R v Kunsevitsky

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0040

THE QUEEN

BORIS KUNSEVITSKY

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-21 May 2019
DATE OF SENTENCE:	29 January 2020
CASE MAY BE CITED AS:	R v Kunsevitsky
MEDIUM NEUTRAL CITATION:	[2020] VSC 41

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CRIMINAL LAW – Sentence – 59 offences – 43 child victims – Plea of guilty – Maintain sexual relationship with a child – Produce child pornography – Sexual intercourse with a child outside Australia – Sexual conduct with a child outside Australia – Induce a child to engage in sexual intercourse with a third person outside Australia – Cause a child to engage in sexual intercourse in the presence of the offender outside Australia – Cause a child to engage in sexual activity in the presence of the offender outside Australia – Persistent sexual abuse of a child outside Australia – Produce child pornography material outside of Australia – Import Tier 2 goods child pornography – Very serious offending over 15 years – Activity spanning four countries – Crimes Act 1914 (Cth) – Crimes Act 1958 (Vic) – Criminal Code (Cth) – Customs Act 1901 (Cth) –Sentencing Act 1991 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Breckweg	Commonwealth Director of Public Prosecutions
For the Accused	Mr I. Crisp	Thexton Lawyers

HIS HONOUR:

Introduction

Boris Kunsevitsky, on 21 March 2019 you pleaded guilty to 59 sexual offences against children.

These offences arise from crimes you committed over a 15-year period between September 2002 and September 2017, in Australia, the Philippines, Singapore, and Indonesia.

I will use a pseudonym throughout this sentence to protect the identity of your Australian victim. Your overseas victims have either never been identified by more than their first names, or remain entirely unidentified. Your overseas victims have never made statements to the police.

Summary of the offending

Due to the vast scale of your offending, I will begin by giving a brief summary. You fall to be sentenced for 59 separate offences involving 43 child victims. Further, you are to be sentenced for offences involving the production and importation of child pornography.

Your offending falls into three broad categories. First, you committed offences outside Australia, taking place in three Asian countries, by engaging in sexual intercourse or sexual conduct with 27 children, and inducing or causing children to engage in sexual intercourse with other children or a third person in your presence. Also outside Australia, in one country, you engaged in the persistent sexual abuse of five children.

Second, you committed offending in Melbourne in that you maintained a sexual relationship with a child between the ages of 13 and 15.

Third, you committed child pornography offences involving the production and importation of child pornography material into Australia. You produced such material both in and outside Australia. The material you produced in Australia involved creating 55 images depicting the offending against your Melbourne victim, which included images of you anally penetrating that child. Internationally, you produced an estimated 1000 photographs or videos depicting your sexual offending against children, or depicting children engaged in sexual activity or contact with each other. You imported this material into Australia.

In broad terms, your offending against children took place over approximately 15 years. It was breathtaking in its scale, including the number of occasions that the offending occurred, the nature, variation and degree of repetition of the type of offending, the number of victims, the number of countries in which you offended, and the extended period over which these events occurred. As will become evident, your offending was extremely serious. Your appetite for the sexual activities that underpinned your offending appears to have been insatiable. It represents the worst level and type of such offending I have seen, and is shocking.

Detailed circumstances of the offending

Due to the scale of your crimes it will not be possible today to identify each piece of offending in full detail. The full list and detail of your charges as set out in the 53-page ‘Summary of Prosecution Opening’ will be annexed to this sentence as Annexure 1.

I will summarise your offending in sufficient detail to ensure these reasons are as transparent as they can be, and properly understood. The Summary of Crown Opening will provide the total picture of your offending. I have used this document in preparing these reasons, and have adopted the victim numbers used by the prosecution, but placed them in chronological date sequence. While this means that the numbering will not always be sequential in this reasons, it will hopefully allow those who read this sentence to cross-reference with Annexure 1 more easily. In this regard, I further note that while you have pleaded guilty to offending involving 43 victims, the prosecution numbering of victims has some gaps, and reaches number 59.

It is also appropriate to comment that there are many instances where the dates of your offending overlapped as between victims, and on many occasions involved multiple victims at the same time.

Victim 23 – Charles 2

On or about 1 January 2001, you engaged in sexual intercourse with a child under 16 outside Australia. This victim is known as Charles 2 and was 14 years old. These events took place in your home in Singapore. You took 16 photographs of Charles 2 performing fellatio on you, and also engaged in various sexual acts with Victim 22. This offending represents charge 1 on the indictment.

Victim 22 – Charles 1

Between 1 January 2002 and 31 December 2002, you engaged in sexual conduct with a child under 16 outside Australia. This victim is also known as Charles and was 14 years old. I will call this victim Charles 1. You took 19 photographs of this boy in various stages of undress and being naked. You also took photographs of Charles 1 in your home in Singapore with another child victim, believed to be Charles 2, engaging in sexual activity. This offending represents charge 2 on the indictment. This is a ‘rolled-up’ charge, involving more than one separate instance of offending. In such circumstances the criminality involved in this charge can be considered greater than a charge involving only one episode.

Victim 1 – Jasper

Between 21 September 2002 and 23 August 2003, while living in Singapore, you engaged in sexual intercourse with a child named Jasper who was approximately 12‑14 years old. On three occasions during this time, you took numerous photographs of Jasper at your home, as you performed various sexual acts, including anal penetration.

Additionally, on other occasions, you took pictures of Jasper engaged in pornographic poses or activity, and of him watching child exploitation material on a laptop, and close-up images of his erect penis.

These photographs establish that over a period of approximately 11 months, you engaged in multiple acts of sexual intercourse with this child, as reflected in charge 5 on the indictment. This is also a “rolled-up” charge, involving more than one separate instance of offending.

Victim 2 – Jing Yong Ngoo

Between 17 August and 21 December 2002 in Singapore, you engaged in sexual intercourse with a child under 16, namely Jing Yong Ngoo, who was approximately 12-14 years old. On 17 August, 5 October, 19 October and 21 December 2002, you took numerous photographs of this offending, including acts of sexual penetration and the victim showering, urinating, and masturbating. Some close-up images depicted your victim’s penis and buttocks with semen present on them. All of the described events occurred in your home. This offending constitutes charge 3 on the indictment. This is also a “rolled-up” charge, involving more than one separate instance of offending.

Victim 3 – Ian

Between 21 August and 31 December 2002 in Indonesia, you engaged in sexual intercourse with a child known as Ian, who was 12 years old.

On 21 and 25 August 2002 you took photographs of Ian, depicting various acts including fellatio, you touching his anus, as well as Ian lying naked on his stomach with you ejaculating on his back. On unknown dates later in 2002, you took further photographs, showing Ian sitting on your stomach while you penetrated his anus with your penis. This offending forms the basis of charge 4 on the indictment. This is also a “rolled-up” charge, involving more than one separate instance of offending.

Victim 5 – Unknown

On or about 17 December 2002, you engaged in sexual intercourse outside Australia with a male child aged between approximately 12-14 years old. The photographs depicted him naked and lying on a bed with his anus and penis exposed. You are shown digitally penetrating his anus. These events occurred in your home in Singapore and form charge 6 on the indictment.

Victim 6 – CM

Between 1 January 2004-31 October 2005 you maintained a sexual relationship with a male child from Melbourne, Victoria. Your victim, CM, was born in June 1990. In 2003, when CM was 12 years old, he accessed an Internet site called, ‘MOGENIC’, which was designed for children between the ages of 13 and 16, and enabled users to chat to one another. In order to join the chat forum, CM recorded his age as 13.

Shortly after CM joined the site, you began speaking to him via the chat forum. During your first online conversation, CM told you he was 13 years old and you deceived him by stating you were 19 years old. After a few conversations, the chats became sexual and you told CM you were actually 27 years old. You eventually told him you were in fact 31 years old, being your correct age at the time. You spoke via webcam on two occasions, which CM recalls as eventuating from your request to confirm he was not a police officer.

In January 2004, when CM was 13 years old, you first met in person. You picked him up from his home and drove to a house in Noble Park that belonged to one of your friends. Once there, you started to hug CM and kiss him. Initially, CM said no, and you put on videos of child pornography and performed fellatio on him. CM then performed fellatio on you and you penetrated CM with your penis.

Following that first meeting, you and CM continued communicating online. In February 2004, you met again and went to a house belonging to your wife’s parents. You set up a tripod with a video camera in front of the bed and penetrated CM with your penis several times. CM states you would have performed fellatio on each other as well, but can only recall being penetrated.

In approximately June 2004, CM went to your house in Beaumaris. You showed him pictures of boys in Asia and told him you had sex with them. You said these boys were all 12-14 years old, and said that any younger would mean you would be taking advantage of them. You performed fellatio on CM and penetrated him, and he performed the same acts upon you.

In July or August 2005, a further incident occurred, during which you and CM masturbated each other in a parked car in Belgrave.

In about September or October 2005, when CM was 15 years old, you travelled to his house as his parents were away. You penetrated CM and performed fellatio on each other. This was the last sexual encounter between you and CM, after which you ceased all communication.

The activity I have summarised forms the basis of the charge of maintaining a sexual relationship with a child under the age of 16. It is charge 7 on the indictment.

Additionally, in the course of this offending, you took photographs of CM engaged in sexual activity, constituting the further offence of production of child pornography material, being charge 8 on the indictment. Police recovered 55 unique images which depict pornographic photographs of CM on at least three occasions between January 2004 and July or August 2005. The material depicts CM naked, penetrating his own anus with a vibrator, being penetrated by you, performing fellatio on you, and other sexual acts. Some images also include screen captures and videos of CM performing sexual acts before a webcam.

The files relating to CM were located by police on a computer belonging to you, in a folder titled ‘jailbait’ and a further subfolder reflecting the victim’s first name. I note that on 23 July 2007, German law enforcement officers identified 55 child pornography images of CM uploaded to an online cloud-based service.

Your criminal conduct against CM occurred over an extended period of almost two years. It is to be regarded as very serious conduct, particularly as the impact on him was profound. I shall return to this aspect later.

All of the offending which I shall now proceed to detail, and which involved contact with children, occurred at locations in the Philippines.

Victim 9 – Mel

Between 28-30 September 2008 in the Philippines, you engaged in sexual intercourse with Mel. During this period, you took a series of photographs and videos of Mel, and Victim 10, both aged 13 years old. One video depicts you anally penetrating one of the victims with your penis, while the victim appears to be asleep. You also digitally penetrated the anus of the other victim whilst he was masturbating, and in another video, inserted a tube into the anus of a victim while another unidentified male voice can be heard in the background.

Further videos and images depict Mel and Nemer engaged in sexual activity while you provide direction, the two victims showering together naked, and you engaging in sexual acts with both. This offending is reflected in charge 9 on the indictment, and is also a ‘rolled-up’ charge, involving more than one separate instance of offending.

Victim 10 – Nemer

In addition to the offending acts described above in respect of Victim 9, you engaged in sexual intercourse with Nemer on several other occasions between 28 September 2008-27 February 2010 in the Philippines. Again, you took numerous photographs and videos of this offending.

In November 2008, you met with Nemer several times, and recorded him engaged in sexual acts alone, with another child victim, and also with you.

In January 2009, you committed acts against Nemer on at least three different dates. This offending also involved another male child, estimated to be between 8-12 years old. Videos depict you lying naked on a bed with both children, engaged in kissing, mutual masturbation and mutual fellatio. You also directed both victims to penetrate one another and also yourself. It is particularly horrifying that you are depicted directing the victims to smile while being penetrated, and telling Nemer to relax while you penetrate him, as he exhibits signs of physical pain.

