R v Hansen

[2021] NSWDC 457

District Court

New South Wales

Medium Neutral Citation:

R v Hansen [2021] NSWDC 457

Hearing dates:

19, 23 February 2021 & 01 March 2021

Date of orders:

04 June 2021

Decision date:

04 June 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

For the State offences: an aggregate sentence of imprisonment of 4 years 3 months with a non-parole period of 3 years 2 months

For the Commonwealth offences: an aggregate sentence of imprisonment of 17 years with a non-parole period of 12 years

Legislation Cited:

Crimes Act 1900

Crimes Act 1914 (C’th)

Crimes (Sentencing Procedure) Act 1999

Criminal Code 1995 (C’th)

Customs Act 1901 (C’th)

Evidence Act 1995

Cases Cited:

Bae v R [2020] NSWCCA 35

Betka v R [2020] NSWCCA 191

Bugmy v The Queen [2013] HCA 37

Cheung v The Queen (2001) 209 CLR 1

Director of Public Prosecutions (C’th) v De La Rosa (2010) 79 NSWLR 1

DPP v Beattie [2017] NSWCCA 301

Fasciale v R [2010] 30 VR 643

Filippou v The Queen [2015] HCA 29

Hilli v R, Jones v R [2010] HCA 45

Huang aka Liu v R [2018] NSWCCA 70

Imbornone v R [2017] NSWCCA 144

Minehan v R [2010] NSWCCA 140

Muldrock v The Queen [2011] HCA 39

Neal v The Queen (1982) 149 CLR 305

R v Borkowski [2009] NSWCCA 102

R v Clarkson [2011] 32 VR 361

R v Porte [2015] NSWCCA 174

R v Qutami [2001] NSWCCA 353

Sheu v R [2018] NSWCCA 86

Tepania v R [2018] NSWCCA 247

The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Veen v The Queen (No. 2) (1988) HCA 14

Category:

Sentence

Parties:

Regina (Crown)
Peter Andrew Hansen (Offender)

Representation:

Jennifer Single SC (Crown)
Talia Epstein (Junior)

Alex Radojev (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Victor Lawyers (solicitors for the Offender)

File Number(s):

2018/00304908, 2018/00308763 & 2019/00314711

Publication restriction:

Statutory non-publication order for the identities of the victims and any information which might cause their identities to be ascertained

REVISED JudgEment

Introduction

1. These are the sentence proceedings in respect of Peter Andrew Hansen.  They are continuing today for the purposes of judgement and the imposition of sentence.

2. Peter Andrew Hansen appeared for sentence in the District Court of New South Wales, Sydney, on Friday February 19, 2021 whereupon he confirmed his pleas of guilty to 31 offences, which, with the specified maximum penalties, are particularised in a table that appears below.

3. After the Crown and defence bundles were tendered, to accommodate the convenience of psychiatrist Dr Olav Nielssen to be called in the offender's case, the proceedings were adjourned to Tuesday, February 23, 2021 when he was available to attend court.

The Proceedings

4. Unfortunately, through no fault of the parties or the Court there has been some limited delay until the resolution of the proceedings today to allow medical treatment that I was required to undergo, and predominantly because of a trial which extended to six weeks longer than the original estimate given, and notwithstanding that at the request of the jury and with the consent of the parties in that matter the Court sat for extended periods each day to mitigate the disruption to arrangements jurors had made with their employers to allow them to complete their service.  On one occasion this matter could not proceed because of industrial action within the Department of Corrective Services.

5. The hearing proceeded on the first day, after which I adjourned for the evidence of Dr Nielssen to be taken.  Thus, the matter was before me on February 19 and 23, 2021.  On that second day Dr Nielssen gave evidence as did the offender.  The matter was next before me on 31 March 2021, when further submissions were delivered orally on behalf of the parties.  The proceedings were adjourned to 19 March 2021 with a one-day estimate for the delivery of judgement and the imposition of sentence.  I excused counsel for that appearance.

6. Thereafter, on 15 March 2021 before the adjourned date, upon my instructions my associate wrote to the parties in this matter to advise that I was presiding in the aforementioned trial with an initial estimate of four weeks.  Dates for the further hearing of this matter were then offered.  26 March 2021 was selected at suitable to all parties.  On that date, there was industrial action at the Goulburn Correctional Centre, and although time had been set aside for the resolution of the matter it could not proceed.  The industrial action prevented there being sufficient officers to service the audio visual link suites at Goulburn Correctional Centre.

7. The length of the trial continued to grow, exponentially I might add, in the days that followed, and ultimately it was necessary again for my associate to communicate with the parties to indicate that the matter could not proceed on the date appointed after the industrial action had resolved. The days between 2 and 4 June 2021 were selected and were suitable to all parties for the matter to proceed, and thus it is listed today for final disposition.

8. There is a lot of material to proceed through in the assessment of this matter, and I am hoping to be able to conclude the judgement by this afternoon, but there is a very real risk that I will not be able to conclude until tomorrow morning.

9. The delay in final disposition of these proceedings is regrettable, for it must carry a measure of inconvenience to the offender not having his fate determined before this, but ultimately, against the history of the proceedings and the sentences to which he is exposed, it is of limited significance. 

10. This said, I have not overlooked that at least to some minor extent the offender has suffered as a consequence of these delays and I have brought that to account to a very limited extent.

The Offences

11. The offences upon which sentence is to be determined are a blend of New South Wales and Commonwealth crimes, which are set forth in a table hereunder, together with the maximum penalties specified. [1]

    1. In documents tendered by the Crown there are mistakes in respect of the date of the offence charged in Sequence 19 which were continued in the course of my judgement, corrected when discovered in the review before publication.

Sequence	Offence	Maximum Penalty
H# 445/1	On 6 October 2018. Did intentionally import prohibited tier 2 goods without approval, namely, child pornography material. S 233BAB(5) Customs Act 1901 (Cth)	10 years imprisonment & 2,500 penalty units
H# 956/2	On 9 October 2018, did possess child abuse material. S 91H(2) Crimes Act 1900 (NSW)	10 years imprisonment
1 – 14, 22	Between 13 April 2014 and 21 December 2017, did produce child pornography outside Australia, namely in the Philippines and Vietnam. S 273.5(1) Criminal Code (Cth)	15 years imprisonment
15 – 18	Between 9 October 2016 and 3 January 2017, did use a carriage service to transmit child pornography. S 474.19(1) Criminal Code (Cth)	15 years imprisonment
19 [2]	On 3 January 2017, did use a carriage service to cause child pornography to be transmitted to self. S 474.19(1) Criminal Code (Cth)	15 years imprisonment
20	On 7 October 2018, did possess child abuse material. S 91H(2) Crimes Act 1900 (NSW)	10 years imprisonment
23 – 28	Between 11 November and 28 December 2017 did engage in sexual intercourse with child outside of Australia, namely in the Philippines. S 272.8(1) Criminal Code (Cth)	20 years imprisonment
29 – 31	Between 11 November 2016 and 18 November 2016 did engage in sexual activity (other than sexual intercourse) with a child and the sexual activity (other than sexual intercourse) with the child occurred outside of Australia, namely the Philippines. S 271.9(1) Criminal Code (Cth)	15 years imprisonment

2. The Commonwealth Crown Sentence Summary and the table provided in the Agreed Statement of Facts erroneously specified the date of this offence as 9 October 2016. The Court Attendance Notice specified the date of the offences as 3 January 2017, and the relevant text in the Agreed Statement of Facts specified 3 January 2018. In a subsequent summary prepared by the Crown the date is specified correctly as 3 January 2017 adopted in the table above.

The Structure of the Sentences

12. In due course I shall specify an aggregate sentence for the New South Wales offences, and a separate aggregate sentence for the Commonwealth offences, after specifying the terms of imprisonment decided for the individual offences, and shall specify the respective commencement dates for each of the aggregate sentences.

13. The aggregate sentencing scheme in s 53A Crimes (Sentencing Procedure) Act 1999, may also be used for the offender when sentenced to more than one Commonwealth offence: DPP v Beattie [2017] NSWCCA 301 at paras [146] and [210]. An aggregate sentence cannot be imposed for a combination of Commonwealth and State offences: Sheu v R [2018] NSWCCA 86 at para [26]. Separate aggregate sentences are required, one for the New South Wales offences and one for the Commonwealth offences: Fasciale v R [2010] 30 VR 643 at para [27]. I note that there has been legislation introduced into the Crimes Act 1914 (Cth) to accommodate the use of aggregate sentences in Commonwealth matters.

