R v Uppiah

[2019] VCC 1324

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01460

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

ARNAUD NOEL UPPIAH

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April, 27 May, 30 July 2019
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	R v Uppiah
MEDIUM NEUTRAL CITATION:	[2019] VCC 1324

REASONS FOR SENTENCE
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Subject:5 charges of using carriage service to transmit child pornography, 5 charges of procuring or causing a minor to be concerned in the making of child pornography, 3 charges of using carriage service to transmit indecent communication to a person under 16 years of age, 1 charge of using a carriage service to engage in sexual activity with a person under 16 years of age, 4 charges of using a carriage service to menace, harass or cause offence, 3 charges of involving a child in the production of child abuse material, 1 charge of extortion with threat to inflict injury, 2 charges of using carriage service to procure a person under the age of 16 and 1 charge of possess child abuse material.

Catchwords:             6 different victims aged variously between 13 and 17 years – offending over a period of 4 years by offender aged between 31 and 35 years – Total Effective Sentence 12 years and 5 months’ imprisonment, with a non-parole period of 7 years and 11 months. 6AAA statement: 16 years and 6 months’ imprisonment, with a non-parole period of 12 years and 7 months.

Legislation Cited:     Criminal Code (Cth); Crimes Act 1958 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms K Breckweg	Solicitor for the Office of Public Prosecutions (Cth)
For the Offender	Mr J Miller	Emma Turnbull Lawyers

HER HONOUR:

1       Arnaud Noel Uppiah, you have pleaded guilty to a total of 29 indictable offences, of which nineteen are offences under the Criminal Code (Cth) and ten are offences under the Crimes Act 1958 (Vic). You have also consented to the transfer of one summary offence from the Magistrates Court to this court, and have pleaded guilty to it.

2       The Commonwealth offences are as follows:

·Five charges (namely Charges 1, 7, 10, 16 and 22) of using a carriage service to cause child pornography material to be transmitted to yourself, each of which carries a maximum penalty of 15 years’ imprisonment.

·Three charges (namely Charges 3, 15 and 25) of using a carriage service to transmit indecent communications to a person under the age of 16 years, each of which carries a maximum penalty of 7 years’ imprisonment.

·One charge (namely Charge 4) of using a carriage service for sexual activity with a person under the age of 16 years, which carries a maximum penalty of 15 years’ imprisonment.

·Four charges (namely Charges 5, 9, 19 and 26) of using a carriage service to menace, harass or cause offence, each of which carries a maximum penalty of three years’ imprisonment.

·Four charges (namely Charges 6, 14, 21 and 28) of using a carriage service to transmit child pornography material, each of which carries a maximum penalty of 15 years’ imprisonment;

·Two charges (namely Charges 20 and 27) of using a carriage service to transmit communications to a person under the age of 16 with the intention of procuring the person to engage in sexual activity with you, each of which carries a maximum penalty of 15 years’ imprisonment.

3       The State offences are as follows:

·Five charges (namely Charges 2, 8, 11, 17 and 23) of procuring and causing a minor to be concerned in the making of child pornography, each of which carries a maximum penalty of 10 years’ imprisonment;

·Three charges (namely Charges 12, 18 and 24) of involving a child in the production of child abuse material, each of which carries a maximum penalty of 10 years’ imprisonment;

·One charge (namely Charge 13) of extortion with a threat to kill or inflict injury, which carries a maximum penalty of 15 years’ imprisonment;

·One charge (namely Charge 29) of possessing child abuse material, which carries a maximum penalty of 10 years’ imprisonment.

4       The related summary offence is one of contravening a condition of bail, which carries a maximum penalty of three months’ imprisonment.

5       It should be noted that, with the exception of Charges 28, 29 and the summary charge, all charges to which you have pleaded guilty are rolled up charges.

6       The circumstances of your offending are detailed in the Prosecution Opening for Plea (exhibit “A”).  Your offending occurred over a period of 4½ years, between May 2013 and November 2017. You were born on 19 January 1982. Hence, over the period of offending, you were aged between 31 and 35 years.  During that time, you offended against six separate female victims with whom you communicated on the internet and by using a number of Facebook accounts in different names and, also, by using your mobile phone.  Generally speaking, you made initial contact with a victim on Facebook and requested that the victim provide you with pornographic photos and/or videos of herself, thereby involving the victim in the production of child pornography.  Your victim would send the photos and videos to you.  You then demanded that your victim send more pornographic material to you and, if she resisted, you threatened to expose her to her family, or threatened physical harm to her or her family.  You would send the images that the victim had sent to you back to her, to let her know that you still had them in order to carry out your threat.  In some cases, you made payments of money to victims or provided credit for their phones.  You would ask some victims to meet up with you, although no actual meetings took place.  Also, you engaged in phone or internet sex with some of your victims.

Charges 1 to 6:  Victim one

7       This offending occurred between 8 May 2013 and 21 December 2015, during which your victim was aged 13 to 15 years.  You added her as a friend on Facebook and she added you as a friend.  You also added some of her friends on Facebook, who were about her age and younger.  You asked for her telephone number, which she gave you, and you gave her yours.  Although she was 13 years of age, she told you that she was 15, and you told her that you were 20 (that is, 11 years younger than your age at that time, which was 31 years).  After about a month, you asked her to send nude images of herself to you in exchange for credit on her mobile phone.  You asked for specific content, including her breasts and vagina, her anus, and asked her to open up her vagina and put a finger or something in it.  She sent you approximately fifty photographs of herself (Charge 1, causing child pornography to be transmitted to yourself using a carriage service and Charge 2, procuring and causing a minor to be concerned in the making of child pornography).

8       After about a year, your victim told you that she did not want to send anymore pictures.  You told her you wanted to lick and fuck her vagina and sent her pictures of penises (Charge 3, using a carriage service to transmit indecent communications to a person under the age of 16 years).

9       For approximately a year, over 2013 and 2014, you called her about twice per week at night and engaged in phone sex, demanding she touch herself in specific indecent ways and moan, while you would tell her that you were stroking your penis.  If she would not cooperate, your tone would become cranky (Charge 4, using a carriage service to engage in sexual activity with a minor).

10      When your victim would not cooperate with your demands to send pictures, you would call her a bitch or a slut and threaten to send the photographs that she had sent you to her parents.  You transmitted nearly every photograph which she had sent you back to her, with a threat that you would tell her mother, whom you claimed to have located on Facebook.  You also told her that you would hurt her family.  These threats took place from around mid-2014 to early-2015. (Charge 5, using a carriage service in a way that was menacing, harassing or offensive).  Your victim was afraid of you and scared that you would carry out your threats, so she complied with your demands and submitted further photographs.

11      Charge 6, transmission of child pornography, relates to your conduct in transmitting back to your victim the images which you had demanded of her.  The transmission occurred over the same period of offending as Charge 5, namely, from around mid-2014 to early-2015.

12      Up until the last occasion that you contacted her in late 2015, she blocked you on Facebook on numerous occasions, but you would always add her by using another internet account. She believes that you used nine to eleven different accounts to offend against her.  She also changed her telephone number on four occasions.

Charges 7 to 9:  Victim two

13      This offending occurred between 1 January and 31 December 2014, during which time your victim was aged 13 to 14 years.  You contacted her on Facebook, which she believes showed her correct date of birth, and requested that she send images of herself in return for money and phone credit.  Over a period of approximately six months, she sent you ten images of herself naked, including her breasts, buttocks and genitals and, on one occasion, sent one photograph of a person which she had obtained from the internet.  You would message her once or twice per week during the period of offending (Charge 7, using a carriage service to cause child pornography material to be transmitted and Charge 8, procuring and causing a minor to be concerned in the making of child pornography).

14      You asked her how much you would have to pay to lick her breasts and another time offered her $500 to “lick her out”.  You stated that you would drive to the area where she lived in order to do this and asked what she would do if you came and kidnapped her.  You said that she should date you, but she refused.  She blocked you around the end of 2014 because she was scared (Charge 9, using a carriage service to menace, harass or cause offence).

Charges 10 to 14 and Charge 28:  Victim three

15      This offending occurred between 1 January 2014 and 29 September 2017, during which your victim was aged 14 to 17 years.

16      When you first contacted her, she told you that she was 14, and you told her that you were 19 (that is, almost 13 years younger than you were, as you turned 32 years old on 19 January 2014).  You initially talked a lot about having sex and then asked her to send pictures of her body in exchange for money.  She sent a naked photo of her top half and then her bottom half and then a whole body shot.  She sent one of her wearing a bra which you demanded she take off.  You specifically wanted naked photographs, and she sent you approximately eight photographs of her naked breasts and vagina, as requested by you.  You specifically asked for a picture of her vagina while she was squatting.  Over the period of 3 years and 9 months of your coercive, controlling and menacing contact, it is unclear how many photos in total she sent you in response to your persistent demands.  She mentioned possibly 8 photographs but it is clear that you had 21 photographs of her stored on your phone when it was analysed by police.  In her statement to police, she said that she had re-sent some photographs in response to your persistent requests (Charge 10, using a carriage service to cause child pornography material to be transmitted and Charge 11, procuring and causing a minor to make child pornography and Charge 12, involving a child in the production of child abuse material).[1]

[1]The offending on Charges 11 and 12 was of the same nature, but because s51B(1) of the Crimes Act 1958 (Vic) came into operation on 1 July 2017 to replace the old s69(1), it was necessary for the periods of offending to be the subject of separate charges.