On a further eight occasions between March 2009–February 2010, you took numerous videos and photos of Nemer and other child victims engaged in acts including anal penetration, mutual masturbation, fellatio, and the viewing of child exploitation material. You are depicted penetrating various victims digitally and with a vibrator, as well as several victims performing acts of masturbation and fellatio on you. This offending represents charge 10 on the indictment, and is also a ‘rolled-up’ charge, involving more than one separate instance of offending.

Additionally, on 17 January 2010 you induced a child under 16, namely Nemer, to engage in sexual intercourse with a third person, in your presence. The videos you took of this offending depict Nemer penetrating himself both digitally and with a vibrator, Nemer engaged in kissing and mutual masturbation with Victim 12, and the two victims penetrating one another. You can be heard directing the victims in the background. This offending constitutes charge 21 on the indictment.

Further, between 12 June 2010-20 May 2011, you engaged in the persistent sexual abuse of Nemer in the Philippines. This charge represents four occasions of you engaging in sexual intercourse with Nemer, in addition to five incidents of you causing Nemer to engage in sexual intercourse in your presence. This represents charge 28 on the indictment, and includes a horrifying scale of offending involving several other male children, many different sexual acts, and your frequent instructions as captured in the footage seized. This events occurred over almost one year.

Victim 11 – Aljohnjerry/Aldrin

On 2 August 2009, you induced a child under the age of 16 to engage in sexual intercourse with a third person, in your presence. You directed this victim and victim 12 to perform fellatio on each other, and for one to anally penetrate the other. You also performed fellatio on one of the victims. This represents charge 14 on the indictment.

Victim 12 – Brill/Nemal

The offending summarised directly above in Charge 14 also involved victim 12. Accordingly, the circumstances of that offending also constitutes charge 15 on the indictment in respect of victim 12, Brill/Nemal. Victim 12 is believed to have been 14 years old.

Additionally, between 2 August-18 December 2009, you engaged in sexual intercourse with Victim 12. This constitutes charge 16 on the indictment and involves offending on three separate occasions, during which you were anally penetrated by this victim, bathed with him, and he performed other sexual acts upon you. This is also a “rolled-up” charge, involving more than one separate instance of offending.

On 12 June 2010, you caused Victim 12 to engage in sexual intercourse with Victim 10, in your presence. This involved multiple acts of penetration and forms charge 25 on the indictment.

On 10 March 2011, you again engaged in sexual intercourse with Victim 12 in the Philippines, being charge 33 on the indictment. This offending involved various acts, including mutual fellatio, and was captured on video and in photographs taken by you.

Victim 13 – Junel

On 3 August 2009, you engaged in sexual intercourse with Junel, who was approximately 15 years old. The video you took of this offending shows you violently anally penetrating him, and providing various directions. This represents charge 17 on the indictment.

The following day, you induced Junel to engage in sexual intercourse with Victim 14, Aljohn, in your presence, constituting charge 18 on the indictment. The video you filmed of this offending spans approximately three hours.

Victim 14 – Aljohn

Between 10 January-16 August 2009, you engaged in sexual intercourse with Aljohn in the Philippines. You have advised prosecutors that Aljohn was 13 years old at the time. This forms charge 11 on the indictment, and involves offending on five separate dates. This is a ‘rolled-up’ charge, involving more than one separate instance of offending.

On 10 January 2009, you took many videos and photographs of Aljohn and Victim 10, Nemer, engaged in a very large number of sexual acts. It is especially horrifying that you are captured directing the victims to smile whilst being penetrated and Nemer being in visible physical pain while you penetrated him. It also appears that you penetrated the two victims while they were asleep.

On 18-19 January 2009, you further offended against Aljohn and Nemer, with videos depicting numerous sexual acts inflicted by you, and other occasions where you direct the victims to perform acts on one another or yourself.

On 4 August 2009, you took a series of videos and photographs of offending against Aljohn and Victim 13, Junel. You induced sexual intercourse to occur between the two boys. This activity is reflected in charge 19 of the indictment.

Shortly after, on 16 August 2009, you further offended against Aljohn, including penetrating him with a vibrator while he was asleep.

Additionally, between 11 June 2010-16 June 2011, you engaged in the persistent sexual abuse of Aljohn in the Philippines. This offence forms charge 24 on the indictment and represents numerous instance of repeated, depraved acts against this child victim. As above, you filmed and photographed your offending.

Victim 16 – Simon

Between 14 August-5 October 2009, you engaged in sexual intercourse with a child under 16, namely Simon, in the Philippines. Simon was 14 years old and your offending occurred on four different dates during this period.

You took videos and photographs lying in a bed with Simon and Victim 12, engaging in sexual activity including mutual masturbation and penetration, sometimes using a vibrator. On two occasions, you offended against Simon alone, which included you anally penetrating him with a vibrator while he was asleep. This activity represents charge 20 on the indictment, which is also a ‘rolled-up’ charge, involving more than one separate instance of offending.

Victim 18 – JR

Between 21 January-2 August 2009, you engaged in sexual intercourse with a child under 16 in the Philippines, namely JR, on three occasions. It was estimated that JR was up to 14 years old.

On 21 and 22 January 2009, you took six videos and 37 photographs of JR, the longest being over 35 minutes. The images included JR performing fellatio on you, you performing fellatio on him, and masturbating his penis, you directing him to penetrate his anus with a vibrator, you masturbating each other, you penetrating his anus with a vibrator, you tasting his semen, and you encouraging him to taste it. This activity represents charge 12 on the indictment. This is also a “rolled-up” charge, involving more than one separate instance of offending.

On 2 August, you engaged in multiple sexual acts with JR and Victim 12, and once again, images were taken of this activity, which included penetration.

On 27 February 2009, you engaged in sexual conduct with a person under the age of 16, namely Victim 11 and Victim 18. You took 36 videos and 23 photographs of them engaging in sexual activity, including mutual masturbation, mutual fellatio and digital and penile penetration, while you were heard directing their activities. This activity represents charge 13 on the indictment.

Unknown Victim

On 19 May 2010, you engaged in sexual intercourse with a child under 16 in the Philippines, being an unknown person. On this occasion you took a series of 19 videos and photographs depicting you digitally penetrating his anus as he slept, and anally penetrating him with a purple vibrator. This activity represents charge 23 on the indictment.

Victim 55 – Unknown

On 12 June 2010, you engaged in sexual intercourse with a child under 16 in the Philippines. This child is estimated to have been under the age of 14. You took a series of videos and photographs depicting this victim, along with Victim 14 and Victim 26. The material depicts you anally penetrating this unknown victim, and in one video, you can be seen looking at the camera and smiling. This offending forms charge 27 on the indictment.

Victim 25 – Aldrin

Between 16 September 2010-3 February 2011, you engaged in the persistent sexual abuse of Aldrin, constituting charge 31 on the indictment. This charge captures a large amount of offending, involving numerous sexual activities and sometimes other victims, namely Victim 10 and Victim 27. Your offending encompasses two acts of engaging in sexual intercourse with a person under the age of 16, three acts of causing a child under 16 to engage in sexual intercourse in your presence, and three acts of causing a child under 16 to engage in sexual activity, all on separate occasions.

You captured this abuse on numerous videos and photographs, and can be heard in several videos directing or reassuring the victims. The offending involves Victim 25 engaging in penetrative sex with you and fellatio on you, with Victim 10 (who is also the subject of a charge of persistent abuse) involved in the sexual acts. On a later occasion, you were present when Victim 25 and Victim 27 engaged in penetrative sexual acts together. On another occasion, you engaged in multiple acts of sexual penetration with Victim 25, while Victim 10 was present. On another later occasion, you gave direction while Victim 25 and Victim 27 engaged in sexual intercourse.

On another occasion in 2011, you were present and filmed Victim 25 and Victim 31 in a bath together and masturbating.

Victim 26 – Christopher

On 12 June 2010, you caused Victim 26, Christopher, being a child aged 14 years old, to engage in sexual activity in your presence. This constitutes charge 26 on the indictment and involved Christopher engaged in sexual activity with Victim 14. The activity included fellatio and penile-anal penetration. A third unknown victim was present while these acts took place, which you filmed. You are heard to be whispering in the background.

Additionally, two days later, you engaged in sexual intercourse with Christopher, which was filmed by Victim 55. You also took part in mutual fellatio. Photographs also depict Christopher lying naked on a bed with Victim 14 anally penetrating him with a cylindrical object. Your hand can be seen at one stage spreading one of the victim’s buttocks. This offending forms charge 29 on the indictment.

Victim 27 – Jun

Between 20 October 2010-13 February 2011, you produced child pornography material outside of Australia. This material includes a large volume of photographs and videos of Jun Jun and several other victims engaged in sexual activity either amongst themselves or with you. You can be heard in many of the videos, and some material involved an unknown adult male involved in sexual activity. The material was captured on six different dates during this period and constitutes charge 30 on the indictment.

Victim 31 – Jay R

Between 3 February-5 June 2011, you engaged in the persistent sexual abuse of a child, namely Jay R, outside Australia. The Informant estimates this victim was a maximum of 14 years old at the time of your offending. During this period, you met Jay R several times, and committed a significant volume of offending, including acts of penetration and fellatio, with some acts involving Victim 25, Victim 26, Victim 32, and Victim 36. In some of the videos captured, Jay R can be heard to utter sounds consistent with being in pain. This offending is reflected in charge 32 on the indictment.

Unnumbered Victim – Unknown

On 10 March 2011, you caused a child to engage in sexual intercourse in the Philippines in your presence. You took a series of four videos and four photographs of Victim 12 and the unknown victim. The videos depict Victim 12 and the unknown victim performing mutual fellatio while you are heard speaking in the background. This activity represents charge 34 on the indictment.

Victim 59 – Bukhnoy

Between 4-5 June 2011, you produced child pornography material outside of Australia, involving ten video and photo files. This victim was aged over 16 at the time. Some of the material also captured Victim 14. The longest video file depicts one of the victims asleep while the other penetrates his anus, with another adult male behind the victims. You can be overheard in the background. Other material depicts various sexual activity between you, Victim 59 and Victim 14, including you masturbating and pushing a vibrator into one of the victim’s anuses. This offending forms charge 38 of the indictment.

Victim 32 – Denjo

Between 5-6 June 2011, you produced child pornography material outside Australia, namely, in the Philippines. Police identified 17 images and videos depicting this victim, in addition to Victim 14, Victim 31 and Victim 32. Amongst other acts, the material depicts you pushing a vibrator into this victim’s anus, and Denjo engaged in penetrative sex with Victim 31 while you can heard to say ‘good’ in the background. These acts form the basis of charge 39 on the indictment.

Victim 33 – Rodman

Between 12-13 March 2011, you caused a child under 16, namely, Rodman, to engage in sexual intercourse outside Australia in your presence. The images and videos you took depict Rodman engaged in acts with Victim 14, including anal penetration and bathing naked together. You also took a series of images of the two victims sleeping naked together and a close-up of your hands spreading one of their buttocks. This offending constitutes charge 35 on the indictment.

