Director of Public Prosecutions v Levey (a Pseudonym)

[2018] VCC 1761

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

COMMONWEALTH DIRECTOR OF
PUBLIC PROSECUTIONS

v

GREGORY JAMES LEVEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2018
DATE OF SENTENCE:	26 October 2018
CASE MAY BE CITED AS:	DPP v Levey (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1761

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – one charge of each of soliciting, transmitting child pornography – causing offence using a carriage service – procuring persons under 16 for sexual activity using a carriage service – causing child pornography to be transmitted to himself using a carriage service – knowingly possess child abuse material – possess prohibited weapon – no prior convictions

Legislation Cited:     Criminal Code (Cth); Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:

Sentence:Total effective sentence of four years’ imprisonment with a non-parole period of two years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms O. Go (Plea) Ms J. King (Sentence)	Office of the Commonwealth Director of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin and Brown

HIS HONOUR:

1Gregory James Levey,[1] you have pleaded guilty to one charge of soliciting child pornography material using a carriage service, one charge of transmitting child pornography material using a carriage service, one charge of causing offence using a carriage service, one of charge of causing child pornography material to be transmitted to you using a carriage service, two charges of procuring a person under the age of 16 for sexual activity using a carriage service and one charge of knowingly possessing child abuse material.

[1] ‘Gregory James Levey’ is a pseudonym.

2The maximum penalty for soliciting, transmitting and causing to be transmitted child pornography material and for procuring a person under the age of 16 years for sexual activity is a term of imprisonment of 15 years.  The maximum penalty for causing offence using a carriage service is a term of imprisonment of three years.  The maximum penalty for knowingly possessing child abuse material is a term of imprisonment of ten years.

3You also pleaded guilty to a summary offence of possessing a prohibited weapon without exemption or approval, for which the maximum penalty is 240 penalty units or a term of imprisonment of two years.

4You have no prior or pending criminal matters.

5On the plea there was served a summary of prosecution opening as Exhibit 1.  That document sets out in meticulous detail the factual circumstances of your offending.  I annex a copy of that document to these sentencing reasons.

6The matter came to the attention of the authorities following a Craigslist post by yourself.  In that post you stated that you were a "28-year-old single male looking for a young girl to play with, if you're a couple with kids and will let me share your daughter with you it would be nice, or if you're just a single young girl message me also, like bestiality, kik me, will send pics on there, do not contact me with unsolicited services or offers".

7During the charged period you were in the market for child abuse material, urging others to create and share their material and sharing your own material as an introduction and proof of your genuine interest.  You also chatted online in a highly sexualised manner with persons you believed to be under the age of 16.  You used the Kik messenger program, a non-encrypted instant messenger application downloadable to any mobile device, to transmit, solicit and receive child pornography material, as well as engaging in online conversations with a total of 25 other users.  Upon your arrest you were also found to be in possession of 194 electronic files containing child abuse material and a prohibited weapon. 

8In relatively short compass, Charge 1 represents a rolled up charge of soliciting child pornography material relating to chat conversations between 13 February 2017 and 18 September 2017 in which you requested but did not receive child pornography material from other persons.  In those conversations you sought pictures of children as young as five and spoke in the most graphic terms of your desires.  You are not to be punished for your desires, Mr Levey, you are punished for the actions that you have taken pursuant to those desires.

9Charge 2 is a rolled up charge of transmitting child pornography material relating to 19 chat room conversations between 13 February and 20 September 2017 in which you sent child pornography material to other persons.  The context for your transmission of child pornography was as an attempt by you to establish your bona fides.  You provided material as an encouragement to those with whom you were chatting to send you more of the same.  The material you transmitted including videos of a 15 year old girl engaged in solo masturbation, a video of a female child being penetrated by an adult penis, a video which you described as being of, "A guy fucking his daughter", and two images of your 11 year old sister asleep in her underwear with her buttocks exposed.  There is some overlap clearly here with the offending in Charge 1.

10Charge 3 is a rolled up charge of causing offence using a carriage service relating to three chat conversations between 10 August 2017 and 16 September 2017 in which you engage in online conduct with three different Kik messenger users that is objectively offensive.  This charge, in short, covers conversations without express solicitation, receipt or transmission of child pornography material, conversations which may not have been an offence had they been conducted face to face, but which do become an offence if they are conducted over a carriage service.

11Charge 5 is a rolled up charge relating to five chat conversations between 3 September 2017 and 19 September 2017 in which you requested another person send you child pornography material and that person did in fact do so.  You received a video of a "daughter's first time taking a dick".  The child was believed by you to be four years old, as well as other files of child abuse material.  The chat records show your constant bartering and establishing your bona fides so as to access more material and possibly a contact meeting.

12Charge 7 relates to the child abuse material that was located upon your electronic devices seized at your residence on 20 September 2017.  In total there were 194 files, 102 of which were in ANVIL (Australian National Victim Image Library) Category 1 depicting children between five and 15 years of age, 65 in Category 2, 10 in Category 3 and 17 in Category 4.

13Charge 4, procuring a person under the age of 16 for sexual activity, relates to your communications between 2 September 2017 and 16 September 2017 with the username ‘katieiedrew’, whom you believed to be under the age of 16.  You set out your interests in bestiality, in incest, young teens down to 13 years of age and master role play.  When the user told you she was 11 years old, you suggested that if she wanted to then you two could have sex.  You asked for her telephone number.  Later you asked if she wanted to meet up and you received no reply.  You also asked for pictures and sent several images showing yourself and your exposed erect penis.  You continued to send messages up until just before your arrest.

14Lastly, Charge 6 relates to your correspondence between 8 September 2017 and 18 September 2017 with an undercover operative whom you believed to be a 15 year old female child.  You sent the operative two images of yourself, including one of you lying naked on the bed holding your erect penis.  You asked if she was interested in bestiality or incest and gave graphic explanations as to what you were referring to.  Conversations continued over the period where you invited her to masturbate for you, solicited naked pictures of her and sent further videos of yourself naked and masturbating.  You were sent an image prompting your comment, "Nice arse", and you invited your correspondent to film herself masturbating.  You made arrangements to meet with your correspondent, indicating again in graphic terms your desire to "fuck her" and need to share her with other guys.  When you received no reply you continued to suggest locations for meetings and to describe various sexual scenarios that you intended with your correspondent.  This included you sending two videos of dogs and adult females engaging in sexual acts.

15I turn now to your personal circumstances. 

16You were born in 1989 and are currently 29 years of age and were aged 28 at the time of this offending which spanned from 13 February to 20 September 2017. 

17You were born in New Zealand.  You have an older brother, Justin, and an older sister, Hilary.[2]  Your father was of Irish and New Zealand heritage, and your mother of Maori heritage.  Your parents separated when you were around five years of age and you initially resided with your mother for a short period, however due to her psychological instability and instances of family violence, you were returned to your father's care.  Your father re-partnered in approximately 2001 when you were 13 and subsequently moved to Australia in 2003 with his new partner, and you at this time were 14 or 15. 

[2] ‘Justin’ and ‘Hilary’ are pseudonyms.

18You went to live with your mother who was then working in the sex industry, both as a sex worker and in in an adult bookshop.  At this time when an adolescent you witnessed your mother's frequent sexual partners, instances of violence inflicted upon her by male customers, and instances of family violence inflicted by your mother upon your two siblings.  You reported that it was around this age that you began to look at pornography as it was readily available to you in the course of your mother's business. 

19You moved to Australia to be with your father and were enrolled in school but attended only for a short period as you were bullied for being a ‘Kiwi’; this led to you returning to New Zealand.  Unsurprisingly, your schooling was disrupted by these relocations; your academic progress was further affected by your dyslexia and your ADHD.  You had missed significant chunks of schooling in your mid-teens when you were living with your mother in New Zealand which culminated in your inability to re-enrol in a mainstream school in Auckland when you returned from Australia at the age of 16.  You described your ultimate placement as "at a school for dropouts", and you left school at age 16.  Whilst not illiterate, reading and writing present continual challenges for you.

