Director of Public Prosecutions v Smith (a pseudonym)
[2024] VCC 1094
•3 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN SMITH (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 May 2024 |
| DATE OF SENTENCE: | 3 June 2024 |
| CASE MAY BE CITED AS: | DPP v Smith (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1094 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of using a carriage service to solicit child abuse material and others – acceptance of sentence indication on one indictment – plea of guilty of two indictments – no relevant criminal history – mild intellectual disability – Verdins – reduced moral culpability – positive prospects of rehabilitation – delay – totality – life reporting under the Sex Offenders Registration Act 2004.
Legislation Cited: Crimes Act 1914 ss 16AAC, 19(5); Crimes Act 1958; Sex Offenders Registration Act 2004.
Cases Cited:Hurt v R; Delzotto v R [2024] HCA 8; Trinh v R [2024] VSCA 61; Worboyes v R [2021] VSCA 169; R v Verdins (2009) 16 VR 269; Muldrock v R (2011) 244 CLR 120; DPP v Huby [2019] VSCA 106 and DPP v Snow [2020] VSCA 67.
Sentence:Total effective sentence of five years and three months imprisonment. Non-parole period of three years and two months on both indictments.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Breckweg | Office of Public Prosecutions |
| For the Accused | Mr M. Brennan | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Mr Smith[1], I propose to sentence you to an overall period of imprisonment of
5 years and 3 months’ and set a non-parole period of 3 years and 2 months. I declare the 508 days of your pre-sentence detention as time served under my sentence. You will appreciate this is the sentence I indicated on the sentence indication hearing in relation to what I will be calling the second indictment. I will now explain at some length how it is I arrive at that position.2You pleaded guilty to charges on two indictments. In relation to the charges in indictment ending 447, I gave a sentence indication, which you accepted. In my indication, I went so far as to indicate the sentence on each of the charges. What I said is conveniently set out in [6] of the Director’s document 'Further outline of prosecution submissions for plea'. In [7], [8] and [60] to [62] of that document, the complexity of sentencing for Commonwealth and State offences is pointed out in some detail.
3At the time giving my sentencing indication, I was aware you had already pleaded guilty to charges on a second indictment, ending 706. I was unaware of the exact nature of the charges or the circumstances underlying them. Accordingly, when the charges in the indictment ending 447 returned for a plea hearing, they were joined by the charges in the other indictment.
[1] A pseudonym.
Circumstances
Indictment ending 706
4On 9 January 2020, police members searched your home and found your iPhone and iPad. They analysed those devices and found you used social media platforms including Kik and Snapchat by pretending to be under 16 and sometimes female and these persons told you they were under 16.
5On 23 February 2022, you pleaded guilty to seven charges comprising six charges of using a carriage service to solicit child abuse material and a charge of possessing or controlling child abuse material obtained or accessed using a carriage service.
6The circumstances of your offending are set out in the 'Summary of prosecution opening for plea', Exhibit B. You agree with its contents. For the first six charges, the exhibit details the conversation between you and the victims.
7On 5 January 2020, you sought from someone called 'First Last' and received an image of that person’s penis, having seen an image of his underwear. You sent an image of a penis. You asked to see this person masturbate but it did not happen. This constitutes Charge 1.
8On 5 January 2020, you sought an image from someone called ‘Ron Halliday’[2] and sent this person an image of a penis. This constitutes Charge 2.
[2]A pseudonym.
9On 5 January 2020, you engaged with someone called 'Jay Slay'. You sought and obtained a picture of this person in underwear. You sent an image of someone in underwear. You unsuccessfully sought an image of his penis. You spoke about your younger brother and having sex with him. This constitutes Charge 3.
10Again, on 5 January 2020, you conversed with someone called ‘Gilbert Moss’[3]. You sought and received an image of underwear. You sent an image of a penis and received one in exchange. You enquired about masturbation but got nowhere. This constitutes Charge 4.
11Again, on 5 January 2020, you communicated with someone called 'Sexy Shay'. You sought and received an image of underwear. You sent your own image of underwear and a penis. You received an image of a penis. You enquired about masturbation, apparently without result. This constitutes Charge 5.
12Finally, on 5 January 2020, you engaged with someone called ‘Stewart Seymour’[4]. You sent an image of a boy in underpants and received an image of a boy's face, an image of a naked girl and a video of a boy in underwear and dancing. You sent what is described as a 'mega video'. You discuss your sexual relations with your brother. This constitutes Charge 6.
13At time of your arrest on 9 January 2020, the police found on your devices 4,052 images and 69 videos of child abuse material. In [15] of Exhibit B, these images and videos are divided into categories. At the plea hearing, counsel for the Director explained what those categories meant. You were charged and bailed.
