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

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
GEORGE WEAVER (A PSEUDONYM)		

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JUDGE:	HIS HONOUR JUDGE BERMAN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 February 2024	
DATE OF SENTENCE:	11 April 2024	
CASE MAY BE CITED AS:	DPP (Cth) v Weaver (a pseudonym) (Sentence) 	
MEDIUM NEUTRAL CITATION:	[2024] VCC 440		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW 
Catchwords: 	Sentence — Plea of guilty — Use carriage service to make available child abuse material — Rolled-up charge —  ‘FastMeet’ – Child abuse material in the form of recorded voice messages accessible by other users — Deeply disturbing content — No evidence of sexual interest in children — Sexual enjoyment derived from discussion of depraved subject-matter — Consideration of harm caused — No prior criminal history — Term of imprisonment the only appropriate sentence — Exceptional circumstances established — No actual children harmed — Immediate release would promote rehabilitation — Immediate term of imprisonment not required. 
Legislation Cited:	Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).  
Cases Cited:	DPP (Cth) v Garside (2016) 50 VR 800; R v De Leeuw [2015] NSWCCA 138; Phibbs v The King [2023] VSCA 123; DPP (Cth) v Hauser [2023] VCC 2160; DPP (Cth) v Bailey [2023] VCC 1561; DPP (Cth) v Tate [2023] VCC 1330; DPP v Duncan [2022] VCC 2164; DPP (Cth) v Varga [2022] VCC 1007; R v Finch [2022] NSWDC 578; R v Lozinski [2022] NSWDC 487; R v Niezner [2022] NSWDC 668R v Burton [2020] NSWCCA 127.
Sentence:	Imprisonment for a period of 15 months, to be released immediately upon giving a recognizance in the amount of $5,000 and to be of good behaviour for a period of three years. 

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APPEARANCES:
	Counsel	Solicitors	
For the CDPP	Ms N. Simpson 	Commonwealth Director of Public Prosecutions 	
			
For the Accused	Mr C. Carr SC 
Mr P. Coleridge 	Galbally & O’Bryan Lawyers	

HIS HONOUR:

1	In this case, you, George Weaver, engaged in conduct which is disgusting, reprehensible, and frankly, deeply disturbing. But this Court is not a court of morals, and not all behaviour which is strange, offensive, and disgusting is criminal or harmful. The primary purpose of imposing sentences on those who commit crimes is to protect society and its members from harm. That means that an important part of assessing what sentence to impose on an offender is to determine what harm the offence has caused.  
2	And that requires that I start by explaining what you actually did.
3	There exists a facility, which is accessible via the internet, whereby men who are gay or bisexual can communicate with each other.  The way in which you used the facility was to identify other users who would like to communicate with you on specific topics.  You would record a voice message and they would listen to it before replying.  The form of communication was similar to a telephone conversation, but the listener could not hear what the speaker said until he had finished speaking.  Once he had finished, the recipient would listen to what the speaker said, record his own message in reply, which the original speaker would then listen to.  I will refer to this method of communication as a conversation.
4	On 15 separate occasions between 30 November 2020 and 29 July 2021, you engaged in such conversations over a carriage service with another person. The purpose of these conversations was so that those participating in them could gain sexual stimulation. During those conversations you said many things about the sort of sexual activities you would like to engage in with children. You talked about the rape and torture of toddlers and babies. You described scenes so vile that it would be quite wrong of me to repeat what you said in this sentencing judgment. But to give something of a flavour of what you said, one thing you said that you wanted to do was to sexually assault a child as it was actually being born, although of course you used much more graphic terms than I just did.  There were countless other things said by you as to what you would like to do to young children and what you would like to see done to young children.  
5	Were the subject matter of your conversations not to have involved the sexual assault and torture of children, it would be appropriate to describe some of the scenes you conjured up as involving cartoonish villainy.  You seemed intent on speaking about sexual activities with children which reached the depths of human behaviour. Nothing was out of bounds for you, even to the extent of saying that you were “totally addicted to the Nazi stuff … Paedophile Nazis are my ultimate fantasy”.
