The Queen v Chesna-Zervos
[2018] VCC 2058
•20 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-02487
| THE QUEEN |
| v |
| JOSHUA CHESNA-ZERVOS |
---
| JUDGE: | HIS HONOUR JUDGE O'CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 August 2018 |
| DATE OF SENTENCE: | 20 November 2018 |
| CASE MAY BE CITED AS: | The Queen v Chesna-Zervos |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2058 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Access child pornography material; Transmit child pornography material; Use a carriage service to groom a person under 16 years of age for sexual activity; Transmitting indecent communications to a person under 16 years of age; Solicit child pornography using a carriage service; Encourage another to engage in sexual activity with a child outside Australia; Possess child pornography; Plea of guilty; Serious example of encourage another to engage in sexual activity with a child outside Australia; Relevant sentencing considerations; Offender’s abnormal personality structure; Limited application of Verdins principles; Totality.
Legislation Cited: s.474.19(1), s.474.27A(1), s.272.19(1), 272.8(1), s.272.9(1) of the Criminal Code (Cth)
s.70(1) of the Crimes Act 1958 (Vic)
Cases Cited:R v De Leeuw [2015] NSWCCA 183, R v Verdins & Ors (2007) 16 VR 269, Meadows v The Queen [2017] VSCA 290, DPP v Beattie [2017] NSWCCA 301, DPP v O’Neill [2015] VSCA 325, R v Hutchinson [2018] NSWCCA 152, Hawke v The Queen [2018] VSCA 287.
Sentence: Total Effective Sentence (State) – 2 years imprisonment
Non-parole period (State) – 12 months
Total Effective Sentence (Cth) – 8 years 6 months imprisonment
Non-parole period (Cth) – 5 years 6 months imprisonment
Total Effective Sentence (Cth and State) – 9 years imprisonment
Non-parole period (Cth and State) – 6 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Breckweg | (Cth) Director of Public Prosecutions |
| For the Offender | Mr Hancock | Baker Jones |
1Joshua Chesna-Zervos, you have pleaded guilty to the following offences:
| Charge | Offence | Maximum |
| 1 | Between 31 August 2012 and 14 July 2016 accessed material using a carriage service, the material being child pornography material contrary to s.474.19(1) of the Criminal Code (Cth) | 15 years |
| 2 | Between 31 March 2014 and 1 April 2014 transmitted material using a carriage service, the material being child pornography material contrary to s.474.19(1) of the Criminal Code (Cth) | 15 years |
| 3 | Between 31 March 2014 and 1 April 2014 cause material to be transmitted to himself using a carriage service, the material being child pornography material contrary to s.474.19(1) Criminal Code (Cth) | 15 years |
| 4 | Between 9 September 2015 and 14 July 2016 used a carriage service to transmit communications to the recipient, namely “Twinkie2763”, being someone he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with him contrary to s.474.27(1) Criminal Code (Cth) | 12 years |
| 5 | Between 5 November 2015 and 26 March 2016 used a carriage service to transmit a communication to the recipient, being someone who is under 16 years of age, which included material that is indecent contrary to s.474.27A(1) Criminal Code (Cth) | 7 years |
| 6 | Between 24 June 2016 and 12 July 2016 solicited material using a carriage service, the material being child pornography material contrary to s.474.19(1) Criminal Code (Cth) | 15 years |
| 7 | Between 24 June 2016 and 14 July 2016 transmitted material using a carriage service, the material being child pornography material contrary to s.474.19(1) Criminal Code (Cth) | 15 years |
| 8 | Between 5 July 2016 and 6 July 2016 engaged in conduct with the intention of encouraging an offence against Division 272 of the Criminal Code (Cth) contrary to s.272.19(1) Criminal Code (Cth) namely, encouraging another to engage in sexual intercourse with a child outside Australia contrary to section 272.8(1) of the Criminal Code and encouraging another to engage in sexual activity with a child outside Australia contrary to s.272.(9) of the Criminal Code. | 20 years |
| Charge | Offence | Maximum |
| 9 | On 14 July 2016 knowingly possessed child pornography material contrary to s.70(1) Crimes Act 1958 (Vic) | 10 years |
2On the plea, Ms Breckweg tendered a summary of prosecution opening (Exhibit A). That document comprehensively sets out the details of your offending. I will extract some parts of that summary in these reasons, however, I should indicate that aspects of those extracts are graphic and some may find them disturbing.
3I have given consideration to providing a neutral description of this offending. Indeed, when the plea proceeded in Court I did not require the prosecutor to read certain parts of the Summary of Prosecution Opening. On reflection, it seems to me that sanitising or masking the true nature of what was done would not adequately convey “the true level of moral culpability” for your offending[1]. To ensure transparency, I will refer to much of the detail set out in the Opening[2], save, for reasons I will explain, in respect of charge 8.
[1] See DPP(Cth) v Beattie [2017] NSWCCA 301 per Basten JA at [5]
[2] Some footnotes referencing the depositions have been removed.
Background
4In June 2015, the Australian Federal Police received information from the child abuse unit of the Chester County Police Department in Pennsylvania in the United States. The Australian authorities were advised that a user on the kik messenger application located in Australia with the username “sleightoftongue4” had exchanged child pornography with a citizen of the United States.
5On 14 July 2016, police executed a search warrant at your home. Whilst searching your bedroom they located a black Samsung mobile phone. You were asked to provide access to the device but refused. You were then served with an order requiring you to provide access. You then complied with that order and enabled access.
6As the search proceeded you provided among other things the following information to investigators:
·that you were the user of multiple kik Messenger accounts, including sleightoftongue1 through to sleightoftongue4;
·that no other person had access to your email or kik Messenger accounts;
·that you first started using kik Messenger to talk explicitly about sexual content over the internet and that you then progressed to trading pornography including child pornography;
·that you would generally use your Samsung mobile phone for this activity; and,
·that when you accessed or received images over the internet you would save them to your computer and USB drives.
7Investigators seized the following items from your bedroom:
· black computer tower on a desk;
· black Samsung mobile phone on the bed;
· black Lexar 32GB USB device in the wardrobe; and
· black Transcend 8GB USB device in the wardrobe.
Charges One and Nine
8The mobile phone and the two USB devices were found to contain child pornography. The material was classified according to the Australian National Victim Image Library (ANVIL) categories. The criteria for that classification is set out below:
ANVIL Categories
Category
Guide
1 – No sexual
activity
Depictions of Children with No Sexual Activity – however must be sexually suggestive or sexual in nature. Can include nudity, surreptitious images showing underwear (up skirt), sexually suggestive posing, explicit emphasis on genital areas, solo urination by a child.
2 – Solo/sex acts between children
Solo masturbation by a child or sexual acts between children only in which penetration of any orifice does not occur. Includes the penetrative use of sex toys by the victim only.