Victim 34 – PJ/Carl

Between 14 December 2011-22 February 2012, you engaged in sexual intercourse with a child under 16, known as PJ or Carl in the Philippines. This victim is believed to have been 14 years old. Relevant material depicts you engaged in penetration and masturbation with this victim, as well as him lying naked asleep. Some of this offending involved victims 34, 39 and 41. This offending is reflected in charge 44 on the indictment, and is also a ‘rolled-up’ charge, involving more than one separate instance of offending.

Victim 35 – Leom

On 16 June 2011, you engaged in sexual intercourse with a child under 16, namely Leom, in the Philippines. On this same day, you also caused Leom to engage in sexual intercourse with Victim 14 in your presence. These offences form charges 40 and 41 of the indictment respectively. Several videos and photos reveal you engaged in acts of masturbation and penetration against Leom. Further material depicts Leom engaged in sexual activity with Victim 14.

Victim 36 – Rodman

Between 17-19 May 2011, you caused a child under 16, known as Rodman, to engage in sexual intercourse in your presence. It is believed that Rodman was 14 years old at the time. While in the Philippines, you took several photographs and videos of this victim engaged in sexual activity with Victim 31 and Victim 36. This offending forms charge 36 on the indictment.

On 20 May 2011, you engaged in sexual intercourse with Rodman outside Australia. The videos and photographs you took depict Rodman and Victim 10 engaged in various sexual acts, and include footage of you penetrating Rodman and him yelling out in pain. This offending constitutes charge 37 on the indictment.

Victim 37 – Francis

On 22 July 2011, you engaged in sexual intercourse with a child under 16, named Francis, in the Philippines. Videos of this offending depict the victim masturbating you and performing fellatio upon you. This forms charge 42 on the indictment.

Victim 38 – Edward

Between 25-26 October 2011, you again engaged in sexual intercourse with a child under 16 in the Philippines. Edward is believed to have been up to 14 years old at the time. Photographs depict him standing in various sexualised positions, as well as you using your finger and penis to penetrate him. This is reflected on charge 43 on the indictment.

Unnumbered Victim – Unknown

On 15 December 2011, you further caused a child under 16 to engage in sexual activity in the Philippines, in your presence. Amongst other material you captured, one video depicts this unknown victim placing his penis onto the mouth of Victim 34 who was asleep. This offending forms charge 45 on the indictment.

Victim 39 – Carl/Jeffrey

Between 29 February-1 March 2012, you caused a child under 16 to engage in sexual intercourse in your presence. This victim is estimated to have been up to 14 years old. Multiple images and videos captured depict Victim 39 in sexually explicit positions, including him penetrating his anus with a tube. This offending also involved Victim 40, who was aged over 16 at the time, with you directing the two to participate in sexual activity including penetration. This offending constitutes charge 48 on the indictment.

Victim 40 – Unknown

On 1 March 2012, you produced child pornography material outside of Australia, namely, in the Philippines. You produced eight video and three image files in relation to Victim 40, estimated to have been 16 years old, and Victim 39, estimated to have been 14 years old or under. The images predominantly depict the victims bathing together, and in one instance, engaged in penetration. The videos depict the two engaged in sexual activity, and also participating in the recording process, with the victims filming some acts. This offending forms charge 49 on the indictment.

Victim 41 – Carl

On 19 February 2012, you engaged in sexual intercourse with a child under 16, named Carl, in the Philippines, forming charge 46 on the indictment. Carl is estimated to have been 12 years old at this time and videos depict you engaged in acts of fellatio, masturbation and penetration with him, as well as Victim 34.

Victim 43 – Carl

On 28 February 2012, you produced child pornography material outside of Australia, being in the Philippines. This involved an image that depicted Victim 42 and Victim 43 sitting naked in the bathroom together, in which you are partly visible in the mirror. This offending is captured by charge 47 on the indictment.

Victim 44 – Jeffrey

Between 19-20 February 2013, you caused a child under 16, named Jeffrey, to engage in sexual activity outside Australia, in your presence. At a location in the Philippines, you took photographs depicting this victim naked and focused on his genitals. It is estimated that Jeffrey was 14 years old at the time. This offending forms charge 50 on the indictment.

Victim 45 – Jeffrey 1

Between 20 February-11 June 2013, you engaged in the persistent sexual abuse of this victim outside Australia. During this period, you committed sexual offences against Jeffrey 1 on numerous occasions, including taking images of him lying naked, inserting a vibrator into his own anus, and also engaged in sexual activity with Victim 39 and Victim 46. Several videos depict you instructing victims to engage in various sexual acts. Jeffrey 1 is believed to have been 15 years old at the time of offending. I note that you later met with this victim in 2014, but by this time, he was over the age of 16. This offending forms charge 51 on the indictment.

Victim 46 – Jeffrey 2

Between 26 May 2013 and 27 May 2013, you engaged in sexual intercourse with a child under 16 in the Philippines. This child was also named Jeffrey and believed to be 14 years old at the time. You took videos and photographs of you directing Jeffrey 2 and Victim 45 to perform various acts, including kissing, mutual masturbation, mutual fellatio and anal penetration. This material also depicts you engaged in mutual fellatio with Jeffrey 2. This offending is reflected in charge 52 on the indictment.

Victim 47 – Jhay R

Between 16-18 December 2014, you produced child pornography material outside of Australia. You took a series of 13 images of this victim, who was over 16 years old, depicting various sexual acts. This included the victim being penetrated with a vibrator, you touching his buttock with his anus visible, and you penetrating him. This offending constitutes charge 54 on the indictment.

Victim 58 – Raymond

Between 2 September 2014-1 April 2015, you produced child pornography material outside Australia. Police identified 18 image files in relation to this victim who was over 16 years old at the time. They appear to have been captured on three separate dates during this period and depict the victim sitting on a bed clothed, sometimes with his genitals exposed, you kissing him, and also him using a vibrator to penetrate himself. This offending is captured by charge 53 on the indictment.

Victim 48 – Jayr

Between 30 March-27 April 2015, you engaged in sexual intercourse with a child under 16 outside Australia. Jayr is estimated to have been up to 14 years old, and imagery depicts you engaged in various sexual acts against him, including penetration and masturbation. In some images, this victim is depicted lying next to you with semen on his stomach. Further, one video shows Victim 29 engaged in sexual activity with Jayr and yourself. This offending forms charge 55 of the indictment. This is also a “rolled-up” charge, involving more than one separate instance of offending.

Victim 49 – Jayr 2

Between 30 March-27 April 2015, you caused a child under 16 to engage in sexual intercourse outside Australia, in your presence. This victim, also named Jayr, is estimated to have been up to 14 years old. I will refer to him as Jayr 2. This offending also involved Victim 48. You took photographs and videos of this offending, which depicted acts including the victims bathing and using vibrators together, masturbation, and penetrative sex. This offending is reflected in charge 56 on the indictment.

Additionally, between 27-28 April 2015, you engaged in sexual intercourse with Jayr 2 outside Australia. Images and videos depict you naked with this victim, penetrating him with an unknown object. Further material depicts you engaging in sexual activities with this victim and Victim 48, including masturbation and fellatio. This offending forms charge 57 of the indictment.

Victim 50 – Josh

Between 5 March-14 July 2017, you produced child pornography material outside of Australia, constituting charge 58 of the indictment. This material included both photographs and videos taken on several different dates within this period, depicting this victim known as Josh, who was aged over 16 years old at the time. You are shown in this material to have engaged in various sexual acts with Josh, including penetration while he was apparently asleep, and you using a vibrator to anally penetrate him. The numerous images also include ‘selfies’ of you and Josh, as well as you sitting in a restaurant together.

Production of pornography

Between 18 May 2010-28 April 2015, you produced child pornography material outside of Australia relating to numerous overseas child victims. These victims were of different ages, up to the age of 17. It is estimated that you produced over 1000 files over this period, primarily stored on two hard-drives which were seized from your possession. You appear to have organised this material in various folders, many of which are labelled with individual victims’ names. This offending forms charge 22 on the indictment.

Importation of pornography

Additionally, upon your return to Australia on 4 September 2017, you committed the offence of importing child pornography material (Tier 2 goods), being charge 59 on the indictment. This involved five electronic devices which were in your possession, being a mobile phone, laptop, USB, and two external hard drives. In total, these five devices contained 35,344 images and 4,810 videos. This child pornography material has been categorised by police, and in summary, combining images and videos, contained:

(a) 20,188 Category 1 files;

(b) 5,703 Category 2 files;

(c) 3,611 Category 3 files;

(d) 9,541 Category 4 files;

(e) 1,163 Category 5 files;

(f) 13 Category 6 files; and

(g) 11,575 Category 7 files.

I note that amongst this imagery were files you produced between 2002 and early 2010 depicting various overseas juvenile victims, prior to the operation of the Criminal Code (Cth).

Police investigation and procedural history

As previously noted, on 23 July 2007, German Police identified 55 child pornography images of CM that had been uploaded to an online cloud‑based service which allowed documents to be shared with other people. In 2008, the investigation was referred to the Australian Federal Police (‘AFP’) Victim Identification Team. Subsequently in 2016, CM was identified and completed a statement of complaint against you. An arrest warrant was then issued as you were living and working in Singapore at the time.

On 4 September 2017, you arrived at Sydney International Airport, and as above, you were in possession of a mobile phone which contained images of you engaged in sexual activity with Victim 50. Following the detection of these images, you were questioned by AFP officers, and stated that material was explicable for the following reasons:

(a) You travelled to the Philippines fairly often and would informally help several families and give them dinner;

(b) You knew that on one occasion, the children were slapping away at each other and using the video in the shower;

(c) You had deleted those images but they may have been retained on the device due to a backup;

(d) The children were about 16-19 years old; and

(e) You trusted the children and would leave them at your hotel with some money for food while you went to work, and then in the evening they would have dinner and return home.

You also denied being interested in any sort of pornography and stated you had never engaged in any sexual acts against children, either within and outside Australia.

You were then repatriated to Melbourne and arrested for charges relating to CM. On 17 October 2017, police executed a search warrant at your home in Australia and seized four further electronic devices which contained the majority of the evidence relating to your offending, and are subject to charge 59, the importation of pornography. I note that you originally indicated that you did not recall password details for two of the devices, and after supplying a number of incorrect passwords, eventually provided the correct details in a subsequent interview. Your overseas belongings were also shipped to Australia, whereupon police executed a warrant upon their contents and seized evidence related to overseas offending. You had kept images and videos of your encounters with various victims, most of which were saved in folders relating to their names, within a primary folder labelled ‘Jailbait’.

On 18 May 2018, you participated in a further police interview, during which you admitted speaking to CM on the Internet, but denied discussing anything personal or sexual. In relation to your overseas travel, you stated that you had lived in Singapore until the end of 2003, and after returning to Australia for some time, you lived again in Singapore from mid-2006. You informed police that you were required to travel for your employment, including to South-East Asia and the Asia Pacific, with the length of these trips varying between 1-4 days.

On 1 February 2019, your ultimate charges were committed to this Court by way of straight hand up brief.

Victim Impact Statement

The victim of your domestic offending, CM, authored a Victim Impact Statement, which was read aloud at the plea hearing by his mother.

CM describes how from the age of twelve, you had significant power and control over him, conditioning him to believe you were the only person who cared about him and that he could not tell anyone about the abuse. He states he was too young and naïve to understand what was happening at the time, but felt ‘gross’ and ‘stupid’ during the abuse, and was scared of you.

CM states he stopped attending school once the abuse started, with Grade 6 being his last full year. He describes feeling alone and scared to socialise, and without any friends. After the abuse ended, CM describes feeling used and disregarded, and as if nobody would be sexually interested in him in the future because of your abuse.

