Director of Public Prosecutions v Robertson
[2022] VCC 1078
•8 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02664
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW ROBERTSON |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2022; 2 June 2022 | |
DATE OF SENTENCE: | 8 July 2022 | |
CASE MAY BE CITED AS: | DPP v Robertson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1078 | |
REASONS FOR SENTENCE
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Catchwords: Commonwealth Child Abuse Material – Victorian Child Sex Offences - 101 victims – Manipulative and callous offending – High risk of reoffending – Post-traumatic stress disorder – Self-serving report – Limited remorse – Mental health did not inform offending – Academic literature – Connection between childhood sexual abuse and subsequent diagnosis of paedophilia – Odds ratios so low as to be incapable of calculation.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth).
Sentence: Convicted and sentenced to a total effective sentence of 11 years and 3 months imprisonment, with a non-parole period of 7 years and 3 months on the Commonwealth offences.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Botros | Commonwealth Director of Public Prosecutions |
| For the Offender | Ms B. Kelly | Slater & King Lawyers |
HER HONOUR:
1 Andrew Robertson, you have pleaded guilty to 46 separate offences, including several offences containing rolled up detailed of offending relating to numerous separate victims.
The offences
2 The offences, together with the maximum penalties set out in the Crimes Act and the Commonwealth Criminal Code Commonwealth, are as follows:
3 Paragraph (A) - nine charges of sexual penetration of a child under 16 contrary to s 49B of the Crimes Act of Victoria, and this relates to counts 11, 13, 18, 20, 24, 28, 30, 39 and 44. These charges concern nine different victims who sexually penetrated themselves at your direction. The maximum penalty for each offence is 15 years and it carries with it a standard sentence consideration of six years' imprisonment.
4 Paragraph (B) - 20 charges of using a carriage service to cause child abuse material to be transmitted to yourself contrary to sub-s474.22(1) of the Criminal Code, and this relates to Charges 1, 7, 8, 12, 14, 15, 17, 21, 22, 23, 25, 27, 29, 30, 31, 34, 38, 40, 41, 42 and 46 on the Indictment. I note that, in relation to the Commonwealth Indictment, there was a slight change in the section number of the offence but I am counting these as 20 charges under the amended law. That will be referred to in detail in the footnote to my reasons for the decision.[1] These charges concern 20 different victims who created and sent you child abuse material at your direction. Nine of these victims are also victims of the sexual penetration charge referred to above. The maximum penalty for each of these offences is 15 years' imprisonment.
[1]In the Commonwealth Indictment dated 30 May 2022, Mr Robertson was charged with 1 count of using a carriage service to cause child abuse material to be transmitted to himself contrary to sub-section 474.19(1) and 19 counts of using a carriage service to cause child abuse material to be transmitted to himself contrary to sub-section 474.22(1). Sub-section 474.19(1) was the correct sub-section number at the date of offending (between 16 October 2018 and 29 November 2019). Following amendments to the Criminal Code Act 1995 (Vic), the sub-section number was changed to 474.22(1). To avoid ambiguity, this decision reflects that Mr Robertson, in effect, pleaded guilty to 20 counts against sub-section 474.22(1).
5 Paragraph (C) - seven charges of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, and this relates to Charges 2, 6, 10, 16, 32, 35 and 36 on the Indictment. These charges concern seven different victims whom you solicited for child abuse material unsuccessfully. The maximum penalty for each of these offences is 15 years' imprisonment.
6 Paragraph (D) - six charges of using a carriage service to procure a person under 16 years of age for sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code and this relates to charges numbered 5, 9, 26, 33, 37 and 45 on the Indictment. These charges concern six different victims whom you procured for sexual activity. Five of these victims are also victims of the ‘cause to be transmitted’ charges above. The maximum penalty for each of these offences is 15 years' imprisonment.
7 Paragraph (E) - two charges of using a carriage service to groom a person under 16 for sexual activity contrary to s 474.27(1) of the Commonwealth Criminal Code, and this relates to Charges 4 and 19 on the Indictment. One of these charges, count 4, is a rolled-up count involving offending against 88 different victims with whom you communicated with the intention of making it easier to procure sexual activity from them. Two further charges on a schedule are attached.
8 The sentence imposed on this offence will take into account the schedule matters. The other charge, Charge 19, concerns a single victim. The maximum penalty for each of these offences is 12 years' imprisonment.
9 Paragraph (F) - one charge of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Code. This relates to count 3. This charge concerns 21 victims to whom you transmitted child abuse material. Each of these victims are also victims of various other offences. The maximum penalty for this offence is 15 years.
10 Paragraph (G) And finally, one charge of possess or control child abuse material accessed or obtained using a carriage service contrary to 474.22A(1) of the Commonwealth Code and this relates to count 43. This charge relates to data held on a computer data storage device. The materials stored were generally the proceeds of other offences accessed by you via a carriage service. The maximum penalty for this offence is 15 years' imprisonment.
Circumstances of offending
11 I now refer to the circumstances of offending. As a general summary, the offending took place online on the social media application, Instagram. You created false personas to communicate with 101 child victims, 89 of whom have been identified, between approximately October 2018 and February 2021. The most frequent offending occurred between March and July 2021. The most frequent offending occurred between March and July 2020. Most victims were aged between 11 and 14 years, with the oldest being 16, and the youngest, 9.
12 Many of the victims were the subject of multiple offences. For example, the victims of the offences of sexual penetration of a child under 16 were also victims of the offence of use carriage service to groom a person under 16. This was a rolled up offence concerning 88 victims. There were also overlapping victims in the use of carriage service to solicit or transmit child abuse material charges.
13 In general, the aim of your offending was to obtain child abuse material and thereby obtain sexual gratification for yourself. There is a claim by the prosecution that in some of the offending behaviour you demonstrated an intention to personally contact the children involved. This submission will be addressed below.
14 Your behaviour was premeditated, systematic and large scale. The different online personas you used show a degree of calculated and perverse manipulation of vulnerable children.
General sentence considerations
15 I turn now to general sentence considerations. In determining the sentence to be passed in respect to any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence and, of course, I am referring to s 16A of the Crimes Act.
16 It requires the sentencing court to take into account the matters set out in sub-s 16(2) where relevant. The list is not exhaustive. I have observed the relevant considerations above. Similar sentencing considerations are outlined in s 5 of the Victorian Sentencing Act 1991.
Objective seriousness of offending
17 I turn now to the objective seriousness of offending. The following features are relevant in assessing the objective gravity of the offending as a whole and demonstrate the considerations the court will use in assessing the objective seriousness of each individual offence.
18 Firstly, planning - you adopted a systematic approach to the offending. You developed personas to enable you to exploit the victims. You developed scripts to gain their trust. Your primary personas were teenaged girls known as Tash or Tanya
19 Those who were not responsive to your primary personas were targeted by other personas of yours, such as a young teenage boy, an 18 year old boy, an adult male and an adult female counsellor. It is observed that you initially used the personas and scripts to target specific vulnerable victims.
20 For example, you purported to be a bisexual girl, Tash, to enable you to simultaneously build trust, for example, by using the phrase, 'Just between us girls', to express an interest in the victim's body and, in some instances, to induce victims into believing that they were in a romantic relationship with your persona. The degree of planning involved in cultivating the personas and scripts was substantial.
