Director of Public Prosecutions v Tomlinson (a pseudonym)

[2022] VCC 1812

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN TOMLINSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2022
CASE MAY BE CITED AS:	DPP v Tomlinson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1812

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              

Legislation Cited:  Crimes Act 1958 (Vic); Sentencing Act1991 (Vic); Sex Offender Registration Act 2004 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy [2013] HCA 37; Verdins (2009) 16 VR 269

Sentence:  18 years imprisonment; non parole period of 12 years  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Office of Public Prosecutions
For the Accused	Mr I. Polak	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Lachlan Tomlinson[1], you have pleaded guilty to the following charges which carry the following maximum penalties.

[1] A pseudonym.

Charge No.	Offence	Maximum Penalty	Additional
1	Production of Child Pornography, contrary to s.68(1) of the Crimes Act 1958.	10 Years
2, 3, 4, 6, 7, 8	Sexual Penetration of Child Under 16 Years, contrary to s.45(1) of the Crimes Act 1958, as amended by the Crimes Legislation Amendment Act 2010.	25 Years
5	Indecent Act With Child Under 16 Years, contrary to s.47(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offence and Other Matters) Act 2014.	10 Years
9	Producing Child Abuse Material, contrary to s.51C(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.	10 Years
10	Sexual Activity in the Presence of a Child Under the Age of 16, contrary to s.49F(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.	10 Years	Standard Sentence: 4 Years
11, 13, 16	Sexual Assault of a Child Under the Age of 16, contrary to s.49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.	10 Years	All Charges: Standard Sentence: 4 Years
12	Distributing Child Abuse Material, contrary to s.51D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.	10 Years
14, 15	Sexual Penetration of a Child Under the Age of 12, contrary to s.49A(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.	25 Years	All Charges: Standard Sentence: 10 Years Category 1 Offence
17	Possession of Child Abuse Material, contrary to s.51G(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.	10 Years

2Mr Tomlinson, you also fall to be sentenced as a serious sexual offender in relation to Charges 3 to 17.

3You have admitted your prior criminal history and I shall return to that later in these sentencing remarks, however I shall say at the outset it is not relevant to this offending.

Circumstances of the Offending  

4The Crown tendered the summary of prosecution opening as Exhibit A.   A summary of your offending is as follows:  

5At the time of your offending, you lived with your mother.  You and your mother were friends with the parents of each of the five complainants.  You created access to all of the children by gaining the trust of the parents and children alike.  You would purportedly 'babysit' the children; or their parents brought the children over to your home; or alternatively you visited and sometimes stayed with the parents.

Contact offending - PH[2]

[2] A Pseudonym.

6I turn to the contact offending against PH.

7Nine of the charges on the indictment relate to your offending against one child, PH.  She was three and a half years old, then four, then eight years old when you offended against her.

8Charges 2 and 3 are charges of sexual penetration of a child under 16.  These were committed at the complainant's home on 27 May 2016 when she was three and a half years old.  You penetrated her vagina with your finger (Charge 2) and then penetrated her vagina with your penis (Charge 3).

9Charge 4 is a charge of sexual penetration of a child under 16.  This was committed at the complainant's home on 29 May 2016.  It is a rolled up charge of two instances where you penetrated her vagina with your penis.

10Charge 5 is a charge of indecent act with a child under 16. This was committed at the complainant's home on 27 October 2016 when she was four years old.  It is a rolled up charge comprising two acts.  In the first instance, the complainant placed her hand on your erect penis.  In the second, you touched the complainant's buttocks with your penis.

11Charges 6, 7 and 8 are charges of sexual penetration of a child under 16.  These offences were committed at the complainant's home on 3 November 2016 when she was still aged four years old.  Charge 7 is a rolled up charge comprising two acts.  You penetrated her vagina with your finger (Charge 6) and then you penetrated her vagina with your penis on two occasions (Charge 7). You penetrated her mouth with your penis (Charge 8).

12

Charges 14 and 15 are charges of sexual penetration of a child under 12.   They were committed at the complainant's home between 9 December 2020 and

13 December 2020, both on the same occasion, when she was eight.  You penetrated the complainant's vagina with your penis.  Her vagina started to bleed and then you then penetrated the complainant's anus with your penis.

Contact offending - JP[3]

[3] A Pseudonym.

