IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
(CTH)		
		
v		
		
CALVIN WARNER (a pseudonym)
[known as Beth Warner]		

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JUDGE:	HIS HONOUR JUDGE TINNEY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	13 February and 21 April 2023	
DATE OF SENTENCE:	17 May 2023	
CASE MAY BE CITED AS:	DPP (Cth) v Warner (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 803	

REASONS FOR SENTENCE
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Subject:			Use carriage service to make available child abuse material and to transmit child abuse material (Charges 1 and 2); fail to comply with
Sex Offenders Registration Act 2004 reporting obligations (Charge 3); breach of supervision order x 2 (Charges 4 and 5); offences committed whilst housed in Corella Place on Supervision order.  35 years of age at time of sentence with lengthy and relevant criminal history. Guilty plea; Worboyes; mandatory minimum terms of imprisonment for 2 Commonwealth and 2 State offences. Approach. Bahar. 

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APPEARANCES:
	Counsel	Solicitors	
For the Commonwealth	Ms D. Karamicov	Commonwealth Director of Public Prosecutions	
			
For the Accused	Mr S. Kenny (plea)
Ms S. Buckley (sentence)	Emma Turnbull Lawyers	

HIS HONOUR:
1	Beth Warner, you have pleaded guilty to use of a carriage service to make available child abuse material as well as to transmit child abuse material (Charges 1 and 2), failure to comply with your Sex Offenders Registration Act reporting obligations (Charge 3) and two charges of contravening the conditions of your supervision order (Charges 4 and 5).  The maximum penalty for the first two charges is 15 years' imprisonment.  The remaining offences each have a five-year maximum term.  The summary and the Crown submissions set out the detail of the mandatory sentencing regime in relation to four of these charges.  Charge 3 is the odd charge out in that there is no mandatory scheme in play for that offence.
2	You were born in March 1988 and hence you are 35 years of age now.  You have a highly relevant criminal history.
3	On 21 April of this year, the prosecutor, Ms Karamicov, opened this matter to the court in accordance with an amended written plea opening dated 20 October 2022.  That document was marked as Exhibit A.  Your counsel, Mr Kenny, advised the court that this was an agreed opening.  It is a lengthy document, and there is no utility in my setting out all the agreed facts in my reasons.  I will sentence in accordance with that agreed summary.
Facts
4	I should still say something briefly as to the facts so that my ultimate sentence can be understood by anyone who happens to access these, my reasons.
5	In the 10-month period covered by the various charges (November 2020 to September 2021), you were a resident of Corella Place up in Ararat.  Of course, the charges contain their individual date spans.  Corella Place is a Corrections facility, and you were there owing to a Judge making a determination as to your risk of serious sexual reoffending.  That order, made under the Serious Offender legislation, was made in 2015 and was initially for three years, but it was extended for a further five years from October 2018, expiring on 21 October 2024.  The supervision order, as you know, had a number of very strict conditions including the residential condition.  In the same time frame, you were the subject of lifetime reporting obligations pursuant to the Sex Offenders Registration Act 2004, and that obligation flowed from the cumulative effect of various sentences imposed upon you in 2012 and then later in May 2019 for crimes including production and transmission of child abuse material.
6	In June 2021, police received information which led them to investigate you.  Between 5 November 2020 and 30 July 2021, you used a number of different phone numbers to call in to a platform called Fastmeet.  You communicated with various people, and those contacts were recorded.  To quote from the agreed summary, the communications consisted of depraved and explicit descriptions of sexual activity between adults and children including incest, grooming practices and physical torture, all of which met the description of child abuse material (CAM) under the legislation.  The summary sets out a small selection of the communications.  I have read the entirety of them.  That conduct is covered by Charge 1 on the indictment.
7	Charge 2 relates to your use of Kik, a chat application.  You used that application on two days in June 2021 to transmit three images and four video files.  The summary describes the nature of the images and files.  They were unequivocally young children aged between three and eight, and the images included adults engaged in penetrative sexual acts with male and female children in that age range.
8	Charge 3 relates to your reporting obligations under the Sex Offenders Registration Act 2004.  You failed to report the mobile phone numbers, an email address and two usernames.
9	Charges 4 and 5 relate to breach of the supervision order.  Condition 5.1 of that order was that you must not commit a serious sex offence in Victoria or elsewhere.  Charges 1 and 2 on this indictment involved serious sex offences, hence those two breaches in Charges 4 and 5.
10	You were arrested on 15 September 2021 and interviewed then as well as at a later date on 25 November 2021.  You made some very limited admissions in the first interview, but it is not suggested they were in any way complete or truthful.  Plainly, they were not, and you denied many things which, of course, you now admit by your plea.  The second interview was predominantly a no comment interview, which was, of course, your right.  Your stance at either interview is not a matter in any way in aggravation.  It is just that it limits your counsel's ability to point to any meaningful co-operation or to remorse.
11	You have been in custody since your arrest.  You pleaded guilty on the day of a contested committal hearing in relation to Charges 1 and 3.  That occurred, though, prior to witnesses being called on that day.
12	The agreed summary refers to the extension of the order under the serious offender regime.  The reasons of Judge Hannan from October 2018 are before me as well as the supervision order itself in the form in which it was extended. So too the reasons for sentence of Judge Montgomery from 2012.  No issue was taken by your counsel in relation to my having and acting on this various material.
13	Since the original supervision order was made in 2015, you have been charged and dealt with for 14 offences and appeared in court on five occasions for breaching the conditions of the supervision order.  Since being subject to the Sex Offenders Registration Act obligations, you have breached those reporting obligations on 10 previous occasions.