20You were then employed as a trolley conductor and continued residing with your mother.  You reported that she abused alcohol and was volatile, and the residence you shared was not a homely and loving environment.  You began ‘experimenting’ with drugs.  You continued to work in Auckland before you eventually returned to Australia at the age of 20 to live with your brother Justin, who had relocated to Australia and lived down the road from your father and his new family.  This new family included the daughter whose photograph you posted online.  Tragically your father's partner died at home from an overdose of prescription medication in 2014. 

21Upon your return to Australia your life was one of binge drinking, driven by your sense of isolation.  In 2013, you began working at the same bakery where your brother worked.  You have been a well-motivated and hardworking employee.  As the company diversified you began an engineering apprenticeship in 2016.  You now hold a Certificate III in Mechanical Trade Engineering and are employed as an engineer for the company.

22You were in a relationship with a woman for two years and you struggled to deal with that break up in 2013, and at various times in your life you have used drugs, including ecstasy, amphetamines, psilocybin and cannabis, although it seems not since your return to Australia.  You reported that now your alcohol intake is limited to infrequent social drinking with friends and you have not used drugs since moving to Australia at the age of 19.  It seems that you were not in an intimate relationship during the offending period.

23You are currently in a relationship with Ms Ruby McIntosh,[3] whom you met approximately ten months ago at your workplace and whose reference was tendered on the plea.  She remains supportive of you.  I was told on the plea that it is your intention to return to New Zealand upon your eventual release from custody.  It is not clear to me whether Ms McIntosh would go with you or whether the loss of that relationship will be yet another casualty of your offending.

[3] ‘Ruby McIntosh’ is a pseudonym.

24Tendered on the plea as Exhibit 2 was a clinical report from Ms Pamela Matthews, forensic psychologist, dated 6 August 2018.  Ms Matthews had been your treating psychologist from 25 September 2017, that is shortly after your arrest, to 7 March 2018.  She also saw you on two subsequent occasions for the purpose of preparing an assessment report for the court.  Your personal history as reported to Ms Matthews was consistent with what I have been told by your counsel on the plea.  You began treatment within a week of being charged and in Ms Matthews' view you have made considerable progress and have actively engaged in treatment. 

25In your sessions with Ms Matthews you discuss what, in your view, lay behind this offending.  You describe living in the bungalow at the back of your brother's rental property, getting home from work and at least every second day looking at pornography online.  At some point your viewing crossed from looking at adult pornography to child pornography.  You told Ms Matthews, "It drags you from site to site.  You get lost in there.  I know if I had a social life my mind would have been active elsewhere".  You were not depressed at the time, but rather described yourself as lonely, bored, socially isolated and sexually frustrated. 

26You admitted having sexual fantasies about children being sexually abused through the period of the offending.  Ms Matthews' opinion was that, "These fantasies appear to emerge in the context of adult pornography use, strong sexual urges, the absence of intimate relationships and friendships and loneliness and boredom".  She is referring to your self-report.  Relevantly, Ms Matthews stated it is likely that inattention, restlessness and impulsivity stemming from your ADHD has contributed to your difficulties in managing boredom productively. 

27She posits some connection therefore between your offending and your residual exposure to a sexualised home environment as a child.  However, she is clear that a direct link cannot be drawn between the nature of that childhood exposure and the nature and form of your offending.  She also concludes that you meet the diagnostic criteria for a paedophilic disorder. 

28Ms Matthews assessed your full scale IQ at 87.  To her, you presented as functioning in the low/average range of cognitive ability.  From her application of actuarial assessment tools and her clinical judgment she forms the opinion that you fell in the medium risk category for non-contact reoffending.  She states that an ameliorating factor has been your recent engagement and treatment which is likely to have lowered the aforementioned risk level from moderate to low.  As to contact offending, she assesses your risk as low. 

29However, Ms Matthews is clear as to your need for further treatment in regards to your sexual offending and the form such treatment should take.  This would include:

(i) Support and skill learning in building new friendships and relationships;

(ii) Restrictions on and close monitoring of your use of digital online technology;

(iii) Engagement and treatment directed in particular at management of learning behaviour and attachment and trauma pathology; and

(iv) Management of psycho-social stress and depression by a pharmacological and reparative therapy.

30She concludes, "There have been no significant impairments evident in Mr Levey's mental health in the time that he has been attending the treatment and he has repeatedly stated that while he thinks of suicide from time to time he has no plans of acting upon these ideas.  He is likely to manage a prison sentence given his suicidal ideation is monitored upon intake until he is settled.  He has been compliant with and actively engaged in treatment".

31I turn now to the submissions of counsel. 

32Ms Go, on behalf of the prosecution, submitted that the online conversations revealed your sexual interest in children, in bestiality and in incest.  This offending all related to the online exploitation of children over a period of seven months; as such, general deterrence is the primary sentencing consideration.

33She submitted that you were persistent and overt in your actions.  In order to receive material you posted material so as to establish your bona fides.  She describes your offending in Charges 1, 2, 3 and 5 as constant and systematic.  None of it was spontaneous or isolated.  Further, she reminded me that Charges 1, 2, 3 and 5 were rolled up charges encompassing multiple episodes of criminal conduct and thus the objective gravity of each such charge was greater. 

34In relation to the procuring charges Ms Go noted that in Charge 4, you sent a picture of your erect penis two days after your correspondent had told you that she was only nine years of age.  In relation to Charge 6, you gave your phone number to your correspondent, requested child pornography material to be created by her and then sent on to you.  Ms Go submitted this elevated the seriousness of that procurement charge.  The content of the communications was often highly sexualised.  She said this offending could not be viewed as mere role play, contrary to the submissions of your own counsel.  Your accepted interest in children brought to the fore in addition the need for specific deterrence. 

35After referring to the matters set out in s.16A of the Criminal Code Act, she submitted that an immediate term of imprisonment was required for each charge on the indictment with specific cumulation on each charge.  A non-parole period should be fixed in respect of the Commonwealth offences. 

36She took me to the serious sex offender provisions under the Sentencing Act (Vic), but indicated that in the circumstances of this case the prosecution did not submit that the sentence on Charge 7 should be longer than that which is proportionate to the gravity of the offence, nor that the amount of cumulation should be greater than that which would be otherwise appropriate.

37Mr Tiwana, counsel on your behalf, accepted that the offending was serious and conceded that a term of immediate imprisonment was the only realistic sentencing option. 

38He relied upon the following matters in mitigation of any such term.

39In terms of the offending he noted that you had made no attempt to hide your identity and that the offending lacked the deceptive and cunning conduct so often encountered in offending of this nature.  I agree.  He referred to the original posts that brought your online activity to the attention of the authorities.

40He submitted that much of your online postings could be viewed as expressions of fantasy. 

41He submitted that in relation to Charges 4 and 6 the offending had not progressed to arrangements for meeting, although he readily accepted this was not an element of the offence.

42In terms of your circumstances, he relied upon your plea of guilty which was indicated and indeed entered at the earliest opportunity.  Such a plea brings with it not merely the practical benefit of saving to the community the time, cost and trauma of a trial, but also could be viewed as an indication of your remorse.

43He pointed to your prior good character, though accepting this carries less weight in child abuse offending than it might otherwise do. 

44He pointed to your fractured and disrupted childhood and upbringing and the isolation you were experiencing before and at the time of the offending.  Mr Tiwana submitted this lessened your moral culpability. 