13

Charge 10 is a charge of committing sexual activity in the presence of a child.  This is a rolled up charge comprising three occasions between 22 May 2018 to

24 May 2018 which occurred at your home when the complainant was 20 months' old.  In each instance, you would call the complainant into your room and begin masturbating in her presence.

Contact offending - TW[4]

[4] A Pseudonym.

14Charge 11 is a charge of sexual assault of a child under 16.  This is a rolled up charge comprising two occasions committed on 27 May 2018 and 11 July 2018 at the complainant's home when she was aged two years old.  On both occasions you took photographs while exposing the complainant's vagina.

Contact offending – DM[5]

[5] A Pseudonym.

15Charge 13 is a charge of sexual assault of a child under 16 committed at your home on 22 October 2019 when the complainant was nine years old.  It is a rolled up charge of two instances committed on the same occasion.  In the first instance you grabbed and squeezed the complainant's buttocks.  In the second, you rubbed her vagina over her pyjama pants.

Contact offending – HJ[6]

[6] A Pseudonym.

16

Charge 16 is a charge of sexual assault of a child under 16 committed between

24 December to 31 December 2020 at HJ's home when she was aged nine.  You touched the complainant's vagina.

Child Abuse Material Offending

17Charges 1 and 9 relate to the production of child pornography or child abuse material as it then became known.  The charges take into account legislative amendments from 1 July 2017.  Each comprises 11 occasions.  Your offending variously included recording your contact sexual criminal offending; the secondary use of that material to create new images or files from the recordings made; and further, using a hidden pen camera to photograph and film 42 photographs and videos of adults and children using the toilet.

18Charge 12 is a charge of distribution of child abuse material between 13 July 2018 to 30 December 2020.  It is a rolled up charge comprising four occasions.  You distributed child abuse material on 13 July, 9 August and 20 August 2018.  It appears the videos and material distributed were videos of children being penetrated by adults.  It also comprises distributing child abuse material between October to December 2020 when you sent sexualised messaging and images.

19Charge 17 is a charge of possession of child abuse material on 7 January 2021.  This relates to material found in your possession at the time of your second arrest.

Police Investigation

20The police investigation into your activities commenced on 7 September 2018 when police were notified that you were distributing child abuse material.

21On 16 January 2020, complainant DM made a VARE alleging sexual assault.

22On 21 July 2020 police searched your home and found 10,500 images and recordings on devices.  You were subsequently identified in some of those images.

23On 27 August 2020 you were charged with two charges of sexual assault on DM.

24On 7 January 2021 you were arrested, interviewed and forensically examined for identification purposes.  Photographs were taken of your hands and genitals which were later used to match and identify you as the perpetrator of the sexual assaults against the five complainants.

25You were remanded in custody from 7 January 2021.

26After your subsequent arrest, other complainants made VAREs.

27There are three separate legislative requirements which I must factor into the sentencing consideration.

Category One Offences

28Firstly category 1 offences.  Charges 14 and 15 are category one offences.[7]  The Sentencing Act requires the court to sentence you to a period of imprisonment with a non-parole period for these offences.  Your counsel properly conceded that a term of imprisonment for your offending was inevitable.  Given the grave nature of your offending, I shall proceed on the basis that you face a period of imprisonment for these offences.

[7] See the definition of 'category 1 offence' paragraph (f); s3 Sentencing Act1991(Vic).

Standard Sentence Principles

29I turn now to a consideration of the standard sentencing scheme.

30The scheme provides for a standard sentence for your offending as follows.

Charge No.	Offence	Standard Sentence
10	Sexual Activity in Presence of Child U16	4 years
11	Sexual Assault of Child U16	4 years
13	Sexual Assault of Child U16	4 years
16	Sexual Assault of Child U16	4 years
14	Sexual Penetration of Child U12	10 years
15	Sexual Penetration of Child U12	10 years

31Further I must set a minimum term of not less than 60 per cent of the head sentence unless I consider it is not in the interests of justice to do so, if the sentence of 20 years or less is imposed.

32The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence.

33Objective factors exclude consideration of matters personal to you as an offender or to a class of offenders.  Rather it is determined wholly by reference to the nature of the offending.

34In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing.

35In this way, it is an additional factor to consider in the sentencing process.

36Furthermore I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.

