R v Moss
[2023] VCC 1238
•18 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Sexual Offences List
Case No. CR-23-00050
| THE KING |
| v |
| SHANE MOSS |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 3 July 2023 | |
DATE OF SENTENCE: | 18 July 2023 | |
CASE MAY BE CITED AS: | R v Moss | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1238 | |
REASONS FOR SENTENCE
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Subject:CRIMNAL LAW
Catchwords: SENTENCE – one charge of using a carriage service for child-abuse material; one charge of possess or control child-abuse material obtained or accessed using a carriage service.
Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth)
Cases Cited:Warboyes v R [2020] VSCA 169.
Sentence: Total effective sentence of nine months imprisonment released forthwith on a Recognisance Release Order pursuant to 20(1)(b) of the Crimes Act 1914 with conditions; 2 year Community Corrections Order with conditions including 100 hours of community work.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms A. Ambesi | Office of Public Prosecutions |
| For the Offender | Mr T. Shocker | Stary Norton Halphen |
HER HONOUR:
1Shane Moss, you have pleaded guilty to an indictment containing one between dates charge of using a carriage service for child-abuse material (such use involving both to access the child abuse material and causing child abuse material to be transmitted to yourself), contrary to the Criminal Code (Cth), which carries a maximum penalty of 15 years’ imprisonment; and one charge on a single date of possess or control child-abuse material obtained or accessed using a carriage service, contrary to the Criminal Code (Cth), which also carries a maximum penalty of 15 years’ imprisonment.
2The circumstances in which you came to commit those offences are set out in the Amended Summary of Prosecution Opening for plea, dated 28 June 2023 (Exhibit “A”). The prosecution has also relied on Crown Submissions on Sentence, dated 29 June 2023 (Exhibit “B”).
3In addition to the matters developed in oral argument, your counsel relied on an Outline of Plea Submissions for the Accused, dated 30 June 2023 (Exhibit 1), psychological assessment by Mr Patrick Newton, dated 23 June 2023 and supplementary letter dated 29 June 2023 (Exhibit 2), a letter from Mr Peter Hanley, psychologist, dated 22 June 2023 (Exhibit 3); a Forensicare Discharge Report by Ms Rose Tingate, dated 6 March 2023 (Exhibit 4); psychological report by Dr Gerard Choo, dated 19 June 2023 (Exhibit 5) and a bundle of character references (Exhibit 6).
4I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty.
Circumstances of the offending
5On 8 September 2022, police executed a search warrant at your residence in Mill Park. Among the items seized was a Samsung mobile phone. You provided the password to police for this electronic device and others, which turned out to not be relevant to these charges.
6Upon physical examination, police located child-abuse material on two locations in the mobile phones, that is saved in the phone gallery and in an application called “Telegram”.
7Further analysis of the Samsung phone revealed that between 29 July 2022 and 17 August 2022, you engaged in a conversation with a person said to be named “Camile Anarose” via the Telegram application. On 9 August 2022, this person asked you for payment of 400 Thai Bhat in exchange for “60 more videos”. You responded:
“Not today dear. Will do next week. But this time do not send me the same videos as before. Send me new ones. Especially if you have more of you. I thought it was 350 baht?”
8On 12 August 2022, Camile Anarose and you engaged in the following text conversation:
“Offender: Hi how are you
Camile Anarose: Thanks god. You reply now and this tjbep.
Pylayapl email.
PayPal email
[email protected]350
Offender:Yeah, I'm not sending anything right now. Not until you send the movies. Last time half the videos you already sent me.
Camile Anarose: Okay. I will send now first 20
Offender: No dear
Camile Anarose: Then once you got it send me 350 and I send rest 30 more
Offender: Not that again
Camile Anarose: Deal now
Offender: No
Camile Anarose: What?
Okay so 40 videoFirst
Offender: Send all or I send no money
Camile Anarose: Is that what you wanted.
