R v Whaley

[2020] NSWDC 517

District Court

New South Wales

Medium Neutral Citation:

R v Whaley [2020] NSWDC 517

Hearing dates:

27/4/20, 12/5/20

Date of orders:

12/5/20

Decision date:

12 May 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Sentenced to a total effective term of imprisonment of 9 years 4 months with a NPP of 6 years 4 months.

Catchwords:

Crime – Sentence – Commonwealth and State offences - Possess child abuse material – Produce child abuse material – Use carriage service to solicit child pornography – Use carriage service to engage in sexual activity with a person under the age of 16

Legislation Cited:

Cth Crimes Act, 1914

Cth Criminal Code, 1995

NSW Crimes Act, 1900

NSW Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Pearcev R (1998) 194 CLR 610

R v Booth [2009] NSWCCA 89

RvHutchinson [2018] NSWCCA 152

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Kurtis Whaley - Offender

Representation:

Counsel:
Ms S Callan for the Crown
Mr D McMahon for the Offender

File Number(s):

19/57612

Publication restriction:

Non publication order regarding the names of the victims or any other detail which might identify them.

sentence

1. Mr Kurtis Whaley is before the Court for sentence today in relation to 54 offences, as follows. One offence of possessing child abuse material, that being an offence under the NSW Crimes Act 1900, which carries a maximum penalty of 10 years. Also, an offence under the NSW Crimes Act 1900, of produce child abuse material, also carrying a maximum penalty of 10 years. Twenty‑nine offences of using a carriage service to solicit child pornography, those being offences under the Cth Criminal Code 1995, carrying a maximum penalty of 15 years. Five offences of using a carriage service to transmit child pornography, again, an offence carrying 15 years under the Cth Criminal Code, and 18 offences of using a carriage service to engage in sexual activity with a person under the age of 16, also an offence under the Cth Criminal Code, carrying a maximum of 15 years’ imprisonment.

2. The offender pleaded guilty to all of the offences at the earliest opportunity and it is accepted by the Crown, that he is entitled to a 25% discount on the sentences for the New South Wales offences, in accordance with authority, by reason of the utilitarian value involved in avoiding a contested trial, and avoiding the need for witnesses to give evidence. Although there is no standard discount to be applied for the Commonwealth offences, I intend to apply the same discount, on account of utilitarian value in relation to those matters.

Factual overview

3. The details of the offences are set out in an agreed statement of facts which is 58 pages in length. Given its length, I do not intend to set out the facts in full in these reasons, but in summary form. The facts are as follows.

4. Over a period of about four years, seven months, the offender used the internet to target male children and teenagers, between the ages of about 8 and 15 years. He made contact with his victims through various social media and online chat programs, including Instagram, SnapChat, Skype, and Omegle. After making contact with the children, the offender would either solicit sexually explicit images or videos of them, or engage them in real time video conversations, in which he would persuade and direct the children to engage in sexual activity. The offender would record these interactions without the knowledge of the victims, keep the recordings, and store them on external hard drive devices. He also used these storage devices to keep other child abuse material which he had not directly produced himself.

5. The offending came to light after information was given to the Australian Federal Police by the father of a 13 year old boy who was one of the offender’s victims. In early February 2019, the father advised police that his son was being blackmailed by an Instagram user into sending sexually explicit images and videos of himself over the internet. The father provided police with a copy of the Instagram communications, as a result of which police detected a link to the offender via his Internet Protocol address.

6. The offender was overseas at that time, but when he arrived at Sydney Airport on 20 February 2019, he was subjected to a baggage examination which resulted in the seizure of an iPhone, an iPad and a laptop computer. A preliminary examination of the iPad and laptop identified child abuse material, and so the offender was arrested. He has been in custody since that time.

7. After arresting the offender, police searched his house and seized three digital storage devices. Police analysed the devices and found child abuse material on five of them. Many of these were digital files, containing recordings of the offender interacting with male children via social media, and mostly involved sexually explicit videos and photos of the children, but also captured parts of conversations between the offender and the victims.

Possess child abuse material – NSW Crimes Act s.91H(2)

8. I turn first to the offence of “possess child abuse material”. After analysing the offender’s devices, police found 250 files of child abuse material which appear to have been produced by others but which were in the offender’s possession. Many of the videos had titles which gave some description of their content. For example, “boy‑boy 13 year old after soccer”, “child four boy”, “two blonde 13 year old boys - Edo”, “man fucks boy”, “two 12 year old boys suck another”, “boy 13 year old ties‑up and tortures 11 year old in bathroom”. The estimated ages of the children in these videos was in the range of 4 to 15 years.

9. Those 250 files were classified by police, using the Child Exploitation Tracking System or “CETS” system, which describes six different categories of child abuse material. The material fell into the following categories: 51 files within category 1, being sexually suggestive posing; 90 files falling within category 2, being non‑penetrative sexual activity between children or solo masturbation; 14 files within category 3, involving non‑penetrative sexual activity between an adult and a child; 94 files within category 4, involving penetrative sexual activity between an adult and a child; and 1 file within category 5, involving sadism or humiliation involving children.

Produce child abuse material – NSW Crimes Act s.91H(2)

10. Turning to the facts of the “produce child abuse material” offence, that being the second State offence. This involved 700 files which were located on the offender’s devices and which were classified as child abuse material. Of the 700 files, 33 involved still images, while the remaining 667 were videos. Of the 700 files, 448 were classified as CETS category 1. That is, sexually suggestive posing with no sexual activity, and 252 were classified as category 2, being non‑penetrative sexual activity between children, or solo masturbation by a child. All of the files depicted pubescent or pre‑pubescent boys, aged between 8 and 15 years.

Solicit / Transmit child pornography material – Cth Criminal Code, s.474.19(1)

11. I turn next to the offences under the Cth Criminal Code, of solicit, and of transmitting child pornography material. There are 29 offences of solicit and 5 of transmission. These 34 offences arise from the offender’s interactions with 29 children. They primarily occurred on social media, such as Instagram and SnapChat, although at times, the offender used Skype and Facebook. The offences were committed over a period of about two years, at a time when the offender was between about 20 to 23 years of age. Although there was some variation, the offender’s methodology generally involved creating false social media accounts on which he posed as a teenage girl. The offender would then make initial contact with a victim, mostly using Instagram. He would then seek out other young male victims by searching the “friend’s list” of existing victims. He would also target young males engaged in elite sporting activities, again using social media to identify them.

12. Frequently, he used a female identity by the name of, “Beth”, and claimed to be a 16 year old girl from Perth. Images found on the offender’s computer included photographs from the social media pages of a real teenage girl of that name who lived in the United Kingdom. Once the offender, pretending to be “Beth”, had made contact with a victim, he would send the victim a photo which purported to be of “Beth”, wearing underwear or partly naked, or an image of a young female’s breast or genital area. He would then ask his victim to supply in return a sexually explicit photo of themselves, and he often also asked the victim to send a video or photo which included the victim’s face. If the victim responded with such material, the offender would use a screen recording program to make a recording of the material, without the victim’s knowledge. He would then save the recording on his laptop or phone, and later move the material onto storage devices, using a naming protocol which identified each victim by their initials. The recordings kept on the storage devices were saved under falsely named folders, in an attempt to disguise them.