37This does not limit the matters which I must or may take into account in determining the appropriate sentence.  Nor is it intended to affect what is known as the instinctive synthesis process.  The standard sentencing scheme may be considered as a guidepost in the sentencing consideration.  However it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration.

Serious Sexual Offender Provisions

38You fall to be sentenced as a serious sexual offender in relation to Charges 3 to 17 on the plea Indictment, with Charges 1 and 2 being the 'qualifying' offences.[8] 

[8] Part 2A of the Sentencing Act 1991 (Vic).

Charge Numbers	Offence	Schedule 1 Clause
3, 4, 6, 7 and 8	Sexual penetration of child under 16	Clause 1 (dac)
14 and 15	Sexual penetration of child under 12	Clause 1 (v)
5	Indecent act with child Under 16	Clause 1 (dab)(ii)
11, 13 and 16	Sexual assault of child Under 16	Clause 1 (vii)
10	Sexual activity in presence of child under 16	Clause 1 (viia)
9	Produce child abuse material	Clause 1 (xvig)
12	Distribute child abuse material	Clause 1 (xviha)
17	Possess child abuse material	Clause 1(xvihc)

39In the event that I sentence you to a term of imprisonment on Charges 3 to 17 (which is inevitable), I must have regard to the protection of the community as the principal sentencing purpose.[9]I may, in order to achieve that purpose, impose a disproportionately longer sentence.  Further, the legislation provides that unless I direct otherwise, the terms of imprisonment for the serious sexual offender charges must be served cumulatively.[10]

[9] (s.6D(a)).

[10] (s.6E).

40The Crown is not calling for the imposition of a disproportionate sentence in this case.  Given the scope of sentencing available to me, I do not intend to impose a disproportionate sentence(s).

Rolled up charges

41You have pleaded guilty to a number of rolled up charges.  These charges contain a collection of identifiable charges bundled together in a single charge rather than through numerous separate charges.

42When sentencing on a rolled-up charge, the court must consider all of the circumstances of the offence and the offender, including if the offending was carried out over an extended period, whether it victimised multiple persons, and the totality of harm described in the charge.  Whilst the court may consider all of the relevant circumstances of a rolled-up charge, the plea of guilty must still be treated as entered to a single formal charge.  The maximum penalty is therefore limited to the maximum for a single charge.

Objective Gravity and Moral Culpability

43The seriousness of the principal offences you have committed is immediately apparent from the statement of the offence and the maximum penalty: 'the sexual penetration of a child under 16' says it all, or under 12 in two instances.  That is complemented by the maximum penalty for the offence of 25 years' imprisonment.  The maximum penalty is designed to communicate Parliament's intention that individual instances of such offences must be met by condign punishment.  Your offending however comprises eight acts of penetration.

44Moreover, Charges 14 and 15 are, as I have already stated, Category 1 offences which carry a standard sentence of 10 years.  Other offences carry a standard sentence of four years' imprisonment.

45The gravity of your offending cannot be understated:  all of your offences constituted a grave breach of trust of parents and child alike.  Moreover, the youngest child against whom you offended was a mere 20 months old.  The youngest victim of your penetration was three and a half years old.  The oldest victim of your penetration, the same child, was eight years old.  Your oldest victim overall was nine.  It is apparent from the material that they were aware at some level of the wrongfulness of your actions; or at least of the fear you caused them.  That is apparent from their mothers' reports of the aftermath of your actions on their children.

46The seriousness of your contact offending is increased by the large number of instances and complainants, five in total.

47I do not detract from the seriousness of your offending against the other complainants, but I note the sustained, repetitious offending against PH was particularly callous, depraved and brutal.  It was this complainant that you penetrated, and had the audacity to record the penetrations, on eight occasions when she was aged three and a half, four and then eight years old.

48The fact that you chose to document and record your activities against these children is particularly grave.  The dissemination of child abuse material into an untraceable cyberspace is particularly unforgivable.  Moreover, it is apparent that you were not deterred by your arrest and charges.  You disseminated further child abuse material, you still possessed child abuse material at the time of your second arrest and, more importantly, you went on to brutally and callously penetrate PH for the seventh and eighth time and to sexually assault HJ.  That is, all occurred after your first arrest and charges.

49And I say this to the Victoria Police, you have got to have a pretty good look at how this happened.

50The criminal law prohibits sexual offending and specifically sexual offending against children with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  Children do not choose to engage in sexual activity with adults.  You inflicted your sickening choices on each of them.

