Director of Public Prosecutions v Kirkland (a pseudonym)

[2020] VCC 1344

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN KIRKLAND (a pseudonym)

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2020
DATE OF SENTENCE:	27 August 2020
CASE MAY BE CITED AS:	DPP v Kirkland (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1344

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McKenry	Solicitor for the Office of Public Prosecutions
For the Accused	Ms B. Franjic	Tony Hargreaves and Partners

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.

HER HONOUR:

1       Hayden Kirkland,[1] you have pleaded guilty to one (rolled up) charge of using a carriage service to transmit child pornography material, the maximum penalty is 15 years’ imprisonment, also to one (rolled up) charge of using a carriage service to produce child pornography material, the maximum penalty 15 years’ imprisonment.  You have also pleaded guilty to one (rolled up) charge of sexual assault of a child under the age of 16, the maximum penalty 10 years’ imprisonment and have also pleaded guilty to possession of child abuse material, a maximum penalty of 10 years’ imprisonment.

[1]A pseudonym.

2       Charges 1, 2 and 3 are, as I have stated, ‘rolled-up’ charges, and when sentencing R v Jones[2] applies.

[2][2004] VSCA 68.

3       

Your crimes arise out of events which took place between 24 July 2019 and

 

7 August 2019.

4       The victim of some of your offending is your biological daughter, Lauryn Kirkland,[3] then 7 years of age, now 8, and I digress and say I will be referring throughout the sentence to initials for some people.  I do not do that to offend anybody, it is all part of anonymising a sentence so that victims and families are not specifically identified so I hope you, Mr McKenry, will explain that to those that might be listening and might be offended by the use of initials and I do not intend offence.  I move on. 

[3]A pseudonym.

5       It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A, which is annexed to these sentencing remarks.  I sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious and very disturbing.  Your offending, in my opinion, horrific, involving in some of it a gross breach of trust of your daughter and Melissa Higgs,[4] her mother.

[4]A pseudonym.

6       At the time of this offending you were living in Caulfield and employed at Open Universities Australia.  You are at sentence 31 years of age and were 30 at the time of your offending.

7       On Wednesday, 7 August 2019, the Australian Commonwealth Police Joint Anti-Child Exploitation Team (JACET) received notification from the Commonwealth Bureau of Investigation Child Exploitation Force (CEF) in the United States of America, of an online undercover CEF member in communication with an Australian resident who was committing child abuse offences against his eight year old daughter.

8       Information stated you had, between 3 August 2019 and 6 August 2019, used social media application KiK Messenger (KiK), to communicate with KiK users and to share child abuse material.  During sharing of those files, you said the images and videos were of your 8 year old daughter. 

9       Police confirmed the images and videos to be child pornography material (CAM).

10      Enquiries with Optus revealed the IP address was subscribed to you at your Caulfield address.

11      Certificates obtained from Internet Service Provider (ISP) Optus revealed that on 26 July and 6 August 2019 that IP address was allocated to the internet connection at your home in Caulfield in your name.

12      At approximately 7.00 pm on 7 August 2019, members from JACET attended your home to execute a search warrant.  You were present, as was your wife, Melissa Higgs, your daughter, Lauryn Kirkland, and your son, Tate Kirkland.[5]

[5]A pseudonym.

13      During the search, police conducted a preliminary examination of your Samsung smart phone and located images matching those provided by the CEF, and other corroborating evidence. 

14      At approximately 7.20 pm on 7 August 2019, you were arrested and taken to Moorabbin Police Station, where you were interviewed, giving “no comment” responses to police questions regarding your offending.  To answer that way was of course was your right. 

15      Examination of your black Samsung Galaxy A5 smart phone, amongst other things, revealed videos and images confirmed to be CAM sent between you and other KiK users.  The images and video files were sent by you to KiK users nominated within paragraph 13(d). In total, at least 23 KiK users (Exhibit A, paragraph 13). 

16      

I turn to the first image.  That photograph was produced between 5 and

6 August 2019 and showed your daughter, Lauryn Kirkland, asleep and laying on her back.  You were standing to the left side of her wearing blue boxer shorts and had your penis out of your boxer shorts with Lauryn’s left hand on top of your penis, her fingers around the shaft.  Your left hand held the tips of two of her fingers on her left hand to keep her hand in place around the shaft of your penis.  This forms part of Charge 3 (sexual assault).

17      You transmitted that image to KiK user, ‘dcjohn1996’ (transmit child pornography material, part Charge 1).

18      I turn to video 1 (Exhibit A, paragraphs 18-21).  That video was produced on an occasion between 5 and 6 August 2019.  Lauryn Kirkland is laying on her stomach.  The video commences with you using your left hand to grab the top of Lauryn’s pyjama pants and pull them down, exposing her buttock cheeks.  You pull her pyjama pants down with your left hand, and pull at her left buttock cheek, exposing her anus and vagina.  You zoom the recording device in to reveal a closer view of her vagina and anus.  You then use your left hand to grab at the top of her left bottom cheek, and zoom in on her anal area, exposing her vaginal area.  Lauryn was asleep in the video.  You transmitted that video file twice on KiK to two different Kik users.  (Part of Charge 1, transmit).

19      I turn to image 2 (Exhibit A, paragraphs 22-23).  In this photograph, produced between 5 and 6 August 2019, Lauryn Kirkland was naked and appeared to be doing a handstand on a bed in her bedroom, the camera focused on her vaginal area.  You transmitted that image to two Kik users (Charge 1 – transmit). 

20      I turn to image 3, a photograph produced between 5 and 6 August 2019.  Lauryn Kirkland was naked doing a handstand in her bedroom, holding herself up against you with her legs apart.  The camera was focused on her vaginal area and buttocks (part of Charge 2, ‘produce’).  You transmitted that image to KiK users in group “Priv 2” (part of Charge 1 - transmit).

21      

I turn to image 4. That photograph was also produced between 5 and

6 August 2019. Lauryn Kirkland was again naked doing a handstand and holding herself up against you with her legs apart, the camera focused on her vaginal area (part of Charge 2 - produce).  You transmitted that image to one Kik user (part of Charge 1 - transmit).

22      The prosecution also referred to a number of Kik messages between you and Kik users.  In my opinion these ‘chats’ are disturbing and very concerning to say the least.  The first chat referred to in Exhibit A was with KiK user “Decjohn1996” on 5-7 August 2019 (paragraph 30).

23      That chat related to CAM and reflected that you shared CAM and requested that KiK user share CAM with you (part of Charge 1 - transmit).  Images sent by you to “Decjohn1996” were referred to in paragraph 33, also five images sent to you by KiK user “Decjohn1996”.  Those files located on your Samsung smart phone constitute child pornography (Charge 4).

24      Electronic communications through KiK on your Samsung smart phone revealed a chat between yourself and KiK user “Incogneeto93” on 7 August 2019 (Exhibit A, paragraph 35).  That chat related to CAM material and showed you shared CAM and also requested that KiK user share CAM with you (part of Charge 1 – transmit).

25      Electronic communications conducted via internet-based KiK on your Samsung phone also included a chat between yourself and KiK user “vanbulldogs” on 7 August 2019 (Exhibit A, paragraph 37).  That chat related to CAM and that you shared CAM (part of Charge 1 - transmit).

26      Further electronic communications through KiK were identified on the Samsung phone and revealed a chat between yourself and KiK user “AKG” between 6 and 7 August 2019.  You shared five files.  The chat between you and “AKG” related to CAM and showed you shared CAM with KiK user “AKG” (part of Charge 1 - transmit).

27      There was also a Kik Messenger chat between you (“[usernameofoffender][6]”), and “Smoothsounds2020”.  A chat between yourself and “Smoothsounds2020” between 4 and 6 August 2019 was referred to in Exhibit A (paragraph 41).

[6]Offender’s username has been redacted and is referred to as [usernameofoffender].

28      The prosecution relied upon the chat with “Smoothsounds2020” as part of the agreed plea opening to show your state of mind and nature of your communications.

29      A further chat revealed you, (“[usernameofoffender]”), and another 22 KiK users in group “Priv2” (Exhibit A, paragraph 42-43).  A chat between yourself and that group between 3 and 7 August 2019, with 22 KiK users in the group “Priv2”, related to CAM and you sharing CAM with those KiK users (Charge 1 – transmit). 