6	Yet, there is no evidence that you have ever acted on these fantasies, or even had the desire to.  The purpose of you saying these things was so that you and the person to whom you were speaking would be sexually excited, sometimes masturbating to the point of orgasm. When police ultimately arrested you, they searched your home and your electronic devices and found no child abuse material at all. There is no evidence at all to suggest that you have ever had the desire to have sex with children, or indeed that you find them sexually attractive. To the contrary, the evidence is that it is adult men to whom you have a sexual attraction and you have been in a relationship with your now husband for [REDACTED]. The unchallenged evidence is that you detest violence, especially violence towards children, and that you have never shown any sexual interest in them.
7	In such circumstances, it is appropriate to describe what you did, as saying those things you said, simply for the point of saying them.  You were engaged in a process of thinking up the most depraved way a child could be assaulted and tortured and expressing those thoughts for the sexual enjoyment of both yourself and the person to whom you were speaking. 
8	As a result of that conduct, you have pleaded guilty to one offence of making available child abuse material using a carriage service, an offence contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 15 years’ imprisonment.
9	It is to be noted that what made your conduct criminal rather than just disgusting was your use of a carriage service and the fact that what you said was recorded. Had two men had their conversations in a private room, unheard by anyone else, an offence of this type would not have been committed. Indeed, in Victoria, the prosecutor conceded that it would not have been an offence at all.
10	It is also to be noted that the overwhelming majority of offenders convicted of an offence against s 474.22(1) have accessed, transmitted, made available, or solicited child abuse material consisting of videos and photographs showing actual children being violated in the most horrific ways. When sentencing those offenders, the courts repeatedly say that such offenders cause significant harm to children.  By seeking out child abuse material, those offenders encourage evil people to satisfy the demand for that material, which involves videoing or photographing the perpetration of unspeakable acts upon innocent children. 
11	In this case on the other hand, there were no actual children involved.  This is the most important feature in distinguishing between the usual offence against that section and the present, because the harm caused by you did not involve the direct harm of any child.
12	That is not to say that your conduct was harmless — it clearly was not.  Such communications make more normal the sort of abuse you described.  Something which should never happen (but clearly does) is made more likely to happen by people talking in the terms you did.  Any suggestion that children can be used for sexual purposes is to be deplored and such suggestions should never be made.
13	I began this judgment by referring to the need to assess the harmfulness of your crime — the effect offences of this kind have on society and its members, in particular children.  As I have just mentioned, your conduct has the tendency to make it more likely that children will be sexually assaulted and thus harmed in the most awful way.
14	You were raised in suburban Melbourne. You are the [REDACTED] of [REDACTED] children to your parents, whom you described to a psychologist as being strict and emotionally austere.  Your parents encouraged their children to follow their father into his profession, which some of them did, but not you. Your sexuality was something which you could not tell anyone in your family about, and when, by accident, your parents learnt that you were a homosexual they could not accept it. Your sexuality was a source of confusion and shame to you.
15	You met your husband after moving to [REDACTED] when you were [REDACTED] years of age and you have been together ever since, you now being [REDACTED]. You have worked in the [REDACTED] industry all your adult life, most recently establishing a consultancy which works with [REDACTED]. 
16	The various restrictions to which the citizens of Victoria were subject over the Covid pandemic led to you becoming increasingly depressed. You felt isolated, especially while you were working from home; your husband was able to leave the home to go to work, leaving you behind. You were prescribed an antidepressant and Valium by your GP, but when these drugs did not help as much as you hoped they would, you took higher doses of the drugs than prescribed and increased your already high consumption of alcohol.  It was in such circumstances that you began the conduct which brings you here today.
17	Police executed a search warrant on your home in October 2021.  When interviewed by police you denied making the telephone calls the subject of the present charge, but it was not long before you admitted what was obvious: that it was your voice on the recordings which the police had obtained.  
18	You began to see a psychologist Mr Stephen Say in January 2022 after your offending had been revealed. Mr Say has been treating you ever since, although that treatment has not been offence-specific, a matter to which I will return.  
19	Mr Say has provided a number of reports for the benefit of the Court. It is clear that you are psychologically fragile. You have attempted suicide twice and continue to experience panic attacks. You have suffered from low level depression for many years, with your symptoms becoming more prominent during the restrictions imposed as a result of the Covid pandemic. 