51The absolute prohibition of sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long lasting and serious and manifests itself in both physical and psychological forms.  Therefore, the harm to your victims is presumed irrespective of whether a child even appreciates the acts in full in a particular case.

52I have evidence of the actual harm caused to these children.  The victim impact statements were read in court by JP's mother, HJ's mother and I received a late statement from PH's mother.  Each parent tellingly speaks of the feeling of betrayal they feel at your gross breach of trust.  HJ's mother looks back and recognises your manipulation of her family in order to prey on her child.  Each mother speaks of the profound grief and anguish they feel for their child, for the offending itself and for the fact that you recorded it and could potentially have put the images out to other people.  Most significantly, each mother speaks of the profound effect your actions have had on their child.

53Years ago, it was observed by a judge that the road to rehabilitation is often much harder for the victims than for the accused in sexual abuse cases of children.  It is apparent that the damage you have brought on these children has made this observation true.

54Your offending must be met by principles of deterrence, just punishment, and protection of the community.  I denounce your criminal activity as abhorrent to all right minded members of the community. Your offending must be met by stern punishment.  And by that, I mean imprisonment.

Personal Circumstances 

55You are 32 years of age, having been born in April 1990, in Northern Tasmania.

56You have two sisters, and one paternal half-brother.  You were close to your siblings during your childhood.

57Your parents separated when you were aged four.

58Your father is Aboriginal.  He was an alcoholic through your childhood and often returned home from work and physically abused your mother.  Your father was also physically violent towards you from infancy.

59You lived in Tasmania as a child, moving to South Australia aged 18, and then to Melbourne aged 23.  You have lived with your mother in Werribee since that time and intend to live with her again upon your release from custody.

60You attended several primary schools due to your parents' separation.  You completed up to Year nine, achieving average results in reading and writing but had difficult with maths.

61You were physically and verbally bullied throughout your schooling, and suspended several times due to defending yourself against bullies.

62You described that you have never had friends.  You have been lonely your whole life and you remain so in prison.  This has meant that you have not had a lot of normal contacts in your life.

63You were the victim of sexual assault from age four to 14, perpetrated by a family friend of your parents and by an adopted uncle.  You have not received counselling, treatment or assistance for this.

64You worked in several gardening and landscape jobs from age 16 to 18 for a couple of months at a time in order to satisfy Centrelink payment requirements.  You sliced the tip of your finger while working as a broccoli harvester, requiring stitches. You also worked for your uncle mowing lawns for around two years.  Your last employment was as a potato harvester with your mother for around eight months.

65You began smoking cannabis and drinking alcohol at age 14.  You were drinking heavily and using cannabis until your imprisonment.  You began smoking methylamphetamine aged 21. You increased your methylamphetamine use after your grandmother died in 2014.  From age 27, you were using methylamphetamine daily.  You also experimented with cocaine and ecstasy.

66You have a history of gambling and online gambling, which became problematic at aged 27 and worsened over the course of the COVID pandemic lockdowns in 2020.

67You have been diagnosed with asthma, high cholesterol, Type 2 diabetes, and obesity, for which you are medicated.  You have put on about 50 kilograms in body weight since your imprisonment.  I note that this has had a severely detrimental impact on your view of yourself and your self-worth.

68You were also diagnosed with ADHD at aged four, and prescribed Ritalin until 14.

69In adolescence, you began self-harming in response to bullying.  You last
self-harmed in November 2021 in custody.  You continue to experience mild bullying in custody, and you were the victim of a sexual assault whilst on remand for this offending.

70You continue to have a close relationship with both your parents.  Your mother has visited you in custody twice.  Your father and younger sister have fortnightly contact with you on Zoom.

71I again make the observation that your prior criminal history is relatively minor and irrelevant to this offending.

72Whilst in custody, you were diagnosed with depression and anxiety and you have reported regular suicidal thoughts.  As I say you have attempted suicide in the past.

73You were remanded during the first wave of the COVID lockdowns in 2021.  Your time on remand has been made more difficult by the restrictions on movement, work and limited access to courses.  You have had the COVID illness whilst on remand.

74As I say, you have been sexually assaulted whilst on remand. You now have a single cell and work as a billet.

75Since your time on remand, you have embraced your history and culture as a Tasmanian indigenous man.  You are supported by an indigenous group in prison.