14	A document setting out the nature of the past supervision order breaches was placed before me without any objection and marked as Exhibit E.  I note the last page refers to the matters that I am, in fact, dealing with.  That document makes for sobering reading.  Her Honour Judge Hannan's judgment about your level of risk being sufficiently unacceptable as to justify the onerous type of order made under the Serious Offender Act (or the preceding Act) has been amply demonstrated by your previous acts as well as the ones for which I must now pass sentence.  It is deeply troubling that even in a very secure setting with all manner of limitations to your freedom and with various prohibitions set up, of which you were well aware, you just continue to offend.  Despite mandated prison sentences existing as a result of restrictive conditions attached to the order, you still sought a way to commit serious sexual offences.  Regrettably, you have little, if any, desire to reform.  Your future prospects are gloomy indeed, as was readily conceded by Mr Kenny.
15	So much, then, for what is really only a brief summary of the agreed summary placed before me.
In Mitigation
16	Mr Kenny appeared on your behalf and relied upon written plea submissions dated 18 April 2023.  He relied upon a report from Ms Jane Lofthouse, a clinical neuropsychologist, but he made it clear that he was not relying on that report to in any way engage any of the principles from the cases of Muldrock, Verdins or Brown.
17	Mr Kenny, in his written and oral submissions, informed me as to your family, educational and work history.  He made some submissions as to the objective seriousness of the offending, the relationship or overlap between the offences and the relevance of your past criminal history.  He made some submissions as to your rehabilitative prospects.  He said that they were not strong.  He, when pressed, said there might be a ‘scintilla’.  That word is defined to mean a speck or spark.  He conceded the obvious high risk of reoffending.  He made some submissions as to the statutory sentencing provisions that applied here but did not appear to in any way challenge the more complete legislative review contained in the prosecutor's detailed written sentencing submissions.
18	In truth, there were very few matters in mitigation and little, if any, contest as between the parties.
19	Mr Kenny relied upon the following matters in mitigation:
•	your relatively early guilty plea in the course of the global pandemic;
•	the presence of some limited co-operation; and
•	a COVID-19 increase in your burden of imprisonment.
20	He conceded the seriousness of the offending and the inevitability of a substantial prison sentence with a non-parole period.  He was not suggesting that there were any exceptional reasons such as to avoid the operation of the State mandatory sentencing regime where applicable (Charges 4 and 5).  I will spend no time, then, dealing with the State mandatory scheme and the exceptions to that scheme, as they simply do not arise before me.
Prosecution
21	The prosecutor, Ms Karamicov, had prepared some very detailed written sentencing submissions, which were marked as Exhibit D.  That document went to many matters of established principle in this area.  By that, I mean principles that have been derived from a variety of cases, some of them which are in fact footnoted, dealing with the seriousness of the child abuse offences.  Those submissions were entirely uncontroversial.  Then the written submissions applied those general principles to the specific matters before the court that I am dealing with.  Again, there was really no controversy in relation to those submissions at paragraphs 11-20.  I do not intend to work my way through every submission contained within that document either now or later in these reasons.
22	Finally, the written submissions dealt with the effect of the State and Federal mandatory schemes and referred to a number of cases relevant to the interpretation of the Federal scheme.  That case law made it clear that the provisions set down another guidepost.  There was the maximum penalty as well as the mandatory minimum period for Charges 1 and 2, and they represented a floor and a ceiling respectively.  The prosecution argued that the possible available reduction for a plea (there is a maximum of 25 per cent available under the regime) would be unlikely to apply here given the seriousness of the offending.  I will further discuss the legislative framework later in these reasons.
23	The Commonwealth Director was calling for a term of imprisonment and one of a dimension requiring a non-parole period to be fixed.  Given the mandatory scheme and the nature of the offending, that was very obviously the only possible sentencing outcome here and was conceded to be so by your own counsel.
24	I will come back to the various matters raised by each party, but I want to turn firstly and briefly, to your background.
Background
25	Your background is set out in great detail in the report of Ms Lofthouse.  It is referred to also in the written outline prepared by Mr Kenny.  I accept the family and personal background that has been placed before me and I see no utility in now just slavishly restating it.  I do take it into account.
26	By way only of a brief summary, then, you are now 35 years of age, born in March 1988.  You were raised as a boy by your mother, and you lived in a variety of houses in Melbourne and down in the Latrobe Valley.  You have three stepsiblings.  Your parents had separated prior to your birth, and you have had virtually no contact with your father.  There was some dysfunction in your family life which intruded on your schooling, which was fragmented.  You have a low level of intellectual functioning, as confirmed by the expert report.  There was, in fact, attendance upon a special school.  You are not greatly literate.  I do accept that there were social and educational issues, and you developed, when you were still an adolescent, a significant issue with alcohol and drugs which persisted into adulthood.  I mentioned the separation of your parents, and what followed then was a succession of stepfathers with a number of moves.  You were admitted to care and absconded and lived on the street from time to time.  This led on to crime, and then that led on to detention in a youth justice facility and then ultimately prison.  You described to Ms Lofthouse two relationships of note.  You were, in fact, married when you were 23, but you have no children.  You have had infrequent employment and have been on Centrelink benefits for a number of years, at least when not imprisoned.  You have no strong relationship with any of your siblings, and though there is at least still some contact with your mother, that relationship has not been simple at all.  There have been intervention orders, and she herself is transitioning to live as a male.  I was informed by your counsel that you have no visitors and that was not owing to COVID-19 or any restrictions in place that developed in the course of the pandemic.
27	Mr Kenny told me that you have not lived freely in the community since 2011 when regard is had to the sentences and then the orders made under the Serious Offender legislation.  Since 2015, you have been subject to the very necessary and restrictive regime under the supervision order.  You have been housed in secure accommodation at Corella Place with all manner of restrictions to your movements and personal freedoms, and yet you still find on a number of occasions, the ability to offend.  