3 – Non-penetrative adult/child
Non-penetrative sexual activity, between child and adult(s). May include mutual masturbation and other non-penetrative sexual activity.
4 – Penetrative
child/child – adult/child
Penetrative sexual activity between children only or adult(s) and children – may include, but is not limited to, vaginal/anal intercourse, cunnilingus and fellatio. Penetrative use of sex toys and/or foreign objects.
5–Sadism, bestiality, child abuse
Sadism, bestiality or humiliation (urination, defecation, vomit, bondage, etc.), torture or child abuse.
6 – Animated or virtual
Anime, cartoons, comics, computer generated graphics, drawings, audio and text depicting/describing children engaging in sexual poses or activity.
9The total child pornography files for the three devices were classified as follows:
Cat 1
Cat 2
Cat 3
Cat 4
Cat 5
Cat 6
Total
Total images
6,880
1,044
3,932
2,604
381
14
14,855
Total videos
86
224
291
677
59
0
1,337
10The file quantities provided in the chart exclude deleted files, small thumbnail picture files and duplicate files.
11Each category of images and videos depict children ranging from babies and infants to those in their early teens. The nature of the material is nothing less than depraved. The Summary of Prosecution Opening describes the material in the following way:
1) “The Category 1 images and videos depicted children aged between approximately 12 months and 12 years, including:
a)an image of a female child aged seven to ten years old sitting down wearing underwear. The child is holding her underwear open exposing her vagina with one hand and the other hand is holding an A4 sign with the words “fuck my cunt!!!” and arrows pointing towards her vagina; and
b)a video of a female child aged six to 10 years old dancing and undressing. The child removes her clothing and the video shows her naked vagina and breasts.
2) The Category 2 images and videos depicted children aged between one and 14 years old, including:
a) an image of a female child aged between two to five years old. The female child is laying down on her stomach and has a sex object in between her buttocks appearing to penetrate her anus; and
b) a video of a female child aged eight to 13 years old wearing only a t-shirt, laying down on a couch. The female’s vagina and anus is exposed to the camera and she is penetrating her anus with an object, while also rubbing her vagina.
3)The Category 3 images and videos depicted children aged 2 months to 12 years old, including:
a) an image of a female baby aged four to 18 months old lying on a bed. The baby is wearing a top and no underwear. An adult male naked and is sitting over her. The adult male has his penis on top of the baby’s stomach and his testicles on her vagina; and
b) a video of a male sitting in a rocking chair wearing only a t-shirt. The male has his penis exposed for the camera and is holding a two to four year old girl facing toward him. The man holds the girl so that she is straddling him whilst he is sitting. The adult male rubs his penis against the child’s vagina and buttocks. The adult male slaps his penis on the child’s buttocks.
4) The Category 4 images and videos depicted children aged two months to 14 years old, including:
a. an image of a baby (unknown sex) aged zero to four months old with its mouth open and the tip of an adult male penis inside it's mouth. There is an adult hand holding the baby’s head and the penis; and
b. a video of an adult male penetrating a female child vaginally with his penis. The child is aged seven to twelve years old and is lying on a bed.
5) The Category 5 images and videos depicted children aged six months to 12 years, including:
a) an image of a female child aged two to four years old with white stockings on. The stockings have been pulled down and a plastic bag placed over her head. A rope has been hung around her neck. Her hands are up in the air and her mouth is open. She has flushed cheeks. The female child is naked and has the word “rape” written in black marker on her stomach; and
b) a video of an adult female wearing a mask and underpants, sexually abusing a female child who is approximately 18 months of age. The woman forces ice inside the child’s vagina, then ties the child’s ankles to a wooden bar and hangs her upside down. The woman ties the child’s arms behind her back and tapes her mouth. She then applies clamps to the nipples of the child and forces her labia apart and repeatedly slaps the child’s vaginal area before applying a clamp to the child’s labia. The woman then hangs the child from her arms whilst her legs are still bound to the wooden bar. The woman then lights a candle and burns the child and drops hot wax onto the child’s body. Throughout the video, the child is crying, screaming and visibly distressed.
6) The Category 6 images depicted children aged six months to 10 years of age, including:
a) a cartoon image of an adult male penetrating a female child vaginally with his penis. The female child is aged one to three years old.“
12The metadata on the child pornography files contained on these devices, had creation dates between 31 August 2012 and 14 July 2016. You used the internet to access these files between those dates, and then saved that material to those devices. That conduct constitutes charge 1. The possession of these images constitutes charge 9.
Charges Two and Three
13Between 31 March 2014 and 1 April 2014, you spoke to an 11 year old girl living in the United States whilst purporting to be a female living in New Zealand. You communicated with her using the kik Messenger username of sleightoftongue4.
14You started the conversation by asking the girl if she liked girls or boys and if she was kinky. You asked for a photo of the girl’s vagina. You exchanged category one images with her.
15You asked her if she “liked kid sex” and said, “Show me more of you and I will send kid sex”. At one point when referring to these images, you asked the girl, “Do you want to see them get fucked by their dads?” Throughout the conversation, you told the girl that you would send more images to her if she sent more images of herself. You gave instructions about what you wanted to see and when she said she had no more photographs, you told her to take more.
16You asked the girl whether she wanted pictures of babies and toddlers. In total, you transmitted 26 child pornography images to this 11 year old girl; six of those images were category 1 and 20 were category 4. The girl transmitted a total of nine category 1 images to you.
17Police in the United States were able to identify the girl, but a victim impact statement was unable to be obtained.
18That conduct constitutes charge 2 being the transmission of child pornography material and charge 3 where you caused child pornography material to be transmitted to yourself. As I have said, this offending occurred between 31 March 2014 and 1 April 2014.
Charge Four
19The sub-heading for section 474.27 in the Criminal Code (Cth) describes this charge as “Using a carriage service to “groom” persons under 16 years of age”.
20When police examined the seized electronic material, they located chat logs of transcripts of conversations on Skype between you and a person, who was using two different usernames. The conversations commenced on 5 September 2015 and appear to have been ongoing until the day of your arrest on 14 July 2016.
21You engaged in general conversations with that person about her looks, school friends, music, books, daily activities, and previous experiences with boyfriends. You also engaged in sexually explicit conversations with her believing that she was between 12 and 15 years of age. The Summary of Prosecution Opening, describes these conversations in the following terms:
"During the conversations the offender told the user her body was sexy and offered to show her his penis to convince her. He asked her to come to Melbourne, and said if they met he would hug her first, then hold her hand if she would let him. He then said he wanted to do bad things to her and asked her to look at his penis.
The offender repeatedly described his penis and masturbating, and asked the user to masturbate. The user asked the offender not to talk about sexual activities and said it made her feel weird and uncomfortable. The offender said, “But you used to like it” and the user replied, “I’m not that person anymore.” The offender replied, “You seem the same to me … Just less horny … You did like my cock, though.”
