IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

 	Case No. CR-22-02330 

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
Christopher LAMB 		

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JUDGE:	His Honour Judge Moglia	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 July 2023	
DATE OF SENTENCE:	5 September 2023	
CASE MAY BE CITED AS:	DPP v Lamb	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1585

REASONS FOR SENTENCE

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Subject:	Criminal Law – sentence – guilty plea
Catchwords: 	Sentencing – using a carriage service to access, transmit and cause to be transmitted child abuse material – possessing or controlling child abuse material obtained or accessed using a carriage service – 54 years old at time of offending – 2 files and 7 instances of chat over a few days – material not possessed for sale or further distribution – no payment for or profit from material – no demonstrable planning, organisation or sophistication – low objective depravity – no criminal history – complex post-traumatic stress disorder, major depressive disorder and anxiety – reduced moral culpability – psoriatic arthritis – remorse and contrition – demonstrated progress towards rehabilitation – significant utilitarian value of plea in the aftermath of COVID
Legislation Cited:	Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:	Verdins v R (2007) 16 VR 269; Burton v R [2020] NSWCCA 127; Bayliss v R [2013] VSCA 70; Godfrey v The Queen [2013] WASCA 247; Phibbs v The King [2023] VSCA 123; Lyons v The Queen [2019] VSCA 242; R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273
Sentence:	Total effective sentence 12 months imprisonment, released forthwith on an 18 months recognisance release order; 6AAA: 18 months imprisonment with release on a RRO after serving 6 months.
	
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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms L. Murdoch (Plea)
Ms G. Mattea (Sent)	CDPP	
			
For Accused
	Ms A. Roodenburg
	Dribbin & Brown

HIS HONOUR:

1	Christopher Lamb, you have pleaded guilty to two charges 
(a)	Using a carriage service to access, transmit and cause to be transmitted child abuse material, contrary to s474.22(1) of the Criminal Code (Cth) between 21-24 February 2021; and 
(b)	Possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s474.22A(1) of the Code on 15 October 2021.
Summary of offending
2	The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 16 June 2023.
3	In summary, up until your arrest in this matter, you had been using an online app called Kik for a number of years. It permits users to transmit and receive messages, chat, photos, videos and other content.
4	On 15 October 2021, having received information that you had uploaded child-abuse material with this app, police executed a search warrant at your home in Lilydale. They seized your phone and laptop, and you provided them with your passwords to access them.
5	While still at your home, police interviewed you about child abuse material. You said that you had used Kik for, among other things, sexual roleplaying, including what you described as 'daddy daughter type stuff', but denied sharing any child abuse material.
6	You admitted having the particular Kik account that police were investigating and that you may have been sent child abuse material and accidentally forwarded something on. You also admitted possessing a video of a sexual nature of a child, but only when using the Kik app. When asked about your browser search history, you said it would probably contain 'daddy, daughter stuff', which you said you expected would feature legal material, that is involving young women aged 16 and above.
7	Having then examined your phone and laptop, and perhaps consistent with your admissions, police did discover chat records in the Kik app over 4 days in February 2021 as charged. Those chats involved you and 7 other Kik users describing sexual acts with children, real or imaginary, which the law classifies as child abuse material. 
8	Those messages were graphically sexual and grossly indecent. I will not repeat their contents in open court. They included descriptions of scenarios, which while the prosecution do not say were real, involved sexually abusing children, discussing how to avoid a girl getting pregnant, grooming a child, sexually penetrating a 5-9 year old girl, incestuous relationships with siblings, that children as young as 5 are able to experience sexual climax, and violent sexual assault of a child.
9	During one chat with one of those other users, you received a single image depicting a girl aged about 7-9 years naked kneeling on a bed, from behind. You forwarded that image to one of the other users. All that I have just described is Charge 1, accessing, transmitting, and causing Child Abuse Material to be transmitted.
10	Police also found a single 2 minute 16 second video file depicting a woman performing oral sex acts on a toddler who was seen to be struggling. This file was found in three locations across your two devices, however, it is not suggested that you purchased or requested the file, or that you encrypted or saved or managed its storage in any way. The prosecutor cannot say how long the file was in your possession (Charge 2, possessing Child Abuse Material). 
Procedural history
11	Soon after seizing your phone and laptop, and interviewing you, Police departed your home and 9 months later, on 5 July 2022, issued a summons for your appearance in Court. 
12	Having answered your summons, the Magistrates' Court placed you on bail and you offered to plead guilty, which was formalised at the committal mention stage of the case on 9 December 2022. 
13	Your guilty plea was made at the earliest stage in the proceeding, following what I find to have been substantial admissions made to police when they searched your home, and before they had looked into your devices.
14	Your plea has significant utilitarian value. You entered it at a time when the trial work of this court is significantly backlogged and so it has increased value, which I will reflect in your sentence.
15	Your plea also demonstrates that you have taken responsibility for your offending and that you have a willingness to facilitate the course of justice. 
16	Your plea hearing and sentences comes more than 2 and a half years after the offending in Charge 1 and after a similar delay in relation to Charge 2.
17	I find that your plea also demonstrates remorse and contrition for your offending. So much is further established by your conduct since your arrest.
Personal circumstances
18	You are the eldest of four children to your parents and you grew up in and around Geelong. Your childhood was loving, albeit your parents were stern and your father was a drinker, which caused some tension at home.
19	You attended school in Geelong, where you were a talented sportsman.
20	This however attracted the attention of a teacher who abused you when you were 12-13 years old sexually. You developed depressive symptoms by the time of your final year at school and this in turn had a bad effect on your results and later your performance at university that followed. That teacher has been prosecuted in relation to numerous complaints against boys at the school.
21	In 1986 when you were 19, you joined Victoria Police, where you progressed to be a Detective. During the 1990s you met and married your wife with whom you have two now adult children.  
22	As part of your service with police, you were involved in the investigation of serious incidents, including suicides, serious assaults, collisions on the roads, including one during which an offender attempted to run you down and gunshots were fired. The trauma involved affected you and by 2006, you suffered a psychological breakdown and in 2008 you were discharged on health grounds. 
23	You were diagnosed with Post Traumatic Stress Disorder (PTSD), a major depressive disorder and anxiety for which you required lengthy treatment until 2012.
24	Since 2009 you have run your own handyman business. 
25	Upon the discovery of the offending in this case, unfortunately your marriage broke down; you have had to sell the family home; and your children are estranged from you because of it. You have moved back to live with a friend, closer to your now elderly mother, your father having died some years previously.
26	Following your arrest in 2021, you returned to treatment and sought out a psychologist, Mr Stickels, who confirmed your ongoing diagnosis; that is, that it had not resolved. You have attended more than 30 appointments with him and continue to see him. At times during that period, you have been suicidal.
27	You were also referred voluntarily to psychologist Daria Sizenko for treatment of offending behaviours as well as your complex PTSD. You have seen her 51 times so far. Your treatment is ongoing, including for panic attacks and related symptoms.  
28	You have also suffered from a stress-related psoriatic arthritis since 1989, which has required ongoing treatment since that time. It has been debilitating with chronic pain, which along with your PTSD has been the source at times of your attempts to self-medicate with alcohol over the years. 