28	I was told that you started to live and identify as a female in 2021.  Mr Kenny told me that you wish to remain in Corella Place upon serving your sentence.  You have no real desire for treatment or change.  You are unable to provide to Ms Lofthouse any plan to reduce your risk of offending.
29	Yours was not the easiest of backgrounds, and of course, I take it into account as far as I am able to.  Your counsel, who is very well informed as to the law, specifically advised the court that he was not relying upon any of the principles from the cases of Bugmy, Marrah or Herrmann nor any of the six limbs from the Verdins/Brown line of authority.  Your background, though, is still of obvious relevance, and I do take it into account as far as I am able to.  Likewise, your low level of functioning is something which I must, and I do, take into account.
30	Your criminal history is of real significance to my task, so too your conduct in the course of the supervision order which has given rise to further criminal offences, some of them of a similar nature.  I am not going to conduct a full audit of the prior criminal history or the matters the subject of past breaches summarised in Exhibit E.  You were at the time of the offending that I am dealing with on the sex offender's registry for life.  You were on a very restrictive supervision order.  You just continue to offend – as I say, 14 breaches of the supervision order.  I am dealing with the fifteenth and sixteenth breach since the order was first imposed in 2015.  There are 10 previous breaches of the reporting obligations under Sex Offenders Registration Act provisions.  I am dealing now with the eleventh breach since you were subject to those obligations in 2012.  One of the past matters dealt with at the Magistrates' Court on 27 May 2019 related to production of child abuse material on two occasions and use of a carriage service.  The summary marked as Exhibit E casts some light on some of your past conduct whilst housed up at Corella Place, and some of it is not too dissimilar to what I am actually dealing with.
31	In your criminal record, there is the earlier indecent assault and an earlier instance of possession of child pornography.  There are other serious
non-sexual matters dealt with as well.  There was, in fact, a more serious matter referenced in Judge Hannan's reasons relating to conduct committed by you as a child upon a child, though of course I cannot have any regard to that at all.  It is not a prior conviction.
32	You do not fall to be sentenced a second time for any of the past matters contained in your prior criminal record.  You received those sentences and served them.  Those matters do not aggravate the matters that I am dealing with, though of course one role they do have is to enliven the mandated provisions within the Federal sentencing scheme.  Despite your criminal history, I must still pass proportionate sentences, though of course for four of the charges, I have mandatory minimum sentences.
33	The fact is, though, that I must make judgments as to the need to deter you and protect the community from you.  I must make judgments as to your rehabilitative prospects and your risk of reoffending.  The risk is very high, and as I have said, you have no real desire for change.  Your prospects are particularly weak.  The need for community protection and specific deterrence in this case is as clear as day.
34	Let me turn, then, to the matters raised in mitigation.
Guilty Plea
35	The first of those is your early guilty plea.
36	You have pleaded guilty at a relatively early stage.
37	There is a utilitarian benefit in pleading guilty.  Witnesses have all been spared the experience of coming to court to give evidence.  The community has been saved the time, cost and the effort associated with the conduct of a contested criminal hearing, either a trial up in this court or even a committal conducted in the Magistrates' Court.  The committal  was listed, but as I said, it did not proceed, and witnesses were not called; it settled on the day.  I must reward you for facilitating the course of justice in the way that you have.  There is also a heightened value for a guilty plea in the midst of the global pandemic for the many reasons mentioned in the case of Worboyes.  A large backlog of cases has arisen in the course of the global pandemic.  Your case is not part of that backlog.  A guilty plea is especially valuable in such a setting as this.
38	I take into account that you made some admissions and co-operated to a degree with the police, but that was not a strong point on the plea.  I also take into account your consent to the forfeiture of the phone.  I am going to make an order here, but that really is only a product of the logistics of actually getting your signature on a document which would have had you abandon the phone without me needing to make an order, so I take into account your consent.
Contrition
39	I move to the issue of your remorse, which was hardly raised on the plea.  Your counsel was not suggesting the presence of any significant remorse here.
40	A guilty plea is often, though not always, indicative of some contrition or remorse.  You have pleaded guilty at an early enough stage.  I have indicated that I will give full weight to that matter.  The case against you was an overwhelming one.  That does not reduce the weight that I give to your guilty plea.  That is a quite separate matter, and it is not dependent on whether or not I find the existence of contrition or remorse.  The strength of the case, though, does impact upon the inferences that might be drawn from the fact of your guilty plea.  Mr Kenny conceded that he could not take me to any indication of actual remorse dwelling in the materials before me.  That is plainly so, and there is also material before me indicating that you are resistant to treatment and counselling, wish not to engage with it and really do not wish to change.  I am not satisfied there is any remorse here over and above that which I can imply from your guilty plea.
Rehabilitation
41	I turn, then, to consider your prospects of rehabilitation, and I can do this very briefly.  I have already previewed my findings in my reasons to this point.  I will not repeat the chronology of the offending I am dealing with and the chronology of your many past breaches of the supervision order or your reporting obligations under the Sex Offenders Registration Act 2004.  Your counsel told me that every offence listed on your criminal history from 2015 occurred either when you were in custody in an adult prison or were living in the very restricted fashion up at Corella Place.  He informed me that you have not lived freely in the community since 2011 and that you have no real desire to be treated.  You have no desire to change.  You wish to live at Corella Place.  That is quite depressing, and of course it was at that place where you have committed the serious offences that I am dealing with and some that were dealt with in 2019.