21 There is no doubt that you knew or discovered this profile of Tash, the bisexual teenager, was the most successful as evidenced by the number of times it produced the results desired by you. Other personas targeted lonely, bisexual and confused young people or sought to exploit vulnerable victims who were seeking help from an understanding counsellor.
22 My next consideration is the sophistication and targeted modus operandi. The prosecution opening on plea sets out the detail and manipulative intent of each conversation. The degree of manipulation of the individual victims targeted by you increased over time as you became familiar with their personalities and areas of vulnerability.
23 In order to obtain the child abuse material, you initially contacted the children online pretending to be someone they would feel safe talking to or making friends with. In each conversation, you commenced building up trust with the recipient and then quickly turned the conversation to sexualised subjects.
24 You often sent images or videos of other victims in order to entice the new child communicant to send similar images or videos. On numerous occasions, you convinced the child communicant to pose in suggestive ways or perform sexual acts which you directed. You watched these acts and sought videos and images of them complying with your directions.
25 In this way, you gathered a significant number of images and videos of children performing sexual acts on themselves. You received those images for your own sexual gratification and stored them to use again or to seek further images from new communicants and/or to obtain further sexual gratification later.
26 You convinced some young communicants to comply with your demands for images by promising them large amounts of money, cigarettes, drugs or love, depending on the individual needs of the communicant as you perceived from your private communications with them.
27 For others, you threatened to show other people the images they had previously sent you if they did not send more. They often did. On some occasions, you used different personas on the same communicant if it seemed that the first persona was waning in influence.
28 Your use of the persona of an adult Teen Talk counsellor was particularly perverse and callous; evidence that you had no regard, at all, for the damage you were inflicting on these young victims. The use of promises, threats, bribes and emotional blackmail that a mature person can often inflict on a young person shows a high degree of manipulative planning and sophistication.
29 These matters increase the objective seriousness of these offences, as a whole. The prosecution accept that the offending was not technologically sophisticated but my observation is that it did not need to be. You had significant success with the limited and fairly open use of online technology available to you and to your young victims.
30 Next, the scale and duration of offending. Your offending took place over approximately two years and four months between October 2018 and February 2021. The bulk of it occurred between March and July 2020 and in, total, 101 victims were affected, 89 of whom have been duly identified. The observation that your offending was large scale is incontrovertible.
31 The victims aged in range from nine to 16 years. Yet many were vulnerable in ways other than their age. In general, the younger the child, the more serious the offending. However, even if a child is older, that does not amount to a mitigating circumstance.
32 Some of the older children told you they were struggling with emotional or family issues. All children were vulnerable to your manipulation which you varied and adapted to the responses of each victim. With the maturity and life experience of an adult, you were easily able to do so.
33 Next, the physical acts of the offending. In considering the objective seriousness of the individual offences, there are some similarities in groups of offences in terms of your behaviour towards victims. These variations are grouped in the prosecution opening for convenience. These groups ordered in increasing levels of seriousness are referred to below.
34 Some victims were subjected to multiple acts of offending, and as a result, are reflected in several tiers. Tier 4 describes the offending where your conversation groomed or procured the victim for sexual activity but did not involve the solicitation of child abuse material. This tier describes Charge 4, a single rolled up count of grooming of a child under 16 for sexual activity and encompasses 88 different victims.
35 Tier 3 describes the offending where on each occasion you conduct escalated to soliciting child abuse material but your conduct was unsuccessful. Many of the victims on this level of offending are included in Charge 4 above.
36 The objective seriousness of each charge is assessed by considering the age of the victims and the persistence of your efforts. It is not a mitigating matter that no child abuse images were provided. The offence was complete by you soliciting same.
37 Tier 2 describes the offending where your conduct resulted in the victim creating and transmitting child abuse material to you but did not involve the victims penetrating themselves. These charges of causing child abuse material to be transmitted concern 11 different victims, all of whom are also the subject of Charge 4. The objective seriousness will be assessed considering the age of the children and your persistence. Where you persisted and more than one event of transmitting images was requested, the objective seriousness is greater.
38 And finally, tier 1 describes offending where your conduct resulted in the victim penetrating themselves in response to your instructions. These charges concern nine different victims. In addition, for each victim, you caused child abuse material to be created by them, filming their self-penetration and transmitting it to you. Similarly, where the number and nature of images is greater or more abusive, the objective seriousness is increased.
39 And finally, general considerations in assessing objective seriousness - in relation to the offending in charges of procuring a child under 16 for sexual activity and grooming a child under 16 for sexual activity, where the facts disclose a continuum of offending, the objective seriousness is greater.
40 Where there is a single event referred to in a charge, the objective seriousness is less than where there are multiple victims or multiple events of offending alleged in rolled up charges. However, the inclusion of a single victim or event of behaviour does not necessarily mean that the offending is of low range objective seriousness. This is but one factor to take into account.
41 And finally, victims known to offenders - the prosecution submit that the victims you knew and had physically met were subject to more determined offending. I note you used multiple personas against each of them. Where such a finding can be made, the objective seriousness will be increased.
42 The prosecution submit that the targeting of known children serves to demonstrate your complete lack of regard for the children you damaged. This has been obliquely noted by Ms Lechner and is worthy of consideration in due course by those who design any treatment programs.
43 Attempts at physical contact with victims - the prosecution submit that you attempted to have physical contact with some of the victims. It is observed on several occasions - see, for example, prosecution opening in paragraphs 32, 43, 58, 67 and 136 - you raised the prospect of sexual encounters with older men. It can be inferred that a reference to an older man is a reference to yourself. No other inference is rational.
44 Where an inference can be drawn to the required criminal standard that by such reference, that is, to an older male, that you were working towards personal contact with the children, I will so indicate. Such inferences will inform further aggravation as they reflect an even more perverted level of offending.
45 It is acknowledged that no offences show you were successful in doing so. Had you been successful, further charges would have been laid. Your denial of an intention to meet and physically abuse any of your victims during your conversations with Ms Lechner is noted. There is no dispute that that is what you told her.
46 You did not give evidence that what you told her was the truth, so you were not able to be challenged on this issue. You told police that you were only pretending. Nevertheless, I accept that the inference which the prosecution seek must be the only rational explanation from the entirety of the evidence in order to consider it as an aggravating circumstance.
47 There was no dispute of the information contained in the prosecution opening plea. When interviewed by police, you told them that you believed that the girls you communicated with would feel more comfortable speaking to an 18 year old girl. That is an acknowledgement of the planning and manipulation undertaken by you. Your counsel suggests that an alternative inference can be drawn from the various conversations concerning having sexual activity with an older man. She submits that such conversations served the purpose of having continued control over your victims in an online situation and/or to obtain personal sexual gratification for yourself remotely.
48 While this might be an additional explanation, I find that direct conversations with child victims about sex and encouraging them to meet older men and have sex with them must be seen as a precursor to you meeting them for that purpose. There is ample evidence of your manipulative processes being both sophisticated and patient. You already had continued and complete control over the victims for your own gratification.
49 The only inference available from all of the evidence is that where there was opportunity to do so, especially with victims you had personally met, you would persistently suggest sexual activity with an older male. Where I find that the totality of the conversations was aimed at ultimately having sexual contact with those victims, I will so find and observe that the objective seriousness is increased.
