Director of Public Prosecutions v Ristivojevic
[2024] VCC 1205
•8 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00984
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEKSA RISTIVOJEVIC |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2024 and 24 July 2024 | |
DATE OF SENTENCE: | 8 August 2024 | |
CASE MAY BE CITED AS: | DPP v Ristivojevic | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1205 | |
REASONS FOR SENTENCE
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Subject:SENTENCE - Criminal Law
Catchwords: Use carriage service to transmit indecent communications to a person believed to be under 16 years of age – use carriage service to procure a person under 16 years of age – use carriage service to cause child abuse material to be transmitted to himself – use carriage service to cause offence by transmitting private sexual material – possess or control child abuse material obtained or accessed using a carriage service – online sexual exploitation of children - prevalence and ready availability of opportunity to offend using the internet – vulnerability of children online - the need to protect children from sexual abuse - primary consideration is general deterrence - denunciation, punishment, and community protection are very important – real victims - utilitarian benefit of plea – remorse – psychological sessions – young person – delay
Legislation Cited: Criminal Code Act 1995 (Cth); Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Azzopardi, Baltatzis and Gabriel v The Queen (2011) 35 VR 43
Sentence: Total Effective Sentence of 18 months imprisonment – Recognisance Release Order of 18 months – Sex Offender Registration for period of life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. McKay | Office of Public Prosecutions |
| For the Accused | Ms H. Baxter | Sarah Tricarico Lawyers |
HER HONOUR:
Introduction
1Aleksa Ristivojevic, you have pleaded guilty to an indictment containing:
· one charge of use carriage service to transmit indecent communications to a person believed to be under 16 years of age, which carries a maximum penalty of 10 years’ imprisonment;
· one charge of use carriage service to procure a person under 16 years of age, which carries a maximum penalty of 15 years’ imprisonment;
· one charge of use carriage service to cause child abuse material to be transmitted to yourself, which carries a maximum penalty of 15 years’ imprisonment;
· one charge of use carriage service to cause offence by transmitting private sexual material, which carries a maximum penalty of 6 years’ imprisonment; and
· one charge of possess or control child abuse material obtained or accessed using a carriage service, which carries a maximum penalty of 15 years’ imprisonment.
2The circumstances in which you came to commit those offences are set out in the amended prosecution opening for plea dated 11 June 2024, which was received into evidence as Exhibit A on your plea. The prosecution also relied upon statements of Detective Senior Constable King (Exhibit B); and since the conclusion of the plea in mitigation of penalty I have received amended submissions for plea hearing dated 24 July 2024, which I will now receive and mark as Exhibit C. I was also helpfully provided by the prosecution with a table of comparative cases and those cases.
3In addition to the matters developed in oral argument, and the oral evidence adduced from consultant psychologist Tracey Allen, your counsel relied on the following exhibited written documents:
· outline of plea submissions by the defendant dated 11 June 2024 with attached comparative cases (Exhibit 1);
· psychological report by Tracey Allen, consultant psychologist, dated 31 May 2024 (Exhibit 2);
· psychological report of Elizabeth Giamarelos dated 6 June 2023 (Exhibit 3);
· bundle of character references (Exhibit 4); and
· extract of text messages – a folder containing extraction report of text messages (Exhibit 7 to depositions; Exhibit 5 on your plea).
4I have been greatly assisted by the matters developed by each counsel in the written documents filed in this matter, in addition to the oral arguments, all of which has assisted me to understand the propositions and principles of law that I must apply in the determination of appropriate sentences in your case.
Circumstances of your offending
5At the time of your offending you were aged between 18 and 20 and you are now 23 years of age.
Charge 1
6Charge 1 relates to your use of Twitter and Snapchat to transmit a series of communications to a complainant, who at the relevant time purported to be a 13‑year-old girl named 'Evelyn'. Your use of the social media included material that was indecent.
7
On 18 July 2020, at a time when you were aged 18, the complainant received a message from an online friend advising her that there was a paedophile in her area, and which suggested she talk to him on Twitter. The complainant subsequently changed her Twitter account name to 'Evelyn', changed her birthday and bio to say that she was 13 years old, when she was in fact 16 at the time, and began following you on Twitter. The following day, you began communicating with
the complainant, who continued operating the account in the false name of 'Evelyn'.
