DPP v Meharry
[2017] VSCA 387
•21 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0068
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellants |
| v | |
| FABIAN ROY MEHARRY | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 October 2017 |
| DATE OF JUDGMENT: | 21 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 387 1st revision: 17 January 2018 |
| JUDGMENT APPEALED FROM: | DPP v Meharry [2017] VCC 298 (Judge Gaynor) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Commonwealth and State offences – Appeals by Commonwealth and State Directors – Multiple child sex offences – Online grooming, online sexual activity, producing child pornography – Contact sexual offences – Sexual penetration of a child under 16, persistent sexual abuse – 22 female victims aged between 11 and 17 – Offending extended over almost nine years – Sentenced to 12 years’ imprisonment, with non-parole period of 10 years – Whether manifestly inadequate – Use of threats and coercion – Procuring victims to engage in degrading acts – Profound long-term harm to victims – General deterrence – Prevalence of this type of offending – Specific deterrence – Respondent had relevant prior convictions – Offended while on suspended sentence – Offended while under police investigation – Appeals allowed – Resentenced to 22 years’ imprisonment, with non-parole period of 18 years – Criminal Code Act 1995 (Cth) ss 474.27, 474.25A, Crimes Act 1958 ss 38A, 45, 47, 47A, 49B, 58, 68, 70, Sentencing Act 1991 s 6E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Ms D Piekusis with Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D C Hallowes SC with Mr C T Farrington | Matthew White and Associates |
MAXWELL P
KYROU JA:
Summary
These appeals, by the Commonwealth and State Directors of Public Prosecutions, concern internet-based sexual offending against children on a scale, and at a level of depravity, rarely seen in the courts. Over a period of almost nine years, the respondent offended against 22 young females, mostly aged between 12 and 15. In almost every case, after ‘grooming’ the victim, the respondent prevailed on her — often by means of threats — to perform sexual acts for his gratification. In many cases, he created his own child pornography, by recording what occurred. In several of the cases, what had begun as online offending turned into contact offending.
The internet offences are governed by Commonwealth law, because of the Commonwealth Parliament’s legislative power with respect to telecommunications.[1] (The offences are defined by reference to the use of a ‘carriage service’, meaning a service by which telecommunications are carried.)[2] The sexual contact, child pornography and other offences are governed by State law. As this Court has commented previously, the task of sentencing on a Commonwealth-State indictment of this kind is peculiarly difficult.[3]
[1]Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth).
[2]Telecommunications Act 1997 (Cth) s 7.
[3]See DPP v Swingler [2017] VSCA 305.
In sentencing the respondent, the judge said:
Yours was prolonged, classically predatory, depraved, cruel and remorseless behaviour, which demonstrated with appalling clarity, the dangers inherent in social media, requiring the formulation of punitive legislation designed to protect, as far as it can, the young and vulnerable from persons [such] as yourself. It would not be unfair to classify you as a monster of depravity.[4]
[4]DPP v Meharry [2017] VCC 298, [98] (‘Sentencing remarks’).
Her Honour also said:
[Y]ou deliberately sought out victims who were vulnerable because of their young age. Thus, they were more easily able to be dominated and controlled by you. This offending represented an exercise of sadistic power by you, which grew more insatiable as time went on. It is as if you saw the internet as providing you with a vast array of vulnerable teenagers whom you could prey upon, exploit and terrorise as the wind took you.[5]
[5]Sentencing remarks [94].
The judge imposed a total effective sentence of 12 years’ imprisonment, with a non-parole period of 10 years. For reasons which follow, we have concluded that the total effective sentence, and many of the individual sentences and orders for cumulation, are manifestly inadequate. They simply do not reflect the objective gravity of the offending, or the profound impact on the victims. The ease with which offences of this kind are committed using the internet makes it imperative that those who might be inclined to act in this way should be made aware that, if detected, they will face very lengthy terms of imprisonment indeed.
We would allow the Directors’ appeals and resentence the respondent to a total effective sentence of 22 years’ imprisonment, with a non-parole period of 18 years.
Overview of charges and sentence
On 7 December 2016, the respondent pleaded guilty to 62 indictment charges and five summary charges. The charged involved 22 female victims aged between 11 and 17 years. The offending occurred between 19 December 2006 and 7 August 2015, when the respondent was aged between 18 and 26 years.
The charges comprised:
(a)13 charges of using a carriage service to groom a person under 16 years of age;
(b)one charge of grooming for sexual conduct with a child under 16;
(c)17 charges of using a carriage service for sexual activity with a person under 16 years of age;
(d) 19 charges of producing child pornography;
(e) one charge of transmitting child pornography;
(f) two charges of sexual penetration of a child under 16;
(g) two charges of procuring sexual penetration of a child under 16;
(h) two charges of compelling sexual penetration;(i) one charge of persistent sexual abuse of a child under 16;
(j) one charge of performing an indecent act with a child under 16;(k)two charges of failing to comply with reporting obligations under s 46(1) of the Sex Offenders RegistrationAct 2004 (‘SORA’);
(l)one charge of possessing child pornography; and
(m)five summary charges of threatening to distribute intimate images.
Following a plea hearing, the respondent (then aged 28 years) was sentenced on 22 March 2017 as follows:
Offence Charge Victim Sentence Cumulation Using carriage service to groom person under 16
Maximum penalty: 12 y
Criminal Code Act 1995 (Cth) (‘Cth CCA’) s 474.27(1)
1 V1 6 m 1 m 2 V2 9 m 1 m 6 V4 6 m 1 m 9 V5 6 m 1 m 12 V6 8 m 1 m 16 V7 6 m 1 m 21 V9 9 m 1 m 25 V10 6 m 1 m 29 V11 1 y 1 m 36 V13 9 m 1 m 43 V16 9 m 1 m 47 V18 1 y 1 m 52 V19 9 m 1 m Grooming for sexual conduct with child under 16
Maximum penalty: 10 y
Crimes Act 1958 (‘Vic CA’) s 49B(2)
57
V22
9 m
1 m
Using carriage service for sexual activity with person under 16
Maximum penalty: 15 y
Cth CCA s 474.25A(1)
3 Rep[6] V2 4 y Base (Cth) 7 V4 18 m 1 m 10 V5 9 m 1 m 13 V6 1 y 1 m 17 Rep V7 18 m 1 m 19 Rep V8 1 y 1 m 22 Rep V9 3 y 6 m 26 Rep V10 18 m 1 m 30 Rep V11 18 m 1 m 34 V12 8 m 1 m 37 Rep V13 2 y 6 m 39 Rep V14 1 y 1 m 44 V16 10 m 1 m 48 Rep V18 14 m 1 m 53 Rep V19 3 y 6 m 55 V20 18 m 1 m 58 Rep V22 2 y 6 m Producing child pornography
Maximum penalty: 10 y
Vic CA s 68(1)
4 Roll[7] V2 2 y 1 m 5 Roll V3 9 m 1 m 8 V4 8 m 1 m 11 V5 6 m 1 m 15 Roll V6 1 y 1 m 18 Roll V7 1 y 1 m 20 Roll V8 8 m 1 m 24 Roll V9 18 m 1 m 28 Roll V10 1 y 1 m 33 Roll V11 1 y 1 m 35 V12 6 m 1 m 38 Roll V13 18 m 1 m 40 Roll V14 1 y 1 m 42 Roll V15 1 y 1 m 45 V16 8 m 1 m 46 Roll V17 9 m 1 m 51 Roll V18 15 m 1 m 54 Roll V19 15 m 1 m 59 Roll V22 15 m 1 m Transmitting child pornography
Maximum penalty: 10 y
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 57A
56 Roll V21 6 m 1 m Sexual penetration of a child under 16
Maximum penalty: 10 y
Vic CA s 45(1)
14 Rep V6 3 y 6 m 31 Comp[8] V11 30 m 1 m Procuring sexual penetration of a child under 16
Maximum penalty: 10 y
Vic CA s 58(1)
27 V10 2 y 1 m 50 Comp V18 4 y 6 m Compelling sexual penetration
Maximum penalty: 25 y
Vic CA s 38A(1)
41 Rep V15 4 y 6 m 49 V18 3 y 6 m Persistent sexual abuse of a child under 16
Maximum penalty: 25 y
Vic CA s 47A(1)
23 V9 5 y Base (Vic) Indecent act with a child under 16
Maximum penalty: 10 y
Vic CA s 47(1)
32 V11 6 m 1 m Failing to comply with reporting obligations
Maximum penalty: 5 y
SORA (Vic) s 46(1)
60 Roll - 30 m 1 m 61 Roll - 18 m 1 m Possessing child pornography
Maximum penalty: 5 y
Vic CA s 70(1)
62 Roll - 6 m 1 m Summary charges of threatening to distribute intimate image
Maximum penalty: 1 y
Summary Offences Act 1966 s 41DB(1)
5 V22 2 m - 209 V18 2 m - 212 V16 2 m - 216 V15 2 m - 225 V20 2 m - Federal Sentences Commence on 22 March 2017 Total effective sentence 8 y, 1 m Non-parole period 6 y, 1 m State Sentences Commence on 7 May 2018[9] Total effective sentence 9 y, 3 m Non-parole period 7 y, 3 m Effective Global Sentence 12 y, with non-parole period of 10 y Pre-sentence detention 593 days 6AAA statement 14 y with non-parole period of 12 y Other Orders: The respondent was sentenced as a serious sexual offender in respect of all State charges.[10] He was ordered to report for life pursuant to the SORA [6]Representative charge.
[7]Rolled up charge.
[8]Composite charge.
[9]It is common ground that the correct date is 7 December 2019. See [147] below.
[10]The judge erred in this respect. See [189] below.
The Directors have appealed against the overall sentence and the individual sentences on the ground that they are manifestly inadequate. The Victorian Director has relied on the additional ground that the judge failed to order cumulation on the State charges in accordance with s 6E of the Sentencing Act 1991.