Indictment ending 447
14On 12 January 2023, police members seized three phones belonging to you. Analysis showed the use of social media platforms to transmit indecent communications, solicit and transmit child abuse material, and cause such material to be transmitted to yourself.
15For Charge 1, a charge of using a carriage service to cause child pornography to be transmitted to yourself on 17 March 2019. The circumstances include receiving an image of a child’s penis and two videos of a child masturbating under a blanket.
16For Charge 2, a charge of using a carriage service to transmit indecent communication to a person believed to be under 16 years. This occurred on
15 and 16 April 2021, where you pretended to be a female and involved an unsuccessful attempt to get photographs of a 12‑year-old male in his underwear. The attempt included a number of crude questions asked by you.[3]A pseudonym.
[4]A pseudonym.
17For Charge 3, a rolled-up charge of using a carriage service to solicit child abuse material. This charge involves interactions with five recipients between 15 April 2021 and 3 January 2023. One of the recipients is a 12-year-old male called 'Inferno' who is involved in Charge 2. The other victims said they were aged between 12 and 15. With three of the victims you pretended to be a female. Your messages were highly sexualised, persistent, but proved unsuccessful. With 'Inferno', you repeatedly tried to obtain an image of his underwear, the removal of his underwear and him masturbating.
18For Charge 4, a rolled-up charge of using a carriage service to transmit child abuse material. This charge involves your interactions with four recipients between 16 April 2021 and 3 January 2023 and are described in [30] to [34] of Exhibit A. This charge again involves 'Inferno' from Charges 2 and 3. The communications with two of the recipients are particularly unpleasant in that they involve forms of penetrative sex involving adult males and male children and between male children.
19For Charge 5, a charge of transmitting indecent communications with a child under 16 on 1 February 2022. The recipient refused to participate describing the requests as 'creepy'. This appears in [36] of Exhibit A.
20For Charges 6 and 7, charges of using a carriage service for sexual activity with a person under 16 and producing child abuse material. These offences occurred on 21 March 2022 with the same recipient, culminating in the recipient masturbating to ejaculation. This is described in [37] of Exhibit A. Charge 7 covers the production of videos with the children in charges 6, 8 and 12. The videos are short, about 100 seconds each. It is a rolled-up charge.
21For Charge 8 and part of Charge 7, charges of using a carriage service for sexual activity with a person under 16 and producing child abuse material (Charge 7). This occurred on 14 April 2022. Charge 8 has the child undressing completely at your request. The events are described in [38] and [39] of
Exhibit A.22For Charge 9, a rolled-up charge of using a carriage service to cause offence with the circumstances set out in [40] to [44] of Exhibit A. This charge concerns communications on three occasions between 30 July 2022 and 7 January 2023 where you seek child abuse material. There are two instances of cruelty involving blackmail. Your threats were apparently unsuccessful.
23For Charge 10, a charge of causing child abuse material to be transmitted to yourself which is described in [46] to [48]. This occurred on 3 January 2023 and involves you sending a video described in Charge 5.
24For Charge 11, a charge of transmitting indecent communications to a child under 16, which is described in [50]. It occurred on 9 January 2023 and includes you sending an image of a young boy lying on a bed, purporting to be you, and naked up from the waistband of his underwear.
25For Charge 12 and Charge 7 again, a charge of using a carriage service for sexual activity with a person under 16 and producing child abuse material, which are described in [51] to [52]. This occurs on 11 January 2023 and involves images of a male child masturbating.
26For Charge 13, a charge of possessing or controlling child abuse material. Again, the circumstances appear in [53] to [54]. After analysing the three devices, there are tables showing the number of videos and 'unique' images and their categorisation (1 or 2). There are 387 child abuse images and videos. One of the devices contained written material under six titles.
27Under the s 16BA Schedule, on 17 March 2019, while pretending to be a
14-year-old, you communicated with someone who identified as a 13‑year-old male. You sought child pornography, asking about the size of the child's penis and asking to see it. You asked about his siblings and were told of a 6-year-old brother. This constitutes item 1 in the Schedule and relates to Charge 3.28This conversation continued with discussion about their brothers and their penises. You sent a picture of a boy in underwear and repeatedly sought a picture of his brother. This constitutes item 4 in the Schedule which also relates to Charge 3.
29On the same day, with the same person, you sent an image of a penis, purporting to be that of your brother. This constitutes item 3 of the Schedule and relates to Charge 4.
30Again, on the same day, you purported to a 14-year-old male and received an image of a child's penis and a video of a male child masturbating. This constitutes item 2 of the Schedule and relates to Charge 10.
Criminal history
31On 15 October 2019, you were placed on an adjourned undertaking for a traffic offence. This has no significance in sentencing you. Before the 2019 offending, you were a person of good character and are entitled to some credit in the sentencing process.
