Director of Public Prosecutions v Navarro
[2021] VCC 264
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01317
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MICHAEL NAVARRO |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2021 | |
DATE OF SENTENCE: | 16 March 2021 | |
CASE MAY BE CITED AS: | DPP v Navarro | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 264 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Use carriage service to access child pornography material; Solicit child abuse material; Possess child abuse material; Make available child abuse material; Transmit child abuse material; Serious example of offending; Material of high order of depravity; Early plea of guilty; Moderate risk of reoffending; Reasonable prospects of rehabilitation
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Burbridge v R [2016] NSWCCA 128; DPP (Cth) and DPP v Garside (2016) 50 VR 800; DPP v Incorvaja [2021] VCC 469; R v KAT [2018] QCA 306; Lyons v R [2017] NSWCCA 204; Lyons v R [2019] VSCA 242; R v Porte (2015) 252 A Crim R 294; DPP v Semmens (a pseudonym) [2018] VCC 1716; DPP v Smith [2010] VSCA 215; DPP (Cth) v Zarb (2014) 46 VR 832; DPP v D’Alessandro (2010) 26 VR 477; R v De Leeuw [2015] NSWCCA 183
Sentence: Total effective sentence of 4 years’ imprisonment, non-parole period of 2 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr M. Keks | Director of Public Prosecutions (Cth) |
| For the Accused | Mr S. Cooper | Doogue + George |
HIS HONOUR:
Introduction
Michael Navarro, on 22 February 2021, you pleaded guilty to the following charges:
·
that between 12 December 2018 and 9 September 2019 you used a carriage service to access child pornography material[1] contrary to
s 474.19 (1) of the Criminal Code (Cth) (Charge 1);
·that between 5 April 2020 and 30 May 2020 you used a carriage service to solicit child abuse material[2] contrary to s 474.22 (1) of the Criminal Code (Cth) (Charge 2);
·that between 27 April 2020 and 30 May 2020 you used a carriage service to make child abuse material available contrary to s 474.22 (Charge 3);
·that between 3 May 2020 and 10 May 2020 you used a carriage service to transmit child abuse material contrary to s 474.22 (1) of the Criminal Code (Cth) (Charge 4); and
·that on 1 June 2020 you possessed or controlled child abuse material obtained or accessed using a carriage service contrary to s 474.22A (1) of the Criminal Code (Cth) (Charge 5).
[1] At the time of the relevant offending ‘Child pornography material’ was defined in subsection 473.1 of the Criminal Code Act 1995 (Cth):
child pornography material means:
(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) material the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.
[2] At the time of the relevant offending ‘Child abuse material’ was defined in subsection 473.1 of the Criminal Code Act 1995 (Cth):
child abuse material means:
(a) material that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(e) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(f) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(g) material that is a doll or other object that resembles:
(i) a person who is, or appears to be, under 18 years of age; or
(ii) a part of the body of such a person;
if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.
At the hearing of your plea in mitigation, Mr Keks, who appeared on behalf of the Commonwealth Director of Public Prosecutions, tendered and read to the Court a prosecution opening for plea. Mr Cooper, who appeared on your behalf, accepted that the opening accurately described the circumstances of your offending and could properly form the factual basis for sentence.
Background
On 5 November 2019, the Australian Centre to Counter Child Exploitation (ACCCE) received information that your online account for the cloud storage service ‘Mega’, associated with the email address ‘[email protected]’, had been identified as downloading and storing child abuse material.
On 1 June 2020, officers from the Joint Anti-Child Exploitation Team (JACET) executed search warrants in relation to you and your vehicle. Police seized a black iPhone in your possession and a preliminary analysis of the device found that the phone contained child abuse material.
That day, you participated in a record of interview and made the following admissions:
·that you were the sole user of the email addresses [email protected], [email protected] and [email protected]; and
·that you were the sole user of the mobile numbers ending 540 and 457.
During the interview you were also questioned about the material located on your phone and in the online storage service ‘Mega’ however, you exercised your right not to comment on those matters.
Digital analysis found that the ‘Mega’ app installed on your phone was connected to an account using the email address [email protected] with the username ‘MikeBrown’ and that it contained child abuse material.
The social media app ‘Telegram’ was also found to be installed on your phone, again with the username ‘MikeBrown’. Investigators located 11 separate chat threads that were used solely for the sharing of child abuse material, sharing links to Mega accounts containing child abuse material, or discussions relating to methods of accessing and storing child abuse material.