17      You paid amounts of money ranging from $20 to $50 into your victim’s bank account, and retained the receipts for those deposits.  When she resisted sending more photographs, you told her that you wanted them because she was growing older and might change.  Towards the end of 2015, you threatened to send photographs to her mother and other family members unless she sent you more photographs, and also threatened to show the deposit slips to her mother.  Over the period from around 1 November 2015 to around 29 September 2017, you sent the photographs that the victim had to sent you back to her in order to let her know that you still had them and would carry out your threats and, so, she sent you further photographs (these transmissions by your victim form part of Charge 10, causing child pornography to be transmitted to yourself. The sending of photographs back to your victim comprise Charge 14, using a carriage service to transmit child pornography material).

18      Your victim eventually blocked and deleted you, but you obtained her phone number and told her that you were going to come after her and to unblock you on Facebook, which she did.  Over the period, she blocked you on a number of occasions but, each time, you would use another Facebook profile or another telephone number to contact her.  Even after she changed her phone number, you still managed to message her: first on Facebook and, then, when she blocked you, on her mobile phone, as you also used different telephone numbers after she blocked one of your numbers.

19      One of your victim’s friends, was also harassed by you.

20      If your victim would not do what you requested, you threatened to bash her or her mother. You stated that she should watch out because you knew people where she lived, knew where she went to school, and knew people with whom she went to school.  You also threatened to kill her boyfriend and made racist remarks about him.  On one occasion, you sent a screenshot of a message you claimed to have written to her mother, but had not actually sent.  On another occasion, you sent her a photograph of her three cousins, and said that, if she did not play along with the relationship with you, her family would “go down”.  You also sent her a photograph of another one of your victims who went to a school in her area, and stated that you would get that person to go after her.  All of the threatening behaviour to which I have referred occurred over a period of almost 2 years from 1 November 2015 to 29 September 2017 (Charge 13, extortion with threat to inflict injury). 

21      You suggested that you might come to her school one time and her mother need not know that she had gone with you.  You repeatedly asked her to meet you and stated that you wanted to have a relationship and children with her.

22      In September 2017, you contacted your victim’s mother.  You sent seven naked photos of your victim to her mother, along with photographic evidence of deposits that you had made into your victim’s bank account (Charge 28, using a carriage service to transmit child pornography material).  Your conduct resulted in your victim’s family being angry with her and not believing what she said, and she left home to go and stay with her brother.  When you found out where she was, you asked to meet her, but she pretended not to see the messages.  It was clear from communications between yourself and the victim’s mother that the victim’s mother held fears for her family’s safety.[2] 

[2]pp 373-421 of the depositions

Charge 15:  Victim four

23      This offending occurred between 1 January and 8 October 2014.  Your victim was 14 years old when she was contacted by you on Facebook.  You offered her a recharge voucher in exchange for a picture of her in a bikini. You indicated that you had paid $30 by way of recharge voucher to “a girl who sent [you] her tits” (Charge 15, using a carriage service to transmit indecent communication to a person under 16 years of age).

24      When this victim did not accept your offer, you called her a cunt and a bitch. 

Charges 16 to 21:  Victim five

25      This offending occurred between 1 March 2016 and 8 November 2017, when your victim was aged 15 to 16 years.  When you initially contacted her on Facebook, she told you that she was 15 and her age was on her Facebook profile, which contained photographs of her wearing a school uniform.  You requested nude photographs and videos from her, with specific directions as to how she should pose, showing her vagina, breasts and anus.  She sent you about 50 naked photographs and also some videos for which you paid money into her bank account.  You later told her that you wanted her to work for you by first filming and then, later, having a video chat with you.  You would pay her between $20 and $50, either fortnightly or monthly.  At times, the video chats would go on for an hour and, if your victim did not want to do something, she would end up crying and hanging up.  The content of the videos was mostly sexual and you would demand that she re-do them if they were not to your satisfaction (Charge 16, using a carriage service to cause child pornography material to be transmitted and Charge 17, procuring and causing a child to be involved in the making of child pornography and Charge 18, involving a child in the production of child pornography/child abuse material).[3]

[3]The offending on Charges 17 and 18 was of the same nature, but because s51B(1) of the Crimes Act 1958 (Vic) came into operation on 1 July 2017 to replace the old s69(1), it was necessary for the periods of offending to be the subject of separate charges.

26      This victim wanted to stop, but you told her that, if she did not stay up at night to do the photographs and videos, or if she blocked you, you would tell her father.  On one occasion you made a screenshot and pretended that you were about to message her father, so she sent more videos to you because she did not want you to tell her father, and felt that she would get into trouble if she went to the police.  You also attempted to add your victim’s father and sister to your list of Facebook contacts (Charge 19, using a carriage service to menace, harass or cause offence).

27      On one occasion, whilst your victim was still aged 16 years, she went away on a school trip.  When you discovered where she was, you stated that she should meet up with you and have sex.  You told her to send you a video while she was away with the school, otherwise you would send her videos to her father, so she did send you a video while on the school trip.  You also offered to give her $200 to spend the night with you, stating that you wanted “to do anal” with her (Charge 20, using a carriage service to procure a person under the age of 16 years).

28      You sent back to your victim your “favourite” photographs that she had sent to you, showing her breasts, anus and vagina.  You also sent her photographs of naked adult women in positions that you wanted her to adopt (Charge 21, using a carriage service to transmit child pornography).

29      Generally speaking, your communications on Facebook were demanding, demeaning, threatening and repulsive.  You gave very specific depraved instructions as to what your victim should insert into her vagina or anus for the photographs or videos and you regularly called her “dumb”.  You also sent text messages to your victim from your mobile phone in which you had her number stored under her first name with the word “Bitch.”  Between 26 August 2017 and 3 November 2017, there were 155 SMS messages exchanged between you and your victim, of which 100 were from you.  A number of these referred to videos and were of a demanding and unpleasant nature.[4]

[4]Depositions pp 595-603

Charges 22 to 27:  Victim six

30      This offending occurred between 1 October 2016 and 31 August 2017, when your victim was aged 15 to 16 years.  You sent her a friend request on Facebook.  She told you that she was 15 and starting Year 10.  You told her that you were 21 (that is, 13 years younger than your actual age of 34 years).  You asked her for naked photos in exchange for money and specifically requested that she pose in a “doggy style” so that her vagina and anus would be exposed at the same time.  She told police that she sent you no more than 15 “bad photographs” which included her vagina and probably naked breasts. You would manipulate her by giving her compliments so that she would do what you asked.  At other times, you became angry with her, telling her to re-do photographs to your satisfaction.  You would try to make her do things out of guilt, claiming that you had left your girlfriend for her.  You offered her money, which she refused, but you did send her a store voucher and, also, photographs of perfume and jewellery which you said you would buy for her (Charge 22, using a carriage service to transmit child pornography, Charge 23, procuring a minor to be concerned in making child pornography and Charge 24, involving a child in the production of child abuse material).[5]

[5]The offending on Charges 23 and 24 were of the same nature, but because s51B(1) of the Crimes Act 1958 (Vic) came into operation on 1 July 2017 to replace the old s69(1), it was necessary for the periods of offending to be the subject of separate charges.

31      You sent her photographs of other girls around her own age in sexual postures, as well as photographs of men and women lying together naked, stating that you wanted to do this to her, as well as sending a photograph of the tip of your penis (Charge 25, using a carriage service to transmit indecent communications to a person under the age of 16 years).

32      In August 2017, your sixth victim stated that she did not want to send you a photograph of her vagina.  You threatened to send previous photographs to her parents, so she sent you an image which she obtained from the internet.  She then blocked you.  You then contacted a school friend who had been on her list of Facebook friends, and asked that she deliver messages to your victim.  These messages included requests for photographs.  You also contacted another girl, asking about your victim, maintaining that you were speaking to her parents. Your behaviour was particularly menacing as you seemed to know when your victim was at school and when she was playing basketball. She blocked you on Facebook on several occasions, but you returned on two or three occasions using different names and accounts to try to get her to add you as a friend.  If she would not respond to you on Facebook, you would repeatedly text her mobile phone, threatening to tell her parents about the pornography.  At one stage, you sent her a message that you had found her father and her aunt on Facebook.  On another occasion, you contacted one of your victim’s friends, asking that she tell your victim that you were going to tell her father what she had done on that day (Charge 26, using a carriage service to menace, harass or cause offence).

33      You asked to meet up and have sex with your victim and tried to encourage her to sneak out of her home.  At one stage, your victim said she would meet up with you to have sex, but told police that she never intended to do so.  You pressed her for dates to meet up and said that you would come to get her or hire someone else to get her.  You also suggested that you meet in an area where you knew she played basketball, and offered to buy her alcohol (Charge 27, using a carriage service to procure a person under the age of 16 to engage in sexual activity with you).

