Hulsman v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0194

ANDREW HULSMAN	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	8 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 63
JUDGMENT APPEALED FROM:	[2024] VCC 1466 (Judge Doyle)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Using a carriage service to access child abuse material – Using a carriage service to transmit child abuse material and causing child abuse material to be transmitted – Possessing or controlling child abuse material obtained or accessed using a carriage service – Individual sentence of 4 years and 2 months on two of the charges – TES of 6 years, with NPP of 3 years and 9 months – Manifest excess – Whether individual sentences or TES or NPP manifestly excessive – Not reasonably arguable that any sentence or order is manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr S Cooper
Respondent:		Ms K Breckweg with Ms E Addams
Solicitors
Applicant:	Doogue & George
Respondent:	Mr M de Crespigny, Commonwealth Solicitor for Public Prosecutions

BEACH JA:

On 20 August 2024, the applicant pleaded guilty in the County Court to one charge of using a carriage service to access child abuse material[1] (charge 1), one charge of using a carriage service to transmit child abuse material and cause child abuse material to be transmitted[2] (charge 2), and one charge of possessing or controlling child abuse material obtained or accessed using a carriage service.[3]
[1]Contrary to s 474.22(1) of the Criminal Code 1995 (Cth).
[2]Contrary to s 474.22(1) of the Criminal Code.
[3]Contrary to s 474.22A(1) of the Criminal Code.
On 13 September 2024, the applicant was sentenced as follows:[4]
[4]DPP v Hulsman [2024] VCC 1466 (‘Reasons’).

Charge	Offence	Minimum penalty	Maximum penalty	Sentence	Cumulation
1	Using a carriage service to access child abuse material.	4 years	15 years	3 years and 3 months	10 months
2	Using a carriage service to transmit child abuse material and causing child abuse material to be transmitted.	4 years	15 years	4 years and 2 months	Base
3	Possessing or controlling child abuse material obtained or accessed using a carriage service.	4 years	15 years	4 years and 2 months	1 year
Totaleffectivesentence:		6 years
Non-parole period:		3 years and 9 months
Pre-sentence detention:		388 days

The applicant now seeks leave to appeal against sentence. His single proposed ground of appeal is as follows:
1.The individual sentences on charges 2 and 3, orders for cumulation on charges 1 and 3, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars
(i)The sentencing judge erred in his finding that the applicant’s moral culpability was ‘remained significant’ given the evidence before the Court of the applicant’s mental functioning and difficult upbringing.
(ii)The sentencing judge gave insufficient weight to the principle of totality.