42	At one point, the prosecution wished to place before me the report of Dr Godfredson.  This report was prepared in relation to the extension of the supervision order back in 2018.  Those reports are typically very complete and deal with, amongst other things, diagnosis and risk.  There are quotes from it in the reasons of Judge Hannan, to which objection was not taken by Mr Kenny.  However, your counsel argued against my receiving Dr Godfredson's whole report, citing the involuntary nature of it as well as what Mr Kenny said were damaging aspects of what was contained within it.  He argued that I could call for a Forensicare report if I wanted to.  I reminded Mr Kenny that this case had been listed for a plea last October, but the plea date was vacated on the defence application, owing to the fact that a psychological report was not then available.  The court was then told that it was due imminently.
43	The plea was adjourned to 13 February to permit the obtaining of that psychological report.  On that plea date, 13 February 2023, I came onto the Bench, and Mr Kenny told me that the report had been obtained in January of this year but that it was not being relied upon and hence had not been filed on the plea.  In fact, nothing had been filed.  He applied to further adjourn the plea to obtain another expert report, and the plea was adjourned to 21 April.  Ms Lofthouse's report had since been obtained, and it did not contain any meaningful risk assessment or even diagnosis.  Plainly, given the purposes for which it was commissioned and from what I can see of it in Judge Hannan's reasons, Dr Godfredson's report was detailed, and yet Mr Kenny was objecting to the court receiving and acting on the report other than the references to it contained in the reasons of Judge Hannan.  I was considering whether I would receive the report, and I believe ultimately, had the Crown pressed the issue, I would likely have received it but granted leave for cross-examination of the witness by your counsel.  However, it seemed at the time that this issue threatened to delay the plea.
44	The Crown ultimately retreated from seeking to rely upon Dr Godfredson's report when your counsel, in discussions with me on this topic, made it clear that he was not in any way relying upon any of the principles from Verdins and that he would not be making any submissions as to there being any favourable prospects of rehabilitation at all.  He said that they were bleak and that the risk of reoffence was very high.  There was also, as I have said, the references from that report in Judge Hannan's reasons at  pages 8 and 9 and mention in Ms Lofthouse's report of materials taken from quarterly reviews, none of which Mr Kenny objected to. See pages 12 and 13 of the reasons.  Also, of course, there was your current attitude, which spelled out one of resistance to treatment.
45	What is plain from what I have before me is that you have made no progress over many years in treatment.  You just continue to offend, and not even housing you in the most secure setting shy of a prison impedes your offending, nor placing you on a supervision order with mandated prison sentences available for breaches of restrictive conditions.  You just keep offending.  Even when caught, you seemingly show no real desire for change.  You are pretty much unstoppable.  As to your future prospects of rehabilitation, I said earlier that your counsel suggested that there was a scintilla.  Well, I stop shy of saying that you have no prosects of rehabilitation at all, but I believe you have bleak or gloomy prospects of rehabilitation and an obviously very high risk of reoffending in the future.
Report of Dr Lofthouse
46	I have mentioned already the limited way Ms Lofthouse's report was being relied upon.
47	It is not relied upon as in any way enlivening any of the principles from the cases of Verdins or Brown.  The report is useful in setting out your background and level of functioning.  I have spoken of that already and the way that I do take these matters into account.  It does not really meaningfully address the offending or your risk.  I take into account the report in the limited ways urged upon me by your counsel.
COVID-19:  Increased Burden
48	Mr Kenny had not mentioned the impact of COVID-19 upon your burden as a prisoner.  I raised the matter with him, and he submitted that there had been some impact in your case – not in terms of loss of visitors, as sadly you have none anyway but, rather in terms of the occasional lockdown.  He recognised that things picked up very significantly from about March of last year in terms of many of the previous restrictions that had applied.  It is impossible to know if there will be any ongoing significant impact, and if there is, of course, the authorities would be empowered to take it into account.
49	I take into account the impact of the virus to this point in the limited ways urged upon me by your counsel.
Principles
50	I turn, then, to some of the general principles at play in my task.
51	Many of the general principles are referred to in the prosecution's detailed written submissions, and they were not under challenge, see paragraph 10 of the outline marked as Exhibit D.  Nor the legislative provisions which I must have regard to. They were not under challenge.
52	The prosecution sentencing submissions cite a number of cases including the case of Garside.  I see no need to wade through the past utterances of our Court of Appeal or superior courts from other States.  In terms of child abuse material, there are many factors which must be taken into account, including but not limited to the nature and content of the material, the ages and number of children, the gravity of the activity depicted, the number of items/images possessed or transmitted, whether it is for purposes of sale or distribution and whether there was any profit in play.  This is, by the way, not an exhaustive list.
53	General deterrence is of paramount consideration in this area.  Specific deterrence, denunciation punishment and protection of the community are also powerful considerations.  Rehabilitation, of course, is not to be ignored – it cannot be – but must take a back seat here owing to the seriousness of the offences and my assessment as to the very weak prospects into the future for your rehabilitation.
54	The gravity of the Commonwealth offences is discussed from
paragraphs 10-16 of the Crown submissions, and again, as I see it, the parties were not in any disagreement.  No one was suggesting that the transmission charge was the most serious example of the offence to come before the court.  It is certainly not the least serous example either.  There were a handful of images and files.  However, it was of a high degree of seriousness in terms of what was depicted, including, as it did, penetrative images of young children aged three to eight.  You transmitted it to a group, and you were on a supervision order at the time and have highly relevant criminal history and minimal prospects of rehabilitation.