Personal
Family
32You were born in the United Kingdom and have two siblings, one older, one younger. You lived in Newcastle, England, but moved often during your childhood. Your childhood was tough and involved medical problems and physical challenges. Your birth parents neglected you and your siblings and all of you were taken into care. You went into care when you were three years old.
33When you were six, you and your two siblings were adopted by Mr and
Mrs Smith[5]. You suffered significant separation anxiety, had rotten teeth and took a considerable amount of time to build trust.[5]A pseudonym.
34Your adoptive parents confirm the neglect you experienced as a child and you suffered global developmental delay, including having poor concentration, being behind with the development of speech and language skills, as well as being delayed in basic self-care tasks. You did not start speaking until you were seven and required intensive assistance in speech therapy.
35In 2010, you and your family moved to Australia. Your adoptive parents are religious and you attended mass with your parents each week until you turned 18. Your father worked as a bank manager and your mother as an administrative assistant. You remain close with your parents and siblings and speak to your mother every day.
Education and Work History
36At primary school in England, you struggled with basic literacy and numeracy. You had a speech impediment for which you were bullied. You moved to a different school due to the bullying, but it made little difference. At 10, you were assessed by your speech therapist as having continuing problems with concentration and attention as well as with expressive language skills.
37You attended two secondary schools in England until Year 9, when your family moved to Australia. You started Year 10 at a secondary college and in 2011, you were assessed by Ms Skotnicki, psychologist, who concluded you suffered a mild intellectual disability with her results indicating no skills above the 'borderline' level. After Year 10, you transferred to another secondary college where you completed Years 11 and 12 through the VCAL programme. During your high school years, the bullying continued.
38After secondary school, you completed a Certificate III in warehousing and logistics and gained your forklift licence. You undertook supported employment in the disability sector for about 18 months but struggled with the interpersonal aspects of the workplace. You eventually moved to work for a large retail company and remained there for about a year before working briefly as a storeman. You ceased working to complete further TAFE studies together with a licence to operate an excavator.
39You enjoyed working in the construction industry where you had roles as a plant operator and labourer. However, you report finding it difficult to cope on the job and had experienced problems participating in job interviews. You noted persisting difficulty both finding and sustaining employment as a result.
40Your intellectual functioning was assessed for the purpose of a NDIS application and obtained results in the 'borderline' range of testing. It was noted the presence of persistent problems with your adaptive living skills were accompanied by severe anxiety and social difficulties. You were again diagnosed with a mild intellectual disability on the basis of these impairments together with a range of anxiety-related disorders and depression.
41During your time on remand, you work as a garden billet and enjoyed it.
Relationships
42You had several girlfriends during high school from about Year 7. You commenced sexual intercourse at 12 but sexual experiences were rare. You have never been involved in a cohabiting relationship. Your relationships have generally been superficial in their level of intimacy and short-lived in duration. Your most recent relationship ended about five years ago.
Mental Health
43You have a history of anxiety and trace this back to your early years, being made more intense by the harassment, bullying and social ostracism which dominated your later life. You have a history of panic attacks and other anxiety‑related conditions together with some experiences of a mood disorder.
44You have received care for your anxiety and were referred to a remedial social-skills programme while at school in England. This had a positive effect on your self‑confidence and communication abilities. You were being prescribed Valium when you were younger along with other medicines. You are not currently prescribed any medicine and in custody you have seen a psychiatric nurse.
45Between June 2020 to January 2021, you were treated by a clinical psychologist, Dr Wilson. You felt too anxious to leave the house for your appointments with Dr Wilson and struggled to engage with treatment.
46Between July 2020 and September 2021, you participated in counselling with Mr Hanley, attending exclusively by telephone or audiovisual link. You found these sessions to help 'a little bit' but noted the appointments had been irregular.
47Currently, you are not participating in any form of counselling and not receiving any psychotropic medicine. You present with moderate to severe anxiety related symptoms and these are ongoing.
Substance use
48Your father was a heavy drinker which caused considerable angst in the family. You drank heavily for much of your twenties. This was to address your anxiety and depression. You would drink anything that was in the house and ceased drinking about three and a half years ago, as you and your father made a pact to cease alcohol use. You have remained abstinent from alcohol since then.
49During your late teens you used cannabis and it was a problem for you, for you relied on it to control your anxiety. From 20, you stopped using cannabis.
50In late 2022, you were involved in a motor vehicle accident. The damage to your motor vehicle stopped you from driving it. Driving a motor vehicle had had a soothing effect on you.
51Previously, your parents separated. This was a cause of grief for you. Fortunately, they now live together but are separated under the one roof.
52Your experience of imprisonment has been frightening. This is understandable given your psychological state. It has caused a decline in your mental health. Last February, you were hospitalised.
53While in custody, during October 2023, you completed three two-hour Atlas modules including one called 'Healthy Relationships'.
