Director of Public Prosecutions v Smith
[2025] VCC 128
•17 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -24-01550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER SMITH |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 February 2025 |
DATE OF SENTENCE: | 17 February 2025 |
CASE MAY BE CITED AS: | DPP v Smith |
MEDIUM NEUTRAL CITATION: | [2025] VCC 128 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Plea of guilty to one charge of using a carriage service to transmit and solicit child abuse material; one charge of transmit child abuse material and one charge of possess drug of dependence –lower end offences- no prior convictions- Whether ‘exceptional circumstances’ exist to avoid immediate of imprisonment.
Legislation Cited: Crimes Act (Cth) s. 16A, s. 20(1B); Sentencing Act (Vic) s. 6AAA
Cases Cited: Phibbs ; Thompson
Sentence:2 years’ Recognisance Release Order, 10 months’ imprisonment and $200.00 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Kelly | Office of Public Prosecutions |
For the Accused | Mr J. Brancato | Gallant Law |
HIS HONOUR:
1Alexander Ross Smith, you pleaded guilty to a charge of transmit child abuse material and solicit child abuse material, that is Charge 1. You have also pleaded guilty to transmitting child abuse material using a carriage service, that is Charge 2, and possession of a drug of dependence, namely Ketamine. The maximum penalty for Charges 1 and 2 is 15 years' imprisonment.
2Charges 1 and 2 arise from your transmission of text-based child abuse material and requests for child abuse material to three separate recipients via Signal, and Sessions which are social messaging applications. Charge 1 occurred between 8 and 24 March 2023 and Charge 2 occurred on 25 November 2023.
3You were born in May 1990, and you were therefore 33 years old at the time of the offending. You were living in Kingsbury with your partner at that time. You have in recent times separated from her.
4The offending in this case was detected 26 April 2024 when police executed a search warrant at your residence. No doubt you were caught up in some wider investigation.
5During the execution of the search warrant police seized several electronic devices from your address. On that day you participated in a record of interview, and you were served with a 3LA order compelling you to provide devices and passwords, and you did.
6In the interview you admitted using the following online identities: 'Big Chungas', and 'Big Chungas 2', when you were using an application Telegram. You told police that you used social media applications for child abuse material. You said you looked at that material for the 'curiosity of it all.' You said you requested child abuse material be sent to you when using social media applications, and you said to the police, 'I think - yeah, I think obviously you'll probably find that I did. I think I probably, you know, knowing that they had it probably asked for it.'
7You really made admissions to looking at child abuse material. You described the material as relating to children between 12 and 15. You said it was pretty general stuff. You said there was penetration, there was some oral sex, and that was about it.
8You are not charged with possession of photographs or videos, but that provides some context to the charges which relate to conversations found on your devices.
9Charge 1 relates to between 8 March and 24 March 2023. You used the Session application to engage in conversations with two separate users for the purposes of transmitting and soliciting child abuse material. This is a rolled-up charge.
·The first user that you engaged in conversation with by text was 'Princess'. During that conversation you made the following comments:
·'Nothing says I'm a peddo slut more than let's take this to an encrypted app.
·I love tight little girls.
·Let's share a 12-year-old girl, a tight nine-year-old, I'd love to eat her.'
10You also solicited material from the same user, transmitting the following messages:
· 'If you ever come across some CP with girls, share it. I can't wait to cum looking at pre-teen pussy. Send it to me next time, I'll save it so that we can have a nice little stockpile,'
· 'Give me them being fucked, sucking dick, eating pussy.'
11There was a further conversation with a user calling themselves ‘Benny needswifeincestfamily.' You said the following:
·'Will you promise me something, you will send me all the vids you have. I lost all my CP, but only girls.
12Charge 2, which occurred on 25 November 2023, related to engaging in a conversation with a Signal user identified as 'Stephanie'. This conversation which is fully extracted from the prosecution opening. In this conversation you were using the username 'Big Chungas 2'. Some extracts are as follows:
·Stephanie said: 'Do you have anything bad to show me porn-wise? I feel like you have some dirty shit.'
·You said: 'I actually don't have anything too wild ATM.'
·You said: 'Like I said a few weeks ago, I downloaded that video that scared me so I wiped my laptop out of fear. She was like 12.'
·You said, 'It was so wrong, it was right.'
·You said: 'She was on top. I imagine how good it would feel to hold her tiny hips.
·Stephanie said: She was stretched like a toy.
·You said: 'She was but wasn't painful. They must have been using her and stretching her.'
·And you said: 'Flat-chested like a boy.'
·You said: 'I wish I could have done that to you when you were young', and 'I'd molest you daily'.