45He pointed to the progress towards rehabilitation that you have made since your arrest and charge, your engagement with Ms Matthews, the positive steps that you have taken to change your life, the support you have had from your father and your brother, the absence of any abuse of drugs and alcohol, and in addition the assessment by Ms Matthews of your moderate to low risk of future reoffending, which should all lead to the conclusion that you have good prospects for rehabilitation.

46Mr Levey, the offences to which you have pleaded guilty are serious offences, as is made plain by the maximum penalty that Parliament has seen fit to impose. 

47You solicited and you traded in child abuse material over a seven month period.  You were quite simply an active participant in that online market.  The courts have stated time and time again and will continue to do so that those who access and possess such material when caught will almost inevitably be met with a substantial and immediate term of imprisonment for the simple reason that those who consume this material feed that market.  Without customers there would be no market and that market is based upon a fundamental betrayal of our common humanity by the degrading and traumatising exploitation of children for the sexual gratification of others.

48I accept that the volume of material was not as extensive as is often encountered in these courts and I have regard to the respective categorisation of material in Charge 7, with the majority being in ANVIL Category 1.  Nonetheless, you possessed some images of the utmost gravity and of the utmost degradation of children.

49I accept there was no suggestion of personal profit, nor any suggestion of publication apart from sending images to your correspondents in the hope of receiving more in return.

50The procuring charges also represent serious offending.  That is because, Mr Levey, the virtual world can be navigated by men such as yourself to persuade and cajole adolescents into meetings in the real world for the purposes of sexual activity, for their sexual violation by adult men such as yourself.  It is rightly described as insidious for it takes place on a computer in the virtual world away from the sight and the physical presence of parents and carers who can protect and guide children such as your intended victims.  I do not accept, Mr Levey, that your chats were merely role play.  The fact that no meeting took place does not lessen the objective seriousness of the offence, but rather merely means that the potential harm is not greater than that contemplated by the offence itself. 

51I accept that this offending occurred at a point when you felt lonely and you felt isolated.  I accept that you are now able to have empathy for the children involved in the images that you sought and that you traded.  I accept that as you told Ms Matthews you now feel, "Ashamed, that it is not morally or legally acceptable, thinking that way is wrong, and that you were lucky that it did not come to that”, a reference to contact offending. You must understand that when caught, those who use the online world for their own deviant desires can expect substantial terms of imprisonment.

52In sentencing you, I must try to balance your personal circumstances with the circumstances of your offending.  I have to have regard to a range of different factors.  I must give effect to principles of both general deterrence, that is sending a message to others that they cannot behave as you did, and specific deterrence, that is sending a message to you that there must be no repetition of your offending.  I must express the community's denunciation of your conduct and I must give effect to the need to protect the community from you.  I should if possible promote your rehabilitation and I must have regard to current sentencing practices for these kind of offences that you have committed and to the maximum penalty imposed by Parliament.

53Mr Levey, I give full effect to all of the mitigatory factors to which I have been referred so ably by your counsel.  For the avoidance of doubt I have regard to:

(i) Your plea of guilty and the time at which it was indicated;

(ii) Your expressed remorse and contrition;

(iii) Your shame, your personal history as set out above and your expressed and continued willingness to engage with treatment;

(iv) Your prospects of rehabilitation;

(v) The principle of totality; and

(vi) That this will be your first time in custody and as such you will be vulnerable.

54Nonetheless, as your counsel, Mr Tiwana, realistically accepted, it is clear that your offending is so serious that it can only be met by a substantial, immediate term of imprisonment. 

55If you could stand up, please, Mr Levey.

56On Charge 1, soliciting child pornography material using a carriage service, you are sentenced to a term of imprisonment of nine months. 

57On Charge 2, transmitting child pornography material using a carriage service, you are sentenced to a term of imprisonment of 15 months. 

58On Charge 3, causing offence using a carriage service, you are sentenced to a term of imprisonment of four months.

59On Charge 4, procuring a person under 16 years of age for sexual activity using a carriage service, you are sentenced to a term of imprisonment of 12 months. 

60On Charge 5, causing child pornography to be transmitted to yourself using a carriage service, you are sentenced to a term of imprisonment of nine months.

61On Charge 6, procuring a person under 16 years of age for sexual activity using a carriage service, you are sentenced to a term of imprisonment of 18 months. 

62On Charge 7, knowingly possess child abuse material, you are sentenced to a term of imprisonment of nine months.

63In relation to the summary charge of possession of a prohibited weapon, you are convicted and discharged. 

64Charge 6 will commence on 26 January 2019; Charge 4 will commence on 26 January 2020; Charge 2 will commence on 26 July 2020; Charge 1 will commence on 26 April 2021; Charge 5 will commence on 26 November 2021; Charge 3 will commence on 26 June 2022.

65This makes a total effective sentence on the federal charges of three years and nine months.  In view of the start date of Charge 6, which is the first of the federal sentences, it makes a global total effective sentence of four years.

66I am fixing a non-parole period on the federal sentence of two years and six months which has the practical effect, given the start date, of a term of imprisonment of two years and nine months before you will be eligible for parole.

67On Charge 7, you are sentenced as a serious sexual offender and pursuant to s.6F of the Sentencing Act 1991 I direct that be noted on the records of the Court.

68Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a total effective sentence of five years and six months with a non-parole period of four years.

69Mr Tiwana, in terms of custody management issues, I note the presence of suicidal ideation, I am going to note his vulnerability, potential ADHD.  Anything else?  Is Mr Levey on medication at the moment?  You may certainly take instructions.

70MR TIWANA:  Your Honour, no, he is not on any medication at present.  He has been experiencing bleeding and there is a suggestion he may have internal haemorrhoids.  He has been advised to have a colonoscopy.  He has a letter from his doctor advising him which he has with him and he will take inside with him.

71HIS HONOUR:  That will be picked up early on, I’m sure.

72MR TIWANA:  Yes.

73HIS HONOUR:  I will put these issues on the order because of course he may not declare what the issues are and that which we know.  Mr Levely, when you get to Melbourne Assessment Prison you will be seen by a doctor and it is important that you say to that doctor how you are feeling and they will look after you.

74MR TIWANA:  There is also the issue of the Sex Offender Registration.

75HIS HONOUR:  Yes, and there is a forfeiture order as well?

76MR TIWANA:  There is, yes.

77MS KING: If I can interrupt with one of my own, Your Honour? Also under s.16F of the Crimes Act there is a requirement for the court to provide an explanation about the non-parole period and consequences.

78HIS HONOUR:  Mr Levey, there is a difference between your total sentence, four years, and a sentence of imprisonment that I am ordering you must serve before you are eligible to be released upon parole.

79Parole is something that is in the gift of the Parole Board, it is not something that the court can mandate.  Whether you will get parole depends on the programs that you undertake in prison, how you are viewed.  It may depend on mundane things as to how overcrowded prisons get or things such as that.  You will have supervisors within the prison system with whom you will be meeting and you will get an understanding of that.  My intention in fixing the non-parole period was to give you an opportunity should you get parole to be monitored and supervised back in the community to help your reintegration.  So there is the potential that for 15 months you could be in the community being monitored and assisted by a parole officer to help your integration.  All right, Mr Levey?

80OFFENDER:  Thank you, Your Honour.

81HIS HONOUR:  I will make the forfeiture order in relation to the sword and knuckle dusters. 

82By virtue of the provisions of the Sex Offenders RegistrationAct, you are required to be a registered offender for the period of the rest of your life.

83Mr Tiwana, I know, will explain the details, but essentially that means that when you are released from prison, as long as you remain resident in Victoria, you have to present at a police station once every 12 months and give your personal details, your residence, your car, address, your occupation, etcetera.  Most importantly, you have to provide every email address, every username, every password, every online presence to the registration officer.  Failure to do that is itself a criminal offence.  This legislation is intended to protect children and if you fail to provide those details, you will be prosecuted and the courts take this very seriously.