Okay I send 50 then
Offender: You will ask for more money again
Camile Anarose: And you send me 359 deal.
No more.
Just total 350 .deal now
Offender: Make sure they are new videos. Good ones please.
Are you really the girl in the photo?
Camile Anarose: Transmitted 31 videos containing child abuse materials
Some of the video file names include:
- Girl 10 yo,
- Philippina eight yrs and- Adolescentes
Now send me NIW.
[email protected].
Of course.
And shoe Mr now.
Screenshots of forms.
Have you sent now.And show me now screenshot pleas so I can idjrsw ot now.
At least reply Mr
Have you sent nowTell me and don’t ekeo me beg f my low
Offender: Okay dear
Camile Anarose: Hwve yoi done neo
Offender: Send me selfie of you
Camile Anarose: Esenf me.
Transmitted image of herselfOkay babe and I’ll wait no ebhsve you sent now
Offender:Transmitted screenshot of PayPal payment of 360 Thai baht made to “shiry rumbaoa”
There you go babe. And a tip. See we be good to each other.
Babe half of those videos are doubles. You sent twice. You need to send me 15 more.”
9The videos sent by Camile Anarose to you on 12 August 2022 included depictions of the following – not for the faint-hearted:
(a) A prepubescent female, aged approximately seven to eight years of age, naked with a towel half covering her chest, wearing a blind fold and with the camera focused on her vagina. The child is penetrated by an adult male while lying on her back and later while laying on top of the male;
(b) A pubescent adult male, aged approximately 13 to 14 years of age, stroking and performing oral sex on the penis of another male aged approximately 16 to 18 years;
(c) A prepubescent female aged approximately eight to 10 years, laying in a bath with the camera focused on her vagina from multiple angles;
(d) Two prepubescent female children aged approximately seven to eight years, shown fully clothed, before an adult reaches from behind the camera to pull down their skirt and underwear to focus the camera on their vaginas;
(e) A prepubescent female aged approximately 9 to 10 years, in what appears to be a child’s bedroom, wearing a singlet top and no underwear and inserting or attempting to insert various objects into her vagina, including an aerosol can, a small rectangular box, a thick pink straw and a deer antler.
10Here, I interpolate, that the three file names that she labelled the child abuse material which were known to you through that transmission, may be seen to correspond to what is shown in some of these videos.
11On 13 August 2022, the two of you engaged in a further text conversation, in which Camile Anarose asked you to send her a further 350 Thai baht, and you requested she send you 15 new videos, as the last transmission, you complained, contained duplicates. She urged you to pay her first, but you refused, stating:
“Excuse me. You sent me old videos. I have sent you enough money and you still cheat me. You are being unfair.
I’ll buy from someone else.
Nah not sending anything.”
12On 17 August 2022, Camile Anarose against requested that you send her payment in exchange for videos. You asked her to send you a video first so that you could check it was new, and you refused to send payment, stating:
“No dear. Last two times you lie and send same videos. You scam me. I need to see videos first.”
13And here I interpolate that you can sense from my voice, I can sense from reactions in the courtroom, how disgusting these images and videos are and how stark your behaviour is when you receive these videos asking for more videos and negotiating and dominating the negotiation with the woman that was sending you the child abuse material.
14Between 12 and 18 August 2022, you accessed 43 videos containing child-abuse material, by both displaying and saving the material from the Telegram conversation using your Samsung phone. Those 43 videos included 30 of the videos sent by Camile Anarose to you on 12 August 2022. As I have set out above, the videos accessed included depictions of prepubescent and pubescent children engaged in penetrative sexual activity with adults or other children. This is the offending referable to your first charge, that between 9 August 2022 and 18 August 2022, you caused material to be transmitted to yourself and accessed material using a carriage service, the material being child-abuse material. It is a rolled-up charge.
15Police then analysed the contents of your seized Samsung mobile phone, and classified relevant files located on the phone as child-abuse material, within the meaning of s 473.1 of the Criminal Code (Cth).