13. If a victim stopped sending sexually explicit material, the offender would use these saved images or videos, as leverage to demand that the victim continue to send more. He would threaten to send copies of the compromising images or video to the victim’s friends or family. His demands were persistent and would escalate, with the offender, in some cases, sending to the victim a screenshot of their “friend’s list”, as proof that the offender had access to the victim’s friends.

14. The offender would also purport to make deals with his victims, stating that he would delete their images, provided they complied with his demands. As part of these deals, the offender sometimes specified the number of photos or videos he required, and would also specify the sexual activities to be engaged in. For example, requiring the victim to masturbate to ejaculation, to expose his anus and to put saliva on it, to penetrate his anus with a finger, to flex muscles, and to show the abdominal region covered in water or, in some cases, semen.

15. In some instances, the offender would also demand that the victim act in a particular way, such as by moaning or using dirty talk. He would also on occasions set time limits, demanding that a victim produce the wanted material within a short timeframe, and if a victim complied with his demands and provided the material, he would, in some cases, use this as leverage to make further demands. If a victim ceased communication with the offender’s account, he would often use another account to continue his harassment of the victim. On eight occasions, the offender followed through on threats to distribute images or videos, and sent material to friends or family members of the victim. On six occasions, he transmitted such material to other children under the age of 16.

16. I will hereafter refer to each of the child victims by numbers, for reasons of anonymity.

17. The offence in sequence 2, of soliciting child pornography material, involved “child number 1”. He was aged 13, and was engaged by the offender, pretending to be 16 year old, “Beth”, using Instagram, between about 21 and 31 January 2019. During that period, the victim was persuaded or forced to send to the offender a total of 33 videos, amounting to child pornography, 17 of which were categorised as category 1, and 16 as category 2. The videos showed the pubescent victim displaying his torso, penis, buttocks and anus, as well as masturbating, ejaculating, penetrating his anus with fingers and dribbling saliva on his penis and rubbing it in his anus. The screenshots of the offender’s interaction with this child demonstrate how cruel and relentless his actions were. It demonstrates that regardless of the fact that the child victim provided the offender with multiple images and videos, the offender continued to manipulate and demand that the victim produce more, under threat that if he did not do so, his images would be shared with others. The dialogue shows the offender using the child as his sexual plaything, and continuing to threaten that if he argued or did not comply, then the offender would share the material. This continued even when the child and his mother were involved in a car accident, when the child pleaded for more time, to provide the demanded material. It also continued over the following days when the child begged the offender not to share material, only to be told that he had 10 minutes to comply with the offender’s demands.

18. The offence in sequence 36 is an offence of transmitting child pornography which occurred on 31 January 2019, when the offender contacted “child 2”, who was a 15 year old female friend of “child 1”, to whom I have just referred, and who followed him on his Instagram account. The offender asked child 2 if she knew child 1, and then sent her images which depicted child 1 with his penis exposed.

19. The sequence 7 offence is another soliciting offence and involved “child 3”, a pubescent male aged 14. This offence occurred between about 1 and 28 February 2018. Over that period, the offender solicited and received via Instagram, four items amounting to child pornography, being three videos and one still image, falling within category 1, depicting the victim’s upper legs, stomach area and erect penis. This offence commenced in the usual way, with the offender pretending to be a 16 year old girl, sending images to the victim, and requesting that he send something back, depicting his penis. After some reluctance, the victim did send a picture of his penis, and after refusing to provide more images, stopped engaging with the offender, which resulted in the offender threatening that unless he provided another photo within 5 minutes, the photograph of his penis would be sent to his parents and sister. In support of this threat, the offender sent the victim a screenshot of the Instagram accounts of his mother, father, sister and cousin. When the child victim replied, “please don’t”, the offender responded, “well please send another one”, and eventually began a countdown as a form of threat to the victim who, sensibly, ceased communication, and told his parents what was happening.

20. The sequence 35 offence is one of transmitting child pornography which occurred that same night when the offender, following through with his threat, sent an image of the penis of “child 3” to the child’s mother and 9 year old sister.

21. Sequence 8 is another solicit offence and involved “child 13”, a 15 year old pubescent boy from whom the offender solicited over about two weeks in October 2017, 66 items amounting to child pornography, namely, 28 videos within category 1 and 38 videos within category 2. These depicted the victim variously showing his penis, buttocks and anus, and depicting masturbation, ejaculation and anal digital penetration. When the victim expressed reluctance to comply immediately with the demands, the offender made threats such as:

“I just told you tonight, I said you don’t want me to share that is? Stop delaying like I said at the start. Will only make things worse.”

22. The sequence 37 offence is another offence of transmitting child pornography material. This arose from circumstances whereby the father of “child 13”, who was monitoring his son’s online activity, discovered in late 2017 that his son had sent sexually explicit videos by Instagram and that he had been coerced into doing so. The father began communicating with the offender over the internet, to which the offender replied:

“I’ve been sharing your videos and photos, and I’ll keep sharing them if you don’t send more.”

23. The father replied to the offender, saying - “Fuck off, don’t contact this account again. I have notified police”, and blocked the account. He also reported the matter to Instagram, and spoke with his son who became very distressed. Several months later, the offender, purporting to be “Beth”, contacted the victim again, threatening:

“I’ve been sharing your pics and will keep doing so until you send more, up to you.”

And,

“If you don’t send more, I’ll send the videos to your sister.”

24. When the father, using his child’s account, replied, “Fuck off you pedo, I’ve notified the police”, the offender taunted him with:

“Ha, ha, you think I haven’t heard that before. Do you think everybody doesn’t say that. That’s what you said last time.”

25. Immediately after this conversation, the offender transmitted sexually explicit videos of child 13 to the victim’s sister’s Instagram account, this being the transmission of child pornography on which this offence is based.

26. Sequence 9 is another solicit offence, committed between 1 January and about 31 July 2018, which involved a 13 year old pubescent male, known as “child 15”, from whom the offender solicited 35 videos, 19 of which were child pornography, with 2 of them being categorised as category 1 and the other 17, as category 2. This material showed the victim’s face, torso, erect penis, and anus, as well as acts of masturbation, dribbling saliva onto his penis, and digital penetration of his anus. The offender’s communications with the victim included threats to share the sexually explicit material with his friends unless he continued to co‑operate.

27. The sequence 10 offence involved the soliciting from a pubescent 15 year old boy of 24 items of child pornography material, comprising 23 category 1 images and 1 category 2 video. The offending was committed, according to the saved dates of the files, over a period of about one month from November to December 2016. The still images involved pictures of the victim’s erect penis, naked buttocks, and one image of an erect penis visible through underwear. The video showed the victim displaying his torso, penis, buttocks and anus, as well as masturbating and ejaculating.