Circumstances of the offending
In 2011, the respondent founded an internet-based business called ‘Magic Grinding Wax’. He sold wax for BMX bicycle riders through his website and spoke to some of the 22 victims about his business during the period of the offending.
In general, the modus operandi employed by the respondent involved:
(a) contacting underage girls online and befriending them;
(b) engaging in sexually explicit communications with them;
(c) requesting sexually explicit images or video files from them;(d)threatening to publish and/or distribute the sexually explicit material, and/or threatening to harm himself, unless they performed further sexual acts online via Skype or webcam; and
(e)recording the Skype/webcam session in which the sexual acts were performed.
Although the respondent sometimes used aliases, he often identified himself to his victims.[11] Indeed, in respect of V6, V9 and V11, the respondent’s interaction escalated to face-to-face meetings during which sexual acts took place.
[11]See [106], [170] below.
During the period of the offending, there were occasions when the respondent was abusing more than one victim within the same time frame. In all but two instances, he knew the age of the victims.
V1: Charge 1
V1 was aged between 14 and 15 years at the time of the offending, which occurred between 19 December 2006 and 21 September 2008 (a period of 1 year, 9 months and 3 days). She lived in New South Wales. The respondent was then aged between 18 and 19 years.
The respondent requested nude photographs and asked V1 to visit him in Victoria. She refused. He attempted to pressure her by threatening suicide. He masturbated on Skype. She blocked him from contacting her on Skype. She became fearful of being found by him. (Charge 1).
V2: Charges 2–4
V2 was aged between 14 and 16 years at the time of the offending, which occurred between 8 March 2010 and 20 January 2013 (a period of 2 years, 10 months and 13 days). The respondent was then aged between 21 and 24 years.
The respondent engaged in sexual conversations and ‘sexting’ with V2 (Charge 2).
The respondent asked V2 for photographs of her breasts and masturbated and exposed his penis to her. He escalated his requests to digital penetration of her vagina, insertion of objects in her vagina, and stripteases. When V2 refused, he threatened to publish photographs and videos of her on the internet and send them to her parents. He also threatened suicide. V2 did whatever the respondent requested, even though the penetrations were painful, because she felt trapped. (Charge 3 — representative of five occasions).
The respondent recorded 10 videos of V2 exposing her breasts and digitally penetrating her vagina (Charge 4).
V3: Charge 5
V3 was 16 years of age at the time of the offending, which occurred between 3 September 2011 and 10 November 2011 (a period of 2 months and 8 days). She lived in New South Wales. The respondent was then 22 years of age.
The respondent made an unsolicited request to be V3’s friend on Facebook. He asked her to be his girlfriend and they discussed marriage and having children. He threatened her and said that he would kill himself if she did not send him explicit photographs of herself. V3 sent him 15 photographs showing her naked body, her exposed vagina and V3 digitally penetrating her vagina. He also asked for a photograph of V3’s dog licking her vagina and for videos. She recorded three videos — including one of her penetrating her vagina with a dildo — and sent them to him. The police could not locate the videos when they executed a search warrant at the respondent’s home. (Charge 5).
V4: Charges 6–8
V4 was aged between 11 and 12 years at the time of the offending, which occurred between 4 September 2011 and 18 September 2011 (a period of 15 days). She lived in Victoria. The respondent was then 22 years of age.
The respondent contacted V4 online purporting to be a female. The conversations became sexual and he asked for naked photographs. (Charge 6).
The respondent sent V4 a video of a woman inserting an object in her vagina. He blackmailed her into engaging in sexual acts online by threatening to publish photographs of her online. V4 complied with his request that she digitally penetrate her vagina. (Charge 7).
V4 sent the respondent a video of her digitally penetrating her vagina (Charge 8).
V5: Charges 9–11
V5 was 15 years of age at the time of the offending, which occurred between 9 January 2012 and 4 July 2012 (a period of 5 months and 26 days). She lived in South Australia. The respondent was then 23 years of age.
The respondent contacted V5 online and on several occasions told her that he loved her (Charge 9).
The conversations became sexual. The respondent requested V5 to show him her breasts and vagina. When she refused, he threatened suicide by holding a knife to his throat. V5 showed him her breasts. (Charge 10).
The respondent recorded three videos of V5, one of which showed her exposing her breasts (Charge 11).
V6: Charges 12–15
V6 was 14 years of age at the time of the offending, which occurred between 19 August 2012 and 1 August 2013 (a period of 11 months and 14 days). She lived in Victoria. The respondent was then aged between 23 and 24 years.
V6, who was in residential care, met the respondent online. He conducted sexual conversations, showed her his penis and masturbated. He became angry when V6 did not comply with his requests to engage in sexual conduct. (Charge 12).
The respondent requested that they meet. When they did so, he kissed her and tried to put his hand down her pants. After this occasion, he pressured her to send him photographs and two videos of her engaging in sexual acts. One video showed V6 digitally penetrating her vagina and the other showed her penetrating her vagina with a door stopper. (Charge 13).
The respondent and V6 met again. He dragged her into a stairwell and penetrated her vagina with his penis. Subsequently, they met in a park where he penetrated her vagina digitally and with his penis. When V6 complained, he said ‘just go with it’. He did not use a condom. (Charge 14).
The two videos referred to at [33] above comprise Charge 15.
V7: Charges 16–18
V7 was 12 years of age at the time of the offending, which occurred between 2 September 2012 and 2 November 2012 (a period of 2 months and 1 day). She lived in Queensland. The respondent was then 23 years of age.
The respondent added V7 as a friend on Facebook. He complimented her and treated her like his girlfriend. He told her she had a beautiful body and would like to see what it looks like underneath her clothes. (Charge 16).
The respondent asked V7 to send him photographs and to expose her breasts and masturbate on Skype. When she refused, he became angry and threatened to post online an explicit photograph of her, which he said he had. V7 felt compelled to expose her breasts and digitally penetrate her vagina. She masturbated every time they spoke, which was ‘quite often’. The respondent also asked her to penetrate her vagina with a hairbrush. (Charge 17 — representative of nine occasions).
The respondent recorded nine videos of V7 exposing her breasts and digitally penetrating her vagina (Charge 18).
V8: Charges 19–20
V8 was 14 years of age at the time of the offending, which occurred on 15 November 2012. She lived in Queensland. The respondent was then 23 years of age.
The respondent flattered V8 and asked her to show him her breasts. She complied because she wanted to make him happy. At his request, she then penetrated her vagina with her finger, a hairbrush and a dildo. (Charge 19 — representative of five occasions).
The respondent covertly recorded 3 videos of V8 exposing her breasts, digitally penetrating her vagina and inserting a dildo in her vagina (Charge 20).
The respondent subsequently told V8 that he had videos of her and threatened to post them online unless she engaged in further sex acts. When she asked for proof that he had the videos he ceased communicating with her.
V9: Charges 21–24
V9 was aged between 14 and 15 years at the time of the offending, which occurred between 1 March 2013 and 19 July 2014 (a period of 1 year, 4 months and 19 days). She lived in Victoria. The respondent was then aged between 24 and 25 years.
The respondent added V9 as a friend on Facebook. He requested that she send him a photograph of her breasts. She initially refused but then complied. He sent her a photograph of his penis. He then requested a photograph of her vagina. When she declined and instead sent him a photograph of her breasts, he threatened to post online the photographs of her breasts. She then complied. When he threatened to cut off his penis if she did not show her breasts or vagina, she exposed her breasts on Skype. He continued to threaten her unless she sent him nude photographs of herself. (Charge 21).
The respondent threatened to commit suicide if V9 did not touch her vagina. At his request, she digitally penetrated herself. He then demanded that she insert something from the kitchen in her vagina. She inserted a banana. He repeated these requests over the telephone on subsequent nights and threatened to post photographs of her online or to kill himself if she did not comply. On one occasion he instructed her to insert a hairbrush in her vagina. Other objects included ice and carrots. When V9 commenced a relationship with a boyfriend, the respondent demanded that she have sex with the boyfriend while he was on the phone so that he could listen and masturbate. He often masturbated on camera. He directed her to get her dog to lick her vagina and she complied. (Charge 22 — representative of 11 occasions).
The respondent arranged to meet V9 and they engaged in sexual activity on 32 occasions between 31 August 2013 and 30 June 2014. The activity comprised the respondent inserting his finger, penis and a hairbrush in her vagina and directing her to hold his penis. He did not wear a condom and ejaculated inside her vagina. In September 2013, V9 had a miscarriage. (Charge 23).
The respondent recorded three videos of V9 digitally penetrating her vagina and of her dog licking her vagina. (Charge 24).
V10: Charges 25–28
V10 was aged between 15 and 16 years at the time of the offending, which occurred between 1 January 2014 and 6 June 2014 (a period of 5 months and 6 days). She lived in Tasmania. The respondent was then 25 years of age.
The respondent added V10 as a friend on Snapchat and Facebook and became flirtatious. He comforted her through a relationship breakdown. She ‘fell for him’. (Charge 25).
The respondent asked V10 for photographs and she sent him 15 photographs showing her breasts and vagina. He sent her photographs of his penis. She complied with his requests that she digitally penetrate her vagina and insert in her vagina a hairbrush, a deodorant can and a glass bottle. (Charge 26 — representative of 26 occasions).
V10 engaged in sexual activity with an unknown male in her bedroom while she was on Skype with the respondent. The respondent instructed her to request the male to digitally penetrate her vagina and to lick her vagina. The male digitally penetrated her but refused to lick her vagina. (Charge 27).
On another occasion, when V10 was at school, she complied with a request from the respondent to arrange for a male student to rub her vagina on the outside of her underwear. The respondent also asked her to arrange for a family member or her dog to lick her vagina, but she refused.