The Utility of the Pleas of Guilty

14. It is accepted that the offender pleaded guilty early in these prosecutions, and is therefore to be given the benefit of discounts for each of the sentences selected as appropriate for the individual offences. 

15. In the case of the New South Wales offences there shall be a discount of 25% in accordance with authorities such as, for example, R v Borkowski [2009] NSWCCA 102. This will be applied to the sentences found to be appropriate upon the synthesis of the objective facts and circumstances and those of a subjective nature, including the extent to which the offender has demonstrated contrition or remorse and his capacity for rehabilitation.

16. In the case of the Commonwealth offences, they shall also attract a discount at that level: s 16A(2) Crimes Act 1914 (Cth); Huang aka Liu v R [2018] NSWCCA 70 at para [9]. This will be applied to the result upon the synthesis of objective and subjective considerations, including subjective matters associated with a guilty plea, such as contrition and remorse which do not attract a specific sentencing discount: s 16A(2)(f) Crimes Act 1914 (Cth); Betka v R [2020] NSWCCA 191 at para [59]; Bae v R [2020] NSWCCA 35 at paras [54] to [56]; R v Borkowski ibid at para [32]. It must be borne in mind that the Court must avoid double counting in this respect.

Pre-Sentence Custody

17. The offender was arrested on October 6, 2018, when he came to the notices of authorities upon his return to Australia.  He was granted bail, which included security that he could not arrange until October 8, 2018, but upon doing so he was immediately arrested by the Australian Federal Police and has continued in custody ever since. 

18. Whilst in custody he was arrested in relation to his further offending as it was uncovered.  In each case he was bail refused.  This occurred on October 9, 2018; March 4, 2019; September 11, 2019; and June 22, 2020.  In respect of each offence charged on those occasions, he was bail refused. 

19. Though his custody for each of his offences did not commence at the one time, because I intend to impose two aggregate sentences with what I find to be appropriate concurrence and accumulation, the first of them, for the New South Wales offences, shall commence on October 6, 2018.

The Facts

20. The crimes to which the offender pleaded guilty were committed within the following timeframe. 

• Between April 13, 2014 and December 21, 2017, sequences 1 to 14; and 22;

• Between October 9, 2016 and January 3, 2017, sequences 15 to 18; on January 3, 2017, sequence 19.

• Between November 11, 2016 and November 18, 2016, sequences 29 to 31.

• Between November 11, 2016 and December 28, 2017, sequences 23 to 28 against nine children.

• On October 6, 2018, sequence H# 445/1.

• On October 7, 2018, sequence 20.

• On October 9, 2018, sequence H# 956/2.

21. Accordingly, the offences occurred over a period of four years and almost six months between April 13, 2014 and October 9, 2018. 

22. What are described as the "contact offences" in sequences 23 to 31 were committed upon nine children, the victims aged between ten and 14 years of age. 

23. The offences against New South Wales law were in respect of four devices with 100,000 files of child abuse material, using what is said to be a unique filing system. This included material stored as early as 2008 and as recently as 2018, sequences H# 956/2 and 20 respectively.

24. The summary of the offences that I have so far provided was assisted with a document provided by consent prepared by the Crown summarising the charges, and a brief description of the facts relevant to each. 

Executive Summary

25. The agreed statement of facts, signed on behalf of the Crown and by the offender, in his instance by his solicitor Mr Huynh on 20 November 2020, begins with an executive summary, which will provide a general understanding of the range of the conduct upon which the offender engaged.

26. On 6 October 2018, the offender came to the attention of authorities upon his return from overseas in possession of electronic items, which on examination upon his arrival established that he was importing child abuse material.  Analysis of the devices and of the material contained on them led to him being charged with the transmission and production of child abuse material.  He had transmitted about 36 images, sequences 15 to 18, and produced a total of about 675 photos and videos.

27. The Australian Federal Police visited the Philippines where they interviewed victims depicted in the child abuse material the offender possessed.  As a result of those interviews and investigations, the offender was charged with engaging in sexual intercourse and engaging in sexual activity outside of Australia.

28. In summary, in relation to the contact offending in the Philippines, between 11 November 2016 and 28 December 2017, the offender committed sexual offences against nine child victims aged between ten and 14 years at the time of the offences.

29. More particularly, on 11 November 2016, the offender engaged in sexual intercourse with four children victims, sequences 23 to 26; on the same day he engaged in sexual activity with a fifth child victim in the Philippines, sequence 29; on 15 November 2016, he engaged in sexual activity with a sixth child victim, sequence 30; on 18 November 2016, he engaged in sexual intercourse with a seventh child victim, sequence 27; and in sexual activity with an eighth child victim, sequence 31. 

30. Between 25 and 28 December, 2017, the offender engaged in sexual intercourse with a ninth child victim, sequence 28.

31. In relation to the State offences, after his arrest, the AFP executed a search warrant at his house.  They seized several electronic devices, including computers, hard drives and cameras.  Four of those devices contained child abuse material.  In excess of 100,000 files were stored across the four devices using a unique filing system.  Some of the child abuse material possessed by the offender had been stored as early as 2008, and as recently as 2018; sequences H# 956/2 and 20 respectively.

Background

32. The agreed statement of facts then provides a background description, including reference to the arrest at Sydney International Airport. He was charged with importing prohibited tier 2 goods, namely, child pornography material, and was granted conditional bail, including that he deposit $40,000 as security.  He remained in custody unable to do so until late October 2018 when he was able to deposit the requisite money, but upon his release he was immediately arrested and charged with possessing child abuse material, and thus his custodial period commenced at the point of his arrest on 6 October 2018. 

33. On 9 October 2018, he was refused bail in respect of the charge sequence H# 956/2.

34. The background continues with a description of the periods in which he has been in custody in respect of each of the charges that were prepared against him sequentially, as I have outlined.

35. All of the child pornography and child abuse material found on devices seized from the offender was classified according to the Child Exploitation Tracking System; this provides five categories. 

• Category 1, sexually suggestive posing with no sexual activity. 

• Category 2, non-penetrative sexual activity between children, also masturbation by a child.

• Category 3, non-penetrative sexual activity between adults and children. 

• Category 4, penetrative sexual activity between children or between adults and children. 

• Category 5, sadism, humiliation or bestiality.

Sequence 1; 13 April 2014; Production of child pornography overseas

36. On 3 April 2014, the offender arrived in the Philippines after flying from Australia by way of Singapore. 

37. Between 11 April and 17 April 2014 the offender took several photos of victim 1 and victim 2 at restaurants at the Metro Park Hotel in Cebu,  Philippines.  In these photos, victim 1 and victim 2 are seen eating at the restaurants and swimming in the hotel pool.  In one of the photos the offender is seen with another adult male and three children, one of those children being victim 2.  At the time that the photographs were taken victim 1 and victim 2 were between ten and 14 years of age.

38. On 13 April 2014, the offender took victim 1 to his room at the Metro Park Hotel.  While there he took ten photographs of victim 1 that were child pornography. 

39. They depicted the following: 

A. Victim 1 holding his erect penis;

B. Victim 1 masturbating;

C. Victim 1 posing naked on the bed; and,

D. Victim 1 lying naked on the bed.

40. The ten photographs have been classified according to the Child Exploitation Tracking System.  There were five images one category 1, five images within category 2.  There were none within categories 3, 4 and 5.  Thus he produced the images, the misconduct involved one child, and the offender travelled to the Philippines to there engage upon his activity.

41. I have come to the view that the offending on this occasion fell below mid-range of objective seriousness.

Sequence 2; 17 April 2014; Produce child pornography overseas

42. The next offence is sequence 2, on 17 April 2014, producing child pornography overseas.  On 17 April 2014, the offender took victim 1 and victim 2 to his room at the Metro Park Hotel, and there took 24 photographs that were child pornography. 

43. They depicted the following: 

A. Victim 1 and victim 2 holding their erect penises,

B. Both victims lying naked together in the bathtub, and

C. Victim 1 masturbating his penis while victim 2 lies next to victim 1 watching. 

44. The offender also produced one nine-second video of victim 1 and victim 2 lying naked together in the bathtub, where victim 1 is masturbating his own penis. 

45. The 24 photographs and one video have been classified according to the Child Exploitation Tracking System.  Seven images were within category 1, 17 were within category 2 as was the video, bringing the total to 24 photographs and one video.  There were none of these within categories 3, 4 or 5. 

46. The offender left the Philippines on 19 April 2014.

47. I have come to the view that the offending on that occasion fell below mid-range of objective seriousness, but sequence 2 is more serious than the offence charged in sequence 1.  In due course, I shall make reference to the principles that guide the Court in assessing objective seriousness of offending for the purposes of determination of sentence.