29	On your plea, you relied on the following reports:
(a)	Psychologist report of Daria Sizenko dated 30 June 2023 (Exhibit 1);
(b)	Psychologist report of David Stickels dated 30 June 2023 (Exhibit 2); and
(c)	Medical report of Dr Andrew McIntosh, your GP, dated 9 July 2023 (Exhibit 3).
30	Mr Stickels stated that your capacity for good judgement and clear thinking in stressful situations has been reduced during the years when you have suffered PTSD and chronic pain. 
31	Mr Stickels also reported that you 'feel gutted, embarrassed and ashamed' about what you did. Ms Sizenko stated that you:
 'repeatedly expressed anger and disgust toward [yourself] for contributing to child abuse by engaging with Child Abuse Material […] acknowledging that children depicted would have gone through significant psychological and physical pain'.  [Ms Sizenko also notes that you have been] 'an active participant during the appointments. [You] openly and readily discussed personal limitations, faults, and mistakes, making no attempt to minimise or justify [your] offending'.
32	Mr Stickels describes 'significant improvement' in your symptoms over time, and your treatment continues.
33	Dr McIntosh states that you have a good prognosis and suggests that you are highly unlikely to reoffend in this fashion. Mr Stickels stated your risk of further offending was effectively zero. 
34	The prosecutor referred to some comments you made to Mr Stickels about your state of mind at the time of your offending with respect to the abhorrence of the material. You described a form of dissociation that perhaps occurred, and the psychologist opined that this was likely. The author was not required for cross-examination and the possibility that your comments reflected a minimisation of your conduct remains untested. In any case I am not satisfied that your comments reflected anything untoward, rather an attempt to make sense of your experience in hindsight, particularly in circumstances that I have had regard to, namely the contrition you have been observed to express about your offending, as I have set out above.
35	Your brother in a supportive reference (Exhibit 4) stated that you disclosed your offending to him on the same day police came to your home. That is significant, in my view. He says your offending is out of character and that he saw your depressed state following your arrest. He also confirms the significance of you coming to grips with the significance of your childhood abuse and how deeply it has affected you. 
36	Your friend with whom you now share a house, Paul Duff, (Exhibit 5) observed your deep regret you have felt since the offending. Also, the transformation you have undergone over the past 2 years in treatment. 
Sentencing issues
37	The maximum penalty for Charge 1 and Charge 2 is 15 years, each. This shows the seriousness with which the Commonwealth and the courts regard this kind of offending. 
38	Under s20(1)(b) of the Crimes Act (Cth), unless there are exceptional circumstances a term of imprisonment that must have an immediate part to be served must be imposed.
39	Ordinarily, for offending of this type, a term of imprisonment is warranted. Your sentence must be of a severity appropriate in all of the circumstances and a sentence involving your immediate detention in prison is a sentence of last resort, of course.
40	In assessing the objective seriousness of your conduct in this case, I have had regard to the nature and content of the material involved, including that it consisted of only 2 files and 7 instances of chat over only a few days. I cannot be satisfied of when the file in Charge 2, that is the video, was obtained by you or for how long you possessed it.
41	There is no suggestion that you possessed the material for sale or further distribution beyond you sharing that one image with one other chat participant. You are not said to have paid for any of the material or profited from it in any material way. There was no demonstrable planning, organisation, or sophistication in your offending. 
42	There were two actual children depicted in the images you dealt with although only the video disclosed conduct of an overtly sexual nature. And while I find it was of a disturbing kind, I find that it falls short of what should be described as cruelty or occasioning physical harm. You only disseminated the still image to only one other, which the prosecutor described as an image at the lower end of objective depravity, and I agree. 
43	Properly understood, you offended in Charge 1 with each of the 7 other Kik users. However, I distinguish this form of joint offending from that which could properly be described as organised.
44	The prosecutor described your offending as being moderately serious. In the context of other cases of this nature before this court and the objective factors I have described, I find it to fall somewhat lower in the scheme of things.
45	The paramount public interest in sentencing for Child Abuse Material offenses is in promoting the protection of children from exploitation, including exploitation achieved remotely using the internet and apps such as Kik. Too often offenders in relation to this kind of criminality, go unidentified, remain unchallenged and therefore are not availed of the resources and the opportunity to engage in treatment. I acknowledge, in the context of the paramount interest in protecting children, the absolute importance of discovering, disclosing the offending, and engaging offenders in a meaningful way in treatment, so that whatever caused the abhorrent behaviour can be arrested, dealt with and the person involved able to progress into return to a prosocial lifestyle.  It is only through doing this that ultimately children will be protected. It is in the community's interest that precisely this occurs.
46	General deterrence is often said to be, and it is true, the primary sentencing consideration, including because of the prevalence of this kind of offending, the long-term retention of images and other material on the internet, and the difficulty at times of detecting offences. 
47	Your rehabilitation is an important feature of your case. In keeping with the paramount public interest in promoting the protection of children and the obligation set out in s16A(2AAA) of the Crimes Act (Cth) to promote your rehabilitation, I have given close consideration to your conduct since the offending. Your engagement in relevant counselling and treatment for over 2 years has been intensive and prolonged. Your commitment to that task is to be commended.
48	The prosecutor submitted that you had fair but guarded prospects of rehabilitation. In the circumstances of your voluntary and extensive engagement in treatment, the attitudes you have expressed about your offending to more than one treater, I find this to be an understatement. I find your prospects to be good.
49	You have no criminal history, and you otherwise enjoy good character in the community. By imposing a term of imprisonment, which I will do, I find that your sentence will adequately deter you, denounce your conduct and provide just punishment. 