30      The electronic communications conducted via internet-based KiK that the AFP received were examined. Seven images and videos were found to have been sent between you and KiK users in the group, “Priv2”.  The files referred to in Exhibit A (paragraphs 46 and 47) were saved on your Samsung phone seized on 7 August 2019.  The files constitute child pornography (Charge 4, possess child abuse material).

31      Further KiK Messenger chat was located on your Samsung phone between yourself and KiK user “Waridap” between 3 and 7 August 2019.  The chat showed you shared CAM with that KiK user (part of Charge 1 - transmit).

32      A further Kik chat was located on your Samsung phone between you and “Waridap” on 5 August 2019 (Exhibit A, paragraph 51).  The prosecution relied on that as part of the agreed plea opening to show your state of mind and the nature of your communications.

33      There was a further chat identified on your Samsung phone between yourself and KiK user “Nopanic42” between 1 and 7 August 2019 (Exhibit A, paragraph 53).  You and “Nopanic42” shared 26 files before the chat concluded.  That chat showed you shared CAM and also requested that KiK user share CAM with you (part of Charge 1 - transmit).

34      A further chat was identified on your Samsung phone between yourself and a group of KiK users “Dark Webbers” between 26 July and 7 August 2019 (paragraph 56, Exhibit A).  You shared 22 files with that group before the chat concluded.  The chat you had with KiK users in that group related to CAM and you sharing CAM with those users (part of Charge 1 - transmit).

35      A further chat was identified on your Samsung phone between yourself and another KiK user “Enosmay02” between 25 July and 2 August 2019.  That chat in Exhibit A (paragraphs 59 and 60) and related to CAM and you sharing CAM with that KiK user (part of Charge 1 - transmit).

36      A further chat was identified on your Samsung phone between yourself and KiK user “Unknown” between 25 July and 7 August (Exhibit A, paragraph 61), that explained in oral submissions by Mr McKenry.  The chat you had with KiK user “Unknown” related to CAM and showed you shared CAM with that KiK user (part of Charge 1 - transmit).  You shared approximately 58 files with a group “Dixie Nicole You”. 

37      A further chat was identified on your Samsung phone between you and KiK user “parokali” between 25 July and 7 August 2019 (Exhibit A, paragraph 63).  The chat related to CAM and showed you shared CAM with that user (Charge 1 – transmit).

38      A further chat was identified on your Samsung phone between you and KiK user “Azgolfnut” between 24 July and 7 August 2019 (Exhibit A, paragraph 65).  You shared approximately seven files with that user before the chat concluded.  The chat you had with that KiK user related to CAM and showed you shared CAM with that user (Charge 1 – transmit).

39      The CAM material that constituted child pornography was classified using ANVIL.  A total of 383 unique CAM files were identified on your Samsung phone (Exhibit A, paragraph 69).

40      The images and videos located on your Samsung phone as described relevant to each category (Exhibit A, paragraph 72), were accepted by both counsel as accurate descriptions of the images/videos therein, thus, not requiring me to view the images or videos.

41      At my request I received further submissions from the prosecution subsequent to your plea hearing, which particularised your offending in each charge (Exhibit E).  I understood such was agreed as accurate between counsel confirmed before me today.  This material assisted my understanding of the facts relied upon by the prosecution relevant to each charge.

42      In response to those submissions I received further written plea submissions from Ms Franjic dated 19 August 2020 (Exhibit 6).  I discussed those briefly with counsel prior to sentence today.  Ms Franjic again referred to your offending occurring over 15 days, not months or years, and involving Lauryn Kirkland over 5 days, and I am aware of that.

43      Ms Franjic urged some overlap between the charges and orders for cumulation accordingly.

44      You have pleaded guilty to these charges and you are entitled to have that taken into account in your favour, and I do so.  By your pleas of guilty you have spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial.  Further, I take into account in your favour you intimated early your intention to plead guilty to these charges.  Your plea of guilty has utilitarian value and I accept is indicative of some remorse by you for your offending, although I have concerns regarding the extent of your remorse given your deep seated issues involving pornography over many years as described by Mr Newton.

45      The prosecution conceded your plea of guilty was at the earliest opportunity, and I accept that is so.

46      Aggravating features of your offending was the gross breach of trust of Lauryn Kirkland, also your wife, Melissa Higgs, by offending in this manner.  Also Lauryn’s young age, and that she was sexually assaulted in her own home where she should have been safe.

47      Charge 3, a rolled-up charge of sexual assault of a child under the age of 16, is a standard offence, with a standard sentence of four years’ imprisonment.  I shall return to that later in these sentencing remarks.

48      Turning to the serious offender provisions in the Sentencing Act 1991, all four charges before me are sexual offences pursuant to Schedule 1. Following terms of imprisonment on two charges; you are then sentenced as a serious sexual offender on any subsequent offences. When so sentencing, s6D and 6E of the Sentencing Act 1991 apply as does the principle of totality consistent with R H McL v The Queen[7] and Gordon (a pseudonym) v R.[8]  All citations will be provided, counsel.  Your counsel agreed such applied to you. 

[7](2000) 203 CLR 452.

[8][2013] VSCA 343.

49      The prosecution were not seeking a disproportionate sentence and I am of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence.

50      The prosecution made application pursuant to the Sex Offenders Registration Act 2004 as each of the offences on the Indictment were Schedule 2-Class 2 offences. You had pleaded guilty therefore to four Class 2 offences. The reporting period was mandatory and for life (s.34(1)(c)(iii)). Your counsel agreed such classification and duration applied to you.

51      A victim impact statement was before me from Melissa Higgs.  It is eloquent and it is difficult to do justice to it in these very brief sentencing remarks.  The statement was read into transcript and it was absolutely clear your offending left her devastated, that her life as she knew it, in essence, had been destroyed.  The sequalae of your offending involving the police investigation was also very upsetting.

52      You are, of course, the cause of that investigation.  If you had not offended there would not have been an investigation.  You are, as your counsel noted, the architect of yours, and subsequently Melissa Higgs’, predicament.

53      Ms Higgs said she was trying to heal.  She described your offending as deeply humiliating and shameful to her family.  No-one she said should ever think about a child in the way you did.  It was sickening to the stomach.  Ms Higgs’ world had collapsed.  She and the children were barely surviving.  Ms Higgs stopped eating, sleeping, showering and had cut off her social contacts.  Her home was supposed to be a safe sanctuary.  She feared losing her children.  She worried and cried for her children.

54      Also before me was correspondence from Rabbi Arthur Pollock[9], dated 22 July 2020, read into the transcript, and a brief statement from Lauryn Kirkland who described police “invading their house”.

[9]A pseudonym.

55      The impact upon a victim is a relevant sentencing consideration (s.5 Sentencing Act 1991). I am conscious however, I must not allow the effects upon a victim to swamp the sentencing process.

56      Your counsel, Ms Franjic, prepared a written outline of submissions and addressed them during the course of your plea hearing (Exhibit 1).

57      

Ms Franjic referred to your lack of prior or subsequent criminal history and I am aware of that.  Also, that your offending occurred between 24 July and

7 August 2019, that is, over a period of approximately 14-15 days.  I also note however, Charges 1, 2 and 3 are ‘rolled-up’ charges. 

58      Details were provided regarding your background and history.  Upon your mother’s remarriage after your parent’s separation, you were raised in an ultraorthodox Jewish Hasidic movement.  You were forbidden from accessing information, education or media that was not biblically or religiously orientated, nor permitted to watch television or listen to mainstream music. 

59      You described a positive relationship with your mother and siblings.  Your stepfather you said was generally absent from your daily life, and the disciplinarian in the household.

60      After your parents divorced, your father moved to the West Coast of the United States.  He is not Jewish and the restrictions, in your mother’s home, did not exist at his. 

61      Between the ages of 10 and 17 your oldest stepbrother sexually abused you.  

62      You commenced primary education at a mainstream school, then from age 7 attended an Hasidic school, remaining there until the eighth grade, when your family moved to Florida.  You performed poorly in academic subjects at that time. 

63      In Year 11, you undertook study to complete your High School equivalency diploma, then travelled to Israel to undertake religious studies. 

64      You were accepted into a Bachelor of Business (Marketing) course at RMIT and moved to Australia in 2010 to undertake that course, completing it in 2013.  You then completed a Certificate IV in Financial Services and Certificate IV in Business Administration and in 2018 began studying an Executive Masters of Business Administration at RMIT, completing that in April 2020.