13Charge 3 relates to a small quantity of Ketamine located in your bedroom when the police executed the search warrant in this matter.
14Just before I come to the gravity of this offending, I will just briefly detail some of your personal circumstances.
15You were brought up in the Sunbury area. Your mother and father separated when you were young, eight years old. You have four siblings, an older sister - a younger sister, and two younger brothers. Your mother and your younger brother attended court to support you and are present during these remarks.
16For the last five years, until a month or so ago, you were living with your partner who has provided a letter of support for you. Eventually that relationship broke up under the weight of the offending in this case and these proceedings, but it is clear your partner is still supportive, as are your family.
17By way of education, you got to the end of Year 10. You then commenced a pre-apprenticeship course as a mechanic, but you ultimately did not finish your apprenticeship. You have worked consistently in hospitality, retail and security as an adult. You lost your job in security in the end because of these offences, although I am told, and I accept, your employers were keen to continue to employ you if they could, but in the end that has not happened.
18So those are your basic personal circumstances which are set out in the defence submissions, but also set out extensively in the psychological report of Simon Candlish, which was tendered as an exhibit on the plea which I have read and have regard to.
19In terms of the gravity of this offending, obviously these are very serious offences as reflected in the maximum penalty of 15 years' imprisonment.
20The sentencing principles in relation to child abuse material offences are well established and they include that: ‘such offending is international and difficult to detect; possession of such material feeds the market for the exploitation of children; it is not a victimless crime; actual children are offended against to create such material; the paramount public interest is in promoting the protection of children; general deterrence is the most significant sentencing consideration and good character is given less weight for such offences; and usually a sentence of immediate imprisonment is imposed.
21The objective seriousness of such offending is determined by the nature and the content of the material, the age of the children and the gravity of the sexual activities shown, the number of items or images possessed, and whether the material was for sale or further distribution, whether the offender was to profit from the offending, the number of children shown and thereby victimised and the length of time over which the material was possessed.’
22In your case the charged offending involves text discussions which were disturbing involving graphic and repulsive descriptions of sexual acts with children. At some point you had viewed such material, no doubt on the internet, and that was the context in which these discussions took place. The gravity of your offences revolves around the fact that you were discussing transmitting and soliciting such material, and indeed describing such material in some depth.
23In that respect you were fuelling the ongoing distribution of such material; but this offending was confined to over three days and the discussions in question were private, and it was not open to other like-minded people to join in. The actual offending is based on text communications, so the charged offending here did not involve actual children being harmed.
24Taking all things into account, the offending in this case falls at the lower end of the range of seriousness for such offences. That is not to say that it is not serious offending, the maximum penalty is a guidepost indicative of the seriousness of your offending in this case.
25Another reflection of how serious such offending is, is that the Crimes Act (Cth) requires that if I form the view that imprisonment is appropriate, and I intend to release you on a recognisance, I am required to impose some period of immediate imprisonment unless exceptional circumstances exist.
26I am of the view that only a period of imprisonment is appropriate in this case. I am also of the view that a recognisance release order is appropriate. Therefore, unless I am satisfied that exceptional circumstances exist, such a period would have to involve some immediate imprisonment. I will return to that.
27The Crimes Act (Cth) requires that I am not to pass a sentence of imprisonment unless I have considered all other available sentences and decided no other sentence is appropriate. I have made that decision in this case having regard to the gravity of the material including the context in which the text discussions took place.
28Under s16A(2) of the Crimes Act (Cth) I am required to have regard to the nature and circumstances of the offence, which I have already outlined, whether it is a course of conduct,(to an extent it was), what remorse you have shown, your guilty plea, your co-operation, the weight to be given to specific and general deterrence and the need to ensure adequate punishment, your character antecedents, age, and physical or mental condition, your prospects of rehabilitation and the effect that any sentence would have on your family or dependents. The last of those is not really a factor in this case.
29I do not intend to go back over what I have said about the nature and circumstances of the offence. I am of the view that it is at the lower end of the spectrum. Nonetheless, the dictates of general deterrence are such that only a period of imprisonment is appropriate.
30In this case you pleaded guilty at the first available opportunity, and you must be given considerable credit for that. I am satisfied that your plea is indicative of remorse for your offending. I have also taken into account the utilitarian benefit of your guilty plea. You have spared the prosecution and the court the use of the resources that would have been required for a trial in this matter. Having said that, the case against you was a very strong one. Nonetheless, your guilty plea entitles you to a significant sentencing discount.