50 Next, sexual penetration - it is noted that the acts of penetration were all acts of self-penetration. The acts of self-penetration occurred through the child's own hand and/or by the manipulation of an object. The fact that it was self-penetration rather than penetration by another suggests that the penetration is less serious than for an offence where the penetration occurs personally by an offender. This may generally be true.
51 However, an assessment of objective seriousness considers a range of circumstances including any enticement (if used), the age of the child and the nature and the degree of penetration, and whether the charge relates to a single event or multiple events. The penetration in the context of this case occurred in your full view at your direction and for the purpose of sending a video of that penetration to you. It is an obvious aggravating circumstance that the more events of penetration included in a single charge, the greater the objective seriousness. Where an object was inserted into the genital area of a victim, the objective seriousness is also increased. Victim impact - the court has read and received victim impact statements provided by some of the victims to these offences.
52 Where no such statement is provided, the offending is no less serious. The statements provided remind the court of the usual and ongoing consequences of offending of this nature.
53 The victims speak of their diminishing self-esteem and lack of trust in other members of the community in general, together, with the resulting and ongoing emotional issues which result from such offending. For most of the victims, it is not suggested that these are aggravating circumstances for the offending behaviour. Rather, they serve to remind the court of the usual consequences of offences such as this. Two of the victims had confided in you that they had previously been sexually abused by others.
54 You continued to engage these victims, speaking about sexual experiences and encouraging responses. This engagement was particularly callous. The victim who was offended against after you were first detected and released on bail feels particularly aggrieved, rightly so.
Grouping charges
55 I will assess the objective seriousness of each offence individually. In doing so, I acknowledge that for some of the victims who were subject to many offences, the offending overlapped or was, in effect, part of a single course of conduct. Where this is the case, the sentence imposed will reflect this in accumulating individual sentences to a lesser degree than where the offending occurs separate to another offence or where the offending relates to different victims.
56 This will be referred to again below in discussing the concepts of accumulation and totality. I propose to deal with the State offences first as they are part of the standard sentence scheme. They require separate consideration of separate non-parole periods and cannot form part of the series of sentences which will be imposed from the Commonwealth offences.
57 The final non-parole period to total-term ratio will reflect the total term to be served on both sets of offences, calculated to take into account the entirety of the sentences, both State and Commonwealth, and again, I will refer to this later with particular dates. I now turn to an assessment of the objective seriousness of the individual offending within each offence charged.
58 Firstly, group 1, the State offences. Charge No.11 - sexual penetration of a child under 16 years – the names of all the victims are anonymised. I will start off with the anonymisation of AA,[2] age of child, 15 years; nine events of penetration utilising fingers and implements; offending occurred over a period of approximately three weeks. This offending is above mid-range objective seriousness.
[2] A pseudonym.
59 Charge No.13, sexual penetration of a child under 16 years. Victim AH;[3] age of child, 12 years; one event of penetration utilising finger. This offending is of mid-range objective seriousness.
[3] A pseudonym.
60 Charge No.18, sexual penetration of a child under 16 years; victim AC;[4] age of child, 11 years; number of penetrations, 24, into the vagina and anus using implements and fingers, over a period of two months. This offending is well above mid-range objective seriousness.
[4] A pseudonym.
61 Charge No.20, sexual penetration of a child under 16 years; victim, AF;[5] age of child, 12; number of penetrations, four, over a period of two days, using fingers and implements. The offending is above mid-range objective seriousness.
[5] A pseudonym.
62 Charge No.24, sexual penetration of a child under 16 years; victim, AG;[6] age of child, 13; number of penetrations, one, utilising fingers into vagina. This offending is of mid-range objective seriousness.
[6] A pseudonym.
63 Charge No.28, sexual penetration of a child under 16 years; victim AB;[7] age of child, 12; number of penetrations, one, using fingers into the vagina. This offending is of mid-range objective seriousness.
[7] A pseudonym.
64 Next, Charge No.30, sexual penetration of a child under 16 years; victim, AE;[8] age of child, 12; number of penetrations, three, using fingers and implements. Victim known to the offender via brief relationship with the victim's mother. This offending is above mid-range objective seriousness.
[8] A pseudonym.
65 Charge No.34, sexual penetration of a child under 16 years; victim, AD;[9] age of child, 12; number of penetrations, four, over a period of two days, utilising fingers and implements. This offending is above mid-range objective seriousness.
[9] A pseudonym.
66 Charge No.44, sexual penetration of a child under 16 years; victim, AI;[10] age of child, 15; number of penetrations, one, with fingers. The offending occurred after police had initially spoken to you, Mr Robertson. You created a new Instagram account for the purpose of this offending. This offending is of mid-range objective seriousness.
[10] A pseudonym.
67 I now turn to an assessment of the objective seriousness of the individual offending within each Commonwealth offence. The following offences are grouped by victim or seriousness of the offending considering the transmission of child abuse material by each victim involved in a penetrative act or acts.
68 Tier 1 offending - Charges No.9 and No.12 - use carriage service to procure sexual activity from a child under the age of 16 years and cause child abuse material to be transmitted to self; victim, AA;[11] age of child, 14 years. Charge 12 was related to Charge 11 to which I have just referred - that is, sexual penetration of a child under 16.
[11] A pseudonym.
69 In this matter, you used the persona Tash and proclaimed love for the victim in order to convince her to send intimate photographs of herself. She was offered her significant amounts of money to transmit the photographs and videos. It is noted that this victim is also included in Charge 3. The offending continued over a two month period in total. This offending is above mid-range objective seriousness.
70 Next, Charge numbers 27 and 26, use of carriage service to cause child abuse material to be transmitted to yourself and using carriage service to procure a child under 16 for sexual activity; victim, AB;[12] age of child, 12 years. You used the identify of Tash, claiming to be a 14-year-old girl and later, a different male profile, Hayden, in order to procure AB for sexual activity. In addition, you talked to her about having sexual activity with an older man.
[12] A pseudonym.
71 On the information provided, the only available inference is that this was the commencement of a grooming process aimed at making it easier to meet the child. The conversations ultimately ended as the child did not co-operate swiftly enough. This victim is also included in the rolled up Charge No.3. The offences occurred over a three day period.
72 Charge numbers 17 and 19, use carriage service to child abuse material to be transmitted to self and using a carriage service to groom a person under 16 for sexual activity; victim, AC;[13] age of child, 12 years. The offences occurred over more than a two month period between 27 March and 7 June 2020. The offending relates to the victim AC who was 11 years at the time but told you she was 12. This victim is also the victim of Charge 18 referred to above.
[13] A pseudonym.
73 You used the identify of Tash as a 14 year old girl and used photographs of another victim. To maintain the persona and to encourage the transmission of child abuse material, you transmitted 26 child abuse images and videos which you had previously obtained from other victims. The number of images transmitted was significant.
74 Charge 19 relates to an attempt to groom the child with the intent of making it easier to have personal sexual activity with her by introducing the concept of phone sex and the concept of having sex with older men. This victim is also included in the rolled up Charge No.3. This offending is well above mid-range objective seriousness.
75 Next, charge numbers 38 and 37, use carriage service to cause child abuse material to be transmitted to yourself and use carriage service to procure a person under 16 years of age. The child, AD,[14] is also the victim of Count 39 referred to above and was 12 at the time of the offending.
[14] A pseudonym.