65      Your counsel referred to your solid employment history which I accept.  At the time of sentence you had been employed in customer relationship management for the education sector over seven years with Open Universities Australia. 

66      You met your wife, Melissa Higgs, in Israel in 2007 and married in 2010, when you were in Melbourne, two children of that marriage, Lauryn Kirkland, and Tate Kirkland. 

67      You are a permanent resident of Australia and that status was discussed with Ms Franjic, to which I shall later refer.

68      Since being charged with these offences, you have been prohibited by an Intervention Order, and Department of Health and Human Services (“DHHS”) Case Plan from any contact with your two children, since your arrest.  You also had limited contact with your wife.  Ms Higgs was present at your plea hearing.  You understood she was in the process of filing for divorce. 

69      Since arrest, you had continued to pay child support.  It is of course your responsibility to do so and I accept you will be unable to provide that financial assistance when in custody. 

70      Following your arrest you had been living in a rented room in a share house. 

71      Ms Franjic submitted that since being arrested and charged you had made significant efforts towards rehabilitation. 

72      Within weeks of being charged you began voluntarily attending the Sex and Love Addicts Anonymous Fellowship (“SLAA”).  Over the past 12 months you had immersed yourself in the program, consistent with references from fellow members of SLAA to which I shall later refer.  You had attended in excess of 100 meetings.

73      I discussed the SLAA 12 step program, that program I was told being very similar to Alcoholics Anonymous and Narcotics Anonymous.  It was conceded by Ms Franjic this was a ‘support group’ which did not provide therapeutic/counselling directed to your offending. 

74      You had also undertaken specialist treatment since 26 August 2019, in a Sex Offender Treatment Program (“SOTP”), with psychologist, Mr Peter Hanley.  You were seeing him on a weekly or fortnightly basis and had attended approximately 30 sessions as at your plea hearing.  In that counselling, you sought to understand, Ms Franjic said, the underlying causes of your behaviour and aggressive behaviours that precipitated your offending. 

75      Regarding this offending, your counsel correctly submitted your offences were objectively very serious and that your conduct offended against fundamental values of a civilised society.  Also that sexual offending involving children was regarded by the community as abhorrent and that courts had a duty to protect children, expecting courts to impose significant punishment on those involved in exploitation of children.  That there was a presumption of harm in cases of sexual offending against children.  Those submissions were all consistent with authority.  Your offending involving your daughter, Lauryn Kirkland, Ms Franjic conceded was particularly egregious with the aggravating features of it to which I have referred.

76      Your counsel urged, however, your offending did not occur over a long period of time, in particular, involving Lauryn Kirkland over five days, 3 to 7 August.  I am aware of that.  Charge 3 was however a ‘rolled up’ charge of two incidents (Exhibit E).

77      Ms Franjic submitted your offending against Lauryn Kirkland was not attended by violence or force which would have elevated the seriousness of your offending.  I do, however, note Lauryn Kirkland was asleep during some of your offending.  You did not need to use violence to offend against her.

78      Addressing your offending relevant to Charges 1 and 4, Ms Franjic referred to Director of Public Prosecutions (Cth) v Garside,[10] conceding the “objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation, is grave.  It must ordinarily be the subject of substantial punishment”.

[10](2016) 50 VR 800.

79      Your counsel also conceded, general deterrence was a paramount sentencing consideration when sentencing for child pornography offences and that generally a person’s prior good character is given less weight.  That is so, I note however ‘not eliminated’. 

80      Ms Franjic conceded immediate imprisonment was ordinarily to be expected for such offending and in your case conceded the appropriate sentence was a term of imprisonment with a non-parole period.  That, in my opinion, was an appropriate concession.

81      Addressing your offending in Charge 1, Ms Franjic conceded it was particularly serious, not isolated, accompanied by abhorrent references to your daughter, and included distribution of pornographic material involving her.  I discussed images of others also relevant to that charge.  See also (Exhibit E).

82      Your counsel conceded your moral culpability was high and your conduct a serious example of that type of offending.  I agree. 

83      Addressing Charge 4, Ms Franjic accepted the child abuse material found on your mobile phone was repulsive, involving gross degradation and exploitation of children, 383 files.  Your counsel urged that that was a modest number compared to other cases.  In my opinion a significant number.

84      In mitigation of sentence, Ms Franjic relied upon your pleas of guilty at the earliest opportunity, such having significant utilitarian value.  You had facilitated the course of justice and I accept your pleas indicate your responsibility and remorse for your offending, although I am concerned about the extent of your remorse as I have previously stated.

85      It was submitted you had demonstrated genuine contrition for your crimes beyond being caught, including in references tendered, and also to Mr Newton.  It was submitted your expressions of remorse were sincere and profound. 

86      Not surprisingly, as a direct result of your offending, you had to move from your family home, had not had contact with your children and your marriage had broken down.  You have no family in Australia other than your wife and children.  As Ms Franjic conceded, you are “the sole architect of your predicament”.

87      Turning to your rehabilitation prospects, I note the reports of Mr Newton and Mr Hanley, and have some concerns about your prospects.  To be comforted in that regard, you need intensive treatment to continue to address your offending behaviour.  Your risk of future offending as assessed by Mr Newton is concerning, as was his diagnosis absent such treatment.

88      Mr Newton described you as having significant issues with sexual adjustment and that you met the criteria for Paedophilic Disorder. 

89      Your counsel noted Mr Newton’s reference to your risk factors and his assessment of your risk of recidivism as “no lower than in the moderate-high risk category”.  That is a concerning risk assessment, in particular as you have already undergone significant treatment with Mr Hanley.  You need to continue to address your offending behaviour if I am to be at all comforted regarding your prospects of rehabilitation.  You are at the start, it seems, of a long process to rehabilitation. 

90      Ms Franjic referred to Mr Hanley and that you had “participated actively” in treatment.  Mr Hanley, however, also opined you would require an extended period of therapy.

91      I turn to the report from Mr Patrick Newton, clinical and forensic psychologist, dated 27 July 2020.  Mr Newton referred to your background and history, much of which was described by Ms Franjic (Exhibit 1) and I will not repeat.

92      You provided further details of your older stepbrother’s sexual abuse of you between ages 10 to 17, of him introducing you to viewing pornography as part of that abuse.  You had not disclosed that abuse, until with Mr Hanley.

93      You reported an extensive and compulsive involvement with internet pornography.  That viewing you said progressed from mainstream material to hardcore depictions of heterosexual adults.  You described your experience of pornography as “an addiction”, and that over the past 20 years it had been your primary means of stress relief.

94      You said you began using KiK about two years ago, initially with your wife to diversify your sexual behaviour, however said your wife lost interest in those activities and the application was deleted.  You reinstalled the application shortly thereafter without informing your wife.

95      Once you reinstalled KiK you said it became your main source of pornography.  You initially set limits on the material with which you would engage, however as your engagement with the material continued, you repeatedly “loosened” the boundaries you had set for yourself, engaging with more deviant material depicting younger individuals and more overt forms of sexual behaviour, further described in Exhibit 2 (see paragraph 27).

96      Mr Newton noted your steady increase in the level of deviant engagement with pornography and your rationalisation of your conduct as being permissible, progressing to more deviant behaviour within a very short period of time.

97      You reported that you did not have any history of psychological or psychiatric disturbance prior to this offending nor had you ever been prescribed medication for emotional or psychological issues, nor history of alcohol or illicit drug use.

98      You expressed remorse to Mr Newton for your offending, feeling sorry for the consequences and for what you did.  You acknowledged the breach of trust of your daughter, and that you had exploited her innocence.  You also felt sorry for the impact your offending had had on your family.

99      Your mental state at each interview with Mr Newton was described as “quite normal”.  You did not report symptoms of depressive mood disorder or disturbance.  You were not ‘hopeless’ and did not present with typical physical symptoms of depression.  Your anxiety had been proportionate to your situation and, in the opinion of Mr Newton, based in a realistic appraisal of the challenges you face.  Your thought processes were logical and clear.

100     Whilst your intelligence was not formally assessed, Mr Newton concluded your history suggested you were most likely somewhat above average, that you clearly understood the wrongfulness of your offending. 

101     In the opinion of Mr Newton, there was no evidence you suffered any form of mental disorder.  At the time of this offending, there was no indication your judgement or other mental processes were affected by any mental disorder.  Nor did you suffer PTSD from the abuse you reportedly suffered as a child.

102     I note Ms Franjic was not relying on the principles in R v Verdins & Ors[11] and such was an appropriate concession on the material before me.