8In early messages, you observed 'Apparently you’re not too active on twitter but you just followed me so hope we can talk.'
9On 20 July 2020, you told her that you could talk on Snap if it was easier. 'Evelyn' provided you with her Snapchat details, and the conversation continued on that platform. She told police that during this conversation, you started turning the conversation in a sexual direction, asking if she had ever had a boyfriend or watched porn.
' The conversation then continued:
You said:Ohh that’s cool. Tell me about this guy from your school wanting to have sex tho
She said:Hes in year 11 and he hangs out with me and my friends
Sent me a picture of his dick asking if I wanted to see him on the weekendYou said:Oh that is hot, what year you in?
She said:Year 7
You said:Nicee, are you going to meet with him?
You said:Mhm, what would make you comfortable to meet up?
She said:Idk maybe if I know the person well
You said:That makes sense
Have you ever sexted with guys before?She said:Wts that
You said:Like dirty talking with guys online and Trading nudes
That type of stuffShe said:Never done that
You said:Oh wow interesting, we don’t have to do it rn. But if I can teach you how to and stuff I think that’d be cool
She said:Oh ok
Isnt nudes illegalYou said:Well yeah lol, but I’ve been sending nudes since I was like 12'
10You went on to say that '12-14 is normal'. 'Evelyn' stated that she would get scared of getting caught, to which you responded:
'What about lewds (which are basically just sexy photos that aren’t nude) ... what I meant was a non nude picture but in a sexual sort of way. If that makes sense.'
11You then asked if she would be okay with those, and said:
'I need to see that cute face.'
12She sent you an image, to which you responded, 'You’re literally so hot and I’m not even just saying that. You’re [for real] cute af.'
13Your communications with the recipient 'Evelyn', being someone that you believed to be under 16 years of age, on 20 July 2020, including material that was indecent, is the offending referable to your Charge 1, of use carriage service to transmit indecent communications to a person believed to be under 16 years of age.
Charges 2 and 3
14Charges 2 and 3 relate to a series of text message communications with a child, a person that you knew to be a 15-year-old girl. Your offending occurs in the context of a text message conversation which commenced on 8 June 2021, when you were aged 18. I note and interpolate that the background that I am about to describe predates your charged acts, and I have included these details by way of context to your offending. At 10.39 am on that day, you texted the complainant (someone other than the complainant referred to in Charge 1) stating:
'Hey its Aleksa, we haven’t talked in a whileee, but checking to see what’s up with you.'
15A text conversation ensued, with her advising you that it was her birthday. At 10.44 am, you texted her:
'Hey just out of curiosity, you still dating that guy? ... xx'
and the complainant confirmed that she was.
16A short conversation again ensued, and at 10.49 am, you texted:
'Ill be 100% honest with you, I was hoping you’d have broken up by now coz I wanted to come steal your cute ass x ... cos I still do be crushing x'
17She replied:
'Wait really :( ... aww I feel bad x',
and you reiterated that you still had a crush on her, and the conversation continued.
18You persisted, and at 10.55 you texted her:
'I haven’t seen you in ages but it’s a fact, you don’t got a choice here, you cute af end of story xx ... I’ll come over there and prove it xx',
which you clarified was just a joke:
'But I mean if you did want me over there I’d be happy to xx',
to which she replied:
'Yeah that’d be good haha xx.'
19The text conversation continued with you indicating that if you did come over, you would not be able to resist making out with her, as long as 'you aren’t opposed to it xx'; with her texting you 'Nah I can’t cheat on him haha x'. Again, you reiterated that you had a huge crush on her, and you could not help but fantasise about everything, to which she replied 'That’s cute', and you introduced the topic of your fantasies. She responded that you could tell her anything, and she was, in as many words, interested in the conversation.
20By 11.18, you sent her a message saying:
'I’d degrade you and make you admit that I own you, make out with your cute ass, after that I’d flip you onto the bed and start face fucking you xx ... your job is to please my cock.'
21The sexual conversation ensued, during which you called her 'my little slut xx'.