34      You were ultimately arrested on 9 November 2017.  An analysis of your mobile phone revealed that it contained 198 child abuse images. 187 of those images were classified[6] as Level 1 (depictions of children with no sexual activity; sexually suggestive or sexual in nature.  This level includes nudity, surreptitious images showing underwear, sexually suggestive posing, explicit emphasis on genital areas or solo urination by a child.) Six of the images were Level 2 (Solo masturbation by a child, or sexual acts between children only, in which there is no penetration of any orifice, but includes the penetrative use of sex toys by the victim only.) Two of the images were Level 4 (Penetrative sexual activity between children only and penetrative sexual activity between adults and children.  It may include, but it is not limited to, vaginal/anal intercourse, cunnilingus and fellatio and penetrative use of sex toys and/or foreign objects.)  Three of the images were Level 5 (sadism, bestiality or humiliation - urination, defecation, vomit, bondage, et cetera - torture or child abuse.)  Of the images on your phone, thirty-eight were of Victim 5, twenty-one were of Victim 3 and 138 were of unknown children. (The images on your mobile phone comprise Charge 29, Possessing child abuse material.)

[6]Police used the categorisation model for Child Exploitation Material for the Australian National Victim Image Library

35      Following your arrest, you were granted bail but taken into the custody of the Department of Immigration and Border Protection and detained at Maribyrnong Immigration Detention Centre.  While at the detention centre, on 3 and 4 May 2018, you contacted your third victim, telling her that you would love her forever, she was beautiful and wished her a happy birthday.  This conduct comprises Summary Charge 27, breaching a condition of your bail, namely, that you not contact any witness for the prosecution, other than the informant.

36      For completeness, it should be noted that Summary Charge 28, which also related to a breach of bail, has been withdrawn.

37      On 11 November 2017, you participated in a record of interview with police.  You admitted to having used six different Facebook accounts in various names, albeit that five of them had your correct first name.  None of them had your correct surname. 

38      Police did not ask you about your first victim, as a statement was obtained from her subsequent to the record of interview. 

39      You told a number of lies to police about your second victim.  For example, you stated that you remembered her, but denied that you had received any nude photographs from her, although later admitted this.  You claimed not to remember trading nude photographs of her for money or many other aspects of your offending against her, but did admit that you kept images of her breasts, vagina and bottom for yourself on your phone.

40      When asked about your third victim, you initially claimed you did not remember her, but later said that you had known her on Facebook.  You denied having engaged in explicit sexual conversation with her and that she had sent you naked images.  You told a number of other lies, including that you paid money to her, not for naked images but in order to help her buy food because her mother had a neck problem.  Having initially told police that you did not remember this victim, it is of concern that you claimed later that she was your girlfriend and you had strong feelings for her and still do have strong feelings for her.

41      When asked about your fourth victim, you stated that you “did plenty of bad stuff” in 2014 when your third victim went overseas.

42      When asked about your fifth victim, you claimed that she was just a friend whom you had met on Facebook and that she was 17 or 18 years of age.  You initially claimed that pictures of her were “ballerina” images, but later admitted that they were sexy images and conceded that, if police looked at your phone, there would be nude photographs of her.  You denied giving her phone credit or money in exchange for sexual poses and stated that you gave her money into her bank account ”for free”.

43      You admitted to police that you recalled talking to your sixth victim, whom you initially believed to be 16 years of age, but later you learned that she was only 15.  You claimed not to remember her sending any photographs of her breasts or vagina at your request and claimed that, once you realised that she was 15, you thought you should stop talking with her. 

44      When asked about the pornographic images on your phone, you claimed that you felt very bad about them, but it was too late.  When asked what you were doing with images of girls aged 13 to 16, you initially did not respond and, later, stated that you did not masturbate to them and had not met up with any of them. 

45      You lied repeatedly to police claiming that the girls you were adding on Facebook were your age or married and, when asked whether you thought the girls might have been scared, you said that you were nice to them and, if anyone asked you to stop talking to them, you did.  You denied making threats, as distinct from telling “just some lies” if you had feelings for someone.  You admitted still talking to your third victim notwithstanding her age because you had feelings for her and the two of you wanted to be together forever, even with the age difference.  You claimed that you were helping your fifth victim, just as a sister would help her, and that you were no longer talking to young girls.  You claimed that the girls to whom you spoke, generally, were 24 and 27 years of age.

46      As previously mentioned, after being arrested on 9 November 2017, you were granted bail and taken into the custody of the Department of Immigration and Border Protection as you were staying in Australia illegally.  Some six months later, after you had breached a condition of your bail by contacting your third victim, you were remanded in prison and have remained there until the present time.

47      After having originally been interviewed and charged in November 2017, there was an extension of time from January 2018 until the end of March 2018 granted to the prosecution in order to serve the brief.  Then, in May 2018, you were charged with the summary offence of breach of bail.  The following month, the prosecution advised that there would be an alteration to the charges.  The original charges were struck out and replacement charges laid and the matter was adjourned for committal mention to 13 July 2018.  On that date, you indicated an intention to plead guilty.  In the circumstances, the prosecution concede that your pleas of guilty are early pleas.  The matter was initially listed for a plea hearing on 4 September 2018, but was adjourned to enable you to be assessed by a psychologist. 

48      At the plea hearing on 1 April 2019, a report from Mr Ian Mackinnon, consultant psychologist, dated 10 November 2018, was tendered as Exhibit “1”, and Mr Mackinnon gave oral evidence. 

49      In his report, Mr Mackinnon noted your history of having been born in Mauritius and, generally, having enjoyed a trouble-free childhood.  In 2009, at the age of 27, you came to Australia as a tourist, as you had a brother living here.  You then obtained a student visa and enrolled in a graphic design program at Holmesglen TAFE, but dropped out after one semester.  Following that, you worked doing residential painting jobs.  Your student visa apparently expired in 2011.

50      You gave a history to Mr Mackinnon that at school you had been “picked on a bit” and had low self-esteem and were on medication for a while as an adolescent due to depression, although you were not sure why you were depressed.  You were not on any medication for depression when Mr Mackinnon assessed you.

51      Mr Mackinnon assessed your intelligence and cognitive function to be within the normal adult range, but considered that you were suffering from chronic depressed mood at a moderate level.  He suspected that this was due to displacement and neglect by your mother during your childhood in Mauritius as she needed to give a great deal of attention to a brother of yours who was disabled.  He considered that you did not possess an inherently antisocial or criminal disposition and that this offending appeared to be out of character for you.  You told him “I shouldn’t have done this … it’s illegal because they’re under 16 years old … I feel very bad and very sorry for them for what I did.”

52      Mr Mackinnon noted that, after dropping out of Holmesglen TAFE, you felt quite socially isolated and lonely in Australia and began drinking whisky, beer and wine, sometimes waking up in the morning and drinking wine instead of coffee.  You told him that you did not have a drinking problem in Mauritius and were spending too much time on the internet, including porn sites.  In his oral evidence, he stated that your low mood and social isolation led to you self-medicating with alcohol.  He considered there was perhaps an addictive aspect to your offending as a distraction from your depression which had led you to having an alcohol problem.

53      Mr Mackinnon considered that, in addition to a depressed mood disorder, you had a substance abuse disorder and both disorders had contributed to degrading your ability to reason and to make sound judgment, and lowered your powers of consequential thinking and encouraged a self-absorbed perspective that lacked empathy and an appropriate level of awareness of your adult responsibilities in the wider community.  He considered that you had formed some sort of fantasised emotional attachment to your third victim which led to you breaching your bail.  I here note that you told Mr Mackinnon that you did this “because she was homeless and needed money”.

54      Mr Mackinnon expressed the view that your offending in contacting vulnerable young females probably reflects low self-esteem and a social ineptness and incompetence and thought that the “distance” of the internet probably encouraged you to “dehumanise” your victims and lower your empathy as you attempted to manipulate them for your own satisfaction.

55      Mr Mackinnon had assessed you via video link, only, and considered that it was difficult to make conclusions with confidence and thought that you did not appear to be labouring with an ongoing entrenched disorder of sexual preference, but that the issues were complex and it would take more than a “one off” assessment to glean a more certain picture of you.

56      He considered that you would probably continue to pose some significant risk of reoffending if you engaged in similar internet or social media interaction or if minors were left in your care or immediate company.  However, he stated that you “probably have the ability to restrain and eventually extinguish the morbid impulses and behaviour patterns that made up this offending, as they do not appear to be inherent aspects of your character.”  He considered that there was nothing to suggest that you were not able to learn from your offending and go on to improve yourself.   He considered that your rehabilitative prospects would be enhanced in the community by supervision for an extended period of psychological therapy addressing your depression, low self-esteem, and relationship difficulties.  He noted that you were very socially isolated in prison and not receiving many personal visits but, if imprisoned for a sustained period, you may well have the opportunity to complete a vocational program of some kind and leave prison better qualified than when you entered it.

57      There are a number of aspects of Mr Mackinnon’s report which I found unsatisfactory.  He was not aware of the County Court Practice Note and did not refer to the DSM-V or any other criteria in arriving at his diagnoses.  Nor had he administered any of the standard tests for risk of re-offending.   