76 These offences occurred over a two day period in June 2020. During the course of contacts with the child, you had used the assumed identify Tash as a 14 year old girl in order to obtain videos and used images from other victims in order to entice her to respond in kind.
77 Charge 37 relates to you offering to introduce the victim to older men on Facebook and proposing phone sex and sex with older men to her. An inference can be drawn that this activity was aimed at a personal meeting with her later. This victim is also included in rolled up Charge No.3. This offending is well above mid-range objective seriousness.
78 Charge No.29, use carriage service cause child abuse material to be transmitted to yourself. The offence of causing child abuse material to be transmitted was committed over a two day period in May 2020. The victim, AE,[15] was aged 12 years and personally known to you. She is also the victim of Charge 30 referred to above.
[15] A pseudonym.
79 You were persistent in pursuing AE. First, in using a persona of a 17-year-old male, but then, by posing as an adult female counsellor. Thereafter, you used the persona Tash to transmit child abuse material to her. In total, you caused the victim to send 15 child abuse files using both personas. This victim is also included in rolled up Charge 3. This offending is well above mid-range objective seriousness.
80 Next, Charge 21, use carriage service to cause child abuse material to be transmitted to yourself. This offending occurred over a two day period. The victim, AF,[16] was aged 12 years as you were told, and she is also the subject of Charge No.20.
[16] A pseudonym.
81 You used the persona Tash and transmitted six child abuse images to the victim to induce her to transmit eight child abuse files. That is, three images and five videos, to you. This victim is also included in the rolled up Charge No.3. This offending is above mid-range objective seriousness.
82 Next, Charge No.25, use carriage service to cause child abuse images to be transmitted to yourself. This offence occurred on one day. The victim, AG,[17] was aged 13 at the time. You used the persona Tash and transmitted images of other victims to induce the child to transmit four child abuse files to you. This victim is also the subject of Charge No.24. This victim is also included in the rolled up Charge No.3. This offending is of mid-range objective seriousness.
[17] A pseudonym.
83 Next, Charge No.14, use carriage service to cause child abuse material to be transmitted to yourself. This offence occurred on one day in March 2020. The victim, AH,[18] was aged 12 years at the time. To encourage the child to transmit images of herself to you, you used the persona, Tash, to transmit a number of child abuse images of other victims to her. She then transmitted six child abuse files to you. She is also the subject of Charge No.13 above and is also included as a victim in the rolled up Charge No.3. This offending is above mid-range objective seriousness.
[18] A pseudonym.
84 Next, charge numbers 45 and 46, use carriage service to procure a person under 16 years of age and use carriage service to cause child abuse material to be transmitted to yourself. These offences of causing child abuse material to be transmitted to you and transmitting child abuse material to another occurred over a two day period. The victim, AI,[19] was aged 15 years. These offences were committed shortly after you were interviewed by police and they removed devices which you had used to commit other offences.
[19] A pseudonym.
85 You created a new Instagram account and a persona of an 18-year-old male to continue offending. This indicates your complete lack of response and sense of guilt to detection and is further evidence of your continued and discrete planning. The conversation involved you encouraging sexual activity with an adult, indicating an increase in the seriousness of your intent.
86 The activity was discovered at this stage and you were arrested, precluding any finding of aggravation relating to an inference that you were seeking personal contact. This victim is also the subject of count No.44 and rolled up Count 3. This offending is well above mid-range objective seriousness.
87
Next, the tier 2 offending - the transmission of child abuse material of a
non-penetrative nature. Some of the victims were also included in rolled up Charge No.3. Charge No.1 - victim AJ[20] was aged 13 years at the time of the offending. The number of images is unknown but the offending occurred over longer than a period of one month in October-November 2018.
[20] A pseudonym.
88 You utilised a Facebook account and encouraged the recipient to telephone you directly which she did. This offending is of mid-range objective seriousness.
89 Charge No.22 - the victim, AK,[21] was aged nine years at the date of the offending. Her very young age was obvious. This offending occurred over a two-day period between 2 and 3 April 2020 and 17 images were transmitted. This offending is of mid-range objective seriousness.
[21] A pseudonym.
90 Charges numbers 33 and 34 - the victim, AL,[22] was aged 13 at the time of the offending. This offending occurred over a two or three day period in May-June 2020 with the number of images transmitted unknown. Your intent was to persuade the child to send child abuse images and engage in phone sex which amounts to procuring. You were unsuccessful but she disclosed her Instagram password to you. This offending is of below mid-range objective seriousness.
[22] A pseudonym.
91 Next, Charge No.7 - the victim, AM,[23] aged 13 at the time of the offending which occurred on one day in March 2020. Four images were transmitted. This image is below mid-range objective seriousness.
[23] A pseudonym.
92 Next, Charge No.8 - victim AN,[24] aged 14. The offending occurred over two days in March 2020 and three images were transmitted. This offending is of below mid-range objective seriousness. Next, Charge No.15 - victim AO[25] was aged 13 at the time of the offending which occurred on one day in March 2020. One child abuse image was transmitted to you. This is an offence of below mid-range objective seriousness.
[24] A pseudonym.
[25] A pseudonym.
93 Next, Charge No.23 - victim AP[26] was aged 12 years of age at the time of the offending which occurred on one day and one image was transmitted. This offending is of below mid-range objective seriousness.
[26] A pseudonym.
94 Next, Charge No.31 - victim AQ[27] who was aged 16 years at the time of the offending. Five images were transmitted via her to you. This offending is of below mid-range objective seriousness.
[27] A pseudonym.
95 Next, Charge No.40 - victim AR,[28] one of two male victims, who was aged 15 when the offending occurred. Over one day 14 child abuse images and videos, some of himself and some of others, were transmitted to you. This offending is below mid-range objective seriousness.
[28] A pseudonym.
96 Next, Charge No.41 - victim AS[29] who was aged 13 at the time of the offending. One image was transmitted over one day. This offending is of below mid-range objective seriousness.
[29] A pseudonym.
97 Next, Charge No.42 - victim unknown, age unknown - offending over 14 days in June 2020. Two images were transmitted. This offending is of below mid-range objective seriousness.
98 Next, the tier three offending, soliciting child abuse material. Each of these offences stands alone and no child abuse material was transmitted. Each of the identified victims are also included in Charge No.4, the grooming charge.
99 Firstly - and these are all use carriage service to solicit child abuse material - Charge No.2 - the victim is unidentified and the age of the victim is unknown. This offending is below mid-range objective seriousness.
100 Charge No.6, victim AU,[30] who was aged 11. The offending occurred over two days. It was persistent but when the victim did not comply, the communication ceased. This offending is of below mid-range objective seriousness.
[30] A pseudonym.
101 Next, Charge No.10 - victim AU[31] who was aged 11. The offending occurred over two days. It was persistent but when the victim did not comply, the communication ceased. This offending is of below mid-range objective seriousness.
[31] A pseudonym.
102 Next, Charge No.16 - victim AW[32] who was aged 14. The offending occurred over one day. This victim is included in rolled up Charge No.3 as child abuse material was transmitted during the course of the communication. This offending is of below mid-range objective seriousness.
[32] A pseudonym.
103 Charge No.32 - victim unknown. Offending persisted over 24 days. This offending is of below mid-range objective seriousness.
104 Next, Charge No.35 - victim AW[33] who was aged 11 years. The offending persisted over three days. This victim is included in rolled up Charge No.3 as child abuse material was transmitted during the course of the communication. This offending is of below mid-range objective seriousness.