During subsequent conversations the offender made further sexual references, including saying he wanted to taste her, show her his penis and kidnap her. The offender asked her if she thought he was attractive, and asked if she would let him brush her hair. The offender continued to tell the user she was pretty and made further sexual references.
The user told the offender she had gotten another piercing. The offender said, “Show me … I wanna lick it … You want my big fat cock splitting your pussy open.” The offender asked the user for a picture of her feet and sent her a sexually explicit story.
The offender continued to send the user sexually explicit messages. For instance, on 15 April 2016, the offender asked the user if she would swallow his ejaculate, “do anal” with him, if he could impregnate her, if he could perform cunnilingus on her, and if she would “deep throat” his penis.
The offender described pleasuring himself anally and the user asked if he only talked to her because he wanted sex. He said they were friends first and foremost. They discussed the fact they had been speaking since the user was 12, and that she was now 15.
On 4 June 2016, the user informed the offender of her new Skype username. The offender and the user continued to have conversations on both general and sexual topics. They discussed meeting, and what they would do together. The offender told her she was special to him because she knew the terrible things he enjoyed but did not judge him. She asked him what he was referring to and he replied, “We’ll just say animals is one… And the other is even worse.”
The user asked him if he could wait three years, and he replied he had already waited three. He said as soon as he could drive they would have a weekend of fun with “cuddles and kisses and holding hands and all sorts of good things!” He said, “I just want some intimate companionship for once. It’s been years since I’ve had any.” The user said, “I’ve never had any” and the offender replied, “So let’s fix it together”. The user said, “I’m cool with not having any intimate moments … I’m only 14 lmao”.
In a subsequent conversation, the offender talked about his desire for the user, and said he wanted to ejaculate on her face. They also discussed their love for one another, and the offender encouraged the user to try masturbation. The user said she wanted the offender to take her virginity, and they each requested that the other visit them.
The offender said, “Insanity fuck me”. The user replied, “I would … But I’m so far away.” The offender replied, “If you don’t, I’m gonna fuck your throat til you puke”. The user replied, “I’m down with that.” Later the same day, the offender said, “I’ll cut you”. The user replied, “I do that to myself anyway.” Later, the offender said, “Do you want to be raped?” The user replied, “Not particularly”."
22The communications you had with this person over that nine-month period constitute charge 4.
Charge Five
23Turning to charge 5, that matter is concerned with indecent communications that you had with a another user on Skype between 5 November 2015 and 26 March 2016. The Summary of Prosecution Opening describes the nature of those communications in the following terms:
"They had general conversations about the user’s family, health and school. The user expressed concern to the offender that her parents were going to hack into her phone because she had been viewing pornography. On 1 November 2015, the user said she was 14.
Between 5 November 2015 and 26 March 2016 there are numerous instances of indecent communication. On 5 November 2015, the offender expressed his desire to give the user a massage. The user said, “As long as I get my massage, you can do whatever.” The offender replied, “Rub my cock between your naked thighs and use semen as lotion? … I hear it’s meant to be good for the skin … Mine isn’t thick either, it should absorb into your skin quite nicely.” Later, during the same conversation, the offender said, “Like, I’d want to make you puke from choking on my cock. I don’t really know if it’s big enough to choke on, but I’d guess it is.”
On 14 November 2015, the user sent a photo of the cuts she had made on her thigh. The offender said he wanted to lick the wounds. On 29 November 2015, the user and the offender discussed masturbating. On 15 January 2016, the offender said, “I’d want to test your gag reflex every day” and said he would ejaculate into a “sippy cup” for the user.
On 26 March 2016, the offender described in detail what he wanted to do to the user. He described attaching a remote controlled vibrator to the user’s clitoris, urinating on her and forcing her to drink it, pushing a needle through her clitoris, spitting in her anus and having anal sex with her."
Charges Six and Seven
24Charge 7 is concerned with transmitting child pornography material over a three week period between 24 June 2016 and 14 July 2016. Charge 6 is concerned with soliciting child pornography material during the same period.
25As to this offending, the summary of prosecution opening states as follows:
“Police examined chat logs of conversations between the offender and 854 other users of Kik messenger. In these conversations the offender used the Kik messenger username “sleightoftongue3”. The offender generally used a false profile picture, usually of a young female, concealing his true identity.
The offender requested the users complete tasks to confirm they were legitimate people, including taking pictures of themselves touching their nose or making an “okay” symbol with their hand. If the user did not complete the task, the offender would state that they were fake and stop talking to them.
The offender commenced most of these conversations by asking if the user was interested in “young porn” or “kiddy porn”, and if they wanted to receive some. If the user answered yes the offender would transmit child pornography to them. The offender informed multiple users he was interested in the age group of two to six years old. The offender asked some users to use Skype so he could show them child pornography videos.
The offender transmitted child pornography images on 286 occasions, among 147 users. Of these 147 users, 10 informed the offender they were between 13 and 15 years of age. On one occasion, the recipient did not express an interest in child pornography, and the offender transmitted a Category 4 image and encouraged her to view it.
A large proportion of these users had display names indicating they were female. One of the users asked him why he had asked her if she was into “young porn”. The offender said, “I want a girl into it … It’s sexy.” To another user, he said, “I’m looking for a girl who is into real young.” In another instance, he accused the user of not really being a girl, then said, “Just admit it and maybe we can trade pics”.
Police have categorised the images transmitted by the offender as follows:
Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Cat 6 Total 181 8 51 44 0 2 286 In the course of his conversations on Kik messenger, the offender solicited child pornography from nine other users. Seven of these users informed the offender they were between 13 and 16 years of age.
As noted above, the offender primarily messaged users he thought were female. The offender would ask these users to send sexual images of themselves in exchange for which the offender would send child pornography.
By way of example, the offender communicated with username “roorylie”. The user told the offender she was 15 years of age. The offender asked to see her “naughty parts”. He asked if the user shaved her vagina smooth, and asked to see her “little kitty”. He sent her a video of him masturbating, and asked her to masturbate and show him. The offender informed the user that he would love to see the user suck her dog’s penis. The offender asked to see the user digitally penetrating herself.
Similarly, the offender communicated with username “maisie.xx.” The user informed the offender she had just turned 13. The offender had guessed she was 14. The offender asked the user to show her breasts, be naughty, and said he would like to see her masturbate.
The offender also communicated with a person with usernames “thickdick.john” and “bordman4395”, both transmitting and soliciting child pornography.”
26Those communications are relevant to charge 8.
Charge Eight
27Turning to charge 8, that is, concerned with engaging in conduct with the intention of encouraging an offence against Division 272 of the Criminal Code (Cth). That division is concerned with child sex offences committed outside Australia. Specifically, charge 8 involves you encouraging another person to engage in sexual intercourse with a child in the United States and to engage in sexual activity with a child in the United States. The child the subject of this charge was a two year old toddler, still in nappies.
