Director of Public Prosecutions v Stewart
[2025] VCC 355
•28 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-23-01495
Indictment No: Pl0574867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KADE STEWART |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2024, 27 November 2024 | |
DATE OF SENTENCE: | 28 March 2025 | |
CASE MAY BE CITED AS: | DPP v Stewart | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 355 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Sexual penetration of a child under the age of 16 – Sexual assault of a child under the age of 16 – Sexual activity in the presence of a child under the age of 16 – Possession of child abuse material – Possession of a drug of dependence – Victims 13 and 14 years old – Standard sentence offences – Aspects of offending conduct not admitted – Sentencing upon judge’s determination of the facts consistent with pleas of guilty – Material of extremely depraved nature – Mid-range offending – Offending of relatively short duration – Early pleas of guilty – Genuine remorse – No criminal history – Social isolation – Deficits in personality functioning and interpersonal adjustment – Moderate to high risk of sexual recidivism – Verdins principle 5 engaged – Reasonably good prospects of rehabilitation – Totality principle – Serious sexual offender
Legislation Cited: Sentencing Act 1991 – Sex Offenders Registration Act 2004
Cases Cited:R v Storey [1998] 1 VR 359 – R v Olbrich (1999) 199 CLR 270 – DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 – Adamson v The Queen (2015) 47 VR 268 – R v G [2009] 1 AC 92 –Talbot (a pseudonym) v The Queen [2016] VSCA 218 – DPP v Toomey [2006] VSCA 90 – R v Sposito (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) – R v MJ [2000] VSCAS 66 – Clarkson v The Queen [2011] 32 VR 361 – McPherson v The Queen [2021] VSCA 53 – DPP v Bright (2006) 163 A Crim R 538 – DPP (Cth) v Watson (2016) 259 A Crim R 327 – DPP (Cth) and DPP v Garside (2016) 50 VR 800 – R v Hutchinson [2018] NSWCCA 152 – R v Cardwell [2021] QCA 112 – R v Verdins (2007) 16 VR 269 – R v Cooper (1998) 103 A Crim R 51 – CD v The Queen [2013] VSCA 95 – Phillips v The Queen (2012) 37 VR 594
Sentence: Total effective sentence of 5 years and 3 months’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Piggott Ms J Robinson | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Allen | Peter Lunt Lawyers |
HIS HONOUR:
1Kade Stewart, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 (Charge 1),[1] one charge of sexual assault of a child under the age of 16 (Charge 2),[2] one charge of sexual activity in the presence of a child under the age of 16 (Charge 3),[3] one charge of possession of child abuse material (Charge 4)[4] and one charge of possession of a drug of dependence (Charge 5).[5]
[1] Contrary to s 49B(1) of the Crimes Act 1958 (‘CA’).
[2] Contrary to s 49D(1) of the CA.
[3] Contrary to s 49F(1) of the CA.
[4] Contrary to s 51G(1) of the CA.
[5] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘DP&CSA’).
2The maximum penalties for these offences are as follows:
Sexual penetration of a child under the age of 16 – 15 years’ imprisonment.[6]
Sexual assault of a child under the age of 16 – 10 years’ imprisonment.[7]
Sexual activity in the presence of a child under the age of 16 – 10 years’ imprisonment.[8]
Possession of child abuse material – 10 years’ imprisonment.[9]
Possession of drug of dependence (in the circumstances of this case) – not more than 5 penalty units.[10]
[6] Pursuant to s 49B(2) of the CA.
[7] Pursuant to s 49D(2) of the CA.
[8] Pursuant to s 49F(2) of the CA.
[9] Pursuant to s 51G(2) of the CA
[10] Pursuant to s 73(1)(a) of the DP&CA. The prosecution accepts the drug of dependence involved in the commission of this offence is not more than a small quantity of cannabis and the offence was not committed for any purpose related to trafficking in cannabis. I sentence you on this basis.
The facts
Background
3You were born in August 1988 and are presently aged 36. At the time of committing these offences you were aged 34. Alannah Therry,[11] the victim in relation to charges 1 and 2, was 14 years old at the time of your offending. The victim in relation to charge 3 is Holly Meyer,[12] who was 13 years old at the time of your offending.
[11] A pseudonym has been used to protect the victim’s identity.
[12] A pseudonym has been used to protect the victim’s identity.
4At approximately 2:00am on 23 January 2024, you met with Alannah and Holly in a park in outer eastern Melbourne. Charges 1, 2 and 3 occurred at this location.
5Your offending came to the victims’ parents’ attention when parents of friends of Alannah and Holly contacted them.
6Your offending was reported to police on 6 March 2023, when Alannah attended the Mordialloc police station with her mother, Irene Therry,[13] to report that a male known to her as ‘Simpson’, had contacted her on 21 January 2023 using the Snapchat platform. ‘Simpson’ is your Snapchat display name, your registered account name is ‘awsomeo’.
The offending
[13] A pseudonym has been used to protect the victim’s identity.
7On 21 January 2023, you added Alannah on Snapchat. One of Alannah’s friends told her to add you. The friend said you were asking the friend to do ‘weird stuff’, so Alannah accepted you.
8You asked Alannah if she would do anything with you. You said, ‘Like come on, I know you want to. Like come on, just do it’. You then said, ‘I’ll pay you whatever you want, I’ll pay you $300’. She asked you, ‘To do what?’ and you said, ‘To suck my dick’. Alannah said ‘no’, and you said to her, ‘I’ll pay you even more’.
9When Alannah added you on 21 January 2023, she asked you how old you were and you replied 30. You asked Alannah how old she was and she told you she was 14 years old. You then said to her, ‘That’s okay, no-one has to know’.
10Alannah told Holly about you and said, ‘We can get money from him if we do this’. Holly added you and you sent her photos of money, hundred dollar notes and vapes saying, ‘I’ll give you this if you do this’. Holly said this was sent to her phone and Alannah’s phone and sometimes you ‘were asking to fuck, sometimes for other things’.
11Alannah also said you sent photos of vapes and money saying, ‘Can you send me your breasts, like show me, like some stuff’. She replied, ‘no thank you’ and you requested for her to ‘just do it’. There was also communication between you and Holly about ages. At first you told Holly you were younger, ‘17 or something, but then he said like 30’. We said, ‘O.K, we’re like 15’.
12There was back and forth electronic communication between you and Alannah. You wanted to meet up. She said she did not want to. You said to Alannah ‘Come on, it be worth it, you’ll get money’. At first she said she didn’t need money and was fine with being broke.
13A couple of days passed and then Holly went over to Alannah’s house. They were sitting in Alannah’s room when you offered to pay her $300 to ‘Suck my dick’. Alannah decided to do it because it was for money. Holly said to do it because it was a lot of money. You asked to meet that night. Holly and Alannah went to the park near Alannah’s house and told you where to meet them. You agreed, saying you would be there soon. You told them, ‘let’s do it somewhere close to your house’. Alannah and Holly left the house sometime between 2:00am and 2:30am.
14They were standing near a tree and met you. You said, ‘Come get in the car, like we’ll go somewhere more private’. Alannah and Holly refused to get in the car. They decided to stay there. You got out of the car and said to them, ‘Are we doing this or what?’ Alannah said to you, ‘You know I’m 14 and she’s 13’ and you said, ‘It’s all good, are you still gonna do it? There’s more money where that came from if were gonna do anything else’. Alannah said, ‘I’m not doing anything else, I don’t even want to do that’. You had brought $200 and said, ‘I’ll pay you $300 to do it … right here, right now’.