84You will need to sign a document acknowledging receipt of your reporting obligations that I have just outlined in brief.  My associate will come to you with that document and you can go too, Mr Tiwana.

85MR TIWANA:  Thank you, Your Honour.

86HIS HONOUR:  Thank you for your attendance. 

‑ ‑ ‑

ANNEXURE A

IN THE COUNTY COURT OF VICTORIA  CR-18-00296

AT MELBOURNE

IN ITS CRIMINAL JURISDICTION

THE QUEEN

–v  –

GREGORY JAMES LEVEY

SUMMARY OF PROSECUTION OPENING FOR PLEA

INDICTMENT

1. The Offender has pleaded guilty to the following offences:

Number of Charges	Charge(s) on Indictment	Offence	Maximum Penalty
1	1	Solicit child pornography material using a carriage service [Criminal Code (Cth) s 474.19(1)(a)(iv)]	15 years
1	2	Transmit child pornography material using a carriage service [Criminal Code (Cth) s 474.19(1)(a)(iii)]	15 years
1	3	Cause offence using a carriage service [Criminal Code (Cth) s 474.17(1)]	3 years
2	4, 6	Procure a person under 16 years of age for sexual activity using a carriage service [Criminal Code (Cth) s 474.26(1)]	15 years
1	5	Cause child pornography material to be transmitted to himself using a carriage service [Criminal Code (Cth) s 474.19(1)(a)(ii)]	15 years
1	7	Knowingly possess child abuse material [Crimes Act 1958 (Vic) s 51G(1)]	10 years

SUMMARY OFFENCES

2. The Offender has also pleaded guilty to the following related summary offence:

- A single charge of possess prohibited weapons without exemption or approval contrary to s 5AA of the Control of Weapons Act 1990 (Vic). The maximum penalty is 240 penalty units or imprisonment for 2 years.

OVERVIEW OF OFFENDING

3.Between 13 February 2017 and 20 September 2017, the Offender primarily used the Kik messenger program to transmit, solicit and receive child pornography material as well as engage in other offensive communications with a total of 25 users (Charges 1-6). Upon arrest, he was also found to be in possession of 194 electronic files containing child abuse material and six prohibited weapons.

INVESTIGATION

4. On 4 September 2017, police from the Joint Anti Child Exploitation Team (‘JACET’) commenced an investigation into a Craigslist post, which was posted by a Kik user.

5. The post was an advertisement with the title “Taboo sex young – m4w (South eastern suburbs)” and with the following comment –

“Hey im a 28yr single male looking for a young girl to play with if your a couple with kids and will let me shear your daughter with you would be nice or if your just a single young girl message me also like beastiality kik me will send pics on there

do NOT contact me with unsolicited service or offers”

6. Investigators found a total of 24 advertisements with the same Kik username.[4] These advertisements all sought similar things such as taboo sex, young girls, bestiality involving dogs, horses & couples into incest who are willing to share their children.

[4] 24 Craiglist Ad – Exhibit 2, LSC FOGARTY statement.

7. The Offender had uploaded images of himself to a number of these advertisements, including images which clearly showed his face and tattoos on his upper body, as well as images of himself naked exposing his erect penis.

8. On 20 September 2017, police executed a search warrant at the Offender’s home address[5] pursuant to s 3E of the Crimes Act 1914 (Cth). Police seized a number of weapons, including a sword, two knuckle dusters, two knives and a Taser.[6]

[5] Exhibit 16, DSC BUWALDA statement, Exhibit 29 & 30.

[6] Exhibits 23, 24, 25, 25, 26, 27 & 28. This relates to the transferred related summary offence.

9. Following his arrest, the Offender gave a ‘no comment’ interview and declined to provide the password for his Kik Messenger account.[7]  The Offender consented to undergo a forensic procedure which involved photographing tattoos located on his upper body[8].

[7] Exhibit 32, ROI Transcript.

[8] Exhibit 31, DLSC ELDRIDGE statement.

10. Other items seized during the execution of the search warrant include the following electronic devices:[9] Samsung mobile phone and HP laptop. Subsequent forensic analysis revealed that these devices each contained files that constituted child abuse material and that the application Kik Messenger was installed on the mobile phone.[10]

[9] Property Seizure Record.

[10] DSC Buwalda statement.

OFFENCES RELATING TO KIK MESSENGER

11. Charges 1 to 6 are offences committed by the Offender using Kik Messenger, which is an instant messenger application for mobile devices. It is available free of charge and enables a user to transmit and receive messages, photos, videos and other content to and from other users after a username and email account is registered.

12. The username associated with the Kik Messenger application installed on the Offender’s mobile phone was the same username as the Craigslist post username. The offences were committed in the course of chat conversations between the Offender and 25 other persons using Kik Messenger on his mobile phone between 13 February 2017 and 20 September 2017.[11]

[11] Ibid.

Charge 1 – Solicit child pornography material

13. Charge 1 is a rolled-up charge, relating to 6 chat conversations between 13 February 2017 and 18 September 2017 in which the Offender requested (but did not receive) child pornography material from another person.

14. Between 9 September 2017 and 18 September 2017, the Offender engaged in chat with a Kik user during which the Offender asked whether the user had a daughter. The user said he had one and when asked how old, replied “5 years old”. The Offender asked for a picture of the daughter. The Offender asked the user to send pictures of his 5 year old daughter and said “can i cum in her”…“lots of lube”…“hmmm well imagine her sucking us both off while we rub her pussy”…“tell her its a game and she wins if white stuff comes out our dicks”.

15. Between 27 August 2017 and 6 September 2017, the Offender engaged in chat with a Kik user during which the Offender and the user discussed meeting with a 13 year old female (daughter of user’s friend) for sexual activity. The Offender said, “I dont think she will fuck both of us”…“you got a dog for her”…“you got pics of her naked”…“Sweet you got any other little girls” “Sister cousins”. The user said he had a 9 year old niece and the Offender said, “What ya think feel her up”. Over the next few days, the Offender followed up with the user as to whether he had heard back from her but only received one reply.

16. On 2 September 2017, the Offender engaged in chat with a Kik user during which the Offender told the user “Nah i want a young girl”…“You got anything”…“Nice you got any girls or a gf”. The user told the Offender that he had seen his friend’s 12 year old daughter semi naked to which the Offender replied “…would she fuck us”…”ask her around to your house”…“any pics of her”. The user said that he would love to slide his penis in her mouth and asked the Offender if he had any girls. The Offender said: “Wont show anyone just for my use. Nah can you help out”. The Offender confirmed that the user could perform oral sex on him if the user got the child involved. The Offender asked the user if he had a dog as he wanted to see a girl do it (with a dog).

17. Between 16 August 2017 and 4 September 2017, the Offender engaged in chat with a Kik user during the chat they discussed the Offender’s favourite taboos. The Offender said “Fucked a 15yr thats it you” to which the user replied that 16 is his youngest. The user said he had a 16 year old niece and the Offender asked for a picture. The two discussed trading files and the Offender said he had “a vid o the 15 yr old I fucked dildoing her self”. The user sent a file of his niece. The Offender asked for more videos and pictures as he was keen to join them. The user then sent 3 more files. They also discussed defecation and how the user came to have sex with his niece. 

18.The user and the Offender swapped more files. The Offender continued to ask the user to send him “…you got young porn child” and “…10 upwards”. They then discussed bestiality and the possibility of the Offender joining the user and his niece the next time they have sex in a public place. The Offender keeps following up with the user up until 4 September 2017 but receives no response from the user.