55	There was nothing spontaneous about either Commonwealth offence.  Each was dependent upon you obtaining a device which you had no business having and indeed a duty to disclose.  Charge 1 spanned several months.  It is true that you were not in that charge making available images.  In that sense, there was no direct child victim, as there was in each of the photographs or video files the subject of Charge 2.  These were, however, highly explicit, warped and disturbing communications made by voice to a number of other people.  You were speaking of depraved and explicit activity between adults and children including grooming, incest and torture.  What control did you have or exercise over how this material might operate on the minds of these others?  The answer is, of course, none.  It is true, then, that as to those communications, there was no direct child victim participating, but courts on more than one occasion have said that offending such as this is not victimless.  I am required to take into account the effect it might have on the recipient.  It does have the capacity to normalise exploitative sexual activity and may even stimulate a susceptible recipient into acts targeting real children, see the cases of Innes, Meadows, and also Hancock.
56	Your non-compliance with your reporting obligations was plainly deliberate, and you are a repeat offender.  It was between dates and rolled up a number of failures.  This is your eleventh breach.  The Sex Offenders Registration Act has a protective aspect to it, and you are just perfectly willing to ignore your obligations.  Likewise, you just flout the conditions of the supervision order.  It is a serious order put in place to deal with your level of risk and to protect the community from you.  It means nothing to you.  Again, you just ignored it, for the fifteenth time.
Mandatory Scheme
57	Prison is always a disposition of last resort.  Plainly, prison is the only option here in relation to every charge, and that would be so quite aside from the mandatory sentencing provisions which happen to apply to four of the five charges.
58	There is, though, in this case in the Commonwealth exercise for both charges, and the State exercise for two of the three charges, a legislative constraint in place.  That is as a result of the mandatory minimum sentences provided for in s16AAB in the Crimes Act and in s10AB of the State Sentencing Act for the two breach of supervision order offences.  On that later score, there is no doubt at all that the acts were intentional and deliberate and no suggestion of any special reason avoiding the operation of the mandated minimum term, which is 12 months.
59	In the Federal exercise, it is conceded that the scheme which came into play back in 2020 applies to you, courtesy of your prior offending and the nature of the two instant offences, Charges 1 and 2.  There is then a mandatory minimum period specified within the Act.  Subject to s16AAC, the court must impose a sentence of at least four years' imprisonment in relation to Charges 1 and 2 on the indictment.
60	Section 16AAC sets out one exclusion and two potential reductions.  The exclusion does not apply here, relating as it does to someone under the age of 18 at the time of offending.  Only one of the reductions has any role in my task.  It is found in s16AAC(2)(a).
61	It relates to a discretion to sentence below the four-year minimum by taking into account the guilty plea.  The court may reduce the sentence.  That reduction is capped at a 25 per cent maximum rate, so an amount up to 25 per cent of the specified mandatory minimum period, but this is only if the court considers it appropriate, see s16AAC(3).
62	Now, I dealt with a matter involving this provision a couple of years ago, and at that stage, there were no superior court decisions dealing directly with these provisions.  There was scarcely even any lower court interpretation.  I was taken to some related cases, so cases dealing with mandatory provisions operating in a different area.  Most of those related to people smuggling cases.  The case of Bahar dealt with a mandatory minimum term in the context of people smuggling. So too did a case of Atherden. Those provisions provided no ability for a sentencer to sentence below the minimum period.  Those cases provided some guidance as to methodology.  I have here the capped reduction potentially available in s16AAC(2)(a).  I have mentioned Bahar. That case was approved in the Victorian case of Haidari, which dealt with a different provision related to people smuggling.
63	Since then, a number of courts have considered the actual provisions that I am dealing with.
64	I have read all the cases that I have been referred to that are listed within the prosecution submissions.  I have looked also at a Victorian case of Mammoliti, though it did not deal with this provision either.
65	I have read the cases of Delzotto, Hurt and Taylor.  Delzotto and Hurt have been the subject of a grant of special leave in the High Court, but the argument has not been listed until, at the very earliest, September.  That date is not certain at all and depends upon an expedited hearing being granted.  I have raised this with the parties this morning, and no one has suggested that I wait for that decision, as it may not even be argued in September, and even if it is, it may not be decided until well into next year in any event.  I have read the brief transcript of the leave application which was conducted on 21 April 2023.
66	Two approaches to this legislation have been identified in the cases, and this explains why the matter has headed to the High Court.  Those two approaches are discussed in the cases of Hurt and Delzotto.
67	The first approach is to treat the mandatory minimum as another sentencing 'yardstick' and take this into account in the sentencing exercise.  I will say more about what that approach means in a moment, but this was the approach adopted by the Court of Appeal of the Supreme Court of Western Australia in Bahar in relation to s233C of the Migration Act 1958.  Hence, it is referred to as the 'Bahar approach'.
68	Under the second approach (referred to as the Pot approach), a sentencing judge determines the appropriate sentence that would have been imposed but for the existence of the mandatory minimum.  So the judge applies all the relevant sentencing principles.  He or she does not have regard in that first stage to the mandatory minimum provisions at all.  It is only if the sentence produced by this approach is less than the minimum that the mandatory minimum sentence comes to be considered.  So that only occurs when the sentencing task under s16A has otherwise been completed.  It obviously involves a convoluted two-stage task.  The description of this being the 'Pot approach' derives from this approach being taken in a case of that name,
R v Pot (see Supreme Court of the Northern Territory, Riley CJ, 18 January 2011) (‘Pot’).
69	The Bahar approach has been followed in a number of the decisions that I have been referred to, and I believe I must follow it in my sentencing task.  I am not free just to ignore those decisions.  For what it is worth, I would be greatly surprised if the Pot approach prevailed.  It is a convoluted approach which ignores the clear legislative intent.
70	In any event, I have superior courts of a variety of States supporting the Bahar approach, and it has been endorsed in relation to other legislation by the Victorian Court of Appeal. I follow the Bahar approach in my task.