28I will extract the summary of prosecution opening to this charge in full, however I do not propose to read that summary aloud for the purposes of imposing sentence today. In my view, the graphic nature of what you encouraged and how you encouraged it, is such that it is inappropriate to repeat. Suffice to say that you encouraged the commission of horrifying sexual abuse upon a two year old toddler still in nappies. You did so, knowing that your encouragement appeared to bring about the actual abuse of that child:
On 26 June 2016, the offender had a brief conversation with Kik user “thickdick.john”.
The conversation resumed on 5 July 2016. The offender asked if the user had his baby. The user said he did, and the offender asked to see her. The user sent a photo of a toddler in a nappy.
The offender asked what the user was going to do with her. The user asked what the offender wanted him to do. The offender replied, “I want her to suck your dick … As deep as you can. Does she like to suck your dick?” The user said, “Not really”. The offender said, “Will you make her do it anyway?” The user asked, “Do u want me to”. The offender replied, “Yes please”.
The offender said he also wanted to see the child’s vagina. He sent the user an image of a child with her legs spread apart exposing her vagina and anus. The child is pulling the skin near her vagina apart with her hands. The offender said, “Make her do this”. The user replied, “She’s to young to spread her pussy. She’s 2.” The offender said, “Well you spread it for her then.” The user asked, “Then what” and the offender replied, “I wanna see your dick on her”.
The user mentioned that his friend’s nine year old niece was at his house. The offender asked to see her, if the user had had sex with her, if he wanted to, and if she was cuter than his baby. The offender then asked, “Can I see baby cunt now” and if the user was alone with his child.
The user sent a photo of the toddler sleeping with no top on, and the offender said, “Show her tiny little pussy”. The user replied, “She’s asleep”. The offender said, “Yes that’s good. She won’t struggle”. The user said he would try not to wake her up, so she would not cry.
The offender asked if the user could put his penis on her face, in her mouth. The user asked how far in. The offender said, “All the way. Then she can’t cry”. The user said, “So balls deep”. The offender said, “Yes please”. The user said, “What if she gags” and the offender replied, “Then just take it out after a short time”.
The offender again asked the user to show his penis on the toddler and, two minutes later, asked, “You won’t do it?” The user sent a photo of a baby with a penis against its mouth. The photo appears to be an old photo of the child in the other photos. The offender asked if the user had any more saved, and the user said he did not. The offender asked for a photo of her vagina, and the user said he was going to put her in the shower and to message his other account.
The conversation then resumed, with the offender messaging user name “bordman4395”. The user sent the offender a close-up image of a toddler’s vagina and anus. The offender said, “Mmm … It’s so pink and tiny. Put your dick on her?” The user then sent a close-up image of a toddler’s vagina.
The user asked, “What if I slip in” and the offender replied, “She will cry.” The user asked, “What happens then” and the offender replied, “You fuck her”. The offender then asked the user, “Can you make a video of you rubbing her pussy or licking it”. The user replied, “Idk”, which is short for “I don’t know”. The offender replied, “Please”.
The user then sent a video of a toddler’s vagina being rubbed and penetrated by an adult’s finger. The footage is somewhat dark. The user asked, “How’s that”. The offender replied, “Mmm I just wish it was a bit lighter heh. But it’s really nice”. The user then sent a second video of the same child’s vagina being rubbed and penetrated by an adult’s finger. It is clear from the footage that the camera’s light has been turned on. At around the same time, the offender said, “Ugh my internet has cut out! >:(“
The conversation resumed about nine hours later. The offender sent the user a Category 4 image of a female child sitting on top of an adult male, being penetrated by his penis. The user asked the offender what he thought. The offender said, “I liked it a lot I just wish it was your cock hehe … Can you?” The offender also said, “Will you show me her asshole … I wanna see you put your dick ono her ass” The user replied, “:$ idk”. The offender said, “Have you cum on her before”. The user replied, “Never”. The offender said, “Will you let me see you do it?” The user replied, “Maybe”. The offender said, “You need to cum on her”. The user said, “Why :$”. The offender replied, “Cause she deserves it”.
The offender said, “Can you make her naked”. The user said, “Idk”. About one hour later, he sent the offender an image of the toddler’s vagina and anus. An adult male’s hand is holding the child’s buttocks open with his thumb. The offender said, “Mmm wow”. The user sent a further image of the toddler’s vagina and anus being held open by an adult male hand. The offender said, “Put your dick on her ass”. The user sent a further image of the toddler, this time with her legs up and her vagina exposed. The offender sent two child pornography images and said, “Put your dick on her mouth”.
The user said he wished he had a bigger penis. The offender said, “It’s fine for a baby.” The user said, “But not for a 9 year old … My friends niece”. The offender said, “Kids are tight … For now just fuck your baby”.
The offender said, “Jerk off on your baby. She needs cum”. The user asked, “Where”. The offender said “Her pussy”. The user asked, “On or in”, and the offender replied, “Both”. The user asked, “Witch one more” and the offender replied, “In”. The user asked, “How deep”. The offender said, “Balls deep. Why don’t you cum on her every day?” The user sent the offender a photo of his child asleep and said, “She’s asleep”.
29The conversation briefly resumed on 10 July 2016, regarding general topics such as work, then ceased.
Impact of Victims
30No victim impact statements were relied upon. Nonetheless, I can readily infer that the abuse and exploitation associated with this offending will be damaging to these victims in a myriad of ways. This was identified in Adamson v The Queen [2015] VSCA 194 at [13 – 63], particularly at [56] where the Court said:
"The persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than to ‘in person’ offences. The presumed harm need not be immediate and manifest, but includes the danger of future harm. The presumption arises by way of inferential reasoning, and the objective gravity of the offending is informed by the content of the communications. Where there is evidence of manifested harm, the nature of that harm may aggravate the offending.”
31I consider that the adverse effects which I infer were caused by your conduct in respect of these young vulnerable children, constitutes significant harm. That harm is an important matter to be taken into account in the formulation of your sentence.
32As to your possession of child pornography, Johnson J in R v De Leeuw [2015] NSWCCA 183 at paragraph 72 (g) to (h), explained that the possession of child pornography material creates a market for the continued corruption and exploitation of children. Children are sexually abused in order to supply that market. Moreover, victims of child pornography not only have to endure the initial abuse but they must live with the potential consequence that their images may be traded, swapped, and retained on the internet in perpetuity.
Personal History
33You were born on 23 June 1993 and are now 25 years of age. During the time frame of the offending you were between 19 and 23 years of age. You have no prior convictions.
34Your father is of Greek heritage and your mother is of Lithuanian background. You are the third of four children.