The child abuse material examined by investigators was categorised according to the Interpol Baseline 4 Tier Categorisation System (IB4TCS):
Category
Guide
1 – Real child, pre-pubescent (under 13 years of age)
Media depicting a real prepubescent child/very first signs of puberty and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region. Includes any media, where the child is under 13 years of age, which would previously have been categorised within categories 1-5 under the Australian National Victim Image Library (ANVIL) System.
2 – other illegal content, child under 18 years of age
Other child abuse material that is illegal within Australia but does not fit within category 1 above.
Includes any media, where the child is under 13 years of age but the media does not fall within Category 1 above or is of low resolution.
Includes any media, where the child is between 13 years and 17 years of age, which would previously have been categorised within categories 1-5 under the ANVIL system.
3 – investigative interest
Material that is neither illegal nor child abuse material, but is of a type that may be of interest from an investigative position. Includes media such as images which are indicative of an interest in CAM but are not illegal, or children in non-illegal poses which form part of a series of images which go on to include CAM.
4 – Ignorable
Material that does not fall within any of the other three categories, including adult pornography.
Charge 1
On 12 December 2018 you created an online storage account with Mega. Between 12 December 2018 and 9 September 2019, you accessed child abuse material through that account. You were locked out of that account on 9 September 2019 after you exceeded its storage allowance.
Between 4 April 2020 and 26 April 2020 you referred to that account within multiple chat threads on Telegram in the context of sharing child abuse material, sharing links to Mega accounts containing child abuse material or discussions relating to methods of accessing and storing child abuse material. For example, between
4 April 2020 and 29 May 2020 you communicated with a user on Telegram and made the following comments:
“Any idea how to get my old account back?”
“You think I’ll be safe if I ask mega to find the problem and reinstall?? I’ve got some crazy shit on that account”
“Man I’m so pissed about my last account. Almost 200gb of no doubles”
“They used to send like 15-20 links at once. Was crazy to kep up most common was the pack 1, pack 2, etc. I even had 1 copy of some blonde chick…only 1 in over at least 5-500gb. Never saw it before and never again. And it’s on my lost acc”
“Do I try n get my account back or not. I just got confirmation from mega. This could land me in a heap of sht. Or do I stop??”
“It’s a pretty big step seeing as though what I have”
“Took me 2 Fck years to sort out the doubles n have a good link. Now it’s all to sht”
A further example involved communication with a different user between 21 April 2020 and 1 June 2020 where you sent messages such as the following:
“I lost my last account on mega from a lock out. I had almost 200g on filtered content. Took almost a full 2 months to go through.”
“I wasn’t in a group trade. Just had contacts. OMFG. Yes I’ve got these on my last account. Fkn fk fk fk can’t get to them. Fkn fk.”
“I had vids. But fk my life I can’t get to them.”
Those communications clearly established, and you accept, that the Mega account to which you were denied access contained child pornography material.
Charges 2, 3 and 4
Between 4 April 2020 and 1 June 2020, you engaged in ‘chats’ over the social media app Telegram with other users, in which you and the other participants shared child abuse material.
Charge 2 relates to you soliciting child abuse material on 37 occasions.
Charge 3 relates to you transmitting child abuse material in the form of images and videos to other individuals in three separate Telegram chats. In total you transmitted one image and eight videos classified as Category 1.
Charge 4 relates to you making available child abuse material in the form of URL links to Mega folders containing images and videos to other individuals in five separate Telegram chats. In total you made available two images and 142 videos classified as Category 1, and 26 videos classified as Category 2.
‘James Sacramento’
Between 4 April 2020 and 29 May 2020 you engaged in a conversation via telegram with a user ‘James Sacramento’ and solicited child abuse material on eight occasions. You received four URL links to Mega folders from this user. Investigators were unable to access three of the URLs. The fourth URL contained 128 Category 3 images and 16 Category 3 videos of a clothed 14–16 year old female in her bedroom.
‘Miss Natali’
Between 9 April 2020 and 5 May 2020 you engaged in conversation via Telegram with a user ‘Miss Natali’ who purported to be an underage female selling photos. You solicited child abuse material on nine occasions. You received one
Category 3 image of a female, approximately eight years old, posing in the driver’s seat of a vehicle. During the conversation you transmitted a Category 1 video to Miss Natali of a naked male penetrating a naked female who was approximately ten years of age, with his penis, in several positions.