71	The minimum is not, however, reserved for the least serious example of the offence committed by an offender with the full range of matters in mitigation.  That very proposition had been pressed by the Commonwealth Director and was rejected by the Western Australian Supreme Court in the case of Bahar.  The court said in that case that there is no instance at either extremity, either of worst or least serious offending, that it would be open to impose the minimum for an offence falling in the least serious category.  I believe the case of Haidari picked up that concept.  The more recent cases I have mentioned, including Taylor at paragraph 67, expanded upon this concept and corrected some misconceptions as to what Bahar actually stood for.
72	As I say, I apply the Bahar approach to my task.  The statutory minimum, like the offence maximum, is a legislative direction as to the seriousness of the offence.  The maximum represents a ceiling, the minimum period represents a floor, so a floor and ceiling within which I must apply the general principles of sentencing.  None of these cases is authority for the proposition that unless a crime is found to satisfy the description 'within the least serious category of offending' that the minimum term can never be imposed.  That will always be a matter within the sentencing discretion of the sentencing judge to be determined on established principles, see Taylor at paragraph 67.  The New South Wales Court of Criminal Appeal in that case went on to observe that it may well be that as a matter of judgment, it would be a rare case that a sentence at the mandatory minimum level will meet the requirements of sentencing unless the judge has found it to fall in the least serious category of offending, see paragraph 69.  However, statements of general principle must not infect the sentencing process.  
73	A case of Glasheen, to which I was referred, spoke of the methodology in relation to the reduction below the four-year level in relation to section 16AAC.  It is a discretion only exercised if the court considers it appropriate.  The reduction is capped at 25 per cent, but it is not mandatory to reduce by the full margin or at all.  It is only done if the court considers it appropriate in all the circumstances of the given case.
74	I must in this case, of course, have regard to the non-exhaustive list of matters in s16A(1) and (2) as well as such common law principles as I am required to take into account. Also s16A(2AAA).  That is for the Federal sentencing exercise.
75	I must take into account the relevant sentencing purposes and the other matters that I must take into account in the more conventional State sentencing exercise.  The mandatory provisions do not remove the need for me to engage in that task, whether State or Federal.  I must take into account, as one usually would, the various matters in mitigation and in aggravation.  I must engage in the intuitive synthesis which is at the heart of sentencing.  There is still a prohibition upon two-stage sentencing notwithstanding the existence of the mandatory minimum periods which apply here.
76	The question, then, for me is where, having regard to all the sentencing factors, the offending falls within the range between the least serious category of offending and the worst category of offending for which the maximum is appropriate.  Where an offence falls within the spectrum of offence seriousness will be determined by reference to all the relevant sentencing considerations, including matters personal to you.  I do not have a starting point.  In the Federal exercise, for instance, I do not start from four years or from 15 years.  There is no starting point.
77	I mentioned briefly the case of Mammoliti earlier in my reasons.  As I said, that case was decided as against a different legislative framework.  It dealt with mandatory minimum non-parole periods.  The Court of Appeal said that the minimum operated as a legislative yardstick and one that did not oust either the sentencing principles at common law or those affected by statute, that the minimum is not necessarily reserved only for those cases falling at the lowest extreme of the spectrum.  Those provisions did not permit a sentencer to sentence below the minimum period by taking into account the plea.
78	The court, though, said in that case that the scheme must not swamp other considerations.  The Court of Appeal made it clear that that scheme, though operating as a legislative yardstick, sat alongside the established sentencing principles (see paragraph 27).  They confirmed that two-stage sentencing was not allowed.  I do not believe there is any inconsistency between the Bahar approach and what I see referred to in Haidari and Mammoliti.  I mention these two later cases, as they are cases from the Court of Appeal of this State which sit quite harmoniously with the principles from Bahar and in fact even approve that approach.
79	Plainly enough, the fixing of a legislative mandatory prison period, whether it is a non-parole period or head sentence, discloses Parliament's view as to the seriousness of the offence generally.  Normally, there is a ceiling represented by the maximum penalty but no floor.  But in this case, in relation to four of the five charges, I have both the floor and a ceiling.  The ceiling is five years for the three State offences with a floor or mandatory minimum of 12 months for two of those five (Charges 4 and 5).  For the two Commonwealth matters, I have a ceiling of 15 years with a floor fixed by the mandatory minimum provision, with potential reduction below that level, subject to s16AAC(2)(a).
80	So I have a floor and ceiling within which I have a sentencing discretion to which the general sentencing principles are applied.
81	In every sentencing exercise, there is a ceiling, and that is represented by the offence maximum.  I note the way the maximum is referred to in the case of Aydin & Kirsch.  It provides no guidance at all as to the actual seriousness of the instant offence, and there is, of course, the difference between steering by the maximum and aiming at it, as Callaway JA made clear at paragraph 12.  The maximum is reserved for the worst class of offence.  Well, when dealing with any of the offences with a mandatory minimum, I have a floor and a ceiling.
82	In the Commonwealth sentencing exercise, I must not sail below the floor of four years other than in a setting encompassed by s16AAC.
83	In the State exercise for two of the three charges (Charges 4 and 5), I must not, as a matter of law, sail below 12 months.  That is because in that State exercise, in the circumstances of this case, there is no available exception or possible reduction arising at all.  There is no special reason existing under s10A.
84	In the Federal exercise, given that you have pleaded guilty and that may enliven the reduction in s16AAC, in my judgment, there is the theoretical range of three to 15 years for those two charges.  That is all it is. It is theoretical.  That theoretical range does not provide any answer to my sentencing task because I must engage in the assessment which is always at the heart of sentencing.  The actual sentence will be determined by the judgment that I reach as to the usual matters, such as the nature and gravity of the offence and the matters in mitigation and aggravation. Also the extent to which the purposes of sentencing must be adequately reflected.