28. Sequence 11 is a soliciting offence, involving a pre‑pubescent child, known as “child 5”, who was aged between about 8 and 12, and who has not been identified by police. This offence, which occurred between about April and August 2017, involved 47 video files, 33 of which were child pornography, 27 being category 1, and 6 being in category 2. They variously depicted the victim displaying his face, erect penis, torso, underwear, buttocks and anus, as well as masturbation.

29. Sequence 12 is another soliciting offence, involving an unidentified victim, known as “child 6” who was a pubescent male, aged between about 12 and 15, from whom the offender solicited video files between about April and September 2017. As a general description, the videos depicted the victim with an erect penis engaging in masturbation. Twenty‑two of the videos were categorised as child pornography, 7 of them falling within category 1, and 15 within category 2. In one of the communications, a Skype call on 14 September 2017, the offender directed the victim to perform very specific sexual acts involving masturbation, to adopt very explicit physical positions, to spit on his penis and anus, and to moan and display various parts of his body. The communications included demands for the victim to cause himself to ejaculate and to, “hurry up”, and a threat that if he did not comply, the offender would start sharing his images with others.

30. Sequence 13 is another solicit child pornography offence and involved a pre‑pubescent boy, aged between about 10 and 13 years, known as “child 7”, who has not been identified by police. The offending in this case involved 36 child pornography videos, of which 26 were category 1, and 10 were category 2, solicited by the offender over a three‑month period from May to August 2017. The videos included a boy displaying his torso, erect penis, buttocks and anus, and masturbation.

31. Sequence 14 is another offence of soliciting child pornography material and involved “child 8”, a pubescent male aged 14, from whom the offender obtained numerous videos, 37 of which were in category 1, and 13 in category 2. The videos, which span a period of about two and a half months, from July to October 2017, included the victim’s torso, erect penis, buttocks and anus, as well as masturbation and penetration of his anus digitally. This offence also included a demand by the offender for more material, and a threat to send explicit videos to family and friends.

25. Sequence 15 is another solicit offence, and involved “child 23”, a 13 year old pubescent male, over a period of about six days in April 2018. Police found on the offender’s hard drive, 10 video files consisting of screen captures taken from an Instagram account, 2 of which were child pornography category 1. These involved the victim displaying his torso, erect penis and anus. This offence involved the use of a similar method by the offender, giving the fictitious identity of “Beth”, and commencing with requests for the victim to provide photographs of his face, progressing to requests for naked photographs in exchange for photographs which purported to be naked photographs of, “Beth”. After the victim supplied the requested material, he was asked to supply more, and when he declined, the offender threatened to send images to his friends. To back up this threat, the offender sent a screenshot of the victim’s Facebook account to him, as a demonstration, and also began to give him a countdown, demanding that he send photographs within 1 minute or his compromising images would be shared. After the victim became scared, he told his brother and parents who reported the matter to police. A screenshot of some of the interactions was taken by the victim’s mother, which recorded the offender making explicit threats in terms such as - “You have until tonight to show or I’ll share your pics”, and - “Running out of time”, and, “Start sending now or I’ll go and share...Alright, I’m gonna start sharing then, have fun explaining”. The offender then used Instagram to contact a friend of the victim, and, after confirming that the friend knew the victim, he sent an image of the victim to the friend. This caused the friend to say, “That’s illegal… It’s blackmail and you are spreading child pornography”, to which the offender replied that the friend should tell the victim to unblock him or else more material would be sent. The offender even boasted:

“Mate, I’ve been doing this long enough, ha, ha. What can the police do? Honestly. If they could do something, then there wouldn’t be crimes like this. But there is. And that’s because police don’t have tools or power to catch people like me.”

33. Sequence 16 is another solicit offence in which the victim, known as “child 10”, was a pubescent male estimated to be around 12 to 15 years, who has not been identified by police. Police found 50 video files on the offender’s devices, which had been created over about 3 months between August and November 2017. Forty three of these videos involved child abuse material, 24 of them being category 1 and 19 being category 2. They included the victim displaying his face, erect penis, torso, buttocks and also showed him masturbating, ejaculating, and penetrating his anus using a finger. Again, the captured material included dialogue whereby the offender directed the victim as to the specific acts he was required to perform.

34. Sequence 17 is another solicit offence, this one involving a pre‑pubescent boy known as “child 11”, aged between about 8 and 12 years, who has not been identified. Police found 51 videos involving this victim, 19 of which were category 1 child pornography, and 15 of which were category 2. They involved the display of the victim’s torso, erect penis, buttocks and anus, as well as masturbation. The offence occurred over a period of about three weeks from August to September 2017.

35. Sequence 18 is another solicit offence and involved a boy, known as “child 12”, who described himself as 13 years’ old, but who has not been identified, from whom the offender solicited child pornography material around December 2017. Police identified 36 video files, 26 being category 1 and 10 being category 2 child pornography, showing the pre‑pubescent victim displaying his torso, erect penis, buttocks and anus, and masturbating. This offence again involved the offender’s usual or common method, pretending to be the 16 year old, “Beth”, and obtaining material from the victim in exchange for promises that “Beth” would reciprocate.

36. Sequence 19, is another offence of soliciting and involved a pre‑pubescent boy aged between about 10 and 12 years, known as “child 14”, who has not been identified. This offence, which spanned a period of approximately 7 months between December 2017 and July 2018, involved 12 category 1 child pornography videos, displaying the victim’s torso, erect penis, buttocks and anus, as well as masturbation.

37. The offence in sequence 20 involved the soliciting of child pornography material from a pre‑pubescent boy of approximately 8 to 12 years of age, who has not been identified, but who is referred to as “child 16”. In this case, 15 category 1 child pornography videos of this victim were found in the offender’s library, which included the victim’s face, erect penis, torso and anus, which had been created some time before 16 March 2018. The offence involved promises by the offender to delete the material and not record further material which were made, it seems, only so as to convince the victim to continue to comply with the offender’s demands for videos depicting specific sexual acts, such as masturbating and spitting on his penis.

38. Sequence 21 is a solicit offence, involving a pre‑pubescent child, aged between about eight and 12, known as “child 17”, who has not been identified. In this case, 7 video files involving screen captures from an Instagram account had been saved to one of the offender’s hard drives on 16 March 2018, 3 of which involved category 1 child pornography material, involving the victim displaying his torso, erect penis, buttocks, anus and masturbating. The screen shots again show the offender giving specific directions to the victim as to the sexual acts he should perform.

39. Sequence 22 is a solicit offence involving a pre‑pubescent boy aged between 13 and 14, known as “child 18”. Police found 11 video files which had been saved by the offender over a period of about 3 months from March to June 2018, 5 of which amounted to category 1 child pornography. Those videos involved the victim displaying his torso, erect penis, buttocks and anus, and masturbating. Again, these videos were obtained by the offender, pretending to be a 16 year old girl from Perth. Again, after the victim declined to send images of his penis, and blocked the offender’s Instagram account, the offender, using a different account, contacted the victim and threatened to send photographs to his friends and family if he did not send more photos. When the victim asked - “Why are you doing this?”, the offender replied - “Because I can”.

