IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
          Suitable for Publication	
AT Melbourne
CRIMINAL JURISDICTION
CR-23-00459

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)		
		
v		

MICHAEL HENRY BAKER		

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JUDGE:	HER HONOUR JUDGE QUIN	
WHERE HELD:	Bendigo	
DATE OF HEARING:	28 September 2023	
DATE OF SENTENCE:	12 October 2023	
CASE MAY BE CITED AS:	CDPP v Baker	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1862		

REASONS FOR SENTENCE 
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Subject:	Use a carriage service to transmit indecent communications to a child under the age of 16; use a carriage service to solicit child abuse material; use a carriage service to procure a person under 16 years of age; use a carriage service to cause child abuse material to be transmitted and possess or control child abuse material obtained or accessed using a carriage service.
Catchwords: 	
Legislation Cited:	
Cases Cited:	
Sentence:	

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APPEARANCES:
	Counsel	Solicitors	
For the CDPP	Mr S. Hogan	CDPP	
			
For the Accused 	Ms N. Low	VLA	

HER HONOUR:  

1	Michael Henry Baker you have pleaded guilty to the following offences:
 	Charge 1 – using a carriage service to transmit indecent communications to a recipient under the age of 16.  The maximum penalty for that offence is 10 years’ imprisonment; 
 	Charges 2, 6 & 7 – using a carriage service to solicit child abuse material;  
 	Charges 3, 4 & 8 – using a carriage service to procure a person under 
16 years of age; 
 	Charges 5 & 9 – using a carriage service to cause child abuse material to be transmitted, and 
 	Charge 10 – possessing or controlling child abuse material obtained or accessed, using a carriage service.  The maximum penalty for each of these latter offences is 15 years’ imprisonment. 
2	The circumstances of your offending are fully set out in the Summary of Prosecution Opening for Plea dated 19 June 2023 (Exhibit A) and can be summarised as follows: 
3	Between 12 March 2022 and 11 September 2022, when you were aged between 38 and 39, you engaged with multiple people on social media via Facebook and Snapchat who were, or purported to be, under 16 years.  Conversations involved explicit sexual discussions, with the text of them being the indecent communications that were transmitted.  In the course of some of those conversations, you encouraged the recipient to provide you with sexually explicit photos of themselves (child abuse material) or to engage in sexual activity with you.  You adopted a similar pattern in your offending, usually representing yourself to be a teenager, with the knowledge the recipient was also under 16 years, and then you would request a photo of them followed up with a request for prohibited material.  
4	The victims of your offending included both real children, namely BM, CT and IM; adults purporting to be children, or unidentified users who had advised you that they are under the age of 16.
5	On 12 March 2022 you communicated with CT on Snapchat – you knew that she was 13 and you purported to be 15 year old bi-sexual female.  On your request, she provided you a photo of herself, and you engaged in sexually explicit conversations, the text of which is set out in paragraphs 12 and 13 of Exhibit A.  You encouraged her to engage in sexual activity to experiment with both boys and girls – CT ceased contact with you at the end of those conversations and did not respond to your further attempts at contact.  
6	On 26 June 2022, on Facebook you communicated with MT, who purported to be a female child aged 14 and a half from Cambodia.  The person used a pseudonym and was in fact an anonymous user from the United States.  
7	At around 7:50pm, you commenced a conversation with MT, immediately requesting she send you a photograph of herself, which she initially refused, but ultimately did provide.  You thought she was 14 and you persistently requested she send you sexually explicit photographs.  Details of your exchanges are set out in paragraph 11, Exhibit A – you were in contact on 11 occasions between 27 June and 22 August requesting and encouraging her to provide such photos, though with the last few messages she provided no response.  MT contacted police on 
8 July and advised them of the conversations.  
8	On 1 August 2022, police utilised an assumed online identity, purporting to be a 
14-year-old female named Charlotte, who added you as a friend on Facebook.  You communicated with her over the course of six weeks, engaging in sexualised conversations and discussing and encouraging her to be involved in a sexual relationship with you, the details of are contained in paragraphs 17 Exhibit A.  These exchanges took place on Facebook between 15 August and 11 September – additionally during that time you sent her nine text messages that were of a similar character to those on Facebook. In the course of conversations Charlotte advised you she was 14 and at school – she agreed to be in a relationship with you but indicated she was worried about her parents finding out – you reassured her you would not tell them.  Contact ceased as police executed a search warrant at your home on 12 September.  
