IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
CR-21-01079

THE QUEEN		
		
v		
		
ESTHER WORONKA		

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JUDGE:	HER HONOUR JUDGE TODD	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 July 2023 and 18 July 2023	
DATE OF SENTENCE:	18 July 2023	
CASE MAY BE CITED AS:	DPP v Woronka	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1245		

REASONS FOR SENTENCE

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Subject:			CRIMINAL LAW
Catchwords:			Using a carriage service to cause child abuse material to be 
transmitted to self; possess or control child abuse material obtained or accessed using a carriage service
Legislation Cited:		Criminal Code Act 1995 (Cth) schedule s 474.22; Crimes Act 
1914 (Cth) s 16BA
Cases Cited:			DPP (Cth) v Garside (2016) 50 VR 800
Sentence: 			Recognizance release order of 24 months duration 

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APPEARANCES:
	Counsel	Solicitors	
For the Commonwealth Director of Public Prosecutions	Ms A. Carlander	Commonwealth Director of Public Prosecutions	
			
For the Accused	Ms M. Brown	Gallant Law	

HER HONOUR:

1	Esther Woronka, you have pleaded guilty to one charge of using a carriage service to cause child abuse material to be transmitted to yourself contrary to s 474.22(1) of the Criminal Code.  I am going to call that the ‘principal offence’.  Pursuant to s 16BA of the Crimes Act, a further offence is listed on a schedule and will be taken into account on this sentence.  That offence is to possess or control child abuse material obtained or accessed using a carriage service contrary to s 474.22 of the Criminal Code.  I will call that the ‘schedule offence’.  You have admitted the relevant conduct, and I will take this matter into account in dealing with the principal offence.  The maximum penalty for the charge for which you have pleaded guilty is 15 years' imprisonment.  
2	Turning first to the factual circumstances of the offending.  
3	At your plea hearing the prosecution tendered a summary of the facts giving rise to the principal offence and of those giving rise to the schedule offence, the same facts that were before me on the sentence indication, and these are dated 6 June 2023.  That summary is attached to and forms part of these reasons.  
I will refer to just some parts of the facts giving rise to your offending in these remarks.  
4	‘Kik’ is an online messaging application which uses mobile data or Wi‑Fi to transmit information.  A person registers a username which then allows them to transmit and receive texts and other data with another user. Significantly, the application allows users to participate without providing a telephone number.  It is therefore regarded as safe for anonymous use.  
5	Between 24 May 2020 and 29 May 2020 you used Kik under the name 'shesa.songbird' to communicate with another Kik user calling themselves 'ranga3063'.  During this communication ranga3063 transmitted a child abuse image to you.  The conversation in which that transmission occurred is described as ‘sexualised conversation’.  That conversation was linked to a group named 'New family fun ‑ limited men accepted'.  The facts giving rise to Charge 1, the principal offence, comprised of  a series of exchanges between you as shesa.songbird with ranga3063 during which, and as a result of which the transmission occurred.  Summaries of those conversations on 24, 25, and 26 May 2020 were set out in the prosecution summary at paragraphs 26 to 29.  
6	At one point during your conversation on 24 May 2020, ranga3063 transmitted a video to you which showed a naked male child, about 11 years old, showering.  This is not said to constitute child abuse material;  it forms part of the circumstances advanced to indicate some context.  The tone of the conversations more generally can be conveyed in this selection from the quoted material.  
Ranga3063: 'I got two boys aged 9 and 11 too'.  
You:  'Nice'.  
Ranga3063:  'Yes.  You never licked young girl?'  
You:  'I haven't been around any (sad face emoji)'.  
Ranga3063:  'So a bit of fantasy?'  
You:  'Yeah'.  
Ranga3063: 'Want to see my girl?'  
You:  'You don't have to show me'. 
Ranga3063: 'I don't mind, turns me on as it's your fantasy'.  
You:  'Okay'.  
7	Following this exchange, at approximately 12:23 am on 26 May 2020, ranga3063 sent you an image of a naked prepubescent female child shown from the neck down lying on her back on a bed on a mattress.  The child is estimated to be of approximately five years of age.  It has been classified as category 1 child abuse material.  In the scheme this simply indicates involvement of a child of under 13 years.  On receipt of this you said:
You: 'I'm going to start drooling, haha'.  
Ranga3063:  'Lol, do you have some more of you?  I have a video.  When would you like to lick her?'  
You:  'Now (lick face emoji)'.  
8	On 16 December 2020 a search warrant was executed at your home.  Your mobile phone was seized.  You provided a passcode pattern which then allowed a federal agent to unlock your phone.  That investigator found two versions of the Kik Messenger application installed.  