40. Sequence 23 involved a pubescent 13 year old boy, known as “child 19”, from whom the offender solicited material over an approximate 4 month period from March to July 2018. Police found numerous video files among the offender’s collection, 47 of which were child pornography, 36 being category 1, and 11 being category 2. Like most of the other victims, these involved the victim displaying his torso, buttocks, anus, erect penis, and posing while masturbating. The offence, like many others, involved the offender issuing specific instructions as to what the victim was to provide, including telling him to, “Spread his cheeks” and to “Make it sexy”, or to talk dirty. Evidence obtained by police included material indicating that the victim had become distressed and was visibly crying when being pursued by the offender, who issued a threat to start sharing the material with others if his demands were not met. When the victim stopped sending photographs, and blocked the offender’s account, the offender used different accounts and contacted the victim again over a number of days, and continued his blackmailing threats to distribute images to family and friends. At one stage, during the course of this offence, the offender said he was actually an 18 year old male, and offered to show his penis to the victim.

41. The offence in sequence 24, being another solicit child pornography offence, involved a pubescent 14 year old boy, known as “child 20”. Police found 26 videos, 17 being in category 1, and nine in category 2, showing the victim displaying his erect penis, anus, and testicles, and engaging in masturbation and digital penetration. Each of these videos had been saved by the offender to his hard drive on 18 March 2018. This offence involved a similar pattern of the offender giving instructions as to what he wanted the victim to do. When interviewed by police, this child victim told a similar story to many others, namely, that he had been communicating, he thought, with a 16 year old female.

42. Sequence 25 is another solicit offence and involved a pubescent boy aged between about 12 and 15, who has not been identified but is known as “child 21”. Police found 14 video files, 9 of which were category 1 child pornography, and a further video, being within category 2, compromising footage and still images of the victim’s erect penis, torso, buttocks, lips and tongue. These videos span a date range of about 11 months from March 2018 to February 2019. Again, they involved the offender giving instructions to the victim as to what he wished to observe and promising to reciprocate.

43. Sequence 26 involves soliciting of child pornography material relating to a pre‑pubescent boy aged 13 known as “child 22”, who did not wish to be interviewed by police. Police found 56 videos, showing the victim’s face, torso, erect penis, anus and testicles, and depicting masturbation and digital penetration. The videos were all saved by the offender on 23 March 2018. Again, this material shows the offender giving specific instructions for the sexual acts he wanted, and again demonstrate a practice of pursuing the victim, despite the victim’s protests, and requests and begging for the offender to delete the material.

44. Sequence 27, is another offence of soliciting and involved a pubescent boy, estimated to have been between about 12 and 15 years of age, known as “child 25”, from whom the offender solicited 23 child pornography videos. Twenty one of these were category 1, and 2 of them were category 2, and depicted the victim naked, and in underwear, and displaying his buttocks, anus and erect penis. Those videos had been saved by the offender onto a device on 6 April 2018, and again involved communications in which the offender cajoled the victim into providing images, including has face, in return for promises of explicit photographs from the offender, acting as a young female.

45. Sequence 28 is a further solicit offence, involving a pre‑pubescent male, aged between about 8 and 12, who has not been identified but is known as “child 26”. This offence involved the soliciting of a number of videos, 4 of which amounted to category 1 child pornography, showing the victim with bare torso and an erect penis. It is an agreed fact that this material was obtained over a period of about 4 days in April 2018.

46. Sequence 29 involves another soliciting offence, concerning a pubescent male aged about 13, known as “child 27”, from whom the offender solicited five videos, amounting to category 1 child pornography, depicting the victim with an erect penis. This material had been saved by the offender over a period of about 9 days in April 2018. In one of the files, dated 14 April 2018, the offender, after referring to the pictures he had already been sent, said:

“So unless you start sending some more, I’m going to share them with all your friends, followers and family. Do what I say tonight and after that, I’ll leave you alone. If not, I will share all of them.”

47. The next offence, which is the subject of sequence 38, is an offence of transmitting child pornography, on or about 14 April 2018. This offence involved the offender’s interaction with a friend of “child 27”, to whom I have just referred. Found on the offender’s laptop, was an image showing the face, bare torso and part of the penis of child 27, which had been sent to the friend, together with the comment, “Hey, do you know...(child 27)?”. When interviewed by police, “child 27” told a similar story to many of the offender’s other victims, namely, that he provided the images after being tricked into believing he was communicating with a 16 year old female, and that after the victim blocked the account, the offender threatened to send photographs to his friends unless he complied with his sexual demands.

48. The offence in sequence 30 is another solicit offence involving a pre‑pubescent boy, known as “child 29”, who was aged 12 to 13 years during the offence period, from whom the offender solicited videos over a period of about 3 months, from April to July 2018. Fourteen of the videos were found to be child pornography. Ten of them being category 1, and 4 being category 2, which variously depicted the victims’ torso, erect penis, anus, testicles and also with him engaged in masturbation. Again, the analysis by police showed conversations in which the offender, pretending to be a teenage girl, gave instructions of a specific nature as to what he required the victim to do. This offence also involved threats by the offender to share the images if his demands were not met.

49. Sequence 31 is another offence of solicit child pornography material and involved a pre‑pubescent boy aged 14, who is known for the purposes of this case, as “child 31”. Police identified 17 category 1, and 3 category 2 child pornography videos, depicting the victim’s face, torso, erect penis, anus and engaged in masturbation, which had all been saved by the offender on 11 April 2018. This material demonstrated again the offender’s common practice of giving specific instructions to the victim, requiring him to bend over and to apply saliva at various parts of his body. When interviewed by police, the child victim told of being contacted by a teenage female, who was sending photographs, supposedly depicting herself, in return for which “she” requested photographs of the victim’s face, penis and buttocks. When the victim indicated he could not provide a video of himself ejaculating, given his young age, the offender replied saying he was in fact 40 years old and had just himself ejaculated.

50. Sequence 32 involved the soliciting from a pre‑pubescent 11 year old boy, known as “child 32”, of child pornography material. The victim has been identified but did not wish to speak with police. In this offence, the offender solicited from the victim 7 category 1 child pornography videos, depicting the victim naked and crouched over. These files had been saved by the offender on 11 April 2018.

51. Sequence 33 involved the soliciting of material from a 13 year old pre‑pubescent boy, known as “child 33”, from whom the offender obtained 3 category 1 child pornography videos, between about March and July 2018. That material depicted the victim with his penis erect. Material obtained by the police included a conversation in which the offender instructed the victim as to what he wished to see and promised in return to provide naked images of the teenage girl who the offender was impersonating.