CM first attempted suicide when he was 16 or 17 years old, and spent time in adolescent psychiatric wards on three occasions due to depression and anxiety. He describes using drugs extensively to try to cope with his pain. This has resulted in significant financial burdens, including a debt of $20,000 to the Australian Taxation Office (ATO) as well as nearly $80,000 in personal loans and credit cards, all to support his drug use.

CM explains how he worked hard in the IT industry, and in early 2016, managed to gain employment in a position he describes as ‘nothing short of [his] dream job’. However, when visited by investigating police in July 2016, the trauma of recalling these events resulted in another breakdown and the loss of his employment. CM describes how this led to the loss of his home and car, the breakdown of his marriage and a period of being unable to see his daughter. CM was subsequently hospitalised.

CM expresses sadness as to the impact your actions have had on his family, especially his mother, as she tries to support his recovery. He has returned to living with his parents, and is without a permanent job. CM summarises this impact as being truly catastrophic as he has ‘lost almost everything, and everyone in [his] life’.

There is no sentence that I can pass that will undo the tremendous pain you have caused CM. Your abuse began when CM was only 12 years old and has had a devastating impact on his life ever since.

I note that no Victim Impact Statements were filed by any of your overseas victims.

Personal circumstances
Background

You were born on 17 May 1966 in the USSR, and are now 53 years old. Your parents live in Melbourne, but suffer from ill-health. You have one sibling, a sister, who also lives in Melbourne.

You report that during your early years, your family suffered discrimination and you were abused and psychologically tormented from an early age at school. It is submitted these circumstances affected your psychosexual development.

You began experiencing depression from an early age, particularly after the death of your grandmother, and you also suffered from significant insomnia.

Having experienced discrimination, your family left the USSR in about 1978 and eventually arrived in Australia in 1979 when you were 12 years old. You attended Mount Scopus Memorial College from Year 8-11, but report not feeling accepted. After failing Year 11, you repeated the year at Brighton Secondary College, and then finished Year 12 at McKinnon Secondary College.

You gained entry to study computer science at Swinburne University, but transferred to undergo nursing training. You completed the graduate nursing program at the Royal Children’s Hospital and later completed a Bachelor of Nursing at Deakin University. Later, you underwent postgraduate specialty training, some of which occurred in the United States. You later completed a postgraduate diploma in advanced clinical nursing, specialising in paediatric intensive care, and also completed a trauma nursing course at the Austin Hospital.

Later you secured full-time work at the Dandenong Hospital in the intensive care unit, and completed a postgraduate diploma in critical care at the Royal Children’s Hospital. Much of your work was involved in the intensive care units.

By 1998, you were employed full-time as an emergency nurse at the Austin Hospital, until you overdosed on medications in 1999 and your registration was cancelled. During this time you became unwell, suffering from a parathyroid problem and insomnia. You regained your nursing registration in 2000, but were again suspended in 2001 for the same reason. You did not reapply for a nursing position and eventually, your registration was cancelled.

You later found work in Singapore for a medical equipment firm. You remained employed at this firm until you went into custody following your plea in this matter. You are said to be well-regarded in your field. It is apparent you have had a successful career in relation to the clinical and sales management of aesthetic medical materials and devices, and lasers. Your work in this field extended your travel into various countries in Asia.

In April 2001 in Singapore, you married your wife and then in 2006, your daughter was born. It is said you are a dedicated father, but have lost meaningful contact with your daughter as a result of these charges. I was told you have the support of your family, and that while on bail, you resided with your parents in accordance with your conditions. You have described your wife as a wonderful person who has never had any idea of your offending.

Criminal history

I note that you have no prior convictions, or subsequent matters alleged against you.

Physical health

You suffer from a number of physical health problems including a thyroid complaint, non-insulin dependent Diabetes Type II, and high cholesterol. In early 2019, your diabetes was reported as poorly controlled. A number of medical reports on your various physical medical conditions were tendered into evidence and I have taken these matters into account. You take a number of different medications to control these conditions.

Expert Reports

The Court received expert reports from Dr Danny Sullivan, consultant forensic psychiatrist, and Mr Bernard Healey, a clinical psychologist.

Dr Danny Sullivan

Dr Sullivan provided two reports, dated 7 August 2018 and 28 April 2019. In his first report, Dr Sullivan concluded you suffer from an adjustment disorder with mixed anxiety and depressive reactions, substance abuse disorder, and paedophilic disorder. Dr Sullivan found no evidence of psychotic illness or bipolar disorder. In his second report, Dr Sullivan concluded you exhibit a range of significant features of mood disorder, including cognitive and biological depressive symptoms, recurrent mood disorder with depressive and anxious symptoms, adjustment disorder with mixed anxiety and depressive reaction, multiple substance abuse disorder, and a range of cognitive distortions in relation to victims. He concluded your adjustment disorder with mixed anxiety and depressive reaction reflecting mood disorder is moderate in severity.

Dr Sullivan noted you reported to him that your first homosexual experience as an adult was in Singapore in 2002, and that you described increasing engagement in sexual activity with youths in other Asian countries, including the Philippines and Indonesia. You reported to Dr Sullivan that you sought ‘that one special person’, and were deeply emotionally involved in some of these relationships and distressed that some had been cut short by your arrest.

Significantly, Dr Sullivan confirmed his diagnosis of paedophilic disorder. This is characterised by strong sexual and emotional attachments to boys of late primary school and secondary school age. You have shown strong interest in watching yourself and boys engaging in sexual activity. You also exhibit a range of cognitive distortions about the nature of these relationships. Dr Sullivan reports you have focused upon your beneficent motives, suggesting the children were innately sexual, the relationships were supported by their families, and they were active protagonists in the sexual activity. Dr Sullivan concluded these justifications are common in child sexual offenders and are a clear target for treatment.

Dr Sullivan opined you will require offence-specific treatment, as without this, there will be a persistent risk of re-offending. He stated that given your strong cognitive disorders, you will likely require ‘initial individual psychological intervention in preparation and addressing treatment readiness and effective participation’. He expressed his belief that the outcome of your treatment will be highly significant in your prognosis.

Further, Dr Sullivan opined that whilst there is no indication that impaired mental functioning is relevant to your offending, your mood disorder is relevant to your incarceration, as it is likely to result in you finding your time in custody more burdensome than if you did not suffer from that disorder. Dr Sullivan also concluded that you will remain at an escalated risk of suicide or serious self-harm in custody.

Mr Bernard Healey

Mr Healey performed intellectual testing which indicated you have a superior intellectual capacity, with a full-scale IQ of 125. Mr Healey found no major signs of cerebral dysfunction, but that you exhibited raised levels of depression and anxiety, and are vulnerable to substance abuse.

Mr Healey concluded that you have been subjected to sexual abuse by adolescent males in your past and that due to ongoing abuse and discrimination, you came to accept this as a normal part of life. He opined that in relation to your psychosexual development, it is significant that you developed a disposition to being sexually involved with young males, and that your development was stunted in relation to sexual matters.

Mr Healey applied the Static-99 psychological test, and found you held a ‘high risk rating in regard to propensity to be involved in this type of offending in the future’. After examining you and surveying the detail contained in the indictment, he opined that this ‘created a picture of disturbing addiction to homosexual acts with underage youth – especially in the Philippines’, and that consistent with that addiction, you had convinced yourself ‘it was acceptable by the standards of the subculture in which [you] mingled’. According to Mr Healey, your beliefs about the possible lack of lasting effects of such sexual abuse on your victims ‘were gross rationalisations and could even be regarded as borderline delusion’.

Mr Healey opined that given your intelligence, your entrenched perspective of your abusive behaviour reflects the strength and depth of your conviction and rationalisations. He concluded that as you will likely undergo sexual offender programs in custody, the ‘unveiling of [your] near-delusional beliefs will be a harsh and stressing reality’ for you.

I accept the evidence and the opinions of Dr Sullivan and Mr Healey. These opinions are particularly relevant to the issues of special deterrence and protection of the community, to which I will return later.

The applicable sentencing regimes

As you have pleaded guilty to State and Commonwealth offences, two sentencing regimes apply to the disposition of your case.

Charges 7 and 8 are State offences and the Sentencing Act 1991 (Vic) applies, with s 5(2) listing the factors a Court must have regard to when sentencing State offender.

With respect to the remaining charges on the indictment, these being Commonwealth offences, the Crimes Act 1914 (Cth) applies. Section 16A(2) of the Crimes Act 1914 (Cth) sets out a non-exhaustive list of factors to be taken into account insofar as they are relevant and known. The overarching requirement is that a federal sentence must be of a severity appropriate in all the circumstances of the offending.[1]
[1]Crimes Act 1914 (Cth) s 16A(1).

Sentencing factors
Maximum penalties

I will now list the maximum penalties for the offences you committed and also the numbers of charges to which these maximum penalties apply:

(a) Engage in sexual intercourse with a person under the age of 16 years outside Australia, contrary to s 50BA of the Crimes Act 1914 (Cth) – 17 years’ imprisonment. You committed 12 offences under this section, namely charges 1, 3, 4, 5, 6, 9, 10, 11, 12, 16, 17 and 20.

(b) Engage in sexual conduct with a person under the age of 16 years outside Australia, contrary to s 50BC of the Crimes Act 1914 (Cth) – 12 years’ imprisonment. You committed two of these offences, namely charges 2 and 13.

(c) Maintain a sexual relationship with a child under 16, contrary to s 47A of the Crimes Act 1958 (Vic) – 25 years’ imprisonment. You committed one offence, namely, charge 7.

(d) Make or produce child pornography, contrary to s 68 of the Crimes Act 1958 (Vic) – 10 years’ imprisonment. You committed one offence, namely charge 8.

(e) Induce a child under 16 to engage in sexual intercourse with a third person outside Australia, and in the presence of the offender, contrary to s 50BB of the Crimes Act 1914 (Cth) – 17 years’ imprisonment. You committed five offences, namely charges 14, 15, 18, 19 and 21.

(f) Produce child pornography material outside of Australia, contrary to s 273.5(1) of the Criminal Code (Cth) – 15 years’ imprisonment. You committed nine of these offences, namely charges 22, 30, 38, 39, 47, 49, 53, 54 and 58.

(g) Engage in sexual intercourse with a child under 16 outside of Australia, contrary to s 272.8(1) of the Criminal Code (Cth) – 20 years’ imprisonment. You committed 13 of these offences, namely charges 23, 27, 29, 33, 37, 40, 42, 43, 44, 46, 52, 55, and 57.

(h) Cause a child under 16 to engage in sexual intercourse outside Australia, in the presence of the offender, contrary to s 272.8(2) of the Criminal Code (Cth) – 20 years’ imprisonment. You committed seven of these offences, namely charges 25, 34, 35, 36, 41, 48 and 56.

(i) Cause a child under 16 to engage in sexual activity outside Australia, in the presence of the offender, contrary to s 272.9(2) of the Criminal Code (Cth) – 15 years’ imprisonment. You committed three of these offences, namely charges 26, 45 and 50.

(j) Persistent sexual abuse of a child outside Australia, contrary to s 272.11 of the Criminal Code (Cth) – 25 years’ imprisonment. You committed five of these offences, namely charges 24, 28, 31, 32, and 51.