19. Between 11 August 2017 and 29 August 2017, the Offender engaged in chat with a Kik user during which the Offender asked the user to send him a video of the user penetrating her 7 year old daughter with a finger/s and also asked for photos.

20. Between 13 February 2017 and 21 August 2017, the Offender engaged in chat with a Kik user during which the Offender established that the user had 12 year old and 6 year old daughters. A discussion ensued regarding the possibility of the Offender having sex with the children. The Offender asked for photos of the user’s children, including an instance where he asked for a naked photo of the user’s child. For example, the Offender asked the user, “Yeah wheres your kids lol”. The user said, “On my cock” to which the Offender replied, “Show me”. The Offender also asked, “Wheres the pics of youre kids” to which the user replied, “Show me some first”.

Charge 2 – Transmit child pornography material

21. Charge 2 is a rolled-up charge, relating to 19 chat conversations between 13 February 2017 and 20 September 2017 in which the Offender sent child pornography material to another person.

22. Between 9 September 2017 and 18 September 2017, the Offender engaged in chat with a Kik user during which the Offender sent a video of a 15 year old “playing with herself” and a video of a “guy fucking his daughter.”

23. Between 16 August 2017 and 4 September 2017, the Offender engaged in chat with a Kik user during which they swapped files. The Offender sent at least two videos depicting a 15 year old female child engaging in solo masturbation.

24. Between 11 August 2017 and 29 August 2017, the Offender engaged in chat with a Kik user during which they discuss taboos. The user said she has had sex while her kids were watching and the Offender said he has had sex with a 15 year old. The Offender established that the user had a 3 year old daughter and a 7 year old daughter. The Offender asked if the user would let her children join and said, “Maybe the 7yr old join in with us”…“Yeah dress her up slutty”…“Can always try if not she can lick your pussy while I rub her pussy” “Have you felt her up before”…“Nice put something up her pussy like a banana or something...”

25.The Offender said he wanted to see lots of videos that day of both faces. The user said her 3 year old daughter would also be there and the Offender said, “she can join in if she likes send a vid of her aswell” and “…soo lots of vids faces even say my name”. The Offender kept following up with the user until 29 August 2017 but received no response.

26. Between 13 February 2017 and 21 August 2017, the Offender engaged in chat with a Kik user during which the Offender established that the user had 12 year old and 6 year old daughters and in relation to them the Offender said, “Have you done them today do you want to set up a date to fuck them with me show me the 12yr old can I add her on Facebook”…“Okay can I fuck her why not the 12yr”. The user explained that the 12 year old had started having periods and therefore only the 6 year old was available for sex and the Offender responded, “just don’t cum in her or wear a condom can I fuck one”.

27.The user revealed that they will charge the Offender $400 and the Offender said he does not have money like that, he thought it would be just for fun and offered the user to perform oral sex on him. The Offender followed up with the user through February 2017 and finally received a reply on 10 March 2017. The Offender asked if he can have sex with the user’s children that weekend. The two discussed logistics and the user said the children were 7 and 14 years old and confirmed that the 7 year old was definitely available. The Offender said, “Cool she fucked before”…“Nice does she cry”…“Okay can I watch you fuck to start off with” as he said it would turn him on.

28.The Offender asked, “Actually can you book in at the seaford hotel and I will come in the room and fuck her will pay for the hotel”. The user said he’d been having anal sex with the child and the Offender said he “…would love to see” and “Nice lube her up and have some fun”.

29.The meeting did not eventuate as the user’s wife changed her mind. The Offender made attempts to follow it up. The user responded in May 2017 and sent the Offender a photo of a female friend who has had sex with his children. The Offender asked when could he have sex with the user’s children and the user replied, “When you supply photos” “Of young ones”. The Offender kept following up his request to have sex with the user’s daughter/s.

30. Between 17 September 2017 and 20 September 2017, the Offender engaged in conversation with a Kik user. During this chat, the Offender stated that he was looking to watch a parent engaging in sexual acts with their child or a lady with her dog and join in. The Offender requested the user to send him images of her children or dog. In an attempt to build trust with this user, the Offender sent 3 videos of “young girls.” The conversations stopped after the user asked the Offender how much he was willing to pay.

31. Between 16 September 2017 and 19 September 2017, the Offender engaged in conversation with a Kik user. During this chat, the Offender stated that he was looking for someone into bestiality and incest. The user stated that she has played with her children’s private parts. The Offender described the sexual acts that he wanted to take place including digital penetration, penile penetration and ejaculation with the user’s 4 year old daughter. He also described that he wanted to see the user perform oral sex on her 2 year old son and said that he would let the son perform oral sex on his penis. The Offender sent the user a video of a young girl being penetrated in the vagina by an adult penis.

32. Between 11 September 2017 and 19 September 2017, the Offender engaged in chat with a Kik user during which the Offender asked whether the user had touched his 13 year old step daughter. The Offender asked for her photo, her name and stated that he would look her up on Facebook, chat her up and get her into sex. They discuss trading photos and the Offender sent the user a video of “a guy fucking his daughter”. The Offender said his ultimate turn on was parents playing with their daughter.

33.During this chat, the Offender spoke about KM-AI1 (Charge 6) stating “got a 15yr if you keen she wants to see pics” and “meeting her on Sunday”. The Offender forwarded the images sent to him by KM-AI1. The Offender also enquired whether the user’s girlfriend would be into a three-way.

34.The Offender stated that his prime age was 14 and asked what the daughter looks like. The user stated that she was a very petite redhead and the Offender responds that he wanted to have sex with her and that he will hit on her on Facebook.

35. Between 6 September 2017 and 9 September 2017, the Offender engaged in chat with a Kik user during which the user asked the Offender “do you have any young pics or anything like that?” In response, the Offender sent a video which depicted a female child being penetrated by a penis.

36.The Offender stated that his fantasy was “like dad young daughter incest or a dog fucking a girl”. The Offender also requested a video of the user “squirting” and told her to masturbate for him. The Offender admitted to perving on his sister and said he had pictures. The Offender asked for videos and the user offered videos of herself having sex. The user then asked whether she could see the pictures of the sister, to which the Offender replies: “Talk later”.

37. Between 5 September 2017 and 6 September 2017, the Offender engaged in chat with a Kik user during which the Offender asked the user “you in to young girls” and sent 2 videos which depicted a 15 year old female engaging in solo masturbation. The user stated that his partner “has a niece 12 I hassle her about lol” to which the Offender responded “nice we should all fuck her”…“can she arrange us to fuck her”. The Offender said that he wanted a young girl. The Offender asked for a picture of the niece and said “I will fuck her niece she can watch”…“tell her to keep it a secret it’s a fun game”.  

38.The Offender also stated that he could set up a dog for them to have sex with. The Offender also told the user to “fuck her right now make her squirt”…“want to see her pussy drip” and ”…tell that slut to squirt for the camera”.

39.The Offender said “off to sleep talk tomorrow pound that slut vids mate” and “pound that pussy want to see her dripping out the pussy”. Several files were then exchanged between the Offender and the user.

40. Between 3 September 2017 and 4 September 2017, the Offender engaged in chat with a Kik user during which they discuss having videos of young girls to swap. The Offender sent three videos depicting a 15 year old female engaging in solo masturbation.

41. On 5 September 2017, the Offender engaged in chat with a Kik user during which the Offender sent a video depicting a 15 year old female engaging in solo masturbation.

42. Between 3 September 2017 and 16 September 2017, the Offender engaged in chat with a Kik user during which it was established that the user had 3 daughters. The Offender stated “good stuff…would love to join :)”…“nice can I see pics soooo want to help you fuck them”…”How old are your other daughters what do they do when you fuck them”…“nice can I come fuck one of them or watch you”…“do they enjoy it where in Melbourne ya from”…“alright im in frankston can I fuck them?” “always wanted to do it” and “you can hold her down while I cum in her.” The user asked the Offender if he had any pictures to which the Offender responded “got a vid of a 15yr i use to fuck toying herself” before he sent three videos which depicted a 15 year old female engaging in solo masturbation.