Group Telegram chat with 48 other users
Between 19 April 2020 and 1 June 2020 you were a participant in a group Telegram chat with 48 other users, during which you solicited child abuse material on two occasions. During the chat you shared a URL to a Mega folder which contained a Category 1 video of an adult male engaging in sexual intercourse with a one to two year old female.
‘Lucy’
Between 21 April 2020 and 1 June 2020 you engaged in conversation via Telegram with a user ‘Lucy’. You sent ‘Lucy’ a URL to a Mega folder which contained 57 child abuse files. The videos were predominantly of adult males penetrating prepubescent females, aged between one and 12 years of age, with their penises. Many videos were compilations of different females being penetrated. One video, described in some detail in the summary of prosecution opening, depicted a naked five to six year old female subjected to torture and bestiality.[3]
[3] Summary of Prosecution Opening for Plea at paragraph [32].
The videos were categorised as follows:
Images
Videos
Total
Category 1
1
53
Category 2
3
Total (Cat 1 + 2)
1
56
57
Group Telegram chat with 24 other users
Between 28 April 2020 and 1 June 2020, you participated in a group conversation via Telegram with 24 other users and solicited child abuse material on two occasions. In this chat you transmitted one Category 1 image and six Category 1 videos that featured naked male adults using their penises to vaginally, anally and orally penetrate naked females aged approximately 8 to 10 years. You also shared a URL to a Mega folder which contained 33 Category 1 videos and 20 Category 2 videos.
Group Telegram chat with 51 other users
Between 2 May 2020 and 6 May 2020 you participated in a group chat via Telegram with 51 other users in which you solicited child abuse material on ten occasions. You transmitted one Category 1 video of a naked male using his penis to penetrate females aged approximately 8 to 10 years old. You also sent URLs to two Mega folders each containing one Category 1 video.
‘Ricardo picachu’
Between 3 May 2020 and 30 May 2020 you engaged in conversation via Telegram with the user ‘ricardo picachu’ and solicited child abuse material from this user on four occasions by asking for videos.
‘Dani sam Love’
Between 4 May 2020 and 1 June 2020 you engaged in conversation via Telegram with the user ‘Demi sam Love’ and solicited child abuse material on two occasions. You received various child abuse images and videos from this user. The videos included an adult male using his penis to vaginally penetrate a 1–2 year old female and a lengthy compilation video of adult males engaging in multiple forms of penetration with prepubescent and pubescent females.
Group chat with 11 other users
Between 15 May 2020 and 18 May 2020 you participated in a group telegram chat with 11 other users. You shared a URL to a Mega folder containing 57 child abuse files. The URL was the same URL you shared with the user ‘Lucy’ as described above.
Charge 5
Police examined and classified data obtained from the seized mobile device. This data was classified according to the Interpol Baseline 4 Tier Categorisation System (IB4TCS). A total of 19 child abuse image and video files were identified in the gallery of the mobile device and categorised as follows:
Images
Videos
Total
Category 1
2
14
Category 2
3
Category 3
4
1
Total (Cat 1 + 2)
2
17
19
Investigators also located child abuse material in the Mega app installed on the device with account name [email protected]. The account contained 41.45GB of data from which a sample of 50 files were reviewed and categorised as follows:
Images
Videos
Total
Category 1
2
4
Category 2
4
14
Category 3
Category 4
6
Total (Cat 1 + 2)
6
38
44
One of the videos located on your mobile device was of 12 minutes’ duration and depicted an adult male engaging in multiple acts of anal and oral penetration of a pre-pubescent female who was approximately 6 years of age.
Procedural history
Turning to the procedural history of this matter. You were arrested, charged and bailed on 1 June 2020. You indicated your intention to plead guilty to the charges on this Indictment at committal mention on 16 October 2020. The matter was then listed for plea hearing in this Court which came before me on 22 February 2021.
Your plea of guilty was entered at what I gauge was the earliest reasonable opportunity and in those circumstances will attract a substantial discount in the sentence that would otherwise have been imposed.
Personal history
Turning to your personal history. You were born on 27 November 1977. You were 41–42 years of age at the time of the offending and you are now 43.
Your parents separated when you were approximately six months old and your father had no involvement in your childhood from that point onwards. You were raised by your mother and grandmother in a stable home in Carlton North. There were no instances of violence or mistreatment in the home. Your grandmother, with whom you were close, passed away in 2013 and you experienced her loss as a particularly difficult time in your life.