35You were accompanied in court by your two brothers, your sister-in-law, your mother and stepfather, and your biological father. It is important, in my view, that your family is prepared to indicate their support for you in that way, notwithstanding the nature and the seriousness of your offending.
36Your parents separated when you were approximately 10 years of age and you thereafter lived between them.
37You attended Eltham Primary School to grade 3, then went to Clifton Springs Primary at the time of your parent’s separation. You told Dr Sullivan, your assessing psychiatrist, that you enjoyed computers and had some friendships, although otherwise felt that you were bullied. You said “I never felt like I fitted in” and that your friendships tended to be with other boys who, like you, were “shy…nerds”.
38You attended Bellarine Secondary College for the first two years of your secondary schooling. You did year 9 whilst living with your father at Templestowe Secondary College and for years 10 and 11 you returned to Bellarine College.
39Your secondary schooling was also quite difficult. You continued to be subjected to bullying. You describe yourself as being shy and introverted and by the time you reached year 10 you started to stay home from school and play computer games. You were avoidant and did not have many friends other than some online friendships. You left school during year 11.
40You did attempt to further your education through TAFE courses in a Certificate in General Education and Information Technology but were not able to complete those subjects.
41You have not undertaken any significant gainful employment and you have been fortunate that your father has been supporting you financially. You have always lived at home.
42Essentially, your personal circumstances paint a picture of someone who has been lonely, somewhat alienated socially and lacking self-esteem. You find it difficult to interact with adults and become anxious when engaging in simple tasks such as ordering a pizza over the phone.
43Save for one long distance relationship with a young woman in Adelaide when you were in your teens, you have never had a significant romantic relationship.
44There appear to be no concerns as to substance abuse.
45It seems that you first started looking at what might be described as mainstream pornography when you were 13 or 14 years of age. And over time you moved to more extreme pornography and from the age of 17 or so, commenced viewing illegal images including child pornography and bestiality. You told Dr Sullivan that you recognised the wrongfulness of your conduct and that you felt that that was part of your motivation because it felt wrong.
Psychiatric Evidence
46Dr Danny Sullivan provided a report of 26 April 2018 as to any mental health issues of potential relevance in sentencing. Dr Sullivan’s findings were at [40]:
"He shows long-standing patterns of avoidance of social engagement and feeling of difference and ostracism, and holds negative and self-deprecating views about his abilities and progress in life. His attitudes have constrained his engagement in education, employment and relationships. I consider that he would satisfy a diagnosis of Anxious (Avoidant) Personality Disorder, as set out in the International Classification of Diseases, 10th Revision (ICD-10). The features are pervasive, persistent and significantly impairing.
Mr Chesna-Zervos describes some depressive symptoms which have been present for extended periods of time, without frank biological disturbance or episodic alteration of functioning. This is consistent with dysthymia, a chronic mood disorder in which persistently lowered mood is evident but which does not meet the clinical threshold of this severe depressive illness.
Interaction of personality disorder and persistent low grade mood disorder are associated with his markedly impaired psychosocial functioning and both diagnosis predispose to, and perpetuate the other. A differential diagnosis of social phobia would require prominent anxiety symptoms, which are not present. There is no indication of other anxiety spectrum disorder or of autism spectrum disorder.”
47Dr Sullivan continues at [44]:
“I consider that Mr Chesna-Zervos would clearly meet a diagnosis of paedophilia as set out in the ICD-10. Although he has limited sexual experience, his interest in and tolerance of pornography involving sexually immature children and infants indicates that he experiences sexual arousal to images of children. His pattern of sexualised internet chat with teenage girls is consistent with a sexual attraction to minors and his acceptance of underage sexual activity as fantasy, if not a potential goal. It is likely that he exhibits other deviant sexual arousal, given his long standing and intense use of pornography with a gravitation towards more extreme images. High levels of pornography use may result in habituation and seeking ever more extreme or deviant pornography."
48Dr Sullivan explained that your personality difficulties predisposed you to an unhealthy reliance on anonymous communication with others in lieu of engagement in the real world. You came to feel a sense of belonging with others with deviant sexual interests online, which tended, in your mind, to normalise your behaviour.
49He considered that your abnormal personality structure was in part causally associated with your offending and reduced your capacity to exercise appropriate judgment about the moral relevance and wrongfulness of your actions.
50Dr Sullivan expanded on his opinion in oral evidence on your plea. Your anxious (avoidant) personality disorder is, he said, as disabling as any mental illness would be. That is so because it is associated with profound social and interpersonal deficits.
51Your condition, however, does not affect your capacity to understand the nature and gravity of your offending. Your personality disorder is commonly encountered in sexual offenders and provides a partial explanation for your offending. Underlying your condition is a diagnosis of paedophilia. You have a sexual attraction to children which is rationalised by distorted thought processes. You have sought treatment for these problems.
Treatment
52Two months or so after your arrest, you started to attend Dr Mathew Barth, psychologist, to undertake a Sex Offender Treatment Program. As at the time of the plea, you had attended 36 Treatment sessions voluntarily and at your own expense.
53Dr Bath provided reports dated 26 April 2018 and 16 August 2018. The focus of the program you have been undertaking has been directed at helping you gain insight into your offending, helping you understand the impact of your offending on victims, improving social skills and developing a plan to prevent recidivism.
54By April this year you had progressed through to the third stage of treatment in the program and what was particularly encouraging about that treatment has been the fact that you have consistently engaged and applied yourself to it. You appear to have maintained your motivation to change. That said, your progress has been somewhat slow. Dr Bath concludes his April report by stating at paragraphs [16] and [17]:
"Mr Chesna-Zervos continues to present as a young man with severe psychosexual issues. On a positive note, he has commenced the process of gaining insight into his offending, has begun to address his offence-supporting cognitions and commenced the process of learning advanced RP planning. However, Mr Chesna-Zervos' progress has been relatively slow. This underlines the entrenched nature of his interpersonal and sexual issues.
In summary, despite engaging well in treatment thus far, Mr Chesna-Zervos requires extensive treatment if he is to address his issues comprehensively. It is imperative that he completes a specialist sex -offender treatment program. This treatment should be instituted as soon as is practicable. Particular attention should be paid to continuing to enhance his victim empathy, improving his coping and social skills and advancing his relapse prevention planning and fantasy management techniques. Psychological treatment which contains his noteworthy anxiety and self-esteem issues is also warranted."
55Dr Bath’s latest report confirms slow but steady progress. He says in that report at paragraph [4]:
“As noted in my earlier report, Mr Chesna-Zervos presents with severe interpersonal and sexual issues. Furthermore, when considering the gravity of his offending, he is likely to continue to require a longer period of intensive offensive-specific treatment than most online offenders. However, his commitment to treatment has been positive and ought to be encouraged at every opportunity. At risk of stating the obvious, the more treatment Mr Chesna-Zervos is able to access, the better for his rehabilitative prospects in the community and the more likely that his risk of recidivism may reduce in the long term."