Sequence 3; 9 August 2015; Produce child pornography overseas

48. The next offence is sequence 3. On 8 August 2015, the offender arrived in the Philippines from Australia.  On 9 August 2015, the offender took 76 photographs of victims 3, 4, 5, 6 and 7 in his hotel room. 

49. These were child pornography which depicted the following: 

A. Four victims lying naked on a bed watching a mobile device which was held by victim 4.  Victim 4 and victim 5 are masturbating their penises;

B. Victim 5 and victim 7 lying on a bed masturbating their own penises.  Victim 5 is naked and watching a mobile device.  Victim 7 is clothed, but his penis is exposed. 

50. The victims were between ten and 14 years of age when the photographs were taken.  The 76 photographs have been classified.  17 were within category 1, and 59 were within category 2.  None fell within category 3, 4 or 5. 

51. I also find this offence to be below mid-range, but slightly more serious than the events in sequence 2.

Sequence 15; 9 October 2016; Transmit child pornography

52. The next offence discussed in the statement of facts is sequence 15.  This was on 9 October 2016, and was the transmission of child pornography. 

53. On 9 October 2016, the offender used a program called Brosix to exchange messages with another person over the Internet.  The offender used the online name described as a "moniker" in the facts, "Baga Tay".  The other person used the “moniker”, "Maliboy Hornbag". 

54. Brosix is an encrypted instant messenger program that allows users to communicate with one another over the Internet.  Users can send text messages, images, videos and transfer files.  Brosix uses a 256-bit (Advanced Encryption Standard) encryption to secure messages.

55. The offender and Maliboy Hornbag engaged in the following exchange:

“OFFENDER:  Did you like the two in the garden

MALIBOY HORNBAG:  I liked one in the garden the other is good looking, but too mature and in the pool there were the far right and small one

OFFENDER: The smaller one is a sucker

MALIBOY HORNBAG:  Nice

OFFENDER:  Hope so

MALIBOY HORNBAG:  Well not long u will be there

OFFENDER:  Tue.  Hope to keep the camera busy

MALIBOY HORNBAG:  Lol

56. During this exchange of messages, the offender sent two images to Maliboy Hornbag that were child pornography.  Both images were classified within category 1. 

57. They depicted the following: 

A. Victim 21 standing clothed, but with shorts lowered exposing his penis, and

B. Victim 21 sitting naked on a bench. 

58. This offence also falls below mid-range of objective seriousness and closer to the bottom end of the range of objective seriousness for such misconduct.

Sequence 16; 28 October 2016; Transmit child pornography

59. The next offence is sequence 16, on 28 October 2016, the transmission of child pornography.  On 28 October 2016, the offender used Brosix to, again, exchange messages with Maliboy Hornbag.  These exchanges [3] were:

    3. The exchanges have been reproduced as they appear in the statement of facts.

"OFFENDER: I am still thinking about how I can milk the max out of my poolside weekend in terms of what I can get on my memory card

MALIBOY HORNBAG: U know it's not the same place anymore and im told less and less tourists are going to, so be careful

OFFENDER:  Also, to where I should I upload them

MALIBOY HORNBAG:  U will have to upload to a cloud storage place _ don't bring back with

OFFENDER:  Im not a tourist, .  Im a businessman.  Duh....

But question is

MALIBOY HORNIBAG: Same thing

OFFENDER:  Where on the cloud 

No, it's not because

MALIBOY HORNBAG:  Mega.nz

OFFENDER:  More and more businesses are doing what I'm doing there 

Offshoring/outsourcing  You know, I am looking at the stuff about Thai king being about to die. 

My bloody luck he dies a few days before I get there and everything is shut! 

BTW, on the last question.  Did R tell you how much Abon cost?

MALIBOY HORNBAG:  Who?

OFFENDER:  The King of Thailand

MALIBOY HORNBAG:  oh didn’t know, lol ... hehe

OFFENDER:Yes, hopes she lasts long enough for me to get in and out

MALIBOY HORNBAG:  Abon?  haha they all the same they get over lk

OFFENDER:  fucking ridiculous

MALIBOY HORNBAG:  I refuse to do it

OFFENDER:  Did he put out?

MALIBOY HORNBAG:  No just pics

OFFENDER:  [Emoji of a sad face]

MALIBOY HORNBAG:  and Im told he does fuck all anyway

As most

OFFENDER:  I got exited then

MALIBOY HORNBAG:  I hope Cebu is much less coz I'm not going to ma_nila again

OFFENDER:  I thought you said He does fuck all: p

MALIBOY HORNBAG:  Yes that's right

he does fuck all

OFFENDER:  Play on words

MALIBOY HORNBAG: so anyway, how are you?  and hows all in Cebu?

OFFENDER:  Im not there yet

MALIBOY HORNBAG: I know, but ... how are they”

60. He transmitted three images of child pornography within category 1.  The agreed statement of facts has been supplemented with a description of these items.  One showed victim 17 standing naked in a bathroom masturbating.  The second showed victim 17 standing naked in a bathroom, and a third showed victim 17 standing naked in the bathroom.  This document dated 23 February 2021 has been included with the agreed statement of facts.

61. The exchanges continued:

"OFFENDER:  I have good things here for you

New

But I can't find

I will if I persist a bit

MALIBOY HORNBAG:  no prob all good, I appreciate it .... the first pic you sent i recognize that one...that was last year with art..the other 2 dont know

OFFENDER:  still not hat Im after, but I don't think you've seen

MALIBOY HORNBAG:  yup not seen, thanks [: )]

ah yes I did see him but not these pics just a couple before thanks

OFFENDER:  On the menu

MALIBOY HORNBAG:  meat and potato [: P]

OFFENDER:  yes, Im worried I might come backstufed

But my walter very empty

Wallet

MALIBOY HORNBAG: well dont overdo it coz they will expect too much next time, thats the problem .. if you overspend ... they become greedier thats what manila is like now

so try not pay them any more than what its worth, no matter the please please unlce etc

look what ralph and his friends have done .. I mean seriously .. 1500 for a session and in some cases 3k plus spending shopping etc..and im not kidding

thats the english idiot who does that

and Ralph pays them no less than 1200 for a shoot

fucking nuts

OFFENDER:  well, not only I woont, i can't

MALIBOY HORNBAG:  good. 

Don't

coz I wont be able to compete with that, lol

OFFENDER:  most get 250-300 plus a gift and an outing and food

MALIBOY HORNBAG:  ill pay what you say to do

OFFENDER:  Not taxi

MALIBOY HORNBAG:  Yep

That's good

OFFENDER:  Outstanding performers and those I really like I might pump up to 500.  But that's the absolute limit

MALIBOY HORNBAG:  so ill go to Op shop before going and hand them those haha

I agree with that

OFFENDER:  catch of the day is my fave

and at the moment, Woollies has a sale in Bonds

I got 6 pairs of stunning little bright pink and white striped briefs, i bought 2 x 12, 14, 16

$4.50 each

MALIBOY HORNBAG: I think Joey must be grateful to you

OFFENDER:  Dont want gratitude, just wNT HI TO KEEP DELIVEERING IF ANYTHING, I FEAR THIS TIME HE MIGHT HAVE OVERDONE IT

MALIBOY HORNBAG:  well what I mean yes he wouldnt be playing like this if you werent donating to the cause .. so he has to perform

OFFENDER:  right

MALIBOY HORNBAG:  Which reminds him I guess I will have to start contribution too

OFFENDER:  but compared to MNL, I can't complain

Mind you, the Laguna crew willonly get Cebu rates.

They can like it or lump it

Costing enough to get them down there

MALIBOY HORNBAG:  Indeed coz its an expensive adventure

Yup

OFFENDER:  Although it really shouldbe good

Did I tell you I shoted Art a trip down there?

Only cost 500p

And he was able to recon

anyway, as I was saying I sent Art for a look around

Looks good

High wall

Locked gate

No two storey houses

caretaker not onsite

MALIBOY HORNBAG:  yes but can the house next door see in from the balconys

OFFENDER:  Read above

MALIBOY HORNBAG:  yes but still if they are double storey etc

but anyway just be safe

are u going via private car

or taxi

OFFENDER:  Nope they are going by bus

And I am following on a later bus

MALIBOY HORNBAG:  ewww why by bus?

OFFENDER:  Price

MALIBOY HORNBAG:  bah

OFFENDER:  I don't mind bussing

its ony 90 mins

Im bussing it all the way back from Bicol

MALIBOY HORNBAG:  `fair nuff ... u doing that on your own?