Despite the care and stability provided by your mother, you did, however, feel aimless and suffered from issues with self-esteem and anxiety. During your teenage years, you were described as falling in with the wrong crowd and commenced using cannabis and drinking alcohol when you were 15. You moved out of the family home when you were approximately 14, but returned to live with your family periodically.
You have remained in close contact with your mother who is aware of your offending. She provided a personal reference in which she sets out the salient aspects of your upbringing and charts what she describes as the “totally self-destructive trajectory” of your later life. You are fortunate to retain her full support.
You attended a number of local schools in the Carlton North area but later attended Xavier College and Scotch College on partial sports scholarships because you had shown particular aptitude in tennis. Unfortunately, a back injury sustained in your teens frustrated your potential to play tennis at a high, or even professional, level. At school you were more focused on practical rather than academic subjects and left at the end of Year 11.
Although you have no relevant prior convictions, this is not the first time that you have been before a court. It appears you committed some dishonesty offences in your late teens and some driving offences dealt with in January 2004. Since then, other than these matters, you have experienced no other problems with the law. I do not see your criminal history, such as it is, as impacting the sentencing exercise in respect of these matters.
Since leaving school you have mainly worked in the hospitality industry, initially as a waiter, but by 2004 or so you were promoted to managerial positions and in that capacity worked at a number of leading restaurants. Between 2014 and 2020 you were employed as a manager at a large hotel in the central business district before being made redundant due to the COVID-19 pandemic.
Over your adult life you have been involved in at least two significant intimate relationships. You were married in 2011. However, the relationship deteriorated in the context of disagreements with your wife’s family and your increasing alcohol consumption. Your wife ended the relationship in 2018 and this appears to have had a devastating effect. You became depressed and your alcohol consumption escalated to a problematic level.
As Mr Cooper described your predicament, it was during this time that your use of pornography became increasingly dysfunctional. Your drinking intensified your depression and disinhibited your behaviour. Your viewing of pornography took on a disturbing pattern. You became increasingly interested in child abuse material and came in contact with others through various online forums and networks who were also downloading child abuse material, which facilitated further access.
You told your assessing psychologist, Dr Mathew Barth, that you initially found the child abuse material ‘shocking and disturbing’ but admitted the ‘taboo’ nature of the material was exciting. You acknowledged that you became increasingly ‘interested’ in child abuse material and found the material involving female children sexually arousing.
In his report of 8 February 2021, Dr Barth noted that you exhibited a number of symptoms which in his view met the diagnostic criteria for an ‘Adjustment Disorder with Anxiety’. In particular, he assessed you as having intense feelings of self-doubt and deep insecurity about sexual matters, which have been prominent amongst the difficulties you have experienced in your intimate relationships and have contributed to your obsessive recourse to online pornography as a social outlet.
Dr Bath also noted that your dysfunctional use of alcohol meets the criteria for diagnosis of an ‘Alcoholic Use Disorder’. He suggested that you had developed a fully-fledged physical addiction and that your drinking was compulsive. It had a particularly destructive effect because it exacerbated your emotional distress, making it difficult for you to seek support from others. A continuing concern, as
Dr Barth noted, is that you displayed a very limited insight into your alcohol abuse and remain at significant risk of further alcohol related problems.
On one hand, you presented to Dr Barth as having pro-social views regarding children and sex; however, he found there were clear issues with your interpersonal and sexual adjustment. He stated:
‘Specifically, the deviant nature of the material he accessed and the progression of his behaviour to include engagement with others via online venues all point to the presence of entrenched deviant sexual cognitions. This led to deviant sexual arousal patterns and were intensified by the broader behavioural problems (his alcohol abuse) which pervaded his life at that time.
Moreover, Mr Navarro admitted that, at the time of his offending he had rationalised that since the images/videos he accessed were freely available and that he was not physically abusing any children that there was no harm in accessing them and using them for masturbatory purposes. This allowed him to continue to justify his actions.’
Dr Barth indicated you were able to display some signs of challenging these thoughts. He also stated that you had expressed remorse for your offending. You said to him, ‘I understand now that what I did was wrong, the way they (the children) are groomed. I am so disappointed in myself.’
Finally, Dr Barth concluded that you met the diagnostic criteria for ‘Unspecified Paraphilic Disorder’ and that you were a moderate risk of recidivism in respect of this kind of ‘virtual offending’. With the completion of a sex offender treatment program he expected that risk would reduce.