16On the phone, police located 81 unique child-abuse material files. Forty-five of those files were categorised according to the Interpol Baseline Scale of 34 of the 45 files being Category 1 (media depicting a real pubescent child/very first signs of puberty, and the child is involved in a sex act, witnessing a sex act, or the material is focused or concentrated on the genital regions of the child) and 12 of the 45 are Category 2, i.e. other child-abuse material that is illegal within Australia, but does not fit within Category 1, which may include images of children which are likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality or humiliation. The remaining 36 files were not assigned an Interpol category.
17Fifty-nine of the 81 files were videos and 21 were images.
18The video files included the following depictions – again, not for the faint-hearted:
(a) An adult male penetrating, with his penis, a prepubescent female child who is approximately four to five years of age;
(b) A prepubescent male child aged approximately three to four years, laying on his back with an adult female straddling him and inserting his penis into her vagina;
(c) A prepubescent male child aged approximately four to five years on top of an adult female who has her legs spread. The child is penetrating the adult female and kissing her breasts. The adult female is holding the camera focusing on the child;
(d) An adult male engaging in penetrative sexual activity with a prepubescent female child aged approximately three to four years;
(e) A prepubescent female aged approximately five to six years, lying face down on a couch while being penetrated from behind by an adult male. The male keeps pushing the child back down on the couch and she is straining her face and pushing her face into the couch;
(f) A prepubescent female aged approximately 12 years, performing oral sex on a prepubescent child aged approximately eight years;
(g) A prepubescent female child aged approximately three to four years, watching an adult male and adult female engage in oral and penetrative sex;
(h) A prepubescent female child aged approximately four to six years, performing oral sex on an adult female;
(i) A prepubescent female aged approximately 9 to 10 years, performing oral sex on a dog.
19Your possession of the child abuse material on 7 September 2022, the date of your arrest, is the offending referable to your Charge 2, with possess child abuse material obtained through carriage service.
20Following your arrest, you participated in a recorded interview with police and you told police, in that interview, that you started using the social application Telegram maybe one year ago or longer. You explained that a key feature of the application was that if one user blocked communication with another user, the history of that chat conversation between the two would disappear.
21You started speaking with a woman named “Chanelle”, or “Chaneille Rose”, who sent you videos in July 2022 in exchange for Thai money, worth approximately 10US dollars.
22You saved the videos and images that were sent to you onto your phone out of concern that you would lose the material sent to you by virtue of the features of the application. You then forwarded the video and images to your Yahoo email account to make sure that you had them before viewing them. Once you opened the videos and viewed them, you said to police, you thought the first few were fine, but then you thought the next few were not, as they were of a girl, and maybe her mother and father. By the time you went back to your Yahoo account to delete the videos, you had been blocked from using your Yahoo account.
23During the police interview you said that you:
(a) Asked “Chanelle”, or “Chaneille Rose”, how old she was and she replied 19. You asked because approximately the third video she sent you contained someone underage which shocked you;
(b) Saved the videos you were sent because you were concerned you would get scammed by Chaneille Rose because you were previously scammed by her;
(c) Engaged in the process of buying videos from her again, after first receiving underage material, but you did not save any of the material, it just stayed in Telegram. However, on these subsequent occasions you moved the videos to a folder on your phone, rather than forwarding it to your Yahoo email account so that you could still have it so you would not get scammed;
(d) Did not ask for underage videos, you only asked for adult pornography;
(e) Talked to her about receiving underage material and said “I don’t want any underage stuff. I want you – I want the girl in the photo”;
(f) After your Yahoo account was closed and after receiving child-abuse material in the form of videos, you had further communications with Chaneille Rose and paid her more money;
(g) Sent money about four or five times to the one person for videos. However, some of the payments were part payments, as not all the videos promised to you were sent, so money was withheld;
(h) Never sent child-abuse material to others;
(i) Saved the videos in three places, the Telegram application, your phone and Yahoo account;
(j) Have nothing to hide;
(k) You are interested in women, you married Kim Phan in 2016 and have three children, one from a previous relationship and two with your wife Kim;
(l) When first viewing the videos containing child-abuse material, you were shocked and panicked. Then you deleted it;
(m) Thought the younger people in the videos you were sent looked 12 to 15 years old;
(n) Looked at the child-abuse material and you did not have the volume up too loud;
(o) Have not watched all the videos;
(p) After initially receiving child-abuse material, without asking for it, continued to communicate with Chaneille Rose who sent you more child-abuse material;
(q) Watched the first couple of videos you were sent a few times thinking whether the girl in the video was Chaneille Rose. You did not watch it for any arousal or any enjoyment;
(r) Do not have any communications in your phone indicating that you want young videos.