The respondent covertly recorded 26 videos of V10 digitally penetrating her vagina and inserting in her vagina a hairbrush, a deodorant can and a glass bottle. (Charge 28).
V11: Charges 29–33
V11 was 15 years of age at the time of the offending, which occurred between 1 January 2014 and 29 November 2014 (a period of 10 months and 29 days). She lived in Victoria. The respondent was then 25 years of age.
The respondent and V11 met online. He told her he loved her and insisted that she send him photographs of herself. She sent him photographs of her naked torso and bottom. The respondent and V11 had phone sex on at least three occasions. He directed that she take off her clothes and digitally penetrate her vagina while on Skype. He blackmailed her into sending him more photographs. (Charge 29).
At the respondent’s direction, V11 digitally penetrated her vagina and inserted a recorder[12] and another unknown object in her vagina. (Charge 30 — representative of three occasions).
[12]A recorder is a flute-like musical instrument.
The respondent arranged to meet V11. He started to touch her and, despite her protests, he continued. He penetrated her vagina digitally and with his penis. He did not use a condom. (Charge 31).
The respondent and V11 went swimming. He touched her bottom under her shorts. She told him to stop. He then grabbed her, undid her shorts and rubbed her clitoris on the outside of her bikini bottom. (Charge 32).
The respondent covertly recorded two videos of V11 digitally penetrating her vagina and inserting a recorder in her vagina. (Charge 33).
V12: Charges 34–35
V12 was 13 years of age at the time of the offending, which occurred on 1 June 2014. She lived in Western Australia. The respondent was then 25 years of age.
The respondent contacted V12 on Skype and asked her to expose her breasts, which she did. He sent her a photograph of his penis. At his request, she digitally penetrated her vagina on Skype. (Charge 34).
The respondent covertly recorded V12 digitally penetrating her vagina (Charge 35).
V13: Charges 36–38
V13 was 14 years of age at the time of the offending, which occurred between 15 June 2014 and 17 September 2014 (a period of 3 months and 3 days). She lived in New South Wales. The respondent was then 25 years of age.
The respondent requested V13 to add him as a friend on Facebook. He flattered her and made her feel special, masturbated on Skype and told her that he wanted to put things inside her. (Charge 36).
At the respondent’s request, V13 inserted a hairbrush in her vagina. When he asked her to insert a larger item, she inserted a bottle of glue. He asked her to insert a banana but she was unable to do so. He threatened to upload a video he had taken of her without her knowledge. He also threatened to kill himself. He demanded that she penetrate her vagina with her fingers and other objects. He also demanded that she have the family dog lick her vagina. She complied. He masturbated while she digitally penetrated her vagina. (Charge 37 — representative of five occasions).
The respondent recorded 6 videos of V13 digitally penetrating her vagina, inserting a dildo in her vagina and of the family dog licking her vagina (Charge 38).
V14: Charges 39–40
V14 was 15 years of age at the time of the offending, which occurred on 25 September 2014. She lived in South Australia. The respondent was then 25 years of age.
The respondent sent V14 a video of a vagina being penetrated by an object. At his request, she penetrated her vagina with her finger, a hairbrush and a carrot. (Charge 39 — representative of three occasions). The respondent recorded a video of each of those three penetrations (Charge 40).
V15: Charges 41–42 and summary charge 216
V15 was 17 years of age at the time of the offending, which occurred between 8 November 2014 and 3 March 2015 (a period of 3 months and 25 days). The respondent was then aged between 25 and 26 years.
The respondent and V15 met on Skype. He asked for a photograph of her breasts and she complied. When she refused to send him a nude photograph of her entire body, he threatened to send the photograph of her exposed breasts to her mother. She then exposed her breasts on Skype. He threatened to post her mobile number on Facebook and to send naked photographs of her to her mother if she did not comply with his requests. She became scared that he would distribute the photographs and complied with his request to insert her fingers and a hairbrush in her vagina. Under an alias, the respondent sent V15 two erotic stories and asked whether she would let a brother or sister lick her vagina. The respondent asked whether, if V15 lived with her brother, she would have sex with her brother. He asked her to get a dog to lick her vagina, or to insert a carrot or an ice block in her vagina, and to send him a photograph. He demanded that she masturbate, insert a chair leg and a pen in her vagina and allow a dog to lick her vagina. She tried to resist but complied when he aggressively threatened to send naked photographs to her mother. The penetrative activity and the licking of her vagina lasted three hours. (Charge 41 — representative of two occasions).
The respondent recorded four videos of V15 digitally penetrating her vagina, inserting a hairbrush in her vagina and a dog licking her vagina (Charge 42).
The respondent threatened to distribute the photographs of V15 to her mother and friends if she did not send him additional photographs (Summary charge 216).
V16: Charges 43–45 and summary charge 212
V16 was 15 years of age at the time of the offending, which occurred between 1 March 2015 and 30 June 2015 (a period of 4 months). She lived in Queensland. The respondent was then 26 years of age.
The respondent contacted V16 via Facebook. He told her she was beautiful and asked her for a nude photograph. He sent her a photograph of his penis. She sent him five or six photographs of her breasts and vagina. He said that he wanted V16 to visit him and offered to pay for her ticket or to visit her in Queensland. (Charge 43).
The respondent requested a video and V16 responded by sending him a video showing her digitally penetrating her vagina (Charge 44). The respondent covertly recorded that video (Charge 45).
The respondent threatened to send explicit images of V16 to her family and friends unless she sent him another video (Summary charge 212).
V17: Charge 46
V17 was 17 years of age at the time of the offending, which occurred between 5–12 March 2015 (a period of 8 days). She lived in Queensland. The respondent was then 26 years of age.
The respondent added V17 as a friend on Facebook. He told her he loved her. At his request, she sent him nude photographs of herself and four videos of her digitally penetrating her vagina. (Charge 46).
Her communication with him ended when he wanted more videos and she posted online that he was blackmailing her.
V18: Charges 47–51 and summary charge 209
V18 was 14 years of age at the time of the offending, which occurred between 4–24 April 2015 (a period of 21 days). She lived in Queensland. The respondent was then 26 years of age.
The respondent contacted V18 via Facebook and flattered her. He asked her for photographs but she refused. He sent her a photograph of his penis and requested that she send him a nude photograph of herself. She sent him a photograph of her in her underwear. After he made threats to post that photograph online, she sent him a nude photograph of herself. (Charge 47).
The respondent demanded that V18 perform sexual acts on Skype and threatened to send the photographs she had provided to him to her family and friends. She exposed her breasts. Using an alias, he threatened to send a photograph of V18 in her swimwear —which she had sent to him on Snapchat — to her friends if she did not send him an explicit photograph. She sent a photograph of her exposed breasts. The threats of publication continued. The respondent said that she had to choose between inserting a hairbrush in her vagina or having sex with her eight year old brother who was then asleep. She photographed herself with her brother so that it looked as if they were having sex. The respondent said that V18 could go to gaol for engaging in that activity. He tried to pressure her to engage in sexual activity with her younger sister, have sex with a boy and digitally penetrate her vagina. His threats included that he would send to her mother a compromising photograph with her brother and provide photographs to the police, resulting in her incarceration. She became distressed and said that she wanted to kill herself. He told her that the only way to avoid the police being involved was for her to do what he asked. The respondent’s behaviour subsequently escalated. He told V18 to place her sleeping brother’s hand on her breast and to rub his penis. (Charge 48 — representative charge).[13]
[13]The summary of prosecution opening does not specify the number of occasions of offending encompassed by charge 48.
The respondent compelled V18 to insert her finger in her vagina over a number of hours while on Skype (Charge 49).
In response to the respondent’s threats and demands, V18 introduced her sleeping brother’s penis into her mouth and vagina. The respondent had said that it was either that or ‘have your dog’s dick in there’. He said that this would be his last request. V18 started crying and subsequently told the respondent that she was ashamed of herself. (Charge 50).
The respondent covertly made: two videos of the activity referred to at [84] above; a video of V18 exposing her brother’s penis; two videos of her introducing her brother’s penis into her mouth; and one video of her introducing her brother’s penis into her vagina. (Charge 51).
The respondent threatened to distribute explicit images of V18 to her mother if she did not do as he asked (Summary offence 209).
V19: Charges 52–54
V19 was 15 years of age at the time of the offending, which occurred between 1 June 2015 and 7 August 2015 (a period of 2 months and 7 days). She lived in Queensland. The respondent was then 26 years of age.
The respondent added V19 as a contact on Instagram. He requested a photograph of V19’s face and told her she was pretty. He asked for nude photographs but she refused. She complied with his request for a photograph in her bikini. He threatened to publish that photograph if she did not provide him with a nude photograph. He became aggressive and angry. She sent him photographs of her breasts and vagina. He wanted more and his threats escalated, including that he could cause her to be taken away from her family. (Charge 52).
The respondent asked V19 to insert the handle of a hairbrush in her vagina and send him photographs and videos. She sent him 15 photographs and a video of the hairbrush penetrating her vagina. At his request, she also inserted a glass bottle in her vagina and sent him photographs and a video depicting this. She also sent him a video of her digitally penetrating her vagina. He told her to ‘find random guys’ like her brother or a neighbour, to have sex with and that he wanted to see that activity. He told her to ‘rub up and down’ with her dog but then changed his mind and directed her to insert a spatula handle in her vagina. She complied even though she complained that it hurt. He directed her to insert a can but she was unable to do so. He then directed her to introduce her dog’s penis in her vagina and gave her very specific instructions on how to do that. She took photographs that looked as though she ‘had the dog there’. (Charge 53 — representative of five occasions).
Unknown to V19, the respondent saved three videos of V19 digitally penetrating her vagina and inserting a glass bottle and a hairbrush in her vagina (Charge 54).
