Director of Public Prosecutions v Loughnan
[2024] VCC 1005
•4 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02345
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| TRAVIS DEAN LOUGHNAN |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2024 | |
DATE OF SENTENCE: | 4 July 2024 | |
CASE MAY BE CITED AS: | DPP v Loughnan | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1005 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Use carriage service to access, distribute and produce child abuse material, fail to comply with reporting obligations and others
Legislation Cited: Criminal Code (Cth), Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991 (Vic), Crimes Act 1914 (Cth)
Cases Cited:De Leeuw [2015] NSWCCA 183, DPP (Cth) v Garside (2016) 50 VR 800, Bugmy v The Queen [2013] 249 CLR 571, R v Verdins (2007) 16 VR 269
Sentence: State – 12 months, Cth - 12 years NPP 8 years
Overall TES 12 years 6 months NPP 8 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Tatas | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr G. Davis | Robyn Greensill & Associates |
HER HONOUR:
1Travis Loughnan, you have pleaded guilty before me to Charge 1, use a carriage service to access child abuse material contrary to sub-section 474.22(1) of the Criminal Code (Cth); Charges 2 and 5, use a carriage service to distribute child abuse material contrary to s 474.22(1) of the Criminal Code (Cth); Charge 3, use carriage service for child abuse material involving conduct on more than three separate occasions and two or more people contrary to s 474.24A of the Criminal Code (Cth); Charge 5, fail to comply with reporting obligations contrary to s 46(1A) of the Sex Offenders Registration Act 2004 (Vic); and Charge 6, produce child abuse material for use through a carriage service contrary to s 474.23(1) of the Criminal Code (Cth).
2The maximum penalty for Charges 1, 2, 5 and 6 is 15 years' imprisonment in each instance. The maximum penalty for Charge 3 is 30 years' imprisonment and for Charge 4 the maximum is 5 years' imprisonment.
3You have also admitted, in relation to Charge 6, that the offence of use carriage service to make available child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) can be taken into account in accordance with s 16BA of the Crimes Act 1914 (Cth).
4I pause there to ask, has that form been signed?
5As you have committed a serious offence (s 16AAA) or a second/subsequent offence (s 16AAB), a mandatory minimum period applies in relation to the head sentence to be imposed in respect of Charges 1, 2, 3, 4, and 6. For Charges 1, 2, 5 and 6, that mandatory minimum sentence is 4 years. For Charge 3, the mandatory minimum sentence is 7 years. I will return to this in due course.
CIRCUMSTANCES OF THE OFFENDING
6On 15 December 2021, police executed a warrant at an address in Mildura where you lived with your mother and sister and seized a mobile phone belonging to you. Analysis of the phone showed that the Telegram messenger application had previously been installed. Telegram users can communicate directly with others in private chats or join a group which includes several other members.
7Police re-installed the application and observed a pre-existing account associated with your phone and phone number with the username 'Ddog'.
8Police determined that between 1 October 2021 and 14 December 2021 you had accessed child abuse material (CAM) through Telegram groups. You were a member of a number of groups, including 'The Little Heaven' group and 'The Climax' group, amongst others. One other Little Heaven group member was in fact a computer program called Mikabot which administered 'games' between other users involving the child abuse material and directed users, including you, to the associated 'Little Heaven' website.
9Analysis of your interactions with the Little Heaven group showed that you engaged with child abuse material in games or comments on 81 occasions. Analysis of your interactions with Mikabot showed you accessed the Little Heaven website on 17 occasions, searched the catalogue on 204 occasions and initiated a game on 270 occasions. I accept that not all of the images on the Little Heaven website were child abuse material, but many of them were. (Charge 1)
10The prosecution opening detailed the nature of the material in relation to this and the other charges but will not be repeated here, given the graphic and distressing nature of the content.
11A review of your account showed multiple chat groups and a large amount of child abuse material. The Climax group had amassed some 56,371 photos and 66,714 videos but the material was not categorised.