9	On 6 August 2022, you communicated with BM on Facebook – she was 14 and resided in Queensland.  She told you she was 15 – after you had received photos of her, over the following five weeks you engaged in sexualised conversations and requests as set out in paragraphs 22, 24 and 25 of Exhibit A.   You adopted the role of 'daddy' with her and referred to her as your sex slave – you continued to request naked images of her.  Over the relevant period, BM sent you a total of seven images of herself which included images of her genital region, breasts and buttocks.  Charge 10 relates to these images which you saved and were discovered on your phone when police seized it.  After receipt of the last images, you attempted to recommence the conversation with her on multiple occasions, however, she did not respond to you and you ceased contact with her.
10	Between 6 and 28 August 2022, you communicated with nine people via Snapchat, who had advised you they were 16 or under.  You requested each of them to provide sexually explicit pictures of themselves, (see paragraphs 31 to 57 of Exhibit A).  I was informed the investigators were unable to locate the victims the subject of this charge, and accordingly, it is not known whether real children or not involved.  In any event, you thought you were dealing with children and not adults in your request for the material.  12m
11	On 9 August 2022, on Snapchat you communicated with IM – he told you he was 14 though at the time he was 13.  After he had sent a photo of himself, you saved it to your camera roll – you soon requested naked photos and videos though he refused.    You then questioned IMs gender, before repeating your earlier request.  IM swore and abused you, to which you similarly responded, and the conversation ended. 
12	On 10 August 2022, you communicated with 'Jess' on Snapchat - she told you she was 15.  Police were unable to locate Jess following the investigation.  You purported to be a 16-year-old named 'Luka' and immediately requested her photo.  Once received, you engaged in sexually explicit conversations with her between 
11 August and 1 September in the terms set out in paragraph 62 of Exhibit A, which included you requesting her address.  You made several more requests for images though Jess maintained her refusal – you had no more contact after 
2 September.  
13	On 13 August 2022, you communicated via Snapchat with Lily – she told you she was 16 and you said you were also 16 and called yourself Luka.  Once she sent you a photo of herself, she asked why you saved it on your camera roll.  At your request she sent you an image containing the lower half of her body in her underwear.   On 
19 August 2022, Lily sent five further images to you depicting child abuse material, including photos of herself in underwear and of her breasts.  She then requested a photo of you which you declined.  You requested she provide 'fully nude' photos, though she refused and the conversation ended soon thereafter.  
14	In respect of Charge 10, as I have previously referred to, that is the material that was on your phone when police seized it relating to Charges 4 and 5.  
15	On 12 September 2022, police executed a search warrant at your home - several devices, including your mobile phone were seized and review of the device revealed the relevant phone number and existence of Snapchat and Facebook applications logged into relevant names accounts.  When interviewed, you admitted conversations on Facebook with MR, Charlotte, and BM constituting the offending conduct in relation to child sexual abuse material.  
16	In sentencing for Commonwealth matters the Court is required to have regard to the matters set out in s.16A(2) Crimes Act (Cth) (the Act) as they are applicable to the circumstances of the case.  Additionally, I have considered the relevant sentencing principles for matters relating to child abuse material and offences involving online child exploitation. (see paragraphs 4 and 5 of the prosecution submissions and defence submissions).  
17	I was provided a report of Jeffrey Cummins, psychologist, dated 28 August 2023 (Exhibit 1) and I take that material into account.
18	You are currently aged 40 – you were born and raised in Echuca.   You have Aboriginal heritage on your mother’s side and you are a Yorta Yorta man.  Your mother’s family are from Kamarah, New South Wales, and were prominent and well-respected elders – you had some involvement with the local Aboriginal Corporation, Njernda. 