V20 and V21: Charges 55–56 and summary charge 225
V20 and V21 were 12 years of age at the time of the offending, which occurred on 19 July 2015. They were school friends and lived in Western Australia. The respondent was then 26 years of age.
V20 and V21 were together at V21’s home. The respondent contacted V20 online and sent her a photograph of his face and asked her name. He flirted with V20 and asked for photographs of her. She sent him photographs of her face and of V20 and V21 trying on dresses.
The respondent asked V20 for a nude photograph. When she refused he became abusive and threatening. He threatened that he would contact V20’s boyfriend and tell him that she was sending photographs and cheating on him (Summary charge 225).
As a result of the respondent’s threats, V20 went to the toilet and took 10–15 photographs of her breasts and vagina and sent them to him. He kept asking for ‘just one more’ photograph and threatened to send to her friends the photographs she had already sent him. He directed her to send him three videos of her penetrating her vagina with a toothbrush and a carrot. She was upset and crying. (Charge 55).
When V20 came out of the toilet, she told V21 that ‘a guy’ was blackmailing her. V21 sent a message to the respondent telling him not to contact V20 again. He became angry and sent to V21 seven of the photographs that V20 had sent him. Four of the photographs depicted V20’s exposed vagina, one depicted her exposed breasts and two depicted her inserting a carrot in her vagina. (Charge 56).
V22: Charges 57–59 and summary charge 5
V22 was 14 years of age at the time of the offending, which occurred between 19 July 2015 and 4 August 2015 (a period of 17 days). She lived in Victoria. The respondent was then 26 years of age.
The respondent contacted V22 online and after some flirtation, he insisted that she promise to send him a nude photograph. She sent him a photograph of her exposed stomach. Following text message exchanges about what she had promised, she sent a photograph of her exposed breasts. He sent her a photograph of his penis. After the respondent asked V22 to have phone sex, she sent him more photographs of her breasts. The respondent watched V22 shower and shave her vagina via Skype. They discussed meeting to have sex. (Charge 57).
The respondent directed V22 to insert a finger in her vagina with a camera between her legs and told her that he wanted her to be penetrated by the penis of her brother or her dog. She refused. In readiness for a proposed meeting at which they would have sex, he directed her to try inserting in her vagina a hairbrush, a bottle, a deodorant can, a banana or a large carrot. She inserted a hairbrush and a can and tried a bottle but ‘it would not fit’. He then directed her to rub her clitoris, insert her finger in her vagina and have her dog lick her vagina. She complied. (Charge 58 — representative of four occasions).
When V22 told him that she was going to cut her wrist, he said that he would report her to the police for attempted suicide. When she threatened to report him to the police, he threatened to report her to the Department of Human Services.
The respondent covertly recorded six videos of: V22 showering naked and shaving her vagina; V22 digitally penetrating her vagina; V22 inserting a hairbrush, a can and an unknown object in her vagina; and V22’s dog licking her vagina (Charge 59).
The respondent threatened to share the videos of V22 that he had in his possession and her contact details with 750,000 people if she did not engage in sexual activity on webcam (Summary charge 5).
Charges 60–62
On 13 October 2014, V10 made a complaint to the Tasmanian Police. On 26 November 2014, the investigation of the complaint was transferred to Victoria Police. On 16 January 2015, Victoria Police executed a search warrant at the respondent’s home and seized an external hard drive, a laptop and a computer tower. The respondent was arrested and interviewed. He answered ‘No comment’ to all questions and was released pending further inquiries.
On 5 August 2015, V22 made a complaint to Victoria Police. On 7 August 2015, the police executed a further search warrant at the respondent’s home and seized a number of items, including an iPad, two laptops, memory cards and a mobile telephone. The respondent was again arrested. He gave ‘No comment’ answers in relation to most of the allegations that were put to him. He was charged with a number of offences and was remanded in custody.
When the items seized from the respondent’s home were examined, they were found to contain child pornography images depicting the victims. Those images are the subject of charges 4, 5, 8, 11, 15, 18, 20, 24, 28, 33, 35, 38, 40, 42, 45, 46, 51, 54 and 59. The police also found child pornography that was unrelated to the victims, which is the subject of charge 62. The images in this second group, and the categories in the ANVIL[14] scale in which they fall, are as follows:
[14]Australian National Victim Image Library.
Category Classification Guide Video Files Still Images 1 No Sexual Activity Depictions of children with no sexual activity – nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination 121 101 2 Child Non-Penetrate Non-penetrative sexual activity between children or solo masturbation by a child 417 16 3 Adult Non-Penetrate Non-penetrative sexual activity between a child and an adult, such as mutual masturbation 5 5 4 Child/Adult Penetrate Penetrative sexual activity between children or between a child and an adult, including intercourse, cunnilingus and fellatio 5 20 5 Sadism/
Bestiality/
Child Abuse
Sadism, bestiality, humiliation (urination, defecation, vomiting, bondage) or any other conduct falling within the definition of ‘child abuse’ in the Cth CCA 36 55 6 Animated or Virtual Anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity 0 0 Total Number 584 197
As a result of the respondent’s prior offending referred to below, on 25 August 2008 he was registered under the SORA for life. His reporting obligations pursuant to s 46(1) of that Act included that he report any user names deployed by him on the internet or any other electronic communication service, and any regular unsupervised contact he had with any child. Charge 60 relates to the respondent’s failure to notify of his unsupervised contact with all of the victims other than V9 (in respect of whom he gave police a misleading account of the nature of the contact). Charge 61 relates to the respondent’s failure to notify of 11 user names (such as ‘Bmx.chicky’) which he had used to contact victims via the internet and social media. Some of the respondent’s communications with the victims while using an alias were threatening and abusive.
It is to be noted that some of the offending against V15 and all of the offending against V16–V22 took place in the period between 16 January 2015 and 7 August 2015, that is, after the respondent was arrested on the first occasion and released pending further inquiries. During that period, he was aware that he was under police investigation.
Victim impact statements
Victim impact statements were prepared by V6, V9, V11, V11’s mother, V17, V18, V18’s father, V19’s mother, V22 and V22’s mother. These statements describe the devastating impact that the respondent’s offending has had, and continues to have, on his victims and their families. They have been affected psychologically, socially, physically and financially.
V6 stated that after the offending she stopped going to school, started taking drugs, chroming, using alcohol and engaging in other risky behaviour. She self-harmed and attempted suicide. She believed that she was not worthy of love and deserved to be abused. She said that she suffers from anxiety, has difficulty sleeping and has never had a job.
V9 stated that she has been diagnosed with post-traumatic stress disorder since the offending. She wrote that her ‘dignity, will power, dreams, hope and life [have been] taken away’ and that ‘the trauma of all of the events still lives on with [her] each and every day’.
V11 stated that she did not feel safe leaving her house to go to school, work or see friends. She experienced headaches which prevented her from sleeping. She was afraid that, after the respondent is released from prison, he could reoffend against her and the other victims. V11’s mother described her difficulty in sleeping properly after she learned about the offending against V11 and how she was stressed and scared about what would happen to V11 and the rest of her family. The mother wrote that she now suffered from anxiety and did not like being on her own or by herself around strangers.
V17 wrote that she suffered from anxiety, feared for her safety and was unable to leave the house alone because she did not know what was outside. She struggled with daily tasks, had trouble sleeping and had lost her appetite. She had been unable to work and was concerned about her ability to find work in the future. She stated that the memory of the offending would stay with her until she was old. She was wary of people around her and her father was the only person she could trust. She said that she does not get involved in relationships because she feels ‘used, disrespected, worthless, lost and just uncomfortable’.
V18 wrote that she now cannot trust anyone except her family. She described the period following the offending as a ‘time of sadness and darkness’ and stated that she had received counselling. Her father described as ‘horrific’ the emotional trauma that the offending has caused him and his family. He said that, for him, ‘a father’s worst nightmare’ had been realised and he felt that he had failed in his responsibility to protect his child.
The statement from V19’s mother described how her previously ambitious daughter now did not want to go to school, cried a lot, suffered from depression and wanted to self-harm and run away. She also stated that it was emotionally painful each day to see V19 take her medication to help her cope with day to day life.
V22 had self-harmed and overdosed on prescription medication and had been hospitalised five times. V22 did not go to school at all now and felt ‘sad, stressed and angry’. V22’s mother stated that she was stressed by having to constantly watch him and be vigilant about his safety.[15] Their relationship had changed and they did not spend time together as they used to. V22’s mother explained that she now experienced migraines and other health issues and some days she could not get out of bed. Her work hours had been reduced as a result and this, in addition to medical expenses for her and V22, had had a financial impact on her.
[15]V22 now prefers to identify as male.
Respondent’s personal circumstances
The respondent’s mother was 15 years old when she gave birth to him. He was raised by his maternal grandparents, who he believed were his biological parents. He was raised in regional Victoria alongside his biological mother — who he was told was his older sister — and had sporadic contact with his biological father. He first learned who his biological parents were when he was 11 years old. This caused considerable distress and difficulty in the home environment.
When the respondent was 14 years of age, his maternal grandmother committed suicide. From that time he variously lived with his grandfather, mother, father, or on the streets.
The respondent struggled socially and academically at school before leaving at the commencement of Year 10. He was periodically employed to perform unskilled work. As we have already stated, in 2011 he started the ‘Magic Grinding Wax’ business. It was relatively successful but ceased to operate when he was incarcerated.
The respondent no longer has any contact with any of his family members, except an aunt who has visited him once in gaol and occasionally speaks to him by telephone. He has a daughter from a previous relationship, who is about seven years old. He has been prevented from having any contact with her since 2008, when she was six months old, after he was convicted of the offences referred to below.