52. The offence in sequence 39, being an offence of transmitting child pornography, involved the offender on or about 23 March 2018, sending an explicit image of “child 33”, to whom I have just referred, to one of the child’s friends, known as “child 34”

53. The offence in sequence 34 is another offence of soliciting child pornography material, and involved a pre‑pubescent boy aged between about 8 and 12, known as “child 35”, from whom the offender solicited 9 category 1 child pornography items, and 6 category 2 child pornography videos which were saved by the offender on 9 February 2019, not long before his arrest. These videos show the victim’s erect penis, and anus, as well as masturbation and digital penetration.

Use carriage service to engage in sexual activity – Cth Criminal Code, s.474.25A(1)

54. I turn then to consider the facts of the Commonwealth offences of engaging in sexual activity with a person under 16 years of age, using a carriage service. These 18 offences arise from the offender’s interactions with 18 children, which are captured on screen recordings found on his electronic devices. None of the children have been identified, and it is suspected that many of them live overseas, including in New Zealand and the USA. Most of these offences occurred on a video chat website called Omegle, although 1 offence involved Skype video. These offences took place over a period of about two years, from about June 2014 to July 2017, when the offender was between the ages of about 18 and 20. All of the victims were pre‑pubescent males who engaged in masturbation while the offender watched via Webcam. Although there was some variation, the general pattern with these offences was that the offender would pretend to be a 16 year old girl “Beth”. When engaging with a victim, the offender would not activate his own camera or microphone, but would communicate with the victim using text messages in which he would direct the young male victim to perform various physical and sexual acts, including displaying his buttocks and anus, digitally penetrating his anus, and masturbating to ejaculation.

55. A description of these recordings is contained within the agreed facts placed before the Court. Each of the recordings was of a similar nature and their duration ranged mostly from about 3 minutes to 15 minutes although some exceeded that and extended to about 30 minutes, or in one case, 46 minutes. Each of the videos involved pre‑pubescent male children, mostly in the age range of about 8 to 13 years, although in five instances, the boys were in the approximate age range of 5 to 8 years. Each of the recordings involved the child victim engaging in masturbation and almost all of them involved the victim displaying his buttocks and anus. In three instances, the child can be seen to digitally penetrate his own anus. In two of the recordings, the offender himself could be seen in the video footage and in one of them, the offender’s penis was visible and could be seen by the child victim via the web camera.

Objective seriousness – “possess” and “produce” child abuse material

56. It is necessary in sentencing any offender that the Court make an assessment of the objective seriousness of the offences. I start with the offences of possessing and of producing child abuse material, those being the two State charges. The assessment of objective seriousness of these offences starts with the maximum penalty of 10 years, which is a clear legislative marker and guide to its seriousness.

57. I also note that the penalty for an offence under s 91H(2) was increased in 2008, from 5 years to 10 years’ imprisonment. In explaining the reason for this, the then NSW Attorney General, the Honourable John Hatzistergos, as his Honour of this Court was at that time, stated that persons who possess child pornography material, perpetuate the abuse of children and provide a continuing market for the material, and that the criminality involved in possession of this sort of material should be regarded as being the same as if the offender had produced the material themselves.

58. In R v Hutchinson [2018] NSWCCA 152, Justice R A Hulme set out a list of matters designed to assist sentencing judges in determining the seriousness of offences involving child abuse material. I make the following observations by reference to those matters, and the possession and production offences committed by Mr Whaley.

59. Firstly, the photographic and video material in this case involved actual children.

60. Secondly, as to the nature and content of the material, including the age of the children and the gravity of the sexual activity, I note in relation to the possession offence, that these involved children in the estimated age range of 4 to 15 years, whereas for the production offence, the range of ages of the 49 victims in the 700 images or videos was from about 8 to 15 years. As to the content of the material, the titles of the possession offence files make it clear that these involved extremely explicit sexual activity, including apparently, an adult male having sexual intercourse with a boy, and another in which a 13 year old boy tortures an 11 year old. In relation to the production offence, again, the images and videos as I have previously described, involved very explicit and often degrading acts being required to be performed.

56. Thirdly from the list of Hutchinson factors, the extent of any cruelty or physical harm discernible in the material. In this regard, the offences of possession involved material with varying degrees of depravity, with about one‑third depicting children engaged in penetrative sexual activity, and one involving sadism. As to the production offence, this involved graphic material which included extended depictions of masturbation and digital anal penetration, which while serious, are not within the most extreme forms of child abuse material.

57. Fourthly, as to the number of images or items, and in the case of a possession offence, the number of different children depicted. The possession offence in this case involved 250 files which in some cases, involved multiple children, although the precise number of individual victims is not known with accuracy. The production offence involved 700 files and 49 individual victims.

58. Fifthly, in a case of possession, the offender’s purpose, and whether it was for his own use, or for sale or dissemination. The primary purpose in this case, both for the possession offence and the production offence, was the offender’s own sexual gratification. An additional purpose in relation to the production offence, however, was the offender’s intention to use the material as leverage against his victims, to secure their co‑operation in providing additional images or videos.

59. Sixthly, in a case of dissemination, the number of persons to whom the material was disseminated. While the offender is not charged with dissemination, there was an element of dissemination involved in committing some of the Commonwealth offences, which is a matter to be considered in the factual context involving those offences.

60. Seventhly, whether any payment or other material benefit was received, including the exchange of pornographic material. None of the State offences for which the offender is to be sentenced, involved his receiving any financial benefit. However, the offender’s motivation in producing - that is, recording and retaining the material - also involved an intention to use it in some cases, to blackmail his victims into continuing to co‑operate with him.

61. Eighthly, the proximity of the offender’s activities to those responsible for bringing the material into existence. There is no evidence as to the proximity of the offender to those responsible for bringing into existence the material that is the subject of the possession offence. As to the production offence, as already noted, the offender himself was directly responsible.

62. The ninth matter discussed in the Hutchinson decision is the degree of planning, organisation, sophistication and/or deception employed. While the possession offence involved little planning or sophistication, the production offence was clearly planned, organised and reasonably sophisticated. Victims were intentionally targeted, and the offender employed a system by which he tricked them into providing sexually explicit images or videos which he intended to use to blackmail them, in some cases. Once the material was obtained, the offender organised it by moving it on to the external hard drives where he categorised his library, using misnamed titles to disguise their true nature.

63. The tenth factor considered in the Hutchinson decision is the age of any person with whom the offender was in communication. This factor is of relevance to the production offence and as noted already, the ages of the children were between 8 and 15 years.

64. The eleventh factor referred to in Hutchinson is whether the offender acted alone or in a collaborative network of like‑minded persons. It appears that in this case, the offender was acting alone.

65. The twelfth matter in the Hutchinson decision is any risk of the material being seen or acquired by vulnerable persons, such as children. Such a risk clearly arises from the material that is the subject of the production offence, given that part of the offender’s motivation in producing the material was to send it, in some cases, to friends or family of the victims if they refused to co‑operate with him.