12In addition to accessing child abuse material, you distributed child abuse material on The Climax and the Little Heaven groups. In total you distributed 105 videos and 442 images in The Climax group over 10 separate days. (Charge 2). You also distributed a total of 394 child abuse files on the Little Heaven group. (Charge 5)
13On twenty separate occasions, you uploaded child abuse material to The Climax or the Little Heaven group, and that upload involved two or more other people. This occurred on three occasions in The Climax Group and on 17 occasions in the Little Heaven group. You received various responses to your uploads. (Charge 3)
14In October and November 2021, you discussed participating in a 'story challenge' with other users in the Little Heaven group. On 25 November 2021 you created a 'choose-your-own-adventure' style story called 'The Woodcutter's Daughter', a particularly depraved piece of writing which was outlined in the prosecution opening but need not be detailed here. You published your story on a website, making it available to others. (Charge 6)
15I also take into account that you sent a copy of the story to another user, telling them 'this is just the start'. (16BA scheduled offence)
16On 17 September 2014, you had been placed of the Sex Offender's Register for a period of eight years. On 13 February 2020, this registration was extended to life.
17On 9 September 2020, you took part in an annual registered sex offender interview with police. You did not declare your use of the Telegram messaging application account 'Ddog' within seven days of 8 October 2021 as required.
18On 3 November 2021, you again signed an acknowledgement of your reporting obligations. On 5 December 2021, you created an Instagram account in a false name but did not report this within seven days as required. Your account 'followed' 680 other accounts, including those of underage girls. This was not reported to police within seven days as required either. (Charge 4)
19You participated in a record of interview on 15 December 2021 during which you initially denied having Instagram or Telegram accounts and denied being in possession of child abuse material. You then made a series of admissions, telling police:
You just get invited to go so I went and it was just - just a group of people I could talk to instead of staring at a wall all day and felt like I had some place to go but - yes, there were in the two groups that were attached or two of the groups that were attached to the talking group, there were images and stuff in those groups.
20You further told investigators that you had had the account for three or four months, you would probably say you like children 'aged 11 or 12 and up but definitely not babies and definitely not where you see them suffering or having a bad time'.
Offence gravity
21Your offending is plainly very serious. You are a prolific sexual offender, having accessed, distributed and produced a vast number of graphic and disturbing abuse images, videos and stories.
22When sentencing for child abuse material offences, there is a well-established list of considerations to be taken into account, as summarised in De Leeuw [2015] NSWCCA 183 and adopted in DPP (Cth) v Garside (2016) 50 VR 800. These include:
(i)The nature and content of the material;
(ii)The number of items or images possessed;
(iii)Whether the material is for the purpose of sale or further distribution;
(iv)Whether an offender will profit from the offence;
(v)The number of children depicted and thereby victimised; and
(vi)The length of time for which the pornographic material was possessed.
23Your offending spanned approximately 10 weeks and while I accept that you did not profit financially from the offending, this does not mitigate the sentence.
24The number of files you possessed and distributed was substantial. The nature of the material was abhorrent and disturbing, involving children aged from as young as four through to those aged about 12. The number of images represents a vast number of child victims who were harmed in the production of these items. They were not enjoying themselves as you seem to have suggested to police - they were all 'suffering or having a bad time'. They were being violated in the most unthinkable ways.
25Each and every image involves a child victim. These are crimes which cause real and lasting harm to the children who are subjected to abuse for the vile gratification of offenders like you. The public interest in the protection of children is high.
26Charge 6 relates to truly disturbing writing by you, in a story called 'the Woodcutter's Daughter'. The creation of this type of pornography goes to the heart of the online child abuse material industry, creating materials for the gratification of others.
27I further take Item 1 on the 16BA schedule, sharing of 'the Woodcutter's Daughter' text with another online user, into account in passing sentence on Charge 6. You do not fall to be sentenced for this offence, but I take it into account as elevating the need for specific deterrence and the need for adequate punishment in relation to Charge 6.
Personal circumstances and psychological assessments
28You are now 38 years of age, having been born in March 1986.
29You were born in Frankston and lived with your mother. She met your stepfather when you were aged four and you believed him to be your natural father until the age of 10. You have a younger half-brother and a half-sister.
30You first discovered pornography at the age of five, accessing your stepfather's magazines. It was about this time that two Grade 6 girls persuaded you and a five year old girl to engage in sexual acts. Sexual acts were then performed on you by an older female child, a neighbour, and also by an older female child cousin.