(k) Importing child pornography, contrary to s 233BAB of the Customs Act 1901 (Cth) – 10 years’ imprisonment. You committed one offence under this section, namely charge 59.

I note the penalties for a number of the relevant Commonwealth offences increased in 2010, as reflected in the maximum penalties provided for in the corresponding provisions of the Criminal Code (Cth).

The maximum penalties provided for by Parliament reflect the seriousness with which the offences you have committed are regarded. They provide the Court with guideposts which must be borne in mind when assessing the appropriate sentences to pass.[2]
[2]Markarian v R [2015] HCA 25 at [31].

Nature and gravity of your offending

The Court is required to assess the nature and gravity of your offending in order to pass an appropriate sentence. The prosecution submitted it was appropriate for me to view a sample of the material you recorded during your offending, and a USB was tendered as Exhibit 4 in the plea hearing. I have viewed the sample material contained on this device and will address it shortly.

Contact sexual offending in Australia

In respect of your maintaining a sexual relationship with a child known as CM, the prosecution submits this was objectively extremely serious when having regard to the sentencing principles applicable, and the nature and circumstances of the offending. In particular, the prosecution submits your offending was prolonged, involving five separate incidents over the charge period. Further, it is highlighted that CM was aged between 13-15 years old during the offending.

It is further submitted that the relationship involved a variety of depraved and despicable activities including introducing CM to child pornography, performing fellatio on CM, causing CM to masturbate and perform fellatio on you, penetrating CM’s anus with your penis, causing CM to anally penetrate himself with a vibrator on webcam, causing CM to penetrate your anus with his penis, and masturbating CM.

Further, the prosecution notes you met CM on a website for people aged between 13-19 years old, in circumstances where your profile falsely stated you were 19 years old, and you told further lies to CM about your true age. It is submitted that there was a significant age difference between you as a fully formed adult, and your victim as a teenager, and that this age difference represented a clear imbalance in terms of maturity, control and power.

It is further submitted that CM’s Victim Impact Statement establishes that significant harm was caused to him by your offending. Even in the absence of a Victim Impact Statement, there is an absolute prohibition on sexual activity with children under the age of 16, reflecting the fact that children are deemed to be harmed by any sexual activity with another person.

The prosecution submits that the maximum penalty of 25 years’ imprisonment reflects the high degree of seriousness with which the type of offending committed against CM is viewed by Parliament. It is submitted that general deterrence is paramount when sentencing offending involving sexual contact with children, and further, that in your case specific deterrence, denunciation and protection of the community are also principles of considerable importance.

Little in the way of submissions were made on your behalf to the Court about this offending. Understandably perhaps, submissions concentrated on your overseas offending as it comprised the overwhelming amount of the offences you committed.

In my opinion, your offending against CM was objectively very serious. It occurred over an extended period, and at numerous locations around Melbourne. CM’s Victim Impact Statement demonstrated the profound impact your actions had on him. Amongst other things, he detailed his fear of you, and the power you had over him as a young person. There was a significant imbalance of power and age, and you started this relationship by deceiving him.

Contact sexual offences against children outside Australia

The prosecution submits the following factors are relevant to assessing the objective seriousness of your sexual offending against children outside Australia:

a. the age and number of children involved;

b. the gravity of the sexual offences involved;

c. the extent of cruelty or physical harm occasioned on the child victim;

d. the vulnerability of the child in that children from an overseas country who live in constrained economic circumstances may be more easily exploited for the sexual gratification of adult offenders;

e. the involvement and role of the offender in being responsible for the selection of the child victim and the nature and duration of the offence;

f. whether the offending involved third parties, including adults or other children;

g. the level of control exercised by the offender, including the degree of planning, organisation or sophistication;

h. whether payment or other benefit was received for causing the child to engage in sexual activity; and

i. whether the offender acted alone or in a collaborative network of like-minded people.

In respect of this category of offending, it is submitted that your offending was objectively extremely depraved and serious due to the following factors:

(a) the overall offending involved 47 separate instances of overseas sexual offending against children;

(b) there were 42 individual child victims of the overseas offending;

(c) the offending involved different and discrete types of offending namely:

a. 25 charges of engaging in sexual intercourse with overseas children, a number of which were ‘rolled-up’ charges;

b. directing two children aged between 10 and 12 to engage in sexual acts together, which was videoed and photographed; and

c. five charges of persistent sexual abuse of children outside Australia.

It is pointed out that your overseas offending involved the following aggravating characteristics, namely:

(a) performing oral sex on some child victims; causing some children to masturbate your penis and perform oral sex on you; sexually penetrating some children’s anuses with your fingers, penis, tongue, or objects such as a vibrator; directing children to anally penetrate themselves or other children with a vibrator, finger or other objects; causing some child victims to sexually penetrate your anus with their penis and masturbating some children’s penises;

(b) introducing some victims to child pornography by displaying videos;

(c) causing victims to pose in a variety of pornographic manners, such as displaying their genitals or anuses, or to engage in sexual activity such as masturbation, for the purpose of photographing or recording the activity;

(d) engaging, on some occasions, in sexual intercourse with more than one child or causing two or more children to have sexual intercourse with each other while you observed, recorded, and directed them;

(e) on some occasions, penetrating the anuses of victims who appeared to be asleep;

(f) the length of each occasion of offending, which frequently occurred from late at night until very early the next morning;

(g) the planned and predatory nature of your offending, involving specific travel to the Philippines or Indonesia to secure children to abuse;

(h) your choice of destinations where you could easily and readily access young boys for sexual purposes by exploiting their difficult economic and social circumstances;

(i) your recording of your sexual abuse of your child victims, on all occasions to which you have pleaded guilty. There were hundreds of videos and photographs taken of your conduct, ranging from a under a minute in duration, to over 30 minutes;

(j) your sexual abuse of more than one victim at the same time on some occasions;

(k) the very lengthy period of your overall offending conduct;

(l) the significant age difference and corresponding power imbalance between you and the child victims; and

(m) the fact that children cannot meaningfully consent to sexual activity, are vulnerable to predatory advances due to their immaturity, and require protection from being sexualised.

In my opinion, you have committed objectively very serious offending overseas, involving many of the aggravating factors detailed above. I can discern no justification whatsoever for this planned and predatory conduct, where you took advantage of vulnerable children of ages below 16 who were experiencing poverty. The offending described included many instances of sexual penetration, which on occasions were attended by verbal expressions and visual evidence of pain on the part of the child. Moreover, your offending involved multiple instances of persistent abuse over significant periods of time.

Child pornography offences

In relation to charges involving the importation of child pornography material into Australia, and the production of child pornography material in and outside of Australia, the prosecution submits that the following sentencing principles apply:

(a) a sentence involving an immediate term of imprisonment is ordinarily warranted;

(b)general deterrence is the primary sentencing consideration;
(c)less or limited weight is given to an offender’s prior good character;
(d)such offending occurs on an international level and is becoming increasingly prevalent;
(e)the possession and transmission of child pornography material creates a market for the continued corruption and exploitation of children;
(f)there is a paramount public interest in promoting the protection of children, as such offending is not a victimless crime;
(g)the nature of the Internet and the development of remote storage devices using Internet networks, means that images may be published around the world for many years; and
(h)the fact that an offender was not involved in the distribution or sale of child pornography does not mitigate the offending.

The prosecution submits the objective seriousness of such offending is ordinarily determined by reference to the following factors:

(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

(b) the number of items or images possessed;

(c) whether the material is for the purpose of sale or further distribution;

(d) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and

(e) the length of time for which the pornographic material was possessed.

It is submitted that in light of the relevant sentencing principles, your offending was objectively very serious. The prosecution submits the quantity of material you imported was significant, and while the majority of the images were classified as Category 1, not all Category 1 images can be said to be innocuous as this encompasses a wide range of activity. Further, it is submitted that a significant proportion of the material fell within Category 4, featuring sexual penetration between adults and children. The prosecution further notes that this material was located on several different storage devices.

It is submitted that the production of child pornography links you more closely to the child pornography market as an active participant. It is argued that the production of child pornography is encouraged by the existence of a market for it, and without people to make it available, there would be no need for children to be exploited, violated and abused in order to supply the market. By saving this material on various devices, you have increased the risk and likelihood of it being shared with others.

CM has specifically stated that this is a matter of extreme concern and distress for him, and I accept this is the case.

Your counsel submits there is no evidence that you attempted to place the material on the Internet or publish it, or trade it for gain. It is submitted that the material was produced for your own use. Your counsel argues this means that the seriousness of your offending should not be regarded as being within the worst category. Your instructions are that it was never your purpose to upload this material onto the Internet, that you did not do so, and that your intention was that it would be privately held by you.

I agree there is no evidence that you traded the material you produced, or that this was your intention when you produced it. I note that in 2007, 55 pornographic images featuring CM were identified as having been uploaded onto an Internet SharePoint drive. The evidence does not illuminate how that occurred. On the state of the evidence, I am unable to draw any adverse inference against you about this particular aspect. However, I do note that the mere production of such material in a digital form always carries the risk that it will fall out of the hands of the producer, and into a public domain.

The above said, the gravity of this offending involving the production and importation of child exploitation material is nevertheless high. The production of this material was deliberate, planned, persistent, and occurred over a long time. You filmed your victims, and by doing so victimised them beyond your physical abuse of them. You then imported videos and images of your victims, as well as other similar material, into this country. Overall, it is appropriate to classify your offending as a remorseless abuse of vulnerable children for your own depraved gratification.

Culpability

I regard your moral culpability for all of your offending as high.

You are man with superior intellect, albeit carrying a diagnosis of a paedophilic disorder. You planned the offending you carried out. It does appear that when you committed offences in several Asian countries, you were travelling to those countries for work purposes. It is put on your behalf that you would not normally go to these countries for the sole purpose of offending. However, it is accepted that you would find a work-related reason to go to a given country, which would give you the opportunity to carry out your offending. Your employer, of course, never knew you had an ulterior motivation. Your work-related travel provided you an opportunity to commit the crimes you did, and you clearly took advantage of that opportunity.

The fact that you may have subjectively believed you were in some way improving the lives of your child victims by providing them with support does not reduce your moral culpability. As pointed out in Merrill v The Queen, ‘self-justification of this kind can have no place in the sexual offending of children’.[3]
[3][2018] VSCA 62 at [58].

There is nothing that I can find that reduces your culpability for the totality of your offending in any significant way. Instead, I find you to be highly culpable.

Plea of guilty and admissions

You have pleaded guilty to the offences before the Court. The prosecution does not disagree that as a result you must receive an appropriate sentencing discount.

Your counsel submits that there were extensive negotiations and cooperation with the prosecuting authorities, such that your approach to the resolution of this case should be seen as extremely helpful. It is submitted that your pleas of guilty should regarded as ‘genuine’, and reflective of active co-operation. It is submitted that investigators had only one witness statement from one victim in this case and that in relation to the large number of overseas victims, there are no witness statements. Accordingly, it is pointed out that the prosecution case relied largely on images found on your devices. It is submitted that the images were at times difficult to interpret, both in relation to determining age of the victims and the precise acts involved. Your counsel highlighted that you significantly assisted the investigators to reach a satisfactory resolution of this case, in circumstances where negotiations were lengthy and involved. I accept this to be the case.