66. The thirteenth matter discussed in Hutchinson is the question of any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted in the material. Again, this arises in relation to the production offence, by reason of the offender’s motivation in producing the material and the risk of its being sent to other children.

67. The last matter noted in the Hutchinson decision is any other matter bearing upon the objective seriousness of the offence. In this regard, it is relevant to note in relation to the production offence, that this was not a temporary lapse of judgment but a course of conduct which took place over a period of more than 4 years.

68. As the courts of this State have said many times, offences involving the possession of child pornography, are not victimless. Rather, the possession of such material creates a market for the continued corruption and exploitation of children. It has been said that the possession of child pornography is a callous and predatory crime, not just because it exploits and abuses children, but also because each time the material is viewed, the offender is reminded of, and confronted with obvious pictorial evidence of the exploitation and abuse, and the degradation it causes: R v Booth [2009] NSWCCA 89, at [40ff].

69. In sentencing for the offence of possessing child abuse material, I bear in mind that this material cannot come into existence without the exploitation and abuse of children somewhere in the world, often in underdeveloped or disadvantaged countries. Those who make use of the product, feed on that exploitation and abuse and often the poverty of the children involved. It is for these reasons, as well as others, that general deterrence is of particular importance.

70. These observations are clearly demonstrated in the material that is the subject of the production offence. These involved the offender himself directly exploiting and abusing vulnerable children.

71. Given that neither of the New South Wales offences involve a standard non‑parole period, it is not necessary for me to express any conclusion as to how these offences compare with a hypothetical offence in the midrange of objective seriousness. However, in my opinion, each of the NSW offences involve serious criminality and this is particularly so with regard to the production offence, given the number of victims, and the other matters to which I have referred.

Objective seriousness – Use carriage service to “solicit” child pornography

77. I turn to consider the objective seriousness of the solicit child pornography offences, using a carriage service. There are 29 of these Commonwealth offences, each of which involved a real victim, namely, young males approaching or in the process of experiencing puberty. The time period involved in each of these offences varied, ranging from a day or two, to several months. However, many of the offences involved an ongoing course of conduct, whereby the offender targeted and then pursued his victim with false promises and in some cases, threats. It is apparent from the nature of the various victims that the offender targeted a particular age group, and adopted a pre‑meditated system of deception and intimidation, whereby he enticed his vulnerable victims into believing that they were communicating with a 16 year old girl, which no doubt presented an attractive proposition to boys and youths entering or experiencing the hormonal changes involved in male puberty.

78. These offences involved planning, and the development of a scheme, perfected over months and years, whereby the offender very cleverly tricked his victims into supplying images which included their faces, which the offender was able, if he wished, to use and in some cases, did use, as leverage for the threats he later employed in attempting to blackmail victims and enslave them to continue to provide material to satisfy his perverted sexual desires. Many of the offences involved requiring the victims to perform submissive or degrading acts, despite, in many cases, their pleas to stop. It is apparent from the occasions where the offender did in fact share the material, that he was not just making hollow threats, but threats that he was prepared to carry out. It is difficult to avoid the conclusion that this was yet another aspect of the sadistic victimisation and exercise of power involved in these offences, an aspect which the offender appears to have enjoyed. As was submitted by the Crown, many of the offences involved psychological manipulation of the young victims, such that they were coerced, in effect, into performing acts of sexual abuse on themselves, knowing that a stranger would be viewing the material.

79. I have no doubt that these offences are likely to have caused significant and perhaps ongoing psychological harm to many or most of the offender’s victims. Examples of the type of harm have been provided in the victim impact statements, in relation to child 1, child 22 and child 32. I have regard to the contents of those victim impact statements, each of which provide testament to the very significant harm involved in these offences. Each of them speak of the devastation, shame, fear and/or anger that has been experienced, not only by these victims but also their families, and particularly, by reason of the fear that the offender might disclose the material to others.

80. In my view, all of these solicit offences represent objectively serious examples of this type of offence, and I regard those which involve threats, as objectively very serious examples, when compared with a hypothetical worst case although I acknowledge the difficulty of quantifying such a case.

81. In considering the victim impact statement material, I have exercised caution in accordance with authority, as to the expression of harm that might be seen as going beyond that which would ordinarily be expected from offences of this kind. I further record that my conclusion as to the objective seriousness of those offences, remains as I have stated it, regardless of the content of the victim impact statements.

Objective seriousness – Use carriage service to “transmit” child pornography

82. I turn then to consider the objective seriousness of the offence of using a carriage service to transmit child pornography material. As the Crown submitted, these five offences involving the transmission by carriage service of child pornography involved material that had been furtively recorded by the offender, and which were motivated by an obvious intention to shame and embarrass the victims and carry out his threats, applying further pressure on the victims, to continue to act as his sexual slaves. The commission of these offences was nothing short of cruel, and merciless. Furthermore, in each case, the transmission involved sending child pornography material to, among others, persons who were themselves children at the time, with the potential for further harm to those persons. Clearly, these also represent serious examples of this type of offence.

Objective seriousness – Use carriage service to engage in sexual activity with person under 16 yrs

83. As to the objective seriousness of the offence of using a carriage service to engage in sexual activity, these 18 offences each involve the offender’s interactions with real children, using live streaming services. Each of the children appear to be pre‑pubescent and in the age range of 5 to 13 years. Each of the victims engaged in masturbation, with the offender apparently observing in real time, with some of the victims exposing his anus, and 3 of them, digitally penetrating themselves. In one case, the offender dropped his female façade, and exposed his own penis to the victim. Each of the offences were also of some duration, lasting between 3 minutes and about 45 minutes. While not being the most extreme examples of this type of offence, these are all objectively serious offences, which involved young children being engaged in conduct well beyond their psychological maturity, with the likelihood or presumption of harm that this type of activity has been accepted in more recent times, to involve.

84. It is for these and other reasons that deterrence, both of this offender and of others, must feature heavily in sentencing for all offences of the type that are before the Court.

Subjective matters

85. The offender’s subjective case was put before the Court via a variety of material, including his own affidavit, and a report by psychologist, Tim Watson‑Munro. In his affidavit, the offender sets out some of his background, attitude to his offending, and his future intentions. He is currently 24 years of age and was born in the United Kingdom before moving with his parents and sister to Australia in about 2008 when he was aged 12. After living with his family in Adelaide for about two years, the family returned to the United Kingdom, where the offender was depressed and isolated, as he was alone a lot of the time, due to his parents’ work commitments. After his parents realised how much the move to the UK had affected the offender, the family returned to Adelaide in about 2011, where the offender later completed Year 12.

86. He then obtained employment for a few years, before relocating to Melbourne, where he had a variety of jobs. It was in Adelaide that the offender, who at that time identified as homosexual, entered his first long term relationship. The offender however, says that he was struggling with his sexuality and that he eventually realised he was bisexual. Sometime after this the relationship ended, the offender commenced visiting Sydney where his parents were living, and in about 2017 he relocated to Sydney and moved in with his parents.