31The family moved to Mildura when you were nine. You were regularly subjected to physical abuse from your stepfather throughout your childhood.
32When you were in Grade 5 a teenage family friend involved you in sexual penetration. You would also view pornography at the home of a school friend, including child pornography. Sexualised behaviour, it would seem, was normalised for you.
33Upon discovering your stepfather's infidelity, when you were 10 your mother moved you and your siblings into your maternal grandparents' home in Langwarrin. You returned to Mildura and again lived with your stepfather for a short period before your mother moved out with you and your siblings.
34Your mother worked in a catering business but by the time you were aged 13 or 14 she was medically unable to continue doing so. You left school part way through Year 11 to provide financial support to your mother and siblings.
35You left home aged 16 or 17 to live with a friend. After returning home at 19, you then lived with a girlfriend who committed suicide shortly thereafter.
36You moved in with another girlfriend at 21 but that relationship broke down after 18 months.
37You developed another relationship around the age of 25 with a girl some nine years younger than you. You lived together until your 2014 court appearance, which resulted in a community corrections order.
38You then lived on your own until your remand in 2018 for matters which were finalised in 2020 by way of a three and a half year gaol sentence with a non-parole period of two years.
39Following your release, you lived with your mother and did so until your present remand in December 2021.
40You have worked for several employers over the years in a variety of hospitality and retail roles.
41You are pessimistic as to your chances of ever developing another intimate relationship given your convictions and your registration as a sex offender for life.
42You have a history of self-harm and suicide attempts and have had numerous inpatient hospital stays.
43I have received two reports from clinical psychologist Bernard Healey dated 2022 and 2024. He reports diagnoses of depression, anxiety and agoraphobia.
44You were found to have a high average IQ of between 105 and 110 and remain a high risk of reoffending, despite 'a realisation of the serious nature of the offending and indeed that realisation has increased further through the ongoing therapeutic support and management'.
45Mr Healey found that 'personality assessment revealed a very distressed and disturbed level of emotionality'. He opines that you have been:
in a number of relationships, all of which failed for a number of reasons serving to reinforce your increasingly poor self-esteem, self-image, and strengthening your fear that you could never form an adult intimate relationship with a member of the opposite sex.
46You are medicated in custody and are confined to a protection wing at Ravenhall. You have not yet participated in a Sex Offender Treatment program but clearly need to do so.
Sentencing principles
47On the Commonwealth charges before the court, you are to be sentenced in accordance with the Crimes Act 1914 (Cth). Pursuant to s 16A(1) of that Act, I am required to impose a sentence that is of a severity appropriate to all of the circumstances of the offending. You must also, pursuant to s 16A(2)(k) be adequately punished for the offending.
48S.16A(2) of the Act sets out a list of factors, all of which I have taken into account in passing sentence.
49In relation to Charge 4, I have taken into account the considerations in s 5 of the Sentencing Act 1991 (Vic).
Plea of guilty and remorse
50You have pleaded guilty to the six offences before the court. You have saved the community the time and expense of running a trial. As such, you have facilitated the administration of justice and you are entitled to a benefit for the utilitarian value of your plea.
51By your plea of guilty you have also demonstrated an acceptance of responsibility for your offending, together with a level of remorse. I take that into account.
Other sentencing factors
52Mr Loughnan, the maximum penalties for these offences indicate the seriousness with which they are viewed by Parliament.
53Given the serious nature and the type of charges which you face, general deterrence is the most important sentencing consideration. Other members of the community must be deterred from committing similar offences and it must be understood that stern punishment will follow should they do so.
54Internet crime such as yours is increasingly prevalent offending and is often difficult to detect. It creates a market for the exploitation of vulnerable children.
55You must also be specifically deterred from engaging in this type of conduct in future. You have commenced psychological and psychiatric treatment, but it will be a lengthy and ongoing process and must include offender specific programs. The sentence I impose must make it clear to you that this offending is unacceptable and will not be tolerated by the courts or the community.
56Young members of the community must be protected from becoming victims of online offending such as yours. Just punishment and denunciation are also relevant considerations.
57You have a number of serious relevant prior convictions for sexual offences involving children and have been sentenced on two occasions for this. The seriousness of your offences is escalating.