15You and Alannah sat on a park bench. Holly waited nearby. You pulled your pants down and placed your penis into Alannah’s mouth. The degree of force you applied to Alannah’s head and the length of time she fellated you are disputed facts on the plea. You did not ejaculate. (Charge 1: Sexual penetration of a child under the age of 16)
16Alannah was wearing a jumper and you had your hand in the neck hole at the front. You then moved your hand to the bottom of her jumper and went underneath and placed your hand on her breast, which Alannah described as being ‘really uncomfortable’. Alannah knocked your hand out and said words to the effect of, ‘no, get off me’. (Charge 2: Sexual assault of a child under the age of 16)
17Holly was present throughout your offending conduct and saw you pull your pants down and push Alannah’s head down. She then saw you put your hand up Alannah’s top. She heard Alannah say, ‘No’. Holly said Alannah ‘kept stopping, doing it again and stopping’. According to Holly, you were pushing Alannah’s head down on your penis. (Charge 3: Sexual activity in the presence of a child under the age of 16)
18You dispute the facts regarding the circumstances of the offending alleged in Charges 1 to 3. In written submissions your counsel submitted that, while by your pleas of guilty you are taken to have admitted guilt of the essential ingredients of the charges, you dispute the evidence of Alannah in relation to the degree of force you used in committing Charge 1 and the duration of the incident represented by Charges 1 to 3. Your counsel submitted I should prefer the version of the facts given by Holly in her VARE.
19The only witnesses who give evidence regarding the disputed issues of facts are Alannah and Holly in their respective VAREs. You made a no comment record of interview, as is your right. No special hearing was conducted and no evidence was given during the plea hearing. The latter was a forensic decision you made. I refer to the significance of this later in these reasons for sentence.
20In her VARE conducted on 6 March 2023,[14] Alannah gave the following account:
[14] Ex P5.
(a) ‘he was forcing me onto it [his penis] and then putting his hands down my shirt.’ (Answer 42)
(b) ‘then he pulled his pants down and … then he forced my head onto it [his penis] … and then he put his hand down my shirt and then – then he was forcing my head back onto it.’ (Answer 49)
(c) ‘He forced my head onto it [his penis] and … I couldn’t pull back ‘cause he was … physically … with all his … power literally forcing me onto it.’ (Answer 52)
(d) ‘So I couldn't - and then he was just holding it [his penis] there and then … he … let go and then I went out and then I got up and then left, and then that's it.’ (Answer 53)
(e) ‘I was wearing a jumper and he … put it down … the neck hole, I guess, [and] then he took it out and then went up … at the bottom of it and then was just … holding my boob, and I’m like, “You know, this is really uncomfortable”.’ (Answer 56)
(f) ‘and then I knocked his hand out and I'm like, "No, get off me." And then - yeah, then I got up and left.’ (Answer 57)
(g) The acts lasted for ‘probably about … two minutes’. (Answer 139)
(h) ‘He just forced my head onto his dick, into my mouth.’ (Answer 142)
(i) 'And then he was … pulling my hair back and forth … cause I had it in … a ponytail … then he was … pulling it back and forth and I'm like, "Oh, whoa." And then we stopped and then I just walked off.’ (Answer 143)
(j) He did not ejaculate. (Answer 145)
(k) It lasted for two minutes. (Answer 146)
21During her VARE, Alannah drew a diagram showing, inter alia, her location and the locations of you and Holly at a picnic table in the park, where the offending occurred.[15] This appears to be a large picnic table with bench seats on either side. Holly was seated on the opposite side of the table from you and Alannah.
[15] P9.
22In her VARE conducted on 10 March 2023,[16] Holly gave the following account:
(a) ‘Me and Alannah went out one night and we saw a guy that we … talked to over Snapchat and he was a lot older than us, and then we saw him and then … we sucked his dick in the park … and then he gave us money, and then he went back to his car and then he drove off and we went back home.’ (my emphasis) (Answers 8 & 9)
(b) ‘we went up to the park and then we saw his car and then we went up to his car and we said, "Can you get out of … your car?" So he got out and then we convinced him to do it [suck his penis] in the park instead of in his car, and then we … sat down and then Alannah sucked his dick, and then … it was, like, 10 seconds or something, and then … we got the money and then he went back in his car and drove off and then we went back home.’ (Answer 11)
(c) ‘we walked around the corner to the park [from home] and then we saw his car … we went up to his car … And then we told him to get out of the car, so he got out of the car, … and then we was talking to him and … he was like, "Where do you wanna do it?" I think. And then we were like, "Can we do it just down there … at the seats of the park?" And then I don' t know what he said but we ended up doing it there and then I was just sitting … here, and then Simpson was here, and then Alannah was here and then … he' s pulled down his pants. She [Alannah] started sucking his dick and then … he … tried to put his hands up her top but then Alannah said no, and then when she stopped we said, "Can we have the money now?" So he gave us the money and then he got in his car and then drove off and then we went back home.’ (Answer 46)
(d) ‘When … we were at the park, he sat down and then I sat down … on the other side of the seat, and then Alannah was … on her knees or something. And then he pulled down his pants and then just sat there and then Alannah started sucking it [his penis].’ (Answer 67)
(e) ‘So we … went to the park and then went to the seats and I was sitting on the other side of the seat, he was sitting on this other side, Alannah was on her knees. And then he pulled down his pants … Alannah started sucking it, like, five seconds, and then he … tried to put his hands up her top, I'm pretty sure. And then she said no and then, like, five more seconds … and then she stopped and then said … "Can we have the money now?" And then he gave it to us and then he got in his car and then we went home.’ (Answer 69)
(f) ‘He pulled down his pants, Alannah started doing it, and then … I think he was … pushing her head down a bit, and then he's … tried to put his hands up her top but then she said no, and then … she kept … stopping, and then doing it again and stopping. And … then she stopped, he gave us the money …’ (Answer 76)
[16] P6.
23Holly also drew a diagram during her VARE.[17] This shows the arrangement of two picnic tables with bench seats positioned under a ‘metal roof’ adjacent to playground equipment. It does not show the locations of you, Alannah or Holly at the time of the offending.
[17] Ex P10.
24Your counsel submits the two accounts are materially different. On Alannah’s account, the penetration was violent and lasted two minutes. On Holly’s account the penetration involved you pushing Alannah’s ‘head down a bit’ after Alannah had already ‘started sucking’, the acts went for approximately ‘10 seconds’, and Alannah was able to and did stop fellating you after ten seconds.
25You admit Holly’s account in respect of the circumstances of the penetration and the duration of that act. However, you do not admit Alannah’s account.
26Your counsel argued Alannah’s account is aggravating and adverse to your interest in relation to the sentence I impose on Charge 1. Clearly, this is so. The degree of force you applied to Alannah immediately before and during the act of penetration and the length of the offending conduct are both relevant to my assessment of the objective gravity of the offence and the level of your culpability for it.
27Your counsel relied on R v Storey[18] and R v Olbrich[19] to submit that in sentencing an offender, a court may not consider aggravating facts adverse to the person unless they are admitted or have been established beyond reasonable doubt. That is a correct statement of law.[20]
[18] [1998] 1 VR 359 (‘Story’).