[33] A pseudonym.
105 Charge No.36 - victim AX[34] who was aged 14. The offending persisted over one day. This offending is of below mid-range objective seriousness.
[34] A pseudonym.
106 Next, tier 2 offending, grooming - Charge No.4 and the s 16BA schedule use carriage service to groom a person under 16 years for sexual activity. This offending occurred over a three month period as a whole. The number of victims in total in the rolled up charge is 88. The age of the victims able to be identified was between 12 and 15 years. A number of the victims remain unidentified.
107 The offending was repetitive and the communication was intended to make it easier to procure sexual activity from them. There is some overlap between the victims of this charge and some other offences, sometimes where the offending escalated to more serious offending. The very large number of victims included in the rolled up charge and the schedule makes the objective seriousness greater. The offending is of above mid-range objective seriousness.
108 Next, Charge No.5 - use carriage service to procure a person under 16 years for sexual activity. This offending occurred over a three month period in 2020. In June 2017, you wet AY's[35] mother on an online dating site. An intimate relationship did not develop but you commenced to work for her as a cleaner at her home.
[35] A pseudonym.
109 You met her two children, one of whom was AY, a girl then aged 13. You contacted AY via a teenage female persona and, as with other offending, quickly steered the conversation to sexual matters, including I find encouraging the child to engage in secret sexualised activity with you in person.
110 After AY stopped replying to you, you utilised two other personas, a teenage boy and an adult counsellor. Again, the conversation centred on both personas trying to normalise a sexual relationship with an older male, specifically mentioning a cleaner.
111 This offending was persistent and I find, with the reasoning above, that it was aimed at you engaging in sexual activity personally with the child. This offending is of above mid-range objective seriousness.
112 Charge No.3 - use carriage service transmitting child abuse material is a rolled up charge. The offending occurred between 6 March and 20 June 2020 and involved 21 victims referred to in all of the above charges. In total, 154 child abuse files were transmitted. These images were those that the victims of other offences had sent to you at your request. This offending is of above mid-range objective seriousness.
113 Next, Charge No.43 - possession of child abuse material. After search warrants were exercised, a large number of files and images you had retained from various victims were seized. In total, there were 105 images and 79 videos of 19 victims who were able to be identified in some way. This offending is of mid-range objective seriousness.
Mitigating circumstances
114 I now turn to mitigating circumstances and your personal circumstances - firstly, prior good character. It is noted that you were between 45 and 47 years of age during the offending and that you are now 49 years of age. You do not have a significant nor relevant prior criminal history.
115 In the context of this case, your prior good character was of little assistance in engaging with your victims, except in the case of AY, Charge No.5, which I have referred to above. Your prior lack of offending is of lesser significance in offences such as these. In the case of Mouscas v R [2008] NSWCCA 181, the court noted that the offence of possessing child pornography is frequently committed by persons of prior good character.
116 Since general deterrence is necessarily important, it is legitimate for a court to give less weight to good character as a mitigating factor.
Plea
117 Next, your early plea - you are entitled to a substantial discount on the sentence to be imposed considering the significant utilitarian value an early plea has while police and court resources are impacted due to pandemic restrictions.
118 The prosecution concede that you elected to plead guilty at the first available opportunity and note that you made some admissions during your first interview with police. The prosecution further concede that any delay in entering the plea was occasioned by them needing to assess the volume and evidence relating to the offending and to ensure that the charges were properly identified and collated.
Remorse
119 Sometimes an early plea can be taken into account as evidence of remorse and therefore go towards a consideration of the prospects of rehabilitation. However, for reasons I will set out later, this is not my finding in your case.
120 It is submitted on your behalf that your plea of guilty is further evidence of remorse and contrition. Remorse and contrition are important preliminary considerations to the prospect of any offender's rehabilitation. Your counsel submits that you have expressed regret in your conversation with your psychologist, Ms Carla Lechner. However, reference by your counsel to this expression of regret is based around what you say is your need for therapeutic assistance, thus, a self-focused consideration, rather than remorse which can be used to assess prospects of rehabilitation.
121 The expression of remorse that you make does not acknowledge any harm caused to the victims or to the community in general. You are, perhaps, seeking attention for the misdeeds against you. I note that you feel sorry for yourself and blame yourself for your father's death and your inability to attend his funeral. That is a long way from remorse as being a precursor to rehabilitation.
122 The consequences of such offending are well known and referred to by me above. Through your statements to Ms Lechner, and your instructions to your counsel, you show little insight into the consequences of your offending. You show no regard to the victims and no insight into the probable consequences for the children you procured for penetrative sexual activity.
Psychologist report, mental health presentation and implications for remorse
123 I have read the psychologist report prepared by Ms Lechner. I observe that the report was prepared after two separate assessment dates. Ms Lechner opines that it is possible that sexual assault offender treatment and/or other therapy may assist over time, and I accept that. She had access to the facts as included in the prosecution opening and reports from your previous psychiatric consultations between July 2020 and February 2021. The report is based on your self-report to the psychologist as to your motivation for the commission of the offences and any insights into the consequences of your offending.
124 A major feature of your self-report is your claim of having been sexually abused over a period of time when you were a child and the consequences for you of that event. You told the psychologist that your actions were triggered because you were upset that when you told your family some five years ago of the abuse against you, certain members of your extended family did not take you seriously. You told her that you committed the offences because in general terms, you saw it as a way of accessing the help you desired in order to process the consequences of the sexual offending committed against you.
125 The psychologist did not seek to indirectly investigate when your family had been told. However, I note that a recent reference tendered on your behalf indicates that at least of your close friends were aware of the abuse and they are reportedly very supportive. You report that you have attempted self-harm and suicide in the past. On your self-report, you display symptoms including a pattern of unstable and intense personal relationships, impulsivity and associated difficulties with managing your emotions. Ms Lechner suggested that your symptoms are consistent with a borderline personality disorder.
126 Having undertaken psychometric testing and further investigation, post-traumatic stress disorder and a major depressive disorder were also raised as potential diagnoses. In general, Ms Lechner is of the opinion that in the absence of treatment, you are likely to present a high risk of re-offending.
127 She expresses the view that you exhibit deviant sexual interests which, she suggests, seemingly emanate from your personal experience as a child. Her only reasoning for this is the observation of apparent causation. Specifically, that your victims were in pre-teen and early post-pubescent phases of development and that such phases mirror the age when you were a victim.
128 This is not strictly true as you complained of being a victim when you were between 10 and 13 years of age, whereas your own victims had a wider variation. There are, however, wider difficulties with her suggestion of a connection between your being a victim of sexual abuse and the abuse you perpetrated on others. It was challenged by the Crown.
129 The psychologist's observation that your sexually deviant interests fulfil the criteria of a diagnosis of paedophilic disorder is unsurprising. Ms Lechner goes on to observe that the complex relationship between being the victim of abuse and perpetrating abuse needs in her words, and I quote, 'further exploration'.
130 She quotes the research of Cateja and others in a 2010 paper entitled, 'Child abuse and neglect', to support the proposition that exposure to sexual abuse increases the risk for subsequent psychiatric disorders in both childhood and adulthood, including psychosis and other disorders such as personality disorders.