24You were asked about the nature of the material that you paid for, you were able to describe the contents of the videos, such as the sexual acts being done to the child, and where the acts were taking place.
25When you were asked why you continued to communicate with the person once she sent you child-abuse material, you said:
“Oh, I don’t know, I guess because I was attracted to that girl.
Then you said:
… there is no excuse for this and I shouldn’t have the material on my phone, But, you know, it’s been a shit two years.”
(Footnotes omitted.)
26You confirmed multiple Yahoo email accounts in variants of your name, the user name that you used in the Telegram account, your phone number, and that no-one else had access to the phone.
27You admitted to viewing, and moving, the child-abuse material, the subject of Charge 1, and also to Charge 2, telling police that your instinct was to put the images and videos somewhere, just so that you had them so she could not delete them. You also admitted to concern that if she deleted the chat or removed the chat, then the videos would be gone and that you had virtually wasted money.
28You conceded what you saw in respect of Charge 1 included sexual acts of a 15 year old, or maybe a 12 twelve year old, performing oral sex on a man, having sexual intercourse with the man, and a mother or lady having oral sex with a child, and touching or something, and you also accepted that: "Obviously they looked like they weren't wealthy."
Plea of guilty and timing, remorse
29You were charged and a filing hearing proceeded in the Magistrates Court in September 2022, and your matter resolved at committal mention in January this year, upon your entry of a plea of guilty to the preceding charge. I accept and take into account that your pleas of guilty was entered at the earliest possible opportunity. Moreover, your pleas of guilty are now accompanied by remorse and an appreciation of wrongdoing, though, initially you apparently had some difficulty appreciating that your offending involved exploitation and caused victimisation of the children depicted. Your commitment to the rehabilitative process whilst on bail for this offending has facilitated your insight.
30I mitigate sentence on each of these bases, including that your plea of guilty was entered at a time when the effects of the COVID-19 pandemic continued to linger upon the listing of trials, in application of Worboyes.
Personal circumstances
31You were 44 at the time of your offending and are now 45. I have had the benefit of a number of reports and references tendered on your behalf, as well as detailed submissions filed by your counsel, from which I have drawn in compiling your personal circumstances. You are one of three boys born to loving parents, who continue to support you. You grew up in Perth before moving to Melbourne with your family in 1994, aged 17.
32Your father worked in payroll and accounts, and your mother worked as an aged-care nurse. Your parents encountered marital difficulties while you were in secondary school, which resulted in a period of temporary separation and ultimately they reconciled, which led to the family settling in Melbourne.
33You attended a local primary school in East Maddington, Perth, and you report that you were a very good student during primary school, however, in Year 5 you experienced repeated bullying from another student, which apparently left you feeling inadequate and socially ostracised.
34You attended Thornlie Senior High School in Perth, and when you moved to Melbourne you enrolled in Rowville Secondary College. Unfortunately, you again faced extensive bullying at secondary school, which, understandably, led to significant social anxiety, alienation from your peers and inhibition of your social interactions. You have been left with poor self-confidence and feelings of inadequacy as a result.