[19] (1999) 199 CLR 270 (‘Olbrich’).
[20] See Story 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA); Olbrich 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Cheung v The Queen (2001) 209 CLR 1, 12 [13] (Gleeson CJ, Gummow and Hayne JJ) (‘Cheung’).
28Your counsel further submitted, because a sentencing judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged to sentence upon a view of the facts which is most favourable to the offender. That is also a correct statement of law, so far as it goes.[21] However, in finding the sentencing facts, where they are not agreed, as in this case, I am required to make findings of fact based on the evidence, applying the burden and onus of proof discussed above. It is not an unqualified proposition of law that I am obliged to sentence you upon the facts most favourable to you consistent with your pleas of guilty.[22]
[21] See R v Isaacs (1997) 41 NSWLR 374, 377–378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) (‘Isaacs’) quoted with approval in Cheung 12–13 [14] (Gleeson CJ, Gummow and Hayne JJ), 54–55 [170] (Callinan J).
[22] See Savvas v The Queen (1995) 183 CLR 1, 8 (Deane, Toohey, Gaudron and McHugh JJ); Isaacs 380; Cheung 10–15 [7]–[20], 19 [36], 19 [38], 25 [56] (Gleeson CJ, Gummow and Hayne JJ), 35–36 [101]–[103], 36 [105], 45–46 [136] (Kirby J), 52–53 [162]–[166] (Callinan J); Filippou v The Queen (2015) 256 CLR 47, 72 [70] (French CJ, Bell, Keane and Nettle JJ); Chiro v The Queen (2017) 260 CLR 425, 451 [52] (Keifel, Keane and Nettle JJ), 456 [70], 458 [74] (Bell J), 460–465 [83]–[92], 469–470 [104]–[105] (Edelman J, dissenting in the result).
29The prosecution submitted I should accept Alannah’s account on the basis her version of events is ‘subjective’ while Holly’s is ‘objective’. The prosecution further submitted Holly’s version is based on her observation from a distance in the dark. Moreover, as an observer, in the dark, Holly cannot describe the physical sensation experienced by Alannah. The prosecution argued that, whereas Holly is not specifically asked about you pushing Alannah’s head down, Alannah’s description occurs over several answers during her VARE, where she describes how she physically felt and then is asked to elaborate on the degree of force you applied.
30No special hearing was conducted in relation to either Alannah or Holly and your counsel did not seek to have either or both of them appear for the purposes of cross-examination during the plea hearing. Accordingly, Alannah has never had it put to her that her version of events is exaggerated or embellished or otherwise overstated or incorrect. Nor has Holly’s version of events been tested in cross-examination or re-examination.
31Alannah has not had the opportunity to confront your challenges to her evidence. This is unfair to her, and I do not have the benefit of seeing and assessing her reaction to those challenges. Moreover, I have not had the opportunity to assess Holly as a witness. These circumstances make it more difficult for me to make a finding in your favour.[23]
[23] See Browne v Dunn (1893) 6 R 67, 70–71 (Lord Herschell); MWJ v The Queen (2005) 80 ALJR 329, 333 (Gleeson and Heydon JJ).
32I have viewed Alannah’s VARE conducted on 6 March 2023[24] and Holly’s VARE conducted on 10 March 2023.[25] Holly’s VARE conducted on 24 May 2023[26] is not relevant for present purposes.
[24] Ex P5.
[25] Ex P6.
[26] Ex P7.
33I prefer Alannah’s evidence in relation to the degree of force used and the duration of the offending conduct constituting Charges 1, 2 and 3. In her VARE, Alannah appeared to me to be mature and gave confident and detailed answers. On the other hand, I found Holly to be unimpressive in her VARE. This may be owing to her immaturity. I also accept the prosecution submission that because the offending constituted by Charges 1 and 2 was happening to Alannah, her evidence regarding the force you applied to her and the duration of the offences is likely to be more accurate than Holly’s observation made from some distance and in the dark.
34Accordingly, I am satisfied beyond reasonable doubt, based on the totality of the evidence, that the facts in relation to Charges 1, 2 and 3 are as stated by Alannah.
35After your offending, Alannah got up and left. You asked her if she wanted the money. As Alannah was already away from you Holly took the money. You gave her cash. In her VARE, Holly stated Alannah asked you for the money and you gave her $300. There were three $100 notes. You then got in your car and left. They waited until you had left before walking back to Alannah’s house.
Arrest and interview
36You were identified through Snapchat enquiries which linked your mobile phone number to the account ‘awsomeo’ and also through your motor vehicle registration number that was provided by the victims to investigators.
37You were arrested on 16 March 2021. A search of your motor vehicle and home located a black Apple iPhone 14 in a black case and an Apple MacBook Pro.
38A zip lock bag containing green vegetable matter weighing approximately 10 grams was located in your home. (Charge 5: Possession of drug of dependence)
39You were conveyed to the Bayside police station where you provided a ‘no comment’ record of interview, as is your right.
40After reviewing images and videos stored on your devices, police produced reports using the Interpol baseline child abuse material categorization scheme and digital forensic software. Child abuse material comprising 53 images was found on your Apple iPhone 14 and 4 images and 2 videos were located on your Apple MacBook Pro. A summary of the nature of those images and a general description of what they depict is detailed in footnotes 46 and 47 on page 10 of the Amended Summary of Prosecution Opening for Plea dated 1 August 2024. Most images and all the videos fall within CAM Category 2, with only two images falling into CAM Category 1.
41On 6 August 2024, I viewed these images and videos in my chambers with the consent of the parties. I did this because I considered it was necessary for me to do so in order to appreciate the true nature of the material and to form an opinion regarding its degree of depravity.[27] The material includes very disturbing images of different pre-pubescent and adolescent female children, some clearly under 13 years of age, fellating erect adult penises, engaging in penile/vaginal penetration with adults, placing objects in their vaginas and two images depicting semi-naked female children with bondage paraphernalia.
[27] See eg R v Jongsma (2004) 150 A Crim R 386, 404 [35] (Batt JA, Eames JA and Gillard AJA relevantly agreeing); Smit v State of Western Australia [2011] WASCA 124, [17] (McLure P, Pullin JA and Mazza J agreeing); R v Porte (2015) 252 A Crim R 294, 310-11 [76], 316–17 [114] (Johnson J, Leeming JA and Beech-Jones J agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [22] (Tate JA, Sifris AJA agreeing); DPP (Cth) v Zarb (2014) 46 VR 832, 842–3, [30] (Neave and Kyrou) (‘Zarb’); R v Leeuw [2015] NSWCCA 183, [86] (Johnson J, Ward JA and Garling J); Kenworthy v The Queen [No 2] [2016] WASCA 207, [138]–[139] (Buss P, Mazza and Mitchell JJA); R v Turvey (2017) 127 SASR 425, 455–6 [141]–[142] (Hinton J, Nicholson and Lovell JJ agreeing); R v Johnston [2020] ACTSC 46, [19]–[23] (Mossop J). Compare Zarb 853–4, [73] (Priest JA dissenting) and R v Hutchinson [2018] NSWCCA 152, [47]–[50] (R A Hulme J, Meagher JA and Button J agreeing).
42I am aware of the need for me to retain my objectivity and sense of proportion. Nonetheless, I find the degree of depravity of a significant volume of this material is very high. One can barely imagine the trauma the innocent children must have gone through in the creation of these images and the lasting adverse effects this is likely to have had on them.