9	One version of the Kik application, Kik Messenger, had the username finklepinkle, and this account had been open for 1,227 days.  The second version, Kik Blue.8, was operating with the username shesa.songbird, and this account had been open with Kik for 607 days.  It was this username that investigators were interested in, having found messages to and from that username on the device of another person who had recently been arrested in relation to the possession and distribution of child abuse material.  Investigators also discovered that the shesa.songbird username was a member of a group chat in the Kik Blue.8 version.  The title of that group chat was 'New family fun ‑ limited men accepted'.  
10	On an initial search of the phone the investigator found 12 images and one video and the video constituted child abuse material.  This video depicted an adult male using his penis to, among other things, penetrate the anus of an infant.  The camera focuses on the infant's genitals.  The video is one minute and 59 seconds in duration.  Another part of the video shows the infant and the adult smiling together at the camera.  The infant sucks a dummy.  
11	I will now briefly summarise here the content of the facts going to the schedule offence.  
12	A range of video files was found in the secure folder application on your phone, which Samsung promotes as the ‘perfect place to keep your data safe from any prying eyes’ and which was on your phone, protected by both a pattern and a fingerprint security mechanism.  In all, there were seven video files.  Their contents are summarised at paragraphs 22 and 35 of the prosecution opening.  Five of the videos involve penile‑anal or penile‑vaginal penetration of prepubescent male or female children, including an infant and two toddlers.  Another video depicts an adult male performing cunnilingus on a female child.  Another shows a prepubescent male or a male in very early puberty having penile‑vaginal sex with an adult woman.  
13	You were arrested.  You answered questions in an interview with police.  During the interview you made a range of admissions, in particular to the fact that you used the name shesa.songbird on your Kik account.  You said that you understood ‘family fun’ in this context to mean incest.  You told police that you were sent the video of the penetration of the infant boy and viewed it for a few seconds but when you heard the boy crying you had stop watching because it was going to make you cry.  You admitted that you were aware the Kik application saved images and videos to your device.  You made various denials.  For example, when asked about why the video of the man penetrating the infant was in your photo gallery, you said 'I can't, um, I know, as I said before, if something's sent to you, if someone automatically drop into your gallery, um, like I didn't put it there myself'.  
14	Your offending unfolded during May 2020.  You were 23 at the time.  You were arrested, charged, and bailed on 16 December 2020, and your case culminated in the Magistrates' Court in your committal for trial on 21 May 2021.  A plea hearing was listed on 18 November 2021 but subsequently vacated.  
A sentence indication hearing was conducted on 7 June 2023, and you were arraigned and pleaded guilty on the same day.  
15	Turning now to my assessment of the nature and the circumstances of the offence.  
16	The expansion of the number of ways that people can view child pornography online and view it anonymously provides increasingly easy means of exploitation of children and makes it increasingly difficult to detect and prosecute.  
17	The offence on the charge to which you have pleaded guilty caused the transmission of a single image, that of a young girl, perhaps five years old, naked from the waist down.  It is not suggested that you caused the transmission of this image for the purposes of any further distribution or for profit.  Your receipt of that image took place in and was caused by a discussion in which you discussed abusive sexual acts carried out against children.  
18	I do not sentence you, I make clear, on any other basis in relation to the content of that conversation, that the things that you said were anything other than fantasy or conversation.  The subject charge, in the end, relates to you causing to be transmitted a single still image of a child posing sexually and the surrounding conversation, which provoked its receipt by you.  
19	In relation to the offence which I must take into account, the schedule offence, the images were of a limited number comparatively speaking but are quite horrific in substance.  Your acknowledgement of this conduct informs the way I consider the sentence on the principal offence.  The offence taken into account in arriving at your sentence on the principal offence will cause the sentence on that charge to be greater than it would have been had it stood alone in your case.  The facts on the schedule offence cast a different and more serious light on the offending in the principal offence.  It informs the need to some degree for specific deterrence and for your punishment on the principal offence.  I accept, however, that in the conversation going to the principal offence, you were somewhat reticent in your participation at times.  