Circumstances of the offending

The applicant’s offending occurred between 24 May 2023 and 22 August 2023. As he had a relevant prior criminal history, having been convicted in April 2021 of accessing child abuse material and knowingly possessing child abuse material, he fell to be sentenced in accordance with the mandatory minimum sentencing regime set out in ss 16AAB and 16AAC of the Crimes Act 1914 (Cth).
The sentencing judge described the applicant’s offending in detail at Reasons [4]–[76]. While those paragraphs of the Reasons should be read in full in order to appreciate the true extent of the applicant’s offending, it is not necessary to burden these reasons with all of the detail of the offending. For present purposes, the offending may be more briefly summarised as follows.
Charge 1 related to the applicant’s participation in a Zoom meeting on 10 June 2023. During the meeting, the host of the meeting broadcast child abuse material videos to the other participants via screen sharing. The applicant was present in the meeting for approximately 38 minutes. During this time, video material classified as category 1 CAM[5] was shared by the host and thereby accessed by the applicant. Category 1 material includes ‘a real child, prepubescent, perceived to be under the age of 13 years, involved in a sex act, witnessing a sex act or concentrated on the anal or genital region of the child’.[6]
[5]Child abuse material.
[6]Reasons, [7].
The offending comprising charge 2 occurred between May 2023 and August 2023 in 12 chats on a Messenger application. During these chats, the applicant transmitted child abuse material in the form of video files; and in some of the chats, he received child abuse material videos. Again, it is not necessary to describe the detail of all that was transmitted during the course of charge 2. It is sufficient to point out the following lowlights:
(1)On 27 May 2023, the applicant transmitted a category 1 child abuse material video of some two minutes and six seconds in length. The video was of a prepubescent female child (approximately seven years old). The child is lying on her back naked, with her hands over her head tied to each other. She is on a bed and there is a dog licking her vulva. An adult male penetrates the child’s mouth with his penis.[7]
(2)On 28 May 2023, the applicant transmitted a category 1 video file. It was a two second video of an infant (three months old) being orally penetrated by an adult penis. The baby appears to be in distress.[8]
(3)On 11 June 2023, the applicant transmitted a 1 minute and 42 second video (category 1) of a prepubescent female being vaginally penetrated by an adult male.[9]
(4)On 12 June 2023, the applicant transmitted two category 1 video files, including a 50 second video of a 12 month old toddler where an adult male is holding the toddler facing his anus at the camera. The adult uses his index finger to anally penetrate the toddler.[10]
(5)On 20 August 2023, the applicant twice transmitted a 45 second video of a female toddler being anally penetrated by an adult penis. The video was titled ‘Sodomised Hole’.[11]
[7]Ibid [13].
[8]Ibid [17].
[9]Ibid [36].
[10]Ibid [38].
[11]Ibid [30], [44]. See also Reasons, [46] and [51] in relation to the transmission of this video.
On 22 August 2023, police executed a search warrant at the applicant’s residence and seized an iPhone, an iMac, an iPad and a laptop. After the police obtained a warrant in relation to searching these devices, the applicant provided the PIN codes for them.
Examination of the applicant’s devices revealed that he possessed or controlled a total of 575 child abuse material files (comprised of 573 unique files) across the four seized devices. Again, it is not necessary to set out all of the detail of the various category 1 and category 2 files. It is sufficient for present purposes to note that they included:
•some of the videos involved in the offending which constituted charge 2;
•a video showing a one month old being orally penetrated by an erect penis;
•a video showing an adult ejaculating into an infant’s mouth, the caption of the video reading, ‘Eat my fuckin pedocum you fuckin cunt slut’; and
•a 1 minute and 12 second video showing a pubescent male (14 years old) being anally penetrated by an adult male and a 20 second video showing a pubescent male masturbating.

