moved to Albury when you were nine years old. They had three biological children. You became aware you were adopted at the age of 12. Your adoptive parents had divorced by the time you were 14 years old.  At around that age you began smoking cannabis, drinking alcohol, absconding from home and truanting from school.

102You were molested by an Anglican priest in November 1988 and March 1989. You received $100,000 in compensation from the church in 2017. You had spent that money by 2019. You also suggest in the reports that you were molested by your adoptive uncle, who had also abused other children.

103You mainly lived with your adoptive mother until you were 16 years old. At that time, you moved to Melbourne. You sought out your biological mother. You found out you had three brothers. You had contact with them and maintained a relationship with your biological mother until 2012. You have had no contact with your adoptive family since 2012.

104You had periods of instability in your accommodation starting when you were 16 years old and persisting for many years after that. In 2013 you obtained a Ministry of Housing property, where you lived for several years until it was demolished. You were transferred to your most recent Ministry accommodation in Fitzroy. You hope to maintain that accommodation, but it strikes me as unlikely it will still be available at the expiration of the non-parole period in this matter, but you have been living there for some years.

105You attended multiple primary schools due to family relocations. You struggled educationally. Because you changed schools frequently you did not create stable friendships. You were also bullied due to learning difficulties. This bullying continued in secondary school.

106You left school when you relocated to Melbourne at the age of 16. You had some brief employment before you returned to school at the John Gardner Secondary College for Year 11 and then you also enrolled at Lilydale High School at some point but due to offending behaviour and misbehaviour at school, you did not complete Year 11.

107You have no significant work history. You have had some casual labouring jobs. You worked in a kitchen at a café, as well.  According to the material, you were last employed in 1999. Mostly you have relied on a disability support pension which you receive because of your mental health problems.

108You identify as bisexual. You have had no significant intimate relationships. You consider that your homelessness and mental health are the reasons you have not had a partner. You have had regular casual intimate relationships. You do not have many friends and you only have a small circle of acquaintances.

109You have had entrenched issues with alcohol consumption from your teenage years. You have used cannabis since the age of 14. You started using methamphetamine in November 2012. You regard yourself as a methamphetamine addict. You were able to abstain for some time in 2014/2015 but relapsed and resumed using the substance daily. In the pandemic you reduced your drug use because you had difficulty obtaining drugs but from 2022 until August 2023, you say you were using 7 grams of methamphetamine a fortnight. You have also used GHB regularly since 2013 and you were using that drug at the time of the offending.

110You have made attempts to address your drug issues.  You attended an inpatient program at the Albert Road clinic in 2018 and participated in a trial program at Turning Point in 2019. You also attended a Smart recovery addiction program 'On and Off' in 2019 and had AOD counselling from 2015 until 2022. You have from time to time attended Narcotics Anonymous meetings and in 2021 you attended Quin House at St Vincent's Hospital before being transferred to other accommodation, Westside Lodge. In November 2022 you attended a rehabilitation centre at the Sunshine Hospital, but you were asked to leave because of aggressive behaviour. You have completed drug courses whilst you have been in custody, which I take into account.  A letter from CoHealth in Collingwood was tendered. CoHealth is an organisation in Collingwood which provides drug rehabilitation services. The letter indicates you have been engaged with their drug services since 2007.

111It is apparent you have attempted to address your substance abuse issues but you have not been successful to this point.

112You have a criminal history starting in 1989. You committed dishonesty and assault offences consistently until 2003. You have further prior convictions interstate at a lesser rate until 2009, after which it seems you stayed out of trouble until 2021 when you committed the previous child abuse material offences. The earlier prior convictions reflect your difficult personal circumstances and your drug and mental health issues and show how enduring they have been, but otherwise they have no great significance in sentencing. Your previous conviction for similar offending is relevant though to your moral culpability for this offending, to the weight to be given to specific deterrence, to the assessment of your prospects of rehabilitation and to the weight to be given to community protection.

113You have been drug free since you were remanded in custody.  This is your longest period of abstinence for many years.

114Mr Cooper made extensive submissions concerning the relevance of your mental health conditions.  He submitted that principles 1,3, 4 and 5 of the case of Verdins apply to you.  These are well-rehearsed principles, and I do not propose to repeat them at length in these remarks.