In approximately 1999, the respondent was diagnosed with an adjustment disorder with predominant disturbed emotions. He was prescribed antidepressants in 2004 but did not continue to use them. In 2007, he was diagnosed with personality dysfunction but no major mental disorder. He attended four sessions with a psychologist and learned calming techniques. A psychological report dated 20 August 2008 stated that he had symptoms of a number of mental illnesses including generalised anxiety disorder, post-traumatic stress disorder, major depression and suicidality.
A psychiatric report dated 17 February 2017, which was tendered on the plea, agreed with the 2007 assessment that the respondent suffered from personality dysfunction but did not have a major mental disorder. It was the psychiatrist’s view that:
[G]enerally speaking personality dysfunction in the realm of a borderline personality is probably right. That is, he has chronic suicidality, a poor sense of self, and is somewhat emotionally unstable. This blight on his personality is probably at least in part due to the less than straightforward upbringing he experienced. …
There is limited psychiatric explanation for the offending. Low self-esteem and poor social circumstances are probably factors though do not form specific motivation. I do not see psychiatric illness specifically relevant to the breadth of the offending.
The respondent told the psychiatrist that he knew that what he was doing was wrong; he did not specifically seek underage girls; age was not an arousing factor; most of the time he was ‘just horny’; and the only commonality amongst the victims was that they were ‘just females’.
The respondent has some history of drug and alcohol abuse, but it was not suggested that it played a role in his offending.
Since the respondent was remanded in custody, he has found prison difficult. He has been targeted by other prisoners due to the nature of his offending and he has been held in protection.
History of prior offending
On 25 August 2008, the respondent was convicted on his plea of guilty of three charges of sexual penetration of a child under 16 years, two charges of committing an indecent act with a child under 16 years and one charge of possession of child pornography. The first two offences arose out of a relationship the respondent had, when he was 18 years old, with a girl he knew to be 13 years old. The respondent had met the victim in an internet chat room and the relationship lasted two to three months, during which he digitally and orally penetrated the victim’s vagina and she engaged in oral sex with him and masturbated his penis. The child pornography charges related to still images of girls between 13 and 15 years of age, and one photograph involving two young boys on the respondent’s computer.
In sentencing the respondent for that offending, Judge Lawson accepted that the respondent’s sexual relationship with the victim developed in the context of a boyfriend and girlfriend relationship. The judge noted that the respondent had acknowledged that his actions were not right and accepted that he was ‘to a degree naïve and that this is not a case where [he] deliberately set out to exploit the young victim’.[16] The judge was satisfied that the respondent’s offending was a consequence of his personal problems and depressive condition, rather than paedophilic in nature, that his plea of guilty was evidence of true remorse, and that he had insight into his offending. During the course of her sentencing remarks, the judge warned the respondent as follows:
[I]f you are going to be forming relationships, it must be relationships that are age appropriate and you must ensure that the person with whom you do engage in intimate sexual relationships is of an age where she can provide her consent.[17]
[16]R v Meharry [2008] VCC 1026 [12].
[17]R v Meharry [2008] VCC 1026 [29].
The respondent was sentenced on two of the charges to a total effective sentence of 12 months’ imprisonment, wholly suspended for 12 months, and in respect of the third charge, he was released on a community based order (‘CBO’) for 12 months. The CBO included special conditions that he undergo psychological or psychiatric treatment and participate in a sex offender treatment program. He was also registered for life under the SORA.
On 16 March 2015, the respondent was convicted in the Shepparton Magistrates’ Court of five charges of failing to comply with his reporting obligations under the SORA and was fined $600.
Sentencing remarks
The judge described the respondent’s offending as a ‘nine year reign of trauma’.[18] She observed that the offending occurred almost continuously from early 2010 until the respondent’s second arrest on 7 August 2015, and that the duration of the offending against each victim had ranged from a single day to up to four years. She stated that his behaviour was ‘abhorrent’, ‘callous’ ‘overbearing’, ‘bullying’ and ‘dominating’.[19] She said that the respondent had ‘treated these young girls as objects, demanding they undertake ever more depraved and perverted activities, forcing them to continue over prolonged periods of time in the face of their evident distress and sometimes pain’.[20]
[18]Sentencing remarks [97].
[19]Sentencing remarks [86], [89], [92].
[20]Sentencing remarks [93].
The judge found that the respondent’s offending ‘represented an exercise of sadistic power by [him] which grew more insatiable as time went on’ and that he ‘appeared to relish the power [he] had over [the victims]’.[21] As noted earlier, the judge described the overall gravity of the respondent’s offending as follows:
Yours was prolonged, classically predatory, depraved, cruel and remorseless behaviour, which demonstrated with appalling clarity, the dangers inherent in social media, requiring the formulation of punitive legislation designed to protect, as far as it can, the young and vulnerable from persons [such] as yourself. It would not be unfair to classify you as a monster of depravity.[22]
[21]Sentencing remarks [89], [94].
[22]Sentencing remarks [98].
The judge took into account the victim impact statements, which she described as ‘extremely distressing reading’.[23] She said that the victims and parents who wrote statements remained traumatised and that the numerous negative effects upon them were ‘entirely unsurprising in light of their sexual exploitation at [the respondent’s] hands’.[24]
[23]Sentencing remarks [83].
[24]Sentencing remarks [84].
The judge stated that ‘this [was] a case where principles of community protection, general deterrence, just punishment, condemnation and condign punishment dominate the sentencing exercise before [her].’[25] With respect to the State offences, the judge sentenced the respondent as a serious sexual offender. She took into account that the prosecution did not seek a disproportionate sentence and the further submission that the sentence imposed should not be crushing.
[25]Sentencing remarks [100].
The judge found that there was little that could be said in mitigation of the respondent’s offending. She took into account the respondent’s early plea of guilty which, although entered in the face of an overwhelming prosecution case, had utilitarian value because it saved the community considerable time and expense and spared the victims the trauma of having to give evidence. The judge also took into account that the period of imprisonment imposed would be rendered more difficult for the respondent due to his isolation, lack of family support and the media attention that his offending had received.
The judge was not persuaded that the respondent was genuinely remorseful, given that he had offended repeatedly against victims he knew to be young, and ‘in the face of their protests and distress’.[26] She also found his stated remorse difficult to accept in the light of Judge Lawson’s sentencing remarks referred to above — made while the respondent was already offending against V1 — and because, despite being registered under the SORA and his arrest in January 2015, he nevertheless continued, and escalated, his offending while he knew that he was under police investigation.
[26]Sentencing remarks [79].
The judge found that the respondent’s prospects of rehabilitation were poor and that he was a continuing danger to the community. She said that the respondent’s background, although difficult and complex, did not provide any explanation for his behaviour.
The judge also found that the psychiatric report tendered on the plea provided little explanation for the offending. She concluded that, despite being able to enter into age-appropriate relationships, and his statements to the psychiatrist that he was not sexually attracted to young females specifically, the respondent had ‘deliberately targeted … very young teenage girls’[27] because of his ability to exploit their youth and vulnerability. She did not accept that the respondent felt disgust and shock about his offending, as he had professed to the psychiatrist.
[27]Sentencing remarks [96].
Grounds of appeal
The Directors’ Ground 1 is in the following terms:
The overall sentence and the individual sentences imposed by the learned sentencing judge are manifestly inadequate.
Particulars: The [s]entence reflects that the learned sentencing judge in setting the total effective sentence, individual sentences, orders for cumulation, non-parole period and date of commencement of the sentences:
(a)failed to give sufficient weight to the sentencing principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence;
(b)failed to properly reflect the gravity of the offending;
(c)failed to have sufficient regard to the impact of the offences upon the victims;
(d)failed to have sufficient regard to the maximum penalties for the offences;
(e)failed to have sufficient regard to the duration of the offending, both in terms of individual charges and the breadth of the offences;
(f)failed to have sufficient regard to the status of the respondent as a person with relevant prior convictions, subject to a suspended sentence and under active police investigation;
(g)made orders for concurrency, cumulation and commencement dates in respect of all sentences imposed that resulted in a total effective sentence and non-parole period that are manifestly inadequate in all the circumstances; and
(h)in imposing the date of the commencement of the State sentence, the learned sentencing judge engaged in excessive ‘double discounting’
with the result that the sentence is manifestly inadequate.
The Victorian Director’s Ground 2 is in the following terms:
The learned sentencing judge failed to order cumulation on the State charges consistent with the requirements of s 6E Sentencing Act 1991.
Ground 1: Manifest inadequacy
Parties’ submissions on Ground 1
The Directors conceded that the sentencing task confronting the sentencing judge was ‘complex in the extreme’. However, they submitted that, for the reasons set out in the particulars to Ground 1, the individual sentences, orders for cumulation and total effective sentence were not reasonably open to the judge.
The Directors contended that the sentences imposed by the judge did not reflect the gravity of the respondent’s offending or the impact of the offences on the victims. According to the Directors, the offending was ‘exceptionally serious’, in the light of:
(a)the modus operandi used by the respondent to target a large number of underage girls;[28]
(b)the fact that the offending continued over a nine year period, with many victims offended against on multiple separate occasions;
(c)the respondent’s persistence in the face of protests by the victims and despite being aware that they were distressed; and
(d)the respondent’s use of threats and manipulation which preyed on the vulnerability of the young and inexperienced victims.
[28]See [12] above.
The Directors emphasised that the respondent’s offending included:
(a)maintaining a sexual relationship with one of the victims over a period of 10 months;
(b)penetrative offending against two other victims following face-to-face meetings with them;
(c)causing a victim to be penetrated by an unknown male and for her vagina to be rubbed on the outside of her underwear by a male student;
(d)forcing a 14 year old victim to perform incestuous acts upon her sleeping eight year old brother;
(e)coaxing five victims into engaging in acts of bestiality with a dog;
(f)encouraging many of the victims to penetrate their vaginas with their fingers and household objects;
(g)filming the victims engaging in sexual acts and threatening to disseminate this material unless they engaged in further sexual acts; and
(h)possession of extensive child pornography.