20	Mr Say attempts to explain something that you are unable to, namely why you engaged in such disturbing conversations over the telephone. It is hard to imagine how anyone would get pleasure out of describing sexual fantasies involving the rape and torture of toddlers and babies, but as this case and others to which I will refer later show, there are such people in the world. Mr Say provided his opinion as to what motivated you to speak of such things.
21	Mr Carr SC, who appeared with Mr Coleridge on your behalf, described the psychologist’s opinion as coming from the “Freudian school of psychology”. Mr Say opines that your behaviour arose from a desire to act out “revenge against older men who represent an unforgiving or unavailable father figure” and that by “dominating the other caller … by bringing him to uncontrolled climax” you “convert[ed] [yourself] from a humiliated little boy to someone potent and powerful”.
22	What is missing from Mr Say’s report is any explanation as to why it was necessary for the conversations to involve fantasies involving the abuse of children. If you wanted to control the other caller who represented the voice of authority, why couldn’t you have done that by describing sexual fantasies which did not involve the sexual abuse and torture of children?  There are all manner of sexual perversions and fetishes which, while they are regarded by many people as disgusting and obscene, are perfectly legal. The psychologist’s report does not explain why it was that your choice of perversion involved the imagined abuse and torture of very young children.
23	Whatever the explanation may be however, as I’ve noted earlier, there is no evidence to suggest that you had ever acted in such a way, or even that you had any desire to actually do any of the things you were describing. Nevertheless, the absence of any real explanation for your communications involving the rape, abuse and torture of children and babies is an important matter when I come to consider issues of personal deterrence and the ultimate sentence to impose on you.
24	I was assisted also by the report and oral evidence of another psychologist, this time a forensic psychologist, Patrick Newton. Mr Newton is well experienced in the treatment of sexual offenders, having provided such programs for more than 15 years.  He meant no criticism of Mr Say, and nor do I, when he said that in your case you would benefit from additional treatment on matters which are related to the particular offence committed by you.  He saw this as involving a transition from the sort of help which Mr Say has been providing to offence-specific treatment.  At present Mr Newton’s opinion was that you presented as having a moderate risk of reoffending, but with appropriate treatment, which his practice could provide, it could be anticipated that this risk would reduce.  
25	Mr Newton said in his oral evidence that you could only discuss your offending in general terms and struggled to have an understanding of the broader impact your offending had on the community. Notwithstanding, you are remorseful and feel that you behaved atrociously and recognise the effect that your offending has had on [REDACTED], your husband, and other members of your family.
26	When considering the part that personal deterrence has to play in the sentence I will ultimately impose on you, I take into account the serious consequences that your behaviour has already had for you personally, the remorse which you have demonstrated, and the fact that you will be registered as a sex offender. But given Mr Newton’s assessment of the risk of reoffending, your poor understanding of the impact of your offending on the community, and the lack of any real explanation as to why your conversations involved fantasies regarding the abuse and torture of children, personal deterrence has a significant part to play.
27	The psychologists are of the opinion that a sentence of immediate imprisonment would be harmful to your mental health, in particular that your depression would be exacerbated by such a sentence.  In this case, your mental health issues mean that a custodial sentence, or a sentence whereby there is a risk of you going into custody, would weigh more heavily upon you than would otherwise be the case.
28	Despite the unusual circumstances of this particular offence, general deterrence is also of significant importance.  The number of reported cases in Victoria and NSW where offenders have done similar things to the conduct in this case, using the same facility, is alarming.  
29	You are a man of prior good character.  Not only do you have no previous convictions for any offence at all, but the references tendered on your behalf spoke of acts of kindness shown by you to others.
30	Both Mr Carr and the prosecution relied on what were said to be comparative cases.  Those cases are useful in providing some guidance as to the appropriate sentence in this case.  Of course, no two cases are alike, but with that qualification I have found the comparative cases relied on by the parties to be of considerable assistance. It is not necessary for me to analyse each case in detail.  I will simply note that cases in both this jurisdiction and NSW are almost unanimous in holding that a sentence involving actual custody in prison is not required.  The decision of Burton v R is something of an outlier.