[11](2007) 169 A Crim R 581 (‘Verdins’).

103     A review of your sexuality indicated, he concluded, the presence of significant disorder and profound dysfunction, arising from your emersion in pornography.  Your viewing of the material had moved towards more extreme material and you became preoccupied with finding new material, thus, the increasingly deviant and disturbing material – including most child pornography with incestuous themes.  You became increasingly obsessed with it, he said.

104     In the opinion of Mr Newton, your offending clearly indicated your sexual adjustment was disordered and your behaviour migrated from the virtual world to filming your daughter, including most concerningly, your willingness to engage in actual sexual assault of your daughter to manufacture material to boost your online profile.

105     Mr Newton regarded the escalation in your offending as particularly concerning.  As do I.

106     In short, your engagement with child abuse material he opined had been intense, multifaceted and prolonged.  I am conscious I am sentencing on the dates in the charges before me.  He concluded you met the DSM-V criteria for paedophilic disorder, non-exclusive type, sexually attracted to females. 

107     In the opinion of Mr Newton, further treatment was required beyond that received to date with Mr Hanley.  You needed to deepen your empathy for your daughter and those affected by child abuse more generally.  You needed to improve your insight into the sexual and social development of young people and address the sexual deviance underpinning your offending conduct. That, he opined, would be a long process of treatment.

108     Mr Newton suggested a group treatment program would be more effective to meet your ongoing treatment rather than further individual therapy.

109     Addressing your risk of sexual recidivism, utilising the Static-99R and RSVP assessment tools he estimated your risk “falling no lower than in the moderate-high risk category”. 

110     Your risk of recidivism he concluded was significantly higher than that of a typical sex offender.  That level of risk in your case suggested a strong need for continuing treatment and ongoing supervision to reduce the risk you might pose, those considerations in my opinion relevant when assessing your prospects of rehabilitation.

111     A report was tendered from Mr Hanley, psychologist, dated 28 July 2020 (Exhibit 3).  He confirmed 30 occasions with you, commencing 26 August 2019.  Your treatment focused on offence-related rehabilitative needs.  You appeared distressed at times and expressed feelings of guilt and regret regarding your offending.  When discussing your offending behaviour, your demeanour alternated between emotional distress and detached analysis. 

112     The Sex Offender Treatment Program involved counselling specifically adapted to address the individual needs of a person charged with sexual offending.  The therapeutic goals of the program were described in Exhibit 3 (paragraph 10(a)-(g)).

113     Treatment to date involved you being encouraged to explore the motivations for your offending, including sexual abuse by your stepbrother.  You seemed reluctant to acknowledge any interest in the content of your fantasies, that is children, even at the time of your offending, nevertheless you agreed your offending pointed to an underlying interest in child abuse ideas. 

114     You described developing a habit of coping with stress at the time of your offending by reverting to masturbating and pornography.  Whilst you knew your offending was “crossing the line”, you rationalised your behaviour.  Whilst you were able to express realistic thoughts about some aspects of your offending, your descriptions remained abstract and did not account for the content of your online discussions or behaviour involving your daughter.  Attempts to focus on details with you tended to arise anxiety and defensiveness.  Further treatment, in Mr Hanley’s opinion, was required. 

115     

The harm caused to your daughter by your offending was discussed by

Mr Hanley.  You expressed regret for your offending, which you acknowledged was for your sexual gratification.

116     Relapse prevention training also formed part of your strategies and treatment aimed at reducing your risk of future sexual offending.  You described having difficulty managing your sexual urges over the years (see paragraph 17). 

117     You reported successful abstinence from pornography over the last several months.

118     Mr Hanley stated you had made good progress towards many of your treatment goals albeit with some notable exceptions.  You struggled to discuss your sexual thoughts and interests in a concrete way.  The various challenges referred to within Exhibit 3 (paragraph 18) he opined were likely to slow but not inhibit your progress in treatment.  Further sex offender treatment was required, focusing on addressing your sexually deviant thoughts and interests and empathy for victims of sexual abuse, including your daughter. 

119     Mr Franjic urged that I should have some optimism regarding your rehabilitation prospects based on your lack of prior and subsequent offending, your commitment to rehabilitation since being charged, your genuine remorse for this offending, the support of your family overseas, your solid work history, absence of any mental illness or severe personality disorder, or substance abuse.  I have, at this stage, ‘some’ optimism albeit guarded regarding your rehabilitation prospects.  You have a significant number of issues to address to avoid re-offending based on the two reports before me, and your current risk as assessed by Mr Newton is troubling.  I can only hope with successful treatment your level of risk will improve.  When sentencing, I must seek to maximise your chances of rehabilitation as they may be. 

120     Ms Franjic submitted you faced deportation from Australia upon release from prison and urged I take that into account when sentencing.  You are not on a visa, and I discussed deportation of a permanent resident.  Ms Franjic’s further written submissions (Exhibit 6) addressed that.

121     You hold a family stream permanent residence visa, subject to mandatory cancellation upon being sentenced.  I accept consistent with Guden v The Queen[12] your concern regarding likely deportation and such may increase your burden of imprisonment compared to a prisoner without such considerations.

[12](2010) 28 VR 288.

122     Ms Franjic urged relevant to deportation that you had family here and had lived in Australia for 10 years.  I accept this is so.

123     I also note your marriage to Melissa Higgs is apparently no longer, and you are precluded from contact with your children.  You would also be returning to family in the United States.  If deported you would therefore have some support in the United States.  Your situation is different to offenders who have built a life in Australia with no supports in their home country, yet being required to return to their homeland.

124     I accept however, you will have concern regarding deportation, making your time in custody more burdensome.  You are, however, intelligent and I am sure were aware this offending, if detected, would likely lead to you being imprisoned and possibly deported.  That did not deter you from offending.

125     Ms Franjic submitted while serving your sentence you would be isolated from your family, not receiving visits in prison.  It is not surprising you will not have any family contact given the nature of your offending.  I repeat, as Ms Franjic noted, you are the “sole architect of your predicament”.

126     Fourteen references were tendered (Exhibit 5):  Four from your family; your father Allan Kirkland;[13] mother, Vivienne Humphrey;[14] sister, Francis Ridley[15] and stepmother, Lulu Kirkland.[16]  I have read those references.  They described your offending as out of character.  I discussed the various descriptions of you in various references as being honourable, reliable, trustworthy and a productive individual of society, that your children’s needs were always your number one priority, and that you were a devoted father, such statements raise concerns about their understanding of your offending or the impact of it.  However, I accept those descriptions likely refer to ‘other than’ this offending. 

[13]A pseudonym.

[14]A pseudonym.

[15]A pseudonym.

[16]A pseudonym.

127     There were a number of references from members of SLAA.  The authors refer to your regular attendance at SLAA meetings and active involvement in them.

128     There was also a reference from the head of student advisory at Open University Australia, dated 22 July 2020.  It appears he had only ‘very recently’ become aware of these charges.  Your offending, he said, was not consistent with the person he knew.  He described you as professional, hardworking, and reliable at work.  You had played an active part in a number of projects in his department.  He knew you were attending counselling although did not know the details of it.

129     Addressing COVID-19, I accept the pandemic causes stress and concern for prisoners and likely you.  Face-to-face ‘in-person’ visits are not occurring.  That prisoners who enter prison spend the first 14 days in isolation and that a number of courses are no longer available. 

130     Ms Franjic addressed the standard sentencing provisions relevant to Charge 3 in R v Brown,[17] in which his Honour Justice Champion referred to the general operation of that scheme, with reference to the Explanatory Memorandum to the Amendment Act and the Attorney-General’s Second Reading Speech (see Exhibit 1, paragraphs 79-81).

[17][2018] VSC 742.

131     The standard sentence is intended to represent the sentence for an offence in the ‘middle range’ of offence seriousness, taking into account only objective factors of offending.  Standard sentence is but one of many factors to be taken into account in the sentencing process.  In Brown v The Queen[18] the Court referred to a number of relevant and applicable propositions when sentencing under this regime (see paragraphs 25 and 55).

[18](2019) 59 VR 424.

132     I am required to identify the facts, matters and circumstances which bear upon the judgement I have reached as to the appropriate sentence in your case and  have referred to that in detail in these sentencing reasons.