22During this very explicit conversation, which continued on 9 June and 11 June and 18 June 2021, you discussed meeting at the movies. You then learned that on the day of her birthday, the start of your text-based conversation, she had in fact turned 15 years of age. You were, by then, on the verge of turning 19.
23Charge 2 commences on 25 June 2021, after you had learned her young age. On 25 June 2021, the complainant asked you if you were in Year 10 or Year 9, to which you replied:
'Oh we never talked about that huh hahaha xx ... Nah actually Year 11 believe it or not lol xx.'
Which was in fact untrue.
24She responded:
'Luckyyy I’m only yr 9 xx',
to which you replied:
'I’m so glad you don’t care that I’m a couple years ahead was scared you’d judge me ... I didn’t know if you didn’t want anything to do with older guys ya know xx.'
25When she asked if you were 16 or 17, you falsely responded that you were 17, when you were in fact 19, and asked how old she was. She falsely told you that she was 14, when she was in fact 15, and said:
'Hope it’s not illegal',
to which you said:
'Well technically having sex before 16 is illegal but ya know',
and you said you would not tell anyone and asked what her age limit was, to which she responded that it was 17.
26Later that day, you and the complainant continued your sexualised conversation. You told her if she wanted to get a hotel, then she could piss all over you, and asked whether she was down to do everything you had planned originally, which you identified. When she responded in the affirmative, you told her that you had a friend’s place that you could stay at for the night in Caulfield, and that you could go to the toilets that she and her boyfriend went to, and that you were 'just tryna get my hands on you cutieeee.' This is part of the offending referable to your Charge 2, of use a carriage service to procure a person under 16 years of age.
27On 26 June 2021, during a sexualised conversation, you told her that you could get a vibrator for her, but that she would have to pay you back and show you when she used it, and said:
'I could do it for you, but you gotta promise I get vids of it for now until you me xx.'
28You explained that the videos could be payment, and told her:
'You realise once I pay there’s no backing out of this … once I pay for one you can’t go back on what you say.'
The sexualised conversation continued, and you told her:
'You’ll be getting this cock as soon as you see me ... but yeah hopefully Wednesday.'
29This is also part of the offending referable to your Charge 2. You told her, using explicit terms, that your sexualised chat was arousing you, and on 22‑28 June 2021, in the context of other sexualised conversation, you told her:
'God I wanna wreck your pussy xx'
and used other explicit terms indicating your interest in and desire for her to fellate you.
30Turning to Charge 3, on 29 June 2021, you asked the complainant if it was time for the photo shoot, and said:
'Whatever you think, the sluttiest stuff you have is put them on … let’s see those tits in the one you’re wearing atm.'
She sent you a photo, and you responded:
'I’ll cover those tits in cum and spit.'
31The sexualised conversation continued, and on 2 July 2021, you asked her if she needed to go to the toilet, and asked if she could film herself peeing, and she provided the requested video. A further sexually explicit conversation ensued, with you describing the things that you would like to do to her sexually.
32On 7 July 2021, you again asked her to film herself urinating, and she complied with your request. Other sexual acts were requested by you, and she complied with your requests by sending a video and a photo. During this conversation, you directed her to grab something to cut with, and said:
'Look at it this way, doing this might change your thoughts about using a razor, instead of self harm, it can be kinky stuff that makes you feel good xx,'
and you requested that she film herself running a razor over her breasts and then over her nipples, and you requested that she make one small cut on her breast for you, 'and show obvs'. She complied with your request, including running a safety blade across her nipple and on her breast, which fortunately did not create any cuts, and duly sent you a video of that behaviour. She then asked you if you both could stop for the night. This is the offending referable to your Charge 3, of use carriage service to cause child abuse material to be transmitted to yourself.
33The conversation ensued on 9 July 2021, and on 13 July 2021, after she told you she needed to focus on school more, you told her that she would not 'need brain cells as a porn star or stripper' and suggested that she sell her feet pics 'and that you would run her account.' You created an account for her on Twitter. On 16 July 2021, you asked her if she was into older guys, and as part of that conversation, you disclosed that you were not actually 17, but that you were 19, and that you did not want to say because you assumed she would leave. She did not appear deterred. On 24 July 2021, you asked for video of her doing stuff with her boyfriend or exes, and whether she had made sex tapes with anyone else.