87. In his affidavit, the offender says he is ashamed and that he has let his family down, and that since being in custody, he has reflected on the terrible things he did, claiming that this is not the person he is or wants to be. The offender has acknowledged that he has caused hurt for the victims and their families, as well as his own family, and says he will carry this with him for the rest of his life.

88. He further says that his deceptions would have completely destroyed his victims, acknowledges his selfishness, and expresses regret for his actions. He says that in blackmailing victims, he reached “a different low by doing this”. He acknowledges that a lot of his victims begged him not to do what he did. In my opinion, it is a positive sign that the offender has made these acknowledgments, and in particular, his statement that:

“This situation is not something I want them (that is, his victims) to think is their fault. It is my fault I have made them feel this way.”

89. He also acknowledges that he has hurt the persons to whom he sent images, and says there is no excuse for his actions, and that it makes him feel sick to think of them. He says he wants to prove that this kind of offending will never be repeated.

90. The offender has significant family support, which he acknowledges he is lucky to have. Furthermore, there is evidence that upon his release, he will be returning to his family, and that his mother intends to take time off to help him re‑integrate into society. The offender also explains that over the past few months, he has been seeing the psychologist, Mr Watson-Munro, for treatment. He says he has found these sessions beneficial and that upon his release he intends to continue with treatment.

91. In his report, the psychologist describes the offender as a co‑operative although psychologically troubled man. He concludes that the offender was significantly destabilised by his family’s move to Australia when he was about 12, and the subsequent return to England for 12 months, and concludes that these moves occurred at a critical time in the offender’s adolescent development. The psychologist expresses a conclusion that these disruptions established the platform for the offender’s continuing vulnerability into adult life, partly because the offender’s peer group was disconnected on two to three occasions which impacted on his scholastic performance.

92. The psychologist also describes a history from the offender, involving the escalating use of cannabis and occasional binge drinking. The offender told the psychologist that, at its peak, his use of cannabis involved 12 to 13 bongs at a time, usually after work, and that this coincided with some of his offending. The psychologist suggests that this drug use likely diminished his judgment and impulse control although not to the point where he was unaware of the criminal nature of his actions. The psychologist observes that based upon the sheer volume of the child abuse material with which the offender was engaged, it would appear that his involvement in that activity was something that he relied upon heavily for emotional regulation, to the point of it being an obsession or an addiction.

93. The psychologist concludes that since being in custody, the offender has detoxified from cannabis and alcohol, that his judgment has been restored, and that he has insight into the nature of his offending. The psychologist concludes that the offender suffers from a paraphilia disorder which is in partial remission, but that he is currently suffering a severe and recurring depressive disorder and anxiety disorder.

94. The psychologist expresses the suspicion that the offender’s paraphilic behaviour was a function of his depression and anxiety, leading to an addiction, as a means of moderating his mood. He says the offender clearly will require treatment and that he may benefit from the CUBIT program available at Long Bay Gaol. He will however require continuing intense treatment once returned to the community, which should be focussed on relapse prevention strategies and social skills due to his low self‑esteem, impulse control training, and systematic de‑sensitisation for his anxiety.

95. The psychologist notes that the offender was assessed as being of low risk of offending on the Level of Service Inventory (Revised) Test, although he also notes the assessment given by the Static‑99 Test. I note that on that test, the offender was assessed as well above the average risk range, relative to other male sexual offenders. Overall, the psychologist suggests that the offender has matured, has gained better insight, and that his risk of recidivism is trending towards low.

96. The Court has testimonials from friends of the offender and from his aunt, who each speak highly of him and express shock at the offences he has committed.

97. The Court also has letters from the offender’s parents, which confirm his background, and express their continued support for him. They each testified to the offender having reflected on his conduct, and to having expressed genuine regret and acknowledgment of the seriousness of his actions and the harm caused to victims. The offender’s parents describe their son as a very supportive and loving person, especially to his younger sister, who in 2013, was diagnosed with a severe social anxiety disorder and did not leave the house for 6 months. They confirmed that the offender’s father was diagnosed with prostate cancer in 2017, and that despite treatment for that, he was in 2019 diagnosed with kidney cancer and that this has impacted on the offender, who is extremely close to his father.

98. Since being in custody, the offender has taken the opportunity to engage in various courses and activities, to occupy and advance himself. This material seems to support the offender’s own assertion in his affidavit, that one of the prison officers told him he had become a model inmate. A sentencing assessment report by a Community Corrections Officer has been placed before the Court, which affirms much of the offender’s background. The report notes that at the time of his arrest, the offender had no prior criminal convictions and had been engaged in fulltime employment, as an optical dispenser. The author of that report notes that the offender acknowledged his offending behaviour was wrong and serious, and that his offending may have caused psychological harm to the victims and their families.

89. The report notes also that the offender indicated that during the period of his offending, he was suffering depression for which he did not seek treatment but that he now acknowledges a willingness to engage in treatment to avoid future offending.

90. The offender has expressed some contrition and remorse in his affidavit and also to the psychologist, the Community Corrections Officer and to friends and family. The Crown submissions accept that there has been an expression of some contrition and remorse although I also accept the Crown’s further submission that this may involve limited insight, given that the offender has not yet received intensive, appropriate treatment. Nonetheless, he is entitled to some consideration for having expressed his contrition and remorse, which I accept is genuine.

91. Given however that the offender is at present untreated, he presents a significant risk of re‑offending in similar or related ways in the future. In reaching this conclusion, I have had regard to the results of the LSI and Static‑99 tests, and the psychologist’s opinion, but also had regard to the very long‑standing and habitual nature of his crimes. Given the steps he has taken since being in custody, and the very significant family support he enjoys, I think there are some prospects of rehabilitation although this will depend in large part on his commitment to engage in long term treatment.

92. The offender has no prior criminal history and ordinarily this would entitle him to consideration on sentence, as being a person of prior good character. However, prior good character is of reduced significance in offences of this kind, in which the importance of deterrence looms very large.

93. The offender is also still a relatively young man, and his offending commenced apparently when he was only 18. An important principle in sentencing a young person is that greater weight should be given to rehabilitation and less weight to deterrence. That is in part because children and adolescents do not have the cognitive and psychological maturity of adults, and have more trouble regulating their moods and impulses. As a result, considerable flexibility is required in sentencing. This principle however, is subject to the qualification that the leniency ordinarily given to a young offender is to be moderated when the person conducts themselves in a way that an adult might, and where the offence is one of considerable seriousness.

94. Having had regard to these principles, I am of the view that this is a case where the offender’s relative youth is of reduced significance, given the nature and duration of his offending, the pre‑meditated and adult like behaviour that it involved, and because his offending continued right up until February 2019, when he was aged 23.