Report of Gina Cidoni

76You were assessed in custody by Ms Gina Cidoni on 5 July 2022.  Ms Cidoni concludes after a clinical evaluation that you meet the criteria under the DSM-5 for:

(a)   Post-Traumatic Stress Disorder;

(b)   Major Depressive Disorder;

(c)   Generalised Anxiety Disorder; and

(d)   Methamphetamine and Cannabis Use Disorder (in enforced remission).

77Ms Cidoni reports that you accept full responsibility for your offending.  You show good insight into your own experience and you understand the impact of your offending on your young victims.

78Ms Cidoni was unable to administer a full IQ evaluation.  Nevertheless, she measured your verbal comprehension index as borderline, with 98 per cent of the population performing better than you.  Your working memory index, which measures your attention, concentration and mental control, was slightly better but still poor, with 77 per cent of the population performing better than you.

79Ms Cidoni concludes that you suffer from psychological distress.  You are depressed and anxious.  She reports at paragraph 95 of her report:

'Prison intensifies his mental illness symptoms making daily functioning and community adjustment more difficult.'

80Ms Cidoni rates your risk of overall sexual reoffending as low to medium without formal intervention.  She notes that your offending is concerning and you may have been drug affected as you indicated, but equally notes that sex offender treatment will be mandated.  If you are treated for your mental health issues and receive targeted psychological interventions to address your risks, mental health and substance abuse issues, Ms Cidoni considers that your risk of reoffending will be lowered.  The major reoffending risk factors are lack of supervision, linked to relapsing and poor management of your mental health.

Sentencing Submissions  

81Mr Polak who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:

(a)   There is evidence of remorse by the plea of guilty at the earliest stage and the cooperation you exhibited with all the authorities;

(b)   Your moral culpability should be reduced because of Ms Cidoni's conclusions after testing in relation to your verbal comprehension.  Mr Polak referred to Verdins principle 2.  Alternatively, your time in prison is made more difficult by your mental health issues and that Verdins principles 5 and 6 apply to your sentencing consideration.

(c)   He submitted, there is no relevant prior criminal history of a sexual nature;

(d)   There has been delay.  You have been on remand since 7 January 2021 and entered an early plea.  This matter has taken some time because of COVID and court delays to be finalised;

(e)   COVID-19 has caused difficulties for you in custody.  You should get the benefit of resolving the matter during COVID.  The principles enunciated in the Court of Appeal case of Worboyes[11] are applicable;

(f)    You have embraced your indigenous heritage, which enhances your sense of identity and culture.  Implicitly it was submitted that this may provide some stability and fulfilment to you going forward; and

(g)   Your prospects for rehabilitation will be enhanced by the mandatory sex offender treatment program that you must undertake in prison and the fact that you will be registered for life under the Sex Offender Registration Act.[12]Your prospects for rehabilitation would be assisted by the types of interventions proposed by Ms Cidoni.

[11] Worboyes v The Queen [2021] VSCA 169.

[12] 2004 (Vic).

82Mr Polak submitted that a longer than normal period of parole should apply in this case.

83Ms Holmes for the Crown submitted that the only appropriate sentence is a lengthy term of imprisonment with a head sentence and a non-parole period.

84As I have said, the Crown does not seek a disproportionate sentence to be imposed.

85The Crown concedes that the following matters are relevant as mitigatory considerations: 

(a)   The early guilty plea has utilitarian benefits and was made during the pandemic;

(b)   The time spent on remand during the COVID pandemic lockdown should be taken into account;

(c)   The principles enunciated in Bugmy and Verdins principles 5 and 6 are applicable; and

(d)   Your prospects for rehabilitation are at present guarded.  Much will depend on the passage of time and whether you receive the appropriate psychological intervention before your prospects for rehabilitation can be properly assessed.

86Ms Holmes ultimately submitted that none of these factors however, can significantly mitigate the sentence to be imposed.  The dominant principles of deterrence and protection of the community militate towards a lengthy term of imprisonment.

87Both parties urged that I do not impose a crushing sentence.  In other words, the parties urge (and I accept) that I must have regard to the principle of totality when I come to consider the overall sentence to be imposed.  I shall apply the principle of totality in this case.