I note also that during the plea hearing, your counsel raised some factual issues that were put as matters of dispute by you. I have had regard to the matters argued and indicate I have taken them into account. I am not of the opinion that any of the matters raised are of such significance that they require the making of factual findings. You did not give evidence about any of these matters, but rather they were arguments and observations put on instructions. Having heard the arguments, I state that I have not drawn any adverse conclusions against you as to the factual matters argued, nor do I regard the fact you raised disputed facts as in any way devaluing the importance of the pleas of guilty you have entered.

Your counsel further pointed out that having been charged, you had been on bail with strict conditions, which bail you have honoured. You have not reoffended or posed a risk to the community whilst on bail.

I accept that your pleas of guilty are important and should be given appropriate weight. This is particularly so as you were co-operative in facilitating the prosecution of these matters, and your pleas have significant utilitarian value. This has saved the community considerable expense. Further, and importantly, you have relieved CM from the trauma of having to give evidence in a trial.

Remorse

The prosecution submits that there is scant evidence of remorse on your part, and you have little insight into your offending. This says the prosecution, is evidenced in the report of Mr Healey who it is argued, expressed the view that your justification in acting you way you did bordered on the delusional.

It was submitted on your behalf that there are strong and powerful factors that should convince me you are remorseful for your conduct. A number of character references from persons associated with your employment were tendered into evidence and I have taken the matters detailed in those letters into account. However, it is to be pointed out, and it was accepted on your behalf, that none of the referees were told about these proceedings. It was accepted on your behalf that the testimonials thus suffered from obvious limitations. Your explanation for this is that you were intensely embarrassed about the prospect of informing your employer about these events. The fact that you were not prepared to be honest with your employer in this respect causes some concern about your insight into the offending and your level of remorse. In the course of the hearing I was informed that your employers knew that you were facing a court, but did not know the reason why. Furthermore, it became clear in these proceedings that your daughter was unaware that you were even facing court.

It was put that an added reason for not informing your employer was that you did not want to jeopardise your continued employment, which in turn would have adversely impacted your family’s economic situation in Australia.

I note that having been assessed by Dr Sullivan and Mr Healey you appear to express no obvious statements of regret or remorse. This is uncommon as expert reports by qualified and intuitive psychiatrists and psychologists are often a vehicle by which remorse of offenders is identified. Nothing I have been able to glean or infer from the language of those writers suggests they were attracted by you as being remorseful, sorry, or insightful for your conduct. It seems to me this is a likely refection of your belief system that set out to justify or rationalise your conduct as having been acceptable.

Ultimately, I am unable to detect you are remorseful for your conduct. In part, this appears to be the result of your lack of insight into the damage you have done, and your misplaced justifications underpinning your offending.

Rehabilitation

Your counsel submits that you are capable of rehabilitation and this is demonstrated by matters such as your attendance on a psychiatrist and a psychologist, and the keeping of onerous bail conditions. Further, that in the context of the lengthy period of time it has taken to progress these proceedings, and the admissions you have made, your pleas of guilty and general cooperation, are all factors demonstrating your rehabilitation.

I acknowledge you have no prior convictions, and no subsequent matters have been alleged against you. However, your rehabilitation must be closely linked to your approach to the treatment that must inevitably take place during your period of imprisonment. Given the pervasive nature of your beliefs, and paedophilic disorder, I remain uncertain about your prospects of rehabilitation. I am unable to conclude you have good prospects, but on the other hand, I cannot say that they are extinguished. You are a man of superior intellect. It is to be hoped you will engage with people that can assist you with your rehabilitation.

Experience in custody

Your counsel submitted that your time in custody has not been without problem. Submissions were made regarding concerning events that have occurred in custody while awaiting sentencing. It appears you have been assaulted during this period of remand, and you have been subject to forms of intimidation. I have taken the matters raised by your Counsel into account, and accept these instances have caused you anxiety, and concern about your continued safety in custody. I also take into account that your physical health and psychological factors are likely to make your time in custody more burdensome.

Sentencing principles

The prosecution submitted that general deterrence is a very significant sentencing consideration in offending of this kind, the central objective of the legislation being to protect vulnerable children from sexual abuse and other forms of sexual exploitation by Australians travelling overseas. The prosecution further submits that where general deterrence is a primary factor, personal mitigating factors such as good character, age, and prospects of rehabilitation, must be given less weight than might otherwise be given.

The prosecution pointed out that there is difficulty in detecting offending of this nature occurring overseas, and this increases the need for general deterrence.

Further, it is submitted that specific deterrence, denunciation, punishment and protection of the community are important sentencing considerations in the present case.

It is pointed out that the offences reflect the Australian government’s adoption and implementation of international obligations to protect children from sexual exploitation by Australian citizens overseas.

The prosecution provided the court with a table of cases reflecting key sentencing principles applicable to the assessment of the appropriate sentence to be passed in cases involving child-sex offences committed outside Australia. In short, the accepted principles include the following:

(a) Child pornography offences are considered especially grave warranting substantial penalties with general deterrence and denunciation being paramount considerations;[4]
[4]DPP v Garside [2016] VSCA 79.

(b) General deterrence is a paramount consideration;

(c) Factors such as lack of prior offending, age, familial support remorse and prospects of rehabilitation must be given less weight;

(d) Victims of such crimes are often vulnerable, impoverished and easily exploited and manipulated.

The table provided contained a number of examples of sentences passed in child exploitation cases. However, as many of the offences were not the same as those before this Court, in my opinion, the sentences passed have limited comparative value. What can be said however, is that none of the examples provided in the table approach the scale and seriousness of your overall offending, particularly when the many instances of your sexual penetration of many victims is considered.

Between 25 October 2011 and 27 October 2011, the Offender travelled to the Philippines.

On 25 October 2011, in the late evening, the Offender took 2 photographs of “Edward” standing in various sexualised positions. This victim is believed to be up to 14 years of age.
On 26 October 2011, the Offender took another 23 photographs of the victim, including of the Offender using his finger and penis to anally penetrate the victim. The last image is taken late in the morning of 26 October.

VICTIM 39 – CARL/JEFFREY

CHARGE 48: Between 29 February 2012 and 1 March 2012, cause a child under 16 to engage in sexual intercourse outside Australia, in the presence of the Offender – s 272.8(2) Criminal Code (Cth)

The Offender was in the Philippines from 28 February to 3 March 2012. Images dated 29 February 2012 (in the evening) depicting victim 39 (estimated to be aged up to 14 years of age) in sexually explicit positions were identified. For example, there is an image depicting Victim 39 standing naked on a bathroom bench whilst he is penetrating his anus with a tube.

The offending in relation to victim 39 continued on 1 March, wherein multiple acts are depicted in various videos captured between midnight to the early morning of 1 March 2012. Another victim, namely, victim 40 (see later, charge 49) is depicted in these videos. However, victim 40 was over 16 at the time of this offence.

The Offender directed Victim 39 and Victim 40 to participate in sexual acts with each other, for example:
a. In a video lasting over 2 minutes and 30 seconds, the two victims are depicted engaging in penetrative anal sex. The Offender’s voice can be heard during the recording. Subsequently, the Offender put the camera down and assisted one of the victims in penetrating the other victim; and
b. In another video, which lasted over 7 minutes, the Offender offered the following direction: “You next, you fuck him,” as he is engaging in intercourse with victim 40. The video concludes with the Offender simultaneously participating in sexual activity with victims 39 and 40.

VICTIM 40 - UNKNOWN

CHARGE 49: On 1 March 2012, produce child pornography material outside of Australia - s 273.5(1) Criminal Code (Cth)

8 video and 3 image files were produced by the Offender in relation to victims 39 and 40 on 1 March 2012, in the early morning. Victim 40 is identified to be 16 years of age by the Offender. The Informant estimates victim 39 to be 14 years of age or under.

The image files largely related to victims 39 and 40 in the bath together, and, and in one instance, engaging in penetrative sex.

In relation to the videos, further to the activities relating to Victim 39 and Victim 40 outlined above in relation to charge 48, the victims also participated in the video-recording process:
a. The activities referred to above was recorded by one of the victims. The victim is overheard laughing whilst recording; and
b. In another video, which lasted almost 8 minutes, the Offender is depicted masturbating in front of Victims 39 and 40. Multiple acts of penetration are depicted between Victim 40 and the Offender. This incident is recorded by Victim 39, who is also observed masturbating whilst recording.

VICTIM 41 – CARL

CHARGE 46: On 19 February 2012, engage in sexual intercourse with a child under 16 outside Australia – s 272.8(1) Criminal Code (Cth)

Between 19 February 2012 and 23 February 2012, the Offender travelled to the Philippines.

On 19 February 2012, the Offender took a series of 6 videos of victim 41 and one other male child victim (victim 34 – see charge 44), which included depiction of the victim performing fellatio on and masturbating the Offender’s penis. The Offender can be heard to say, “Ok.” Victim 41 is estimated to be up to 12 years of age.
The videos also depict the victim lying on his back with the penis of one of the other victims beside his face. The videos also show the Offender removing the victim’s underwear and performing fellatio on him. The lengthiest video in the series lasts almost 11 minutes and the Offender can be heard uttering “Do you want to fuck me”, as he engages in sex with victims 34 and 41 in the late evening.

VICTIM 42 – UNKNOWN

VICTIM 43 – CARL 2

CHARGE 47: On 28 February 2012, produce child pornography material outside of Australia - s 273.5(1) Criminal Code (Cth)

On 28 February 2012, the Offender was in the Philippines. A single image, depicting two victims, victim 42 and 43 (together) has been identified. Both victims are estimated to be up to 14 years of age. That image depicts the two victims sitting in a bathroom together, naked. The Offender is partly visible; his left hand is depicted within a mirror reflection.

VICTIM 44 - JEFFREY

CHARGE 50: Between 19 February 2013 and 20 February 2013, cause a child under 16 to engage in sexual activity outside Australia, in the presence of the Offender – s 272.9(2) Criminal Code (Cth)

Between 19 February 2013 and 22 February 2013, the Offender travelled to the Philippines.

On 19 February 2013, the Offender took 3 photographs of the victim, standing naked in the shower. The victim is estimated to be up to 14 years of age.
On 20 February 2013, the Offender took a series of 16 photographs, including the victim lying naked on a bed with his penis erect and, shown in close up.

VICTIM 45 – JEFFREY 1

CHARGE 51: Between 20 February 2013 and 11 June 2013 - Engage in persistent sexual abuse of a child outside Australia - s. 272.11 Criminal Code (Cth)

Between 20 February 2013 to 11 June 2013, the Offender engaged in the persistent sexual abuse of a child outside Australia by committing offences against the following provisions, on 3 or more separate occasions and against the same child victim, namely, “Jeffrey” (victim 45, who is believed to be up to 15 years of age):

a.2 x Engaging in sexual activity with a child under the age of 16 years outside Australia - s. 272.9(1) Criminal Code (Cth) – on the following occasions:
i.22 February 2013
ii.24 May 2013

b.2 x Engaging in sexual intercourse with a person under the age of 16 years outside Australia - s 272.8(1) Criminal Code (Cth) – on the following occasions:
i.25 May 2013
ii.27 May 2013

c.2 x Causing a child under 16 to engage in sexual intercourse outside Australia, in the presence of the Offender – s 272.8(2) Criminal Code (Cth) – on the following occasions:
i.25 May 2013
ii.27 May 2013

d.3 x Causing a child under 16 to engage in sexual activity outside Australia, in the presence of the Offender – s. 272.9(2) Criminal Code (Cth) - on the following occasions:
i.20 February 2013
ii.26 May 2013
iii.10 to 11 June 2013

The Offender first associated with victim 45 on 20 February 2013. On this occasion, two images of this victim were taken. They depict the victim lying naked.