Wilson
54Nathan Wilson is a clinical psychologist. He assessed you at the request of your mother for the purposes of an application to the National Disability Insurance Scheme[6]. He had treated you during 2020.
[6] Report dated 20 January 2021.
55Using the criteria of a recognised diagnostic manual, Dr Wilson considered you suffered from five disorders: a mild intellectual disability; a major depressive disorder; a panic disorder; agoraphobia; and a separation anxiety disorder. Under the heading 'What does all this mean?', Dr Wilson said[7]:
‘Hayden’s intellectual functioning, which is his ability to process, store, learn, and recall verbal and visual information is significantly lower than the average for other people his age. This will make it more difficult for him to navigate every-day life tasks at home and function within a workplace. It is likely, that his difficult childhood background during his early development may have impacted upon the development of his cognitive abilities, which may have never developed to the same level as his peers of the same age.
The development of these cognitive deficits as well as his adverse early experiences mean that he is frequently overwhelmed and consequently feels highly anxious. He struggles to not be overwhelmed by these feelings, which lead to either dissociative or panic response. These often lead to further avoidance behaviours, which only serve to reinforce his anxiety, and rob him of the opportunity to learn to cope with adverse situations by experience. His lack of awareness of his surroundings, lack of ability to process subtle social signals, and severe communication difficulties place him in a vulnerable position and dependent upon others such as parents or siblings to cope'.
In light of that report, it is unsurprising you received a NDIS package.
[7] At p 6.
Newton
56Patrick Newton is a clinical and forensic psychologist. On 17 January 2021, he interviewed you at the request of your solicitors[8].
[8] Reports dated 9 March 2024 and 16 May 2024.
57Mr Newton noted your most prominent emotional problem was anxiety. Those symptoms were best understood as the impacts of an anxiety disorder with mixed features of panic disorder, agoraphobia and social anxiety disorder. He considered your anxiety was causing you a level of distress in excess of that commonly observed in first-time prisoners.
Cognitive functioning
58You were cognitively tested by Dr Wilson in 2021 and were placed in the 'borderline' range of intellectual impairment. Mr Newton did not formally test you, but his observations of you were consistent with the results obtained by
Dr Wilson. He said[9]:‘Mr Smith impresses as a cognitively unsophisticated man who processes information slowly and approaches the world in a 'concrete' fashion. His intellectual challenges add to his problems in interpersonal communication. They also leave him easily influenced by others, and reinforce his general sense of dependency and inadequacy. Moreover, Mr Smith is easily distracted and clearly shows ongoing problems with his concentration and attention. These difficulties would undermine his decision-making capacity by making it difficult for him to generate alternative courses of action, consider a full range of options and anticipate the range of consequences likely to accrue from a given behaviour.
The cognitive difficulties evident in Mr Smith’s mental state had their onset in Mr Smith’s early years and can be traced to the neglect, abuse and impoverished developmental environments in which he was raised prior to his adoption. Like his anxiety, these effects had their onset prior to his offending conduct and continue to affect him to a noteworthy extent. Accordingly, I concluded that they were operative at the time of his offending conduct.’[10]
Mr Newton did not consider there was a nexus between your cognitive functioning and the offending.[11]
[9] [44] of report dated 9 March 2024.
[10] Para 45-46.
[11] Para 72.
59Dr Wilson noted a cognitive, educational, and adaptive functioning assessment was completed by a psychologist, Ms Skotnicki, of the Department of Education and Early Childhood Development in 2011 and that occurred while you were in Year 10. Based on this assessment you were diagnosed with a mild intellectual disability. Your scores on the cognitive assessment (WISC-IV FSIQ = 65) were in the extremely low range.[12]
[12] Report of Dr Wilson, page 2.
Personality Adjustment
60You present with significant personality pathology and entrenched interpersonal difficulties. Your disadvantaged background (upbringing and bullying in school) have all combined to undermine your capacity to interact with others and have left you with a perspective of yourself which stresses your inadequacy and weakness. These issues both lead to and were reinforced by the persisting immaturity of your attachment to others and your immersion in the dysfunctional mores of online pornography[13]. You withdrew from most connections with others and immersed yourself in the pseudo-connections provided by pornography and online chat. It left you lonely and deprived of social experiences. The immersion in the dysfunctional mores of online pornography compounded your problems and instilled negative expectations.
[13] Para 47.
61Mr Newton considered these experiences affected your self‑esteem and you have become even more reluctant to make attempts to establish connection with others. The depth of these problems is evident in the development of your pornographic experiences. The more you engaged with such material and the more you found gratification in it, it became more compelling as the prospect of adult connection was redolent with anxiety so the images were 'safe' objects of a desire since children did not evoke the anxiety that would otherwise have overwhelmed you.
62These traits are unequivocally maladaptive and pathological. Mr Newton considers you meet the DSM-5 criteria for an avoidant personality disorder with dependent features.