115Based on the reports submitted I accept that you have complex mental health issues including complex Post Traumatic Stress Disorder, a depressive disorder, a personality disorder, a generalised anxiety disorder, and symptoms consistent with ADHD such as inattention, impulsivity and disinhibition. Ms Lofthouse, the neuropsychologist, described a mild to moderate intellectual impairment. She assessed your full-scale IQ as being 74.  The authors of the three reports all postulate a connection between your metal state issues and the offending; however, there is general acceptance that drug use also played a causal role. The link between your metal health issues and the offending is based on disinhibition, difficulties with impulse control, emotional dysregulation, low intelligence, and impaired judgement with an inability to make calm and reasoned decisions.

116Associate Professor Darjee offered the view that if you did not have your mental health vulnerabilities, it is unlikely you would have offended.  She describes these conditions as 'both distal and proximal predisposing factors which led to the proximal state of loneliness, boredom, emotional dysregulation, lack of intimacy, feeling rejected and sexual dysregulation (meaning using sex to cope and therefore being sexually preoccupied)', and she said 'whilst Mr Hulsman's substance use was the "key immediate disinhibiting factor and the gateway between his proximal mental state and his behaviour"', both factors were necessary for the offences to have occurred, and without one or the other, it is unlikely you would have offended in the way you did.

117Both Associate Professor Darjee and Ms Fakri suggested you will struggle to cope in prison and incarceration will be more burdensome on you than a person without your mental health vulnerabilities.

118Mr Cooper also submitted that having regard to your background and upbringing the principles in the High Court case of Bugmy have application. [1] He relied on your homelessness and your transience from a young age and the sexual abuse you experienced.  I accept that the issues in your teenage years set you on path of drug abuse and have contributed to your instability and inability to sustain intimate relationships and meaningful friendships, matters which are important background to your offending. I accept that your upbringing reduces your moral culpability to an extent.  There is of course an overlap between your background issues and your mental health issues.

[1] Bugmy v The Queen [2013] HCA 27.

119The prosecution accepted that limbs 1, 3, and 5 of Verdins[2] have application but submitted in considering the extent to which your moral culpability is reduced and general deterrence moderated, I should have regard to the causal role your drug use played in the offending and take into account that your prior conviction also occurred in circumstances where you had been abusing drugs; and, therefore, you must have been aware of the likelihood you would offend in this way if you continued to abuse drugs.

[2] Verdins & Ors [2007] VSCA 10.

120The prosecution submitted there is no basis to moderate specific deterrence given none of the psychological evidence or psychiatric evidence establishes you do not have the capacity to be deterred by significant punishment. Mr Cooper submitted broadly that your mental health conditions impede your ability to moderate your behaviour and that you are unlikely to respond positively to a prison sentence; therefore, specific deterrence should be moderated.

121I accept your moral culpability is reduced for your mental state which contributed to the offending.  However, this is not a case where you were in a psychotic state or where your intellectual deficiencies deprived you of the capacity to understand the wrongfulness of your conduct. Moreover, your continued drug use was plainly a significant contributing factor, a matter you recognized in the record of interview, and which is conceded by the authors of the reports.  It is of course difficult to disentangle your mental health from your drug abuse and your background, and I accept your mental health is a factor which contributes to your ongoing drug problems. 

122This was offending involving repulsive child abuse material viewed for sexual gratification over three months when you were on a community corrections order for similar offending.  But for your mental state issues and your difficult teenage years, I would regard your moral culpability as extremely high. Although moderated by your mental state and your upbringing, your moral culpability remains significant. Similarly, general deterrence, which I have moderated, remains important.

123After assessing the competing submissions about specific deterrence, I have also decided that specific deterrence should be moderated because of your mental state issues to an extent.  You do have some limitations on your capacity to regulate your behaviour, which reduces the likely effect of specific deterrence on you, but there is nothing in the reports that establishes you do not have the capacity to understand and be deterred by significant punishment. So, the weight to be given to specific deterrence is reduced but far from eliminated.

124I am satisfied, and I am satisfied of this beyond reasonable doubt, that you had some understanding of the connection between your drug taking and this type of offending.  You really indicated as much in your record of interview.  But given the complex interplay between your drug use and your mental health I have not treated this as an aggravating factor in sentencing.  However, the fact that you continued to take drugs aware that it contributed to the offending is a matter that I have had regard to in the overall assessment of your moral culpability. 

125Finally, your issues in regulating your own behaviour, whilst they are relevant to some reduction in specific deterrence, do lead me to the view that community protection must be given some significant weight in this case, and that is because of the likelihood of reoffending.

126So that brings me to the significance of rehabilitation in this case.

Rehabilitation – ss 16A(2)(n) and 16A(2AAA)

127In assessing your prospects of rehabilitation, I take into account that at the time of the offences you were subject to a community correction order for similar offending imposed, at least in part, to facilitate your rehabilitation.  You contravened that order and then when you were given another chance you offended again in a more serious way a few months later.