35You returned to Perth for your final year of schooling and achieved a Year 12 pass. You then completed a Bachelor of Business degree, majoring in accountancy, and accreditation as a certified practising accountant followed. You have worked primarily in the field of accountancy since graduation. You have a positive and stable work history, however, twice have been made redundant and have worked as a delivery lead for four years.
36I have received a reference from your former employer, Allan Woff, CPA, who has spoken favourably as to your work ethic and capacity, and to your character. He has told me that you have discussed your offending in detail with him and that you are remorseful for your behaviour. Your former work colleague, Juan Pereira Perez has also spoken of you favourably, including as to your moral character and ownership of your behaviour. Your father and younger brother, and family friend speak very highly of you and have also told me of your commitment to your rehabilitative journey since your offending.
37I understand that you were in relationships with women between 1998 and 2002 and 2003 and 2012, and you met your current wife in 2014, and you have been together ever since. You and your current wife have two children, a daughter aged six and a son aged two, and I understand you have another child.
38You told Patrick Newton, clinical and forensic psychologist, that you have experienced a number of significant difficulties within your marriage, commencing following the birth of your first child. Your wife encountered significant depression after the birth of each child, and your children and wife have a tendency to sleep in the same bed, whereas you sleep alone in another room. Apparently you have had recourse to pornography during this time and have become involved in online gambling. Your interest in pornography, I understand, dates back to your initial exposure as young as age 12, and over your teenage years you rapidly amassed a collection of pornographic magazines, with your habits steadily escalating over the following years. You consider that your use of pornography was intense, and this intensity endured until your arrest. You consider that you are particularly prone to accessing pornography when you are feeling lonely or otherwise facing emotional challenges, for instance, you told Mr Newton your use of pornography increased markedly after the birth of your two youngest children, when sexual intimacy with your wife decreased, and during the coronavirus lockdowns.
39You also engaged in sexualised online chat with a number of women, principally using the encrypted messaging application, Telegram, to do so. You do not seek to engage in actual physical contact with any of the women, however, your violation of boundaries inherent in this contact have caused problems within your marriage.
40Since being charged with this offending you have “made attempts to cease accessing and viewing adult porn”, although you have found this difficult and your wife has caught you returning to old habits. Also, in this recent period of time, you accrued a significant gambling debt of $25,000, which, I understand, caused tension with your wife.
41In his assessment of you, Mr Newton detailed your longstanding issues with self-confidence and self-esteem, triggered by experiences of childhood bullying, which also intensified in the context of your parents’ marital problems and the associated upheaval you consider that you experienced.
42As an adult, Mr Newton opined that you have experienced episodes of subclinical depression, chiefly in response to relationship problems and work-related stress.
43Prior to your arrest, I understand that such symptoms have caused you some distress, but have did not reach a level where you felt it necessary to seek the professional assistance of a psychologist or psychiatrist, nor did you seek medication to address those issues.
44Following your perceived marital problems following the birth of your children, you engaged in gambling as a coping strategy and increased your recourse to pornography and other online sexual behaviour, the latter both as a distraction and apparently as a sexual outlet.
45Following your arrest, you experienced a strong level of reactive emotional distress, and you were referred by your GP to Dr Gerard Choo, psychologist, for counselling in October 2022 which you have continued until the present time. Dr Choo has told me you have engaged well with therapy for your symptoms, which I will review from Mr Newton’s forensic report presently, and you appear to be making strong progress.
46To your enormous credit, you enrolled voluntarily in a 15 session Coping with Child Exploitation Material Use (CEM-COPE) Program in late 2022, and completed this onerous program in early 2023. You report that this program was challenging, but helpful. It has assisted you to recognise that your offending is not victimless. You are now insightful that you contributed to a deviant, disgusting market that exploits the suffering and sexual exploitation of children.