Sexual Adjustment
63Your sexuality is disturbed. You have a limited understanding of the sexual development of young people. You were unclear about the rationale for the age of consent, had difficulty discussing the impacts of your behaviour and could not demonstrate empathy for the impacts suffered by those depicted in child abuse material.[14]
[14] Para 47.
64Your involvement with child abuse material has been longstanding and persistent. Your conduct was compulsive, diverse and intense and persisted over an extended period of time.
65You had limited experience of sexual contact with adults and lack the skills to initiate and maintain the intimacy necessary for a mature relationship. You require offence specific treatment, individually due to your intellectual limitations.
66Your sexuality is sufficiently disordered to meet DSM-5 criteria for a paraphilic disorder. It is unclear whether your behaviour warrants a formal diagnosis of a 'paedophilic disorder', but you experienced both paedophilic and hebephiliac attraction patterns for an extended period.[15]
[15] Para 57.
Risk Assessment
67Mr Newton considered you are a high risk of further sexual offending. Your risk is well above average relative to a typical group of sex-offenders undergoing sentence. The most likely scenarios for recidivism would be of further online offending (including solicitation) directed towards underage males.[16]
[16] Para 66.
68On 16 May 2024, Mr Newton provided a supplementary report which answered questions asked by his lawyers. Summarising his answers:
(a) you had sufficient expressive capacity to answer the questions asked in the police record of interview;
(b) an inability to cooperate with the police in an interview would be due to your psychological reaction of being silent, confused or disassociated;
(c) to treat your social anxiety would take about 30 sessions over a year by a mental health professional to achieve effective results. A full programme of dialectical behaviour therapy would take two years. Offence specific treatment would take two years. You would be unlikely to receive the required treatment in custody. There are no dialectical therapy programmes of the required nature offered in prison. Although sex offender treatment is offered in prison, owing to the waiting list, you would not receive the appropriate treatment during your sentence.
(d) there is a strong connection between your personality disorder and the paraphilia you developed;
(e) publication of your name and identifying information would cause a significant deterioration of your mental health and risk a severely adverse effect.
As to (e), as I understand it, you no longer seek any form of prohibition on publication.
Hanley
69Peter Hanley is a psychologist. He treated you between 31 July 2020 and 29 September 2022. By the end, Mr Hanley said you had taken some positive steps in treatment. You were able to acknowledge your problems with anxiety, loneliness and the unhealthy and harmful way you sought to meet the need for connection. However, over time, you showed a limited capacity to benefit from what he called 'insight-oriented sex offender treatment'. He expected more benefit from a structured programme in the context of mental health treatment and support which fully caters for your intellectual limitations.
Discussion
70At the outset of any discussion of the application of sentencing principles, it is important to set out the maximum penalties applicable to your offences. In relation to indictment ending 447:
(a) using a carriage service to transmit child abuse material to yourself – 15 years’ imprisonment;
(b) using a carriage service to transmit child abuse material to a person believed to be under 16 years – 15 years’ imprisonment;
(c) using a carriage service to solicit child abuse material – 15 years’ imprisonment;
(d) using a carriage service to transmit child abuse material – 15 years’ imprisonment;
(e) using a carriage service to transmit indecent communications to a person believed to be under 16 years – 7 years’ imprisonment;
(f) using a carriage service to engage in sexual activity with a child under 16 years – 20 years’ imprisonment with a mandatory minimum head sentence of 5 years’ imprisonment;
(g) producing child abuse material – 10 years’ imprisonment. This is an offence created by the Victorian Crimes Act 1958; with
(h) for charge 8, the offence is using a carriage service to engage in sexual activity with a child under 16. Because the offence occurred on 14 April 2022 the maximum penalty is 20 years' imprisonment with the mandatory minimum head sentence of 5 years’ imprisonment;
(i) using a carriage service to cause offence – 5 years’ imprisonment;
(j) for Charge 12, using a carriage service to engage in sexual activity with a child under 16, again owing to the date of the offence – 20 years’ imprisonment with the same mandatory minimum head sentence of 5 years' imprisonment;
(k) possessing child abuse material using a carriage service – 15 years’ imprisonment.
71There is a summary charge of committing an indictable offence while on bail. The maximum penalty is a fine of up to 30 penalty units or 3 months’ imprisonment.
72In relation to indictment ending 706, the maximum penalties are:
(a) using a carriage service to solicit child abuse material – 15 years’ imprisonment;
(b) possess child abuse material obtained by using a carriage service – 15 years’ imprisonment.
73Although there are charges created by Victorian legislation, the bulk of the charges are for offences created by Commonwealth legislation which has its own sentencing provisions including s 16A of the Crimes Act 1914. Moreover, for offences committed after 23 June 2023, there is a presumption of cumulation of sentences.