56When giving his evidence Dr Sullivan took into account the work you had done with Dr Barth. When taken to the issue of risk of reoffending, Dr Sullivan noted that you have some entrenched and difficult cognitive distortions but that you have worked on those problems, engaged well and made progress. However, he was reluctant to provide a risk assessment at this stage. Suffice to say there is a good deal of challenging work that lies ahead.
57Finally, Dr Sullivan noted and confirmed in his evidence that incarceration will almost certainly weigh more heavily on you, given, among other things your particular personality traits and vulnerable presentation.
Submissions
58Mr Hancock who appeared on your behalf accepted that the offending was serious and that the material the subject of the charges was both graphic and extremely distressing.
59He further acknowledged with respect to Charges 1 and 9 that a significant proportion of the material fell into the very serious categories of classification and that there was a significant volume of material.
60He relied on the following matters as mitigating generally:
61Your plea of guilty was entered at an early stage in the Magistrates’ Court once the appropriate charges were settled. There was no contested committal.
62Your remorse as indicated in your plea, your letter to the court and most particularly, in the manner you have applied yourself to treatment.
63Your complete lack of past criminal offending.
64There has been a significant delay in finalising this matter which was not in any way attributable to you. The matter was detected in July 2016 and has not been finalised until November 2018. Throughout that time these very serious charges have been weighing on you. You have used that time constructively to pursue the Sex Offenders Treatment Program with Dr Bath.
65Importantly you were 19 years of age at the time this offending started and 23 at its end. You should be sentenced on the basis of that you were a youthful offender and a greater emphasis on rehabilitation is required.
66Whilst your prospects of rehabilitation remain dependant on continued treatment, you have shown significant motivation in applying yourself to that treatment. In addition you have lived at home, not reoffended, not used the internet and have effectively done all that you possibly could to address the causes of your offending whilst on bail.
67Mr Hancock further submitted that the principles in R v Verdins & Ors (2007) 16 VR 269 were engaged on the basis of Dr Sullivan’s evidence that your abnormal personality structure was causally connected to your offending and reduced your capacity to exercise appropriate judgment about the moral relevance and wrongfulness of your actions.
68It was contended as I understood it, that a disposition that substantially emphasised rehabilitation should be imposed. This could be achieved through service of part of the sentence in the community whether by CCO, Community Correction Order, or a RRO, Recognisance Release Order.
Crown Submissions
69Ms Breckweg, who appeared on behalf of the Commonwealth Director, submitted that the only appropriate penalty in a case of this seriousness was an immediate term of imprisonment with a non-parole period.
70General deterrence, it was submitted, was a paramount consideration and factors personal to you, such as your youthfulness and lack of prior convictions, carry less weight. Protection of the community also must be prominent because of the extent and duration of the offending taken with the diagnosis of paedophilia.
71Ms Breckweg characterised these nine charges as a "constellation of very serious offending" that justified a sensible degree of cumulation, taking into account the principle of totality.
72As to charges 1 and 9, there were 14,855 images and 1337 videos in total. 46% of those files were in category 1. It could not be said that the gravity of the offending was reduced because a significant proportion of the files were in category 1. It was argued that the level 1 files are inherently serious because they still depict children in a sexualised manner.
73In any event, about 27% of the images were category 3, that is depictions of children as young as infants engaging in non-penetrative sexual activity. Over 50% of the video files were in category 4, that is the videos showed the real life rape of children. In addition, the category 5 material depicted children as young as 18 months being tortured and sexually assaulted.
74There were hundreds of different victims across the material. The offending spanned nearly 4 years.
75Charges 2 and 3 pertain to an 11 year old girl and Ms Breckweg pointed out that you pretended to be a female of similar age to make it more likely that the child would engage with you. You sent six category 1 and 20 category 4 images to her and you persuaded her to send even more revealing photos of herself – 9 category 1 images in all. In doing so, it was argued that you were not just a passive recipient or possessor of this material, you became an active participant in the market for the production of child pornography.
76Charge 4, it was submitted, involved offending over a 9 month period where you groomed a girl to whom you had been speaking since she was 12 years of age. The conversations you engaged in were sexually explicit and graphic. You asked her to come to Melbourne, you said you wanted to do bad things to her, offered to show her your penis, encouraged her to perform lewd acts and told her what you wanted her to do in graphic detail.
77I was referred to the decision in Meadows v The Queen [2017] VSCA 290. Just as in that case, your predatory conduct exemplifies the sort of conduct this provision seeks to prevent. It was argued in effect, that your sole purpose was to use this very young girl as a vehicle for your own sexual gratification, regardless of the corrupting effect your conduct was likely to have on her.
78Charge 5 related to transmitting indecent communications over Skype with a user who said she was 14 and covered a period of about 4 months. It was submitted that the conversations relating to this particular charge were extremely indecent.
79Charge 6 involved soliciting child pornography from nine people, seven of whom said they were between 13 and 16 years of age. Again, you commonly messaged people you thought were young girls and sought to establish a rapport that would enable you to persuade them to send sexual images of themselves and it was submitted that this is further exploitative conduct where you actively participated in the child pornography market.
80It was submitted that charge 7, as I understood it, was a serious example of the offence of transmitting child pornography. You transmitted child pornography images on 286 occasions to 147 users, 10 of whom were said to be between 13 and 15. You would routinely ask users if they were interested in ‘kiddy porn’ and if they wanted to receive some. You told many of those users you were interested in the age group two to six years of age. In one instance, you encouraged a user who did not express any interest in child pornography to view a category 4 image you had sent to her.
81Charge 8 is indicted as a rolled up charge in that it encompasses the encouragement of a person to engage in both sexual intercourse with a child outside Australia, and the encouragement of a person to engage in non-penetrative sexual activity with a child, outside Australia.
82The offence is described as follows:
272.19 Encouraging offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of encouraging an offence against this Division (other than this section or section 272.20); and
(c) the conduct is reasonably capable of encouraging such an offence.
Penalty: Imprisonment for 20 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not an offence against this Division is in fact committed.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(4) In this section, encourage means:
(a) encourage, incite to, or urge, by any means whatever, (including by a written, electronic or other form of communication); or
(b) aid, facilitate, or contribute to, in any way whatever.
83By virtue of subsection (1)(c) the conduct engaged in by the offender must be reasonably capable of encouraging the offence/s in question. Sub-section (4) attributes a wide meaning to encourage.
84Ms Breckweg argued that in this case the encouragement actually resulted in perpetrating shocking sexual abuse on a young toddler. When you urged that sexual acts be done to this child, on some occasions you received back images and videos reflecting much of what you had actually encouraged. In that sense, she submitted, this was very real offending.