Victim impact
43Victim impact statements (VIS) prepared by Alannah Therry and Irene Therry, Alannah’s mother, were tendered at the plea hearing by the prosecutor. No VIS was tendered in relation to Holly Meyer. Nonetheless, the Victorian Court of Appeal has made clear there is a presumption of harm to children who are exposed to premature sexual activity and that long lasting physical and psychological harm is to be assumed.[28]
[28] Clarkson v The Queen (2011) 32 VR 361, 371 [33] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (‘Clarkson’).
44In her VIS, Alannah describes the devasting impact your offending has had on her sense of self-esteem and mental health and her fears you would find out where she lives or attend her school and reoffend against her. She feels embarrassed, disgusted and ‘dirty’ regarding what occurred, so much so this has significantly affected her performance at school, her enjoyment of sporting activities and her ability to socialise.
45Alannah’s mental health has deteriorated to the point of her experiencing severe anxiety and distress, suicidal ideation and engaging in self-harming behaviour. She has severely cut her legs and arms on many occasions Your offending has seriously affected her sleeping and eating habits, leading to her becoming short-tempered. It has also adversely affected Alannah’s relationship with her father to the extent she is now estranged from him. This is because she feels so ashamed.
46Ms Therry was devastated when she learnt of the crimes you perpetrated against her daughter. She is disgusted and horrified by the nature of the crimes and distressed by the harm done to Alannah. The violation of Alannah’s innocence is something Ms Therry still struggles to deal with every day and it is a constant source of emotional pain in her life. She is devastated watching her child in so much pain and she feels powerless to help her.
47Ms Therry is plagued by guilt that she was unable to keep her child safe and lives with that feeling daily. Alannah requires so much additional support that she is unable to give her full attention to her other children, who also have been severely impacted by Alannah’s mental health conditions. Ms Therry has taken 70 days’ leave from work to care for Alannah over the past 15 months. This impacted her ability to seek promotions at her previous employment, and is a constant threat to her retaining her current employment.
48She feels her family is forever changed by your violation of Alannah and she struggles to deal with this, so much so she has needed to seek counselling and mental health support, including medications for anxiety, depression and to help her sleep.
49I am mindful of the observations of the Victorian Court of Appeal in DPP v Dalgliesh (a pseudonym):[29]
… as this Court explained in Clarkson v The Queen,[30] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.
[29] [2016] VSCA 148 [47] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh [No. 1]’).
[30] Clarkson 364 [3].
50In Adamson v The Queen,[31] the Victorian Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G[32] where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[31] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[32] [2009] 1 AC 92, 108–109 [48]–[49]. See also Clarkson 370–371 [32].
51The Victorian Court of Appeal has also reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a pseudonym) v The Queen[33] the Court approved the statement of Vincent JA in DPP v Toomey[34] concerning the notion of social rehabilitation, where his Honour said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[35]
[33] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[34] [2006] VSCA 90.
[35] Ibid [22]. See also DPP v DDJ (2009) 22 VR 444, 454 [40] (Maxwell P, Vincent and Neave JJA) and Pitt (a pseudonym) v The Queen [2020] VSCA 73 [52] (Priest and Weinberg JJA).
52On behalf of the Victorian Community, I denounce your criminal offending towards Alannah and Holly in the strongest terms and I take into account the impacts of your crimes on Alannah, Holly and Ms Therry in sentencing you. Clearly, your offending has had a profoundly traumatic effect upon Alannah and her family, in particular.
Offence seriousness
53Sexual penetration of a child under the age of 16 years is a very serious criminal offence carrying a maximum penalty of 15 years’ imprisonment. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence[36] and ‘reflects the community’s abhorrence of sexual crimes against children.’[37]
[36] See eg Nguyen v The Queen (2016) 311 FLR 289, 332 [146] (Redlich JA, Tate and Whelan JJA agreeing); Dalgliesh No.1 [126].
[37] Dalgliesh No.1 [78], [123], [126]; DPP v Charlie Dalgliesh (a pseudonym) (2017) 271 A Crim R 1, 16 [75] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh No. 2’).
54Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[38] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large.[39] As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[40] put it in R v MJ:[41] ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.’[42] I accept there is no suggestion either complainant was under your care at the time you committed the present offences, however, in my view, this statement is nonetheless apposite in this case.
[38] DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh HCA’).
[39] See eg R v Wayland (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) (‘Sposito’) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing) (‘Ware’); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing) (‘Wakime’); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing) (‘OJA’); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DDJ 453–54 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 310 [83] (Priest JA, Maxwell P and Whelan JA agreeing); Sutton (a pseudonym) v The Queen [2015] VSCA 251, [25]–[28] (Maxwell P and Redlich JA).
[40] Sposito 4.
[41] [2000] VSCA 66.
[42] Ibid [17]. See also DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA).
55In Clarkson v The Queen,[43] the Victorian Court of Appeal held that under the legislative scheme, a child under 16 cannot consent to sexual penetration. This prohibition has two purposes: protecting the child from harm that can come from premature sexual activity; and deterring adults who would contemplate having sex with someone under the age of 16. The prohibition is founded on a presumption that premature sexual activity will cause long term physical and psychological harm and is unaffected by the presence of apparent consent.
[43] [2011] 32 VR 361.
56Moreover, sexual penetration of a child under the age of 16, sexual assault of a child under 16 and sexual activity in the presence of a child under 16 years are standard sentence offences.[44] The standard sentence fixed for sexual penetration of a child under 16 years is imprisonment for six years.[45] The standard sentence fixed for sexual assault of a child under 16 years is imprisonment for four years[46] and the standard sentence fixed for sexual activity in the presence of a child under 16 years is imprisonment for 4 years.[47]
[44] Sentencing Act 1991 (‘SA’) s 5A(1); CA s 49B(3), CA s 49D(1) and CA s 49F .
[45] CA s 49B(3).
[46] CA s 49D(2A).
[47] CA s 49F(2A).
57Accordingly, in sentencing you for these offences, I must have regard to the relevant standard sentence[48] which ‘is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.’[49] This is a matter I must have regard to as one of the factors relevant to the sentences I impose on you.[50] However, the standard sentence is just another factor to consider, it is not determinative and does not interrupt the operation of my instinctive synthesis.[51] In fact, the relevant legislation specifically approves the instinctive synthesis approach to sentencing.[52] The standard sentence is to be treated as a ‘legislative guidepost’, as is the maximum penalty.[53]
[48] SA s 5(2)(ab).
[49] SA s 5A(1)(b).
[50] SA s 5B(2)(a).
[51] Brown v The Queen (2019) 59 VR 462, 464 [4], (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).
[52] SA s 5B(3)(b).
[53] Brown 464 [4], 479 [55]–[57] (applying Muldrock v The Queen (2011) 244 CLR 120, 132 [27] ((French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
58Recently, the Victorian Court of Appeal in McPherson v The Queen,[54] in the context of a charge of sexual penetration of a child aged under 12, observed:
Before concluding we should mention the difficult task with which sentencing judges are confronted when considering the standard sentence for this type of offending. The standard sentence is designed to represent a ‘mid-range’ example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional ‘mid-range’ very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless — it must be given its place in the sentencing calculus — but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less.[55]
[54] [2021] VSCA 53.