43. Between 2 September 2017 and 9 September 2017, the Offender engaged in chat with a Kik user during which it is established that the user is also interested in incest and bestiality. The Offender asked if she has had sex with her children or dog to which the user responded that she was grooming her 12 year old stepdaughter. The Offender stated “I fucked a 15 yr got some vids if you like : ) its of her toying herself”. The Offender sent three videos which depicted a 15 year old female engaging in solo masturbation. The user asked the Offender to provide “younger” and the Offender sent two images of his 11 year old sister sleeping where her underwear was exposed.

44.The user sent files to the Offender stating that her daughter was in red. The Offender stated: “Would love to help you with her”…“How do you go about grooming her :)”…“Would you be keen us playing with her”. The Offender continued to chat with the user but after receiving no response started sending several files to the user.

45.The Offender asked if she had played with her yet and said: “That’s okay want to help you can keep it a secret x”…“I wont babe we can fuck her while I cum in her : )”…“What have you done to her. Have you fucked any other kids or felt them up”…“…imagine us feeling her young pussy then i make her blow me while you rub her pussy then i cum in her mouth and you fuck her with a strap on”…“Yeah can I help in anyway add her on Facebook hit on her wont say anything about you I will just feel her out” and “Trust me wont say anything I want it to happen”. The Offender started sending files again and attempted to keep chatting with the user but received no response.

46. Between 2 September 2017 and 4 September 2017, the Offender engaged in chat with a Kik user during which the Offender confirmed the user had a 17 year old daughter and asked “…have you fucked her”…“can I see a pic of her”…“Yeah got vid of a 15 yr old i use to fuck her toying herself” and “Can i play with your daughter.” The Offender sent the user a video which depicted a 15 year old female engaging in solo masturbation.

47. Between 28 August 2017 and 5 September 2017, the Offender engaged in chat with a Kik user during which the Offender tried to arrange to meet with the user and his pony. The user stated that the pony has had sex with his wife and a friend before. Files were exchanged between the Offender and the user. The user said that his wife was away but he had a friend who could join. The Offender asked whether they could have sex with her on Sunday while the pony had sex with her and “if i send a vid of a 15yr can i see one of her with the pony”. The Offender sent three videos depicting a female child engaging in solo masturbation who he said is a girl he used to have sex with. The Offender asked for the videos again.

48. Between 28 August 2017 and 2 September 2017, the Offender engaged in chat with a Kik user during which the Offender stated that 2 years ago “I fucked a 15 yr x”. The Offender asked the user if she has had sex with a family member and that he would come and have sex with her. The Offender also states “how young would you fuck” …“what about a young girl xx I wanted to do my little sister shes 11 lol xx” and “would you do a horse”.

49.The Offender asked for a video of the user ‘squirting’ and sent the user some files of himself. The Offender also asked for a video of the user and her boyfriend having sex. The conversation then turned to the topic of incest and the Offender said “no but my younger sister i would…” and “nope but I took pics of her ass you should hit on him (her brother).” The Offender sent the user two images which were of his 11 year old sister asleep in her underwear with her buttocks exposed and asked if the user would lick her sister’s vagina.

50.They then discussed bestiality with the Offender saying he had a pony or dog lined up for her so she should get ready by putting big stuff up her anus and vagina. They had a conversation where the Offender referred to the user as daddy’s good girl and asked for videos of the user having sex with her boyfriend or brother or a young girl.

51. Between 17 August 2017 and 9 September 2017, the Offender engaged in chat with a Kik user during which it was established that the user was also interested in bestiality and incest. The user sent files to the Offender which involved the user and his female cousin having sex. The Offender asked whether the female has had sex with dogs or horses and said he is keen to watch them both.

52.The Offender asked if he could join the user’s Melbourne hook up group which comprised of 4/5 couples and also asked, “Do the couples you see fuck dogs or horses do you do young chicks”. The Offender said he was keen to see intense animal sex. The Offender said “I got secrets I fucked a 15 yr girl got vids of her fucking herself if your in to it”. The Offender sent the user three videos depicting a 15 year old female engaging in solo masturbation.

53.The user sent the Offender a file of their last meeting where bestiality occurred. The Offender requested a video of that night. The two continued to discuss sex between themselves, bestiality, incest and having sex with young girls. The user said his cousin was asking if the Offender has a good body and a hot penis. The Offender sent files to the user and asked whether the user’s cousin was keen. The Offender kept following up with the user until 9 September 2017 but received few responses.

54. Between 11 September 2017 and 16 September 2017, the Offender engaged in chat with a Kik user during which the Offender stated that they should have sex with the user’s wife together. The Offender asked whether the user had a daughter. The user stated that his neighbour had 3 daughters (7, 10 and 12 years old) and he babysits them. The Offender said that they should “feel the 10yr old” and that they should “rub her pussy”.

55. Between 12 September 2017 and 16 September 2017, the Offender engaged in conversation with a Kik user during which the Offender described in graphic detail sexual acts that he wanted to do with the user’s daughter saying that he would lick her vagina while fingering the user and suggested to the user that she tell her daughter it’s a game. The Offender said, “…just rub and lick and make her suck my lollipop”…“we will feel your daughter up and then I will fuck you while she watches and then cum in her mouth”…“well fingers crossed can lube her up”…“I will cum in her you eat it out”…“can i fuck her”…“Yep stick my dick in lots of lube”…“I want to see you fuck her with a strap on” and “got a 15yr girl for us will you fuck her with a strap on”.

56.During this chat, the Offender stated that he had an interest in his 11 year old sister but that he couldn’t do anything to her as she would tell. The Offender stated “i took pics of my sister when she waz sleeping her ass.”

57. In these conversations, the Offender transmitted child pornography material classified as follows:

Category	Images	Videos	Total
1: No sexual activity	4	0	4
2: Solo/sex acts between child	0	24	24
3: Adult/child non-penetrate	0	0	0
4: Adult/child penetrate	0	6	6
5: Sadism/bestiality/child abuse	0	0	0
6: Animation	0	0	0
Total	4	30	34

Charge 3 – Cause offence using a carriage service

58. Charge 3 is a rolled-up charge, relating to 3 chat conversations between 10 August 2017 and 16 September 2017 in which the Offender engaged in online conduct with 3 different Kik messenger users that is objectively offensive.

59. Between 29 August 2017 and 30 August 2017, the Offender engaged in chat with a Kik user during which it was established that the user had a 12 year old son and a wife. The Offender asked the user if he could get a young girl and if he had a dog. The Offender said “…does your wife fuck your son” to which the user responded “…she’s caught him jacking off before and watched and helped him”. The Offender said, “can I watch her do it show me pics of her” and “So does your wife fuck him”. The user replied that she masturbated him. The Offender then asked, “Well can she do it again while we watch”.

60. Between 27 August 2017 and 6 September 2017, the Offender engaged in chat with a Kik user during which the Offender and the user discussed meeting with a 13 year old female (daughter of user’s friend) for sexual activity. The user sent the Offender a couple of files after he requested a picture of her. They discussed the logistics and the Offender asked if he could talk to her on Facebook and said “Alright can we get her to do bestiality”. The Offender asked if the user had talked to her yet and the user says he had asked her if she wanted to go shopping next weekend.

61. On 10 August 2017 and 16 September 2017, the Offender engaged in chat with a Kik user. During this chat, the user told the Offender she has a 10 year old sister and the Offender said, “Nice have you fucked her”…“Show me a pic of her”…“Hey can I play with your sister”…“You found me on cragslist you said you had a younger sister I could play with” and “Sooo can I see pics”. The Offender sent the user a file. The user stopped responding.