31You are 34 years old now. You were 33 years old at the time of the offending - You have no prior convictions, and I am satisfied that you have been a contributing valuable member of the community in your adult life.
32Of course, good character is given less weight for offences such as this and cannot be allowed to erode general deterrence, but, nonetheless, it is still a factor in your favour. Specific deterrence, that is the need to deter you, remains a substantial sentencing principle in this case. However, the importance of specific deterrence is moderated to an extent, given you sought within two months of being detected for these offences’ treatment under a mental healthcare plan. I have been provided with a report from your psychologist, Ms Amy Gibbs.
33You have attended there on multiple occasions over a reasonably extended period now, and the letter that she has written indicates you have been progressing well with your therapy. It is considerably to your credit that you sought counselling, and that has the effect of reducing to an extent the need for specific deterrence in this case.
34As it happens, I will impose a prison sentence, and that prison sentence will hang over your head. You must understand that any repeat of such behaviour, if you are detected, will almost certainly result in you receiving a significant prison sentence. If that does not deter you from doing this again, well I do not know what would, Mr Smith.
35You did co-operate with police in this matter. You allowed police the passcodes to your devices, which you had to do under the 3LA order, but nonetheless you did so. You also made significant admissions to police in the record of interview which I have detailed.
36In deciding the appropriate sentences in this case, I have also had regard to comparative cases. The prosecution very helpfully has supplied a table of comparative cases, including a decision of the Victorian Court of Appeal in Phibbs, which is somewhat analogous to the situation in this case.
37I have also had regard to the principles or the decisions relating to the exceptional circumstances test. A combination of circumstances can amount to exceptional circumstances and such things such as the lower gravity of the offending, guilty plea, the absence of prior convictions, prospects of rehabilitation, are all relevant matters to take into account.
38As regard to your prospects of rehabilitation, Mr Candlish has assessed you of a low risk to re-offend. It seems to me it is difficult to be precise about such things. Clearly, you must have had some interest in viewing this material or you would not have conducted the conversations you did or looked at the material from time to time. So undoubtedly you have an interest in such material and no doubt you remain a risk. But it seems to me you have done everything you could do to address your rehabilitation; you have taken steps in the form of the treatment with Ms Gibbs which augers well for your rehabilitation.
39Additionally, I have had regard to the letter that you have written that was tendered and which I accept is a sincere expression of how you feel about these matters.
40I have also had regard to what your previous partner, who works as a primary school teacher, says about your character and I have taken that into account in assessing whether exceptional circumstances are in existence in this case.
41The prosecutor, fairly, referred me to a decision of Thompson and that is extracted in the crown submissions, and I will quote from the submissions, it said this:
'It is conceded the court could find exceptional circumstances justifying the offender's immediate release on recognisance when regard is had to the following combination of factors: the offender's early plea of guilty, the lack of prior offending, his co-operation, that he has been assessed as having no paedophilic disorder and the low level of the offending.'
42I would add to that your engagement with a psychologist and my optimistic view of your prospects of rehabilitation.
43I am also of the view that the best thing for your prospects of rehabilitation is that your treatment is not disrupted, and ultimately, I have come to the view that the combination of factors relied on in this case by your counsel, Mr Brancato, does constitute exceptional circumstances.
44I have no doubt that a prison sentence is appropriate here, but I will order a recognisance release immediately in this matter.
45The conditions that are mandatory will involve you, through Corrections, engaging in sex offender treatment - that will be the condition of the recognisance in this case.
46I will then proceed to sentence in this matter.
47In respect of Charge 1, which is a rolled-up count involving more than one offence which all other things being equal makes it a more serious offence, you are sentenced to imprisonment for a period of seven months.
48In relation to Charge 2, you are sentenced to a period of imprisonment of five months.
49The sentence on Charge 1 will start today. The sentence on Charge 2 will commence two months before the expiration of the sentence on Charge 1.
50So that means it is a total effective sentence of ten months.
51In my view, given the period of time that elapsed between the two offences and the fact that it was a completely separate conversation with a different user, that period of cumulation is appropriate. In fixing the cumulation I have had regard to the totality principle which requires that the overall sentence be just and proportionate to the total criminality of your offending, so it is a total effective sentence of ten months.
52In relation to Charge 3, you are convicted and fined $200.
53I will then order that you are to be released on a recognisance release order immediately or forthwith. The amount of the recognisance is $2,000, the period is two years. You are to be of good behaviour for two years. There are mandatory conditions to this order under s20 (1B) of the Crimes Act (Cth).