[55] Ibid [31] (Priest and T Forrest JJA).
59In determining an appropriate sentence, I must take into account the objective gravity of your offending conduct as well as your moral culpability for it. As Redlich JA, with whom Chernov and Vincent JJA agreed, observed in DPP v Bright:[56]
The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime.[57]
[56] (2006) 163 A Crim R 538.
[57] Ibid 543 (citations omitted).
60Your offending conduct was accurately described by your counsel at the plea hearing as inherently serious, reprehensible and abhorrent. Charge 1 is a particularly heinous offence because it involved penetration of the victim’s mouth with your penis. Moreover, while sexual penetration of a child is in itself an act of violence, a degree of force was used when you pulled the victims head back and forth to the extent she could not pull her head back.
61I accept the prosecution submissions in relation to your offending the subject of Charges 1, 2 and 3, that both victims were particularly vulnerable because the offending occurred in the early hours of the morning in a relatively remote location. Moreover, there was a large age gap, of about 20 years, between you and the victims and you were aware they were aged only 14 and 13 at the time of your offending. You also attempted to disguise your age from the victims, telling Alannah you were 30 years old and initially telling Holly online you were 17 before telling her you were in your 30’s.
62Your offending is aggravated by the fact it was deliberate and premeditated. You sent sexualised messages to the victims and encouraged them over the course of a number of days to meet you for sex. You induced the victims to submit to your offending conduct by offering them money and vapes in return for sex.
63Nonetheless, I accept the offending in relation to Charges 1 to 3 was of relatively short duration, occurring over the course of about two minutes.
64So far as Charge 4 is concerned, offences involving the possession of child abuse material are inherently serious and are considered especially grave by both the courts and the legislature.[58] As the plurality in the Director of Public Prosecutions (Cth) v Watson[59] stated, the legislature’s continuing response to such offending is of particular significance[60] and reflects the legislature’s recognition ‘that the Internet is creating ever greater demands for new material of ever greater levels of depravity and corruption.’[61]
[58] See eg DPP (Cth) and DPP v Garside (2016) 50 VR 800 (Redlich and Beach JJA) (‘Garside’).
[59] (2016) 259 A Crim R 327 (‘Watson’).
[60] Watson 341 [30] (Redlich and Beach JJA).
[61] Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth), 81. See Garside 808 [19]; Watson 341 [29].
65The ready availability of child abuse material has warranted substantial penalties and the authorities establish that general deterrence and denunciation are paramount sentencing considerations.[62] ‘The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence’.[63]
[62] R v Porte (2015) 252 A Crim R 294, 307 [59] (Johnson J, Leeming JA and Beech-Jones J agreeing) (‘Porte’). See also DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA, Redlich JA and Williams AJA agreeing) (‘D’Alessandro’); Edwards v The Queen [2013] VSCA 188 [22] (Osborn JA, Nettle and Coghlan JJA agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [40] (Tate JA, Sifris AJA agreeing); Garside 808–809 [19]–[21].
[63] Fitzgerald v The Queen [2015] NSWCCA 266 [33]. (Hoeben CJ at CL, Price and Button JJ agreeing).
66It is well established that in cases such as the present, ordinarily a term of imprisonment will be imposed. In DPP (Cth) and DPP v Garside,[64] Redlich and Beach JJA observed:
The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation, is grave. It must ordinarily be the subject of substantial punishment.[65]
[64] (2016) 50 VR 800
[65] Garside 809 [22] (citations omitted).
67Later their Honours said:
What is clear from all the authorities is that access to child pornography[66] is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of imprisonment will ordinarily be expected for such offending.[67]
[66] ‘Child pornography material’ was the term previously used in legislation to describe what is now termed ‘child abuse material’.
[67] Garside 819 [62].
68The other general sentencing principles applicable to offending of this nature have been summarised as follows:
1 Limited weight is to be given to an offender’s prior good character.
2Offending involving child abuse material occurs on an international level and is becoming increasingly prevalent.
3Offending of this nature is difficult to detect given the degree of anonymity afforded by the internet.
4Possession of child abuse material creates a market for the continued corruption and exploitation of children.
5There is a paramount public interest objective in promoting the protection of children as possession of child abuse material is not a victimless crime.
6The fact an offender does not pay to access or was not involved in the distribution or sale of child pornography does not mitigate the offending.[68]
[68] R v De Leeuw [2015] NSWCCA 183 [72] (Johnson J, Ward JA and Garling J agreeing) (citations omitted).
69In R v Hutchinson,[69] R A Hulme J, with whom Meagher JA and Button J agreed, set out a revision of ‘the list of factors that may bear upon the assessment of the objective seriousness of offences concerning child pornography and child abuse material provided in Minehan v R.’[70] This revised list is as follows:
[69] [2018] NSWCCA 152.
[70] (2010) 201 A Crim R 243.
1.Whether actual children were used in the creation of the material.
2.The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3.The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4.The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5.In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination.
6.In a case of dissemination or transmission, the number of persons to whom the material was disseminated or transmitted.
7.Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination or transmission.
8.The proximity of the offender’s activities to those responsible for bringing the material into existence.
9.The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
10.The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
11.Whether the offender acted alone or in a collaborative network of like-minded persons.
12.Any risk of the material being seen or acquired by vulnerable persons, particularly children.
13.Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
14.Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.[71]
[71] [2018] NSWCCA 152 [45]. See also DPP v Smith [2010] VSCA 215 [23] (Nettle JA, Harper and Hansen JJA agreeing) (‘Smith’), approved and extended to offences of accessing and transmitting child abuse material in Zarb 842 [27] (Neave and Kyrou JJA).
70Your offending conduct in relation to Charge 4 is objectively very serious and the extreme moral depravity of your offending conduct cannot be overstated.
71In written submissions, your counsel accurately described the material involved as ‘highly depraved and disturbing’. Your counsel submitted the number of files possessed was relatively low by comparison to other cases. However, the quality of the material rather than the quantity will often be more determinative of the level of gravity. As Sofronoff P observed in R v Cardwell,[72] ‘the greater the cruelty, degradation and corruption depicted and the more the material offends against community values, the more reprehensible the offending conduct’.[73] The material you possessed included a video and images of penetrative sex between adult males and pre-pubescent and adolescent female children.
[72] [2021] QCA 112.
[73] Ibid [22] (Sofronoff P, Mullins JA and Bradley J agreeing) citing R v Vantoosten [2009] QCA 54 [19] (Muir JA).
72Nonetheless, I accept your counsel’s submission there is no suggestion you possessed the material for sale or further distribution nor is there any allegation you intended to profit from any of the material possessed. Moreover, Charge 4 is a single-date offence, concerning your possession of the material on 16 March 2023.
73I consider your offending conduct in relation to Charges 1, 2, 3 and 4 falls in the mid-range of offence seriousness. Overall, I assess your moral culpability as high. Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you.
Personal circumstances
74Two psychological reports, a treatment letter and a medical report were provided to the Court, which I have had regard to in sentencing you.
75You were assessed on 26 June 2024 by Patrick Newton, a psychologist engaged by your legal representatives, who prepared a ‘Confidential Psychological Assessment’ report dated 19 July 2024, which was tendered at the plea hearing by your counsel.[74]
[74] Ex D2.