Reasons for sentence

The judge observed that the applicant was 50 years of age at the time of his offending, and 51 at the time of sentencing. While he noted that the applicant had ‘a previous court appearance for the same type of offending’, he said that the applicant’s ‘prior conviction was not as serious as the offences in this case’. The judge noted that the applicant had received a community correction order (CCO) in 2021, which he had contravened, and that, in April 2023, he had been placed on a further CCO for two years; and that the offending for which he fell to be sentenced occurred ‘just a few months after the imposition of [this CCO]’.[12]
[12]Reasons, [2].
After summarising the applicant’s offending,[13] the judge set out some of the admissions the applicant made to police when interviewed on 23 August 2023. These included that child abuse videos possessed by him showed ‘the children … having sex, including with dogs and adults’; and that he had been sharing such videos since 2017.[14]
[13]Ibid [4]–[76].
[14]Ibid [17].
Under the heading ‘Sentencing principles’, the judge correctly noted that, in sentencing for offences involving child abuse material, general deterrence is the primary sentencing consideration, with punishment and denunciation also being important sentencing considerations. His Honour also observed that there is a paramount public interest in promoting the protection of children ‘as the possession of child exploitation material is not a victimless crime because children are sexually abused to supply [that] market’.[15] The judge also noted that the applicant’s offending was not mitigated by the fact that he did not profit from the offending.[16]
[15]Ibid [80].
[16]Ibid [81].
Under the heading ‘Nature and circumstance of the offending — section 16A(2)(a)’, the judge said:
(1)Charge 1 occurred over one day, whereas charges 2 and 3 occurred over approximately three months and involved a course of conduct.
(2)While the material involved in charge 1 was in the ‘highest category of seriousness’, it was a ‘relatively brief example of accessing the material’. However, it could not be said to be an isolated example and, while the applicant was not to be punished ‘for the uncharged material’, that material provided context for the applicant’s participation in the Zoom meeting on 10 June 2023.
(3)Charge 2 was a ‘rolled up’ charge, involving the transmission of 58 child abuse videos to 12 separate users, and the causing of four child abuse material videos to be transmitted to the applicant. In the judge’s words, ‘a rolled up charge incorporates multiple instances of a particular offence and therefore all other things being equal the criminality involved in a rolled up charge is greater than for a single episode of such offending’.
(4)Most of the videos transmitted were ‘highly depraved and involved the sexual abuse of pre-pubescent children’. The material was ‘repugnant’ showing, amongst other things, ‘infants being orally and anally penetrated’, with additional ‘degrading features’ which included the video of the child ‘with her hands tied and a dog licking her genitals’.
(5)The applicant’s conduct in transmitting the various videos and images contributed to the market that is based on the exploitation and degradation of children. The applicant fuelled that market.
(6)Charge 3 involved the possession of 573 unique child abuse material videos. As with charge 2, most of the files were category 1 child abuse material of a depraved nature.[17]
[17]Ibid [83]–[88].
The judge accepted that while the number of overall images and videos was lower in this case than is sometimes seen, that was only one factor to consider, and which had to be balanced against the ‘highly depraved content of the child abuse material’, as well as the applicant’s ‘continuing immersion in child abuse material over the period of these offences’. The judge said that the lesser number of images in this case was ‘not a matter that substantially reduce[d] the gravity of the offending’.[18]
[18]Ibid [89].
The judge said that charges 2 and 3 were ‘serious examples of transmit and possession offences falling comfortably into the mid-range of such offences’. He then said that charge 1 was a ‘significant enough example of accessing child abuse material’, but that its gravity was ‘limited by the short duration of the charged incident’.[19]
[19]Ibid [90].
Under the heading ‘General and Specific deterrence: sections 16A(2)(ja) and 16A(2)(j)’, the judge said again that general deterrence was the most important sentencing factor for offences of the applicant’s kind. He then said that, having regard to the applicant’s previous conviction for similar offences, the need to specifically deter the applicant from further offending was also a significant sentencing factor.[20]
[20]Ibid [91]–[93].
Dealing with contrition, cooperation and the applicant’s guilty plea,[21] the judge observed that the applicant pleaded guilty at the second committal mention on 8 February 2024, after negotiations had taken place as to the appropriate charges. The judge said that the applicant’s guilty pleas were entered at the first reasonable opportunity, and that he accepted that they indicated a willingness to facilitate the course of justice and had significant utilitarian value.[22] The judge noted that the applicant cooperated with police by making admissions and providing the PIN codes to his devices, although saying that the provision of the PIN codes was not cooperation that related to charge 1 — given that the evidence for that charge was a police video of the Zoom meeting.[23]