Defence submissions
Mr Cooper, in his submissions on your behalf, acknowledged that the material you dealt with was particularly grave and that general deterrence must be an important sentencing purpose.
He submitted that whilst your marriage breakdown and the resulting cycle of drinking and offending in no way excused your behaviour, it did contextualise it. He submitted that you are motivated to reduce your alcohol use and had recently engaged with the Uniting Care ReGen service. You have also registered to attend an alcohol behaviour change course.
Counsel submitted that not only was your plea entered at the first reasonable opportunity, but it demonstrated your acceptance of responsibility for the offending, was of utilitarian value, and facilitated the course of justice.
Despite the assessment putting you at a moderate risk of reoffending, you have shown some insight and remorse and are motivated to engage in treatment which would improve your rehabilitative prospects. I was told that you have not offended since your arrest and have stopped viewing pornography.
In those circumstances it was submitted that a term of not more than three years’ imprisonment accompanied by a Recognisance Release Order conditioned upon you completing the sorts of programs identified by Dr Barth in his concluding comments was the appropriate disposition. Those programs should include sex offender treatment, mental health treatment and alcohol abuse counselling and education.
Prosecution submissions
Mr Keks submitted that your offending was very grave. You dealt with a large quantity of child abuse material which was extreme and of unusual depravity. This was not simply passively sharing the material. The distributive nature of your activities contributed to an ongoing market in the abuse of young children and encouraged others to do the same.
Although you did not profit financially, you still benefited by receiving further child abuse material which in turn fuelled demand for such material. Moreover, you carried out these activities, it was submitted, anonymously using the social media app ‘Telegram’.
Mr Keks also pointed to the fact that most of the material with which you dealt consisted of videos rather than still images. He submitted that once it was understood how much of this material was in your possession, how depraved it was, how long you have been engaging in this offending and how you had gone about systematically collecting and storing the material, the only proper sentence open was an immediate term of imprisonment with a non-parole period.
Consideration
In assessing these submissions I was referred to a number of cases for the purpose of providing some assistance as to applicable sentencing principles and some guidance as to sentencing range,[4] bearing in mind that comparative cases cannot define the proper sentencing range.
[4] Burbridge v R [2016] NSWCCA 128; DPP (Cth) and DPP v Garside (2016) 50 VR 800; DPP v Incorvaja [2021] VCC 469; R v KAT [2018] QCA 306; Lyons v R [2017] NSWCCA 204 (Lyons (NSW)); Lyons v R [2019] VSCA 242 (Lyons (Vic)); R v Porte (2015) 252 A Crim R 294; DPP v Semmens (a pseudonym) [2018] VCC 1716; DPP v Smith [2010] VSCA 215; DPP (Cth) v Zarb (2014) 46 VR 832.
The factors that assist in determining the objective seriousness of your offending include the following –
a)the nature and content of the material;
b)the age of the children the subject of abuse;
c)the gravity of the sexual activity depicted;
d)the number of images or videos possessed, accessed or transmitted;
e)whether material is for the purpose of sale or further distribution;
f)whether the offender would profit or receive some benefit;
g)the number of children depicted and thereby victimised;
h)the length of time over which the material was possessed; and
i)the degree of planning organisation or sophistication in acquiring storing disseminating or transmitting the material.[5]
[5] These factors are helpfully set out in Garside at paragraphs [24] and [25] and are derived from earlier cases such as DPP v D’Alessandro (2010) 26 VR 477 and De Leeuw [2015] NSWCCA 183.
Applying those factors to these offences, there can be little doubt, as the prosecution submitted, that each offence you committed was a serious example of the offence charged. You dealt with a large quantity of child abuse material over a significant period between 12 December 2018 and 1 June 2020. The depravity of the material was of a high order with much of it relating to children under 13 years of age, and as young as one year old, being subjected to terrible abuse.
In respect of Charge 1, there is no direct evidence as to the quantity or nature of the material. However, the total data stored in that Mega account was more than 200GB. Relying upon what you told others about that account, I am satisfied beyond reasonable doubt that the majority of the material in that account must have comprised child pornography material.