The Directors contended that the judge had given insufficient weight to general and specific deterrence. They argued that general deterrence was a significant sentencing consideration because of the prevalence of offending of this kind, the ease with which such offences can be committed and the difficulty of detecting and prosecuting offenders. They also argued that specific deterrence ‘loomed large’ given the respondent’s relevant prior history; the commission of one of the offences while he was subject to the 2008 suspended sentence; the commission of further offences against eight victims in 2015 while he was aware that he was under police investigation; and the lengthy period over which the significant number of offences were committed.
According to the Directors, the sentences imposed on the respondent did not adequately reflect the need for community protection, just punishment and denunciation, the impact on the victims and the substantial maximum penalties which reflected the seriousness with which Parliament considered offending of this type.
The Directors submitted that the individual sentences imposed for all of the Federal charges were manifestly inadequate because they did not reflect the objective seriousness of the offending. The Directors also submitted that the sentences imposed for the following State charges were manifestly inadequate: charge 23 (persistent sexual abuse of V9, then aged 15 years); charge 27 (procuring sexual penetration of V10, then aged 15, by an unknown male); and charge 50 (procuring V18, then aged 14, to perform incestuous acts upon her sleeping eight year old brother).
The Directors contended that the orders for cumulation and the commencement dates for the respective Federal and State sentences did not sufficiently reflect the separate and distinct forms of serious criminality committed against multiple victims, each involving acts of a grave nature.
In respect of individual orders for cumulation, the Directors particularly singled out the total cumulation relating to V4, V7, V10, V11, V14 and V20, which in each case was less than 10 per cent of the combined sentences imposed in respect of that victim. For example, in respect of V11, although the sentences for charges 29–33 totalled 6 years and 6 months’ imprisonment, only five months (or 6.4 per cent) was cumulated for those charges. The Directors also argued that the cumulation of 1 month for the sentence of 6 months relating to charge 1 was manifestly inadequate because the offending occurred while the respondent was subject to the suspended sentence imposed in 2008.
In respect of the judge’s orders that the sentences for the Federal offences commence on 22 March 2017 and the sentences for the State offences commence on 7 May 2018, the Directors submitted — and the respondent conceded — that the judge had erred in adjusting the commencement date of the State offences from 7 December 2019 to 7 May 2018 by deducting the pre-sentence detention period of 593 days. According to the Directors, even if the correct date of 7 December 2019 were used, the respective commencement dates for the Federal and State offences produced concurrency of 5 years and 4 months and cumulation of only 2 years and 9 months for those offences. This concurrency was said to be excessive in all the circumstances and to constitute ‘double discounting’.
The respondent submitted that the individual sentences, orders for cumulation and total effective sentence were reasonably open to the judge. According to the respondent, those sentences were just and appropriate and reflected the gravity of his offending — which the judge correctly characterised as very serious — and the other applicable sentencing considerations. Those considerations were said to include protection of the community, just punishment, denunciation, general deterrence and specific deterrence. According to the respondent, the judge did not give insufficient weight to these considerations or fail to have regard to the maximum penalties for the various offences.
With regard to the gravity of the offending and the impact on the victims, the respondent referred to statements in the judge’s sentencing remarks which were said to demonstrate that she had paid due regard to those matters. Other statements of the judge were said to demonstrate that she had had sufficient regard to the status of the respondent as a person with relevant prior convictions and who offended while he was subject to a suspended sentence and under police investigation.
In relation to the orders for cumulation and the commencement dates for the respective Federal and State offences, the respondent submitted that these gave appropriate effect to the principle of totality and the need to avoid a crushing sentence. The respondent relied on observations made by Redlich JA in Hoy v The Queen[29] to the effect that, in cases involving a large number of charges, a judge may adopt a ‘broad brush’ approach to sentencing and that structural objections to sentences imposed in such cases should be discouraged unless they reveal error in the instinctive synthesis.[30] According to the respondent, despite some internal inconsistencies between individual sentences, the moderation of the individual sentences and the degree of cumulation ensured that the overall sentence was a just and appropriate measure of the total criminality involved and did not reveal any error.[31]
[29][2012] VSCA 49 (‘Hoy’).
[30]Hoy [2012] VSCA 49 [17]–[18].
[31]The respondent relied on Mill v The Queen (1988) 166 CLR 59 and Azzopardi v The Queen (2011) 35 VR 43.
In oral submissions, senior counsel for the respondent conceded that a total effective sentence of more than 12 years’ imprisonment would not have been self-evidently disproportionate. He maintained, however, that having regard to the acutely difficult sentencing task that the judge faced, this Court should be slow to interfere with her sentence. Senior counsel also submitted that the offending in the present case had unique features and that it was difficult to find comparable cases that were capable of providing any meaningful assistance. According to senior counsel, as the judge properly characterised the gravity of the respondent’s offending and gave appropriate weight to all applicable sentencing considerations — including, in particular, proportionality and totality — it could not be said that the sentences she imposed were not reasonably open to her. This remained the case, so it was said, even if some individual sentences — whether considered in isolation or relative to sentences on other charges — could be characterised as being too low.
Decision on Ground 1
In our opinion, Ground 1 must be upheld. The total effective sentence and non-parole period, and many of the individual sentences and orders for cumulation, are manifestly inadequate. It was not reasonably open to her Honour to impose those sentences for this offending if proper weight was given to the relevant sentencing considerations, and in particular to the objective gravity of the offending and the impact on the victims.[32]
[32]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
The judge was correct to use strong language to describe the gravity of the respondent’s offending. As her Honour said, the offending was ‘abhorrent’, ‘callous’, ‘prolonged’, ‘classically predatory’, ‘depraved’, ‘cruel’ and ‘remorseless’.[33] In our respectful view, however, this assessment of the gravity of the offending is not reflected in the total effective sentence of 12 years’ imprisonment. It seems to us that there is a striking disconnect between those findings and that sentence.
[33]See [129]–[130] above.
There are many disturbing — and some uniquely horrifying — features of the respondent’s offending which elevated its seriousness. Those features are as follows.
First, the prolonged period of offending of nearly nine years. Although there was a gap of over a year between the conclusion of the offending in respect of charge 1 on 21 September 2008 and the commencement of the offending in respect of charge 2 on 8 March 2010, the offending was almost continuous between 8 March 2010 and 7 August 2015. As noted at [14] above, there were occasions when the respondent was abusing more than one victim within the same time frame. For example, the period of abuse for each of V9, V10, V11 and V12 included 1 June 2014, and the period of abuse for each of V19, V20, V21 and V22 included 19 July 2015.
Secondly, the lengthy periods of offending against individual victims. The worst examples were: 2 years, 10 months and 13 days for V2; 1 year, 9 months and 3 days for V1; 1 year, 4 months and 19 days for V9; and 11 months and 14 days for V6.
Thirdly, a large number of the individual charges represented multiple instances of illegal conduct. As appears from the table at [9] above:
(a)11 of the charges of using a carriage service for sexual activity with a person under 16 years, one of the charges of sexual penetration of a child under 16 years and one of the charges of compelling sexual penetration were representative charges;
(b)15 of the charges of producing child pornography, the charge of transmitting child pornography, two of the charges of failing to comply with reporting obligations and the charge of possessing child pornography were rolled up charges; and
(c)one of the charges of sexual penetration of a child under 16 years and one of the charges of procuring sexual penetration of a child under 16 years were composite charges.
Fourthly, the large number of young victims. The ages of the respective victims at the time of the commencement of the offending against them were as follows: one was 11 years of age; three were 12; one was 13; eight were 14; six were 15; one was 16; and two were 17.
Fifthly, the respondent’s offending extended to victims residing in every Australian State. Unfortunately, the use of the internet means that State boundaries and long distances afford no protection.
Sixthly, all of the offending involved a calculated taking advantage of vulnerable underage girls. It was systematic and persistent, rather than occasional and isolated.[34] The respondent cynically manipulated many of the victims into committing vile and degrading sexual acts for his perverted sexual pleasure. He did so by persuading them to send him explicit photographs of themselves and then threatening to humiliate and embarrass them by publishing those photographs if they did not do as he demanded. He often resorted to verbal abuse, and threats of reporting the victims to the police or committing suicide, to ensure continuation of the sexual activity despite the victims’ protests.
[34]The respondent’s modus operandi is summarised at [12] above.
The respondent’s conduct displayed a callous disregard for the dignity and wellbeing of his victims. This is exemplified by his insistence that five of the victims engage in acts of bestiality,[35] that one victim engage in incestuous conduct[36] with her younger brother and that many of the victims penetrate their vaginas with large and hazardous household objects. And he persisted with his demands notwithstanding that he was aware that some of his victims were distressed and in pain. Some of the online sessions involving sexual activity by the victims extended over many hours.
[35]Although it was not charged as such.
[36]Although it was not charged as such.
Seventhly, the respondent’s offending involved third parties, namely, the unknown male who digitally penetrated V10 in her bedroom, the male student who rubbed V10’s vagina outside of her underwear, and V18’s eight year old brother. Further, the respondent insisted on listening to V9 having sex with her boyfriend.
Eighthly, as stated earlier, in all but two instances, the respondent knew the age of his victims. He offended against them notwithstanding the warning that Judge Lawson had given him on 25 August 2008 that he should confine himself to age-appropriate sexual relationships. Indeed, the period of his offending against V1 included 25 August 2008.
Ninthly, an aggravating feature of the offending against V1 was that it occurred during the period of the suspended sentence and the CBO that were imposed on the respondent on 25 August 2008.
Nor, with respect, does the total effective sentence adequately reflect the devastating toll that the respondent’s offending took on the individual victims and their families. He robbed them of their youth and caused significant emotional and psychological trauma. The lives of some have been irreparably damaged.