OFFENDER:  Hoping to havecompany :p

MALIBOY HORNBAG:  I wouldn't travel with minors on your own

OFFENDER:  No way

Seeing J not available, with Art

MALIBOY HORNBAG: oh ok that's fine then if Art and whoever accompany you .. safer."

62. Thereafter, there is an exchange which is in the following terms:

“MALIBOY HORNBAG:  so all in all 2 weeks or less?

OFFENDER:  4 weeks in all

2 weeks working

MALIBOY HORNBAG: Oh?

Wow that changed

OFFENDER:  10 days hols in Phils

4 in SKK

MALIBOY HORNBAG:  from 2 weeks to 4 lol

FFENDER:  No.  Read above

MALIBOY HORNBAG:  4kk and 10 in phi Is

where are the other 2 weeks?

OFFENDER:  2 weeks wrking in Cebu

MALIBOY HORNBAG:  Hahaha

so ujmmm you wont be playing during that time then hey? 

Time

OFFENDER:  Oh, I think I might.  But I will be stuffed each night, coz I have to be up at 5.40am on weekdays. 

On the other hand

I can finish by a little after 2

So I can play from then until I drop

MALIBOY HORNBAG:  so inessence a nice 4 weeks of fun .. sounds

great to me .. I still gotta think ..epending on if its V or Cebu that i need a house for around 5 weeks .. with a pool

OFFENDER:  Yes, it's a shame Pansol is so prohibitive for ny longer than a night

MALIBOY HORNBAG: In laguna

OFFENDER:  right

MALIBOY HORNBAG:  actually there are some very lovely houses on the beach for rent here and there

OFFENDER:  True

it's a shame I drew a dud in Cebu

Joey says he has about 6-8 who want to make a party one night

MALIBOY HORNBAG:  U mean the place your staying

OFFENDER:  An indoor party

The dud was at the beach

MALIBOY HORNBAG:  oh yeh that needs a private place

OFFENDER:  No, the play I stay is grat

Really happy

And very safe

Ideal, in fact

Below street level

back entrance

MALIBOY HORNBAG:  but stream of too many visitors may not be safe

OFFENDER:  That is the beauty of June! and Lyn

MALIBOY HORNBAG:  but they cant be there always?  or do you allow that?

OFFENDER:  House keeper talks to them

And with abies in arms

MALIBOY HORNBAG:  House keeper thre too? good grief

OFFENDER:  They tell them that all these boys are their young nephews, coysins and friends who visit whilst they arein town from Compostela Upstairs

Never go near us

Yjeu also know that

MALIBOY HORNBAG:  haha umm like im sure they all belive it heeh

OFFENDER:  I go off to work with briefcase at 7.00 am each day well, when the boys arrive

on the whole

Im not there

MALIBOY HORNBAG:  Oh

OFFENDER:  I COME BACK AFTER THEM

MALIBOY HORNBAG:  Well .. if it works for ya

OFFENDER:  WHICH THE UPSTAIRS PPL see

The problem is

I can't have 68 naked boys roaming around stairs while Junel and Lim are there

5-8

Sorry

Not even I do 68! :D

MALIBOY HORNBAG:  no i know that's why I said do u allow them there all day?

OFFENDER:  Sure why not

MALIBOY HORNBAG:  5-8 is over the top too but now and then it's fine .. IF they all play and do as asked

OFFENDER:  June l and Lim are there to make sure they don! make trouble

No no,3 is my usual limit

We can just lock the door on my big bedroom

I'm sure Lin and Junel know what's happening, but who cares

MALIBOY HORNBAG:  ask Joey to start perusing houses with a pool so they're private for rent near beach etc or somewhere [:P]

of course they know what happens mao

Junel knows she would know

OFFENDER:  I could have 5-8 in the house, we could lock the doors and pull the curtains. 

Problem is what do you do with Junel and Lyn

the noise factor will be hard to control

Cant have them in the house during a nude party

U know what they are like

A quiet nude party :p

MALIBOY HORNBAG:  With Joey [:p]

OFFENDER:  thats no problem

MALIBOY HORNBAG:  I said that as a joke now I'm thinking ewww perhaps that will happen Yuck

OFFENDER:  Exept he has a problem get them to all fuck him.  Id have to make sure I blow them all first

MALIBOY HORNBAG:  No way

OFFENDER:  oh, he and I wander around naked with boys b4 when we get a suite at the Crown Garden Hotel

MALIBOY HORNBAG:  there is no way in this worl will i have joey in a room .. art or anyone while im doing my thing .. its a real turn off .. blehhhhhhhh

OFFENDER:  hed normally take one or two into the bathroom to fuckhim

MALIBOY HORNBAG:  sou didnt touch those ones i guess

OFFENDER: no way

they were upto him to deal with for the night

MALIBOY HORNBAG:  so do u pay joeys tricks?

or himself?

OFFENDER:  Directly, him, indirectly, me

MALIBOY HORNBAG: gotcha

But

wouldnt pay him more than 500 a visit?

OFFENDER:  For Joey's?  U R kidding 200 if theyre lucky

MALIBOY HORNBAG:  no no

Joey

I mean joey

what do u give him

OFFENDER:  I tend to pay him by the week

MALIBOY HORNBAG:  I see

OFFENDER:  better that way too

MALIBOY HORNBAG:  Much better

OFFENDER:  $100 for 7 days

MALIBOY HORNBAG:  wo

OFFENDER:  or 3000 more specifically

MALIBOY HORNBAG:  wow

thats allot

OFFENDER:  no

MALIBOY HORNBAG:  Oh 3k

thats fine

plus outings and food

OFFENDER:  400+ a day

Yes, right

and the offer of a bed, ut he likes to lie on the uch and watch tv all night

MALIBOY HORNBAG:  fair enough

ist fine

OFFENDER:  Which is fine by me

Don't forget

MALIBOY HORNBAG:  well afraid im not that generous

OFFENDER:  He does jobs other thanprocurement

I like my time alone with boys

Buying groceries

Making phone calls”

63. The exchanges illuminate the attitude of the offender and this person with whom he was communicating toward the egregious misconduct upon which he is to be sentenced here today.  The transmission of the pornography, sequence 16, which occurred in the course of those exchanges is below the mid-range, notwithstanding the abhorrent nature of the conversation that passed between these two men.

Sequence 4; 6 November 2016; Produce child pornography overseas

64. We are at sequence 4, the production of child pornography overseas on 6 November 2016. 

65. On 5 November 2016, the offender arrived in the Philippines having flown from Australia via Thailand.  On 6 November 2016, he took nine photographs of victim 8, victim 9, victim 10 and victim 11 at a poolside area while eating a meal together.  Later that day, the offender took 11 photographs of victim 8, victim 9, victim 10 and victim 11 in his hotel room.  They were child pornography, including victim 11 standing naked with his underwear around his lower legs; victim 8 and victim 9 lying on a bed where victim 9 is naked and watching heterosexual adult pornography on a mobile device owned by the offender, with one victim lying naked on a bed with a pillow over his head.  Victim 8, victim 9, victim 10 and victim 11 were between ten and 14 years of age when the photographs were taken.  These were classified.  All fell within category 1.  There were none of the photographs within categories 2, 3, 4 or 5.  Once, again, I have sequence 4 below mid-range of objective seriousness.

Sequence 5; 7 November 2016; Produce child pornography overseas

66. The next offence is sequence 5, produce child pornography overseas on 7 November 2016.  On 7 November 2016, the offender took 55 photographs of victim 10, victim 11 and victim 12 in his hotel room.  They were child pornography.  Victim 10, victim 11 and victim 12 were on a bed masturbating themselves, and were posing naked.  The offender also produced a one minute 30 second video of them.  In the video, each victim is masturbating their penis.  The victims are speaking in Filipino during the video.  Victim 10 or victim 12 said, "Peter.  Here it comes, Peter."  Victim 10 or victim 12 said, "Here it comes, Peter.  Hey, Peter."  Victim 11 said, "There's none from me, Peter."  Victim 12 was between ten and 14 years old when the photographs were taken.  The 55 photographs and one video were classified.  There were 43 images that fell within category 1; 12 fell within category 2; the video fell within category 2, bringing the total to the 55 images and one video.  None of the material fell within categories 3, 4 or 5.  Sequence 5 I have below mid-range, but at a higher point on the scale of seriousness compared with the matters with which I have already dealt.