58      Under cross-examination, Mr Mackinnon stated that he did not use the DSM “IV” (sic) but relied upon the International World Health Organisation’s criteria for his diagnosis, but did not elaborate.  He also over-stepped his professional boundaries by suggesting that you should be given a community-based disposition.  He conceded that, although your thinking is degraded, as was your sense of empathy, you are able to make some calm and rational decisions about your life.  He conceded that operating multiple Facebook accounts and stopping one conversation with a young girl and starting another, did not cause him to consider that you were not thinking.  He conceded that it was prolonged, predatory, manipulative behaviour by you, although you did not have any history of offending and had reported having successful age-appropriate relationships with women (about which he was sceptical).  He considered that there is no evidence of cognitive impairment or delusion and that you always knew that you were doing the wrong thing, although your thinking was a bit distorted.  He conceded that your offending was not casual and you had become consumed by what you were doing.  He thought that, because of your depression and drinking, you were engaging in things that you would not otherwise have done, but you understood the nature and gravity of what you were doing.  When I put to Mr Mackinnon that I found it difficult to accept your denial to him that you did not derive any sexual gratification from your offending, Mr Mackinnon stated that he agreed with that and that really your risk was unaddressed.

59      In a plea on your behalf by Mr Miller, it was urged that your early pleas of guilty were of significant weight and that you had expressed your remorse in both your record of interview and to Mr Ian Mackinnon.  It was submitted that, in the light of your lack of prior convictions and the evidence that this occurred in the context of loneliness, your prospects of rehabilitation should be reasonable

60      Given what I considered to be shortcomings in Mr Mackinnon’s assessment, the matter was adjourned in order for a psychiatric assessment from Forensicare to be obtained. 

61      At the adjourned plea hearing on 27 May 2019, a report from Dr Rajan Darjee, consultant forensic psychiatrist from Forensicare, dated 22 May 2019, was tendered as Exhibit “C”. 

62      Dr Darjee had also interviewed you by video link, only, and this was confined to one hour.  He too took a history that you put your offending down to low mood and excessive alcohol intake related to that.  Again, you denied any sexual attraction to children, claiming that you used to masturbate on-line to adult heterosexual pornography up to once per day.  You also maintained that you were not offering your victims money only for sexual purposes, but had been genuinely trying to help them.  You denied making threats to anyone, although you accepted that you put pressure on your victims and blackmailed them and had sexualised conversations with them.  You also stated that your breach of bail had occurred in the context of you contacting your third victim simply to wish her a happy birthday and denied that that this was any further attempt to engage with her sexually.

63      When Dr Darjee assessed you in May 2019, he found no evidence of symptoms of mental illness such as delusions or hallucinations.  Nor did he find any evidence of negative thinking typical of those seen in depression.  He stated that you did not meet the criteria for a depressive disorder when he saw you and, although you were isolated and lonely at the time of the offending and had been treated for depression as an adolescent, he did not consider that you had significant symptoms of depression at the time of offending.  Also, although you were drinking alcohol to excess, he did not consider that your pattern of drinking was indicative of alcohol dependence.  He also stated that there was no evidence that you have a disorder of sexual interest (also known as a paraphilic disorder), such as paedophilia.

64      Dr Darjee considered that you were meeting your sexual needs in order to bolster your self-esteem and assuage your loneliness through contact with the victims.  He stated that disinhibition by alcohol and sexual arousal appear to have played a role in the maintenance and escalation of your behaviour and you were targeting teenage girls who were more likely to be vulnerable to manipulation and pressure, but he thought there was no evidence of a specific sexual attraction to prepubescent or pubescent children.  He considered that your lack of self-awareness and need for ongoing closeness, not necessarily sexual in nature, may account for why you breached bail.  However, although you were isolated and drinking heavily, you were not suffering from a significant mental disorder at the time of the offences.

65      In applying the Risk for Sexual Violence Protocol (“RSVP”), he considered that, overall, you had a relatively low number of relevant risk factors for future sexual offending and no very concerning one.  As far as the Static-99 Actuarial Risk Assessment was concerned, he assessed you as a low to moderate risk and stated that, in general, you were less likely than the average man convicted of a sexual offence to commit a further offence and that this actuarial tool probably over-estimates the risk posed by on-line offenders.  Hence, he concluded that any future sexual offences seemed relatively unlikely but, if they did occur, they would likely be similar to the offences for which I have to sentence you and you would be more vulnerable to this if you were isolated and drinking heavily and spending a lot of time on‑line and feeling the need to contact females on-line.

66      Dr Darjee considered that you may need some treatment for anxiety and low mood of a relatively mild degree.  Relevant to the offending, he considered that you would need to address your issues of lack of self-awareness, poor coping, isolation and loneliness, difficulties establishing and maintaining intimate relationships, alcohol misuse and unhealthy use of the internet.  However, he concluded that you posed a relatively low risk of further sexual offending and did not require a long or intensive sex offender treatment program.  In the light of the fact that you do not have a mental condition, he did not consider that any particular type of sentence would be more burdensome for you.

67      I was not impressed by the depth of analysis of your reasons for offending by either Mr Mackinnon or Dr Darjee.  To assess an offender like yourself via a video link conference of approximately one hour seems to me to be inadequate, given your long term serious offending against multiple victims.  There is a conflict between Mr Mackinnon, who considered you had a depressive disorder and substance abuse disorder, and Dr Darjee, who thought you have neither.  Both seemed to think that low self-esteem and loneliness and alcohol abuse motivated your offending, but there are a host of people who suffer this constellation of issues yet they do not engage in this persistent deeply offensive conduct against adolescent girls aged in their early to mid-teens. 

68      It makes no sense to me that Mr Mackinnon should opine that you do not appear to have an ongoing entrenched disorder of sexual preference, such that he described the offending as being “out of character for you”, when your offending continued for over four years and all of your victims were in their early to mid-teens. 

69      Mr Mackinnon suggests that you will pose a significant risk of re-offending if you engage in similar internet or social media interaction, but probably have “the ability to restrain and eventually extinguish the morbid impulses and behaviour patterns”.  If social isolation, low mood and disinhibition through drinking were causative of your offending, I do not understand why Mr Mackinnon would not consider you at high risk of re-offending while those issues remain unaddressed, particularly as he opines that there may be an addictive aspect to your offending.

70      Dr Darjee’s report is worrying in that, as recently as May this year, you still maintained that you were genuinely trying to help your victims and did not make threats to harm anyone, although it is plain that you did, in fact, make such threats.  As previously stated, he considered that your shyness, social isolation, lack of intimate relationships, drinking and focus on on-line activity, were predisposing factors and that it seemed likely that you wished to meet your sexual needs by targeting teenage girls, who are more likely to be vulnerable to manipulation and pressure.  Given this opinion, it is not clear to me why Dr Darjee concluded that you pose a relatively low risk of further sexual offending and do not require a long or intensive sex offender treatment program, particularly as he stated that you denied any sexual attraction to children.[7] 

[7]Paragraph 14 of Exhibit “C”

71      Dr Darjee said there was no evidence of a specific sexual attraction to pre-pubescent or pubescent children, but did not define what he means by this.  In any event, the evidence is plain that you did target females in their early to mid-teens and Dr Darjee says that, if there were to be offending in the future, it would likely be of the same type and you would be more vulnerable to this occurring if you were isolated, drinking heavily, spending a lot of time on-line and feeling the need to connect with females on-line.  Given that there is no guarantee that, upon release from custody, you will not again feel isolated and take to drink and feel the need to contact females on-line, I do not understand why Dr Darjee considers future sexual offending by you to be relatively unlikely.

72      In the event that you did not commit these crimes for your sexual gratification (which I consider to be unlikely), the situation is not altered as to the serious harm presumed to be caused to your victims.  If your motivation was not sexual gratification, then your behaviour is still callous, cruel and carries high moral culpability.

73      Mr Miller submitted that it was most likely that you would be deported and your loneliness and social isolation would be alleviated because you would be reunited with your mother and other family members in Mauritius.   He said that that you hoped that you would work with your father doing driving and general jobs.  However, it needs to be borne in mind that you have been away from Mauritius for 10 years and, apart from phone contact with your mother, there is no evidence that you would have any significant social network there, particularly by the time you have completed the sentence I must impose.  I do not see your return to Mauritius as some sort of automatic panacea which will address the underlying causes of your offending if such causes are social isolation and personality factors which make the formation of intimate relationships difficult and possibly an addictive aspect to your personality which was described by Mr Mackinnon.  Indeed, even after you were placed on bail albeit in Immigration Detention, you breached a condition of your bail by contacting your third victim.  This was in circumstances where you were not drinking alcohol and were not spending a lot of time on the internet.  It is of concern that Mr Mackinnon stated that you appear “to have formed some sort of fantasised emotional attachment to one of the victims, which led (you) to re-offend in May 2018 ‘because she was homeless and needed money’.”I here interpolate that your explanation to the Court was that you wanted to wish her a happy birthday.  In my view this shows a lack of insight into your offending, even after you had been charged. 

74      After receiving the report of Dr Darjee, your counsel, Mr Miller, no longer relied upon the principles in Verdins[8] case, but urged the Court to accept, in accordance with the reports of Mr Mackinnon and Dr Darjee, that you pose a relatively low risk of further sexual offending.  I simply cannot agree that this is the case.  In the material before me, you deny that you were doing other than trying to help your victims and claim that your contact with them was not for sexual purposes.  In my assessment, you have very little insight into your offending.  It is plain that your communications with all your victims were of a sexual, depraved and predatory nature and, overall, such conduct continued for over four years.