133 The sentence I have imposed on Charge 3 is less than the standard sentence. In so determining I have taken into account all of the matters I am required to consider under s.5(2) Sentencing Act 1991 including the standard sentence for the offence before me. I have also taken into account any mitigating factors which apply to your offending. By the process of instinctive synthesis I have arrived at the sentence I will in a moment announce.

134     Ms Franjic addressing the Crimes Act 1914 (Cth) and Sentencing Act 1991 (Vic) conceded general deterrence was a paramount sentencing consideration. I agree. That just punishment and denunciation were also prominent sentencing considerations she said. I agree.

135     Your counsel urged however that specific deterrence and community protection were not pre-eminent sentencing considerations in the circumstances.  I disagree.  Your offending not only involved Lauryn Kirkland, also transmission and possession of other victims (CAM) and further repeated transmission (i.e. on 12 incidents in Charge 1) (see Exhibit E).  There is also the need to protect the community from you, confirmed by the assessment of both Mr Hanley and Mr Newton of your risk of future offending, diagnosis of Paedophilic Disorder and your need for long-term treatment.  The need to protect the community, in my opinion, is an important sentencing consideration.

136     Addressing sentence, Ms Franjic submitted totality was a relevant consideration.  I am conscious of that, and thus my request for a clear description of offending specifics relevant to each charge (see Exhibit E).

137     Ms Franjic conceded each offence involved discrete conduct, although urged there was substantial overlap between charges, urging modest cumulation between them. 

138     The prosecution filed written submissions relevant to sentence, dated
3 August 2020 (Exhibit D).

139     Addressing the standard sentence (Charge 3), the prosecution submitted I was obliged to only take into account the objective factors relevant to that offending.  To that end, Mr McKenry urged yours was a grave example of offending, given the relationship between yourself and the victim, her age, vulnerability, your motivation for your offending and gross breach of trust.  I agree. 

140     The prosecution referred to Mr Newton’s assessment of your risk of sexual recidivism as “no lower than moderate to high level” and that such was his assessment after a year of sustained treatment.  That, he urged, left little room for optimism as to your rehabilitation.  I am, as I have said, concerned about your ongoing need for extensive counselling to address your offending behaviour.

141     Addressing specific deterrence, Mr McKenry referred to your longstanding addiction to pornography, that the images you transmitted and possessed relevant to child abuse material extended to images and videos beyond those featuring your daughter.  There was a need for specific deterrence as well as community protection.  As I have previously stated, I agree.

142     The prosecution submitted the only appropriate disposition was an immediate term of imprisonment with a non-parole period.  I agree.

143     The prosecution also provided a copy of the Commonwealth Sentencing Guide dated July 2020 relevant to sentencing Commonwealth offenders in Australia.

144     I turn to some further comments regarding your offending.  Over the years applicable penalties especially to Commonwealth offences before me, Charges 1 and 2, have increased marking Parliament's intention that general deterrence and denunciation are dominant sentencing factors.  See R v Jongsma,[19] R v Coffey,[20] and DPP (Cth) v D’Allessandro,[21] R v Gent[22] to name just a few.

[19](2004) 150 A Crim R 386, 401 [31].

[20](2003) 6 VR 543, 552.

[21](2010) 26 VR 477.

[22](2005) 162 A Crim R 29.

145     When sentencing each case must turn on its own circumstances.  The cases show ordinarily a term of imprisonment is to be expected and in this case your counsel Ms Franjic quite frankly, and properly, conceded in your case a term of imprisonment to be served immediately was inevitable.  That is so even though you do not have any prior offences.

146 Your offending had impacted upon your whole family. You were forced to separate from your wife and children. You can no longer provide financial support to your family. Whilst that ‘hardship’ is not of the type in s.16A(2)(p), I accept this will increase your stress levels and make your period of incarceration more onerous and your concern about them.

147 In determining the sentences to be passed in respect of the Commonwealth offences I must impose sentences that are of a severity appropriate in all their circumstances (see s.16A(2) Crimes Act 1914 (Cth)). I have taken into account all material relevant and known.

148 The factors relevant to sentencing you on the Commonwealth offences are also relevant to the sentence to be imposed on the State charges, although I am not looking at the specific matters identified in the Commonwealth Crimes Act. Rather these matters arise under State Law. In essence, however, they are the same or similar matters.

149     I take into account all of the matters personal to you to which I have referred.  Including your prospects of rehabilitation as I find them to be.

150     I am also required to take into account the need to protect members of the community from you.  I must mark the community’s denunciation of your conduct, and generally impose a just punishment. 

151     In all the circumstances I have determined there is no option but to impose terms of imprisonment on each charge.

152     Relevant to cumulation, I take into account the fact that the four charges are discrete, albeit there is a degree of overlap on the facts before me consistent with Exhibit E.  In my view, total concurrency would fail to do justice to your offending.  I must and do pay regard to principles of totality and proportionality and the need to avoid imposing a crushing sentence.  Balancing these matters, I have determined the following sentence be appropriate.

153     When sentencing for both Commonwealth and State offences I note DPP (Vic) & DPP (Cth) v Swingler[23] in which the court referred to the difficulty/complexity when so sentencing, the court referred to the technical problems associated with accommodating Commonwealth and State offences on a plea of guilty in a single Indictment (see paragraphs 60-62). 

[23](2017) 269 A Crim R 526 (‘Swingler’).

154     The court also referred to the very real difficulties reconciling the principles that govern orders for cumulation and concurrency in relation to State and Commonwealth sentences (see paragraphs 63-64, 67-68).

155     The court in that case also referred to the ‘extraordinary’ difficulties associated with sentencing for multiple offences on a joint Commonwealth/State Indictment and that this was not the first time the court said that those difficulties had been the subject of intermediate appellant courts (paragraph 75-77).  When sentencing you I have applied that as stated within paragraphs 78(2) and 88-89 of those sentencing remarks.

156     I now want to explain the process that I am going to adopt in this COVID world, i.e. there is no-one here in front of me physically, and that means that you are all on zoom or whatever you call it.  I want to explain this process that I am going to now adopt.

157     In a moment my associate is going to send through when I tell her to the sentence - the proposed sentence.  What I am interested in is the structure.  I believe that there is someone here from the Commonwealth, Ms Vicki Hogarth, who has arrived.  You are here?

158     MS HOGARTH:  Yes, Your Honour.

159     HER HONOUR:  So that is you.  Ms Franjic is here, Mr McKenry is here.  There are three people in a moment - three only - who will receive copies of my proposed sentence and with that will be a chart which I hope further assists you to understand the structure of the sentence.  Assuming all this works out nice and neatly those documents should now be heading your way to those three people and those three people alone.

160     What is going to happen then is I will go through the proposed sentence, I will then give the three of you the opportunity to discuss it amongst yourselves and consider it to make sure the structure is right.  It is important Mr Kirkland understands I am not horse trading about the sentence, I am only interested in ensuring the structure of the sentence I intend to impose is correct.

161     So we will do that and then we will come back in a certain amount of time and then we will discuss it to ensure that the three of you understand the sentence I intend to impose and that it meets the structural requirements.  Just so you know anyone else who happens to be listening you would be very unwise to assume that this sentence is as I am now discussing because I have not discussed it yet with counsel.

162     So what is going to happen is after we break the three of us will all come back and anyone else who wants to hear the final sentence can come back and we will then proceed to the formal sentencing.  I am only attempting to discuss the structure.  Does that make sense?

163     MR McKENRY:  Yes, Your Honour.

164     HER HONOUR:  Ms Franjic?

165     MS FRANJIC:  It does, Your Honour.

166     HER HONOUR:  Ms Hogarth, do you understand what I am trying to do?  I am trying to do it in this world of visuals or virtuals or whatever you call it.  It is not easy.

167     MS HOGARTH:  Yes, Your Honour.

168     HER HONOUR:  Normally you would be here in front of me and I would hand it down and we would all go away and then come back.  Just so that you appreciate the following.  Video link is available until 1 o'clock today then not until after three but we have got it until 6 o'clock.  If you need days to consider this sentence feel free but what we are going to do is attempt to resolve it now, but if not, there is plenty of opportunity.

169     You will recall in Swingler I think the Court of Appeal gave the parties seven days to go and work it out.  There were more charges in that case.  I am certainly aware of that but do counsel understand what I am trying to achieve here?

170     MR McKENRY:  Yes, Your Honour, I follow.

171     MS FRANJIC:  Yes, Your Honour.

172     HER HONOUR:  That is a start.  They are going to be shot through now and then I will read them out and then we will go and then you can go and chat about the structure and the three of you can I think remain on the link if you want to talk together but everyone else will be cut out if that makes sense.