50	The prosecutor accepted that your own relevant experience in childhood were mitigatory and served to moderate your moral culpability to an extent, and I agree. So too did the prosecutor accept that any time you spend in custody would be more onerous for you due to your related PTSD. On a different basis, the prosecutor accepted that due to your previous work history, you may be targeted by others in prison, and I accept that. 
51	My finding in relation to moral culpability, in the context of the case of Verdins, is that your moral culpability because of your Post Traumatic Stress Disorder, as the prosecutor conceded, is reduced.
52	The prosecution submitted that there ought be no reduction in weight given to general and specific deterrence, notwithstanding that reduced moral culpability.  I do not agree.  Whilst it is a matter for me to weigh up the extent or the weight to be given to your reduced moral culpability, it is appropriate to apply a proportionate reduction in weight to general deterrence and specific deterrence accordingly.  To not do so in my view would be an error.
53	Ultimately the prosecution submitted that you must be imprisoned immediately and because the circumstances of your case are not exceptional, you must not be released immediately under a recognisance release order. Your counsel submitted that while imprisonment is warranted, immediate release on an RRO in all the circumstances is appropriate. 
54	The prosecutor in trying to make good their argument referred to comparative cases of Burton involving two years of chat logs and a small number of images and taking into account an offence of transmitting indecent material to a actual child; Bayliss involving chat-based child abuse material sent to a number of actual prepubescent children; and Godfrey involving accessing 40 written stories containing child abuse material over 5 weeks and possessing 6,777 images and 25 videos. Each of these cases resulted in imprisonment with 12 months or more to be served and the prosecutor conceded that they were each more serious than your case.
55	Your counsel referred me to Phibbs involving online chat about engaging in sexual abuse with children on one day and possessing 3 images resulting in 6 months with immediate release on a RRO (which was reduced from 15 months on appeal). Lyons involved online conversations about child abuse material over a period of 18 months and accessing 640 images and 139 videos over 3 years resulting in 2 years 6 months after release on an RRO after 1 year and 6 months.
56	Of course, every case must be assessed upon its own facts and the nature of the offences you have committed encompasses a wide range of conduct and degrees of seriousness. 
57	As to whether there are exceptional circumstances in your case such as to warrant an immediate release on a RRO, I have had regard to a combination of factors as I am entitled to do under authority,  including all of the sentencing issues that I have just set out – the seriousness of the circumstances, your response to the charges, the insight you have developed, the extent of your engagement in treatment, the progress you have made and all other aspects of the case that I have set out.  Having given all of those circumstances anxious consideration, I do find them to be exceptional.
58	I want to underscore the importance in cases such as this for the community and the children in it, that offenders in your situation engage with and achieve a level of rehabilitation and change that will protect children and the community.  I acknowledge that for a vast majority of offenders a term of imprisonment actually to be served may be the ultimate way in which such lessons are taught, and such change is to be achieved.
59	However, exceptional circumstances are not impossible to be found and they must not be seen as such.  There are cases such as yours, Mr Lamb, where the number of images, even though the attitudes and fantasies you expressed were absolutely abhorrent, are limited in number and time, and placed in the context of contrition and engagement in treatment, that a court such as this must look to the question of whether or not the sentence of last resort is warranted.  I find that it is not.
60	I have received an assessment of your suitability for conditions to be placed on an RRO administered by Corrections Victoria (Exhibit 6). You were assessed as being at low risk of further offending and suitable for community work, treatment and rehabilitation for mental health and programs and supervision. As part of that assessment the Forensicare Mental Health Assessment and Referral Service report dated 28 August 23 (Exhibit 7) commented that your psychological trauma condition requires ongoing treatment in which you are already engaged. That report and opinion are not irrelevant to the question of whether or not you should be removed from the community at this point and imprisoned, which would have the effect of interrupting your progress in treatment.
61	I sentence you as follows:
(a)	On Charge 1 accessing, transmitting, and causing to be transmitted child abuse material, I impose imprisonment for 9 months
(b)	On Charge 2 possessing child abuse material, I impose imprisonment for 6 months. 
(c)	The six months on Charge 2 is to commence six months after the commencement of the sentence on Charge 1, making a total effective sentence of 12 months' imprisonment.
(d)	I direct that you be released forthwith under a recognisance release order upon giving security in the amount of $2,000 on condition that you be of good behaviour for 18 months, and that during that time you complete 150 hours of community work, engage in treatment and rehabilitation for mental health and programs as directed and that you be supervised.
62	Under those orders that I have just made, you will be released at the conclusion of this hearing once you have signed the recognisance. You will serve the remainder of your time under the RRO in the community under those conditions that I have just set out. 
63	If you do not comply with those conditions without reasonable excuse, you will be in breach of the order, you will have to pay the amount of the security and you will be returned to Court perhaps for further orders. If you are unable to comply with the conditions for good reason, you can return to court to seek a variation or a discharge from the order. 
64	In relation to the concurrency or cumulation between the sentence, I have made orders such as I have set out given the interrelatedness of your conduct. Some degree of cumulation is necessary to account for the different types of offending involved.
65	In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 18 months' imprisonment with release on a RRO after serving 6 months.
Ancillary orders
66	Your offences are both category 2 offences under the Sex Offender Registration Act 2004 (Vic) and so upon being sentenced you become a registered sex offender and you must comply with reporting obligations under that Act for 15 years.  
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