[8]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269

75      I note that you are a person who comes before the Court with no prior convictions.  Whilst this is a factor in your favour, it was appropriately acknowledged by your counsel that prior good character carries less weight in cases involving this type of offending.  This is particularly so given that your offending for which I must sentence you was extensive, involving six victims over a period of several years.  In these circumstances your prior good character carries little weight.

76      In sentencing you, I accept that your pleas of guilty were early ones.  I also accept that they have significant utilitarian value.  No contested committal was heard and none of your victims was required to give evidence.  You have saved the cost of a trial and shown a willingness to facilitate the course of justice.  Thus, you are entitled to a meaningful discount upon the sentences which otherwise would have been imposed.

77      Mr Miller urged that the Court should find that your pleas of guilty are remorseful pleas.  In this regard, I note that in answer to Question 527 in your record of interview, you stated that you felt bad about the images but it was too late.  You also told Mr Mackinnon “I feel very bad because I shouldn’t have done this.  Now I'm in here … it’s illegal because they’re under 16 years old … I feel very bad and very sorry for them [the victims], for what I did.”[9]  In Dr Darjee’s report, he stated “He told me he now felt ashamed and remorseful, and that he would never get involved in anything like this again.  He told me it had caused a lot of stress for his family and that he would never use Facebook again.”[10]  Dr Darjee stated that he considered you expressed appropriate shame and guilt. 

[9]Page 5 of the Exhibit “1”

[10]Paragraph 17 of Exhibit “C”

78      These utterances may represent some remorse, but you minimised your offending in your history to Dr Darjee as recently as three months ago.  I have considerable reservations about the extent of any remorse.  Feeling shame and guilt and acknowledging that you have caused a lot of stress for your family does not necessarily constitute remorse.  Although difficult to define with precision, it is generally accepted that remorse signifies regret and contrition for wrongdoing and has been characterised as genuine penitence and a desire to atone.  It is a complex concept.  When it is alleged in a psychological or psychiatric report which is to be put in evidence at a plea hearing, I consider that little weight should be placed upon it.  This is particularly so when in those same reports there is denial of the full extent of your offending, denial of sexual gratification as a reason for your offending and indications that you have limited insight into your offending, which is said not to represent your real character.  You are 37 years old and cannot rely upon having a young, not fully formed brain, as is the case with many youthful male offenders where consequential thinking skills are not fully developed.  It is possible that you have some appreciation of your wrongdoing that, at times, seems like remorse, but in my view it is a long way from being a clear picture of true and unqualified contrition.

79      Finally, it was submitted on your behalf that you are likely to be deported.  There is no evidence that has been put before the Court as to your status although, as someone who had apparently long outstayed a student visa, this may well be a realistic expectation.  However, during the entirety of your offending you had no right to be in Australia and, should you be deported, you would be returned to your country of origin, which is not a hardship.  Nevertheless, I accept that the prospect that you may be deported may weigh upon you whilst you are in prison and that it would mean that you have lost any opportunity you may have had to settle in Australia.  Overall, I consider that this is of little significance as a sentencing factor. 

80      I do take into account that serving a term of imprisonment has been a lonely experience.  Your own brother has visited you only twice.  Apparently, he is well established in Australia with a good job and a marriage.  He has two young children and seems not to want to have much to do with you.  On the other hand, if someone comes to this country and commits serious criminal offences which result in a term of imprisonment, then, if that imprisonment is isolating because they have few connections in this country it really is a consequence that a person has brought upon himself.

81      I note that you spent from 9 November 2017 to 11 May 2018 in immigration detention. This is something which could have occurred regardless of your offending because you were residing illegally in Australia.  Nevertheless, I take into account in a general way that you have suffered deprivation of your liberty for this 6 month period, albeit that it cannot be formally reckoned as time served under the sentences which I intend to impose.

82      Mr Uppiah, you should be in no doubt as to the very grave nature of your offending.  You are before the Court on 29 indictable charges, all but two of which are rolled-up charges.  Of these rolled-up charges, many involve a host of individual criminal acts.  In sentencing for a rolled-up charge, although the penalty remains the same, the Court must take into account the overall seriousness of all those individual acts in determining an appropriate sentence. 

83      The maximum penalty for the offences to which you have pleaded guilty ranges from 3 to 15 years, indicating the seriousness with which Parliament regards these offences.  As I have said, your offending continued over a period in excess of four years and involves six different victims and a variety of offending conduct.  When you came into their lives, your victims were vulnerable adolescents, still coming to terms with their sexuality and trying to make sense of the world.  When you began to communicate with them, two were aged 13 years old, two were 14 years old and two were 15 years old.  Parliament’s enactment of the offences which you have committed recognises the need to protect children from the type of behaviour that you have committed.  To some extent, it also recognises a need to protect children from themselves.  This is because they do not have a level of psychosexual development of sufficient sophistication to understand what they may be getting themselves into when they start communicating with someone like you and submit to the pressure of requests of the type that you made. 

84      During the period of offending, there are times of weeks or months when you were offending against more than one victim.  There was a very significant difference between your victims aged between 13 and 17 years and your age of between 31 and 35 years.  You knew the age of your victims and you deliberately misrepresented yourself as being very considerably younger than you were.  There was a very significant difference in maturity between you and your victims and a great disparity in power.  Your victims were young teenagers who were still developing sexually and your behaviour was calculated, predatory and very persistent in relation to most of your victims.  You used coercive power to make them do what you wanted them to do.  You offered them money or phone credit in exchange for what you wanted and, in the case of your third victim, you actually supplied her with a phone.  If a victim showed signs of not complying with your request, you would threaten harm to her or her family or threaten to tell her mother or father or engage in abusive conduct by calling her derogatory terms like “slut” and “bitch”.  The language that you used towards them was insulting and your demands were of a depraved nature.  You gave detailed instructions about how your victims should humiliate themselves by exposing themselves naked and in very specific sexual poses, including directions about how to expose their genitalia or insert objects into their vagina.  Not only did you compel your victims to humiliate themselves, but also to take photographs or videos of themselves in sexually degrading poses to be sent to you.  If a victim blocked you from being a Facebook friend, you often made another friend request under a new name.  This happened on multiple occasions with some victims.  You also repeatedly sent text messages to some of your victims if they would not respond to you on Facebook, necessitating some of your victims changing their phone number.  You behaved like a menacing stalker and, in some cases, when your victim would not respond to you, you would contact one of your victim’s Facebook friends and send messages to your victim that way.

85      It is well established that your type of conduct is presumed to cause harm to children.  You seemed to be a constant presence in the lives of five of your six victims.  Often you would invade their homework time or night time sleep with abusive and perverted demands.  You eroded their sense of psychological wellbeing, even though you ultimately had no physical contact with them.  The law presumes that a child has suffered harm even where the sexual offending has occurred over the internet.  It is acknowledged that harm can arise from premature sexual activity.  As I have previously stated, the law is designed to protect children from their own immaturity, as well as to deter predatory perverted conduct like that in which you engaged.  It is clear that intimidation and coercion can occur just as easily over the internet as in person.  Indeed, the internet allows adult offenders to be deceptive about their identity and age and draw a child into sexual conduct that is inappropriate to her age because she simply lacks the maturity to comprehend it all and make appropriate judgments. 

86      Unhappily, the internet has made it very easy for adults to encroach upon and invade the lives of children.  For this reason, in sentencing for the offences which you have committed, the Court must strongly denounce your conduct.  Victims must be vindicated.  The court must let them know that what has happened is not their fault.  The law is there to protect them.  The wrongdoing is all yours. 

87      In sentencing, there must be very significant emphasis upon general deterrence.  The sorts of crimes which you have committed are increasingly prevalent and difficult to detect and a message must go out loudly and clearly to anyone who is minded to commit such offences that they will be appropriately punished.  In your case, due to the persistent nature of your offending, the number of victims and the period of time over which the offending took place, there is also significant need for emphasis upon specific deterrence.

88      Although only your third victim has provided a Victim Impact Statement, the statements to police by some of your victims contain poignant passages which reveal the intrusive and unpleasant nature of the impact your behaviour had upon them. 