20	Overall, and again only in relation to the principal offence but informed by the circumstances of the schedule offence, I find that your offending resides in the lower reaches of the range of similar offending by reference to the duration of the exchange and the minimal content that was ultimately transmitted.  I do not forget the presence of the conduct that was subject of the schedule offence.  It informs but does not overwhelm the sentencing task on the principal offence.  
21	Turning now to matters personal to you.  
22	You have no previous criminal history, and there are no subsequent convictions or charges.  
23	You are the second youngest of five siblings in your family.  Your parents separated when you were five years old.  You lived with your mother for most of your childhood.  Your relationships with your family were mainly positive, though you felt isolated during your early years.  There was no physical or sexual abuse in your family, though you report that prior to your parents' separation there was verbal abuse between them.  Your parents managed to remain amicable post-separation.  Your eldest brother has three young boys, and your contact with your nephews, which used to include babysitting them, has ceased as a result of these charges.  
24	You completed VCE and a Certificate IV in Community Services.  You were bullied for being overweight during your education and sometimes lost motivation.  You started but did not complete a Diploma of Health Sciences at Deakin University.  You have undertaken a diverse range of free online education courses in subjects such as psychology, nutrition, Chinese medicine, and the Dutch language, which is your mother's heritage.  
25	Between May and December 2020, you were a volunteer at Aprila Rise, a women's accommodation service run by your aunt, and have held a position in hospitality for 18 months previously.  You are currently undertaking a range of agency work in unskilled labour positions.  You keep a number of beehives and have been running a honey business via Facebook for some time.  
26	You describe yourself as being attracted to age‑appropriate males.  You vehemently deny any attraction to children sexually in any category.  You have generally found forming relationships difficult and found online relationships more comfortable because it is easier to present yourself in that medium in the way you would like to be seen.  In face‑to‑face relationships you feel introverted and anxious.  You began to spend up to two hours a day in online chat.  
27	Turning to matters in mitigation, first to your plea of guilty.  
28	At any time your plea would be particularly valuable, but at this time, when the backlog of trials in this court caused by measures to address the pandemic is still waiting to be dealt with, your plea takes on an additional and special significance which results in an additional reduction of your sentence.  Another aspect of your plea which I consider to be important is that 12 members of the community will need to consider ‑ they may have had to in a trial, even if described to them ‑ the content of the child abuse material in this case, and 
I regard that as significant.  
29	Turning to other matters in mitigation of your sentence.  
30	Your plea indicates an acceptance of responsibility.  On the day of the execution of the warrant you gave your assistance without the need for a court order by providing them access to your phone.  
31	You are a person of prior good character, and on your plea powerful character references authored by your aunt and mother and sister were filed.  Your aunt, who runs a safe accommodation service for women and children, spoke about how you volunteered in that service and became a valued contributor to her creation of a safe place for women and their children.  Your sister writes about your disposition towards kindness to children, which I accept you possess in the real world.  It is just so hard to reconcile that person with the one who could tolerate possessing the images that you had on your phone.  
32	You are still a young person, now 25 or 26 as I understand it.  You are still youthful, and the community has a long‑term interest in your rehabilitation.  This principle does draw more weight in this case than it would for a mature offender.  You were arrested in December 2020 and you are going to be sentenced today.  I accept that the period between those times when you have been uncertain about whether this case will end in the loss of your liberty has had a punitive effect on you to some degree, and I take that into account.  I also consider the fact that you have been in the community without reoffending and otherwise living purposefully.  I take that into account in my assessment of your prospects for rehabilitation.  