76A treatment report prepared by your treating psychologist, Daria Sizenko, dated 24 June 2024, was also tendered by your counsel at the plea hearing,[75] together with a medical report prepared by your treating doctor, Dr Zeeshan Siddiqui, dated 28 March 2024.[76] A further treatment letter prepared by Ms Sizenko, dated 22 November 2024, was also tendered by your counsel at the further plea hearing.[77]
[75] Ex D3.
[76] Ex D4.
[77] Ex D12.
77You are 35 years old. You are the youngest of three children. You have one brother who is 12 years older than you and a sister who is eight years older.
78You grew up in Baxter and described your early years as having been ‘a good childhood’ spent in a loving and supportive family. Your father worked as a site manager for a building company and your mother as a hospital theatre technician. Your parents’ relationship was harmonious and free from serious conflict. You reported to Mr Newton discipline within your family was consistent and fair, noting that if anything, you were ‘probably spoiled as a child’. You remain on good terms with your parents and siblings. You have never lived with an intimate partner and, at the time of your assessment, you were residing with your parents.
79You attended Baxter primary school where you were a good student who progressed through grades without repeating. You then went to Bayside Christian College for your secondary schooling. You experienced no significant academic, behavioural or disciplinary problems whilst there. As your secondary school progressed, you felt more and more on the outside of social groups, struggling to connect and form friendships. While you described school as ‘a bit of a struggle’, you successfully completed Year 12 studies.
80After a brief period working as a shop assistant, you undertook an electrical apprenticeship. You have worked as an electrician since, working primarily as a sub-contractor/employee electrician, but also running your own business after 2018. Mr Newton opined you expressed a strong work ethic and you described your work history as being positive and stable.
81While on bail for the present offending, you had been working within the company for which you contracted previously and where your father also worked. You reported to Mr Newton your employer is fully aware of your offending and they are supportive.
Relationship history and sexual development
82Your sexual development proceeded without incident. You were not the victim of sexual abuse as a young person and you did not experience unwanted sexual advances.
83You described yourself to Mr Newton as having been a shy young person. While you were attracted to young women from early high school, you found it difficult to initiate contact and felt perpetually lonely. You stated, ‘it was always in the back of my head that I wasn’t good enough for anyone’, a conclusion Mr Newton opined was confirmed each time your tentative advances were rejected. You did not date while you were in secondary school and have never been in a relationship.
84You reported to Mr Newton that from your early twenties you had used a variety of contact apps, such as Tinder, to meet women for sexual liaisons. You commented you were ‘not that successful at it’ and so progressed to using social media apps such as Snapchat in your search for sexual contact. You said after exchanging brief pleasantries you would progress rapidly to sexualised chats with women you met on these apps. You estimated in about 5% of cases the women would be interested in a sexual encounter. You noted, with the exception of sex workers, your sexual encounters had uniformly taken place in these contexts. None of these liaisons progressed to becoming a relationship.
Pornography
85Your main sexual outlet since your teens has been masturbation to online pornography. You commenced this practice towards the end of high school. You described an obsessional engagement with pornography to Mr Newton. You told him you frequented ‘mainstream’ freely available websites several times a week, with more intense use taking place during times of boredom, stress or loneliness. While you described some hypersexuality, you reported this was rare.
86You told Mr Newton you were most attracted to amateur and realistic depictions of sex, conversely, you avoided material that involved force or any impression of violence. Within these parameters, you acknowledged you had ‘tended to view younger looking women’ and you had increasingly focused on the ‘teen’ sections of websites. From such sections you followed links to other sites which exposed you to depictions of CAM. You reported you found this material ‘intriguing’ and said you subsequently returned to view further CAM involving underage participants. You acknowledged you would masturbate to this material, developing sexual fantasies based on the scenarios depicted in the material.
87During your assessments with Ms Sizenko, you reported stumbling across the CAM images whilst looking at adult pornography. You reiterated typically viewing adult materials containing 18 to 19 year olds, reflecting this likely would have placed you at a higher risk of exposure to illicit materials containing underage teenagers. Ms Sizenko opines you have some understanding that the materials were ‘not okay’. You told Ms Sizenko you were frequently engaged with adult pornography but started to become bored with it and turned to CAM as being ‘something different’.
Mental health
88Prior to being charged with the present offences, you experienced long-standing social anxiety and poor self-esteem arising from your social difficulties at school. Mr Newton notes you have been a socially isolated man with few connections beyond your family and limited participation in recreational pursuits involving other people.
89You told Mr Newton the 45 days you spent initially on remand for these matters were challenging; with your mental health suffering. You had particular difficulties managing your interactions with other prisoners. You felt constantly on edge and struggled to adjust to prison routines. You expressed considerable anxiety about the prospect of returning to prison, in particular regarding your physical safety. You described predominantly physical symptoms of distress, including generalised malaise, nausea and tension. You also noted you experienced some suicidal ideation.
90In her report, dated 24 June 2024, Ms Sizenko noted you continued to struggle with anxiety surrounding court proceedings for the present offences, how you would cope with incarceration and overall concern for your future. You denied the presence of any suicidal thoughts but experienced recurring feelings of hopelessness. Ms Sizenko opined that over the course of your 25 sessions with her you continued to demonstrate improvements with emotional resilience but you often continued to rely on distractions to regulate stronger feelings.
91Mr Newton observed you displayed noteworthy symptoms of anxiety and you ‘seemed unsettled and mildly agitated for much of [the] interview’. He opines several key causes can be identified for your anxiety. At the most fundamental level, you experience widespread and persistent social anxiety. You are tense and unsure of yourself in novel social situations and find it difficult to deal with challenging interpersonal situations. In Mr Newton’s opinion, ‘More broadly, the operation of entrenched personality vulnerabilities … underpins [your] social anxiety’.
92Mr Newton identified the present court proceedings as a further cause of your anxiety. He noted you were under no illusions about the gravity of your situation and you recognised you will almost certainly face significant further time in prison. More generally, you perceive your future prospects in life in bleak and pessimistic terms.
93Mr Newton opined, in combination these worries result in a level of anxiety well in excess of that normally evident in individuals assessed in such situations. This reflects a combination of both your ‘concrete’ approach to managing problems and your persisting personality vulnerabilities. Of additional concern, you reported noteworthy suicidal ideation on each test Mr Newton administered, but you explicitly denied any active intent to act upon these thoughts.
94Diagnostically, Mr Newton opines your symptoms are sufficiently severe to meet DSM-5 diagnostic criteria for an adjustment disorder with anxiety.
95In the treatment letter dated 22 November 2024, Ms Sizenko confirms you attended two further treatment sessions since you were remanded in custody on 2 August 2024. You reported ongoing anxiety surrounding the present court proceedings and concern regarding your future, however, you were hopeful you would be able to feel more settled once sentenced. You reported no suicidal thoughts or ideations.
Cognitive functioning
96Mr Newton opines your thought processes are not disordered. You are not psychotic and both your reality testing and your moral reasoning are intact. He estimates you are of normal intelligence. Mr Newton notes, while you impress as a ‘concrete’ thinker, your capacity for judgement and insight is normal.
Personality adjustment
97You are introverted and socially awkward. While you are of normal intelligence, your social skills remain underdeveloped as a result of the combination of the absence of experience in intimate relationships on the one hand, and your compensatory immersion in the dysfunctional worlds of online pornography and commercialised sexual liaisons on the other. Mr Newton opines these aspects of your personality are maladaptive and strongly developed. They have been part of your orientation since childhood and have remained essentially unchanged across adolescence and into adulthood.