58As a serious offence (s 16AAA) or a second/subsequent offence (s 16AAB), the mandatory minimum periods apply in relation to the head sentences to be imposed in respect of Charges 1, 2, 3, 5 and 6. For Charges 1, 2, 5 and 6 the mandatory minimum head sentence is four years imprisonment. For Charge 3 the mandatory minimum head sentence is seven years.
59The High Court held in Hurt and Delzotto [2024] HCA 8 that a mandatory minimum sentence as prescribed in ss 16AAA and 16AAB sets the beginning of a yardstick against which the offending to be sentenced can be assessed and within which a court is to exercise its sentencing discretion to determine the appropriate sentence. The mandatory minimum imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances and operates to increase the appropriate term of imprisonment generally for that offence.
60Section 16AAC(2) and (3) provide that a court can impose a sentence less than the mandatory minimum where it considers that adequate recognition cannot be given to an offender's guilty plea or cooperation with having to go below the mandatory minimum head sentence.
61These sections permit an upper level reduction of 25 per cent to accommodate any reduction in respect of a guilty plea and by up to 25 per cent to accommodate recognition of your cooperation. I have taken these considerations into account but have not reached a conclusion that it is necessary for me to apply reductions pursuant to either s 16AAC(2) or (3), given your offending does not fall in the least serious category.
62There is a presumption of cumulation in matters of Commonwealth child sex offences. I give weight to the principle of totality and note that I consider it necessary to impose partial concurrency in circumstances where not to do so would result in an oppressive and unjust sentence.
Sentencing submissions
63Your counsel submitted that the principles in Bugmy v The Queen [2013] 249 CLR 571 apply in your case in a general sense. I find that your exposure to violence and sexual abuse from a young age renders your moral culpability somewhat less than that of an offender whose formative years have not been so marred.
64It was submitted on your behalf that limbs 1, 5 and 6 of R v Verdins (2007) 16 VR 269 apply. The prosecution conceded that limbs 5, that imprisonment will weigh more heavily on you than on a person in normal health, and 6, that there will likely be a significant adverse effect of imprisonment on your mental health, apply. As much is apparent from the reports of Mr. Healey.
65I am not however, persuaded that limb 1 is made out on the evidence available before the court. Mr. Healey states that your disorders significantly interfere with efforts on your part to control your involvement in the offending, but I do not consider these comments to establish a sufficient nexus between your mental state and the offending. I do of course take your mental health into account in a general sense.
66I must consider your prospects of rehabilitation, but they are to be given less weight than general deterrence. You are yet to do a Sex Offenders Treatment Course and your prior convictions, which you are not to be resentenced for, indicate that you are not yet far down the path of rehabilitation. You have expressed a clear sexual interest in pre-pubescent children, have little insight into your offending and have been assessed as a high risk of reoffending. Your prospects of rehabilitation at this juncture are poor but may improve with treatment.
67Ms Tatas, for the prosecution, submitted that no sentence other than a head sentence and non-parole period is called for. This submission takes into account your mental health in combination with the applicable sentencing principles.
68Mr Davis, for you, conceded that a lengthy sentence would be imposed but submitted that a reduction pursuant to the Act for the plea of guilty may be applicable. While I have taken the plea of guilty into account, I do not, as I have said above, consider that it warrants a reduction to a level below the applicable mandatory minimum head sentences.
69I note there are few, if any, intermediate appellate decisions dealing with mandatory minimum head sentences, thus I have not been provided with comparative cases.
70I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.
71Having come to the conclusion that I have no alternative but to impose a period of imprisonment, I direct that my reasons for so finding be entered in the records of the court under s 17A(2)(b) of the Crimes Act 1914 (Cth).
72Would you stand please Mr Loughnan.
Disposition
73First, I will deal with the Commonwealth charges.
74On Charge 1, use carriage service to access child abuse material, you are sentenced to 4 years 6 months' imprisonment.
75On Charge 2, use carriage service to distribute child abuse material, you are sentenced to 4 years 6 months' imprisonment.
76On Charge 3, use carriage service for child abuse material involving conduct on three or more occasions and two or more people, you are sentenced to 7 years 6 months' imprisonment.
77On Charge 5, use carriage service to distribute child abuse material, you are sentenced to 4 years 6 months' imprisonment.