The sentences also needed to satisfy the requirements of general and specific deterrence. As to general deterrence, online sexual offences against children — including possession of child pornography — are easy to commit and difficult to detect. As the present case demonstrates, the internet and social media facilitate offending across large geographical areas against multiple victims simultaneously at any time of the day or night. This case also demonstrates that young victims are often reluctant to tell family members or the police about the offending, thus enabling the predatory behaviour to continue for lengthy periods. It is therefore essential that those who may be tempted to engage in such offending clearly understand that, if they do so, they will be sentenced to significant terms of imprisonment.
Specific deterrence was a central sentencing consideration in the present case, for the following reasons.
First, the respondent had a relevant criminal history, in particular his convictions on 25 August 2008 of three charges of sexual penetration of a child under 16 years, two charges of committing an indecent act with a child under 16 years and one charge of possessing child pornography.
Secondly, while the respondent was the subject of a suspended sentence and a CBO for those offences, he continued to offend against V1. Indeed, as we have said, the day upon which Judge Lawson warned him to confine himself to age-appropriate sexual relationships fell within the period of offending against V1. The respondent did not heed this warning or alter his behaviour as a result of the lenient sentences imposed in 2008. Further, the fact that he had life-long reporting obligations under the SORA did not deter him from further offending.
Thirdly, rather than refraining from further offending after he was released following his first arrest on 16 January 2015, the respondent escalated his offending even though he was aware that he was under police investigation. This disregard for the risk of his offending being exposed was not confined to the period after 16 January 2015. Although the respondent sometimes used aliases, he often identified himself to his victims and did not take even rudimentary precautions to conceal his offending. Indeed, the respondent’s offending did not cease until he was remanded in custody.
Fourthly, the respondent showed little insight into the horrific nature of his offending and the serious and long-term harm that he caused his victims. The judge was right to conclude that the respondent had not shown genuine remorse, that his prospects of rehabilitation were poor, and that he remained a danger to the community.
In the circumstances of this case, it was essential that the total effective sentence be sufficiently lengthy to ensure condign punishment, denunciation and protection of the community. The total effective sentence imposed by the judge did not satisfy those sentencing purposes.
We now turn to consider the adequacy of the individual sentences. In our opinion, most of the individual sentences fail to reflect the gravity of the relevant offending and the impact on the victims. Consequently, they are well below the range of sentences reasonably open to the judge. By way of example, we will consider the sentences imposed for charges 22, 23, 41, 48, 50 and 53.
The offending the subject of charge 22 is summarised at [46] above and the effects of the offending on V9 (including post-traumatic stress disorder) are summarised at [110] above. That charge was a representative charge involving 11 instances of the commission of the offence of using a carriage service for sexual activity with a person under 16 years of age. Those occasions included, at the respondent’s request, V9 digitally penetrating her vagina, inserting a banana in her vagina, allowing the respondent to listen to V9 and her boyfriend having sex, and V9 getting her dog to lick her vagina. The respondent coerced V9 into engaging in repulsive activity by threatening to post explicit photographs of her online or to kill himself if she did not comply with his demands. V9 was then aged between 14 and 15 years and the respondent was 24 years of age. The judge’s sentence of 3 years’ imprisonment with cumulation of 6 months for this offending is wholly inadequate having regard to the gravity of the offending and the 15 year maximum penalty.
The offending the subject of charge 23 is summarised at [47] above. It also involved V9. The offence of persistent sexual abuse of a child under 16 years comprised sexual activity between the respondent and V9 on 32 occasions between 31 August 2013 and 30 June 2014. The activity included digital and penile penetration of V9’s vagina and resulted in her suffering a miscarriage. The judge’s sentence of 5 years’ imprisonment — which was the base sentence for the State charges — for this offending fails to adequately reflect the prolonged nature of the offending and the 25 year maximum penalty.
The offending the subject of charge 41 is summarised at [71] above. The charge was a representative charge involving two instances of the commission of the offence of compelling sexual penetration in relation to V15. The respondent threatened V15 that he would send naked photographs of her to her mother, unless she complied with his demands. V15 tried to resist but complied when the respondent aggressively repeated his threats. As demanded by him, she digitally penetrated her vagina and inserted in her vagina a hairbrush, a chair leg and a pen. She also allowed her dog to lick her vagina. The penetrative activity and the licking of her vagina lasted three hours. V15 was then 17 years of age and the respondent was aged between 25 and 26 years. The judge’s sentence of 4 years’ imprisonment with cumulation of 6 months for this offending is well below the range of sentencing options reasonably open to the judge.
The offending the subject of charge 48 is summarised at [83] above and the effects of the offending on V18 (including her loss of trust of everyone except her family) are summarised at [113] above. That charge was a representative charge of the offence of using a carriage service for sexual activity with a person under 16 years. The particulars of the offending included the respondent pressuring V18 to engage in sexual activity with her sleeping younger brother. The respondent told V18 that she could go to gaol for engaging in that activity, tried to pressure her to engage in sexual activity with her younger sister and threatened to send to her mother a compromising photograph of V18 with her brother and provide photographs to the police. When V18 became distressed and said that she wanted to kill herself, the respondent told her that the only way to avoid the police being involved was for her to do as he asked. V18 was then 14 years old and the respondent was 26 years old. The judge’s sentence of 14 months’ imprisonment with cumulation of 1 month is woefully inadequate.
The offending the subject of charge 50, which is a composite charge, is summarised at [85] above. It also involved V18. The offence of procuring sexual penetration of a child under 16 years of age related to V18 introducing her sleeping brother’s penis into her mouth and vagina in response to the respondent’s threats and demands. The offending caused V18 to cry and to feel ashamed of herself. The judge’s sentence of 4 years’ imprisonment with cumulation of 6 months fails to adequately reflect the seriousness of the offending and the maximum penalty of 10 years’ imprisonment.
The offending the subject of charge 53 is summarised at [90] above. The effects of the offending on V19, as described in her mother’s victim impact statement, are set out at [114] above. The charge is a representative charge of five instances of the commission of the offence of using a carriage service for sexual activity with a person under 16 years. At the respondent’s request, V19 inserted a hairbrush, spatula handle and glass bottle in her vagina and digitally penetrated her vagina. The respondent also directed V19 to insert a can but she was unable to do so. Further, he directed her to introduce her dog’s penis in her vagina. The judge’s sentence of 3 years’ imprisonment with cumulation of 6 months is plainly manifestly inadequate.
The cumulation ordered by the judge in respect of many of the charges is very modest, often not exceeding one month. In respect of many of these charges, such cumulation fails to adequately reflect the separate and distinct offending that those charges comprised and the moral culpability that they involved.
It is true that orders for cumulation do not involve a mechanical mathematical exercise and, in the case of multiple offences, may need to be moderated to give effect to the principles of totality and proportionality. However, the orders for cumulation made by the judge are so low that, for the reasons set out at [155]–[164] above, the resultant total effective sentence fails to reflect the gravity of the respondent’s overall offending.
We agree with the Directors’ submission that the commencement dates ordered by the judge for the Federal and State offences have resulted in excessive concurrency between those offences. This too has contributed to the total effective sentence failing to reflect the gravity of the respondent’s overall offending.
Ground 2: Cumulation in accordance with s 6E of the Sentencing Act 1991
It will be recalled from the table at [9] above that the respondent was sentenced for all of the State offences as a serious sexual offender.
Section 6E of the Sentencing Act 1991 provides as follows:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
The Victorian Director submitted that the cumulation of one month that was ordered in respect of individual sentences of one year or more for charges 4, 15, 18, 24, 27, 28, 31, 33, 38, 40, 42, 51, 54 and 59 failed to adequately give effect to s 6E.[37]
[37]The Victorian Director relied on DPP v Hopson [2016] VSCA 303 [43], [49].
The respondent submitted that the orders for cumulation on the State charges were consistent with s 6E and involved an appropriate balance between the need for cumulation when sentencing a serious sexual offender and the need to take into account matters advanced in mitigation and to avoid a sentence which would be crushing. The respondent contended that, even if the judge made a specific error in relation to s 6E, this Court should exercise its residual discretion not to interfere with the sentence.
As the sentencing discretion has been reopened and the respondent will be resentenced in consequence of our upholding of Ground 1, it is not necessary for us to consider Ground 2.