98Accordingly, Mr Newton opines you suffer significant deficits in your personality functioning. While falling short of the severity needed to warrant the diagnosis of a personality disorder, these maladaptive traits have nevertheless had a persistent and adverse impact on your interpersonal and social adjustment as well as upon your identity formation. Diagnostically, Mr Newton opines these features of your personality are prominent traits of avoidant personality disorder.
Sexual adjustment
99Mr Newton identified a number of problematic aspects to your sexual adjustment, which are largely derived from your problematic personality traits. While you described yourself as being preferentially attracted to adult women, during your assessment it was clear you extend this term to include underage females. You acknowledged a strong sexual response to underage females, observing you had viewed pornography depicting them. You not only actively searched for this material but also masturbated to this content, generating deviant fantasies in the process. In this regard, you acknowledge openly you experience a similar level of sexual arousal to CAM as you do to pornography depicting adults.
100Mr Newton observed you had some difficulty discussing matters connected to consent. While you were able to correctly state the age of consent and you recognised your conduct was wrong, it was also evident from your discussions with Mr Newton and from your interactions with the victims that you ‘attributed a precocious sexuality to underage people’. Moreover, you admitted you were willing to ignore the victims’ age despite your explicit awareness of it.
101According to Mr Newton, you lack an awareness of the impact of the power imbalance between you, as an adult, and the victims, as underaged people, would have upon their capacity to give voluntarily consent, or of the impacts of your offering of money to the victims to obtain their compliance with your sexual desires.
102More generally, your problematic interpersonal adjustment and the maladaptive personality traits which underpin it, have meant you have found the prospect of sexual intimacy with younger people less confronting than with mature adults. Mr Newton opines, not only did the power imbalance between you and much younger victims make it possible for you to overcome your social anxiety, but by using the internet as the modality of first approach, with the added inducement of offering money to obtain their compliance, you were able to feel sufficiently in control to risk engaging with them.
Application of Verdins principles
103Your counsel submitted Verdins principles 5 and 6 are engaged in your case.[78] He based this submission on Mr Newton’s diagnosis of adjustment disorder with anxiety and entrenched personality vulnerabilities and his opinion that:
in the context of a return to prison it is likely that Mr Stewart’s mental state will deteriorate significantly: not only does he already suffer moderately intense anxiety, but the aversive nature of his previous incarceration, his social-skills deficits and maladaptive personality traits, and the nature of the offences to which he is pleading would all combine to render him a vulnerable prisoner. ... [these] factors … are likely to mean that his experience of incarceration would be rather more onerous than is typical.
In light of such considerations, there would be a strong likelihood that Mr Stewart’s mental state would deteriorate, while his manifest anxiety and awkward presentation would be prone to inspire ‘negative attention’ from other inmates …
It would seem to be fair comment to suggest that in combination these factors would lead to an increase in the burden of imprisonment for Mr Stewart relative to a ‘typical’ prisoner who did not face his particular challenges.
[78] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
104I accept Verdins principle 5 is engaged in your case. The prosecutor fairly accepted this is so. However, I am not satisfied Verdins principle 6 is engaged. This principle requires there be ‘a serious risk of imprisonment having a significantly adverse effect on the offender’s mental health’ for this consideration ‘to mitigate punishment’.[79] You have engaged in two treatment sessions with Ms Sizenko since your remand on 2 August 2024. You reported to Ms Sizenko that you have not experienced any suicidal thoughts or ideation. Moreover, at the further plea hearing your counsel advised you are working five days a week from 9am to 3pm packing plumbing materials in the industry section of the prison. I consider these recent circumstances and Ms Sizenko’s opinion provided after you were remanded in custody should be given greater weight than Mr Newton’s opinion regarding your hypothetical future mental state.
Substance use
[79] Verdins 276 [32(6)] (emphasis added).
105You told Mr Newton you believe you do not have a drug problem or require drug treatment. You used cocaine twice when you were in your mid-twenties but not since then. You have used cannabis very rarely. You have never had any problem with your use of alcohol and you have not drunk alcohol for at least twelve months.
Risk assessment
106Mr Newton conducted a comprehensive review of your risk of reoffending and concluded you have a moderate-high risk of sexual recidivism. Beyond the nature of your offending conduct itself, he opined your most important risk factors are your pervasive social problems (in both intimate and non-intimate contexts), the markers of deviant arousal patterns and your generally limited insight.
107In Mr Newton’s opinion, given the level of risk extant, referral to offence-specific treatment is unequivocally appropriate. He recommends this would ideally take place in a group setting to allow for greater interpersonal focus and more robust challenge and commence as soon as practicable.
108In light of your moderate to high risk of sexual recidivism I must give significant weight to specific deterrence and protection of community in sentencing you for these offences.
Mitigating circumstances
109You indicated your intention to plead guilty to the present charges on 2 August 2023 at a committal mention. I accept your pleas are entered at the earliest reasonable opportunity. The prosecutor accepted these are early pleas. Importantly, you have saved the victims the trauma of having to give evidence in court. Your pleas also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
Remorse
110I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct. As Winneke P observed in R v Cooper:[80]
[a] distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds [himself].[81]
[80] (1998) 103 A Crim R 51 (‘Cooper’).
[81] Cooper 55 (Tadgell JA agreeing). See also Raptis v The Queen (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).
111True remorse is a question of fact and is determined on the balance of probabilities.[82] An offender must satisfy the court that there is ‘genuine penitence and contrition and a desire to atone’.[83] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[84]
[82] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .
[83] Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
[84] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
112In CD v The Queen,[85] Harper JA, with whom Buchanan JA agreed, quoted his earlier observations in Phillips v The Queen,[86] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[87]
[85] [2013] VSCA 95 [36].
[86] (2012) 37 VR 594.
[87] Ibid [101].
113You expressed some remorse to Mr Newton when you said:
Honestly, I feel terrible, after many sessions with Daria, I’ve become aware how much my actions have hurt other people and it makes me feel sick. I’ve caused a lot of pain and suffering not only to my victims and their families but every day I see the pain and disappointment that I have caused to my own family. It was never my intention to hurt anyone.
114Ms Sizenko noted you reiterated experiencing significant feelings of guilt or shame surrounding your offending behaviours and you did not attempt to minimise or justify your offending.
115Your older brother, Brad Stewart, in his letter of support writes that he believes you know what you did is wrong, and that you are sorry and remorseful to the victims. He writes you have expressed to him you are remorseful about your actions and the effects it has had on the young victims and you feel guilty and ashamed of your actions.
116Your older sister, Kelly Brockhouse, in her letter of support writes you told her you are very sorry and remorseful for your actions and you understand the seriousness of your offending.
117However, Mr Newton observed you ‘could discuss the likely effects of these events upon the complainants in only a limited manner’.
118While Mr Newton formed the view your insight into your offending conduct is limited, I have had regard to Ms Sizenko’s comments that you feel ashamed for failing to recognise the harm caused by CAM, and her opinion your insight and reflective abilities are continuing to develop.
119All things considered, I find there is evidence you are remorseful and you are developing insight into your offending conduct. While I am not bound to accept second-hand evidence of what you said during your psychological assessments or to your family and friends,[88] I accept you expressions of remorse are genuine and I will give them weight in sentencing you for these offences.