173     My associate is sending these documents to you so you must have given her some number or whatever, an email address or something.  Have you got them yet?  How are they going?

174     MR McKENRY:  Not yet, Your Honour.

175     HER HONOUR:  Not yet?  How about you, Ms Hogarth, not yet?

176     MS HOGARTH:  Not yet, Your Honour.

177     HER HONOUR:  There is a chart coming through.  That might slow it down a little bit.

178     I will sentence on the two state charges first and you are sentenced on Charges 3 and 4 as a serious sex offender.   Can you tell me if they have arrived, anybody?  Two documents it should be.  One is two pages.

179     MS HOGARTH:  I have received an email with two documents.

180     HER HONOUR:  Who is that, Ms Hogarth?

181     MS HOGARTH:  Yes.

182     HER HONOUR:  How about you, Ms Franjic, are you with us?

183     MS FRANJIC:  I am with you, Your Honour, but I have not received anything yet.

184     MR McKENRY:  Nor have I.

185     HER HONOUR:  I do not know why yours is slower than the Commonwealth but you are.  As I say, two documents coming through which I will go through with counsel and then leave you to discuss.  Mr Kirkland, this is part of the process when we deal with Commonwealth and State matters.  You have just got to put up with it, it is just one of those things if you were listening.  Swingler, a case of the Court of Appeal refers to the complexity and it has got to be structurally correct.

186     MS FRANJIC:  I have received the documents, Your Honour.

187     MR McKENRY:  I have just gotten them too.

188     HER HONOUR:  Well done.  I am going to go through them with you and then we will leave you to have a chat.  You should have this document.  I will sentence on the two State charges first and you are sentenced on Charges 3 and 4 as a serious sexual offender.  So I will read it through fairly quickly.  You have got copies there so you can follow it.

189     On Charge 3, sexual assault of child under the age of 16, you are convicted and sentenced to 2 years and 6 months' imprisonment.

190     On Charge 4, possession of child abuse material, you are convicted and sentenced to 10 months' imprisonment.

191     Charge 3 is the base sentence and I direct that 6 months of Charge 4 be served concurrently and 4 months of Charge 4 be served cumulatively on Charge 3.

192     The total effective sentence on the State charges is 2 years 10 months imprisonment.

193     The sentence on Charge 3 will commence today, 27 August 2020.

194     I set a state non-parole period of 2 years on those charges (Charges 3 & 4).

195     I turn then to sentence you on the Commonwealth offences.

196     On Charge 1, use carriage service to transmit child pornography material, you are convicted and sentenced to 12 months' imprisonment. That sentence to commence on the expiration of the State non-parole period.

197     On Charge 2, use carriage service to produce child pornography material, you are convicted and sentenced to 9 months' imprisonment. That sentence to commence 7 months after the expiration of the State non-parole period.

198     That makes for a total effective sentence on the Commonwealth charges of
1 year and 4 months.

199     I direct that you then be released on a Recognizance Release Order in the sum of $1,000 for a period of 12 months to be of good behaviour, after having served 4 months of the total effective sentence imposed on the Commonwealth charges.

200     The effect of the orders for cumulation of sentences in essence on all charges is a total effective sentence on State and Commonwealth offences of 3 years and 4 months’ imprisonment.

201     In effect, your earliest available release date is 2 years 4 months, then on a Recognizance Release Order for 12 months.

202     Turning to the Recognizance Release Order, on the Commonwealth charges, I am obliged to explain it in language you are likely to understand.  I will give you that for you to read and as for the next couple of pages you can read that, counsel.  It is not a secret, I will come back to it when we formally sentence, so do not panic anybody.  You would have received a chart which I hope will help you to understand what I have done.  That is the plan.

203     What I am going to do now is give everybody an opportunity, that is the three of you, to digest what I have just said.  It is in written form to help you and it is in a table.  The three of you may wish to speak to each other and so for this purpose I propose to disconnect everybody else or whatever it is, they will not be able to hear this.  They can stay there if they want but I will come back in half an hour to see how much more time you need.  Is that enough?  Is that going to be helpful, Mr McKenry?

204     MR McKENRY:  Yes, Your Honour, that is sufficient time.  I understand you are providing the materials to counsel.  Is there a difficulty with discussing the material with our instructor?

205     HER HONOUR:  No, you can get the instructor.  They can be on the link so that is Mr Azzopardi and Ms Verkade, so they can be part of the five way discussion.  Ms Franjic, are you following all this?

206     MS FRANJIC:  I am, Your Honour.  Can I just check that it is okay for me to forward that email to my instructor for the purposes of discussing it?

207     HER HONOUR:  No, I would rather you did not at this stage.  You can do it very easily.  The chart is there.  You can work it out and discuss it.  I would rather you did not.  It does not mean it cannot be discussed.  So that means that there will be five of you who will be able to hear each other and discuss it.  Ms Hogarth, I forgot you.  Are you still there and you are okay with this?

208     MS HOGARTH:  Yes, Your Honour.

209     HER HONOUR:  The five of you can discuss this.  I will come back in at ten past 11 and if you want more time it is not a problem.  I just want to find out where we go at ten past 11.  Does that make sense?

210     MS FRANJIC:  Yes, Your Honour.

211     HER HONOUR:  Everybody else who is listening you will be put into what I am told is the waiting room, whatever that means.  If you want to go and you do not want to come back that is fine but bear in mind the sentence has not been pronounced yet, but if you want to go feel free and then we will bring them back, whoever is still there we will bring them back at ten past 11 for an update from the parties.

212     I am going to leave the Bench and we will take care of it that way.  Are counsel happy to discuss this in the presence of my tipstaff?  He has got to work this electronics business.  My associate can leave but he has to stay.

213     MR McKENRY:  Yes, Your Honour.

214     MS FRANJIC:  Yes, Your Honour.

215     HER HONOUR:  Everyone else will go.  I will come back at ten past 11 and just get an update on how much time you need.

(Short adjournment.)

216     HER HONOUR:  First things first, I am assuming everyone is there.  I did after I left the Bench arrange for my associate to forward to both instructors what was mentioned as confidential documents which was the written version and the chart.  I know both of those instructors on a professional basis obviously.  They have worked in the courts and I have every faith that they would keep it confidential which as you know had 'confidential' written all over it.

217     They were forwarded through so I assume you got it.  A question for you first of all, Ms Hogarth.  I am not so much concerned about the figures, whether counsel like the actual figures is a different matter, the structure.  Does it meet with the Commonwealth's approval, for want of a better term, as to the structure?

218     MS HOGARTH:  Yes, I think Your Honour's sentence is structurally sound from a Commonwealth perspective.

219     HER HONOUR:  So there is a non-parole period.  There are no gaps that have been referred to in Swingler.

220     MS HOGARTH:  That is right, Your Honour.

221     HER HONOUR:  As I understand it there is no reason why I cannot do a global 6AAA which I have done.  I assume that made its way through to you as well so basically as far as you are concerned the structure of the sentence accords with what is required as far as the Commonwealth is concerned.  Is that so?

222     MS HOGARTH:  That is so, Your Honour.

223     HER HONOUR:  Over to you, Mr McKenry.  As far as the State is concerned you have had an opportunity, I trust to discuss this with Ms Franjic and Ms Hogarth.  Is it in accord with - I am not asking if you like the figures, I am asking whether the structure accords with the State's view?

224     MR McKENRY:  It does, Your Honour, the structure accords with the State's view and there is nothing about that sentence or the draft sentencing remarks Your Honour provided that I take issue with.

225     HER HONOUR:  Back to you, Ms Franjic.  Did you have a chance to discuss any concerns you had with this matter?  I take it the answer is yes and I assume you were able to.  My question is do you have any difficulty?  Is there any problem with the structure?  Please note I am referring to the structure only.

226     MS FRANJIC:  No issues with the structure, Your Honour.

227     HER HONOUR:  What I propose to do then is formally pronounce the sentence which just means I will have to read it out again but you will just have to bear with me, counsel, but you can at least follow me on the pages you have been given.

228     Mr Kirkland, are you still with us?  I know it has been a long process for you.

229     OFFENDER:  Yes, Your Honour.

230     HER HONOUR:  Your counsel will explain at some stage in the future what this is all about.  I will not go over it again, it has just got to be correct.  I proceed to formally sentence.