131 Your counsel submitted that as a result of this opinion, there is a connection between your offending and your history of abuse. Counsel helpfully provided the Cateja report which I have read. Unsurprisingly, the study does conclude a significant relationship between a history of being sexually abused in childhood and a range of mental health and behavioural problems later in life.
132 However, the suggestion that there is a connection between childhood sexual abuse and a later diagnosis of paedophilia is not supported by either the research nor the conclusions of that report. In fact, the final conclusions were that while three male child sexual assault victims had recorded a diagnosis of paedophilia, the odds ratios were so low that they could not be calculated. To expand on this observation, it is noted that the percentage of adult paedophilia cases in the group understudy were 0.1 per cent compared with 23.3 per cent who had mental health contact as adults.
133 Therefore, there is no evidence to support the claim that childhood sexual assault results in the victims becoming offenders later in life, as submitted. There is no such evidence that such is the case for you other than your questionable self-report. I accept that in some cases, there may be a causal connection between being a victim of sexual assault and repeating that act on another but, in my experience, it is far from common. The report tendered supports the lack of connection between these outcomes but does support the risk of increased mental ill health. It is not the case that mental health disorders invariably result in paedophilia.
134 Your self-report claims that you committed the offences so you could get caught and therefore attract mental health assistance. This claim is doubted by the psychologist and not accepted by me. It must be remembered that during the two and a half years you were offending, you displayed a great ability to manipulate your victims by pretending to be someone else including a counsellor. While I accept that the psychologist who interviewed you was aware of this and probably aware of your propensity for manipulative conversation, great care must be taken in accepting your self-report at face value.
135 The psychologist did not draw a direct connection between your prior sexual abuse and your later offending. She acknowledged your self-report or self-reported psychological distress but doubted the validity of your claim that you had committed the offences in order to get help yourself. Ms Lechner also concluded that your claim of a connection between the abuse perpetrated against you when you were a child and your abuse of others was, 'a fairly simplistic explanation of a complex clinical picture'. She observed that your capacity for sexual arousal was 'linked with a desire to control others in the same way you were controlled, albeit, at an arm's length over the internet'.
136 This is a long way from suggesting that your PTSD was causally related to your offending over two and a half years involving at least 100 victims. There is no doubt your offending was related to your self-focused sexual gratification. I acknowledge the required standard of proof for finding matters in mitigation is on the balance of probabilities.
137 I accept, to that standard, that you likely suffer from depression, borderline personality disorder and paedophilia. There is, however, no evidence upon which to make a finding or draw any inference that your moral culpability is thereby reduced by the sexual abuse perpetrated on you many years ago. I accept that the prior sexual abuse may have influenced your mental health but your poor mental health did not drive your sexual offending.
138 With respect to your report to Ms Lechner that you committed the offence in order to get caught, I observe that when you were interviewed by police on the first occasion, you minimised your involvement in the offences and were not fulsome in your admissions.
139 I note that shortly after you were first apprehended by police, you did refer yourself via your GP to a psychiatrist and discussed a number of issues with that psychiatrist including the past sexual abuse upon you.
140 It is observed that when you wished to do so, there was no difficulty in referring you directly for psychiatric support. The suggestion that you committed the offences over a period of two and a half years in order to access psychiatric assistance cannot be accepted.
141 You did not give evidence in the sentence proceedings to confirm your version on issues of motivation and remorse. The court is entitled to be sceptical of your self-serving statements, especially where evidence exists to throw doubt on them. On balance, I do not accept that you have developed insight into the result of your offending. Therefore, any remorse you express appears to be self-directed pity rather than genuine remorse for any damage you have inflicted.
142 As such, it is not possible to find that any remorse shows the beginnings of any rehabilitative process. It is accepted, however, that your probable major depressive disorder, post-traumatic stress disorder and reported difficulties in close personal situations will make your time in custody more onerous than for offenders who do not suffer from these particular difficulties.
143 I also acknowledge that, at the moment, many custodial sentence centres are still undergoing periodic lockdowns and quarantine situations which will make a custodial sentence more restrictive than at other times. It is acknowledged that this may affect your contact visits and access to treatment programs, at least from time to time. The above considerations must ameliorate the sentence and the non-parole period to the total term ratio considerations. When considering prospects of rehabilitation, you do appear to have some support within the community.
144 It is reported that you have a good relationship with your daughter and that whilst you have been in custody, she has given birth to a child. You express concern that you were not able to meet the child. My observation is that in any event, you will be required to register on the child sexual assault register and that may well restrict your contact with that child even after you are released.
145 I note that Ms Gordon, who appears to know you well, still offers support. She says in her letter that she has attempted to find rehabilitation centres with you where you would be able to stay and address your post-traumatic stress disorder.
146 There is no explanation as to why either you or Ms Gordon did not simply do what you have since done and that is ask your general practitioner for a referral for psychiatric assistance. Nevertheless, I accept that Ms Gordon provides you with support in the community and I accept your counsel's submission that your mother and your sister also continue to provide support within the community.
147 As discussed above, notwithstanding your counsel's submissions, Ms Lechner does not say that there is a link between your role as a victim and your role as a perpetrator. Ms Lechner simply observes that it needs further assessment with intervention at, in her words, multiple layers.
148 She observes that in the absence of treatment you are likely to present a high risk of re-offending. The next step would be to assess whether your paedophilic disorder is able to be ameliorated in any way, either by limiting your ability to act on your sexual urges concerning young children or diverting your sexual urges or eliminating them in other ways.
149 This can commence while you are in custody as Ms Lechner's report will be made available to the authorities. Ms Lechner observes that your ability to engage in reflective and consequential thinking is undermined by your egocentric perspective and your depressed and negative thinking style.
150 She observes that you are currently reporting severe psychological distress and extreme depression. This will be taken into account in setting the sentence and the non-parole period. It is likely to be the case that until these issues are addressed in some therapeutic way, any therapy to address your sexual offending against children may be ineffective.
151 What all this means is that any therapy that might be available for you is likely to be of a very long term nature and will address your psychological difficulties on a layered basis. In fairness to Ms Lechner, she does not suggest that a paedophilic disorder such as yours. which was acted upon for such a long period of time. can simply be resolved by some counselling sessions.
152 She observes, however, that from a purely psychological perspective, you would benefit from involvement with treatment services. She outlines and suggests that corrective services therapeutic teams will determine what therapy you receive in custody and will thereafter be able to come up with recommendations for post-release follow up.
153 A consideration of the parole to total term ratio will take into account the need for therapeutic assistance to commence while you are in custody and for significant assistance to continue on your release. In any event, the length of the sentence to be imposed will allow for a significant period of parole supervision in the community should you take advantage of that.
154 Due to the serious nature of these charges, nothing but a full-time custodial sentence is appropriate. As of today, I am told you have spent a total of 465 days in custody and the sentence to be imposed will reflect this. Other sentence considerations – s 17A of the Commonwealth Crimes Act and s5(4) of the Victorian Sentencing Act each require a term of imprisonment to be imposed only where there is no other appropriate non-custodial option.
155 It is acknowledged that the maximum penalty and standard sentence considerations are to be used as a sentence guide after taking into account the objective seriousness of each offence and any mitigating matters relevant to the sentencing considerations. These considerations are referred to above.