34Whilst in the course of the conversation, you had each declared love for one another. On 8 August 2021, you told her that you did not love her that way anymore, but you still wanted to meet up, and this sexual conversation continued. You indicated that you would still like to do the hotel, and the complainant told you that she was scared that she might cheat, and you responded that you did want to try making out with her while she had cum in her mouth, and you just wanted to experiment.
35On 15 September 2021, the complainant participated in a video recorded interview with police and told police that she was 14 when she began talking to you, and that you wanted consent to 'make videos and stuff.'
36She said that when you both first started talking, she told you that she was 14, and you told her that you were 17. She said that you asked her to meet up a few times and kept asking her until she blocked you. Here, I interpolate, that whilst she was 14 when you first started corresponding, she was 15 when your offending occurred.
37I now turn to Charge 4 on the indictment, of use carriage service to cause offence by transmitting private sexual material.
38On 19 August 2021, you sent a message on Telegram to an account in the name of 'Jack'. 'Jack' asked you what you liked, to which you responded, 'my favs are young teen girls giving blow jobs', to which 'Jack' replied 'same ha ha'. You said:
'I have a few vids of my ex giving me blow jobs when she was 16 … 10 vids … deleted or moved sadly … used to have over 100 … ah ha ha ha dumb moment … I deleted all the minor movies I had.'
39You proceeded to send 10 videos of an ex-partner of yours performing oral sex on you, to 'Jack'. You went on to say:
'Lmao she couldn’t fit anything inside her … not even her own fingers.'
The woman in the video is now a 20-year-old, who had been in a sexual relationship with you from mid to late 2019. She has told police that 'during your relationship, you would bring out your phone and start recording her doing sexual acts, and this was most likely after she turned 18 in September 2019.' She has also indicated that she never gave permission for you to send any intimate material of her to anyone. This is the offending referable to your Charge 4, that on 19 August 2021, you did use a carriage service to cause offence by transmitting private sexual material.
40On 1 September 2021, police executed a search warrant at your premises in La Coruna Gardens, Point Cook, and police located and seized a number of electronic items from the premises.
41Later, a forensic analysis of your mobile phone revealed a number of images and videos on that device, which have been classified as child abuse material, including child abuse material depicting your victim in respect of your Charges 2 and 3. I have been told that still images, and videos, of her were found on your phone which correlate with the conversations between you including your requests for specific imagery, including a still image and video of her urinating, and multiple videos of her cutting her exposed breasts with a razor.
42The child abuse material located included:
·
105 pictures of Category 1 child abuse material, depicting a real
pre-pubescent child under the age of 13 years;
· nine videos of Category 1 child abuse material depicting a real pre-pubescent child under the age of 13 years;
· 113 pictures of Category 2 child abuse material depicting a child under the age of 18 years involved in other illegal content; and
· 48 videos of Category 2 child abuse material depicting a child under the age of 18 engaged in other illegal conduct.
43
I have been told that amongst the pictures and videos on your device were images showing pre- and post-pubescent children being sexually penetrated,
pre-pubescent children involved with bestiality, 40 images or videos of anime featuring pre- and post-pubescent children being penetrated by adults and
post-pubescent children sexually posing and exposing their genitals. Amongst a sample analysed by Detective Senior Constable Ryan King were a picture of a female child between the ages of 8-10 sucking a penis, a video of a female child between 10-12 where a dog can be seen licking her vagina, an image or video of a female child poking her tongue out with what appears to be ejaculate on her face and tongue, a picture of a female child under four being digitally penetrated in her vagina, and very explicit animated pictures of very young children engaged in sexual behaviour.
44As I have mentioned, police searched your premises on 1 September 2021, and a VARE took place with the victim in relation to Charges 2 and 3 on 15 September 2021. One month shy of a year later, on 4 August 2022, you attended Werribee police station, where you were arrested, and you participated in a record of interview. You answered no comment to each of the questions, as is your right.