85I was told that after examining these chat logs, the Australian Federal Police alerted the American authorities about the man you encouraged to sexually abuse this toddler. He has now been apprehended.
86Ms Breckweg referred me to the New South Wales Court of Criminal Appeal decision of DPP v Beattie [2017] NSWCCA 301 as to sentencing principles generally applicable in these sorts of cases. She submitted that you knew what you were doing was wrong as Dr Sullivan confirms and as to treatment, whilst what you have done has been to your credit, it was submitted that a lot more needs to be done.
87On the question of the application of the principles in Verdins case, Ms Breckweg argued that those principles were not properly engaged. The ‘big ticket item’ as she put it was the diagnosis of paedophilia to which Verdins cannot apply. DPP v O’Neill [2015] VSCA 325, it was submitted, substantially limits the application of those principles in cases of this kind but may allow for some small moderation.
88She also argued that whilst you were 19 when this offending started you are now 25 and for the purposes of imposing this sentence you cannot be regarded as a youthful offender.
Findings
89Turning to my findings, as to the gravity of the offending, I accept the prosecutor’s characterisation of these nine offences as a "constellation of very serious offending". I also accept and adopt her description of the particular features of each of the offences which I have recounted above and need not repeat in detail.
90In respect of charges 1 and 9, it was suggested that a sample of this material was available to be viewed. Bearing in mind what was said by R A Hulme J in R v Hutchinson [2018] NSWCCA 152 at paragraphs [49] and [50], and the reasonably detailed description of the material in the summary of prosecution opening, I was satisfied that it was not necessary to view the sample files.
91The features which are of particular concern are the volume of material, the length of time it was accessed and the qualitative analysis of the material revealing depravity of a very high order. These are serious examples of these offences.
92Whilst charges 2 and 3 are confined to a short period they involve you preying upon an 11 year old girl. Obtaining images of her and exposing her to category 4 images is plainly reprehensible and appears to have been carried out in complete disregard of the damaging effect this must have had on her.
93Charge 4 involves an extended period of nine months of grooming of a 15 year old child. Charge 5 involves numerous instances of indecent communication over a five or so month period with a young girl who said she was 14 and was apparently engaging in self harm.
94Soliciting child pornography (charge 6), and transmitting it (charge 7) among numerous other users, a number of whom where under 16, are clearly also serious offences.
95Finally, I regard your offending in respect of charge 8 as the most serious on the indictment.
96When Division 272 was inserted into the Commonwealth Criminal Code in 2010 the then Minister for Home Affairs, Mr Brendan O’Connor, stated during the second reading speech:
“Unfortunately, the internet is creating demand for new material of ever greater levels of depravity and corruption, and the technology provides new opportunities for abuse to take place”[3].
[3] (House of Representatives, Parliamentary Debates (Hansard), 4 February 2010 at 408−410)
97This offending very much illustrates that unfortunate reality.
98Since the plea in this matter, the decision of Hawke v The Queen [2018] VSCA 287 was handed down. The parties were provided with an opportunity to make further written submissions, given that it dealt, in part, with this offence. No further submissions were put, save that it was pointed out that each case needed to be assessed according to its own particular circumstances.
99In Hawke, Ashley JA referred to an argument put by the Commonwealth to the effect that this legislation enacted ‘the Australian government’s adoption and implementation of international obligations to protect children from sexual exploitation by Australian citizens overseas’. It was argued that was an important sentencing consideration in these sorts of cases. That is clearly so.
100Hawke provides some limited comparative assistance. The sentence imposed on the encouragement offence in that case was five years, albeit that sentence may have been constrained to some extent by the application of the totality principle. Nor was that particular count the subject of a specific ground of appeal. I note also, that the offender in that case sought to characterise the encouragement as fantasy.
101I regard your offending as more serious. It encompasses encouragement of sexual intercourse as well as other sexual activity and, as the prosecutor submitted, it was “real”.
102Although the decision in Beattie has been of some assistance as to general sentencing principles, again, it is limited.
103I have considered the factors relevant to the assessment of the objective seriousness of offences against ss.272.8 and 272.9 of the Code that were set out by Price J in Beattie at paragraph [127], however, many of those matters do not arise here.
104There is, otherwise, no pattern of previously decided cases that might act as a yardstick against which to compare approaches to sentencing for this offence.
105Here, in my view there are three factors that are particularly aggravating, the first is the age of the child, the second is the depravity of the encouragement and the third is the fact that the encouragement was effective.
106How you, and the other male involved in this abuse, could so flagrantly disregard this young child’s humanity and brutally objectify her for your own sexual gratification, is difficult to comprehend. You repeatedly encouraged the rape of a two year old child. You successfully encouraged the making of images and videos which depicted the horrifying abuse of this child.
107I take the view that your actions constitute a very serious example of this offence and that the sentence imposed must appropriately mark the community’s abhorrence of this conduct.
108General deterrence is the paramount sentencing consideration for this offence and indeed all of the offending. Specific deterrence is also important, given the diagnosis of paedophilia, and the scope and duration of all of this offending.
109As I indicated earlier, the significant harm I infer you have caused the victims of this offending is also an important factor to be taken into account in formulating a just and appropriate sentence.
Findings With Respect To Psychiatric Evidence
110Turning to findings with respect to the psychiatric evidence, I accept Dr Sullivan’s opinions. First, that your abnormal personality structure is associated with profound social and interpersonal deficits and it provides a partial explanation for your offending; second, that you meet the diagnosis of paedophilia.
111The distorted thinking that characterises the second condition does not engage the Verdins principles. Indeed the diagnosis of paedophilia underlines the need to emphasise specific deterrence and protection of the community.
112Regarding the first condition, as was explained in O’Neill, a personality disorder, which is effectively a personality type, is different to the impairment of an offender’s mental functioning. A personality disorder will not ordinarily engage Verdins.
113I am satisfied on the strength of Dr Sullivan’s evidence that, in spite of your abnormal personality structure, you knew what you were doing was wrong, that it was illegal, and that you are able to make calm and rational choices in choosing what you looked at and what you did.
114That said, Dr Sullivan was prepared to acknowledge at least some reduced capacity to exercise appropriate judgement about the moral relevance and wrongfulness of your actions. In O’Neill the Court took the view that the respondent’s complex personality disorder bore in a limited way on the seriousness with which that offender’s conduct should be viewed.[4]
[4]O’Neill at [100]
115I take the view here similarly, that your abnormal personality structure, given its severity, has a limited relevance that allows for some moderation in the expression of general deterrence and specific deterrence. However, I must make clear that your condition does not attract the level of mitigation of sentence that must be allowed where Verdins principles do apply.
116I also accept Dr Sullivan’s view that incarceration will almost certainly weigh more heavily on you and that you are likely to be vulnerable even though you would most likely be kept in the protection stream in prison.