[21]Under the heading ‘Contrition section 16A(2)(f), Cooperation section 16A(2)(h) and Guilty plea – section 16A(2)(g)’.
[22]Reasons, [94]–[95].
[23]Ibid [95].
The judge considered that the applicant’s expressions of shame and disgust noted in the reports of Ms Fakhri[24] and Associate Professor Darjee[25] were further evidence of remorse. The judge took these into account in mitigation, saying they were also relevant to the applicant’s prospects of rehabilitation.[26] The judge said that, in assessing the applicant’s guilty plea, he also took into account the strength of the prosecution case. He said that this was particularly so, in relation to charge 1 — the offending of which was captured on a police video. The judge said that, overall, the prosecution had ‘a very strong case in relation to all charges’.[27]
[24]A psychologist who assessed the applicant on 15 February 2024 at the request of the applicant’s solicitors.
[25]A consultant forensic psychiatrist who interviewed the applicant by audio visual link on 5 July 2024 at the request of the applicant’s solicitors.
[26]Reasons, [96].
[27]Ibid [97]–[98].
Under the heading ‘Character, antecedents, age, means and physical and mental condition — section 16A(2)(m)’, the judge referred to the various reports which had been tendered on the plea,[28] before summarising the applicant’s personal circumstances as follows:
(1)The applicant was born in Tasmania. His adoptive parents moved to Albury when he was nine years old, and he became aware that he was adopted at the age of 12. His adoptive parents divorced by the time he was 14 and, at around that age, he began smoking cannabis, drinking alcohol and absconding from home and school.[29]
(2)The applicant was molested by an Anglican priest in November 1988 and March 1989. He received compensation from the church in 2017, but had spent that compensation by 2019. The reports tendered on the plea contained histories that the applicant was also molested by an adoptive uncle.[30]
(3)The applicant attended multiple primary schools due to family relocations. He struggled educationally. He was also bullied due to learning difficulties. This bullying continued into secondary school. Ultimately, he did not complete Year 11.[31]
(4)The applicant has no significant work history. He had some casual labouring jobs, working in a kitchen at a café as well. He was last employed in 1999. Mostly, he had relied on a disability support pension which he received because of mental health problems.[32]
(5)The applicant started using cannabis at age 14, and methamphetamine in November 2012. He regarded himself as a methamphetamine addict, although he had made various attempts to address his drug and substance abuse issues.[33]
[28]A report and an addendum report from Ms Fakhri; a report and addendum report from Associate Professor Darjee; and a report from a neuropsychologist, Jane Lofthouse, who conducted an assessment of the applicant on 24 May 2024 at the request of the applicant’s solicitors.
[29]Reasons, [101].
[30]Ibid [102].
[31]Ibid [105]–[106].
[32]Ibid [107].
[33]Ibid [109]–[111].
The judge summarised the applicant’s criminal history, which started in 1989, noting that between 2009 and 2021, when the applicant committed his earlier child abuse material offences, he had stayed out of trouble. The judge said that the earlier prior convictions reflected the applicant’s difficult personal circumstances and his drug and mental health issues; whereas the applicant’s previous conviction for similar offending was relevant ‘to [his] moral culpability for this offending, to the weight to be given to specific deterrence, to the assessment of [his] prospects of rehabilitation and to the weight to be given to community protection’.[34]
[34]Ibid [112].
Based on the reports tendered on the plea, the judge accepted that the applicant had ‘complex mental health issues including complex Post Traumatic Stress Disorder, a depressive disorder, a personality disorder, a generalised anxiety disorder, and symptoms consistent with ADHD such as inattention, impulsivity and disinhibition’. The judge noted Ms Lofthouse’s assessment of the applicant’s full-scale IQ as being 74, before saying that the authors of the reports all postulated a connection between the applicant’s mental state issues and his offending. The judge went on to say, however, that there was a ‘general acceptance that drug use also played a causal role’.[35]
[35]Ibid [115].
The judge noted that it was common ground between the parties that principles 1, 3 and 5 of Verdins[36] applied.[37]
[36]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[37]Reasons, [114], [119]. While the applicant’s plea counsel submitted that principle 4 also applied, the prosecutor contested that submission. For completeness, the relevant principles are that a condition which gives rise to impaired mental functioning is relevant to sentencing in at least the following ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
…
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
The judge referred to Associate Professor Darjee’s opinion that, if the applicant did not have his mental health vulnerabilities, it is unlikely he would have offended,[38] before noting the opinion of both Associate Professor Darjee and Ms Fakhri that the applicant would ‘struggle to cope in prison’, and that incarceration would be more burdensome for him than a person without his mental health vulnerabilities.[39]
[38]Reasons, [116].
[39]Ibid [117].