156 Part 2A of the Victorian Sentencing Act applies to the nine charges against s 49D of the Crimes Act. This requires the court to take that standard sentence into account together with the maximum penalty when considering both the sentence to be imposed and the ratio of the non-parole period to the total term for those offences.
157 I take this to mean that any non-parole period must be at least 60 per cent of the head sentence to be imposed. Further, s 6D of the Act requires the court to regard the protection of the community as the principal purpose of sentencing when determining the length of a term of imprisonment imposed for these offences. However, the prosecution submits that a disproportionate sentence is not required to give full effect to community protection.
158 It is accepted that general deterrence is the primary sentencing consideration for this offending involving child exploitation material. There are many reasons for this including the frequently secretive nature of the offending and the consequences for the victims and the community. It is accepted, for reasons set out above, that limited weight is given to your prior good character.
159 It is also accepted that to some extent, as currently applicable to all inmates, you have experienced additional hardship whilst in custody up until now because of the impact of the pandemic, resulting in lockdowns and other restrictions. You have experienced the personal anguish of not being able to see nor care for your father following a stroke and not being able to attend his funeral.
160 It is accepted that pandemic-related restrictions will continue to amount to more onerous conditions in custody and therefore weigh more heavily on inmates, especially those such as you who have mental health issues. I accept that it is probable that in custody treatment programs may be temporarily unavailable.
Totality
161 Given the existence of multiple victims, it is accepted by both counsel that it is appropriate for there to be some degree of accumulation on the terms of imprisonment to reflect the separate criminality and impact upon each individual victim.
162 That being said, due to the number of charges, some degree of concurrency will be required to give appropriate effect to the principle of totality. In attempting to reflect the need to impose a sentence that reflects the objective seriousness of each individual offence, separate sentences must be indicated.
163 Where a single victim is involved in more than one charge such as, for example, a victim of a State penetration charge and the victim is also a victim of the offence of transmission or solicitation, the period of accumulation will reflect this. That is, the objective seriousness of the penetration offence will reflect that the penetration and filming occurred at your direction, simultaneously.
164 Therefore, accumulation of these matters will be less to avoid double counting. This is also the case where there are multiple victims in a rolled up charge. Some of those victims are also victims of individual offences which are, in some ways, related to the offending in the rolled up charge. Again, accumulation must be limited to avoid double counting.
165 In other areas, there is a need to provide some accumulation in order to allow some degree of recognition that offences were committed against individual victims and their own circumstances must be acknowledged. I acknowledge then, that the overall sentence must reflect the total criminality involved which, as I have described, is of a remarkably high order.
Final sentencing considerations
166 I propose to sentence the State offences as a group and deal with the s 6AAA requirement on those matters and state a non-parole period as the Sentencing Act of Victoria requires. It is noted that there will be a period of accumulation between the State and Commonwealth offences for the reasons stated above. I will then impose sentences for the Commonwealth offences and, as required by the Commonwealth act, set those sentences with discrete commencement dates and set a single non-parole period. The non-parole period I will set is calculated considering the period of sentences as a whole; that is, the State and Commonwealth offences together.
167 In that way, the non-parole to parole period ratio for the Commonwealth term will be less than usual but a 65% ratio for all charges will be calculated. Finally, I acknowledge that for the Commonwealth charges, s 6AAA of the Victorian Sentencing Act does not apply. It is an accepted practice for courts to indicate a discount for an early plea either by a statement of the amount a sentence has been reduced or by indicating a percentage reduction. I have allowed a significant 25% reduction on the Commonwealth sentences to reflect the utilitarian assistance of this early plea and to reflect the difficult circumstances which the administration of justice finds itself in at this time.
Sentence
168 I am now going to read out the sentences on each charge individually and again, for the benefit of counsel, I am grouping them together in eight distinct groups.
169 Firstly, group 1, the State charges - these are the sexual penetration of a child under 16 years and are as follows:
170 Charge No.1, victim AA, sentence, five years;
171 Charge No.13, victim AH, sentence, four and a half years;
172 Charge No.18, victim AC, sentence, six years - this is the base sentence;
173 Charge No.20, victim AF, sentence, five years;
174 Charge No.24, victim AG, sentence, four and a half years;
175 Charge No. 28, victim AB, sentence, four and a half years;
176 Charge No.30, victim AE, sentence, five years;
177 Charge No.39, victim AD, sentence, five years; and
178 Charge No.44, victim AI, sentence, four and a half years.
179 Each sentence is to be accumulated two months on the base sentence to recognise the individual victims. The total sentence, taking into account the accumulation, is seven years and four months and I will set a non-parole period of three years and nine months.
180 You will be entitled, on my calculation, to a pre-sentence detention of 465 days to recognise that you have been held in custody from 30 March 2021. The non-parole period on the State sentences will expire on 29 December 2024.
181 Further, pursuant to s 6AAA of the Sentencing Act, had it not been for your plea of guilty, I would have imposed a total sentence of 10 years imprisonment with a non-parole period for six years.
182 Next, group 2 – the Commonwealth offences. Namely, transmission of penetrative images.
183 Charge No.9, victim AA, four and a half years;
184 Charge No.12, victim AA, four and a half years;
185 Charge No.27, victim AB, four and a half years;
186 Charge No.26, victim AB, four and a half years;
187 Charge No.17, victim AC, five and a health years;
188 Charge No.19, victim AC, four and a half years;
189 Charge No.38, victim AD, five and a half years;
190 Charge No.37, victim AD, five and a half years;
191 Charge No.29, victim AE, five and a half years;
192 Charge No.21, victim AF, four and a half years;
193 Charge No.25, victim AG, three and a half years;
194 Charge No.14, victim AH, four and a half years;
195 Charge No.45, victim AI, five and a half years; and
196 Charge No.46, victim AI, five and a half years.
197 All of these sentences in group 2 are to commence today; that is, 8 July 2022.
198 Next, group 3 of charges - soliciting as described in the commencement of my decision.
199 Charge No.2, victim AT, sentence, one year;
200 Charge No.6, victim AU, one year; Charge No.10 - one year;
201 Charge No.16, victim AW, sentence, one year;
202 Charge No.32, victim AX, sentence, one year;
203 Charge No.35, victim unknown, sentence, one year; and
204 Charge No.36, victim unknown, sentence, one year.
205 These sentences are to be served concurrently with each other and to commence with a two-year accumulation on the group 2 charges and that is to commence on 8 July 2024.
206 Group 4, other offending as described in the commencement of my decision under paragraph (G). This is Charge No.43, possession of child abuse material. The sentence is four years' imprisonment.
207 This sentence is to commence with a six month accumulation on the offences in group 3. That is to commence on 8 January 2025.
208 Group 5 offences - Charge No.3, transmission of child abuse material relating to 21 victims as described in paragraph 2(f) of my decision - a sentence of six years. The sentence is to commence with a six month accumulation of the group 3 charges. That is to commence on 8 January 2025, the same commencement date as the group 4 charges.
209 Group six charges - Charge No.5, procuring child victim AY - sentence, four years, the sentence to commence with the six month accumulation on the group 3 charges. That is to commence on 8 January 2025.
210 Group 7 - Charge No.4 plus the schedule charges. This relates to the 88 victims referred to in Charge No.4 and the further victims referred to in the s16 schedule - sentence of seven years. This is to commence with a six month accumulation on the group 6 offences described above. That is to commence on 8 July 2025.