Sequence 6; 10 November 2016; Produce child pornography overseas

67. Sequence 6, produce child pornography overseas on 10 November 2016.  On 10 November 2016, the offender took 11 photographs of victim 13 in his hotel room that were child pornography.  The photographs show victim 13 showering naked in the bathroom.  He was between ten and 14 years of age when these were taken.  The 11 photographs and one video have been classified.  All fell within category 1.  Sequence 6, I have that below mid-range of objective seriousness toward the lower end.

Donozo and Junel

68. The next portion of the statement of facts deals with Donozo and Junel. 

69. Joey Donozo is a 34-year-old Filipino national who lives in the Philippines.  He was introduced to the offender on Facebook by an intermediary. 

70. Junel Limoran is a Filipino national who lives in the Philippines.  He is the offender's adopted son. 

71. Both of those persons were a subject of reference in the course of the exchanges which I read.

72. Sometime in 2014 or 2015, Donozo travelled from Cebu to Manila by ferry, with Junel, to meet the offender for the first time.  Donozo paid for the ferry tickets for both with money given to him by the offender.  They met at a hotel in Manila.  Donozo and the offender stayed at the hotel for a week before Donozo returned to Cebu by ferry.  He paid for the fare with money given to him by the offender.

73. The offender and Donozo continued to contact one another using Facebook.  Through these communications, the offender asked Donozo to find some boys for him.  Donozo then took photos of boys in Cebu under the pretence of a modelling shoot, and posted the photos on a Facebook page entitled, "Vasheraine photoshoots".  The offender would view the photos on Facebook and tell Donozo which boys he liked and the boys he wanted to meet the next time he visited the Philippines.

74. The next time the offender met Donozo it was in Cebu, the Philippines.  He gave Donozo a digital camera as a thank you present for introducing him to Junel.  The offender paid 300 pesos, the equivalent of AUD $8, each time he brought children to the offender's hotel.

Victim 14

75. The facts then deal with victim 14. 

76. Victim 14 was introduced to the offender by Donozo.  He knew Donozo from playing basketball.  Victim 14 would go to school, and then hang out with his friends and Donozo.  Donozo would ask them to take pictures in exchange for money, and would tell them that the pictures were safe and would not be published on any social media or Facebook.  Donozo would then take pictures of victim 14 and the others in a room, and sometimes in a mall.

77. I will just go back to the phrase, "Donozo would ask them to take pictures in exchange for money."  I understand this should be read, "Donozo would ask to take pictures of them in exchange for money."

78. The first time victim 14 met the offender, he provided the victim with his Facebook profile name, "Juan Del Forte". They later communicated through Facebook.  The offender gave him money after his first meeting. 

Victim 15

79. The facts then deal with victim 15.  He was introduced to a photographer named "Vasheraine", an alias used by Donozo.  Donozo approached him one day whilst he and his friends were playing billiards and told them to get their school uniform for photos to be taken at the Plaza Independecia.  Donozo paid them for these photos.

80. Several days later, Donozo met victim 15 and his friends outside of his school and told them to go with him to the offender's house.  They sat down at the offender's house and had a conversation and then went home after being given money for their fare.  The friends were referred to as "John Edcel", "Klyde Opone", "Jobert" and three others.

Victim 16

81. The facts then deal with victim 16.  On or about 9 November 2016, victim 16 met Donozo outside his school gate.  Donozo told him to cut school to have his photograph taken.  Donozo took victim 16, and four or the boys, victim 14, victim 15, victim 18 and one other boy, to Plaza Independecia and Ayala Mall where they were photographed in the plaza.  After taking photographs, Donozo gave victim 16 and the four other boys 100 pesos each.  This is the equivalent of AUD $2.70.

Victim 17

82. Victim 17 met the offender through Vasheraine, who added him on Facebook.  As was said, "Vasheraine" is an alias used by Donozo.  Donozo organised for a photoshoot to take place, and victim 17 attended.  Donozo then introduced victim 17 to the offender as "Peter". Though written thus, it would seem that this should be expressed that the offender was introduced as “Peter”.

Victim 18

83. Victim 18 first communicated with Donozo on Facebook.  Victim 18 would go to public places where Donozo would take modelling pictures of him.

84. Against that background, the facts then deal with sequences 7, 23 to 26 and 29. 

Sequence 7; 11 November 2016; Produce child pornography

Sequence 23 – 26; 11 November 2016; Engage in sexual intercourse

Sequence 29; 11 November 2016; Engage in sexual intercourse

85. Sequence 7 is a charge of producing child pornography on 11 November 2016, sequences 23 to 26, engaging in sexual intercourse on the same date; and sequence 29, engage in a sexual activity on the same date.

86. On 11 November 2016, Donozo met victim 14, victim 15, victim 16, victim 17 and victim 18 and escorted them to a villa that Donozo had rented at the direction of the offender.  The offender was waiting at the house and gave each boy a hug upon arrival.  The offender and Donozo escorted the victims inside the house and into the living room.  Junel and his partner were also present.  Once in the living room, the offender gifted the victims a polo shirt and a pair of swimming shorts each.  He told them to get out of their school uniforms and change into the clothes that he had given them.  He took several photos of the victims while they were still wearing their clothes.

Sequence 7

87. The facts specifically referable to sequence 7 are as follow:  Donozo directed the victims to enter the offender's room.  Once inside the room, all of the victims were told to take off their shirts by the offender.  The offender was in his underwear and holding a camera.  Each boy was told to take off their shirt, and was photographed wearing only the swimming shorts that the offender had given them.  All of the boys were then told to take off their shorts and were photographed naked.  In total, the offender took 51 photographs of victim 14, victim 15, victim 16, victim 17 and victim 18 in his hotel in the Philippines that were child pornography. 

88. These were: 

A. Victim 14, victim 15, victim 16 and victim 18 lying naked on the bed masturbating their while victim 17 knelt on the bed masturbating;

B. Victim 14, victim 15 and victim 16 lying naked on the bed masturbating as victim 18 lies on the bed naked watching adult heterosexual pornography on an Asus Zenbook UX301 laptop computer that he is holding;

C. Victim 18 wearing black underwear whilst holding his exposed penis;

D. Victim 18 sitting on a bed whilst masturbating;

E. Victim 14, victim 15, victim 16, victim 17 and victim 18 sitting naked on the bed holding or masturbating their penises while appearing to pose for photographs. 

89. While these photographs were being taken, the victims were of the following ages:  victim 14 was 11 years old; victim 16 and victim 18 were 14 years old; and victim 15 and victim 17 were between ten and 14 years old. The 51 photographs were classified.  13 fell within category 1, 38 within category 2, there were none within categories 3, 4 or 5.

90. Sequence 7 is below mid-range, but further along from the low end of objective seriousness toward a point or at a point closer to within the middle range of objective seriousness.

Sequence 23

91. Sequence 23 involved the following conduct:  after the nude photographs were taken, the victims were told by the offender, who was now naked, to stand in a line.  The offender then sucked the penis of victim 14 for about three minutes before the offender moved on to another boy.  After this, victim 14 went to lie down on the bed and remained nude.  Victim 14 was given 1,500 pesos by the offender, equivalent of AUD $40, and was allowed to keep the polo shirt and the swim shorts. 

92. Sequence 23, I have placed below mid-range, but nearer to the mid-range of objective seriousness than the low end of the range of objective seriousness of such misconduct.

Sequence 24

93. While victim 16 was standing in the line, the offender sucked his penis for about two or three minutes.  He also kissed victim 16's body and gave him a hug.  The offender was masturbating while he performed oral sex on victim 16.  During an interview with the police, victim 16 said the offender performing fellatio on him made him feel, "Not good...because, ah, he [offender] kissed the lips and the body of others."  Victim 16 was paid 250 pesos by Donozo, about AUD $7. He had been given the money by the offender. He was also allowed to keep the polo shirt and swim shorts that were given to him by the offender. 

94. Victim 16 went to the offender's house a day or two later.  He had been invited there by Donozo.  When he arrived, he found out there were other people inside, he was not needed, and so was told to leave.  This brief description is a fair reflection of the disregard one might be find to have been shown towards these children who were wanted for sexual exploitation, including their rejection when not needed because others were available. 

95. This offence is also below mid-range but about the same level as the objective seriousness made in respect of sequence 23.

Sequence 25

96. While victim 18 was standing in the line, the offender sucked his penis for about two or three minutes.  He also kissed victim 18's body and gave him a hug.  The offender was masturbating while he performed oral sex on victim 18.  After the offender finished with victim 18, the offender performed oral sex on another boy.  Victim 18 went and sat on the bed in the same room and watched pornography.  At some stage the offender took photographs of victim 18 while he was sitting on the bed watching pornography.  The offender paid victim 18 500 pesos, the equivalent of AUD $18.50. The victim was also allowed to keep the polo shirt and swim shorts. 