The judge accepted that the applicant’s upbringing reduced his moral culpability ‘to an extent’, saying there was an overlap between the applicant’s background issues and his mental health issues.[40]
[40]Ibid [118].
On the issues of moral culpability, the extent (if any) to which the weight to be given to specific deterrence should be reduced, the connection between the applicant’s drug taking and offending of the type for which he fell to be sentenced, and community protection, the judge said:
I accept your moral culpability is reduced for your mental state which contributed to the offending. However, this is not a case where you were in a psychotic state or where your intellectual deficiencies deprived you of the capacity to understand the wrongfulness of your conduct. Moreover, your continued drug use was plainly a significant contributing factor, a matter you recognized in the record of interview, and which is conceded by the authors of the reports. It is of course difficult to disentangle your mental health from your drug abuse and your background, and I accept your mental health is a factor which contributes to your ongoing drug problems.
This was offending involving repulsive child abuse material viewed for sexual gratification over three months when you were on a community corrections order for similar offending. But for your mental state issues and your difficult teenage years, I would regard your moral culpability as extremely high. Although moderated by your mental state and your upbringing, your moral culpability remains significant. Similarly, general deterrence, which I have moderated, remains important.
After assessing the competing submissions about specific deterrence, I have also decided that specific deterrence should be moderated because of your mental state issues to an extent. You do have some limitations on your capacity to regulate your behaviour, which reduces the likely effect of specific deterrence on you, but there is nothing in the reports that establishes you do not have the capacity to understand and be deterred by significant punishment. So, the weight to be given to specific deterrence is reduced but far from eliminated.
I am satisfied, and I am satisfied of this beyond reasonable doubt, that you had some understanding of the connection between your drug taking and this type of offending. You really indicated as much in your record of interview. But given the complex interplay between your drug use and your mental health I have not treated this as an aggravating factor in sentencing. However, the fact that you continued to take drugs aware that it contributed to the offending is a matter that I have had regard to in the overall assessment of your moral culpability.
Finally, your issues in regulating your own behaviour, whilst they are relevant to some reduction in specific deterrence, do lead me to the view that community protection must be given some significant weight in this case, and that is because of the likelihood of reoffending.[41]
[41]Ibid [121]–[125] (with the italicised sentence in the second paragraph of this passage of the Reasons (Reasons [122]) being the sentence about which the applicant makes complaint in paragraph (i) of the particulars of his proposed ground of appeal: see paragraph [3] above).
Under the heading ‘Rehabilitation — sections 16A(2)(m) and 16A(2AAA)’, the judge dealt with the applicant’s prospects of rehabilitation. In assessing his prospects of rehabilitation, the judge took into account that at the time of the applicant’s offending, he was on a CCO for similar offending ‘imposed, at least in part, to facilitate [the applicant’s] rehabilitation’. The judge noted that the applicant had contravened that order and, when given another chance, offended again ‘in a more serious way a few months later’.[42] The judge also noted that the applicant’s offending occurred while he was ‘subject to reporting obligations under the Sex Offenders Registration Act 2004’.[43]
[42]Reasons, [127].
[43]Ibid [128].
The judge said that it was clear from the applicant’s admissions that he was a regular and prolific user of child abuse material for his own sexual gratification, before noting that the applicant ‘make[s] a connection between [his] methamphetamine use and engaging with child abuse material’.[44]
[44]Ibid [129].
The judge said that, given the applicant’s entrenched drug problems, his ongoing mental health issues, his prior conviction for similar offending, and the seriousness of the present offences, his prospects of rehabilitation were ‘guarded at best’, and there was a significant risk that he would further offend in respect of possessing, transmitting and accessing child abuse material.[45]
[45]Ibid [131].