74It is obvious these offences are serious. The maximum penalties make that clear. The quasi-mandatory sentencing regime created by setting minimum head sentences for certain offences reflects the very strong desire of Parliament to stamp out the use of carriage services for the behaviour seen here[17]. It is easy to see why. The community is revolted by this behaviour and requires courts, through their sentences, to deter and denounce the behaviour.
[17]Hurt v R; Delzotto v R [2024] HCA 8 set out the approach to applying the mandatory minimum term.
75The offending in the second indictment occurred while you were on bail for earlier, similar offending. This aggravates, or makes worse, the gravity of your offending in the second indictment. A central condition of bail is the person does not re-offend while on bail. Otherwise, the person would remain in custody until the charges are determined.
76Counsel referred me to the factors involved in sentencing for offences involving child abuse material or child pornography.[18]
[18] See [10] and [11] of the Director’s “Further outline of prosecution submissions for plea”.
77Mr Newton discusses why you engaged in this behaviour. His assessment of the risk of similar re‑offending emphasises the sentencing purposes of specific deterrence and protecting the community from you.
78General deterrence assumes considerable importance when dealing with this kind of behaviour: children are vulnerable; there is a need to protect children against subsequent person to person sexual abuse; and to prevent their corruption by this behaviour.
79There is another aspect of general deterrence - these offences are difficult to detect. They are conducted on the internet. I do not know how you were detected for the prosecution opening does not say how you were detected. I daresay it is a deliberate omission. The difficulty in detecting places added weight to the need for general deterrence.
80Despite the importance of general deterrence with child abuse material, in your case, its importance is influenced by your personality and cognitive shortcomings. There would be fewer persons who would identify with you or would take particular heed of the sentences imposed upon you.
81Although your offending spanned years, there were significant gaps between offences. There were offences committed on and about 17 March 2019 and then between 15 April 2020 and January 2023. Nevertheless, in the offending periods you were very active. Some of the child abuse material was very depraved, involving very young children being anally and orally raped by adult males.
82Your actions were for your own use. There is no question of you paying or receiving money for the images and videos. There was no financial benefit to you. You pretended to be about the same age as the victims and sometimes a female child. At times, you tried to coerce children into providing material. These are not victimless crimes. The children were corrupted by your actions. Moreover, you exchanged child abuse material with these children. The persons portrayed in such material are themselves victims.
83Charges 1,2, 4 and 6 are rolled up charges. That is, they contain more than one instance of the offence but are rolled up into one charge. This benefits you because I cannot exceed the maximum penalty for the rolled-up charge even though it contains more than one instance. Generally speaking, the sentence on a rolled-up charge will be greater than a sentence which contains only one instance of the offence.
84The overall offending extends discontinuously for nearly 5 years. It involved the use of three devices, five platforms and four email accounts. There are significant gaps between some of the offending. It involves pretence as to age and gender. Most of the charges in indictment ending 447 were committed while you were on bail (Charges 3,4 and 6 to 14).
85With Charge 13, the number of files possessed is relatively modest. It is commonplace for offenders to possess thousands of videos and images of child abuse material. However, the material is very unpleasant.
86For the offences of using a carriage service to engage in sexual activity, the children were generally adolescents. However, generally, they need to be adolescents to be interested in such activity. The instances of offending are short in duration. The activity does not involve penetration.
87For offences committed after 23 June 2020, s 19(5) of the Crimes Act 1914 creates a presumption of accumulation.
88Section 16AAC of the Crimes Act 1914 permits the reduction of the minimum sentences by up to 50 per cent where there is a plea of guilty and co-operation with the investigating authorities. In this case there were pleas of guilty entered. They were not entered at the earliest reasonable opportunity. This case proceeded through a committal hearing, admittedly by way of a hand-up brief. There have been court events in this Court including a sentence indication hearing. I would not allow a 25 per cent reduction but a 20 per cent reduction, which is what I stated at the sentence indication hearing.
89The offences in the second indictment were largely committed on 5 January 2020 with others on 7 and 9 January 2020. Your approaches were unsophisticated and there were requests for non‑penetrative material.
Serious Sex Offender
Co-operation
90As to the issue of co‑operation, you gave access to your devices after pointing out which were your devices. It is the content of those devices which provides the evidence against you. Giving access was important from the prosecution's perspective.
91This aspect of your co‑operation continued afterwards. There was no committal hearing. Plainly, no prosecution witnesses were examined. Although those witnesses were largely professional witnesses, not examining them saves time and expense and is somewhat of a relief to them. Giving evidence is never easy even for the practised witness.