Rehabilitation
[88] See Barbaro [38].
120You have used your time whilst on remand profitably. I accept you have undergone some rehabilitation with Ms Sizenko, for which you are to be commended. You work in the industry section of the prison five days per week, and you have successfully completed a number of courses as follows:[89]
(a) Certificate I in skills for Vocational Pathways – Participate in workplace safety arrangements;
(b) Certificate II in Applied Digital Technologies – Use business software applications;
(c) Certificate II in Applied Digital Technologies – Operate application software packages; and
(d) Certificate II in Applied Digital Technologies – Operate digital devices.
[89] Ex D11.
121At the time of the further plea hearing, you had also enrolled in a Certificate III in Applied Digital Technologies – Use business software applications.
122You have no criminal history whatsoever. I have also had regard to the four character references tendered on your behalf at the plea.[90] I accept you are a person of otherwise good character. However, as the authorities make clear, limited weight is to be given to this as a mitigating factor.[91]
[90] Exs D6, D7, D8 and D9.
[91] See R v Gent (2005) 162 A Crim R 29, 44 [65] (Johnson J, McClellan CJ at CL and Adams J agreeing); DPP v D’Alessandro (2010) 26 VR 477, 483–484 [21] (Harper JA, Redlich and Williams AJA agreeing); Mouscas v R [2008] NSWCCA 181 [37] (Price J, Allsop P and James J agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [35] (Tate JA, Sifris AJA agreeing); R v Gajjar (2008) 192 A Crim R 76, 81 [29] (Maxwell P, Nettle and Weinberg JJA); Garside [63].
123You are supported by your family, have a good work history and have stable accommodation and employment available to you upon your release from custody.
124I consider your lack of any criminal history, your level of remorse, your family support and the encouraging approach you have adopted to the time you have spent in custody, auger well for your future prospects of rehabilitation.
125Moreover, I recognise you are slowly gaining insight into the seriousness of your offending conduct and the effect it has had on the victims of these insidious crimes. Nonetheless, I also have regard to Mr Newton’s opinion there are ‘persisting problematic aspects’ of your sexual adjustment and you pose a moderate to high risk of sexual recidivism.
126On balance, I assess your prospects of rehabilitation as being reasonably good, if somewhat guarded. Ultimately, much will depend on your successful completion of offence-specific programs whilst you are in custody.
Totality
127The totality principle has a particular role to play in sentencing you for Charges 1, 2 and 3, given the acts the subject of those charges occurred in the course of one continuing episode and there is a substantial overlap between the conduct giving rise to Charges 1 and 2 on the one hand and the conduct giving rise to Charge 3 on the other; albeit there are two victims of your overall offending conduct.[92]
[92] See eg Gordon (a pseudonym) v The Queen [2013] VSCA 343 [74] (Redlich JA) quoted in Patil v The Queen [2020] VSCA 337 [65] (Maxwell P, T Forrest and Weinberg JJA); Berry v The Queen [2019] VSCA 291 [22], [32] (Maxwell p and Niall JA).
Application of sentencing principles
128I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[93] and DPP (Vic) v Dalgliesh (a Pseudonym)[94] and the Victorian Court of Appeal decisions in DPP v Zhuang[95] and DPP (Cth) v Thomas.[96]
[93] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[94] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[95] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[96] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
129While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[97]
[97] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
130Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
131The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
132In sentencing you for these crimes I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
133Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences, other than Charge 5. I also consider I need to give some real weight to specific deterrence. Moreover, for the reasons adumbrated below, I must consider protection of the community as the principal purpose in sentencing you on Charge 3 and Charge 4.
134As I observed earlier, I assess your prospects for rehabilitation as being reasonably good, if somewhat guarded.
135Charges 1 to 4 are ‘sexual offences’ pursuant to Schedule 1 of the Sentencing Act 1991.[98] Accordingly, upon receiving a sentence of imprisonment for Charges 1 and 2, you fall to be sentenced as a ‘serious sexual offender’ on Charges 3 and 4.[99]
[98] See SA s 6B(1) and Schedule 1, clauses 1(a)(va), 1(a)(vii), 1(a)(viia) and 1(a)(xvihc), respectively.
[99] SA s 6B(2).
136By reason of your status as a serious offender, in sentencing you on Charge 3 and Charge 4 I must regard the protection of the community from you as the principal purpose for which each sentence is imposed.[100] The prosecution did not submit that objectively disproportionate sentences was called for in this case.[101]
[100] SA s 6D(a).
[101] SA s 6D(b).
137Moreover, unless I otherwise direct, the terms of imprisonment imposed on Charges 3 and 4 must be served wholly cumulatively on the sentences of imprisonment imposed on Charges 1 and 2.[102] In your case, I will otherwise direct and order a large measure of concurrency on Charges 1, 2, 3 and 4 in order to give effect to the totality principle.
[102] SA s 6E.
138In the present circumstances, Charge 1 is a Class 1 offence for the purposes of the Sex Offenders Registration Act 2004 (‘SORA’)[103] and Charges 2, 3 and 4 are Class 2 offences.[104] Given you will be convicted of a Class 1 offence and one or more Class 2 offences, pursuant to section 34(1)(c)(ii) of SORA, you will be required to comply with the reporting requirements under that Act for life.
[103] Under Sex Offenders Registration Act 2004 (‘SORA’) s 3 and Schedule 1.
[104] Under SORA s 3 and Schedule 2.
Mr Stewart
On Charge 1 (sexual penetration of a child under 16 years) you are convicted and sentenced to imprisonment for 4 years.
On Charge 2 (sexual assault of a child under the age of 16) you are convicted and sentenced to imprisonment for 1 year and 6 months.
On Charge 3 (sexual activity in the presence of a child under the age of 16) you are convicted and sentenced to imprisonment for 1 year and 6 months.
On Charge 4 (possession of child abuse material) you are convicted and sentenced to imprisonment for 1 year and 6 months.
On Charge 5 (possession of drug of dependence) you are convicted and discharged.
I order that 6 months of the sentence imposed on Charge 2, 9 months of the sentence imposed on Charge 3 and 9 months of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 1 and on each other.
That makes a total effective sentence of imprisonment for 6 years.
Your counsel submitted I should fix a non-parole period which would allow for your conditional release from prison earlier than might otherwise have been the case. I accept this submission.
I order you serve a minimum of 3 years’ and 6 months’ imprisonment before becoming eligible for parole.
I am required to state the reasons for imposing these sentences.[105] They are contained in these reasons for sentence.
[105] See SA s 5B(4)(a).
I am also required to explain how these sentences relate to the standard sentences of 6 years’ imprisonment on Charge 1, and 4 years’ imprisonment on Charges 2 and 3 respectively.[106] The sentence I have imposed on Charge 1 is 2 years less than the standard sentence. The sentence I have imposed on Charge 2 is 2 years and 6 months less than the standard sentence. The sentence I have imposed on Charge 3 is 2 years and 6 months less than the standard sentence.
[106] See SA s 5B(5).
I declare 284 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
I declare you have been sentenced as a serious offender on Charge 3 and Charge 4.
Pursuant to the provisions of the Sex Offenders Registration Act 2004, I order you comply with the reporting provisions of that Act for life.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of 7 years’ and 6 months’ imprisonment with a non-parole period of 5 years.
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