89      Your first victim stated that she could go for a week without talking to you and then you would appear with another Facebook account and you would ask for her number.  She said she was afraid of you and scared that you would come up and hurt her family as you threatened.  After about a year, she said she just wanted you to leave, but you threatened that if she did not send pictures, then you were going to send the ones that you had to her parents and she would get into trouble.  She would then apologise.  She said she changed her telephone number a total of seven times over the period that she was talking to you.[11]

[11]VARE of first victim, Depositions pages 239-240, 254 and 258-259

90      Your second victim stated that she sent photos because she was really depressed and had tried suicide attempts, so she was at the point where she was just going to do “like whatever”.  She recalls sending a photo and then just bawling her eyes out for the rest of the night, not having any sleep.  She also stated that, when you asked what she would do if you came and kidnapped her, she became really scared and blocked you.  She said she was depressed on and off and had counselling at school.[12]

[12]VARE of second victim, Depositions page 44, 45, 52, 58 and 59

91      Your third victim stated that she was living at home but felt like an outsider and unloved.  She went along with what you wanted because she thought “there is actually someone out there that finds me pretty”.  However, you threatened to “come after her” and said the reason was “because I asked you for something and you deleted me.”  She said you threatened to tell her mother about the photographs she had sent.  She told you to leave her family out of it and you threatened to bash her mother.  In another message with another profile, you stated “I'm coming after you, I'll be out the front of your school with a group of people and we will bash you ourself.”  She stated that she changed her number when she deleted her Facebook account because you had that number.  After four months, she got a new Facebook account and thought “Maybe I'm actually free now, maybe he’s like left me alone.”  But, two weeks after that, you had a new SIM card and she received a message from you saying, “I told you I would find you.”  She stated that she then started to feel “really creeped out” and then you began sending insulting and racist messages to her boyfriend.  She said you used to talk about having sex and she felt “creeped out” and asked you to stop.[13]

[13]VARE of third victim, Depositions pages 160-164, 171-172, 176 and 198-199

92      In addition, your third victim made a Victim Impact Statement which was tendered as Exhibit “B”.  She stated that your conduct had caused her to become an emotional wreck.  She recalls the treats that you sent her and all the times that she was forced into doing things that she never wanted to do.  She says most days she has to act as though she is happy when she is emotionally drained.  Moreover, your offending has had a big impact on the relationship she has with her family.  One aunt has ceased having anything to do with her because she thought that your victim had given information out about her family.  A number of other aunts and uncles and cousins do not talk to her because they have heard about what happened and she is still trying to rebuild a relationship with her parents in order to regain their trust.  She says there are now not many people who trust her and she does not have much faith in herself.  She is rarely happy and is scared to go out to places.

93      Your fifth victim stated that she would be in the middle of studying or doing her homework and you would interrupt her and demand that she do a video and strip for you or go into a doggy position and put her butt up.  She also described the length of the videos that you would compel her to make, which could sometimes be an hour, and stated that she would sometimes make an excuse if she did not want to do something that you asked and she would cry and hang up.  She described you compelling her to remake sexual videos because they were not good enough.  She went on to state that she wanted to stop but could not do anything.  She did not want to go to the police because she thought she would be in trouble.[14]

[14]VARE of fifth victim, Depositions pages 282-3, 293, 307, 309-10

94      Your sixth victim, in her statement to police, stated that she changed her Facebook profile to a different name to start afresh to get you away.  She said she blocked all of the accounts that you used because she just did not want you to come back.  She said you came back two or three times after she thought you had gone and you just kept adding her as a friend using different names.  You would use a name that sounded a bit more common and she would think “I bet this is him” and that “creeped her out”.[15]  She also described how you asked to meet her at a particular place and, when she said no, you commented that she played basketball in that area and you suggested you could come and see her at the stadium.  She stated that that “creeped her out” because she actually did look out for you.[16]   

[15]Depositions pages 88-89

[16]VARE of sixth victim, Depositions pages 131-132

95 In sentencing for these offences, I must impose a sentence that is of a severity appropriate in all the circumstances of the case. In relation to the State offences, I have had regard to the governing principles in s5 of the Sentencing Act and, in relation to the Commonwealth offences, I have had regard to such of the matters in s16A(2) of the Crimes Act 1914 as are relevant and known to the Court.

96      It is clear that in sentencing for offences involving child pornography, that general deterrence is the paramount sentencing objective because of the need to protect children.  In your case, I have also referred to the need for specific deterrence because I am satisfied beyond reasonable doubt that you did commit this offending because you have an inappropriate sexual interest in girls aged from their early to mid-teens and, also, because I am satisfied beyond reasonable doubt that you have limited insight into your reasons for offending and the impact upon the victims themselves.  As I have already said, harm to your victims is presumed in these cases regardless of whether Victim Impact Statements have been filed.  There can be no doubt that, in all the circumstances, the only appropriate sentence is a sentence of imprisonment.  Given the objective gravity of the offending over four years, with multiple victims and the predatory, persistent, humiliating and cruel nature of your offending to vulnerable girls who were just developing their sense of sexual identity, the sentence imposed must be a significant one.

97      On Charge 29, possession of child pornography, I take into account the nature and content of material, in particular the age of children and the gravity of the sexual activity depicted and the number of images possessed.  I accept that there is no evidence that you possessed the material for the purpose of sale, although I note that the child pornography images which you possessed of your third and fifth victims had been used to threaten them with exposure if they did not supply you with more material.  Also, you used images of your third victim by transmitting them to her mother (Charge 28).  This occurred after your third victim, having turned 17 years of age, finally mustered the wherewithal to cease communicating with you.  The transmission of the pornographic photos to her mother, along with receipts for sums that you had paid into her bank account was a vengeful and very nasty act, particularly given that you knew from communications with her that she had issues with her family.   This act was calculated to hurt and humiliate her further and hurt and cause anxiety to her family.  I am mindful in sentencing on Charge 29, possession of child abuse material, that you should not be punished twice for those acts of transmission to yourself from your third and fifth victim.

98      Apart from the images of your third and fifth victims, Charge 29 comprised 139 images of unknown children.  I have viewed a sample of that material.  The images included young girls with their legs spread and close-ups of their vaginas, some with the labia of the vagina being drawn apart, close-ups of a young girl with her legs spread masturbating and another similar image where a young girl appears to have some form of elastic bondage around her upper body.  The images also included what appears to be a very young girl sucking a large erect penis whilst a male holds each side of her head with his hands and a close-up of the same young girl looking up whilst she has a penis in her mouth.  They are degrading and morally repugnant images. 

99      I acknowledge that 187 of the 198 images fell within the lowest category of classification of child pornography material.  However, the number of images and the category into which they fall is not the only sentencing consideration.  A number of the images viewed would appear to be towards the higher level of category 1. 

100     Apart from the transmission of images of your victims to which I have referred, the evidence suggests that you had the child pornography images for personal use.  However, it is relevant to note that they are real children in the images and that there are multiple different victims.  Someone somewhere had used those children for the depraved purpose of creating child pornography.  If it were not for people like you who accessed and possessed child pornography, then the makers of it would have no market for such vile, degrading images.  Hence, your conduct in possessing those images must be denounced.  It is plain that general deterrence is the paramount sentencing consideration because of the public interest in stifling the provision and use of child pornography.  Generally speaking, a sentence of immediate imprisonment is warranted for this offence, unless there are exceptional circumstances of which I find none in your case.

101 I propose to pass sentence in relation to the State offences prior to the Commonwealth offences. As I intend to impose a term of imprisonment for Charges 2 and 8, you are to be sentenced as a serious sexual offender pursuant to Part 2A of the Sentencing Act in relation to charges 11, 12, 13, 17, 18, 23, 24 and 29.  This means that, pursuant to s6D, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed on the latter charges.  In order to achieve that purpose, I may impose a sentence longer than is proportionate to the gravity of the offence considered in the light of its objective circumstances.  I note that the Crown does not seek that disproportionate sentences should be imposed and I do not consider that disproportionate sentences are necessary to achieve the protection of the community.

102     Section 6E states that sentences imposed on a serious offender must be served cumulatively unless otherwise directed.  I propose to direct otherwise as I consider that the principle of totality could not otherwise be given proper effect.  I acknowledge that in the case of Charges 11 and 12, Charges 17 and 18 and Charges 23 and 24, respectively, the offending conduct has only been split into two charges because of a legislative change relating to the description of the offence.  Accordingly, I intend to impose an aggregate sentence on each such pair of charges.

103     In sentencing for the Commonwealth offences, it is important to achieve consistency with sentences for like offending in other jurisdictions throughout Australia.  I have had regard to various cases by way of comparison in order to use such cases as a yardstick.  However, there are no identical cases and, ultimately, all cases must be determined in accordance with their own particular factual matrix. 

104     I regard the offences whereby you caused your victims to make pornographic images or videos of themselves as being particularly morally repugnant.  You were no mere receiver of pornography that was already in existence.  You were the one who caused it to come in existence by offering inducements and then used its existence as a threat to ensure that further pornographic images would be produced.  Charge 2, offending against your first victim, (50 images) and Charges 17 and 18, offending against your fifth victim, (a total of 50 images and videos) are serious examples of this rolled-up offending. 

105     On Charge 2, the offending against your first victim occurred over a period of approximately 2 years and 7 months.  The images you made her produce were sexually explicit and degrading.  She was only 13 years old and you lured her with credit for her phone.  After 1 year, she wanted to stop and you threated and insulted her and repeatedly used new Facebook identities when she blocked you.  The overall offending against her involves high moral culpability on your part.

106     Charge 4, the Commonwealth charge of engaging in sexual activity with a person under the age of 16 years is also a serious example of this type of offence.  It involved intensive demands for phone sex from your first victim approximately twice per week at night over the period of 1 year.  You gave specific depraved instructions as to how and where she should touch herself and moan while you stroked your penis.  She was a 13 or 14 year old school girl who should have been sleeping and you would become angry and overbearing when she would not cooperate.  Your counsel has submitted that this charge shares a common factual basis with Charge 2 in that, had you not procured your victim, it is unlikely that you would have been able to engage in phone sex with her.  That maybe so, but the offending on Charge 4 is of a different nature to that on Charge 2 and that factor should be recognised in sentencing for it.  It is grave offending because it is actually engaging in sexual activity with a child, albeit over the phone.