33	On your plea a report authored by psychologist Alison Mynard was tendered, having been prepared at an earlier stage in your proceedings.  No specific submissions were directed on this material, but the report contains more context for you and I take it into account more generally.  
34	What emerges from the report is that you are socially very anxious, and painfully so.  Making friends in the real world has not come easily, but in the online world you found an ability to interact with others and be accepted.  In the online world you found people who were accepting of you or the version of yourself you projected.  You also found people who were accepting of a range of very deeply unacceptable human conduct.  
35	Your insight into and ability to speak about your offending is undeveloped and compromised.  During the assessment for suitability for a corrections order or recognizance release order you were unable or unwilling to acknowledge what you really pleaded guilty to.  I raised this with the parties and no submissions were made in relation to remorse or insight.  It is troubling that you are not yet able to discuss your offending frankly.  There is little before me that can bridge the immeasurable distance between the affectionate references written about you by your family and the horrific videos on your phone.  It was submitted that sexual desire did not explain your offending, but there is little before me that does.  Your lack of insight into or inability to discuss how you came to offend gives me some pause.  It increases to a degree the need for specific deterrence.  While there are some very good indicators of strong prospects for rehabilitation, your failure to engage fully with what you did restrains me somewhat from reaching that conclusion, though if you are able to grapple properly with what you did, I would expect your rehabilitation to be assured.  
36	Turning now to some sentencing principles.  
37	General deterrence is a primary feature of sentencing for offences in this category.  The anonymity of the internet creates enormous opportunity for anonymous viewing and, as such, creates an enormously difficult landscape for the detection of these crimes.  The community expects to see serious consequences flowing for those who indulge in this material.  The public interest objective of  the prosecution of offences involving child abuse material is the protection of children.  
38	The industry that creates and exchanges child abuse material is not a victimless one:  real children are sexually abused by real adults in order to supply the market.  You, albeit it in a very limited way, were a participant in that market in relation to the principal offence to which you have pleaded guilty, and I add for completeness that it is of no moment that you did not pay to participate.  
In addition, the creation of child abuse material contributes to the distorted view of reality where children are perceived as appropriate sexual partners for adults.  It creates an additional layer of trauma for children who know that the images of their abuse are circulating in the world for an infinite number of times for eternity.  While you are not guilty, of course, of the actual child abuse, you and the other participants in that industry animate and sustain that industry with your gaze.  The duration of your offending was six days, the cause‑to‑transmit conversation lasting this length of time, so I do find it was of relatively brief duration.  
39	I have had regard to, in pursuit of the principle of consistency in Commonwealth sentencing, a range of cases which adumbrate some sentencing practices.  Broadly, the comparable cases were provided to me, and I have considered them.  
40	Turning to the submissions of the parties.  
41	It was submitted on behalf of the Director that the only available sentence to be served in this case is a term of imprisonment, but it was also conceded that it was open to the court to impose a term that allowed your immediate release on a recognizance release order.  Your counsel submitted with reference to the case of Garside that there was no presumption of imprisonment to be displaced but always an assessment simply of the individual culpability and circumstances of the case.  Your counsel submitted that on this case I could not be satisfied that no other disposition other than imprisonment was warranted, and she submitted that a community corrections order was a proper disposition.  I have considered these submissions knowing that I must impose a sentence of a severity appropriate in all the circumstances of the case.  
42	The very limited nature of your offending on the principal charge did cause me to consider whether your case could be dealt with by the imposition of a non‑custodial sentence.  However, and taking into account all the circumstances of your offending, including that admitted in the schedule offence, I find that, pursuant to s 17A(1) of the Crimes Act, no other sentence is appropriate in the circumstances.  However, in the consideration of all the matters before me, including the nature of the conditions that I can impose, I will not be imposing a term of imprisonment greater than three years, and I will exercise the discretion to order your immediate but conditional release on a recognizance release order.  The duration of the term of the order will be 24 months.  It will have a range of conditions attached.  I will mention these now.  