85	Well, you were at all times on a supervision order.  None of this offending was spontaneous.  I have already mentioned earlier some of the serious aspects of the offending.  I have mentioned also your counsel's submissions at paragraphs 17-18, which were fair points to make.  I will not go through all this again now.  As to Charge 1, it was a between-dates offence, and you made child abuse material available to a number of others.  It was highly graphic, depraved and explicit.  It described sexual activity between adults and children, grooming practices and torture.  I have said already it did not involve direct participation of children, but I must take into account the effect it may have on the recipient.  It is no minor example of that offence at all, and nor was Mr Kenny suggesting it was.  Plainly, though, it does not fall at the very highest of levels.
86	Charge 2 had serious images transmitted to a group, and in that sense, of course, you were participating in the market.  There were, however, a small number of images in a confined time frame, but you were on a supervision order.  
87	Yet again you have deliberately failed to comply with the Sex Offenders Registration Act obligations, and it is conceded by Mr Kenny that that was a serious breach.  
88	The breach of the supervision order was the breach constituted by the commission of serious sexual offences the subject of Charges 1 and 2, so the overlap is plain enough.  Your history of breaching the supervision order and breaching your obligations under the Sex Offenders Registration Act is a dreadful one.  The need for community protection and deterrence both specific and general is very obvious in this case.  You represent a real and tangible danger.  You must be deterred.  You must be punished.  I must denounce your conduct.
89	There must be some cumulation as between the various offences.  That is the position before any regard is had to s19(5) of the Crimes Act (Cth).  That provision in fact prohibits any concurrency in relation to the sentences imposed on the first two charges on this indictment, but of course it does not remove the need for consideration of totality.  Indeed, sub-s5 of that provision does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances, see s19(6).
90	There is a close relationship or overlap between some of the offences, with totality considerations demanding a significant degree of concurrency, in my view.  I will moderate the extent of cumulation and am satisfied that in doing so, my outcome still results in sentences that are of a severity appropriate in all the circumstances.  That is to say that s19(6) is complied with.
91	Plainly, though, each offence I am dealing with is serious in its own right.  Four have mandatory minimum sentences, and none is completely subsumed by any other.  There must be some cumulation, and in relation to the Federal matters, I can only achieve this by fixing differing commencement dates.
92	I will now pass sentence.  I am going to have you remain seated, Ms Warner. I am sorry to have taken so long getting to this point and having to delve into the intricacies of the Commonwealth legislation.  But I will have you remain seated, and another reason for doing that is we are doing this by way of the audiovisual link.  I have no doubt you will lose track of the sentences as I pronounce them.  You will probably not even necessarily understand as I pronounce them what they mean in terms of the global total effective sentence.  I will explain all this towards the end and enquire of counsel to ensure that I am not making any sort of errors in terms of my compliance with the various legislation.  Anyway, let us deal with the individual sentences.
Sentence
93	On Charge 1, which is the charge of using a carriage service to make available child abuse material, you are convicted and sentenced to six years' imprisonment.
94	On Charge 2, use of a carriage service to transmit child abuse material, you are convicted and sentenced to four years' imprisonment.  I will deal with the commencement of those two Commonwealth sentences in one moment.
95	On Charge 3, failing to comply with your Sex Offenders Registration Act reporting obligations, you are convicted and sentenced to 12 months' imprisonment.
96	On Charges 4 and 5, the contravention or breaches of the supervision order, I believe it is both open and appropriate for me, in the circumstances, to impose an aggregate sentence on those matters.  I see no impediment to doing that, either in the statute or elsewhere.  On those two charges, so Charges 4 and 5, you are convicted and sentenced to an aggregate term of 16 months' imprisonment.  That will be the base State sentence.
State Cumulation
97	As to the State sentences, I direct that six months of the sentence imposed on Charge 3 is to be served cumulatively upon the aggregate sentence imposed on Charges 4 and 5.
State Total Effective Sentence
98	This produces a State total effective sentence of 22 months' imprisonment, and of course, the State sentences commence immediately.  I have no control over the commencement date.
Federal Commencement
99	As to the Commonwealth sentences, the sentence on Charge 1 will commence 12 months after the commencement of the State sentences.  The sentence on Charge 2 will commence three years after the commencement of the sentence imposed on Charge 1.  That second commencement date produces an additional 12 months' Federal cumulation.
100	With these orders as to State cumulation and then the fixing of the two Federal commencement dates, my intention is to produce a global head sentence of eight years' imprisonment.  Seven years of that sentence will relate to the Federal component, but I will hear from the Crown in due course if this result is not achieved by my orders.
State Non-parole Period
101	The total effective State sentence is 22 months.  Pursuant to s11(2) of the Sentencing Act, I am not required in those circumstances to fix a non-parole period.  I will fix no State non-parole period in those circumstances, as of course you will not be able to be released owing to the ongoing Federal sentences you will be required to serve.
102	The Federal sentences total seven years, and I am required to fix a non-parole period.  I have mentioned the existence of the mandatory minimum prison sentence schemes which apply in relation to Charges 1 and 2, but they are not concerned with issues of parole.  I am not dealing with any mandatory
non-parole period provision or any of the specific Federal offences where a particular minimum parole ratio is specified.  It follows that I must apply the usual general principles in selecting the period of the non-parole period. See the case of Hili.
Federal Parole
103	I fix a period of five years during which you will not be eligible for release on parole.
104	I am required to explain the nature and effect of this parole order.
105	The purpose of such an order is to permit your possible release from prison in relation to the Federal sentence, subject to certain conditions, at the expiry of the non-parole period.  It follows, then, that you will serve a sentence of at least six years in prison.  The first 12 months will be referable to the State sentence, and then there will be at least five years to serve on the Federal sentence.  Once you have served that period of the Commonwealth sentence, a parole order may then be made.  That will not involve the Adult Parole Board because I am dealing with a Federal scheme here.  As I understand it, it would be in the hands of the Commonwealth Attorney-General, see s19AL of the Commonwealth Crimes Act.  You would be under the control of the Federal Offenders Unit of the Commonwealth Attorney-General's Office.