128This offending also occurred while you were subject to reporting obligations under the Sex Offender Registration Act.

129It is clear from your admissions that you used the material for sexual gratification and that you were a regular and prolific user of such material. You make a connection between your methamphetamine use and engaging with child abuse material. Your drug use is long standing, and you have been unable to make any significant progress towards meaningful drug rehabilitation. Furthermore, you have entrenched mental health conditions.

130In relation to your prospects of rehabilitation, Mr Cooper relied on the following matters: the assessment of Associate Professor Darjee that you do not meet the criteria for a paedophilic disorder; rather, your offending occurs in the context of drug use, loneliness, boredom, emotional dysregulation, lack of intimacy, all of which need to be addressed through psychological intervention. He submitted your plea of guilty and your remorse and cooperation 'augur well for your prospects of rehabilitation'.   He referred to Ms Fakri's opinion that a relatively short non-parole would maximise your chances of rehabilitation because it is unlikely your mental health issues will be adequately treated in prison and he submitted that I should impose such a non-parole period.

131In my opinion given your entrenched drug problems and your ongoing mental health issues, together with your prior conviction for similar offending, and the seriousness of these offences, your prospects of rehabilitation are guarded at best and there is a significant risk that you will further offend in respect of possessing transmitting and accessing child abuse material. 

Mandatory and Minimum Head Sentence

132In this case you are to be sentenced for Commonwealth child sexual abuse offences, and you have prior convictions for Commonwealth child sexual abuses, to which I have referred. Therefore, pursuant to s16AAB of the Crimes Act (Cth) a mandatory minimum head sentence of four years applies.

133In the High Court decision of Hurt v The King, and Delzotto v The King, it was held that a statutory minimum should be approached in the same way as a statutory maximum penalty.[3] The minimum sentence restricts sentencing power to the minimum period of imprisonment, subject to the exceptions, and provides a yardstick representing 'the least worst possible case warranting imprisonment against which the case before the court at the time can be measured' or 'the offence in the least serious circumstances' Thereby the statutory minimum operates to increase the appropriate term of imprisonment generally for that offence.

[3] R v Delzotto [2022] NSWCCA 117; Hurt v The Queen [2022] ACTCA 49.

134Sections 16AAC(2) and (3) allow a sentence less than the mandatory minimum if I form the view that adequate recognition cannot be given to your  plea of guilty or cooperation without going below the mandatory minimum head sentence.

135Those sections permit an upper-level reduction to the minimum term of 25 per cent in respect of a guilty plea and by up to 25 per cent to reflect an offender's cooperation.

136In Hurt and Delzotto, the majority held that it is 'legitimate', for the Court to first determine a 'prima facie sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the discount'. In other words, the appropriate process will be that the Court should first engage in an instinctive synthesis of all relevant factors, except for the plea of guilty and any co-operation; it should then proceed to consider the guilty plea and cooperation and only then determine whether the s16(AAC) mechanism is required to move below the mandatory minimum.

137In sentencing you I have had regard to the statutory minimum in each case. In respect of Charge 1, I am satisfied that given the offending took place on one day for 38 minutes it falls either in the least serious category of offences, or close to the least serious category of offences, and that a sentence below the mandatory minimum is necessary to accord adequate recognition to your plea of guilty and cooperation. I am not so satisfied in respect of Charges 2 and 3.

Cumulation – Totality

138There is a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences, pursuant to sub-s 19(5) of the Act. However, pursuant to sub-s19(6) of the Act, if, having regard to totality and the overall severity of the offending I decide it is appropriate to impose wholly or partially concurrent sentences, I am required by sub-s19(7) to state my reasons.

139The prosecution accepted that the sentences imposed on Charges 1-3 ought not be wholly cumulative.

140In my opinion to reflect the overall criminality of your offending significant concurrency between the sentences is necessary. Whilst there is no conduct overlap between the offences, at least some of the material transmitted in
Charge 2 is also part of the possession charge. Further, the offending in this case is properly assessed as a course of conduct involving similar or related offences, a factor which favors concurrency to give effect to the totality principle.   In deciding the appropriate periods of cumulation I have had regard to the overall severity of the total effective sentence, and I have also taken into account the various mitigating factors that I have considered in these reasons.

Minimum NPP

141The principles relevant to the setting of minimum terms have not been altered by the introduction of the mandatory minimum sentencing regime. Of course, the non-parole period should not be so low that it undermines the deterrent and punitive effects of the sentence

142Subsection 16A(2AAA) of the Act provides that a court sentencing an offender for a Commonwealth sex offence must have regard to the objective of rehabilitating the person, including by considering the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program.