97. Sequence 25 I have placed on the below mid-range on the assessment of objective seriousness equivalent to the position cited for sequences 23 and 24.

Sequence 26

98. While victim 15 was standing in the line, the offender masturbated victim 15's penis, after which the offender also sucked and licked victim 15's penis and kissed his chest.  The offender performed oral sex on the victim for around three minutes.  Victim 15 then laid down on the bed with another victim so they could see the offender's new phone and watch pornography on the offender's laptop.  The offender paid this victim 250 pesos, the equivalent of about AUD $7, and allowed him to keep the polo shirt and the swimming briefs. 

99. I have placed this offence on the scale below mid-range, but at a point comparable to the assessment I have made in respect of sequences 23, 24 and 25.

Sequence 29

100. While victim 17 was standing in the line, the offender masturbated victim 17's penis for about three or four minutes, after which the offender moved on touching the penis of the other boys there.  After going down the line of boys and masturbating and/or sucking their penises, some of the victims were laying down on the bed when the offender asked some of them to touch each other's penis.  The offender lay down next to the victims while naked.  The offender then masturbated to the point of ejaculation. 

101. Sequence 29 I have placed below mid-range of objective seriousness.

Sequence 8 & Sequence 30

102. The facts then deal with sequence 8, producing child pornography, and sequence 30, engaging in sexual activity, both on 15 November 2016.

103. On 15 November 2016, victim 17, victim 19 and victim 20 tried to go to school, however they were not allowed into school due to a haircut policy.  About this time, victim 20 saw Donozo outside the school and he invited them to go to a house in Cebu.  Donozo brought victim 17, victim 19 and victim 20 to the house where they met the offender.  When the victim's entered the house, the offender told them to undress and take a bath.

104. Sequence 8 involved the following misconduct:  when the victims were naked in the bath, Donozo entered the bathroom and photographed them.  Donozo took 132 photographs of victim 17, victim 19 and victim 20.  They were child pornography, including: 

A. Victim 17, victim 19 and victim 20 standing naked in a bathtub;

B. Victim 19 and victim 20 sitting naked on a bed in a room. 

105. Victim 19 was aged between ten and 14 when the photographs were taken.  Victim 20 was 12 years old when the photographs were taken.  The 132 photographs were classified.  64 fell within category 1; 65 fell within category 2; three videos fell within category 2, bringing the total to 132 items. 

106. Sequence 8, I have assessed the misconduct at below mid-range of objective seriousness.

107. Sequence 30: when the victims entered the room, the offender, who was naked, told them to lie on the bed.  While victim 20 was laying on the bed, the offender sat down next to him and began to masturbate victim 20.  The offender masturbated him for five minutes.  While this was happening, victim 19 and victim 17 were laying on another bed in the room.  They could see the offender masturbating victim 20.  After the touching, the offender told victim 20 to get dressed so that they could all go to a restaurant for dinner.  The offender then took all three victims to dinner and to play arcade games.  The offender paid victim 20 a total of 400 pesos, the equivalent of AUD $11 and told him to go home. 

108. Sequence 30 is assessed as below mid-range of objective seriousness.

Sequence 9 & Sequence 27 & Sequence 31

109. The facts then deal with sequence 9, producing child pornography on 18 November 2016; sequence 27, engaging in sexual intercourse on the same day; and sequence 31, engaging in sexual activity on the same day.  The information regarding victims 21 and 22, and the events leading up to the offences are described below.

Victim 21 & Victim 22

110. Victim 21 was in grade 7 when he met Donozo through his cousin, who had taken business photoshoots with Donozo.  Donozo introduced victim 21 to the offender under the pretence of having modelling photos taken at the house. 

111. Victim 22 also went to the offender's house and both victims were given dinner. 

112. Victim 21 was between ten and 14 years of page when sequence 31 and sequence 9 occurred.  Victim 22 was 14 years old when sequence 31 and sequence 9 occurred.

113. On 18 November 2016, victim 22 was invited to the offender's house by Donozo.  Two other children, including victim 21, were also invited.  When victim 21 and victim 22 arrived at the house, they met the offender.  The other young boys at the house included victim 13, victim 14 and victim 15.  While they were there, the victims spoke with the offender and saw him taking photographs.  After an hour, the group travelled to Tops Lookout in Cebu in a rented ‘jeepney', a bus that is used for public transportation.

114. When they arrived at the lookout, the victims and the other boys in the group were photographed by the offender.  He took 30 photographs of himself with victim 13, victim 14 and victim 15, victim 21 and victim 22 and other unknown male and female children and other adults.  The photographs show the offender and others on the way to and at the lookout.

115. After one hour, they left the lookout and went back to Cebu City.  Most of the children were dropped off at a square in Cebu on the return drive.  Donozo told victim 21 and victim 22 to stay with him and the offender.  The offender and Donozo took victim 21 and victim 22 out to dinner at a restaurant and returned to the house later that evening.

116. When the offender, Donozo, victim 21 and victim 22 returned to the house, Donozo told both victims to go and have a shower and a bath.  They went to the bathroom, undressed and got into the shower.

The facts then deal with the offence sequence 31

117. The offender entered the bathroom and began to touch both victims' body parts.  The offender got undressed and got into the shower with the victims.  Victim 22 stated that he was then romanced by the offender and explained that the offender shampooed his hair, and washed his body.  The victim stated that the offender touched all of his body and his back area, and that the offender and both victims were in the shower together for about eight minutes.  Afterwards, they all went to room one, which was the offender's room.  Victim 22 got dressed and went to room 2, which was Donozo's room.  The offender locked the door to room 1 and remained in the room with victim 21. 

118. Sequence 31 is below mid-range of objective seriousness.

119. Sequence 27 is next described.  In room 1, the offender told victim 21 to lie down on the bed.  The offender removed all of his clothes, except for his briefs, and lay down next to victim 21 on the bed.  The offender removed the victim's shorts and sucked his penis.  The offender performed oral sex on victim 21 whilst crouching over him on the bed.  The offender simultaneously, also intermittently, masturbated the victim's penis and talked dirty to him.  This continued for about 20 to 30 minutes until the victim ejaculated.  The ejaculate landed on his abdomen.  The offender told victim 21 to put on his clothes and leave the room, after which victim 22 entered with Donozo.  Donozo told both of the victims to play mobile games in the room with the offender.  The victims then played mobile games on the offender's phone with the offender located between them. 

120. The offender paid victim 21,350 pesos, about AUD $9.50. 

121. Sequence 27 I have below mid-range, but closer to mid-range than the lower end of the scale.

122. Sequence 9 is then described:  during the period that victim 21 and victim 22 were at the offender's house on 18 November 2016, he took 16 photographs of victim 21 and ten photographs of victim 22. 

123. These were child Pornography:

A. Photos depicted victim 21 posing naked; and,

B. Photographs depict victim 22 exposing his penis. 

124. These were classified and all were found to fall within category 1.  In addition to the payment made to victim 21, the offender paid victim 22,250 pesos, equivalent to AUD $7.  Both boys were told to go home. 

125. On 22 November 2016, Donozo, again, invited victim 21 and victim 22 to go to the offender's house, but they refused. 

126. Sequence 9 is below mid-range of objective seriousness.

Sequence 10; 26 November 2016; Produce child pornography overseas

127. On 26 November 2016, the offender took 76 photographs of victim 8 that were child pornography at a hotel in Manila, the Philippines, including: 

A. Victim 8 lying naked on a bed masturbating his penis;

B. Victim 8 standing naked in a hotel room with an erect penis;

C. Victim 8 standing naked on a couch with an erect penis;

D. Victim 8 sitting naked in a chair;

E. Victim 8 standing naked on the balcony of a hotel with an erect penis;

F. Victim 8 standing naked in a hotel room drying his hair with a hair dryer. 

128. Victim 8 was between ten and 14 years of age when these photographs were taken.  The offender also recorded three videos that were child pornography, showing victim 8 lying on a bed masturbating.  These were classified.  69 of the images fell within category 1; seven of them fell within category 2; the three videos fell within category 2, bringing the total of the items to 79. 

129. Sequence 10 I have assessed at below mid-range, but closer to mid-range than the low end of the scale of seriousness.

Sequence 17 [4] ; 6 December 2016; Transmission of child pornography 

4. The Agreed Statement of Facts incorrectly refers also to Sequence 16 at this point, drawn to my attention at a later point in the judgement by the Crown. Sequence 16 was dealt with earlier in the judgement.