43	You must be of good behaviour for the entire 24 months.  You must submit to supervision as directed.  You must attend for assessment and treatment directed at your mental health, and you must attend for assessment and, if suitable, for treatment for sex offender or offending‑specific program.  You must report to the Werribee Justice Service Centre within two working days of today to commence your order.  
44	Ms Woronka, I am obliged to explain the sentence to you carefully so that you understand your obligations.  I am imposing a sentence of imprisonment but in a form that allows you to stay in the community and not go immediately to jail.  You must undertake not to commit any new offending, and you must comply with the conditions, and I will ask for Ms Brown to step you through those in a moment.  I do need to tell you this.  If you do not fulfil the conditions, serious consequences can flow.  You could be charged with a breach, and you would have to come to court, and if that happened, I would have power to imprison you instead of serving your sentence in the community.  I will also now state that the offending carries with it that you are registered, pursuant to the Sex Offenders Registration Act, for a duration of eight years.  
45	Counsel, have I missed anything in terms of the orders?  
46	MS CARLANDER:  Your Honour, the only thing I'm not sure if I missed is if Your Honour specified the amount of the recognizance.  
47	HER HONOUR:  I didn't say so, but if I say so now it's $1,000.  
48	MS CARLANDER:  Thank you, Your Honour.  I do have a printed out copy that I was going to otherwise ‑ we've edited the online version, and we can send that to Your Honour's associate if that's suitable.  
49	HER HONOUR:  That's appreciated, most appreciated.  
50	MS CARLANDER:  Thank you, Your Honour.  
51	HER HONOUR:  Ms Brown, have I missed anything?  
52	MS BROWN:  Did Your Honour make a 6AAA declaration?  
53	HER HONOUR:  I haven't.  It's particularly artificial in this circumstance when I am imposing a term of imprisonment, albeit one not to be served immediately, but had Ms Woronka not pleaded guilty but been found guilty after trial I would have imposed a period of imprisonment of four years with a non‑parole period of three years.  
54	MS BROWN:  As Your Honour pleases.  
55	HER HONOUR:  I'm going to amend that.  Obviously I'm thinking about this.  Two years and nine months on the bottom.  All right.  Ms Brown, I also have the Sex Offender Registration Act document.  Is your client aware of what these obligations will entail?  does she need further advice about that or?  
56	MS BROWN:  No, she's had advice.  She is expecting to have to sign an acknowledgement of those obligations, and I understand she'll be given a copy of them as well for her own.  
57	HER HONOUR:  Yes, we'll arrange for that to happen now.  But if I could say this.  Ms Woronka, you're also being put on the Sex Offenders Register, and you need to understand your obligations about that because again serious criminal consequences can flow.  You can be charged with breaching it.  So it's about to be handed to you, and if you don't understand anything about it you're obliged to get some help from your lawyers to work out how you can understand it.  All right, thank you.  Do you want to approach the dock, Ms Brown?  
58	MS BROWN:  Can I approach with Your Honour's associate?  Thank you.  Thank you, Your Honour, Ms Woronka has signed that acknowledgement.  
59	HER HONOUR:  Good.  
60	MS BROWN:  Yes, I'm just making sure that I haven't missed another part of it.  
61	HER HONOUR:  I appreciate it.  What I might do is just stand down briefly while the paperwork is coming through so that I can sign it and Ms Woronka can sign it.  Thank you for your assistance.  
62	MS CARLANDER:  Thank you, Your Honour.  
63	MS BROWN:  As Your Honour pleases.  
64	HER HONOUR:  Yes, I've seen the draft order prepared with your assistance, Ms Carlander, and I've signed it.  Could it now be provided to Ms Woronka.  
65	MS CARLANDER:  Yes.  Thank you.  Thank you, Your Honour, that's been signed.  
66	HER HONOUR:  Good.  Thank you.  Just remind me, has the schedule been returned to you?  Because I don't think I've ‑ where does the schedule actually go in the end, Ms Carlander?  Does it go onto the court file or remain with the Director?  How does that work?  
67	MS CARLANDER:  As I understand it, it remains on the court file, Your Honour.  
68	HER HONOUR:  All right, good, thank you.  
69	MS CARLANDER:  Thank you.  
70	HER HONOUR:  We'll make sure that's done.  Is there anything else that I've missed?  
71	MS BROWN:  No, Your Honour.  
72	MS CARLANDER:  Nothing further, thank you.  
73	HER HONOUR:  All right.  Counsel, thank you for assistance.  We'll rise.  
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