92When interviewed by police, you gave 'no comment' answers. Although reflecting your right to silence, it is the antithesis of co-operation. The fact you were affected by the behaviour of the police officers, in the context of your very limited communication skills and psychological make up, and chose to follow the legal advice given you, is of no value in this context. Whatever your motive, you did not co-operate with the police during the interview. Noting the passage from Trinh v R[19], I do not propose to alter the 10 per cent reduction as stated during the sentence indication. In combination, the reduction remains at 30 per cent of the appropriate sentences on those charges.
[19] [2024] VSCA 61 at [44].
93In saying the above, I am conscious of the circumstances in which a reduction should occur and the Director’s submission in that regard: the fixing of the appropriate sentence in one's mind before applying the reduction; and that sentence should be close to the least serious circumstances. In my experience of these types of cases, unpleasant as it is, the offending the subject of
Charges 6,8 and 12 does not merit a description greater than close to the least serious circumstances. The circumstances of Charge 6 included the victim masturbating to ejaculation. For Charge 8, the circumstances involved the exposure of the victim’s penis. For Charge 12, they include a child masturbating, presumably believing you are a young female.Guilty pleas
94Dealing again with the charges in the indictment, ending 706, the timing of your guilty pleas was at the earliest reasonable opportunity. The police laid 69 charges. As I said, there was no committal hearing as such, for you were committed on the strength of the prosecution's brief of evidence. After that, there were discussions, including those at a case conference in this Court.
95On Charges 6, 8 and 12 on indictment ending 447, your counsel submits I should allow the maximum reduction of 25 per cent on the mandatory minimum term of five years. This is instead of the reduction I stated in the sentence indication hearing. In the light of the above, I disagree.
96In relation to indictment ending 706, you indicated an intention to plead guilty to the charges in February 2022. An indication at that stage deserves the amelioration of penalty discussed by the Court in Worboyes v R[20].
[20] [2021] VSCA 169.
Verdins
97You rely upon each of the limbs or principles stated in the case of R v Verdins[21].
[21] (2009) 16 VR 269.
98Mr Newton excludes any link between your impaired cognitive functioning and your offending. However, your personality problems led to the development of your paraphilic disorder. It developed in this way. Your personality disorder disrupts the way you relate to others. You are anxious about forming relations and avoid intimacy. Nevertheless, you want intimacy and fear being alone will leave you vulnerable to more intense negative consequences. Paraphilia is your answer to this situation through online contact with underage persons. Mr Newton says:
‘In this way, Mr Smith developed a persistent and intense pattern of atypical sexual arousal…which has underpinned his offending and which has caused his distress. This is the hallmark of paraphilia.’
99Whether engaging the Bugmy principle or the first principle in Verdins, your moral culpability is reduced. Your personality disorder is the product of your dreadful early life.
100General deterrence is an important sentencing purpose for your offences. However, the extent of your mental impairment does reduce the level of this purpose. Even so, it remains an important purpose.
101I do not see your mental impairment reducing the importance of specific deterrence for these offences. Your time in custody has been, and will continue, to be very difficult. It should act as a very powerful deterrent to such further offending despite the entrenched nature of your paraphilic disorder. It is important to note Mr Newton assessed your risk of relevant re‑offending as 'high' even though at the time of interview you had been in custody for more than a year. He explained the factors relevant to his risk assessment. These considerations cause no moderation of the purpose of specific deterrence.
102As I have already said, imprisonment will be far more burdensome for you than for someone without your mental impairments. Moreover, your mental health has already and will continue to worsen in custody. With the dominant emotion of anxiety and the profound weakness in your ability to relate to others, both principles 5 and 6 are strongly engaged.
103For completeness, the effect of the observation of the Court in Muldrock v R[22] is subsumed in the comprehensive assessment of your mental impairment identified by the psychologists.
[22] (2011) 244 CLR 120 at [5].
Prospects of rehabilitation
104The assessment of your prospects of rehabilitation is influenced by several factors. First, Mr Newton considers you are a high risk of recidivism. Second, and involved in Mr Newton's assessment, your lack of understanding of the potential effect of your offending upon young children. You assume, incorrectly, they see the world as you do. You continued to offend despite being on bail for similar offending, receiving treatment from two sources and your awareness of the wrongfulness of your conduct.
105On the other hand, you have the very strong support of your adoptive parents, who are now aware of the nature and extent of your offending. Second, you have never been sentenced to a sentence of imprisonment. In assessing your prospects of rehabilitation, there is the very powerful deterrent effect of a lengthy sentence of imprisonment. Whatever your shortcomings, you must realise the law punishes severely this kind of offending. Third, there will be available in prison offence specific treatment delivered by an entity with expertise in the area. It will be an arduous task because of the entrenched nature of your disorder. Fourth, between 17 and 24, you volunteered with the State Emergency Service, stopping because of an increase in the level of your anxiety. This shows your past willingness to continue to work for the safety of the community. Fifth, you are remorseful for your offending. Given your mental impairments, one cannot accurately gauge the extent to which you can translate your remorse into a determination not to re-offending. But it is a positive sign.