78On Charge 6, produce child abuse material for use through a carriage service, you are sentenced to 5 years' imprisonment.
79I turn now to the State charge.
80On Charge 4, fail to comply with sex offender reporting obligations, you are sentenced to 1 year imprisonment.
81Before I pronounce commencement dates, I indicate that it is my intention to cumulate 7 years and 6 months of the sentence on Charge 3, 1 year of each of the sentences on Charges 1, 2 and 5 and 18 months of the sentence on Charge 6 upon 6 months of the sentence imposed on the State charge so as to achieve a total effective sentence of 12 years on the Commonwealth charges and a global total effective sentence of 12 years and 6 months.
82The State sentence is to commence today.
83As to the commencement dates of the Commonwealth charges, I direct as follows.
84The sentence on Charge 3 is to commence 6 months after the commencement of the State sentence.
85The sentence on Charge 1 will commence 4 years after the commencement of the sentence on Charge 3.
86The sentence on Charge 2 will commence 12 months after the commencement of the sentence on Charge 1.
87The sentence on Charge 5 will commence 12 months after the commencement of the sentence on Charge 2.
88The sentence on Charge 6 will commence 12 months after the commencement of the sentence on Charge 5.
89That makes a total effective sentence on the Commonwealth offences of 12 years' imprisonment.
90I direct that you serve an overall minimum period of 8 years and 6 months before becoming eligible for parole. In order to achieve this, I decline to set a minimum non-parole period in respect of the State sentence, and I shall adjust the minimum non-parole period to be fixed in respect of the Commonwealth total effective sentence as a period of 8 years. I therefore direct that you serve a minimum of 8 years imprisonment before becoming eligible for parole in respect of the Commonwealth total effect sentence.
91This results in a global overall total effective sentence on both the Commonwealth and State matters of 12 years and 6 months' imprisonment. You will effectively be eligible for release on parole after serving 8 years and 6 months in total.
92The purpose of fixing that non-parole period is to allow you the possibility of a period of supervised release into the community to further your rehabilitation.
93If you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked, and you may be ordered to serve the balance of your sentence in prison.
94Pursuant to s 18(4) of the Sentencing Act 1991 (Vic) and s 16E(2) of the Crimes Act 1914 (Cth), I declare that you have served 932 days by way of pre-sentence detention, excluding today and I direct that the fact of this declaration and its details be noted in the records of the court.
95I declare that had you not pleaded guilty the sentence I would have imposed would have been a global total effective sentence of 16 years and 6 months' imprisonment with a global non-parole period of 12 years pursuant to s 6AAA of the Sentencing Act 1991 (Vic).
96I note you are already on the Sex Offenders Register for life.
97You may be seated, Mr Loughnan.
98Ms Tatas and Ms Greensill, does that sentence accord with the intention I expressed?
99MS TATAS: I'm sorry, Your Honour, I'm still just frantically working it out.
100HER HONOUR: No, I can give you five minutes if that would assist.
101MS TATAS: That would be really helpful, thank you, Your Honour.
102HER HONOUR: Yes, Ms Greensill, do you need five minutes to look at it too?
103MS GREENSILL: Yes, Your Honour.
104HER HONOUR: Yes. I will stand down for five minutes. When you are ready let Mr Swindon know and I will come back on the Bench.
105COUNSEL: Thank you, Your Honour.
106(Short adjournment.)
107HER HONOUR: I'll go to you first, Ms Tatas.
108MS TATAS: Thank you for that time, Your Honour. We agree with that calculation.
109HER HONOUR: Thank you. Ms Greensill?
110MS GREENSILL: I agree as well, Your Honour.
111HER HONOUR: Thank you. Given that Mr Loughnan is on the Sex Offenders Register for life, I understand he doesn't need to sign any further paperwork.
112MS TATAS: That's my understanding, Your Honour.
113HER HONOUR: Is there anything else from the prosecution?
114MS TATAS: No, Your Honour.
115HER HONOUR: And from defence?
116MS GREENSILL: No, Your Honour.
117HER HONOUR: Thank you. Mr Loughnan can be taken out, thank you.
118I thank both counsel for their assistance with this matter.
119COUNSEL: As the court pleases.
120HER HONOUR: We will adjourn.
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