31	A sentence of imprisonment is a sentence which can only be imposed if no other sentence is appropriate, but despite that I am satisfied that such a sentence is required in the circumstances of this case.  Particularly important in coming to this conclusion are: the awfulness of what you said; the length of time over which the offending occurred; your lack of insight into your offending behaviour; and the accompanying need to ensure that you are personally deterred from ever offending in a similar way in the future.
32	That conclusion brings into play s 20(1)(b) of the Crimes Act 1914 (Cth), which provides that in cases of this nature, a court must specify a period of immediate imprisonment and must not release an offender immediately unless there are ‘exceptional circumstances’ justifying immediate release.
33	Mr Carr submits that there are exceptional circumstances, the prosecution agrees, and that is my assessment too.  The most important factor I have had regard to in coming to that conclusion was the absence of any actual child being directly harmed in connection with the offence. What you said was, once it had been listened to by a single person, highly unlikely to be heard by anyone else. There was no intention that it be disseminated and little risk of that occurring. If the communication had taken place otherwise than by use of a carriage service, no criminal offence would have been committed. There is also the fact that, because your conduct was less serious than most other offenders, you would be unlikely to be effectively treated in custody, a topic to which I will now turn.
34	Immediate release will also promote your rehabilitation. Mr Newton’s evidence explained why it was that you would find it easier to be treated by his practice if you were not in gaol.  Indeed, his evidence was that you are unlikely to receive effective treatment in custody because there are many offenders in custody with a greater need for treatment because they are of greater risk to the public.
35	Finally, I record that you pleaded guilty at an early opportunity and you were therefore committed for sentence to this court.  That plea had a utilitarian benefit which I will recognise by imposing a sentence which is less than it would otherwise have been.  
36	George Weaver, you are sentenced to imprisonment for a period of 15 months. You are to be released immediately upon entering into a recognizance of $5,000, without security, that you will comply with the following conditions:
(a)	you are to be of good behaviour for a period of 3 years; 
(b)	you are to be subject to the supervision of a probation officer for a period of 2 years; 
(c)	you are to obey all reasonable directions of the probation officer; 
(d)	you must not travel interstate or overseas without the written permission of the probation officer;
(e)	you must undertake such treatment or rehabilitation programs that the probation officer reasonably directs; and 
(f)	you are to receive treatment from Mr Patrick Newton, or such other psychologists nominated by either him or your general practitioner, for as long as the person providing treatment considers it would be beneficial to you.
37	You are to report to the [REDACTED] Community Corrections Centre located in [REDACTED] within two clear working days of the date of this order. You are to report to and receive visits from a community corrections officer or officers. You are to notify an officer of the specified Community Corrections Centre, that is the [REDACTED] office, of any change of address or employment within two clear working days after the change. You are to attend for assessment, and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee. 
38	Do you understand each of those conditions?
39	Do you consent to being placed on such an order?
40	I need to explain to you the effect of the orders I have made. I have imposed on you a sentence of imprisonment.  However, you will be released from custody. You are placed on a recognisance of $5,000 to be of good behaviour for three years. You must comply with the conditions of the order.
41	If you fail to comply with the conditions of my order, you can be brought back before the Court. One possible outcome may well be that you are required to serve the sentence of imprisonment I have just imposed on you in actual custody, that is, in a gaol. 
42	Do you understand that? 
43	Further, as the offence on which you have been convicted is a Class 2 registerable offence pursuant to the Sex Offenders Registration Act 2004 (Vic), you are to be placed on the Sex Offenders Register and you will be required to comply with the reporting obligations for a period of 8 years. I am going to have provided to you a document that sets out your obligations under the Sex Offenders Registration Act. It explains what are your obligations. If you do not understand those please speak to your lawyer and I am sure they will explain to you not only those obligations but also the potential consequences of any breach of those reporting obligations. 
44	Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), the sentence I would have imposed, but for your plea of guilty, was imprisonment for 20 months with immediate release upon the same conditions as apply to the sentence I have just announced.  I direct that this be noted in the Court’s records.