Under the heading ‘Mandatory and Minimum Head Sentence’, the judge noted that, pursuant to s 16AAB of the Crimes Act, a mandatory minimum head sentence of 4 years applied.[46] The judge then referred to and discussed the High Court’s decision in Hurt v The King,[47] and s 16AAC of the Crimes Act.[48]
[46]Ibid [132].
[47](2024) 418 ALR 63; [2024] HCA 8 (Gageler CJ, Edelman, Steward, Gleeson and Jagot JJ) (‘Hurt (HC)’).
[48]Reasons, [133]–[136].
The judge said that he had regard to the statutory minimum for each of the applicant’s offences. In relation to charge 1, the judge was satisfied that the offending, which took place on one day for 38 minutes, fell ‘either in the least serious category of offences, or close to the least serious category of offences, and that a sentence below the mandatory minimum [was] necessary to accord adequate recognition to [the applicant’s] plea of guilty and cooperation’.[49] The judge was, however, not so satisfied in relation to charges 2 and 3.[50]
[49]Ibid [137].
[50]Ibid.
Under the heading ‘Cumulation — Totality’, the judge noted the presumption in s 19(5) of the Crimes Act in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences. His Honour also noted, however, that, under s 19(6), if he was satisfied that imposing a sentence in a different manner would still result in sentences that were of appropriate severity in all the circumstances, then he was not required to apply s 19(5).[51] The judge then said:
In my opinion to reflect the overall criminality of your offending significant concurrency between the sentences is necessary. Whilst there is no conduct overlap between the offences, at least some of the material transmitted in Charge 2 is also part of the possession charge. Further, the offending in this case is properly assessed as a course of conduct involving similar or related offences, a factor which favors concurrency to give effect to the totality principle. In deciding the appropriate periods of cumulation I have had regard to the overall severity of the total effective sentence, and I have also taken into account the various mitigating factors that I have considered in these reasons.[52]
[51]Ibid [138].
[52]Ibid [140].
Under the heading ‘Minimum NPP’, the judge referred to s 16A(2AAA) of the Crimes Act, which provides that a court sentencing an offender for a Commonwealth child sex offence[53] must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, in determining the length of any sentence or non-parole period, ‘to include sufficient time for a person to undertake a rehabilitation program’.[54] The judge said that, in his opinion, the applicant needed ‘significant rehabilitative assistance in respect of his interest in child abuse material, his mental health issues and his drug abuse, as well as his complex background’. The judge said that he had regard to these matters in fixing the non-parole period.[55]
[53]The judge in fact referred to a ‘Commonwealth sex offence’, but his Honour’s omission of the word ‘child’ in this paragraph of the Reasons was not a material one.
[54]Reasons, [142], and see s 16A(2AAA)(b).
[55]Reasons, [143].
Finally, the judge sentenced the applicant using the procedure endorsed by Edelman, Steward and Gleeson JJ in Hurt (HC),[56] saying:
In relation to Charge 1, … I intend to articulate the sentence that I arrived at, and the extent of the discounts applied. So, with respect to Charge 1, I took the view that that would attract a sentence of four years and two months’ imprisonment. I have allowed 20 per cent discount for the plea of guilty in that case, having regard to what I said about the overwhelming nature of that case, and 2 per cent for cooperation, which results in a sentence of three years and three months, doing the best I can. It is not precise, but it is rounded off. So, the sentence for Charge 1 is three years and three months.
… I do not intend to articulate precise discounts in respect of Charges 2 and 3, where I have decided not to sentence lower than the statutory minimum. I indicate that in coming to the figures that I have, I have taken into account all relevant factors including the guilty plea, which I regard as slightly more significant in relation to Charges 2 and 3, and cooperation, which I regard as slightly more significant in relation to Charges 2 and 3, given you provided your PIN codes in relation to your devices, notwithstanding that there was a warrant with respect to the devices.
The sentence for Charge 2 is four years and two months. That is the base sentence.
For Charge 3 also four years and two months.
Ten months of the sentence on Charge 1 and 12 months of the sentence on Charge 3 are cumulative on each other and the base sentence, which makes a total effective sentence of six years.
I fix a non-parole period in this case of three years and nine months.[57]
[56](2024) 418 ALR 63, 89 [104].
[57]Reasons, [144]–[149].