Analysis

88I agree that your sentence should be mitigated, at least to some extent, by:

(a)   The utilitarian benefits of your plea of guilty and for your acceptance of responsibility;

(b)   Your background of family deprivation and history of your own childhood sexual abuse such as to enliven the principles enunciated in the case of Bugmy;

(c)   Your mental health symptoms are intensified in prison making the prison environment more difficult for you than the general prison population, that is enlivened in Verdins principles 5 and 6.  Further, I take into account the recent sexual assault which contributes to the difficulties of your time in prison.

(d)   I take into account that you have embraced your indigenous heritage and culture which may (hopefully) enhance your sense of identity and worth;

(e)   Your whole experience on remand has been intensified by the restrictions on work, contact, visits, education and movement caused by the COVID-19 lockdowns.  Moreover, you resolved this matter and pleaded guilty during COVID.  In accordance with the principles stated in Worboyes,[13] your sentence must be mitigated for this; and

(f)    There has been some delay.  It is not a particularly powerful factor in the circumstances but it must be given some recognition.

[13] Worboyes v The Queen [2021] VSCA 169.

89I turn now to your prospects for rehabilitation.  Using the observations of Ms Cidoni, the factors affecting your prospects for rehabilitation include your maladjusted childhood, a history of family instability, the lack of any long-term domestic relationships, your drug use and your patchy employment record.  On the other hand, you did not minimise your offending, Ms Cidoni considers that you are not psychopathic and you have now good family support from your parents and at least one sibling.

90Ultimately, I can only consider your prospects for your rehabilitation are presently guarded.  Much depends on your response to treatment, the availability of psychological interventions and the support available to you upon your eventual release.  I consider that your prospects for your rehabilitation may be enhanced by those factors, but they have not yet occurred and therefore lie in the future.  It is to your credit that Ms Cidoni reports that you are positive about and accepting that you require treatment and interventions.

91I have taken these factors into account, but I stress that the matters personal to you cannot have a particularly significant effect in reducing the sentences for this offending.  The objective principles must dominate the consideration.  As I have said, the serious sex offender provisions require the dominant objective to be the protection of the community.  For the fact that you have admitted to committing further, very serious offences after you were arrested and charged indicates that protection of the community is a real requirement in this case.

92In an effort to meet the principle of totality, I have imposed what I consider to be the appropriate sentence for each charge; to properly reflect the criminality of your offending.  I have had to moderate considerably the amount of cumulation for each charge.  It has therefore been necessary to carefully consider the overall total effective sentence to be imposed.

93I further note that where there were multiple acts of offending committed on the same occasion, or on the same day, it has been necessary to further moderate the amount of cumulation to ensure that cumulation could be ordered across all of the charges.

Orders

94Accordingly, I make the following orders.

Charge No.	Offence	Maximum Penalty	Additional	Sentence	Cum.
1	Production of Child Pornography (rolled up x11)	10 Years	36 months	6 months
2	Sexual Penetration of Child Under 16 Years	25 Years	72 months	8 months
Serious Sexual Offender declaration
3	Sexual Penetration of Child Under 16 Years	25 Years	84 months 7y	8 months
4	Sexual Penetration of Child Under 16 Years	25 Years	108 months 9y	Base
5	Indecent Act With Child Under 16 Years	10 Years	24 months	3 months
6	Sexual Penetration of Child Under 16 Years	25 Years	72 months 6y	8 months
7	Sexual Penetration of Child Under 16 Years	25 Years	84 months 7y	10 months
8	Sexual Penetration of Child Under 16 Years	25 Years	66 months 5y6m	4 months
9	Producing Child Abuse Material (rolled up x 11)	10 Years	36 months	6 months
10	Sexual Activity in the Presence of a Child Under the Age of 16 (rolled up x 3) JP	10 Years	Standard Sentence: 4 Years	36 months	4 months
11	Sexual Assault of a Child Under the Age of 16 (rolled up x2) TW	10 Years	Standard Sentence: 4 Years	36 months	7 months
13	Sexual Assault of a Child Under the Age of 16	10 Years	Standard Sentence: 4 Years	36 months	7 months
16	Sexual Assault of a Child Under the Age of 16	10 Years	Standard Sentence: 4 Years	36 months	7 months
12	Distributing Child Abuse Material (rolled up x 4)	10 Years	36 months	6 months
14	Sexual Penetration of a Child Under the Age of 12	25 Years	Standard Sentence: 10 Years Category 1 Offence	102 months 8y 6 m	11 months
15	Sexual Penetration of a Child Under the Age of 12	25 Years	Standard Sentence: 10 Years Category 1 Offence	105 months 8y 9 m	11 months
17	Possession of Child Abuse Material	10 Years	36 months	2 months
TES	216 months –18 years
NPP	144 months – 12 years
PSD	650 days
6AAA	26 years / 19 ½ years