211 And finally, the group 8 charges - transmission of child abuse material - non-penetrative as described in paragraphs (B) and (D) at the commencement of my decision.
212 Charge No.1, victim AJ, sentence, one and a half years;
213 Charge No.22, victim AK, sentence, one and a half years;
214 Charge No.33, victim AL, sentence, one and a half years;
215 Charge No.34, victim AL, sentence, one and a half years;
216 Charge No.7, victim, AM, sentence, one and a half years;
217 Charge No.8, victim AN, sentence, one and a half years;
218 Charge No.15, victim AO, one and a half years;
219 Charge No.23, victim AP, sentence, one and a half years;
220 Charge No.31, victim AQ, sentence, one and a half years;
221 Charge No.40, victim AR, sentence, one and a half years;
222 Charge No.41, victim AS, sentence, one and a half years; and
223 Charge No.42, victim AI, sentence, one and a half years.
Total effective sentences
224 These sentences are to be served concurrently with the above group 7 offences and to commence on 8 July 2025. Now, on my calculation, the total terms for the Commonwealth offences which commence on 8 July 2022 and conclude on my calculations on 7 July 2032 is a total of 10 years.
225 On my calculation, the total term for all of offending, State and Federal, including the pre-sentence detention, calculating the total terms including the pre-sentence detention, is between 30 March 2021 to 7 July 2032 which is a total term for all offending of 11 years, three months and eight days, or for the purposes of my calculation, 135 months and eight days.
Parole
226 Sixty-five per cent of this period rounded down is 87.75 months or seven years and nine months. I propose to further round down the non-parole period for the reasons mentioned above to a single non-parole period referable to the Commonwealth charges of seven years and three months. On my calculation, you will be eligible for parole on 7 October 2029 but again, that is my calculation and is subject to what the registry do exactly with those pre-sentence days.
Further explanation
227 Now, Mr Robertson, the law requires me to explain the sentence to you. As you will note, there are a large number of sentences that have been imposed, some of them with different commencement dates in order to give individuality as far as possible and so as to recognise the individual offences and the victims.
228 In total for the Commonwealth offences, you have been sentenced to 10 years' imprisonment, but adding the term for the State offences and the period of accumulation and start date, the total amount of your sentence for both Federal and State offences is 11 years, three months and eight days.
229 A single non-parole period has been calculated taking into account the entirety of the offending, not only the Commonwealth portion of it. As I said, on my calculation, you will be eligible to be released on parole on or after 7 October 2029. Your release on parole on or after that date will be a decision made by corrective services based on a number of matters, including but not limited to, any progress in custody towards rehabilitation.
Sex offender life registration
230 If a parole order is made, your parole will be subject to conditions and such an order may be amended or revoked. If you receive a parole order and fail without reasonable excuse to fulfil those conditions, you may face further imprisonment. Finally, sir, in relation to the sex offenders registration, pursuant to the Sex Offenders Registration Act, a number of the offences relating to sexual penetration of a child under 16 years of age, which are Charges 11, 13, 18, 20, 24, 28, 30, 39 and 44 and class 1 offences. All other offences on the indictment are, as I understand it, class 2 offences.
231 Upon sentence, you will be a registrable offender as defined and will be required to comply with reporting condition for the remainder of your life. Sir, I have signed the sexual assault offender declaration today. That will be forwarded to you at corrective services very shortly and you will be asked in the presence of an officer to acknowledge that document.
Conclusion
232 Now, Mr Botros, we handed you a document a little way through. Are there any questions?
233 MR BOTROS: No, Your Honour, no questions - a few moments to completely digest the maths of it but no questions at this stage.
234 HER HONOUR: Ms Kelly, if you are online at the moment, my Associate is going to email you now if it is convenient, a written summary of all of these different charges and the accumulation dates. Would that be of assistance to you?
235 MS KELLY: Yes, Your Honour. I think Your Honour's Associate may have already - I am just checking email now - have already conveyed that to me, so thank you, Your Honour, that is of assistance.
236 HER HONOUR: Now, we also have, Mr Botros, a couple of copies of a - in order to assist you - if it can be sent to Ms Kelly I will ask as well, but can we have that other document that you prepared, please, Terry. This is an Excel spreadsheet of what has happened. The person up the back - is that the Informant?
237 MR BOTROS: Yes, Your Honour.
238 HER HONOUR: He can have a copy as well. I have attempted to make - well, in fact, my staff have helped me organise this very large number of charges with some different start dates and all of those things.
239 MR BOTROS: I am very grateful and it is better than the version I was working on so - - -
240 HER HONOUR: I know. It was the only way we could do it. What I am going to propose to do, Ms Kelly, in a minute when you have digested that if you have no questions - if you would like, I will leave you in private conversation if you wish to - my Tipstaff can do that - put you both in the lobby to discuss the matter privately with each other. Would you like that to occur?
241 MS KELLY: Yes, Your Honour, I would be grateful for that opportunity.
242 HER HONOUR: I am sure you would. We will figure that out in a minute. I will just see if Mr Botros has any questions. There may have been I think one occasion in my reasons for decision where I may have repeated the anonymised name of one of the complainants, but I do not think that is actually a problem. It is anonymised anyway. They are letters of the alphabet. Does it really matter if there are two letters?
243 MR BOTROS: No, do not see any issue with that, Your Honour. We have the chart that was circulated by my instructor and I think with the charge numbers, we all understand who is being referred to.
244 HER HONOUR: The anonymisation chart that you gave us only dealt with issues in your opening which is good but then there were - you know, there are the 88 odd - anyway. I have done my best. Whatever the letters are in my judgment which you will get a copy of shortly I hope - and also it is being sent to transcription services so they can type it more easily - anyway, look, we have got the hard copy and if the worst comes to the worst, we will send you a hard copy of my reasons as a draft. I noted on the way through that there was the odd typo and things like that in it.
245 So if it assists you, I can send both of you - or ask my Associate to send both of you a copy of my lengthy reasons in draft, if you accept that they are in draft and I will reserve the right to correct the odd errors.
246 MR BOTROS: Yes, Your Honour.
247 HER HONOUR: Would that be of assistance, Ms Kelly?
248 MS KELLY: Yes, Your Honour, and we would take it certainly on the basis that Your Honour is free to revise once the recording service - - -
249 HER HONOUR: There will not be much I do not imagine but we will just see what - apparently there is a bit of an issue with transcription services this afternoon. I do not know why. Is there anything else you need me for at this stage? Ms Kelly?
250 MS KELLY: Not from my part, Your Honour, no.
251 HER HONOUR: Mr Botros?
252 MR BOTROS: No, Your Honour. I do not see immediately any query or anything - any technical aspects - - -
253 HER HONOUR: You know how to get a hold of me if there is an issue. I think the calculations are right. It is not part of the order but in the document that has been forwarded to you from my Associate and in the colour-coded copy which we will try to get you a copy of, Ms Kelly - because it sets it out in a diagram and it is actually a little bit easier to - - -
254 MS KELLY: Your Honour, I have also received - - -
255 HER HONOUR: You have got that? Yes. So what I have also included in the document that I have given you is conclusion dates for all of the sentences. Now, that does not form part of the order obviously, but it just sets out, I think, an easy way of reading what the sentence is. All right, I thank my Associate and Tipstaff for all of those bits of paper. They were very helpful to me. We will adjourn now.
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