Applicant’s submissions

In support of his complaint of manifest excess, the applicant submitted that, on the whole of the evidence tendered on the plea, it was not reasonably open to the sentencing judge to conclude that his moral culpability for the offending ‘remained significant’.[58] Indeed, the applicant submitted that his moral culpability ‘was not “significant” given the evidence before the court’.
[58]See the judge’s finding at Reasons, [122].
While the applicant accepted that his offending on charges 2 and 3 was serious and that it fell ‘comfortably in the mid-range’, he submitted that:
[D]espite the mid-range gravity of the offending, the exceptional subjective circumstances of the applicant’s case in combination with the relevant s 16AAC(3) reductions compel the conclusion that he sentences imposed on charges 2 and 3 are wholly outside the available range and may appropriately be reduced below the statutory minimum of four years’ imprisonment.
The applicant identified the relevant ‘exceptional subjective circumstances’ as including the application of Verdins principles 1, 3, 4 and 5; the applicant’s deprived upbringing, moderating his moral culpability; his plea of guilty at the earliest opportunity; his decision to immediately take responsibility for his offending when police executed a search warrant at his premises; his decision to provide his passwords to his devices to the police; and his remorse.
Next, the applicant submitted that the judge gave insufficient weight to the principle of totality. In the course of these submissions, the applicant compared his sentence with the sentences imposed in R v Delzotto[59] and Hurt v The Queen.[60]
[59][2022] NSWCCA 117 (‘Delzotto (CA)’).
[60][2022] ACTCA 49 (‘Hurt (CA)’).
The applicant observed that in Delzotto (CA), the offender received a total effective sentence of 4 years and 6 months, with a non-parole period of 3 years; and in Hurt (CA), the offender received a total effective sentence of 4 years and 8 months, with a non-parole period of 2 years and 2 months. The applicant, however, conceded that the access and transmission offences in Delzotto (CA) and Hurt (CA) did not attract the mandatory minimum 4-year imprisonment that applied to the applicant for the same offences, because that offending in those cases occurred before the mandatory minimum scheme enacted in ss 16AAB and 16AAC came into force.[61]
[61]In Delzotto (CA) and Hurt(CA), it was the possession offences to which ss 16AAB and 16AAC applied: see Hurt (HC) (2024) 418 ALR 63, 85 [84].
The applicant submitted that, in these circumstances, the principle of totality assumed ‘more prominence’ in the applicant’s case relative to the cases of the offenders in Hurt (CA) and Delzotto (CA). Thus, it was submitted:
For the applicant to be sentenced to a total effective sentence and non-parole period commensurate with his offending in all the circumstances of the case, it was not open to the sentencing judge to order the degree of cumulation between the charges that he did.
In making that submission, the applicant relied upon the same circumstances that he relied upon in submitting that the sentences imposed on charges 2 and 3 were wholly outside the available range.[62]
[62]See paragraph [36] above.
Next, the applicant returned to what he submitted was the judge’s erroneous finding that the applicant’s moral culpability ‘remained high’. He submitted that this erroneous finding ‘infected orders for excessive cumulation on charges 1 and 3’. As such, he submitted that the orders for cumulation on charges 1 and 3 were manifestly excessive.
Finally, the applicant submitted that there was an error in the sentence imposed, and the total effective sentence and non-parole period should be reduced.