95I am required by s5(b)(5) of the Sentencing Act to refer to the standard sentence for the offence and explain how the sentence imposed relates to the standard sentence.  I have considered the relevant standard sentence as one of the sentencing factors in my instinctive synthesis but it has not assumed a dominant or determinative significance.

96The sentences I have imposed on Charges 10, 11, 13, and 16 are lower on each charge than the standard sentence for each of these offences.  After considering all of the objective factors surrounding the offending, I have formed the view that the objective gravity of those offences was overall lower than the mid-range of sentences for these types of offences.

97The sentences on Charges 14 and 15 are also set lower than the standard sentence of 10 years, but higher than the sentences for comparable, earlier charges of penetration.  I consider that it is in each case an appropriate sentence to be imposed on each of those charges, given the gravity of your circumstances in which you committed the offences (to which I say see paragraph 12 of these sentencing remarks) and my assessment of your moral culpability:  (to which I say, see paragraph 47 of these remarks).

98Briefly they are in the first instance of Charge 14 and 16, both of those offences were committed after you had been arrested and charged on the DM offences.  And secondly, in the circumstances your penetration of PH's vagina caused her to bleed and it was then that you resorted to penetration of her anus.

99

As a consequence of your conviction on these charges, the provisions of the

Sex Offender Registration Act

are enlivened.  The mandatory registration period is life.  As I say the serious sexual offender provisions require that I note that fact and you will be recorded on the records of the court as a serious sexual offender in relation to Charges 3 to 17. And I believe Ms Holmes there was a disposal order?

100MS HOLMES:  Yes, Your Honour.

101HIS HONOUR:  Assuming that's not opposed Ms Sutherland, I'll make the order in chambers.

102MS SUTHERLAND:  That's not opposed, Your Honour.

103HIS HONOUR:  Thanks Ms Sutherland.  Now Mr Tomlinson the sexual offender registration requirements are indeed onerous and there is a great deal of paperwork that must be provided and acknowledged.  The paperwork will be sent to the prison.  Ms Sutherland and Ms Holmes are you both clear on the sentences that I've imposed, and my intended total effective sentence and non-parole period?  Ms Sutherland are you clear?

104MS SUTHERLAND:  I believe so, Your Honour.

105HIS HONOUR:  Thank you and Ms Holmes, you're clear?

106MS HOLMES:  Thank you, Your Honour.

107

HIS HONOUR:  Before my reasons for publishing before those sentence figures are entered into the record of the court.  Of the court orders I will be checking them again and confirming them with my staff.  Once they have been checked, I will send the table of the sentences to both you, Ms Sutherland and to you Ms Holmes, so that you have the written form of what the sentences are and that might assist you Ms Sutherland in moving forward with Mr Tomlinson.  Ms Sutherland, would it be of assistance to you if I leave you on the line now, so that you can speak to

Mr Tomlinson?

108MS SUTHERLAND:  It would, Your Honour.

109HIS HONOUR:  Thank you, I'll do that.  I do want to say this, I want to come back to an issue and I want to say this to the parents of the victims who are online.  I understand that the sentencing process has been a difficult one for all of you.  I commend you for your integrity and courage in coming forward and making such powerful victim impact statements.  Usually, experience of the court says that the sentencing process is not one, but any victim or any parent finds satisfactory.  That's because we don't have retributed justice in Victoria, there are, as you've heard a number of factors that I must take into account, but I do wish the families of all victims well for them and for those children in moving forward in the future.

110I say this to you Ms Holmes and to the informant, if the informant is online, I still find the sequence of events of the investigation troubling.  There may well be a good explanation as to how it was that Mr Tomlinson was able to commit further offences, after he'd been charged with these offences, where there was not further supervision or monitoring of him, why these things were not perhaps more fully flagged or red flagged, but at least on face value they require further enquiry and investigation.

111MS HOLMES:  Noted Your Honour, thank you.