Findings As To Your Personal Circumstances
117I accept Mr Hancock’s submissions as to your plea, your remorse, your lack of criminal history and the delay in finalising these matters as meriting a substantial reduction in the sentence that would otherwise be imposed.
118Because you are now 25 I cannot sentence you as a youthful offender, but it seems to me that because you commenced your offending as a youth and since detection you have demonstrated what I regard as a genuine commitment to treatment, I should seek to emphasise rehabilitation as a sentencing purpose to the extent that that is possible.
119Ultimately, however, I have concluded that the seriousness of this offending warrants no disposition other than an immediate term of imprisonment with a non-parole period.
120Importantly, the principle of totality has a significant limiting role in the formulation of the total effective sentence to be imposed. Such cumulation that must be imposed will seek to a small extent to recognise some of the particular victims you have offended against.
121Mr Chesna-Zervos, would you stand, please. Counsel, I will announce the sentence in terms of years and then come back to commencement dates.
122The offender is to be sentenced for the following Commonwealth offences:
| Charge | Offence | Sentence |
| 1 | Between 31 August 2012 and 14 July 2016 access material using a carriage service, the material being child pornography material contrary to s 474.19(1) Criminal Code (Cth) | 3 years Commence 19 May 2019 |
| 2 | Between 31 March 2014 and 1 April 2014 transmitting child pornography material using a carriage service, the material being contrary to s 474.19(1) Criminal Code (Cth) | 2 years 6 months cumulative on charge 8 Commence 19 May 2025 Expire 19 May 2027 |
| 3 | Between 31 March 2014 and 1 April 2014 causing material to be transmitted to himself using a carriage service, the material being child pornography material contrary to s 474.19(1) Criminal Code (Cth) | 2 years Commence 19 May 2019 |
| 4 | Between 9 September 2015 and 14 July 2016 use a carriage service to transmit communications with the intention of making it easier to procure the recipient to engage in sexual activity with him contrary to s 474.27(1) Criminal Code (Cth) | 18 months 3 months cumulative on charge 8 Commence on 19 February 2026 Expire 19 August 2027 |
| 5 | Between 5 November 2015 and 26 March 2016 use a carriage service to transmit a communication to a recipient under under 16 years of age, which included material that is indecent contrary to s 474.27A(1) Criminal Code (Cth) | 12 months 3 months cumulative on charge 8 Commence on 19 November 2026 Expire 19 November 2027 |
| 6 | Between 24 June 2016 and 12 July 2016 solicit material using a carriage service, the material being child pornography material contrary to s 474.19(1) Criminal Code (Cth) | 2 years Commence 19 May 2019 |
| 7 | Between 24 June 2016 and 14 July 2016 transmit material using a carriage service, the material being child pornography material contrary to s 474.19(1) Criminal Code (Cth) | 2 years 6 months 6 months cumulative on charge 8 Commence 19 May 2024 Expire 19 November 2026 |
| 8 | Between 5 July 2016 and 6 July 2016 engage in conduct with the intention of encouraging offences against Division 272 of the Criminal Code (Cth) contrary to s 272.19(1) Criminal Code (Cth) namely: Encouraging another to engage in sexual intercourse with a child contrary to section 272.8(1) of the Criminal Code (Cth), and Encouraging another to engage in sexual activity with a child outside Australia contrary to s 272.9(1) Criminal Code (Cth) | 7 years (base sentence) Commence 19 May 2019 Expire 19 May 2026 |
| 2. The offender is also to be sentenced for the following State offences: | ||
Charge | Offence | Sentence |
9 | On 14 July 2016 knowingly possess child pornography material contrary to s 70(1) Crimes Act 1958 (Vic) | 2 years 12 months npp. 6months cumulative on the Commonwealth Sentences. Sentence to commence today 20 November 2018 |
123I declare that with respect to charge 9 you have been sentenced as a Serious Sexual Offender.
124You are required to comply with the reporting obligations of the Sex Offenders Registration Act 2004(Vic) for life.
125Coming back to the structure of the sentence:
State
126With respect to the state sentences, being charge 9, I will fix a non-parole period of 12 months. I will order that that that sentence commence immediately. And I will state now, that it is my intention that 6 months of that state sentence be served cumulatively upon the Commonwealth Sentences.
Commonwealth
127Coming back to the Commonwealth sentences, the base sentence is the sentence imposed on charge 8. That is a sentence of 7 years which will commence on 19 May 2019 and expire 19 May 2026
128The sentences imposed in respect of charges 1, 3 and 6 are to run concurrently with the sentence imposed on charge 8. All of those sentences are to commence on 19 May 2019.
129With respect to charge 7, which is a sentence of 2 years and 6 months, 6 months of that sentence is to be served cumulatively upon the base sentence. That sentence is to commence on 19 May 2024 and expire 19 November 2026.
130Charge 2 is a sentence of 2 years. Six months of that sentence is to be served cumulatively upon the sentence imposed on Charge 7 and the other sentences imposed with respect to the Commonwealth Matters. That sentence is to commence on 19 May 2025 and expire on 19 May 2027
131Charge 4 is a sentence of 18 months imprisonment. Three months of that sentence is to be served cumulatively upon the sentence imposed on Charge 7 and the other Commonwealth sentences. It is to commence on 19 February 2026 and expire on 19 August 2027
132Charge 5 is a sentence of 12 months imprisonment. Three months of that sentence is to be served cumulatively upon the sentence imposed in respect of Charge 7 and the other sentences. It is to commence on 19 November 2026. It is to expire on 19 November 2027
133That makes a total effective sentence with respect to the Commonwealth matters of 8 years and 6 months.
134I will fix in respect of the Commonwealth matters, a non-parole period of 5 years and 6 months, which will render, when all matters are taken into account, Mr Chesna-Zervos, eligible for parole as at 19 November 2024.
135You may be seated for a moment, Mr Chesna-Zervos. To repeat the total effective sentence with respect to the State matters, is two years. A non-parole period of 12 months. The total effective sentence with respect to the Commonwealth matters, is 8 years 6 months, with a non-parole period of five years, six months.
136As I have stated, six months of the state sentence is to be cumulative upon the Commonwealth sentences, rendering a total effective overall sentence on both State and Commonwealth matters of 9 years, and I will fix a non-parole period of 6 years.
137I will declare pursuant to s.6AAA that, but for your plea, Mr Chesna-Zervos, you would have been sentenced to a total effective sentence of 12 years imprisonment with a non-parole period of eight years and nine months. I will cause that declaration to be noted in the records of the Court.
138Counsel might need a moment to digest the structure of the sentence to ensure it reflects what I have announced. I will give you a moment, Ms Breckweg, Mr Hancock.
139MS BRECKWEG: Thank you, Your Honour.
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