On 22 February 2013, the Offender continued to associate with victim 45. Two images, depicting the victim lying naked on a bed were identified (including close-ups of the victim’s genitals).

From 24 to 27 May 2013, the Offender associated with victim 45 on multiple occasions. Other victims, for example, victim 46 (see charge 52) were also involved simultaneously at some of the times the Offender was involved with victim 45.

On 24 May 2013, images relating to victim 45 depict the victim squatting on a toilet and a close up of his anus, with fluid coming out of the anus. The victim is also depicted inserting a pink vibrator into his own anus.

On 25 May 2013, the Offender is depicted penetrating victim 45’s anus, whilst the victim appears to be sleeping, in one image.

Apart from engaging in sexual activity with both victims, the Offender also participated as the victims (45 and 46) engaged in sexual activities with each other. On 26 May 2013:

a.In a brief 20 second video, the two victims are depicted lying on a bed in their underwear. The Offender is overheard making kissing noises and saying: “You and him.”
b.A minute later, the Offender directed the victims to “Take your underwear off.” This is followed by one victim masturbating the other.
c.This is then followed by another brief video of the victims kissing and masturbating each other.
d.In one of the latter videos depicting these victims, the Offender can be heard uttering, “Jeffrey.”
e.Finally, the Offender is observed using his hand to grab a hold of one of the victim’s penises and, making a bubble noise. This led to one of the victims performing oral sex upon the other.

Further videos, involving penetrative sex between victims 45 and 46 are also identified as having occurred on 27 May 2013, in the early morning and late evening. In a video captured at 1:08 a.m., which lasts for almost 3 minutes, one of the victims is overheard making sounds consistent with occasioning pain, as he engaged in sexual activity with the other victim.

On 10 to 11 June 2013, victims 45 and 39 (“Carl / Jeffrey”) (who is the subject of charge 48) are depicted together, naked in a bath.

The Offender continued his association with victim 45 in 2014 but, by that time, the victim was over 16.

VICTIM 46 – JEFFREY 2

CHARGE 52: Between 26 May 2013 and 27 May 2013, engage in sexual intercourse with a child under 16 outside Australia – s 272.8(1) Criminal Code (Cth)

Between 24 May 2013 and 28 May 2013, the Offender travelled to the Philippines.

On 26 May 2013, the Offender took a series of 14 videos and 29 photographs of “Jeffrey2” (who is estimated to be up to 14 years of age), along with another male child victim (“Jeffrey1” – victim 45).
The videos depict the victims lying together in their underwear and the Offender can be heard in the background making kissing noises and saying, “You and him.” The videos also show the Offender directing, “Take your underwear off” before the victims remove their underwear and engage in mutual masturbation as the Offender directs them to kiss. The videos further show the Offender and “Jeffrey2” engaged in mutual fellatio, “Jeffrey2” with his legs raised as he anally penetrates himself with a pink vibrator and “Jeffrey2” orally and anally penetrating the other victim.

On 27 May 2013, the Offender took another 6 videos and 5 photographs of “Jeffrey2” and “Jeffrey 1” engaged in sexual activity including mutual fellatio, mutual masturbation and penile-anal penetration as the Offender can be heard in the background directing, “Wait, Ok Ok.”

VICTIM 47 – JHAY R

CHARGE 54: Between 16 December 2014 and 18 December 2014, produce child pornography material outside of Australia - s 273.5(1) Criminal Code (Cth)

13 images relating to victim 47 (who is over 16) have been identified. The associated meta-data for these images are timed between late evening, on 16 December, to late afternoon, on 18 December. The images are found in a folder named: “Jhay-R” and “Reymart.” Victim 47 is over 16 years of age.
The images depict the victim:
a.   lying on his side with a pink vibrator protruding from his anus;
b.   the Offender’s hand touching the victim’s buttock, whilst the victim’s anus is visible;
c.   sleeping under sheets; and
d.   sleeping in a bed naked.
Some of the images do not depict the victim’s face but, these images are taken proximate to the images which directly depict the victim. The Offender’s penis is observed penetrating the victim’s anus in one of the images.

VICTIM 48 – JAYR

CHARGE 55: Between 30 March 2015 to 27 April 2015, engage in sexual intercourse with a child under 16 outside Australia – s 272.8(1) Criminal Code (Cth)

On 30 March 2015, a series of images and videos depicting victims 48 and 49 (charge 56) were taken. The imagery relating to victim 48 (who is estimated to be up to 14 years of age) exclusively depict:

a.   The victim penetrating the Offender’s anus;
b.   The Offender lying naked with his genitals exposed and a the victim lying naked next to him and sucking on the Offender’s nipple;
c.   The Offender masturbating whilst the victim sucked his nipple;
d.   The victim touching the Offender’s testicles and, the Offender ejaculating; and
e.   The victim with semen on his stomach and lying next to the Offender.

On 27 April 2015, the Offender is depicted in a video with victims 48 and 49. In this video, the Offender is depicted kissing one of the victims, who is naked next to him. The second victim then joins the Offender and kisses him.

VICTIM 49 – JAYR

CHARGE 56: On 30 March 2015 to 27 April 2015, cause a child under 16 to engage in sexual intercourse outside Australia, in the presence of the Offender – s 272.8(2) Criminal Code (Cth)

On 30 March 2015, a series of images and videos depicting victims 48 (charge 55) and 49 (who is estimated to be up to 14 years of age) were taken. The videos depict the victims engaged in penetrative sex and the Offender’s voice can be overheard in a video.

The images depict, by way of example:
a. The victims in a bath together; and
b. The victims using vibrators together.
The imagery was created in the evening of 27 April and 28 April 2015. Various acts of penetration are depicted involving the victims in the videos (some of which last longer than 3 minutes). The Offender can be overheard saying: “Put this inside,” in one of the videos – and one of the victims is subsequently depicted moving a tube towards the other victim, who takes the tube and inserts it into his own anus, whilst the other victim masturbates.

In one of the last videos captured, the Offender is observed reaching out and touching one of the victim’s genitals as penetrative sex is occurring between the victims.

Further files relating to victims 48 and 49 were also located – these files were created on the evening of 27 April.

CHARGE 57: Between 27 April 2015 and 28 April 2015, engage in sexual intercourse with a child under 16 outside Australia – s 272.8(1) Criminal Code (Cth)

On 27 April 2015, a series of images depicting victims 49 and the Offender were taken in the evening. These images depict the Offender with victim 49 – both are naked. The Offender is depicted holding a dark blue object, or vibrator, and is observed penetrating the victim with the object. These images were taken at 10:39 p.m.

On 28 April 2015, the Offender re-engaged victims 48 and 49. In a 3 and a half minute video, the Offender is depicted lying naked on a bed with one of the victims and they are seen kissing. The Offender masturbates and is then joined by the other victim who kisses the Offender.

In another 3 minute video captured at around this time, the Offender is present whilst victims 48 and 49 engage in oral sex. The Offender then joins the victims and puts his erect penis next to one of the victim’s faces – that victim then performs oral sex upon the Offender.

VICTIM 50 – JOSH

CHARGE 58: Between 5 March 2017 and 14 July 2017, produce child pornography material outside of Australia - s 273.5(1) Criminal Code (Cth)

Victim 50 is over 16. He is the only victim depicted in imagery dated in 2017. There are a combination of videos and images relating to this victim. In relation to the videos, the face of the victim is not depicted in some of the videos. 7 short video files attributed to victim 50 have been identified.

The first 3 videos are captured on 5 March 2017, in the early morning. They depict:
a.   The Offender holding his penis, before the victim penetrates the Offender’s anus with his penis; and
b.   The victim using his right arm / fist to penetrate the Offender’s anus numerous times, as the Offender masturbates. During this video, the victim said: “Poop, poop.” In reply, the Offender stated: “That’s ok wash… you fist;” and
c.   In a subsequent video, the victim is depicted sleeping.
1 video is captured on 17 June 2017 at 4:12 a.m. and depicts the victim engaging in sexual intercourse with the Offender.

3 of the videos are dated 13 July 2017 and depict the victim in various acts of sexual intercourse with the Offender, for example:
a.   In a video taken at 11:17 p.m., the Offender’s left hand is observed touching the victim’s buttock and subsequently digitally penetrating the victim’s anus whilst the victim is sleeping;
b.   In a video taken at 11:22 p.m., the Offender is seen behind the victim initially, masturbating. He subsequently digitally penetrated the victim’s anus whilst he was sleeping; and
c.   In a video taken at 11:39 p.m., a close-up is taken of the victim’s anus. A red and black vibrator is protruding from the victim’s anus and the Offender is observed moving the vibrator around, before removing it from the victim’s anus.
The remaining imagery are photo files taken on the following dates:
a.   19 November 2016
b.   3 March 2017
c.   4 March 2017
d.   28 June 2017
e.   13 July 2017
f.    14 July 2017
Numerous images (at least 50) depicting victim 50 have been identified and some of these images are found within folders named: “Josh.”     The images depict, by way of example:
a.   Selfies of the victim
b.   Selfies of the victim and the Offender together
c.   The victim sitting in a restaurant with the Offender
d.   The victim having a shower, or in the bathroom (naked)
e.   The Offender kissing the victim
f.    The Offender being digitally penetrated by the victim
g.   The victim, naked and covering his genitals
h.   The victim licking the Offender’s right nipple.

VICTIM 55 – UNKNOWN

CHARGE 27: On 12 June 2010, engage in sexual intercourse with a child under 16 outside Australia – s 272.8(1) Criminal Code (Cth)

Between 11 June 2010 and 15 June 2010, the accused travelled to the Philippines.

On 12 June 2010, the Offender took a series of videos and photographs depicting 3 male children - victim 14, victim 26 and a third victim whose name is unknown (victim 55). Victim 55 is estimated to be under 14 years of age.
The imagery depicts the Offender anally penetrating the unknown victim. In one of the videos depicting victim 55 with another victim (whose face is not visible), the Offender can be seen looking at the camera and smiling. In another video, involving victim 55 and victim 10, the Offender is overheard requesting ‘2 more minutes’ whilst he engages in penetrative sex with one of the victims. The victim replies with “one.”

Victim 58 - RAYMOND

CHARGE 53: Between 2 September 2014 and 1 April 2015, produce child pornography material outside Australia – s. 273.5(1) Criminal Code (Cth)

18 image files have been identified in relation to Victim 58. Victim 58 is over 16.

The image files relating to this victim are dated on 3 separate dates at various times (including early morning – e.g. 4:26 a.m.) or, in the early evening (around 7:30 p.m.):
a.   2 September 2014
b.   4 September 2014
c.   1 April 2015

Some of the images depicting victim 58 are category 7 images, namely, they depict the victim sitting on a bed, clothed. In subsequent imagery, the victim is depicted on a bed with his testicles exposed or, with his penis exposed.

In some of the images, the victim’s face is not depicted but, the timing of those images correlate with the timing of other images which depict the victim’s face.

In other images, the victim’s face is depicted, close-up. In one image, the Offender is observed kissing the victim.

A single video file has been identified. It depicts the victim lying naked on a bed with his legs apart as he uses a pink vibrator to penetrate his own anus. The recording focuses upon the victim’s anus.