143In my opinion, you do need significant rehabilitative assistance in respect of your interest in child abuse material, your mental health issues and your drug abuse as well as your complex background, and I have had regard to these matters in fixing the non-parole period in this matter. 

Sentence

144In relation to Charge 1, as discussed with counsel this morning, I intend to articulate the sentence that I arrived at, and the extent of the discounts applied.  So, with respect to Charge 1, I took the view that that would attract a sentence of four years and two months' imprisonment.  I have allowed 20 per cent discount for the plea of guilty in that case, having regard to what I said about the overwhelming nature of that case, and 2 per cent for cooperation, which results in a sentence of three years and three months, doing the best I can.  It is not precise, but it is rounded off.  So, the sentence for Charge 1 is three years and three months.

145As discussed with counsel this morning, I do not intend to articulate precise discounts in respect of Charges 2 and 3, where I have decided not to sentence lower than the statutory minimum.  I indicate that in coming to the figures that I have, I have taken into account all relevant factors including the guilty plea, which I regard as slightly more significant in relation to Charges 2 and 3, and cooperation, which I regard as slightly more significant in relation to Charges 2 and 3, given you provided your PIN codes in relation to your devices, notwithstanding that there was a warrant with respect to the devices.

146The sentence for Charge 2 is four years and two months.  That is the base sentence.

147For Charge 3 also four years and two months. 

148Ten months of the sentence on Charge 1 and 12 months of the sentence on Charge 3 are cumulative on each other and the base sentence, which makes a total effective sentence of six years.

149I fix a non-parole period in this case of three years and nine months.

150I allow for 388 days to be deducted as pre-sentence detention in this matter.

151I indicate that but for your plea of guilty, I would have imposed a sentence of eight years and six months with a minimum non-parole period of five years and 10 months.

Sex Offender Registration Act

152Each of these charges is a Class 2 offence under the Sex Offenders Registration Act 2004 (Vic) (SORA)

153On 21 April 2021, you were sentenced for two earlier Class 2 registrable offences and ordered to report for 15 years.

154You have now been found guilty of three or more Class 2 offences in total and the registration period therefore is for the rest of your life.  So it is life reporting in this matter and I will provide you with the documents in relation to that.

155Mr Cooper, if you could just take that down and have him sign receipt of those documents.  Is that all clear?

156MR COOPER:  Yes, Your Honour.

157MS ADDAMS:  Yes, Your Honour.

158HIS HONOUR:  Yes, yes, all right.  Nothing else needs to be explained and no other orders need to be made?

159MS ADDAMS:  No other orders, Your Honour.

160HIS HONOUR:  Right.  I will just have Mr Hulsman sign the document.  Yes, Ms, I can tell you're about to say, yes Ms Addams?

161MS ADDAMS:  No, I was just going to check the numbers again.  So it was three years three months on Charge 1.

162HIS HONOUR:  Yes.

163MS ADDAMS:  Four years two months on each of Charges 2 and 3.

164HIS HONOUR:  Yes, with 10 and 12.

165MS ADDAMS:  10 and 12, all right.

166HIS HONOUR:  10 and 12.

167MS ADDAMS:  I see, thank you - - -

168HIS HONOUR:  Which gets you to six.

169MS ADDAMS:  I was just checking the maths.

170HIS HONOUR:  Yes, yes.

171MS ADDAMS:  Yes, that makes sense.

172HIS HONOUR:  That's right, isn't it?  I have been known to make mistakes.

173MS ADDAMS:  That will add up to six, yes.

174HIS HONOUR:  Yes, thank you.

175MR COOPER:  Can I just leave the Bar table, Your Honour?

176HIS HONOUR:  Yes, of course you can.

177MR COOPER:  Thank you.

178HIS HONOUR:  Just finally, I should add in coming to the sentences that I have come to, I have had regard to the comparative cases provided by the prosecution in this matter.

179MS ADDAMS:  Yes, Your Honour.

180HIS HONOUR:  Thank you, Mr Cooper.

181MR COOPER:  Thank you, Your Honour.  Could I impose on Your Honour's associate to get a copy of that document, just so I can go through it with my client downstairs.

182HIS HONOUR:  Yes.  Ms Addams, thanks to you and your instructor, and thanks to you Mr Cooper.

183MR COOPER:  As Your Honour please.

184HIS HONOUR:  Mr Hulsman, you go into custody now. 

185I am supposed to have the accused go into custody before I leave the Bench.

186Thank you.

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