19	Your parents separated when you were about 12.  You have an older sister and younger brother, both of whom you remain in contact with, particularly at times when they are living in Echuca.  Your mother lives in Echuca and cares for your baby nephew.  Child Protection placed him in your mother’s care and you lived with her there until the time of this offending – given the nature of this offending you were required to live elsewhere.  Your father lives in Gisborne and is on a disability pension.  You have lived with your father since these matters were discovered – I was informed that your immediate family are aware of these matters and remain supportive of you and your father has been with you in Court.  
20	After completing school, you were unemployed and found it difficult to secure work due to a lack of experience, though you did obtain some work when you were on benefits.  You completed a number of vocational courses including Warehouse Operations, Farming Chemicals and Civil Construction.  Around 2017 you secured work at Woolworths in the delicatessen after completing a program aimed at assisting First Nations people to gain employment – you remained there for about four years.  You then were employed with your brother in Moama producing cattle feed for seven months until August 2022, but you have not worked since, hesitant to resume employment due to the uncertainty regarding the outcome of these proceedings.  You are hopeful of employment in civil construction or at a supermarket subject to the sentence I impose.  
21	You have a son Ryder with your ex-partner, Ms Divola.  You were in a relationship with her for about five years and separated about 10 years ago – your son is now 12 and lives in Bendigo – you do not have contact with him, as Ms Divola’s partner is opposed to that occurring.  You have never had issues with drugs or alcohol. You have no prior convictions nor any matters outstanding. This is your first encounter with the criminal justice system and your first time in custody.
22	Your offending occurred in the context of your limited social connections and skills.  You were also unemployed for some period of the offending.  These difficulties appear to have arisen as a consequence of your inability to cope with your relationship breakdown a number of years ago.  
23	As to your mental health, Mr Cummins assessed that you had symptoms of negative ruminative thinking, attention and concentration difficulties and a low self-esteem. You also reported to him ongoing symptoms of traumatisation concerning the ending of your relationship with Ms Divola.  You were diagnosed as suffering from a Major Depressive Disorder, which has been recurrent in type and of at least moderate severity associated with features of anxiety and traumatization 
(DSM-5 Code 296.32)   He opined your condition was triggered by the ending of your de facto relationship when you were about 30.  
24	Mr Cummins remarked you continue to suffer from this disorder and require treatment.  I note you have never had any involvement with mental health professionals.
25	Your counsel submitted that there was a link between Mr Cummins diagnosis and your offending such that Verdins principles were engaged.  The parties accepted the principles in respect of limbs 1 to 4 applied to a limited extent and that limbs 5 and 6 were enlivened.  I accept that submission and apply those principles accordingly.
26	I take into account your plea of guilty – it was indicated at an early stage and no witnesses have been required to give evidence.  You have saved the community the cost of a trial, and your plea has an important utilitarian value.  Further, given the delays occasioned by this Court in the criminal justice system as a consequence of COVID, the value of your plea is enhanced.  You co-operated with police, gave them access to your devices and made full admissions.  I accept your plea is indicative of contrition and remorse.  
27	Your counsel submitted that your rehabilitation prospects were good and relied on the following:
 	Your plea of guilty and co-operation with police;
 	No prior or subsequent matters;
 	Family support;
 	Employment history; and
 	The Opinion of Mr Cummins that you are a ‘low-moderate’ risk of committing a further sexual offence.  Reference was also made to the treatment recommendations of Mr Cummins to further reduce that risk, upon completion of offence specific treatment and counselling to address your issues.
28	I accept your rehabilitation prospects are good but that it is dependent on your addressing your social isolation and mental health issues and engaging in treatment and/or counselling. 
29	As to the objective gravity of your offending, 
 	It occurred over a period of approximately six months, though with some of the recipients' communications were only over one day or two;
 	The disparity in age between you and those you either dealt with or thought you were dealing with was significant;
 	 With some of the recipients, you were persistent in your requests for material.  This was so, despite refusal or no response from them;