Plea of guilty
45You indicated your intention to plead guilty to proceeding charges at a committal mention at the Melbourne Magistrates’ Court on 9 June 2023, which I accept and take into account in significant mitigation of penalty in reflection of this plea and its significant utilitarian benefit. That benefit is indeed enhanced as at the time you indicated your intention to plead guilty, this Court was unfortunately experiencing significant backlogs as a result of the COVID-19 pandemic.
46Further, I also accept and take into account in additional mitigation of penalty, that your plea is reflective of your remorse, as evidenced by your commitment to counselling and psychological treatment that you have willingly undertaken since you were charged, as well as your expressions of regret to others. As mentioned, I significantly mitigate sentence on each of these bases.
Effect on the victims
47Though I do not have the benefit of any victim impact statements in this matter, I take into account and give full effect to the established recognition of a presumption of harm to your victims.
Personal circumstances
48I have been told that you turned 19 shortly after the offending commenced, and you were 20 years of age when it concluded; and are now 23.
49You are the younger of two boys born to your parents. From when you were aged approximately 11, your mother went to work in Canberra, and would return every second weekend; for the remainder of time, you were in the care of your father, and I note that you tended to spend much of your time alone in your bedroom. Tracey Allen, psychologist, with whom you have undertaken more than 17 psychological counselling sessions, tells me she notes 'a scene of
self-isolation' for you from a very young age.50You completed school to the end of Year 12, though I understand that late in primary school, you considered that you did not have any real friendships, and you were the target of bullying. You received an ATAR of 48, which embarrassed you, and you attempted to conceal that from your family. You attribute your modest ATAR to a level of distraction from your studies as a result of a girl that you had a crush on.
51In 2020, at the start of the pandemic, you commenced a Bachelor of Entrepreneurship at RMIT, but following the onset of your criminal proceedings, you have stepped away from that degree. Since that time, you have spent some time working in a warehouse, and earlier this year, you commenced a Bachelor of Sport Business at Holmesglen.
52You have engaged in modest drug experimentation with friends, and you drink approximately twice per week with friends.
53You had no prior criminal history at the time of your offending and were a person previously of good character. I have read carefully the references provided to me by your parents, your brother, your auntie, and your junior football coach. Your mother has provided me with context as to your character outside this offending. She described you as a very happy and exuberant child, a talented footballer throughout your mid to late teens (confirmed by your junior coach), and an otherwise courteous and helpful young man who is willing to help out your auntie, and grandmother in Sale. She has told me that you told her you are highly remorseful for your actions and sympathise with the embarrassment that you have caused the victims, including your ex-girlfriend. She is concerned about your psychological, emotional, and physical wellbeing. Your father also spoke of your remorse, and that you immediately sought counselling at his urging after you were charged. He also described you as a kind-hearted, generous, and loyal person who consistently supports his family. Your brother reminded me of the isolation that we all experienced during the pandemic, but he also told me that within your house, you felt isolated from one another. I have been told that there is, unfortunately, a family history of depression and suicide.
54I take your previous character into account in significant mitigation of penalty. Your family continues to support you, and this is a factor which supports your prospects for rehabilitation.
55I have noted that you were charged following your arrest in August 2022, with criminal proceedings commencing in January 2023. With your family's strong support, you sought a referral from your GP for treatment and assistance for your mental health. Elizabeth Giamarelos, psychologist, reported in June 2023 that you experienced symptoms of depression and anxiety, emerging during the lockdown. Your symptoms then included decreased social functioning, a tendency to become anxious and irritable, panic episodes, and intense distress about your situation, which I take to mean your arrest and the progression of the charges through court proceedings. You also lost sleep, lacked motivation, and lost weight, and you benefited from the therapy and treatment that she was able to provide.
56In July 2023, you sought the assistance of Ms Allen, consultant psychologist, at a point at which you had already indicated your intention to plead guilty to the charges. I have been assisted not only by Ms Allen's report, but also by her oral evidence on your plea in mitigation. Ms Allen has skill and experience in practice in treating problematic sexual behaviour.
57
Within the context of your mental health diagnosis, of what she considered to be depression, by then stabilised with the help of pharmacotherapy and treatment by Ms Giamarelos, Ms Allen has assisted you to understand the context within which your current offending likely occurred. You have participated in approximately
17 sessions with her over the past year.