130. On 6 December 2016, the offender transmitted three images to Maliboy Hornbag using Brosix.  All three images were child pornography and depicted:

A. Victim 17 standing naked in a bathroom masturbating, classified as category 2;

B. Victim 17 standing naked in a bathroom, classified as category 1; and

C. Victim 17 standing naked in a bathroom, classified as category 1. 

131. These offences I have below mid-range of objective seriousness, toward the lower end of the range.

Sequence 18; 3 January 2017; Transmission of child pornography

132. On 6 December 2016, the offender transmitted 15 images to Maliboy Hornbag using Brosix.  All of the images were child pornography and depicted: 

A. Three Asian male persons aged approximately 12 to 14 years sitting naked on the edge of a bathtub with their genitalia exposed;

B. Victim 17, victim 19, and victim 20, kneeling or lying naked on a bed;

C. Victim 17 lying naked on a bed masturbating while victim 20 sits naked on victim 19, who is also naked;

D. Victim 17 lying naked on a bed masturbating while victim 20 sits naked on victim 19 who is also naked;

E. Victim 14, victim 15, victim 16, victim 17 and victim 18 naked, lying, sitting or kneeling on a bed masturbating;

F. Victim 14, victim 15, victim 16, victim 17, and victim 18 sitting naked on a bed masturbating;

G. Victim 18 sitting naked on a bed masturbating;

H. Victim 10, victim 11 and victim 12 sitting on a bed naked with victim 12 masturbating;

I. Victim 9 lying naked on a bed touching his genitals while victim 8 holds a Samsung Galaxy Note 3 mobile device;

J. Victim 17 sitting naked on a bed touching his genitalia;

K. Victim 19 and victim 20 sitting naked on a bed with victim 20 touching his genitals;

L. Victim 17 sitting naked on a bed while masturbating;

M. Victim 20 lying on a bed masturbating;

N. Victim 17 lying naked on a bed; and,

O. Victim 17 lying naked on a bed. 

133. The 15 photographs were classified; five of them within category 1; ten of them within category 2. 

134. Sequence 18 is below mid-range, but at a point above where I have placed my assessment of assessment of sequence 16 and 17.

Sequence 11; 8 April 2017; Produce child pornography overseas

135. On 4 April 2017, the offender arrived in Ho Chi Minh City, Vietnam from Sydney, Australia.  On 8 April 2017, the offender took 16 photographs of victim 23 that were child pornography at a hotel in Vietnam including:

A. Victim 23 posing naked;

B. Victim 23 standing naked embracing an unknown adult male who is also naked. 

136. The offender is also depicted hugging victim 23 in the same hotel room in the other photographs.  Victim 23 is wearing clothes in that photograph.  Victim 23 was between ten and 14 years old when the photographs were taken.  The 16 photographs were classified as within category 1. 

137. I have placed this offence below mid-range of objective seriousness.

Sequence 12; 6 July 2017; Produce child pornography overseas

138. On 24 June 2017, the offender arrived in Vietnam having flown from Australia via Singapore.  On 6 July 2017, the offender took 19 photographs of victim 23 and victim 24 that were child pornography at a hotel in Vietnam, including: 

A. Victim 24 kneeling naked on a bed while looking out a window;

B. Victim 23 standing naked in the living room area of the hotel room;

C. Victim 24 standing naked in the living area of a hotel room;

D. Victim 23 and victim 24 standing naked in the living area of a hotel room with an unknown third person;

E.  Victim 24 standing naked in the bathroom of a hotel room and;

F. Victim 23 and victim 24 standing naked in the bathroom of a hotel room. 

139. Victims 23 and 24 were between ten and 14 years old when the photographs were taken.  The 19 images were classified to all be within category 1. 

140. Sequence 12 I place below mid-range of objective seriousness.

Sequence 13; 8 July 2017; Produce child pornography overseas

141. On 8 July 2017, the offender took 111 photographs of victim 23 and victim 24 that were child pornography at an unknown hotel in Vietnam, including:

A. Victim 23 and victim 24 sitting in a bath together;

B. Victim 23 and victim 24 sitting in a bath with the unknown Asian adult male person;

C. Victim 23 and victim 24 sitting in a bath where the unknown Asian adult male person is masturbating victim 23;

D. Laying naked on a bed where victim 24 holds victim 23 around the torso while victim 23 watches a Samsung Galaxy Note 3 mobile device;

E. Lying naked on a bed where victim 24 masturbates victim 23 while victim 23 watches a Samsung Galaxy Note 3 mobile device; and,

F. Laying naked on a bed where victim 23 and victim 24 are holding each other. 

363. I am reminded of his achievements in custody, his participation in appropriate courses. I am reminded of the evidence that he is under stringent conditions in gaol that must be brought to account. He spoke of the spectacular fall from grace which the offender accepts and from which he does not hide. It is submitted that he has done all he can to rehabilitate. He knows that he has forfeited his opportunities for professional life and pastoral life but he will continue to make contribution such as he might, notwithstanding, those lost opportunities.

364. He then made submissions with regard to the specific offences. The Crown responded with submissions as to the limited weight to be given to prior good character. The only evidence upon this is from the offender, no evidence that he has support in the community. As to his level of intelligence, there was no doubt the Crown submitted, that he was fully aware of the consequences of his wrongdoing if detected. Little or no weight should be given to the evidence of Dr Nielssen in the reports provided by him. All of the representations he offered depended entirely upon the offender and his veracity. The offending was over a significant period of time.

365. The Crown acknowledged there was no actual comparable case to the circumstances of this matter from which guidance might be obtained in the assessment of sentence.

366. Mr Radojev spoke in reply to the point of assistance. He advanced the argument that no-one returned to the offender notwithstanding, his letter to the authorities, and that was not his fault. He ought to be viewed as having offered ongoing assistance that was not taken up. The Crown reminded me of the content of the letter from the AFP to which I have already referred.

Findings

424. Upon consideration of all this material and the submissions that were made, I make the following findings;

425. The explanation from the offender to explain his crimes attracts little weight. It is clear that he embarked upon his overseas venture with planning and care, to avoid detection, maintaining control over the costs to be incurred in having the children available to him. His planning and organisation included acquisition of premises to allow full reign for his sexual adventures with these children with limited risk of exposure to others who might see him attending the properties in the company of the children or in the activities upon which he wished to engage within them.

426. The content of the communication summarised earlier and the descriptions given to his association with the victims are replete with basic facts from which the inference to be drawn is that he groomed each of them, each of the children, into the activities for which he wanted them.

427. I do not accept that the assertive nature of his mother in his formative years, which the offender alleges, provides an explanation for or mitigates his moral culpability evident in this misconduct. I do not accept that his mother’s attitudes or the bullying he said he suffered because he was less physically competent and more academically successful than his peers, explains the nature of his offending or the extent of it.

428. I accept the opinions of Dr Nielssen that the offender does not have a hoarding disorder but that he probably has an abnormal sexual interest described as homosexual paedophilia. I am not persuaded that the offender is genuinely contrite.

429. With the opportunity to observe his evidence and upon consideration of the measured responses throughout the history of the investigation by those there to assist him, I have come to the view that his evidence must be approached with a significant measure of circumspection. He has demonstrated capacity for the manipulation of those to whom he spoke, including in the course of his evidence in which, from time to time, he sought to deflect the focus of the questions put to him and took opportunities when presented to provide discursive answers, amplifying repetitive propositions upon which he would rely. By way of example, I refer to his repeated use of the term ‘compulsion’ given to explain why his better nature was overborn leading to his offences.

430. I attribute limited weight to the qualified offer of assistance. It is questionable as to whether it was not motivated by the offender’s desire to assist authorities or was more to improve his position in the assessment of sentence. I find that the offender has the capacity for manipulation, demonstrated when he chose carefully the amount of information he gave to those called upon to assist him, including Dr Nielssen for his first report, and the evidence he gave, attempting to distance himself from the agreed statement of facts at the expense of his lawyers, a course abandoned in due course when I raised the risk of embarrassment to his counsel in light of evidence he gave regarding his lack of sexual function, in contrast to the agreed statement of facts.

431. I do not accept his evidence that he could not achieve erection or ejaculation.

432. I find that his repeated expressions of remorse were more concerned with his predicament than the welfare of his victims. Against his obvious intellect, academic achievements and life experiences, it beggars belief that he would not appreciate the wrongfulness of his conduct when he was so engaged and did not appreciate the extent of the harm to his victims until he read their statements, describing the impact of his crimes.