Charges 2, 3, and 4 relate to your use of the Telegram application to engage in acts of soliciting, transmitting and making available child abuse material. In respect of Charge 2, you solicited child abuse material on 37 occasions in seven separate conversations. In respect of Charge 3, you transmitted one image and eight videos which constituted child abuse material. In respect of Charge 4, you made two images and 166 videos of that type available in five separate conversations. Two further points might be made about that activity. First, it was perpetrated using an application that allowed you to maintain anonymity. Second, your involvement in the exchange of child abuse material contributed to the market in that material, which fuels the victimisation of the children who are exploited to create it.
Charge 5 relates to your possession of this sort of material on both your phone and a second Mega account. Your phone contained two images and 17 videos of child abuse material. The sample of 9 per cent or so taken from your Mega account, which consisted of 41.45GB of data in total, clearly demonstrated that that account mainly contained more depraved child abuse material. The 12-minute video described at paragraph 29 of these sentencing remarks is a case in point.[6]
[6] See Summary of Prosecution Opening for Plea at paragraph [55] for a more detailed description
In respect of the four comparative sentencing cases provided by Mr Keks – Lyons (Vic), Lyons (NSW), Burbridge and KAT – I think it is important to note that both Lyons (NSW) and KAT dealt with aggravated forms of this offending and were subject to higher maximum penalties than the 15 year maximum terms applicable in this case.
Balanced against those matters are some important mitigating factors, not least of which are your early plea of guilty, your acceptance of responsibility for this offending and what I find to be your remorse for having engaged in this abhorrent and abusive behaviour. The breakdown of your marriage and your underlying psychological vulnerabilities, as your counsel submitted, provide some context for your offending, but it must be emphasised that there can be no justification for offending as antithetical to human decency as this offending is.
I take into account the fact that you have also suffered the loss of your career in hospitality management because these convictions will likely prevent you from obtaining further employment in that field. You have no relevant prior convictions and it is significant that you have the support of your family, particularly your mother who provided a very impressive reference.
Although you present as a moderate risk of reoffending I accept Dr Barth’s opinion that with treatment that risk is likely to reduce. You have much work to do with respect to rehabilitation. In addition to undertaking sexual offence treatment you will need to deal with your alcohol abuse and obtain psychological assistance with respect to your anxiety. None of that is likely to be easy but I am persuaded that you are motivated and that your prospects are therefore reasonable.
Having considered your case carefully however, I have concluded that I cannot accede to the submission made by your counsel that you be sentenced to a term of imprisonment of three years or less in combination with a recognisance release order. The offending that you engaged in is simply too serious. There is, as was said in Garside, a paramount public interest in promoting the protection of children and deterring you and others from dealing in child abuse material. In addition, part of the purpose in imposing this sentence upon you is to manifest the community’s denunciation of this type of conduct which contributes to the sexual and physical abuse of young children. In my view, the emphasis required on those sentencing purposes leaves no alternative but the imposition of an immediate term of imprisonment with a fixed non-parole period.
Sentence
Taking all relevant matters into account, you will be sentenced as follows:
On Charge 1, accessing child pornography material, you will be convicted and sentenced to 24 months' imprisonment. That sentence will commence today, 16 March 2021.
On Charge 2, soliciting child abuse material, you will be convicted and sentenced to 18 months' imprisonment. That sentence will commence 12 months after the sentence imposed on Charge 1.
On Charge 3, transmitting child abuse material, you will be convicted and sentenced to 18 months' imprisonment. That sentence will commence six months after the sentence imposed on Charge 2.
On Charge 4, make available child abuse material, you will be convicted and sentenced to 18 months' imprisonment. That sentence will commence six months after the sentence imposed on Charge 3.
On Charge 5, possessing or controlling child abuse material, you will be convicted and sentenced to 18 months' imprisonment. That sentence will commence six months after the sentence imposed on Charge 4.
To make my sentencing intention clear, six months each of the sentences imposed on Charges 2, 3, 4 and 5 is to be served cumulatively upon the sentence imposed on Charge 1, making for a total effective sentence of four years’ imprisonment. I will fix a non-parole period of two years and three months.
I will declare pursuant to s.6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty, you would have been sentenced to a total effective sentence of six years’ imprisonment and I would have fixed a non-parole period of three years and nine months. I will cause that declaration to be noted in the records of the Court.
Charges 1, 2, 3 & 4 are defined as class 2 offences (ss.474.19(1) & 474.22(1)) under the Sex Offenders Registration Act 2004. I will therefore declare pursuant to s.34(1)(c)(iii) of that Act that you will be subject to the reporting obligations prescribed by that legislation for the remainder of your life.
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