Resentence
We would resentence the respondent as follows:
Offence Charge Victim Sentence Cumulation Using carriage service to groom person under 16
1 V1 18 m 2 m 2 V2 1 y 1 m 6 V4 2 y 1 m 9 V5 6 m 1 m 12 V6 2 y 1 m 16 V7 1 y 1 m 21 V9 3 y 3 m 25 V10 6 m 1 m 29 V11 3 y 2 m 36 V13 2 y 1 m 43 V16 2 y 1 m 47 V18 2 y 1 m 52 V19 3 y 2 m Grooming for sexual conduct with child under 16 57 V22 2 y 1 m Using carriage service for sexual activity with person under 16 3 V2 5 y 3 m 7 V4 3 y 2 m 10 V5 3 y 3 m 13 V6 2 y 2 m 17 V7 4 y 3 m 19 V8 2 y 2 m 22 V9 6 y 5 m 26 V10 3 y 2 m 30 V11 3 y 2 m 34 V12 3 y 2 m 37 V13 8 y 7 m 39 V14 3 y 3 m 44 V16 2 y 2 m 48 V18 8 y Base (Cth) 53 V19 8 y 7 m 55 V20 3 y 3 m 58 V22 7 y 6 m Producing child pornography 4 V2 2 y 1 m 5 V3 4 y 4 m 8 V4 1 y 1 m 11 V5 1 y 1 m 15 V6 2 y 1 m 18 V7 2 y 1 m 20 V8 3 y 1 m 24 V9 5 y 2 m 28 V10 3 y 1 m 33 V11 2 y 1 m 35 V12 2 y 1 m 38 V13 4 y 2 m 40 V14 2 y 1 m 42 V15 5 y 2 m 45 V16 2 y 1 m 46 V17 2 y 2 m 51 V18 5 y 2 m 54 V19 2 y 1 m 59 V22 5 y 2 m Transmitting child pornography 56 V21 3 y 3 m Sexual penetration of a child under 16 14 V6 4 y 4 m 31 V11 4 y 4 m Procuring sexual penetration of a child under 16 27 V10 3 y 3 m 50 V18 5 y 5 m Compelling sexual penetration 41 V15 8 y 8 m 49 V18 3 y 3 m Persistent sexual abuse of a child under 16 23 V9 8 y Base (Vic) Indecent act with a child under 16 32 V11 18 m 1 m Failing to comply with reporting obligations 60 - 3 y - 61 - 1 y - Possessing child pornography 62 - 3 y 3 m Summary charges of threatening to distribute intimate image 5 V22 3 m - 209 V18 3 m - 212 V16 3 m - 216 V15 3 m - 225 V20 3 m - State Sentences Commence on 21 December 2017 Total effective sentence 13 y, 3 m Non-parole period 8 y Federal Sentences Commence on 21 December 2025 Total effective sentence 14 y Non-parole period 10 y Effective Global Sentence 22 y, with non-parole period of 18 y
It will be noted in the records of the Court that, in relation to the State charges on the indictment, other than charges 60 and 61, the respondent has been sentenced as a serious sexual offender. In accordance with s 6D of the Sentencing Act 1991, we have had regard to the protection of the community from the respondent as the principal purpose of sentencing him but have not imposed a disproportionate sentence. We have ‘otherwise directed’ for the purposes of s 6E of that Act, that is, we have not directed that the entirety of the sentences for the State sexual offences be served cumulatively.
Pursuant to s 6AAA of the Sentencing Act 1991 a declaration will be made that, but for the respondent’s plea of guilty, we would have sentenced him to a total effective sentence of 27 years’ imprisonment with a non-parole period of 23 years.
A declaration will also be made that the respondent must continue to comply with the reporting obligations imposed by pt 3 of the SORA.
PRIEST JA:
Substantially for the reasons given by the other members of the Court, whose judgment I have had the considerable advantage of reading in draft, I agree that these appeals must be allowed and the respondent resentenced in the manner proposed. Without in any way derogating from what their Honours have written, however, I wish to add some brief observations of my own.
To my mind, the two intertwined sentencing principles which should be given primacy in the exercise of the sentencing discretion in the instant case are punishment and specific deterrence.[38] The respondent’s history of offending amply demonstrates that a very large measure of specific deterrence — accomplished through the medium of stern punishment — is required in order to protect the community from the respondent’s dangerous proclivities.[39] Additionally, stern punishment is required to reflect denunciation of his conduct.[40]
[38]See Sentencing Act 1991, ss 5(1)(a) and (b).
[39]Sentencing Act 1991, s 5(1)(e).
[40]Sentencing Act 1991, s 5(1)(d).
In that regard, it will be remembered that on 25 August 2008 the respondent pleaded guilty in the County Court to sexual penetration of a child under 16 (three charges) and committing an indecent act with a child under 16 (two charges), the victim being a 13 year old girl whom the respondent met in an internet chat room. (The respondent also pleaded guilty to one charge of possessing child pornography.)
Through his counsel, the respondent advanced the contention that his sexual relationship with the victim developed in the context of a ‘boyfriend and girlfriend’ relationship.
Of course, what was unknown to the judge who sentenced the respondent to a suspended term of imprisonment and a CBO on that occasion,[41] was that the respondent had been grooming another victim, V1, since 19 December 2006. (It is also significant that, having been warned by the sentencing judge in the course of her sentencing remarks that he should restrict himself to age-appropriate relationships, within a few months after the expiry of the suspended sentence and CBO the respondent was again grooming another young female aged 14 years.)
[41]See R v Meharry [2008] VCC 1026 (Judge Lawson, 25 August 2008).
Axiomatically, the respondent is not to be punished again for the earlier offending for which he was sentenced in 2008. That offending does, however, remain highly relevant to the imposition of sentence for the current offending. As Charles JA (with the concurrence of Winneke P and Southwell AJA) observed in O’Brien:[42]
It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.
[42]R v O’Brien and Gloster [1997] 2 VR 714, 718.
His Honour went on to cite the following well-known passage from Veen:[43]
… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 642, at p 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
[43]Veen v The Queen (No 2) (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ).
Quite apart from his prior convictions, it is also important to the imposition of sentence that, he having been arrested on 16 January 2015 in the course of the investigation into many of the present charges, the respondent insolently continued offending — including against V15, V16, V17, V18, V19, V20, V21 and V22 — until his subsequent arrest on 7 August 2015.
Thus, not only had the respondent not been deterred from further offending by the relatively lenient sentences imposed upon him in 2008, but he continued brazenly to commit very serious offences notwithstanding that he knew that his activities were subject to police investigation. It cannot be gainsaid, therefore, that the community — in particular, that part of the community represented by pre-teenage and teenage internet-using females — requires protection from the respondent’s dangerous propensities. Moderate sanctions, and the threat of detection, have not been sufficient to effect the respondent’s reformation. In those circumstances, the Court would utterly fail in its duty if it did not impose a sentence of the appropriate severity calculated to deter the respondent from the repetition of his aberrant criminal conduct. (Added to that, of course, in arriving at a sentence of imprisonment which is adequate in all of the circumstances, the Court must take into account the need for general deterrence properly to be reflected in the sentence.)
I am cognisant of the fact that the discretion which the law commits to sentencing judges is of vital importance in the administration of criminal justice; and that, on an appeal such as this, the members of this Court may not substitute our own opinion for that of the sentencing judge simply because we would have exercised our discretion differently. Bearing the need for appellate restraint steadily in mind, however, I have nonetheless concluded that the sentence imposed at first instance is manifestly inadequate. In my opinion, the sentence originally imposed is wholly outside the range of sentencing options available to the sentencing judge, in the sense that it was not reasonably open to her Honour to arrive at the sentence that she did had proper weight been given to all of the relevant circumstances of the offending and of the respondent. I am of the view that, first, the individual sentences of imprisonment on each charge; secondly, the total effective sentence arrived at by the orders designed to effect cumulation; and, thirdly, the non-parole period; are simply — and manifestly — too short. That conclusion does not depend upon attribution of identified specific error in the reasoning of the sentencing judge (who, so it appears to me, adverted to relevant considerations).[44] The conclusion of manifest inadequacy means, however, that the appeals must be allowed and the respondent resentenced by this Court.[45]
[44]See DPP v Zhuang (2015) 250 A Crim R 282, 295–300 [39]–[49] (Redlich, Priest and Beach JJA).
[45]There is no occasion to exercise the residual discretion to dismiss the appeal.
In approaching the task of resentencing, it is difficult not to have an emotional response to the respondent’s offending, which sank to depths of depravity rarely (if ever) encountered. Much of the offending was unnatural, twisted and disturbingly sadistic. Procuring a number of the female children to engage in acts of bestiality[46] with their pet dogs — as in the case of V9, V13, V15, V19 and V22 — was wicked and grotesque. And to procure V18 to commit incest[47] with her eight year old brother, was evil and gravely degenerate.
[46]Although it was not charged as such.
[47]Although, once again, it was not charged as such.
That said, a sentencing court’s approach to the imposition of sentence must be objective, divorced from the natural human emotional responses provoked by conduct as repugnant as the respondent’s. Feelings of disgust generated by the respondent’s abhorrent behaviour, and the natural feelings of sympathy engendered by the plight of the respondent’s young victims — many of whom provided victim impact statements describing the profound effect upon them of the respondent’s offending — cannot be permitted to obscure the necessity faithfully to apply the principles of proportionality and totality. The individual sentences proposed by the other members of the Court, coupled with the orders to effect cumulation between the sentences, result in a sentence which is proportionate to the respondent’s overall offending — which, at the risk of repetition, spanned a nine year period and embraced 22 vulnerable victims, many (if not all) of whom suffered harm[48] — and which pays due heed to the principle of totality. Further, in my view, once more paying due regard to proportionality and totality, the non-parole period proposed properly represents the period before the expiration of which the conditional release of the respondent would be in violation of justice according to law.[49]
[48]See Sentencing Act 1991, ss 5(2)(daa), (da) and (db).
[49]R v Morgan (1980) 7 A Crim R 146, 154; Power v The Queen (1974) 131 CLR 623, 625–6.
Finally, I cannot leave this matter without expressing sympathy (indeed, empathy) for the sentencing judge, who was faced with an extremely difficult sentencing task. Quite apart from the summary charges, her Honour was presented with an indictment containing 62 separate charges — 32 State charges and 30 Commonwealth charges — in circumstances where, apart from the other difficulties encountered by a court where such a large number of charges is preferred,[50] the mechanical difficulties associated with sentencing for federal offences is notorious.[51] I have no doubt that her Honour’s sentence largely was designed to reflect the principles of proportionality and totality. In striving to adhere to those principles, however, I think that her Honour must have failed to give appropriate weight to the sheer enormity of the respondent’s offending.
[50]See, for example, Bauer (A Pseudonym) v The Queen (2015) 46 VR 382, 385–9 [8]–[30].
[51]Huynh v The Queen; Au v The Queen [2017] VSCA 216, [4] n 1 (Priest and Hansen JJA); DPP & DPP (Cth) v Swingler [2017] VSCA 305, [63]–[87] (Ferguson CJ, Maxwell P and Weinberg JA). See also Justice Mark Weinberg, The Labyrinthine Nature of Federal Sentencing, [2012] VicJSchol 1.
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