106I consider your prospects are reasonably positive. The cause and nature of your disorders have been diagnosed and they are treatable, even though the process will be drawn out.
Delay
107You have remained on remand for more than 16 months. In normal times, this is a long time to spend in custody where the charges are determined at a plea hearing, rather than a trial. The impact of your time in custody has been fully explained in the psychological reports. Your psychological and intellectual states have rendered this time particularly difficult for you.
Disposition
108Despite your counsel’s submission now, and at the sentence indication hearing, a sentence allowing the making of a recognizance release order would be inadequate and I am still unprepared to take that course.
Totality
109The principle of totality is important in your case. Admittedly, this principle is more difficult to apply where there are statutory provisions bearing on sentencing. Notwithstanding the complexity of the principle in the context of these charges, it still has a significant part to play and where the application of principle reaches a point where the Court says enough. I consider that point was reached when the overall head sentence reached 63 months' imprisonment.
110You are now 29. Your intellectual impairment is sufficiently severe to reach the level of a recognised disorder under DSM-5. Although described as mild, the level of severity is described by the psychologists in terms of your cognitive abilities. Comparing you with other offenders I have dealt with over the years, you are functioning at a markedly reduced level. Coupled with your other psychological and personality deficits, your time in custody has been and will continue to be particularly hard. It will be filled with anxiety in an environment where you will be unable to call upon your parents or siblings for help. The punishment of imprisonment is particularly hard on you.
111Normally, there should be some cumulation of the sentences imposed on the charges in the indictments, especially those in indictment ending 706. However, applying the principle, there will be considerable concurrency across the charges in indictment ending 447 and complete concurrency for the charges on ending 706. At the end of the day, I consider a head sentence of 63 months' imprisonment is sufficient punishment for the offending in both indictments and in light of the various sentencing factors.
Non-parole period
112Your counsel extracted passages from two cases in our Court of Appeal in his submission I should impose an 'unusually low' non‑parole period[23]. You are not young even though your intellectual impairment causes you to function at a lower level. Your prospects for rehabilitation are insufficiently strong to stand out as a factor strongly supporting such a disposition. Bound up with those prospects, as Mr Newton points out, is the successful treatment of your psychological conditions will take years to overcome and will be better undertaken in the community than in prison. As I said earlier, general deterrence is a very important sentencing consideration for these offences. Setting an unusually low non-parole period would tend to undermine it. Overall, I am not justified in fixing the sort of non-parole period submitted by your counsel.
[23]DPP v Huby [2019] VSCA 106 and DPP v Snow [2020] VSCA 67.
Sentence
113For indictment ending 447, I will sentence you as follows:
Charge 1, I sentence you to 6 months imprisonment.
Charge 2, I sentence you to 3 months imprisonment.
Charge 3, I sentence you to 20 months imprisonment.
Charge 4, I sentence you to 18 months imprisonment.
Charge 5, I sentence you to 3 months imprisonment.
Charge 6, I sentence you to 42 months imprisonment.
Charge 7, 24 months. On this charge, I have sentenced you as a serious sex offender and will cause that fact to be entered into the records of the Court.
Charge 8, I sentence you to 42 months imprisonment.
Charge 9, I sentence you to 12 months imprisonment.
Charge 10, I sentence you to 10 months imprisonment.
Charge 11, I sentence you to 3 months imprisonment.
Charge 12, I sentence you to 42 months imprisonment.
Charge 13, I sentence you to 24 months imprisonment.
On the charge of committing an indictable offence while on bail – I sentence you to 1 month’s imprisonment.
Purely in the interests of simplicity to achieve the overall result which I have stated, the sentences on Charges 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12 and 13 and the sentence on the summary offence will commence today. The sentence on Charge 8 will commence 21 months after the commencement of the other sentences, that is, 21 months from today.
I will set a non-parole period on the state offences, being 18 months imprisonment.
On indictment ending 706, I sentence you as follows:
Charge 1, I sentence you to 4 months imprisonment.
Charge 2, I sentence you to 4 months imprisonment.
Charge 3, I sentence you to 3 months imprisonment.
Charge 4, I sentence you to 4 months imprisonment.
Charge 5, I sentence you to 4 months imprisonment.
Charge 6, I sentence you to 6 months imprisonment.
Charge 7, I sentence you to 10 months imprisonment.
Each of these sentences commence today.
114The effective sentence is 5 years and 3 months’ imprisonment and I will set a non-parole period of 3 years and 2 months’ imprisonment on both indictment numbers. I declare your 508 days of pre‑sentence detention as time served under my sentences.
Sex Offender Registration Act
115The offences require you to report under the Sex Offenders Registration Act 2004 for the rest of your life.
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