47You also attended upon Peter Hanley, psychologist, on three occasions for in-person sex offender treatment in May this year. You presented to Mr Hanley as a partly rehabilitated, approval-seeking man with a history of low self-esteem, relationship difficulties, and a porn habit. He reports that you have developing insight and a positive attitude towards behavioural charge. To him, your past pattern of pornography use and secretive online conversations, used to cope with your self-esteem and relationship issues, highlight the need for active management of your sexual behaviour. He recommends that you continue to participate in sex offender treatment. This treatment with Mr Hanley commenced after you concluded the CEM-COPE program, and I agree with him that your sentence ought include a hefty rehabilitative element.
48You have no prior criminal history, and to your enormous credit, at the time of your arrest, you were a person of good character, which I take into account in significant mitigation of penalty.
49You expressed a strong sense of remorse for your conduct to Mr Newton, which, as I have indicated, I have taken into account in mitigation of penalty, and you report, appropriately, feeling ashamed, disgraced and embarrassed to be facing such charges.
50Mr Newton reviewed your psychological presentation in his assessment and considered that your shame and embarrassment about your offending, your concern about vilification and opprobrium from others as a result of your conduct, both have the potential to complicate your ongoing adjustment and should be the focus of ongoing personal therapy.
51In Mr Newton’s opinion, these feelings, and their continued valence in your emotional state, are expected to lead to a relatively strong negative emotional response during the time following sentence. In Mr Newton’s view, you would be prone to internalise the punitive aspects of your sentence in a starkly negative internal dialogue and it is likely that your level of depression would increase.
52You describe a range of mild depressive symptoms to Mr Newton, which are most evident in a degree of pessimism and a rather dolorous outlook on the world. You are feeling diminished as a person and your self-confidence is poor. You have persisting mild sleep disturbance, generalised physical malaise and difficulty motivating yourself. Like Mr Newton, I am concerned that you experience continuing experiences of intrusive suicidal ideation. Mr Newton concludes that the appropriate diagnosis in your case is an adjustment disorder with depressed mood by DSM 5 criteria.
53In Mr Newton’s view, a detailed review of your sexual adjustment indicates a clear orientation for sexual contact with adult women, and I accept Mr Newton’s assessment that you have never experienced any sexual thoughts or feelings for underaged people, and that you have never engaged in sexualised chat, or similar online or offline activities involving underaged people.
54You told Mr Newton that you have not had or searched for child exploitation material at any time, but you have acknowledged that your continued contact with the individual who sent you the material has led to your conviction for these criminal offences in a manner that is culpable. Mr Newton administered a risk assessment in respect to the factors arising in your case. There are relatively few risks factors of relevance in his expert view. However, notably, the most relevant factor relates to the impact of issues from your childhood, which leads to the connected issues with your self-awareness and stress management, which means that you find it difficult to cope with particular challenges, including those in your marriage, brought about by the transition to parenthood. Your perception of the difficulties in your marriage and the associated feelings of social isolation, led you to engage intensively with online pornography and sexualised chat as a coping mechanism. This is the context of your offending.
55In Mr Newton’s view, using the information that he gathered and a structured clinical judgment approach, he concludes that your risk of recidivism falls in the low-risk range, which is below average relative to other sex offenders undergoing sentence.
Objective gravity; moral culpability
56Prosecution counsel has helpfully summarised factors which inform and assist me to evaluate the objective criminality of your offending. In this case, actual children were involved in the creation of the material. There was an unfortunately significant number of children depicted in the material that you received and saved, all separately victimised, with their victimisation being captured to feed the market to whom this grave sexual offending appeals, and the secondary market, including yourself, where such imagery may be used in the context of a broader sexual conversation.
57The nature and content of the material, having regard to the age of the children and the gravity of the sexual activity depicted, is harrowing, even in the objective manner of the description of the images I have received. The number of images and videos possessed and accessed is mercifully among the smaller end of the volume of images or videos the court observes, and this is a matter which weighs in your favour. The material was purchased in the context of a commercial relationship with a person with whom you were having a sexualised conversation. You solicited the imagery, albeit that I understand and take into account your explanation that you did not specifically solicit material relating to children, but you were quick to download and retain these images and videos, even after you had consumed them, and in doing so re-victimised the children depicted, out of a possibly misplaced fear that the interests you were protecting were your own commercial interests.