107     I have noted the seriousness of Charges 17 and 18 involving your fifth victim.  Your overall offending against your fifth victim involved a high level of intrusion into her life at times when she should have been doing homework or sleeping.  You made demands for pornographic videos of up to 1 hour in length.  You would insist that she re-do them to your satisfaction to the point where she would cry.  Your offending involved demanding and depraved instructions and gratuitous demeaning insults.  She could not even escape your demands when she went away to a school camp.  Even then, you coerced her into producing a video by making threats and were pressuring her to meet up with you personally to have sex (Charge 20).

108     Although the charges of causing your third victim to produce pornographic images (Charges 11 and 12) are not, on their face, as serious, as they do not involve the production of so many images,[17] the overall offending against your third victim is very serious.  It was spread over a period in excess of three years, from when she was aged 14 to 17 years.  You knew she was in a vulnerable situation with her family and you preyed on that vulnerability with both inducements and threats.  In particular, Charge 13 constituted serious protracted and menacing behaviour.  I have already commented upon the seriously vindictive nature of transmitting some seven images of your third victim to her mother (Charge 28).  You thereby compounded her humiliation and hurt and the rift in her family relations.  Although Charge 28 is not a rolled-up charge, being a single transmission, the damage that it caused to your victim is apparent from her Victim Impact Statement. 

[17]Counsel for the Crown mentioned 8 images during the plea hearing, although 21 images of your third victim were found by police on your mobile telephone.

109     Each of the Commonwealth charges of causing your victims to transmit pornographic images to you are inherently serious as reflected by the maximum penalty of 15 years’ imprisonment (Charges 1, 7, 10, 16 and 22).  That is so because, without such offending, the images would not have got onto the internet and been able to be used by you to threaten your victims.  This offending effectively meant that they had humiliated themselves in perpetuity enabling you to menace them with that humiliation.  The transmission back to your victims of the child pornography material is also serious offending, as reflected in the maximum penalty of 15 years’ imprisonment (Charges 6, 14, 21 and 28).  This was a crucial component of your threatening behaviour which induced your victims to produce more pornographic images in response to your demands. 

110     Totality is an important principle in this complex sentencing task.  Whilst it is important to acknowledge the fact of offending against separate victims and the discrete nature of particular offences, it is also important that the overall sentence appropriately reflect the totality of your offending, but not be a crushing sentence. 

111     It is true to say that this has been a complex sentencing exercise.  Following the conclusion of the plea hearing, I sought further submissions from the parties on the issues of cumulation and totality, which I have taken into account.  Where, in relation to a particular victim, there is a charge of procuring or causing the victim to make child pornography and charges of using a carriage service to cause that child pornography to be transmitted to yourself and also a charge of using a carriage service to transmit the child pornography back to your victim, I consider that those charges are inextricably entwined. Thus, notwithstanding their seriousness as reflected by the prescribed maximum penalty, I propose to assign a base sentence to the procuring charge and modest cumulation on the other 2 charges.  This is because, had the victim not been subjected to the humiliation of being procured or caused to make the child pornography, then neither of the transmission offences could have been committed.  Further, the transmission back to the victim of the child pornography was part of the offending conduct which served as a threat to ensure that the victim produced further pornographic images.  As inducements, threats and insults made to some of your victims are entwined with causing them to make child pornography, I am mindful of not punishing you twice for the same conduct where it may be the subject of a separate charge.

112     On the State sentences on the indictment, I sentence you as follows:

On Charge 2, procuring or causing a minor to be concerned in the making of child pornography (Victim one), you are convicted and sentenced to be imprisoned for a period of 36 months.

On Charge 8, procuring or causing a minor to be concerned in the making of child pornography (Victim two), you are convicted and sentenced to be imprisoned for a period of 14 months.

On Charge 11, procuring or causing a minor to be concerned in the making of child pornography (Victim three) and Charge 12, involving a child in the production of child abuse material (Victim three), you are convicted and sentenced to be imprisoned for an aggregate period of 30 months.

On Charge 13, extortion with threat to inflict injury (Victim three), you are convicted sentenced to be imprisoned for 15 months.

On Charge 17, procuring or causing a minor to be concerned in the making of child pornography (Victim five) and Charge 18 involving a child in the production of child abuse material (Victim five), you are convicted and sentenced to an aggregate period of 42 months’ imprisonment.

On Charge 23, procuring or causing a minor to be concerned in the making of child pornography (Victim six) and Charge 24, involving a child in the production of child abuse material (Victim six), you are convicted and sentenced to an aggregate term of 20 months’ imprisonment.

On Charge 29, possessing child abuse material, you are convicted and sentenced to be imprisoned for a period of 24 months.

On the Summary Charge 27, contravening a condition of bail, you are convicted and sentenced to be imprisoned for a period of 1 month.

113     The base sentence imposed on the State offences is that of 42 months’ imprisonment on the aggregate sentence of Charges 17 and 18.

114     I direct that the sentence imposed on Charge 2 (36 months), Charge 8 (14 months), the aggregate sentence imposed on Charges 11 and 12 (30 months), 3 months of the sentence imposed on Charge 13, the aggregate sentence imposed on Charges 23 and 24 (20 months), 3 months of the sentence imposed on Charge 29 and the sentence of 1 month imposed on Summary Charge 27, be served cumulatively upon the base sentence and upon each other.  The total effective State sentence imposed is thus a term of imprisonment of 149 months, or 12 years and 5 months.  I direct that you serve a period of 95 months, or 7 years and 11 months before becoming eligible for parole on the State sentence.

115     On the Commonwealth offences, I impose the following sentences:

On Charge 1, using a carriage service to cause child pornography material to be submitted to yourself (Victim one), you are convicted and sentenced to be imprisoned for a period of 36 months.

On Charge 3, using a carriage service to transmit indecent communications to a person under 16 years of age (Victim one), you are convicted and sentenced to be imprisoned for a period of 10 months.

On Charge 4, using a carriage service to engage in sexual activity with a person under 16 years of age (Victim one), you are convicted and sentenced to be imprisoned for a period of 36 months.

On Charge 5, using a carriage service to menace, harass or cause offence (Victim one), you are convicted and sentenced to be imprisoned for a period of 8 months.

On Charge 6, using a carriage service to transmit child pornography material (Victim one), you are convicted and sentenced to be imprisoned for a period of 24 months.

On Charge 7, using a carriage service to cause child pornography material to be transmitted to yourself (Victim two), you are convicted and sentenced to be imprisoned for a period of 14 months.

On Charge 9, using a carriage service to menace, harass or cause offence (Victim two), you are convicted and sentenced to be imprisoned for a period of 9 months.

On Charge 10, using a carriage service to cause child pornography material to be transmitted to yourself (Victim three), you are convicted and sentenced to be imprisoned for a period of 30 months.

On Charge 14, using a carriage service to transmit child pornography material (Victim three), you are convicted and sentenced to be imprisoned for a period of 20 months.

On Charge 15, using a carriage service to transmit indecent communications to a person under 16 years of age (Victim four), you are convicted and sentenced to be imprisoned for a period of 1 month.

On Charge 16, using a carriage service to cause child pornography material to be transmitted to yourself (Victim five), you are convicted and sentenced to be imprisoned for a period of 42 months.

On Charge 19, using a carriage service to menace, harass or cause offence (Victim five), you are convicted and sentenced to be imprisoned for a period of 12 months.

On Charge 20, using a carriage service to procure a person under the age of 16 years (Victim five), you are convicted and sentenced to be imprisoned for a period of 20 months.

On Charge 21, using a carriage service to transmit child pornography material (Victim five), you are convicted and sentenced to be imprisoned for a period of 28 months.

On Charge 22, using a carriage service to cause child pornography material to be transmitted to yourself (Victim six), you are convicted and sentenced to be imprisoned for a period of 20 months.

On Charge 25, using a carriage service to transmit indecent communications to a person under 16 years of age (Victim six), you are convicted and sentenced to be imprisoned for a period of 12 months.

On Charge 26, using a carriage service to menace, harass or cause offence (Victim six), you are convicted and sentenced to be imprisoned for a period of 15 months.

On Charge 27, using a carriage service to procure a person under the age of 16 years (Victim six), you are convicted and sentenced to be imprisoned for a period of 12 months.

On Charge 28, using a carriage service to transmit child pornography material (the mother of Victim three), you are convicted and sentenced to be imprisoned for a period of 8 months.

116     I direct that the sentence imposed on Charge 1 commence 33 months prior to the expiration of the State non-parole period (namely, on 22 October 2024). 

117     I direct that the sentence imposed on Charge 3 commence 8 months prior to the expiration of the sentence on Charge 1 (namely, on 22 February 2027). 

118     I direct that the sentence imposed on Charge 4 commence 28 months prior to the expiration of the sentence on Charge 3 (namely, on 22 August 2025). 

119     I direct that the sentence imposed on Charge 5 commence at the expiration of the State non-parole period (namely, on 22 July 2027).

120     I direct that the sentence imposed on Charge 6 commence 22 months prior to the expiration of the sentence on Charge 4 (namely, on 22 October 2026).

121     I direct that the sentence imposed on Charge 7 commence 12 months prior to the expiration of the sentence on Charge 6 (namely, on 22 October 2027).

122     I direct that the sentence imposed on Charge 9 commence 6 months prior to the expiration of the sentence on Charge 7 (namely, on 22 June 2028).