231     I will sentence on the two State charges first and you are sentenced on Charges 3 and 4 as a serious sexual offender.

232     On Charge 3, sexual assault of child under the age of 16, you are convicted and sentenced to 2 years and 6 months' imprisonment.

233     On Charge 4, possession of child abuse material, you are convicted and sentenced to 10 months' imprisonment.

234     Charge 3 is the base sentence and I direct that 6 months of Charge 4 be served concurrently and 4 months of Charge 4 be served cumulatively on Charge 3.

235     The total effective sentence on the State charges is 2 years 10 months imprisonment.

236     The sentence on Charge 3 will commence today, 27 August 2020.

237     I set a state non-parole period of 2 years on those charges (Charges 3 & 4).

238     I turn then to sentence you on the Commonwealth offences.

239     On Charge 1, use carriage service to transmit child pornography material, you are convicted and sentenced to 12 months' imprisonment. That sentence to commence on the expiration of the State non-parole period.

240     On Charge 2, use carriage service to produce child pornography material, you are convicted and sentenced to 9 months' imprisonment. That sentence to commence 7 months after the expiration of the State non-parole period.

241     

That makes for a total effective sentence on the Commonwealth charges of

1 year and 4 months.

242     I direct that you then be released on a Recognizance Release Order in the sum of $1,000 for a period of 12 months to be of good behaviour, after having served 4 months of the total effective sentence imposed on the Commonwealth charges.

243     The effect of the orders for commencement of sentences in essence on all charges is a total effective sentence on State and Commonwealth offences of 3 years and 4 months’ imprisonment.

244     In effect, your earliest available release date is 2 years 4 months, then on a Recognizance Release Order for 12 months.

245     Turning to the Recognizance Release Order, on the Commonwealth charges, I am obliged to explain it in language you are likely to understand.

246     The Recognizance Release Order in respect of the sentence I have imposed, so I am addressing you in relation to Charges 1 and 2. What that means is after you serve a term of 4 months on Charges 1 and 2 you will not be required to serve the remainder of your sentence in custody.  You may then be released on a Recognizance Release Order and you will be permitted to serve the balance of that term imposed in the community.  The Recognizance Release Order means you will be subject to a condition to be of good behaviour during the operational period of the order, that is, 12 months.

247     I must inform you that if you fail without reasonable excuse to fulfil or comply with this condition, you may be brought back before the court and the Recognizance Release Order may be revoked or cancelled, the $1,000 forfeited, and you may be dealt with by the court for the offences in respect of which the Order was made, and you may well be required to serve a further term of imprisonment.

248 I must further inform you that s.20AA Crimes Act (Cth) enables you in certain circumstances to apply to the court for a discharge or variation of the terms or duration of this Recognizance Release Order. I do not propose to add any conditions to that Order, other than you be of good behaviour during the period of that Order.

249     You will need to sign the Recognizance Release Order and I will discuss that process with counsel in a minute and consent to the making of that order, otherwise you will not be released after that 4 months of the Commonwealth sentence to which I have previously referred. 

250     Has the prosecution prepared the Recognizance Release Order?  That is my first question.  Ms Hogarth, are you still with us?

251     MS HOGARTH:  Yes, I had not prepared one but I am able to send a copy through to Your Honour's associate.

252     HER HONOUR:  How long will it take you to do that do you think?

253     MS HOGARTH:  Perhaps ten minutes, Your Honour.

254     HER HONOUR:  We will come back to you in a minute because these have to be signed you understand, they have got to come to me and then sent to him.

255 Pursuant to s18(4) of the Sentencing Act 1991, I declare you have spent 25 days in custody by way of pre-sentence detention up to and including yesterday, 26 August 2020, and I direct that that be entered into the records of the Court. Do you agree with that figure, Ms Franjic?

256     MS FRANJIC:  Yes, Your Honour.

257     HER HONOUR:  Do you agree, Mr McKenry?

258     MR McKENRY:  Agreed.

259     HER HONOUR:  I direct it be entered into the records of the court you have been sentenced as a Serious Sex Offender on Charges 3 and 4.

260     I direct you are required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for life.

261 Had you pleaded not guilty to these offences and been found guilty of them, pursuant to s 6AAA of the Sentencing Act 1991, I would have sentenced you to a term of imprisonment of 6 years, with a non-parole period of 4 years.

262     The prosecution made application for a forfeiture order in respect of your Samsung Galaxy A5 smartphone.  That was not opposed by counsel on your behalf and I make the order in the terms sought. 

263     Were there any other orders?  I did not have any noted but I might have missed some.  Is there any further order required?

264     MR McKENRY:  No, Your Honour.

265     MS FRANJIC:  No, Your Honour.

266     HER HONOUR:  What has to happen now, Ms Franjic and Mr McKenry and Ms Hogarth, is, Ms Hogarth, would you please forward the recognisance release order to my associate?

267     MS HOGARTH:  Yes, Your Honour.

268 HER HONOUR: Then that document must be forwarded to Mr Kirkland in prison for him to sign as does the SORA documents, the Sex Offender Registration Act documents, you will be familiar with what I am talking about, Ms Franjic and Mr McKenry? They will also have to be forwarded and just signed and then the receipt of the paperwork. He is not being asked if he wants to be on the order, I have made the order, it is just acknowledging receipt of the relevant paperwork so he knows what it is about.

269     What is planned is as soon as Ms Hogarth sends the recognisance release order to my associate those two documents, that is recognisance release order which Mr Kirkland must sign and the SORA documents which he can sign acknowledging receipt of them and then it has to come back to us at court.  This process is apparently adopted fairly frequently.  It seems to me it is.  Prisons are aware of it so the question is we need to know that all this happens before we leave.

270     How are we going, Ms Hogarth?  How long do you think you need?

271     MS HOGARTH:  Yes, I am drafting it now, Your Honour.

272     HER HONOUR:  I might wait.  Will it take you very long?  It is not dare I say terribly lengthy?

273     MS HOGARTH:  No, it should not take me too long, I am just preparing it now.

274     HER HONOUR:  I need to correct something.  I think it is paragraph 168, counsel, I said the effect of the orders for commencement of sentences, what I apparently said however was I used the word instead of commencement I said cumulation.  That was wrong.  What I meant to say is as per the document you have got the effect of the orders for commencement.  That is paragraph 168 so I am sorry that I apparently - my associate picked me up on that so sorry about that.  It is as you were given.  I misread it or did not read it.  Are you with me on that, Ms Franjic?

275     MR McKENRY:  I think it is our paragraph 13, Your Honour.

276     HER HONOUR:  Yes, do you follow that, Ms Franjic?

277     MS FRANJIC:  I do, Your Honour.

278     HER HONOUR:  It was paragraph 13 of your document, the confidential draft.  We are just waiting now for this other document to go through.

279     MS FRANJIC:  Can I ask Your Honour after Your Honour has left the Bench am I able to with Mr Azzopardi speak briefly and confidentially with my client on the video link?

280     HER HONOUR:  How long are you planning to be?

281     MS FRANJIC:  Five minutes, Your Honour.

282     HER HONOUR:  We will wait and see.

283     MS FRANJIC:  Thank you.

284     

HER HONOUR:  Can you let us know when you are sending it through,

Ms Hogarth, so we can keep track of it?

285     MS HOGARTH:  Yes, Your Honour.

286     HER HONOUR:  Thank you.  Mr Kirkland, are you still with us?

287     OFFENDER:  I am here.  I wanted to ask if we can - - -

288     HER HONOUR:  Just wait a minute please.  We will give you a quick chance to speak to your counsel in a minute but we are just sorting this out.  They can raise it with me if they want to at a later stage but I think whatever you say should be to them first or to your counsel first.  How is it going, Ms Hogarth?  Are we there?

289     MS HOGARTH:  Yes, I am just emailing it through now.

290     HER HONOUR:  Thank you very much.

291     MS HOGARTH:  I had also copied in Mr McKenry and Ms Franjic.  I am not sure if they have received the email.

292     HER HONOUR:  How about you two, Mr McKenry and Ms Franjic, has it come through yet?

293     MS FRANJIC:  I have received it, Your Honour.

294     HER HONOUR:  Just have a quick read of it and make sure it accords with what I have said.

295     MR McKENRY:  I am doing that now, Your Honour.

296     HER HONOUR:  Mr McKenry, have you had a chance to look at it?

297     MR McKENRY:  Yes, Your Honour, other than formatting which I suspect is an issue with my phone the content is agreeable.