58I sentence you on the basis that you possessed 81 unique child abuse material files, 59 videos and 22 images. You accessed this child abuse material over seven days, though the prosecution accepts that it is not known how many times each file was accessed during that period. You admitted to police viewing and moving the files.
59The precise sexual acts that you consumed are haunting, involving different young children being sexually penetrated, and in one case a child aged approximately 9 to 10 years involved in a bestial act.
60In my view, your moral culpability lies not in your sexual attraction to the children. Instead, I sentence you on the basis that you were so preoccupied and transfixed with the titillating environment of the sexual conversation with an unknown person on the internet, that you were prepared to assume the risk and potential reward of viewing whatever images she was willing to send to you.
61I accept the matters drawn to my attention in mitigation of sentence by your counsel, many of which I have periodically summarised. As I have said, mercifully, the number of images and videos is at the lower end of the number experienced by this court in similar cases. Your commitment to rehabilitation is evidenced by your participation in the CEM-COPE program and in treatment with Mr Hanley. This is also unusual and demonstrates your commitment to the process. You have been candid with family and friends, again an unusual feature in your case.
Purposes of sentencing; current sentencing standards
62I accept and take into account the prosecution submissions, distilled from the relevant authoritative cases. A term of imprisonment to be served immediately will ordinarily be warranted for offending of this kind, entirely understandably. General deterrence is the primary sentencing consideration for offences involving child-abuse material, given the prevalence of the offending and the ease of access to such material on the internet, and the difficulties of detection.
63I must impose sentence that denounces your behaviour and punishes you. I must also impose a sentence that provides a specific deterrent to you from acting similarly, however, I take into account and afford significant mitigation of penalty to reflect the fact that you have undertaken an onerous rehabilitative course of your own volition and, in doing so, have developed insight into the wrongfulness of your conduct. I am prepared to infer, given your family support, your lack of prior criminal history, your commitment to the course and sustained involvement with a counsellor, that your prospects for rehabilitation are good.
64I consider there to be a paramount public interest in this sentencing exercise in promoting the protection of children, and, of course, I have regard to the proposition that offences involving child-abuse material are far from being victimless crimes. Your offending took place as a course of conduct over 10 days. It was not an isolated event. However, these ten days are confined in their nature and I come to view the ten days of behaviour against the context of an otherwise blameless life.
65I note that Charge 1 encompasses two types of conduct, first, accessing child-abuse material and, secondly, causing child-abuse material to be transmitted to yourself.
66I consider the offences to form a series, connected in time and purpose, and while, pursuant to s19(5) of the Crimes Act 1914 (Cth), there is a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences, I consider there to be significant overlap, such that I accept the contention by each counsel that I permit some concurrency, and I have had careful regard to the totality principle of sentencing in structuring my overall sentence.
67I am, of course, aware of current sentencing practices, and of my duty to have regard to what has been done in comparable cases throughout the Commonwealth. I have refreshed my memory in relation to the Schedule of comparable cases provided by each counsel to assist me in this task. I must honour the well-established proposition that the imposition of a sentence other than immediate imprisonment is, as a matter of fact, exceptional. However, the cases do demonstrate, of course, the availability of a sentence other than immediate custody, depending upon the circumstances and in proper reflection of the parsimony principle of sentencing.
68In the circumstances of this case, there are a number of unusual circumstances which combine to make this an exceptional case which does not require the imposition of the generally appropriate type of sentence for the offences. The number of images and videos possessed is lower than ordinarily features in cases of this kind. Your viewing and saving of the material was not motivated by a sexual attraction towards children. You have no criminal record and were a man of good character. You admitted to your offending and pleaded guilty at the earliest possible stage. You have committed to and completed an onerous rehabilitative process whilst awaiting plea. And, of course, there is the Worboyes consideration, localised to the COVID environment.