Consideration

A central foundation of the applicant’s complaints of manifest excess is the contention that it was not reasonably open to the judge to conclude that the applicant’s moral culpability for the offending ‘remained significant’. At the risk of repetition, the judge said:
This was offending involving repulsive child abuse material viewed for sexual gratification over three months when you were on a [CCO] for similar offending. But for your mental state issues and your difficult teenage years, I would regard your moral culpability as extremely high. Although moderated by your mental state and your upbringing, your moral culpability remains significant.[63]
[63]Reasons, [122].
Contrary to the submissions of the applicant, there is nothing exceptionable in what his Honour said in this part of the Reasons.
First, but for the applicant’s mental state issues and difficult teenage years, the only conclusion that could be made by the judge was that the applicant’s moral culpability was extremely high. Thus the judge was entirely correct to so conclude.
Secondly, there could be no doubt that the applicant’s moral culpability was moderated by his mental state and his upbringing. To say, as the applicant would have it, that it was moderated to an extent that it ‘was not significant’ is, however, untenable. Moreover, the proposition that it was not open to the judge to come to any conclusion other than that the applicant’s moral culpability was not significant is all the more untenable.
With respect, the judge’s treatment of the applicant’s mental health issues and upbringing, and the consequences of those matters, was entirely appropriate. Moreover, on the evidence tendered on the plea, the judge’s conclusions on these issues was plainly correct. The contrary is not reasonably arguable. Again, it is hard to see how the judge could have come to any conclusion different from his conclusion that, notwithstanding the applicant’s mental health and background issues, his moral culpability remained significant.
Next, there is no substance in the applicant’s complaints that the sentences imposed on charges 2 and 3 were manifestly excessive. The sentences imposed on these charges were less than 30 per cent of the maximum penalties.[64] They were also a mere two months longer than the minimum penalties. Notwithstanding all of the matters the applicant was (and is) able to rely upon in mitigation, his offending, involving infants and young children, was very serious.[65] All of that when he had prior convictions for accessing child abuse material and knowingly possessing child abuse material — for which he was on a CCO when he committed the current offending.
[64]To be precise, and without letting any mathematical precision dominate the real issue in this case (namely, whether the sentences were wholly outside the permissible range in all the circumstances), the sentences were 27.78 per cent of the maximum penalties.
[65]Noting that the judge described charges 2 and 3 as ‘serious examples … falling comfortably into the mid-range’ (emphasis added): Reasons [90] – a finding that was arguably expressed generously to the applicant, and perhaps with an element of understatement.
The applicant had some very significant mitigating circumstances which he was able to rely on before the judge (and again in this Court). They included the matters set out in paragraph [36] above. Whether they could be described as ‘exceptional’ may be debateable. Certainly, the judge did not so describe them. The debate, however, is arid. The issue is not whether the applicant had ‘exceptional subjective circumstances’ — whatever might be encompassed in such a phrase — it is whether, when the relevant mitigating circumstances are appropriately synthesised with the circumstances of the applicant’s offending, the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[66]
[66]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
When one synthesises the applicant’s circumstances (including the mitigatory factors to which I have already referred) with the circumstances of his offending giving rise to charges 2 and 3, it simply cannot sensibly be suggested that either of the sentences on charges 2 and 3 was wholly outside the range of sentencing options available to the sentencing judge or manifestly excessive.[67] Both sentences were modest, with the sentence on charge 2 being, if anything, lenient.
[67]Ibid.
Similarly, it is not reasonably arguable that either of the orders for cumulation about which the applicant now makes complaint was wholly outside the range of sentencing options available to the judge or manifestly excessive. While the orders for cumulation cannot be described as lenient, they also cannot be described as stern. Properly analysed, they are moderate.
Moreover, there is nothing in the applicant’s complaint about totality. Both the Reasons themselves, and the ultimate total effective sentence imposed by the judge, show that the judge paid close attention to the principle of totality — imposing a total effective sentence on the applicant that was reasonable and proportionate in all of the circumstances of the case. Specifically, it is not reasonably arguable that the total effective sentence of 6 years in this case was in any way excessive having regard to the total criminality of the applicant’s conduct across the three charges to which he pleaded guilty.
Further, there is nothing in Delzotto (CA) or Hurt (CA) which supports the proposition that any of the components of the applicant’s sentence or the total effective sentence or the non-parole period were manifestly excessive. As the applicant conceded, those cases involved sentencing offenders who had committed offences of accessing and transmitting child abuse material at a time when there was no minimum penalty for those offences. In any event, those cases do not establish any range outside of which the applicant’s sentence impermissibly falls. They are but examples, to be treated in the way this Court has previously stated in cases such as Lieu v The Queen[68] and DPP (Cth) v MHK (a pseudonym) (No 1).[69]
[68](2016) 263 A Crim R 173, 186 [46]; [2016] VSCA 277.
[69](2017) 52 VR 272, 293 [71].

Finally, there is nothing in the complaint that the non-parole period was manifestly excessive. The judge’s reasoning which led to the imposition of the non-parole period was impeccable. Moreover, while there is no usual non-parole period, it is to be observed that the non-parole period fixed in this case was only 62.5 per cent of the total effective sentence. This was far from a manifestly excessive non-parole period.

Conclusion

There is no substance in the applicant’s proposed appeal. Accordingly, his application for leave to appeal against sentence must be refused.
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[2025] VSCA 63

8 April 2025