· You must be subject to the supervision of a probation officer for two years - that is Corrections in this case - you have to obey all reasonable directions of Corrections or the probation officer;
· You cannot travel interstate or overseas without the written permission of the probation officer;
· You are to undertake such treatment and rehabilitation programs that the probation officer reasonably directs;
· You will have to report - it will be Sunbury Corrections, will it not.
54MR BRANCATO: Melton, I am instructed is the closest.
55HIS HONOUR: It will be Melton.
· Melton Corrections at 2A Barries, B-a-r-r-i-e-s, Road Melton within two working days of this order. Do you understand, you have to go there in the next 48 hours;
· You have to report to and receive visits from a Community Corrections officer;
· If you change your address or employment, if you get a job and you change it you have to tell them within two working days of the change; and
· You are to attend for assessment, and if assessed as suitable, treatment for a sex offender program or programs to reduce re-offending as directed.
56So you have to do all of those things, and you are to attend - sorry, this is - no, I think I will make it mandatory. Ms Kelly, one and two, they are alternatives, are they, conditions regarding sex offenders ‑ ‑ ‑
57MS KELLY: They are, Your Honour.
58HIS HONOUR: They look like they are alternatives.
59MS KELLY: Yes, they're alternatives.
60HIS HONOUR: Do you have any submissions on whether I should make it mandatory or leave it to Corrections.
61MS KELLY: Well, there is a condition that they will assess him and if assessed as suitable he will then undertake ‑ ‑ ‑
62HIS HONOUR: I will leave it at that then. So, if they assess you as needing to do a sex offender's program well you have to. You have already had some treatment; they may incorporate some of that into this order.
63So that is the sentence that I impose in this case, it is ten months. Have I got that right, the way I have framed it.
64MS KELLY: You do, Your Honour ‑ ‑ ‑
65HIS HONOUR: The starting dates ‑ ‑ ‑
66MS KELLY: Yes - sorry, you do have that right, it is correct, yes.
67HIS HONOUR: Yes, all right, that's good. 6AAA: if you had not pleaded guilty, I would have given you 15 months and made you serve eight of it and released you on a recognisance release order after eight months. So that is the 6AAA.
68Now, you will have to sign this order, as will I. So that will be prepared. Can I tell you this: if you breach this order then you will be brought back before me and one of my options would be to impose a period of imprisonment. Now if you breach it by doing this again, looking at child abuse material, then you will be charged with further offending and you would have to face this breach, then you would have to deal with whatever you got for the further offending.
69Just stand up for a moment. Do you understand. It's a bit like the old suspended sentence.
70ACCUSED: Yes, Your Honour.
71HIS HONOUR: If you do something wrong in the next couple of years then you are faced doing the ten months - do you understand.
72ACCUSED: Yes, Your Honour.
73HIS HONOUR: If you were to re-offend by committing further child abuse material offences, you may fall into some mandatory sentencing provisions as well and then you would be talking about years not months. Do you understand.
74ACCUSED: Yes, Your Honour.
75HIS HONOUR: I noticed in one of these - this is not part of my remarks, but I noticed one of the psychologists said you should stop looking at pornography at all. I mean it has been put to me that that is how this progressed, it is often what is said ‑ ‑ ‑
76ACCUSED: Yep.
77HIS HONOUR: I think that is a wise piece of advice for you. Do you understand ‑ ‑ ‑
78ACCUSED: Yes, Your Honour ‑ ‑ ‑
79HIS HONOUR: Or you will end up in prison. This material is revolting. I mean, surely just sitting here listening to your conversations is enough to horrify you now ‑ ‑ ‑
80ACCUSED: Yeah, in front of my mother, it's terrible.
81HIS HONOUR: All right, well we will just have that prepared and then ‑ ‑ ‑
82MR BRANCATO: Your Honour, there's also a SORA reporting obligation ‑ ‑ ‑
83HIS HONOUR: SORA, yes ‑ ‑ ‑
84MR BRANCATO: I'm sure Your Honour was getting to that, but yes ‑ ‑ ‑
85HIS HONOUR: All right. It's 15 years, it's two Class 2s, so you're on the register for 15 years. Of course, if you don't comply with the register, that's an offence.
86ACCUSED: Yep.
87HIS HONOUR: Then you would have breached the order that I have just made. It's an onerous order, being on the register, it's got a lot of implications so you will have to deal with that as well. But as I say, if you don't adhere to it then you can be breached for this offending because it's an offence not to comply with the SORA orders. I will just stand down while the recognisance is prepared.
88(Short adjournment.)
89HIS HONOUR: I have signed those. All right, nothing else?
90MR BRANCATO: Nothing further, thank you, Your Honour.
91HIS HONOUR: All right, thanks both of you.
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