Charge 4 – Procure a person under 16 for sexual activity

62.Between 2 September 2017 and 16 September 2017, the Offender used Kik Messenger to communicate with ‘katieiedrew’, a person he believed to be under the age of 16 years with the intention of procuring her to engage in sexual activity with him.

63. The Offender told the user that he was interested in taboo sex like bestiality or incest, young teens down to 13 years old and master role-play. The user said she was 11 years old and the Offender responded that if she wanted then they can (have sex). The Offender said to the user: “What have you done” and “Would you let a dog fuck you” and told her to send him a video saying “fuck me daddy” so he knew she was real. The Offender said he was 28 years old and asked, “you keen to play around tonight” and “Whats your number bub”.

64. The next day, the Offender asked for the user’s Facebook or Snapchat details since he was keen on her after she said she was not ready to give him her number. The Offender asked if she wanted to meet up that day and sent the user some files. The Offender asked if she would be keen on him. The user said she doesn’t know because she was so young. The Offender said “No one will know our secret”…“Its fun though will make you cum” “Try all the stuff you want” “And yes you will be safe swear on my grandparents grave babe” and “Just got to tell no one”. The user then said she was really 9 years old. The Offender asked again if she wanted to have sex that day and she will be fine and asked for pictures or a video of her. The Offender asked again if she wanted to meet up and received no response

65. The Offender tried contacting the user again on 4 September 2017 but received no response. On 5 September 2017, the user asked for pictures and the Offender sent the user several images showing himself and his exposed erect penis. The Offender then asked the user if she was keen. The Offender sporadically sent the user messages up until 16 September 2017 but only received one reply.

Charge 5 – Cause child pornography material to be transmitted to himself

66. Charge 5 is a rolled-up charge, relating to 5 chat conversations between 3 September 2017 and 19 September 2017 in which the Offender requested that another person send him child pornography material, and the other person did so.

67. Between 16 September 2017 and 19 September 2017, the Offender engaged in conversation with a Kik user . The Offender asked the user to “send vids of you fingering her” in relation to the user’s 4 year old daughter. The user sent the Offender a picture of the daughter getting ready for a bath. The Offender asked the user to swap videos with him as he has one where a father is having sex with his daughter. The user sent the Offender a video of the daughter’s first time “taking a dick” and commented that she should use a “strap on” on her daughter.

68. Between 11 September 2017 and 19 September 2017, the Offender engaged in chat with a Kik user during which the Offender asked the user to send a picture of the stepdaughter and suggested they have sex with her. They also discussed trading photos and the Offender received three data files of child abuse material.

69. On 5 September 2017, the Offender engaged in chat with a Kik user during which the Offender asked the user if he had any kids and whether he had played with them. The user replied and said that he has had experiences with young children to which the Offender stated “nice how young me I fucked a 15 year old” “nice you still know these girls any vids…” “wouldn’t mind fucking some young ones with you.” The user asked the Offender if he looked at pictures of “young ones” to which the Offender responded saying “yeah hard to find” and asked “you got any vids.” The Offender asked for young pics aged eleven and the user sent several images, some of which were child abuse material. The user said his pictures get better if the Offender’s videos were good.

70. Between 3 September 2017 and 16 September 2017, the Offender engaged in chat with a Kik user during which the Offender confirmed that the user had three daughters aged 15, 9 and 6 which the user had “played” with. The Offender asked for pictures of the 3 girls and received some files from the user but questioned if they were real and asked for a video of the user having sex with them. The user said he has no videos and the Offender asked a few times whether he could have sex with the user’s girls. The Offender received more pictures from the user. The Offender said: “you must have a vid you can trust me :)” to which the user responded by appearing to send videos. The Offender said the user was a good man and asked for more. The user said that the female in the video file is the daughter of the guy who joined him in having sex with his 9 year old daughter.

71.The Offender asked if he could join in having sex with his daughters, stating: “I will fuck your girls well”…“Big gangbang lol” and also asked for videos and pictures of the daughters, stating: “more keep them coming” and “more more more lol”. 

72. Between 3 September 2017 and 4 September 2017, the Offender engaged in chat with a Kik user during which they discussed having videos of young girls to swap. The Offender asked “what you got” and “your turn send the youngest ya got.” The user sent the Offender a file and the Offender commented: “shes old mate you got any young girls in real life or children”. The user replied, “she’s not old 16”. The Offender stated the following: “…you got vids of your kids” and “so wheres the vid of the girls you fuck”.

73. In these conversations, the Offender caused to be transmitted to himself child pornography material classified as follows:

Category	Images	Videos	Total
1: No sexual activity	7	0	7
2: Solo/sex acts between child	0	1	1
3: Adult/child non-penetrate	1	0	1
4: Adult/child penetrate	1	3	4
5: Sadism/bestiality/child abuse	0	0	0
6: Animation	0	0	0
Total	9	4	13

Charge 6 – Procure a person under 16 for sexual activity

74. On 8 September 2017, the Offender engaged in online chat via Kik messenger application with a police operative who was purporting to be a 15 year old female using an assumed identity herein referred to as KM-AI1.

75. Between 8 and 18 September 2017, the Offender communicated with KM-AI1 whom he believed to be under the age of 16 years with the intention of procuring her to engage in sexual activity with him in the course of online chat conversations. These were logged and recorded. During their chat the Offender sent KM-AI1 images and video files which included his face.[12] These chat conversations are summarised below:

[12] Exhibits 3 – 12, DSC MERVIN statement.

-   On 8 September 2017, the Offender asked KM-AI1 how old she is and whether she has any pictures. She said she is 15 years old and the Offender informed her that he is 28 years old. The Offender asked her if she is looking for an older guy and escalated the chat to sexualised chat including,“…whats the dirtys thing ya done”…“Okay what you in to babe xx You had sex before do you masterbate”…“Lol we could maz together You should maz with your girls babe” and “Send me a pic keen on you xx ?? You had sex x” The Offender sent KM-AI1 two images of himself. The first is the Offender’s face and naked upper body. The second image is of the Offender lying on a bed naked and holding his erect penis.

-   The Offender asked if KM-AI1 has had sex and when she replied “not yet” he stated “well I want to teach you and do you watch porn” The Offender asked KM-AI1 to send pics.

-   The Offender asked her if she is interested in bestiality or incest and explained them as such “yeah a dog lick your pussy or fucking you. Incest is family sex”.

-   The Offender sent KM-AI1 an image of a dog engaging in sexual acts with an adult female and informed KM-AI1 that he can set up a dog for her and asked if she would be keen. The Offender sent two videos of dogs and adult females engaging in sexual acts and told KM-AI1 that she will like it.

-   The Offender asked KM-AI1 if she is going to masturbate for daddy tonight. The Offender asked KM-AI1 if she is receiving his text messages.

-   On 9 September 2017, the Offender initiated contact with KM-AI1 asking why she didn’t send him any videos. KM-AI1 explained that she was with her mum all day and fell asleep in bed with mum. The Offender said, “Well can you do some for daddy” and when she said she will try he said, “Just do it in your room with the door locked” and ”Lol well put something up against your door”. The Offender sent three videos all of him naked and masturbating his erect penis.

-   On 12 September 2017, the Offender contacted KM-AI1 asking her to send pics of her naked and with her face in them.

76.On 8 September 2017, the Offender and KM-AI1 exchanged phone numbers. The following is a summary of their text conversations:

-   On 8 September 2017, KM-AI1 sent the Offender a text to confirm she has the right number and the Offender responded requesting that she send a picture. KM-AI1 sent the Offender an image. The Offender responded, “Nice babe your ass is on point xx”…“Get naked bub xx”…“Tonight film yourself playing with your pussy xx”…“Yep you got a dildo”.