58I have been told that in the context of a disappointing VCE result, and the COVID‑19 lockdowns, you became significantly depressed, but you had no such insight at that time. In the context of your depressed mood, you actively engaged in online pornography, and neglected basic areas of self-care such as sleep and attempts at a healthy lifestyle. This deterioration occurred against a backdrop of earlier diagnosis of major depressive disorder of moderate intensity, which you report commenced when you were approximately 11 years of age. As part of the restorative process of your counselling relationship, I am pleased to observe that the severity of the symptoms of depression has abated, and you now have social activities within your calendar such as going to the gym, spending time with friends, and computer gaming.
59
Your offending occurred against a backdrop of sexual development, explained in close detail in Ms Allen's report. From the age of 12, you recall accessing online pornography two to three times per day. You recall puberty as being a difficult time in your life. Your choices during this history demonstrate a significant sexual preoccupation, which I note. I can also observe that from your proclivity to offend during this period, and Ms Allen notes that your preoccupation is marked with fetish curiosity. These curiosities intrigue you and lead you to consume what an adult would not necessarily do, or at least what an adult might be able to limit.
Ms Allen undertook relevant psychometric testing, and one of the tests, the Minnesota Multiphasic Personality Inventory – 2, generated scores on your testing which were indicative of some psychopathology and some tendency towards confusion, mild defensiveness, and discomfort with vulnerability. Your profile confirms your experience of depression as being your primary psychopathology. I note that persons with this profile can initially be responsive to treatment, however this profile is highly correlated with termination of treatment once the crisis phase has ended. Interpersonal problems and loneliness are common, and a tendency to ruminate and fantasise is high.
60To assess potential future risk of sexual violence, Ms Allen administered the STATIC-99R, and a risk of sexual violence protocol.
61Your scoring on the STATIC‑99R indicated that you were of above average risk for being charged or convicted of another sexual offence. Individuals in this category often have many treatment needs, which, when met with the appropriate treatment dosage and positive lifestyle changes, will likely result in a reduction in risk level. You have been engaged in treatment over time, and Ms Allen has observed in you an evolution of your capacity to engage, and your fortification of adaptive mechanisms. In spite of the significant difference in age and maturity levels between you and your direct victims, their age might suggest, in Ms Allen's interpretation, that you do not display paedophilic tendencies per se.
62Your performance on the risk for sexual violence protocol led to Ms Allen opining that you require moderate care prioritisation, and she notes factors of concern comprising early onset offending, frequent and persistent offending over more than 12 months; and partial endorsements of the following categories:
· attitudes that support or condone sexual violence, which Ms Allen noted were clearly evidenced by the online conduct, but which abated during treatment;
· problems with self-awareness, in that she considers that you have generally poor emotional insight, however this is improving with treatment;
· problems with stress and coping, in that you utilised offending as a stress management tool, however your coping strategies are improving with treatment;
· sexual deviance, in that you display evidence of deviant sexual fantasies and corresponding arousal patterns during offending, specifically she observes a relationship between the material as fuelling in you a thrill of the novel. She reports that you have, during treatment, developed an improved understanding of consent, and an improved capacity to take responsibility for arousal patterns; and
· problems with intimate relationships, in that you encounter issues regarding establishing and maintaining age-appropriate relationships.
63In summary, you present with a broad range of risk factors, but have actively, energetically and willingly engaged over a reasonably long period of time in psychological counselling and support specific to your offending, and you are responding effectively to that treatment. For instance, you initially demonstrated an incomplete understanding of consent, but she is now satisfied with your understanding of affirmative consent and your awareness of your legal responsibility moving forward. Overall, she considers you to be a moderate risk of sexual reoffending, and, if offending were to recur, it would most likely be further online offending, likely sexualised interaction with post-pubescent female victims, who present with a level of passivity and have some level of sexual experience (real or imagined) whereby sexual conversations are sexually arousing to you. Your treatment is not complete, and you require further input, potentially for a further 12-18 months.