106	If and when such an order is made, it would envisage a period of service in the community called the 'parole period' to complete the service of this sentence.
107	I cannot speculate about whether or not you will be paroled.
108	If a parole order is made, it would be subject to many conditions which you would need to comply with.  Such an order can be amended or revoked.  It is quite impossible to know in May 2023 what those conditions might be some years from now.  They would no doubt be informed by, amongst other things, your needs, including treatment needs, at the time, and the need to manage the extent of any risk that you posed.  Should you be paroled, if you were to fail without excuse to fulfil the conditions of your parole, you would be ordered to serve the balance of the Federal sentence up to seven years.
Section 17A
109	I am obliged to state the reasons for proceeding to impose a term of imprisonment.  My lengthy reasons will have explained what is very obvious;  No other sentence was appropriate given the nature and gravity of these crimes.  Your counsel conceded as much, and of course I have the mandatory sentencing scheme, which removed any consideration of any non-custodial outcome in any event.
Pre-sentence Detention
110	I make a declaration pursuant to s16E of the Crimes Act and s18 of the Sentencing Act in relation to your pre-sentence detention.  I declare that the period of 609 days has already been served pursuant to these sentences.  That declaration is to be noted in the records of the court.
Section 6AAA
111	I have reduced your sentence because of your guilty plea.  If you had been convicted of these offences following a trial, I would have sentenced you to be imprisoned for a period of 10 years.  I would have fixed a Federal non-parole period of seven years.  That statement is to be noted in the records of the court.
Sex Offenders Registration Act
112	You are already required to comply with your obligations under the Sex Offenders Registration Act for the remainder of your life courtesy of the sentences that have previously been imposed.  I am, though, sentencing you for two fresh class 2 offences, and that very fact generates the same obligation.  I have wondered as to the utility of serving any further paperwork in this case, as you are already subject to lifetime reporting obligations, and of course you only have one life.  However, I believe I am required as a matter of law to do this, to explain the effect of the impact of the sentences that I am imposing, and it is incumbent on me to serve the paperwork again.  You are liable to report for the rest of to your life courtesy of today's sentence irrespective of what has happened in the past.  Now, in that room, as I understand it, there is some paperwork, and I will ask you in a moment to sign that, and all you are doing, really, is signifying that you have received notice of your obligations under the legislation.
113	So, Ms Buckley, in the room, there is, I think, an envelope with that paperwork.  I am not expecting she is going to sit there and read the very lengthy document.  It is very lengthy.  She has had it before, of course.  But it is simply her acknowledging by her signature that she has been served with the relevant paperwork.  Did you have any need to discuss that with your client at all or not?
114	MS BUCKLEY:  No, Your Honour, I do not.
115	HIS HONOUR:  All right.  So, Ms Warner, I will have you sign that document now if that could be presented to you, please.  If that could be witnessed by the prison officer, please, yes, thank you.
Section 19(7)
116	I have in my reasons spelt out why I have ordered a level of concurrency and why I have departed from the presumption of cumulation set up under s19(5) of the Commonwealth Crimes Act.  Totality considerations require such a course given the relationship between the offending.
117	Let me just ask, with some trepidation, the prosecutor, do my proposed orders achieve my stated objective and do they comply with the legislative framework, Ms Karamicov?
118	MS KARAMICOV:  Yes, they do, Your Honour.
119	HIS HONOUR:  That is a first, all right.  Ms Buckley, do you see any issues in terms of structure of the sentence or not?
120	MS BUCKLEY:  No, I do not, Your Honour, thank you.
121	HIS HONOUR:  Well, look, that completes the matter, then.  Ms Buckley, I will revise these reasons, as is my practice, and I will do that pretty swiftly once they are received.  But is it envisaged that Mr Kenny will have a conference with Ms Warner or not?
122	MS BUCKLEY:  Your Honour, if not Mr Kenny, then the instructing solicitor, certainly. Someone will.
123	HIS HONOUR:  All right.  Well, she has heard that now.  I do not see any particular need to use the link today, then?
124	MS BUCKLEY:  No, Your Honour.
125	HIS HONOUR:  So, Ms Warner, you have heard that.  Ms Buckley is holding the fort here.  Either Mr Kenny or your solicitor will be in touch with you to have a conference to discuss what has occurred here today and your rights in relation to the sentence that I have imposed, so no doubt they will be in touch with you in the not too distant future.
Forfeiture
126	I think I have omitted to actually formally pronounce the forfeiture order, and I should actually pronounce that.  There is an application pursuant to the provisions of 23ZD of the Commonwealth Crimes Act for forfeiture of the device referred to in the schedule, which is the mobile phone that is employed in some of this offending.  There is no objection taken to the making of that order, and I am satisfied the preconditions to making that order are made out, and I have signed that order, and that device will be forfeited to the Commonwealth.  I have signed that order.
127	Are there any other matters from either of you?
128	MS BUCKLEY:  No.
129	MS KARAMICOV:  No, thank you, Your Honour.
130	HIS HONOUR:  So, Ms Warner, that completes the matter, then.  As I say, Mr Kenny or your solicitor will be in contact with you to have a conference about what has occurred.  I will get the sentence back once it is transcribed, and I will correct any errors in it, and then they will be able to discuss it with you in some detail, and your rights in relation to what has occurred.  So that completes the matter, then, and I will disconnect the link, then, please.
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