123     I direct that the sentence imposed on Charge 10 commence 27 months prior to the expiration of the sentence on Charge 9 (namely, on 22 December 2026).

124     I direct that the sentence imposed on Charge 14 commence 18 months prior to the expiration of the sentence on Charge 10 (namely, on 22 December 2027).

125     I direct that the sentence imposed on Charge 15 commence upon the expiration of the sentence on Charge 14 (namely, on 22 August 2029).

126     I direct that the sentence imposed on Charge 16 commence 38 months prior to the expiration of the sentence on Charge 15 (namely, on 22 July 2026).

127     I direct that the sentence imposed on Charge 19 commence upon the expiration of the State non-parole period (namely, on 22 July 2027).

128     I direct that the sentence imposed on Charge 20 commence 15 months prior to the expiration of the sentence on Charge 16 (namely, on 22 October 2028).

129     I direct that the sentence imposed on Charge 21 commence 25 months prior to the expiration of the sentence on Charge 20 (namely, on 22 May 2028).

130     I direct that the sentence imposed on Charge 22 commence 17 months prior to the expiration of the sentence on Charge 21 (namely, on 22 April 2029).

131     I direct that the sentence imposed on Charge 25 commence 11 months prior to the expiration of the sentence on Charge 22 (namely, on 22 January 2030).

132     I direct that the sentence imposed on Charge 26 commence 13 months prior to the expiration of the sentence on Charge 25 (namely, on 22 December 2029).

133     I direct that the sentence imposed on Charge 27 commence 10 months prior to the expiration of the sentence on Charge 26 (namely, on 22 May 2030).

134     I direct that the sentence imposed on Charge 28 commence 6 months prior to the expiration of the sentence on Charge 27 (namely, on 22 November 2030).

135     The total effective sentence imposed on the Commonwealth charges is 85 months (7 years and 1 month).

136     I direct that you serve a non-parole period on the Commonwealth sentences of 33 months (2 years and 9 months).

137     This has been a difficult sentencing exercise.  I have endeavoured to ensure that the gravity of the offending against each victim is vindicated as best can be achieved, whilst still being mindful of the principle of totality.  Ultimately, the sentence on the Commonwealth charges is subsumed under the State sentence.

138     The total effective sentence imposed this day is 149 months (12 years and 5 months’) imprisonment, with a non-parole period of 95 months (7 years and 11 months).

139     I declare a period of pre‑sentence detention of 468 days to be time reckoned as already served under the sentences imposed this day.

140 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed this day would have been 201 months’ (16 years and 6 months) imprisonment with a non-parole period of 151 months (12 years and 7 months)

141 Pursuant to s6F of the Sentencing Act, I cause to be entered in the records of the Court that you have been sentenced as a serious offender on the following State sentences:  Charges 11, 12, 13, 17, 18, 23, 24 and 29.

142     By reason of your offending, you attract the provisions of the Sex Offenders Registration Act 2004 pursuant to which you are a registrable offender with an obligation to comply with a reporting condition for the rest of your life.

143     My Associate will hand you documentation which sets out that obligation.

144     Would you please acknowledge receipt of it by signing your name?

State Offences
Charge	Offence	Maximum	Sentence	Cumulation
2	Procure or cause a minor to be concerned in the making of Child Pornography contrary to s 69(1) of the Crimes Act 1958 (Vic)	10 years	36 months	36 months
8	Procure or cause a minor to be concerned in the making of Child Pornography contrary to s 69(1) of the Crimes Act 1958 (Vic)	10 years	14 months	14 months
11	Procure or cause a minor to be concerned in the making of Child Pornography contrary to s 69(1) of the Crimes Act 1958 (Vic)	10 years	Aggregate 30 months	30 months
12	Involving a child in the production of child abuse material contrary to s 51B(1) of the Crimes Act 1958 (Vic)	10 years
13	Extortion with threat to inflict injury contrary to s 27 of the Crimes Act 1958 (Vic)	15 years	15 months	3 months
17	Procure or cause a minor to be concerned in the making of Child Pornography contrary to s 69(1) of the Crimes Act 1958 (Vic)	10 years	Aggregate 42 months	Base Sentence
18	Involving a child in the production of child abuse material contrary to s 51B(1) of the Crimes Act 1958 (Vic)	10 years
23	Procure or cause a minor to be concerned in the making of Child Pornography contrary to s 69(1) of the Crimes Act 1958 (Vic)	10 years	Aggregate 20 months	20 months
24	Involving a child in the production of child abuse material contrary to s 51B(1) of the Crimes Act 1958 (Vic)	10 years
29	Possess child abuse material contrary to s 51G of the Crimes Act 1958 (Vic)	10 years	24 months	3 months
Summary Charge 27	Contravene Conduct Condition of Bail contrary to s 30A of the Bail Act 1977 (Vic)	3 months	1 month	1 month

Commonwealth Offences
Charge	Offence	Maximum	Sentence	Commencement	Effective Cumulation
1	Cause child pornography material to be transmitted to himself using a carriage contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	36 months	Commences 33 months prior to the expiration of the State non-parole period (22 October 2024)	3 months
3	Use carriage service to transmit indecent communications to a person under 16 years of age contrary to s 424.27A(1) of the Criminal Code (Cth)	7 years	10 months	Commences 8 months prior to the expiration of the sentence on Charge 1 (22 February 2027)	2 months
4	Use carriage service to engage in sexual activity with a person under 16 years of age contrary to s 424.25A(1) of the Criminal Code (Cth)	15 years	36 months	Commences 28 months prior to the expiration of the sentence on Charge 3 (22 August 2025)	12 months
5	Use carriage service to menace, harass or cause offence contrary to s 474.19(1) of the Criminal Code (Cth)	3 years	8 months	Commences at the expiration of the State non-parole period (22 July 2027)	Nil
6	Use carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	24 months	Commences 22 months prior to the expiration of the sentence imposed on Charge 4. (22 October 2026)	2 months
7	Cause child pornography material to be transmitted to himself using a carriage contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	14 months	Commences 12 months prior to the expiration of the sentence imposed on Charge 6 (22 October 2027)	2 months
9	Use carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code (Cth)	3 years	9 months	Commences 6 months prior to the expiration of the sentence imposed on Charge 7 (22 June 2028)	3 months
10	Cause child pornography material to be transmitted to himself using a carriage contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	30 months	Commences 27 months prior to the expiration of the sentence imposed on Charge 9 (22 December 2026)	3 months
14	Use carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	20 months	Commences 18 months prior to the expiration of the sentence imposed on Charge 10 (22 December 2027)	2 months
15	Use carriage service to transmit indecent communications to a person under 16 years of age contrary to s 424.27A(1) of the Criminal Code (Cth)	7 years	1 month	Commences upon the expiration of the sentence on Charge 14 (22 August 2029)	1 month
16	Cause child pornography material to be transmitted to himself using a carriage contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	42 months	Commences 38 months prior the expiration of the sentence on Charge 15 (22 July 2026)	4 months
19	Use carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code (Cth)	3 years	12 months	Commences upon the expiration of the state non-parole period (22 July 2027)	Nil
20	Use carriage service to procure a person under the age of 16 years contrary to s 474.26(1) of the Criminal Code (Cth)	15 years	20 months	Commences 15 months prior to the expiration of sentence imposed on Charge 16 (22 October 2028)	5 months
21	Use carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	28 months	Commences 25 months prior to the expiration of sentence imposed on Charge 20 (22 May 2028)	3 months
22	Cause child pornography material to be transmitted to himself using a carriage contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	20 months	Commences 17 months prior to the expiration of the sentence imposed in Charge 21 (22 April 2029)	3 months
25	Use carriage service to transmit indecent communications to a person under 16 years of age contrary to s 424.27A(1) of the Criminal Code (Cth)	7 years	12 months	Commences 11 months prior the expiration of the sentence imposed on Charge 22 (22 January 2030)	1 month
26	Use carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code (Cth)	3 years	15 months	Commences 13 months prior to the expiration of the sentence imposed on Charge 25 (22 December 2029)	2 months
27	Use carriage service to procure a person under the age of 16 years contrary to s 474.26(1) of the Criminal Code (Cth)	15 years	12 months	Commences 10 months prior to the expiration of the sentence imposed on Charge 26 (22 May 2030)	2 months
28	Use carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth)	15 years	8 months	Commences 6 months prior to the expiration of the sentence on Charge 27 (22 November 2030)	2 months
Total Effective Sentence (State)		149 months (12 years 5 months)
Non-Parole Period (State)		95 months (7 years 11 months)
Total Effective Sentence (Cth)		85 months (7 years and 1 month)
Non-Parole Period (Cth)		33 months (2 years 9 months)
Total Effective Sentence (Global):		149 months (12 years and 5 months)
Non-Parole Period (Global):		95 months (7 years and 11 months)
Pre-sentence detention declared:		468 days
6AAA Statement: 201 months (16 years and 9 months) with a non-parole period of 151 months (12 years 7 months)
Other Relevant Orders: Pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic), the length of the reporting period is life. On State Charges 11, 12, 13, 17, 18, 23, 24 and 29, the offender is sentences as a Serious Sexual Offender pursuant to s 6F of the Sentencing Act 1991 (Vic)