64Having regard to Ms Allen's diagnosis of you, of Major Depressive Disorder, moderate intensity (in partial remission), I am prepared to find that a sentence of imprisonment would weigh more heavily upon you than on a person in full health, and I attach some mitigatory weight to this matter in sentencing you.
Relevant sentencing principles; objective gravity of offending; moral culpability
65I accept, the prosecution submissions as to relevant sentencing principles, and as to the factors which assist me to weigh the objective gravity of your offending. General deterrence is the primary consideration in sentencing accused involving the online sexual exploitation of children, given the upsetting prevalence and ready availability of the opportunity to offend using the internet, the vulnerability of children online, and the need to protect children from sexual abuse.
66Denunciation, punishment, and community protection are also very important.
67In respect of all of your charges there are real victims, which make your offending more serious.[1] In respect of your last charge, that is, of the possession of abuse material, many of the photos and videos that you possessed involved not only the sexual abuse of the children themselves, but also their perpetual re-exploitation by the circulation of depictions of their abuse.
[1] Albeit that in respect of Charge 1 the person with whom you were corresponding artificially lowered her age.
68I do note and accept that Charge 5 also related to possession of some cartoon images that do not involve the depiction of real victims.
69In respect of your Charges 1-3, there was an age disparity between you and your purported victim in Charge 1 and victim of Charges 2-3. You believed the victim of Charge 1 to be 13 from her bio, and you were then 18. You rapidly manipulated your conversation into a sexual topic, in an attempt to normalise sexually inappropriate behaviour with a person whom you believed to be much younger.
70Your offending against the complainant (Charges 2 and 3) occurred repeatedly, over a series of dates. You knew that she was much younger than you, indeed you initially lied about your age.
71Your legal practitioners have provided me with a more fulsome set of messages exchanged between you and her, including those which were exchanged prior to the charge period. I understand the submission made by your senior counsel, that one of the matters that I must take into account in determining objective gravity and moral culpability is the level of corruption that you encouraged and forced upon your victim. She displayed a certain level of maturity for a 15-year-old as is clear from those conversations. However, you exploited that potential level of maturity by fostering, encouraging, and eliciting further details from this post adolescent girl during that long conversation to draw from her words, acts, promises, pictures and videos that left her in an exceptional state of vulnerability, such as by putting those photos and videos into your possession, where they could be forwarded to others. There was a reasonably significant age difference between you both, which was known to you. Your motivation was your own sexual gratification, and you guided her into further and specific acts which might cause her embarrassment and regret.
72
Your Charge 4 involves the callous recirculation of very private images of an
ex-partner, without her permission. She was young at the time of your recordings, and indeed is still young. Her images are now beyond her control and have been dispersed into the virtual realm.
73Seen together, in addition to your fifth charge, your offending may be characterised as a spree involving multiple victims and a reasonably significant period of time.
74Your motivation for offending was your own sexual fulfilment, and you have growing insight into the damage that you have caused.
75I must take into account that you are still a young person, 18-20 at the time of offending, and now 23. The Victorian Court of Appeal has endorsed a number of propositions relevant to the sentencing of youthful offenders. These have been applied many times in many later cases.
76Relevantly, youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred in many cases to immediate imprisonment, as rehabilitation benefits the community as well as the offender.
77In Azzopardi, Baltatzis and Gabriel v The Queen, the Court considered that the general primacy of an offender's youth as a sentencing consideration is underpinned by a number of considerations related to these points.
78First, young offenders being immature are therefore 'more prone to ill-considered or rash decisions.' They 'may lack the degree of insight, judgment and self-control that is possessed by an adult.' They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
79Secondly, courts do 'recognise the potential for young offenders to be redeemed and rehabilitated.' This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law.'
80Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender may more likely impair, rather than improve, the offender's prospects of a successful rehabilitation.
81These principles apply in your case. As I have mentioned, I moderate sentence on the basis of your relative youth, and I intend to impose sentence that emphasises and allows for your rehabilitation, whilst also paying attention to the other purposes of sentencing.