433. The opinion given by Dr Nielssen that there was a low risk of reoffending must be qualified. Moreover, I find that the distinction between an offender, who is a “current” offender, into which this category this offender was said to be, in contrast to an offender who persists even after interdiction by law enforcement, is one of questionable value in the circumstances where the offender continued in his misbehaviour, notwithstanding, the opportunity of help from Dr Canaris and others in the past.

434. Dr Nielssen’s view that any rational person would not wish to commit further offences against the risk of suffering once more the “trauma” of arrest, such as the offender said he experienced, and subsequent prosecution, does not persuade me.

435. Notwithstanding, the offender’s evidence that he will not reoffend and now has control of his tendencies, I find that the level of his actual interest demonstrated by the offender, his skill controlling information assembled for these proceedings, the range of his misconduct, the time over which it was perpetrated and his willingness to travel to other countries in pursuit of his aims, do not allow a finding that there are more than modest if any, prospects of rehabilitation.

436. I find support in this in the evidence given regarding his response to the arrest in Sydney Airport and the claimed “trauma” from the shame he said he suffered, which he said was not the most shameful point in his life, but it was when he felt the most ashamed. I do not accept that the memory of that experience caused resurgence from his subconscious of sexual images which in turn lead him to thoughts of his victims and what he has done.

437. I note that his evidence, to which I referred earlier, was expressed in the reverse to that proposition, that the recall of sexual images, drawing upon what he had engaged upon in the past, brought forth the sense of trauma experienced when he was arrested at Sydney Airport and taken away in handcuffs. My memory is that his evidence and the proposition advanced on his behalf initially were as I expressed a moment ago, that the memory of the experience at the Sydney Airport caused resurgence from his subconscious of sexual images which in turn lead him to thoughts of his victims and what he has done. Either way, I do not accept the proposition that he was traumatised to the extent that he has represented to Dr Nielssen and offered to this Court. To find otherwise would be to ignore the selective provision of information to Dr Nielssen revealed in the first report, upon which he was intending to rely in the proceedings.

438. I find that the offences were motivated by his sexual interest in boys at their pubescent stages of life and he was willing to exploit them in their limited economic circumstances in their homeland in the pursuit of his goals. No other finding could be made in light of the exchanges with ‘Maliboy Hornbag’, the planning and sophistication shown in the arrangements he discussed in those exchanges, including control of the rewards he would offer these children, the selection of premises that mitigated the risk of discovery and the use of others in those locations to procure and facilitate his access to these children.

439. I have considered the offender’s evidence regarding custodial arrangements. There was nothing to gainsay the descriptions given by the offender regarding these but I am not persuaded upon his evidence overall upon this topic that they are such as to warrant anything other than limited weight in the assessment of the punishment he is about to face.

440. I accept that he has compromised health that led to the cardiac surgery and in light of his age this must be a fact brought to account. I have, accordingly, identified an appropriate custodial component of the combined sentences with a significant period on parole during which I would expect he will have no difficulty re-socialising and re-assimilating in the community.

441. Clearly the lines provided in s 5 Crimes (Sentencing Procedure) Act1999 and in s 17A Crimes Act 1914 were crossed by this behaviour, and only imprisonment will suffice. All of the purposes of sentencing expressed at common law and specified for example in s 3A of the New South Wales Act and for the purposes of the Commonwealth offences are engaged, but notably are the aspects of general deterrence, punishment, denunciation, recognition of harm, specific deterrence and protection.

The Sentences

442. I have applied a discount of 25% to each of the sentences that I have identified for these offences, upon the synthesis of objective and subjective material that has been provided to me. In some instances, the sentences have been rounded down to years and months to obviate the need to express them in terms of years, months and days. I shall take each of these offences in turn, it is going to take some little time and I will go slowly.

443. For the offence H# 445 sequence 1, the intentional importation of prohibited tier 2 goods, contrary to s 233BAB(5) Customs Act 1901(Cth), I identify a sentence of 2 years and 3 months.

444. For the offence H# 956 sequence 2, possession of child abuse material, s 91A(2) Crimes Act 1900, I specify an indicative sentence of 3 years 4 months.

445. For the offences of producing child pornography outside of Australia, s 27.5(1), Criminal Code 1995 (Cth)

• Sequence 1, 2 years 7 months;

• Sequence 2, 3 years 3 months;

• Sequence 3, 3 years 3 months;

• Sequence 4, 2 years 7 months;

• Sequence 5, 3 years 3 months;

• Sequence 6, 2 years 7 months;

• Sequence 7, 3 years 3 months;

• Sequence 8, 3 years 3 months;

• Sequence 9, 2 years 7 months;

• Sequence 10, 3 years 3 months;

• Sequence 11, 2 years 7 months;

• Sequence 12, 2 years 7 months;

• Sequence 13, 3 years 3 months;

• Sequence 22, 3 years 3 months;

• Sequence 14, 2 years 7 months.

446. For the offences sequences 15 to 18, using a carriage service to transmit child pornography, s 474.19(1) Criminal Code 1995 (Cth),

• Sequence 15, 2 years 3 months;

• Sequence 16, 2 years 3 months;

• Sequence 17, 2 years 3 months;

• Sequence 18, 2 years 7 months.

447. Sequence 19, using a carriage service to cause child pornography to be transmitted to himself, s 474.19(1) Criminal Code 1995 (Cth), 2 years 3 months.

448. Sequence 20, possess child abuse material, s 91A(2) Crimes Act 1900, 3 years.

449. Sequences 23 to 28, engaging in sexual intercourse with a child outside of Australia, s 272.8(1) Criminal Code 1995 (Cth),

• Sequence 23, 4 years;

• Sequence 24, 4 years;

• Sequence 25, 4 years;

• Sequence 26, 4 years;

• Sequence 27, 4 years;

• Sequence 28, 4 years.

450. Sequences 29 to 31, engage in sexual activity other than sexual intercourse with a child, outside of Australia, s 272.9(1) Criminal Code 1995 (Cth),

• Sequence 29, 3 years;

• Sequence 30, 3 years;

• Sequence 31, 2 years 3 months.

451. In relation to the New South Wales offences, sequence H# 956/2 and sequence 20, I specify an aggregate sentence. The aggregate sentence is overall one of 4 years and 3 months, including the non-parole period of 3 years and 2 months which I have specified. Thus the offender is sentenced to a non-parole period of imprisonment of 3 years and 2 months from 6 October 2018 to expire on 5 December 2021 with the period during which he shall be eligible for parole for those offences to expire on 5 January 2023.

452. For the Commonwealth offences, I specify an aggregate sentence of 17 years to commence on 6 October 2020, including a non-parole period of 12 years. Thus the order I make in respect of that sentence is that the offender is sentenced to a non-parole period of imprisonment of 12 years, commencing on 6 October 2020 and that will expire on 5 October 2032. The period during which he shall be eligible for parole will expire on 5 October 2037.

453. Mr Hansen, the sentences I’ve imposed, I’ve identified each of the indicative sentences for the individual offences. I don’t intend to proceed through each of those again. A copy of this document, my orders has been provided to your solicitor here today and he can discuss those with you in their detail. But in relation to the State offences and this is the important aspect of the matter for you, there’s an aggregate sentence of 4 years and 3 months from 6 October 2018 to expire on 5 January 2023. The non-parole period for that sentence is 3 years and 2 months to expire on 5 December 2021.

454. The Commonwealth offences, I’ve specified an aggregate sentence of 17 years from 6 October 2020, to expire on 5 October 2037, which includes a non-parole period of 12 years which will expire on 5 October 2032. So the custodial component of your sentence extends from when you came into custody on 6 October 2018 to 5 October 2032. That’s a period of 14 years and thereafter, there is a parole period of 5 years to expire on 5 October 2037. The period, during which you will be eligible for parole upon the combination of those two sentences, I’ve dealt with upon the basis of your age and that you are already at that stage of your life where impaired health is beginning to afflict you; there can be no doubt that as your years advance that will continue to occur.

455. The opportunity for rehabilitation and reassimilation in the community should be adequately addressed I think, in the period of five years that you’ll have available to you, at that point in your life.

456. I make the forfeiture order in the terms of the document filed in court today and I shall affix today’s date which is 4 June 2021 and sign the document. My associate can seal the document forthwith.

457. I’ll place the Child Protection Register documents on the Court file. I note the registered document is placed on the Court file.

458. I note for the purposes of these proceedings that the sample exhibit book has been returned to the Crown today. It’s exhibit C. The Crown is to sign the exhibit register to make sure the Court has a record of its return.

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Endnotes

Decision last updated: 06 September 2021