-   The Offender also sent the following messages: “You going to do daddys vids?”...“Might have to get you one any sexy outfits”. The Offender suggested that KM-AI1 should ask her friends to masturbate together or ask one of them to hook up with her.

-   The Offender asked KM-AI1 if she wanted him this Sunday and said, “Okay I will drive out your ways and meet you at a secluded spot xx”. The Offender sent KM-AI1 an image of a vehicle. The Offender said that if she can’t get out, they will meet another day then. The Offender continued requesting a picture of KM-AI1 saying “Promis you do daddys vids when you get in to bed xx”…“Don’t try do as your master says xx” and “Good slave lots of vids later xxx”.

-   On 10 September 2017, KM-AI1 told the Offender that she has been with family all day and the Offender responded, “Okay sex slave ;)” “You doing my vids lol”…“Do some vids of you playing with your self xx”…“So when can you do it sex slave xx” and “Alright xxx so you want to try a dog for daddy”.

-   On 11 September 2017, the Offender said, “Can’t wait to rub your pussy ;)” and “Go to the toilet send pics slave xxx”.

-   On 12 September 2017, the Offender said, “Cant wait to fuck you. You still going to do vids and want to shear you with some guys xxx”.

-   On 13 September 2017, KM-AI1 asked the Offender what guys and he responded “Some older guys I met off Craigslist”…“Xx good slave imagine all guys taking turns on you” and “Will try get two other guy and me”. The Offender asked her for pictures of herself.

-   On 14 September 2017, the Offender said, “Sunday night you keen xx”…“Add me on Snapchat meet up Sunday so I can play with you xx” and “I drive can go somewhere secluded and play”. The Offender sent messages to KM-AI1 between 15 September 2017 and 16 September 2017 but received no reply.

-   On 18 September 2017, the Offender said, “You got cold feet slave”…“I need to this weekend I want you sucking my cock”…“Alright slave you played with your self yet” …“When am I going to see you princess”…“Will have to meet somewhere a park late at night will fuck you in my car” and “This weekend catch a train to me”.

-   KM-AI1 said she can’t go on the weekend as she is going away on Friday. The Offender asked her for some pictures referring to her as ‘slave’. The Offender said: “Go to the toilet take pics in there”…“Your self naked ass boobs pussy” and “?? Daddy wants you to stop been naughty xx”.

Charge 7 – Possession of child abuse material

77. Charge 7 relates to child abuse material that was located on electronic devices seized at the Offender’s residence on 20 September 2017. The child abuse material located on the devices was classified according to the categorisation model of the Australian National Victim Image Library (‘ANVIL’), which is set out in Annexure A.

Forensic analysis

78. Analysis of the Samsung mobile phone and HP laptop revealed that it contained a total of 194 files that constituted child abuse material, classified as follows:[13]

[13] DSC Buwalda statement.

Category	Images	Videos	Total
1: No sexual activity	102 (21 unique)	0	102
2: Solo/sex acts between child	37	28	65
3: Adult/child non-penetrate	10 (2 unique)	0	10
4: Adult/child penetrate	8 (2 unique)	9	17
5: Sadism/bestiality/child abuse	0	0	0
6: Animation	0	0	0
Total	157	37	194

79. A summary of the content of the files contained in each category is as follows:

·Category 1 – Victims depicted in this category predominantly appear to be female children between 5 to 15 years old in different positions, some exposing their genitalia.

·Category 2 – There are images and videos depicting a female child aged approximately 15 years old engaging in solo masturbation with a sex toy.

·Category 3 – There is an image of a female child aged between 7 to 10 years old holding an erect penis with semen on her face.

·Category 4 – Victims depicted in this category were females aged approximately between 13 and 15 years old. The material includes oral penetration by penises both orally and vaginally.

80. A sample of the child pornography contained on the devices is available for the Court to view.

SERIOUS SEX OFFENDER PROVISIONS

81. If sentenced to a term of imprisonment on any two of charges 1, 2, 4, 5 and 6, the Offender will fall to be sentenced as a Serious Sexual Offender on charge 7 pursuant to part 2A of the Sentencing Act 1991 (Vic).[14] A court that sentences a Serious Offender for a relevant offence must cause to be entered into the records of the court that the Offender was sentenced for that offence as a Serious Offender.[15]

[14] For the purposes of pt 2A of the Sentencing Act 1991 (Vic), a “serious sexual Offender” means an Offender (other than a young Offender): s 3(1)) who has been convicted of two or more sexual offences, for each of which he has been sentenced to a term of imprisonment: s 6B(2)(a). The offences which are the subjects of charges 1, 2, 4 to 6 are each “sexual offences” for the purposes of pt 2A: s 6B(1), sch 1 cl 1 (df)(ii) (using a carriage service for child pornography material), (df)(vi) (using a carriage service to procure persons under 16 years of age).

[15] Sentencing Act 1991 (Vic) s 6F(1).

SEX OFFENDER REGISTRATION

82. Charges 1, 2, 4, 5, 6 and 7 on the indictment are Class 2 offences under the Sex Offenders Registration Act 2004 (Vic), and are registrable offences.[16]

[16] Sex Offenders Registration Act 2004 (Vic) s 7, sch 2 items 28A(i) (using a carriage service for child pornography material), 28A(v) (using a carriage service to procure persons under 16 years of age), 15 (possession of child abuse material).

83. Upon sentence, the Offender will be a registrable Offender as defined in the Sex Offenders Registration Act 2004 (Vic).[17] He is therefore required to comply with the reporting obligations as set out in that Act. As he has pleaded guilty to three or more Class 2 offences, he is required to report for the remainder of his life.[18]

[17] Ibid s 6(1).

[18] Ibid s 34(1)(c)(iii).

OTHER MATTERS

84. The Offender is 29 years old and was 28 years old during the period of offending. He has no criminal history.

85. The Offender pleaded guilty to the charges on the indictment at the committal mention at the Melbourne Magistrates’ Court on 9 February 2018.

86. The Offender has not spent any time in custody for this offending.

87. In accordance with s 6AAA of the Sentencing Act 1991 (Vic), the Court must state the sentence it would have imposed but for the pleas of guilty.

Commonwealth Director of Public Prosecutions

30 April 2018

IN THE COUNTY COURT OF VICTORIA     CR-18-00296

AT MELBOURNE

IN ITS CRIMINAL JURISDICTION

THE QUEEN

–v  –

GREGORY JAMES LEVEY

ANNEXURE A – CATEGORISATION MODEL FOR CHILD EXPLOITATION MATERIAL OF THE AUSTRALIAN NATIONAL VICTIM IMAGE LIBRARY

Category	Guide
1.    No sexual activity	Depictions of children with no sexual activity – however must be sexually suggestive or sexual in nature. Can include nudity, surreptitious images showing underwear (upskirt), sexually suggestive posing, explicit emphasis on genital areas, solo urination by a child.
2.    Solo/sex acts between children	Solo masturbation by a child or sexual acts between children only in which penetration of any orifice does not occur. Includes the penetrative use of sex toys by the victim only.
3.    Non-penetrative adult/child	Non-penetrative sexual activity, between child and adult(s). May include mutual masturbation and other non-penetrative sexual activity.
4.    Penetrative child/child – adult/child	Penetrative sexual activity between children only or adult(s) and children – may include, but is not limited to, vaginal/anal intercourse, cunnilingus and fellatio. Penetrative use of sex toys and/or foreign objects.
5.    Sadism, bestiality, child abuse	Sadism, bestiality or humiliation (urination, defecation, vomit, bondage, etc), torture or child abuse.
6.    Animated, virtual or text	Visual/audio or text representations of child pornography in a format that does not depict and/or feature a real child.