VICTIM 59 – BUKHNOY

CHARGE 38: Between 4 June 2011 and 5 June 2011, produce child pornography material outside of Australia - s 273.5(1) Criminal Code (Cth)

10 files have been identified in relation to victim 59. Victim 59 is over 16.

The associated meta-data is timed between mid-evening on 4 June to the early morning (around 12:30 p.m.) on 5 June 2011. All but one of these files were found within a folder named: “AlJohn” and subfolder named: “With Bukhnoy.”

4 of the identified files are video files, ranging between 2 seconds to 1 minute and 59 seconds. The longest file depicts victim 59 and victim 14. In this file, one of the victims is sleeping whilst the other victim penetrated the sleeping victim’s anus with his penis. The Offender is overheard saying: “Fuck.” An adult male is depicted behind the victims at one stage. [32]
[32] This file was found in folder: “Jay R” and “JayR with Denjo”
In another video, lasting 51 seconds, victim 59 is depicted penetrating himself with a vibrator.

The remaining (brief) videos depicts various sexual activity between victim 59 and victim 14 with the Offender (see charge 24). In one video, the Offender is depicted lying naked on a bed masturbating himself and pushing a vibrator into one of the victim’s anuses, whilst the other victim is behind, exposing his genitals and anus.

In relation to the image files, the most serious images depict the Offender engaging in penetrative sex with victim 59. However, there is also imagery of victim 59 naked, in the shower.

UNKNOWN VICTIM

CHARGE 23: On 19 May 2010, engage in sexual intercourse with a child under 16 outside Australia – s 272.8(1) Criminal Code (Cth)

The Offender was in the Philippines between 18 to 21 May 2010.

On 19 May 2010, the Offender took a series of videos and photographs (approximately 19) featuring several known victims and 2 unknown male child victims between approximately 1 a.m. to 6 a.m.

The images show the accused digitally penetrating the anus of one of the unknown victims as he sleeps and, being anally penetrated with a purple vibrator.

UNKNOWN VICTIM

CHARGE 34: On 10 March 2011, cause a child under 16 to engage in sexual intercourse outside Australia, in the presence of the Offender – s 272.8(2) Criminal Code (Cth)

Between 10 March 2011 and 13 March 2011, the accused travelled to the Philippines.

On 10 March 2011, the Offender took a series of 4 videos and 4 photographs of victim 12 and a male (unknown) victim. The videos depict victim 12 and the unknown victim performing mutual fellatio whilst the accused can be heard in the background.

UNKNOWN VICTIM

Charge 45: On 15 December 2011, cause a child under 16 to engage in sexual activity outside Australia, in the presence of the Offender – s. 272.8(1) Criminal Code (Cth).

The Offender was in the Philippines between 14 and 16 December 2011.

An image and a video depicting victim 34 (see charge 44) and an unnamed victim taken shortly after midnight on 15 December 2011 has been identified. In the video file, one of the victims (the unknown victim) is observed placing his penis onto the mouth of the other victim (victim 34), who is sleeping. The image file replicates the video file.

PRODUCTION AND IMPORT CHARGES – VARIOUS VICTIMS

CHARGE 22: Between 18 May 2010 and 28 April 2015, produce child pornography material outside of Australia - s 273.5(1) Criminal Code (Cth)

The Offender produced child pornography material (images and videos) relating to numerous overseas child victims (up to the age of 17). It is estimated that the Offender produced over 1000 files during an approximate 5 year period (between May 2010 and April 2015).[33] The child pornography produced was primarily stored on two (2) hard-drives seized from the Offender.
[33] Details relating to victims that are the subject of individual production charges, or, the aggravated production charge, have been excluded from these figures

Apart from the victims (under 16) who have been identified and, who are the subject of individual direct sexual offences (that is, either sexual intercourse or sexual activity charges), and the victims who are the subject of specific production of child pornography charges, further victims were also identified during the categorisation process. For example, victim 35, who is also believed to be known as “Leom” was depicted in a photo, in a bath with another victim.

A sample screenshot is extracted below – this screenshot depicts how the Offender stored the some of the imagery produced:

CHARGE 59: On 4 September 2017, Import child pornography material – s 233BABAD Customs Act 1901 (Cth)

Upon his return to Australia on 4 September 2017, the Offender was in possession of 5 electronic devices. Each of these devices contained child pornography.

The following table is a summary of the quantity of child pornography[34] located on each device:
[34] Category 7 files excluded – category 7 is non-illegal / indicative material

Device [35]	Number of Images	Number of Videos
1. Black LG Mobile Phone	27	2
2. Apple Mac Pro Laptop	3926	246
3. Samsung 250 GB external hard drive	14,241	2209
4. Sony USB	13	8
5. Seagate External Hard Drive	17162	2345
TOTAL	35,344	4810

[35] A Nexus Tablet was also seized in the shipping container imported by the Offender on 9 January 2018 (see later). This tablet was also found to contain child pornography material but details are excluded in relation to this import charge.

Some of the video files imported were lengthy, for example:
a. A category 5 video, lasting over 42 minutes, was found on the Seagate Hard Drive.
b. A category 4 video, lasting over 28 minutes, was found on the USB.

A summary of the child pornography imported by the Offender on 4 September 2017, classified, is:

Level 1	Level 2	Level 3	Level 4	Level 5	Level 6	Level 7	Total CAM
Images	19866	4625	3189	6648	1072	9	11170	46579
Movies	322	1078	422	2893	91	4	405	5215
Totals	20188	5703	3611	9541	1163	13	11575	51794

Included amongst the imagery were files produced by the Offender between 2002 to early 2010 (prior to the operation of the Criminal Code (Cth)), depicting various overseas juvenile victims. In relation to the following specific victims, who have been identified, they are over the age of 16 but under the age of 18) and the details of these victims are as follows:

Victim Number	Alleged Victim Name	Samples descriptors of imagery depicting victim	Alleged Victim Location
3	Mart	Close-ups of victim’s genitals, including penetration by an adult finger	Singapore or Indonesia
15	Billy	37 minute video depicting Offender participating in multiple sex acts with victim	Philippines
17	Kenneth	Victim kissing the Offender, Offender inserting objects into victim’s anus	Philippines
20	Nemer / Mel / Jess	Video lasting over half an hour, depicting victim with Offender – references are made to money	Philippines
21	Nemer / Mel / Harold	Video lasting over half an hour, depicting victim in multiple sexual acts with the Offender	Philippines
30	Jahn	Nude photos of victim	Philippines
2 x Unknown victims (i.e. faces not depicted)	N/A	Exposed buttock and digital penetration	Unknown
6	N/A	12 to 14 year old boy, naked – located in file named “Download”	Singapore
7	N/A	12 to 14 year old boy, naked – located in file named “Download”	Unknown
28	N/A	Victim engaged in oral sex with another – images are attributed to Offender’s associate, HANSEN.	Philippines
29	N/A	Victim is naked in the bathroom, sometimes with other victims – images are attributed to Offender’s associate, HANSEN

RECORD OF INTERVIEW 1

On 4 September 2017, on his return to Sydney, Australia, the Offender was in possession of a black LG mobile phone which contained images of him engaged in sexual activity with victim 50. Following detection of these images, the Offender was questioned by AFP officers at Sydney International Airport. The Offender explained that his possession of the alleged child pornography was explicable because:
1. He travelled to the Philippines fairly often
2. He helps with a couple of families and their children informally - the mother and the kids would come over and give them dinner
3. He knew that once, the kids were slapping away at each other and using video in the shower
4. He did go and delete the pictures [36]
5. However, the photos might have been retained on the phone due to a backup.[37]
6. The children [depicted] are about 19, 16, 18 years of age.[38]
7. A few years ago, he was introduced by a friend to a family who had 3 kids. The parents spent all their money on drugs.[39]
8. He trusted the kids and he would leave money for them for food and go to work and allow them to hang out at his hotel. In the evening, they would have dinner and go home.[40]
9. He remembered seeing a photo on his phone which he ‘didn’t like at all.’ He ‘told [the kid] off because […] when I was talking to mother I think they slapped each other in the shower and they thought it was amusing and I didn’t think it was amusing that was in my phone. But I’m pretty sure I deleted it straightaway and I didn’t think there was anything – I think it was waist up.’[41]
10. He also deleted a photo taken by one of the kids when he was asleep – he told the child: “Don’t you ever touch my phone again.” [42]
11. He denied getting aroused with looking at the photos.[43]
12. He is disinterested in any sort of pornography.[44]
13. He has never engaged in any sex acts with children (in or out of Australia).[45]

SEARCH WARRANT

On 17 October 2017, police executed a warrant upon the then home of the offender, at which time the following electronic items were seized:

a.Apple MacPro Laptop
b.Samsung 250 GB HD
c.Black Sony USB drive
d.Seagate ultra slim hard drive

The Seagate ultra slim hard drive contained the majority of the evidence relating to the overseas offending. It also contained imagery relating to victim CM.

The Apple MacPro contained some images of victim 50 and general child pornography material.
The Samsung Hard Drive contained general child pornography and, some images and videos relied upon for the production charges. In relation to the images and videos related to the production charges found on the hard drive, these were also duplicated on the Seagate Ultra Slim Drive.
The black USB contained general pornography.

On 9 January 2018, certain property belonging to the Offender from overseas was obtained by the Police. A Nexus Tablet was found to contain evidence – including for example, imagery of the Offender kissing a victim (Victim 45) and general imagery of Victim 45.

A s. 3LA Crimes Act (Cth) order was served upon the Offender during the warrant execution, in order for the Offender to supply details for access to the Samsung and Seagate Hard Drive. The Offender indicated that he did not recall the password details and supplied a number of alternative passwords which were incorrect. However, the Offender supplied details during a subsequent interview with Police.

eCrime officers were ultimately able to decode the Seagate Hard Drive, which was encrypted, on 28 February 2018.

RECORD OF INTERVIEW 2

The Offender participated in a further interview with Police on 18 May 2018. In relation to victim 8 (“CM”), the Offender admitted chatting on the internet with him and said they chatted about everything from TV channels to CM’s trips to America. However, he denied talking to him about anything personal or sexual. In the interview, the Offender also stated:

a.He lived in Singapore until the end of 2003, and after that, he lived in Australia until the middle of 2006. After that, he lived in Singapore again. As part of his job, he had to travel to educate doctors. This included travel to South-East Asia, the Asia-Pacific, Australia, Dubai and Russia.[46]
b.The length of these trips varied between one to three or four days.[47]
[46] Q96 to 99
[47] Q102

HISTORY OF PROCEEDINGS

On 4 September 2017, the Offender was arrested for charges relating to CM.

On 1 February 2019, the Offender was committed by way of straight hand up brief for following a plea of guilty to the charges on the Indictment.

PRE SENTENCE DETENTION

The Offender has served not served any pre-sentence detention.

SEX OFFENDER REGISTRATION

The Offender has pleaded guilty to numerous registrable Class 1 offences[48] and class 2 [49] offences of the Sex Offender Registration Act 2004 (Vic). Pursuant to section 34(1)(c) of the Act, the Offender is required to comply with the reporting obligations for the remainder of his life.
[48] S. 47A of the Crimes Act (Vic), s. 272.8 of the Criminal Code (Cth), s. 272.9 of the Criminal Code (Cth), s. 272.11 of the Criminal Code (Cth) are class 1 offences.
[49] S. 233BAB of the Customs Act (Cth) 1901, s. 273.5(1) of the Criminal Code (Cth)

[2020] VSC 41

29 January 2020