69Accordingly, I am prepared to impose upon you a recognisance release order in relation to your first charge, and I will do so when I come to sentence, which will involve the imposition of a substantial prison term but allow you to be released immediately, if you are willing to enter into a recognisance to be of good behaviour.
70And on your second charge, I propose that you be convicted and sentenced to an appropriately tailored community corrections order. However, I cannot impose a community corrections order unless you are willing to be assessed by the Office of Corrections to determine your suitability for such an order and to enquire whether you might be willing to enter into the terms of such an order. Are you willing to be assessed for an order, sir?
71ACCUSED: Yes.
72HER HONOUR: Thank you. That assessment will take place at 2.30 this afternoon at the Magistrates Court. Mr Shocker, could I trouble you please to take your client to the Magistrates Court so he can be assessed at 2.30.
73MR SHOCKER: I will do that, Your Honour.
74HER HONOUR: So part-heard sentence, 1.30 on Thursday afternoon, the 20th. Thank you, I am indebted to you both, I thought those submissions were really thorough. Bail extended on the same terms and conditions. Thankyou.
ADJOURNED UNTIL THURSDAY 20 JULY 2023
1On your first charge I will convict you and impose a period of nine months' imprisonment, but I will allow you to be released immediately upon you giving a recognisance in the sum of $2,000 to be of good behaviour for a period of two years. In simple language what that means is, if you are willing to enter into that recognisance then you are promising me that you will not offend. You are promising me that you will effectively promise $2,000 if you reoffend or breach the order in any way, that $2,000 becomes payable and you will be brought back to me for resentencing, with the nature consequence being you can expect to serve those nine months.
2The compulsory special conditions of that order:
3The Commonwealth law obliges me to order that you be subject to the supervision of the probation officer in this case, which is the Deputy Commissioner of Community Correctional Services and Sex Offender Management, or his or her nominee for two years;
4That you obey all reasonable directions of the probation officer, the same person;
5You not travel interstate or overseas without written permission of that probation officer; and
6You undertake such treatment or rehabilitation programs that the probation officer, the same person, reasonably directs.
7So I will start with that charge. Are you ready and willing to enter into that order?
8OFFENDER: Yes, Your Honour.
9HER HONOUR: Thank you very much. So that is the first charge. In relation to the second charge, now that you have been assessed as suitable for an appropriately tailored community corrections order I will indicate that if you are willing to agree, I am going to convict you and place you on a community corrections order for a period of two years, starting today, obliging you to undertake the following conditions:
10That you perform 100 hours of unpaid community work over a period of two years;
11That you be under the supervision of the Community Corrections Office for a period of two years; and
12That you participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager, in this particular those programs and/or courses are your participation in Forensic Intervention Services.
13There are other conditions that are explained in the order and just as in relation to the first charge, if you breach the order in any way then you will be brought back before me for resentencing. Sir, are you willing to enter into that order?
14OFFENDER: Yes, Your Honour.
15HER HONOUR: Thank you. Counsel I am not going to order that any of the hours in relation to rehab be credited towards the 100 hours, they are going to stand alone.
16MR SHOCKER: Yes, Your Honour.
17HER HONOUR: Now lastly, as you have been found guilty of two registerable class 2 offences, I declare you a registerable offender and I order that you comply with the reporting obligations as set out in the Sex Offenders Registration Act of Victoria for the mandatory period of 15 years. You will be given paperwork in relation to those obligations as well. Sir, you may be seated, thank you very much.
18Were it not for your plea of guilty, had you proceeded to trial and been found guilty by a jury following trial, I would have sentenced you to a period of two years' imprisonment but ordered your release after 12 months pursuant to a recognisance release order.
19HER HONOUR: Thank you very much. Now I will just sign. Thanks very much to both teams. Thank you, we will adjourn sine die please.
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