298     HER HONOUR:  Ms Franjic, is it as I said in the sentence?

299     MS FRANJIC:  It is, Your Honour.

300     MS HOGARTH:  I have just identified, sorry, Your Honour, on the second page there is a slight typo in the offender's middle name.  I have neglected to include a letter in the offender’s middle name.

301     HER HONOUR:  So are you doing it again or what are we doing?

302     MS HOGARTH:  Perhaps if that could just be - if I could impose on Your Honour's associate to include the letter?

303     HER HONOUR:  Does either counsel object to me ordering that the letter be put into the middle name of Mr Kirkland, Mr McKenry?

304     MR McKENRY:  No, Your Honour, not at all.

305     HER HONOUR:  Ms Franjic?

306     MS FRANJIC:  No, no objection, Your Honour.

307     HER HONOUR:  That will be amended, my order.  That will be done and that is being sent.  Those two documents are now being sent and have gone to the prison.  We have not received it yet.  For some reason we are out of the loop.  It has been received and I have given you leave to amend with a red pen.

308     That document and the SORA documents will be forwarded to Mr Kirkland at prison.  That will happen hopefully very soon because one of the documents he must sign is of course the recognisance release order.  If he does not sign that order then I have to resentence him so it is not just a case of if he does not sign it, we will send them off and hope he sends them back, I need to know what happens with that recognisance release order.  Does that make sense to both counsel?

309     MR McKENRY:  Yes, Your Honour.

310     MS FRANJIC:  Yes, Your Honour.

311     HER HONOUR:  We will all be waiting for Mr Kirkland to return those documents, in particular the RRO.  How long is it taking?  The importance of course being the RRO.  SORA is important but people can refuse to sign SORA documents if they are still alive and active but the RRO needs to be by consent as you are both aware and if he does not want to sign, I will have to think of another sentence.

312     We are just preparing whatever is necessary and putting the letter in the offender’s middle name.  I think the best I can hope for, counsel, it is now 11.30.  I am hoping that I will find out from my associate how long this is going to take to get to the prison and how long it is going to take to get back to us.

313     Someone needs to witness his signature so we now have to make a phone call so that someone can come into the room with him so that he can sign the documents.  This is just the way it is, Ms Franjic.  It would be a lot easier if everyone was in this room with me, it would be all over but this is a difficult world.

314     Do you have any objection to that course?  We have to ring through and try and get someone there to witness his signature.

315     MS FRANJIC:  There is no objection from me, Your Honour.

316     HER HONOUR:  Anything to say, Mr McKenry?

317     MR McKENRY:  (Indistinct words) is of concern if (indistinct) is granted once again, Your Honour, is if necessary makes clear to the media that are present that the same reporting obligations apply.

318     HER HONOUR:  That was very hard to understand, I am sorry.  You crackled at this end.  Can you repeat it and try again?

319     MR McKENRY:  Yes, Your Honour, my apologies.  I would ask that the media be reminded of their legal obligations in reporting this matter.

320     HER HONOUR:  Yes, I would have thought that was self-evident but yes, of course, there are very clear restrictions about identifying particular victims and they would need to be very wary of that if I need to remind them but there would be a clear breach by printing anything that might assist in identification of the victims if I could use that term.

321     MR McKENRY:  Thank you, Your Honour.

322     HER HONOUR:  By that I am referring to Lauryn Kirkland, Tate Kirkland, Melissa Higgs.  My associate is just on the phone, bear with us.  We are waiting.  Whoever my associate was speaking to needs to go and ask someone apparently so just give us a minute.  We are apparently going to send those documents through now I think.  It is being scanned.  I have signed it.  I will keep you posted, counsel.  We have just scanned the document.  That is the recognisance release order.

323     It has been sent so we can confirm we are up to that phase now.  It has been sent, the prison have to receive it, they have to take it to Mr Kirkland who remains where he is and he signs the two documents and I take it you went through these with him, Ms Franjic?

324     MS FRANJIC:  Not the recognisance release order, Your Honour.

325     HER HONOUR:  You did not go through what such an order might be?

326     MS FRANJIC:  No, I did not.  Perhaps if I could just have a few minutes with him now, Your Honour, very briefly?

327     HER HONOUR:  Everyone else will go into the waiting room.  It just takes time.  Now is your only chance to speak to him.

328     MS FRANJIC:  Thank you, Your Honour.

329     

HER HONOUR:  I cannot keep doing all of this, it is just complicated.  I would have thought that - it has not been done.  Everyone else will be - even you,

Mr McKenry, will be in the waiting room or something.

330     MR McKENRY:  Yes, Your Honour.

331     HER HONOUR:  Ms Franjic, you will be very quick with this part of it, will you?

332     MS FRANJIC:  I will, Your Honour.

333     HER HONOUR:  Everyone else will go into the waiting room except Mr Kirkland and Ms Franjic.

334     MS FRANJIC:  And Mr Azzopardi, Your Honour, if that is okay.

335     HER HONOUR:  Yes.  I will be back.  You can have just two or three minutes when I leave the Bench and then we will come back and wait for them to be signed.  In the meantime we will make a phone call to see if someone is getting them signed.  I will come back at five to but you will need to do this much quicker than that, Ms Franjic.  Things have to keep moving.  It is complicated.

336     MS FRANJIC:  Yes, Your Honour.

337     HER HONOUR:  I will leave and I will be back at five to, so that is five minutes, no more than a couple to sort this out.

(Short adjournment.)

338     HER HONOUR:  We are bringing everyone back.  We should have everybody back now.  Is someone there with the documents?

339     OFFENDER:  I signed the documents in front of a correctional officer witness.  One of your attendants mentioned that you would prefer if it was signed with you back in the room so she has just gone now to reprint the second copy of these documents so I can sign them once again in front of both herself and yourself, Your Honour.

340     HER HONOUR:  So that is taken care of.  We will just wait.  Did you have enough time, Ms Franjic?  It is just complicated.

341     MS FRANJIC:  I did have enough time, thank you, Your Honour, I am grateful.

342     HER HONOUR:  That will be it I am afraid today when we sort this out.  Are you still there, Ms Hogarth?

343     MS HOGARTH:  Yes, Your Honour.

344     HER HONOUR:  I can see there is someone in the room there with Mr Kirkland.  Mr Kirkland, can you sign that again and the person witness it so I can see them?  I can see them now.  Is there someone there?

345     OFFENDER:  Yes, Your Honour.

346     HER HONOUR:  You just sign it again.  Yes, there is someone there, I can see, thank you very much.  I can see someone now witnessing that.  I trust counsel accept what I am telling them about that.  That looks like it is signed, thank you very much, officer.

347     

Thank you, Madam, very much for that.  You will forward them back to us?  Excellent, it has all been done.  Nothing further from anybody?  They will send them back to us.  Copies will be forwarded to the parties so do not be concerned.  There is nothing else at this stage.  Do you agree with that,

Mr McKenry?

348     MR McKENRY:  Nothing from the prosecution, Your Honour.

349     HER HONOUR:  Yes.  How about you, Ms Franjic?

350     MS FRANJIC:  Nothing from me, Your Honour.

351     HER HONOUR:  Thank you.  We will disconnect the link now.  Mr Kirkland, thank you.  If you want to speak to your counsel again or solicitor you will have to do it by other means, not in the courtroom as we just did before and we will send copies out to the parties if not today, tomorrow, but they will be sent out.  Thanks, everybody.

- - -

ANNEXURE A: CHART OF SENTENCE

1	2	3	4	5	6	7	8	9	10	11	12	13	14	15	16	17	18	19	20	21	22	23	24	25	26	27	28	29	30	31	32	33	34	35	36	37	38	39	40
1	2	3	4	5	6	7	8	9	10	11	12	13	14	15	16	17	18	19	20	21	22	23	24	25	26	27	28	29	30
Charge 3 – 2Y6M (30M) STATE
1	2	3	4	5	6	7	8	9	10
Charge 4 – 10M (4M cumulative on Charge 3)  STATE
1	2	3	4	5	6	7	8	9	10	11	12
Charge 1 – 12M (to commence on expiry of State NPP) CTH
1	2	3	4	5	6	7	8	9
Charge 2 – 9M to commence 7M after expiry of State NPP CTH
1	2	3	4	5	6	7	8	9	10	11	12
RRO 12M on Charges 1 & 2, to commence 4 months after commencement of Cth sentences