82Delay is relevant in your case. Your offending concluded in September 2021, and the complainant provided her video evidence in that month. Your premises were also searched that month with relevant items seized. You were not interviewed until August 2022. You indicated your willingness to plead guilty in June 2023. It is now August 2024, one month shy of three years since your offending. I find this delay to be relevant, and to mitigate sentence in two respects. The charges have weighed heavily upon you, including the uncertainty whether I am obliged to send you to prison. Further, you have not reoffended in the meantime, and have voluntarily and fulsomely undertaken a rehabilitative program with Ms Allen.
83I have been provided with cases involving similar circumstances to yours by both prosecution, and your counsel, and have read and considered those past cases carefully, as I am obliged to.
84I accept that sentencing legislation, principle and practice, which of course involves special adaptation to the particular circumstances of your case, call for the imposition of periods of imprisonment on each charge. There is no other sentence appropriate in all of the circumstances of your case. Where a term of imprisonment is imposed for a Commonwealth child sex offence, such as your Charges 1, 2, 3 and 5, I may not order that you be released today under a recognisance release order unless there are exceptional circumstances. Your counsel has submitted that those exist in your case, and I agree with the prosecution contention that I can find exceptional circumstances and release you forthwith, that is today, specifically given your relatively young age at the time of offending, and the delay in resolution of the matter.
85I intend to impose sentence that allows for your continuing rehabilitation, as I am somewhat cautious about your prospects, notwithstanding your lack of prior or subsequent matters, your youth, and family support. Your three years without subsequent incident permits me to conclude that you have perhaps good prospects for rehabilitation, which will continue to improve with treatment. I must also impose sentence that specifically deters you from further offending.
Sentence
86On Charge 3, you are convicted, and I impose 10 months' imprisonment, which will commence today.
87On Charge 1, you are convicted, and I impose three months' imprisonment to commence on 8 April 2025.
88On Charge 2, you are convicted and I impose eight months' imprisonment to commence on 8 January 2025.
89On Charge 4, I impose nine months' imprisonment to commence on 8 March 2025.
90And on Charge 5, you are convicted and I impose six months' imprisonment to commence on 8 August 2025.
91The total effective sentence that I will impose is 18 months' imprisonment from today on all charges. On all charges, if you agree, I will release you forthwith, which means today, on your own recognisance or promise to be of good behaviour for a period of two years and six months from today in the sum of $2,000. That sum will not be payable unless you reoffend or breach one of the other conditions. As conditions of that order, I order that you be subject to the supervision of a probation officer appointed in accordance with the order, that you obey all reasonable directions of the probation order, that you not travel interstate without the written permission of the probation officer, and you undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
92So let me explain it to you in simplified terms. On all charges you are convicted and sentenced to 18 months imprisonment and if you are willing to promise to be of good behaviour for a period of two years and six months from today, and if you are also willing to promise to comply with the other terms, that is supervision of probation, obey all reasonable directions of the probation officer, you cannot travel interstate without written permission, and you undertake treatment or rehabilitation programs that the probation officer reasonably directs.
93If you willing to enter into that promise, I can release you today, but if you breach any of those conditions, including by way of breach of one of the specific conditions, or that you are not of good behaviour, not only are you vulnerable to needing to pay the $2,000, but you would have to come back before me for resentencing.
94Are you willing to enter into that recognisance?
95OFFENDER: Yes.
96HER HONOUR: Yes, thank you very much.
97Consequentially upon your convictions on charges 1, 2, 3 and 5, which are four class 2 offences under the Sex Offender Registration Act (Vic), you will be obliged to comply with the obligations of being a sex offender and the registration obligations for the mandatory period which is life.
98You will receive some paperwork which explains those obligations and that will be given to you to sign as part of the bundle of orders that we are just about to give you.
99As far as s6AAA, although I have been urged to name a specific number, because of the relevance of delay in this case and not just the relevance of the plea of guilty, my 6AAA is going to be that had the matter proceeded to trial and the accused been found guilty following jury trial, I would have imposed a longer sentence, as in the circumstances of the case, very difficult to uncouple the delay from the question of the plea of guilty. It is an entirely virtual hypothetical situation where I cannot give a specific number.
100Is there anything else?
101MS McKAY: No, Your Honour.
102HER HONOUR: Yes, thank you very much for your help. We will now adjourn sine die please.
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