95. I have had regard to the offender’s background and the observations by the psychologist about his drug use and depression, and the suggestion that the offender’s disrupted upbringing left him vulnerable, and that this, combined with his drug or alcohol use, significantly contributed to his offending. However, I also note that at the time of his arrest, the offender had held down a fulltime job for approximately two and a half years and was studying a Certificate in Optical Dispensing. While he may have commenced his criminal conduct while still relatively immature at 18, the fact is that it continued right up until his arrest at age 23, and while still managing to hold down a responsible job and pursue tertiary studies.

96. In my opinion, there is nothing in any of the offender’s subjective material which provides any rational explanation for the persistent and frequently cruel criminal conduct in which he engaged, which involved so many children over such a long time. Rather, the explanation lies, it seems to me, in the fact that the offender came to enjoy his systematic and sadistic use of the anonymity of the internet to seek out, deceive, sexually abuse, and in some cases, enslave his victims for his own sexual urges. In my view, his moral culpability, was in all of those offences, very high.

Determination

107. I am satisfied, as required by s. 5, NSW Crimes (Sentencing Procedure) Act 1999 and s.17A, Commonwealth Crimes Act 1914, both in relation to the State and the Commonwealth offences, that no penalty other than full time imprisonment is appropriate.

108. I intend to impose individual sentences for the 2 State offences and an aggregate sentence for the 3 Commonwealth offences.

109. In determining the non‑parole period for the Commonwealth offences, I intend to adopt a ratio between the head sentence and non‑parole period that provides an opportunity for the offender to be subject to a lengthy period of supervision once he is released to parole.

110. I have had regard also to the restrictions arising from the current Coronavirus pandemic, with the limitations or restrictions on family visits that this currently involves and has done for approximately two months, and the uncertainty and anxiety associated with the risk of an outbreak of the disease. Given the length of the sentence that the offender must serve, however, this is not a factor of great significance in the overall sentencing exercise.

111. A very important principle to which I have regard, given the number of offences for which I must sentence the offender, is the principle of totality. That of course is the principle, as the High Court said in Pearce v R (1998) 194 CLR 610, of the importance of fixing an appropriate sentence for each offence, and then considering questions of accumulation or concurrence, as well as questions of totality. It is also the law, however, that a sentence should not be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct.

112. In the case before the Court, I accept that the Commonwealth offences are separate and distinct, and that each of them relate to a separate victim. I also accept, as the Crown acknowledges, that there is a degree of overlap between some of the offences. In particular, there is a significant degree of overlap between the State production offence which relates to the same victims as some of the Commonwealth offences, and I have taken that into account, both in determining the individual and overall sentences, and the degree to which the sentences should be accumulated.

113. It is important that the Court impose an overall sentence which is appropriate in all of the circumstances, but that it be one that cannot be described as, “crushing”, in relation to a still relatively young man.

114. In relation to the State offences, firstly, the offence of possessing child abuse material, I impose a period of imprisonment, being a head sentence, of 2 years, 6 months and a non‑parole period of 22 months. Each of those will date from 20 February 2019. The head sentence for that offence will therefore expire on 19 August 2021, and the non‑parole period on 19 December 2020.

115. In relation to the second State offence, that being the offence of produce child abuse material, I impose a head sentence of 4 years’ imprisonment and a non‑parole period of 3 years, each of those to date from 20 August 2019. In other words, six months after the commencement of the first sentence to which I have referred. The head sentence therefore for that matter will expire on 19 August 2023 and the non‑parole period on 19 August 2022.

116. In relation to the Commonwealth offences, I intend to impose an aggregate sentence. In doing so, I am required to set out the indicative sentences for each individual offence, and I will do that now. It should be noted, Mr Whaley, that these are not the effective sentence that you will serve. These are what are called indicative sentences. The actual sentence in relation to the Commonwealth matters and the overall sentence, I will explain at the end.

117. The indicative sentences in relation to the solicit and transmit Commonwealth offences, are as follows:

Sequence 2 – 2 years, 6 months

Sequence 36 - 12 months

Sequence 7 - 18 months

Sequence 35 - 14 months

Sequence 8 - 2 years, 8 months

Sequence 37 - 14 months

Sequences 9, 10 and 11 - 18 months in each case

Sequence 12 - 2 years, 3 months

Sequence 13 - 2 years

Sequence 14 - 2 years, 3 months

Sequence 15 - 2 years, 2 months

Sequences 16, 17, 18 and 19 - 18 months in each case

Sequence 20 - 16 months

Sequence 21 - 15 months

Sequence 22 - 2 years

Sequence 23 - 2 years, 3 months

Sequences 24 and 25 - 18 months in each case

Sequence 26 - 2 years

Sequence 27 - 18 months

Sequence 28 - 14 months

Sequence 29 - 2 years

Sequence 38 - 12 months

Sequence 30 - 2 years, 2 months

Sequence 31 - 18 months

Sequence 32, 16 months

Sequence 33 - 14 months

Sequence 39 - 12 months, and

for Sequence 34 - 18 months.

118. The indicative sentences in relation to the remaining Commonwealth offences, of using a carriage service to engage in sexual activity, are as follows:

Sequences 91, 92, 93, 94 and 95 - 2 years in each case

Sequence 96 - 2 years, 2 months

Sequence 97 - 2 years, 3 months

Sequence 98 - 2 years

Sequence 99 - 2 years, 2 months

Sequence 100 - 2 years

Sequence 101 - 2 years

Sequence 102 - 2 years, 2 months

Sequence 103 - 2 years

Sequence 104 - 2 years, 3 months

For sequences 106, 107 and 108 - 2 years in each case, and,

For sequence 109 - 2 years, 2 months.

119. The aggregate sentence which I intend to impose in relation to those Commonwealth offences will represent only a small percentage of the total of those figures. That is because to do otherwise would in my opinion amount to an utterly crushing sentence.

120. In determining the aggregate sentence for these Commonwealth matters, and in determining their commencement date, I have again, had regard to the principle of totality.

121. I have also had regard to what I consider to be the minimum period which the offender must serve in actual custody, in relation in particular, to the non‑parole period for the Commonwealth offences, which will be the final sentences the offender will be serving, prior to eligibility for release to parole.

122. In relation to those Commonwealth offences to which I have referred, namely the solicit offences, the transmit offences, and the engage in sexual activity offences, I impose an aggregate sentence of 8 years, 6 months. I nominate a non‑parole period of 5 years, 6 months. Each of those will date from 20 December 2019. The head sentence, therefore, for those matters, will expire on 19 June 2028, and the non‑parole period on 19 June 2025.

123. The total effective sentence therefore, having regard to the State sentences I have imposed, upon which there has been some level of accumulation, is one of 9 years, 6 months as a head sentence and 6 years, 4 months, non‑parole period. The total effective sentence therefore, will expire on 19 August 2028 and the non‑parole period, 19 June 2025.

124. In determining those sentences and their commencement dates, I have had regard to the principle of totality, and to the fact that, as I have mentioned already, there is some degree of overlap in relation to a number of the offences.

125. I make the forfeiture order signed and dated by me today.

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Decision last updated: 10 September 2020