 	The level of graphic sexually explicit conversations varied, with progression with respect to some of the recipients, to more depraved content.  Further, more demanding or coercive language was used when the recipient engaged in the conversation. (see Ch 3-5) 
30	I accept that there is an absence of aggravating features often found in offending of this kind such as making arrangements to meet up with any of those with whom you were communicating, though you did seek the address of 'Jess' in Charge 8.  
31	I was provided with a number of authorities and other comparative cases.  Though they assist in determination of relevant principles applicable in this kind of offending, none reveal similarities in the number of victims, volume of offences or duration of conduct as are before this Court – each case must be determined on its own facts and the individual circumstances of the offender. 
32	The use of social media is a popular means for children and young people to communicate with peers and friends – it is however ripe for exploitation by persons unknown to them.   The existence of cyberspace, provides a place where adults can easily deceive children and young people as to their true identity and inveigle them into sexual behaviours beyond their maturity.  There is significant public interest in protecting children from those who take advantage of their naivety, immaturity and vulnerability, who are easily found on this medium with predatory activity engaged in like this offending.  The creation of these kind of offences to accommodate the occurrence of sexual exploitation of children via this popular medium, serves to protect this vulnerable class of victim, who are ill-equipped to protect themselves or respond either appropriately or in their own interest.
33	General deterrence, denunciation, just punishment and protection of the community all have a role to play.  Given the number of victims whether real or not, the period of your offending and nature of it, specific deterrence remains an important sentencing consideration, though less significant given your lack of prior history and the risk assessment of Mr Cummins.
34	There is a presumption of cumulation when sentencing an offender for multiple child sex offences under the Act though totality remains a principle in considering your overall criminality for this offending. 
35	The prosecution submitted that given all relevant sentencing considerations and provisions relating to child sex offences under the Act, I should impose a total effective sentence of a period greater than three years, and thus fix a non-parole period.  Your counsel conceded a term of imprisonment was the only available sentencing option and that there were no exceptional circumstances as are required under the act that would justify your release immediately on a recognisance release order.  However, it was submitted that I should impose a total sentence of three years or less with a recognisance release order that allows you to be released prior to the expiration of that period, allowing for you to engage in programs for your rehabilitation in the community.
36	Taking all relevant matters under the Act and sentencing principles into account 
I propose to sentence you as follows:
37	If you could please stand up, Mr Baker.  
 	In relation to Charge 1, you are convicted and sentenced to a term of imprisonment of four months.
 	In respect of Charge 2, convicted and sentenced to a term of imprisonment of five months.  
 	In respect of Charge 3, convicted and sentenced to a term of imprisonment of eight months. 
 	In respect of Charge 4, convicted and sentenced to a term of imprisonment of 15 months.  
 	In respect of Charge 5, convicted and sentenced to a term of imprisonment of eight months.
 	In respect of Charge 6, convicted and sentenced to a term of imprisonment of 12 months.  
 	In respect of Charge 7, convicted and sentenced to a ter. of imprisonment of six months. 
 	In respect of Charge 8, convicted and sentenced to a term of imprisonment of 12.  
 	In respect of Charge 9, convicted and sentenced to a term of imprisonment of eight months.
 	In respect of Charge 10, convicted and sentenced to a term of imprisonment of four months.
38	The base sentence therefore is that imposed in respect of Charge 4 which is 
15 months.  I order one month of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 5, four months of the sentence imposed on Charge 6, two months imposed of the sentence imposed on Charge 7, three months of the sentence imposed on Charge 8 and three months of the sentence impose on Charge 9 to be cumulative.  
39	That gives a total effective sentence of 36 months imprisonment.
40	I direct that you be released after a period of nine months on a recognisance release order in the sum of $1,000 to be of good behaviour for a period of 
two years and to comply with the following condition:
41	That you attend for assessment, and if suitable, undertake treatment for sex offender programs to reduce your chances of re-offending.
42	Under the Sex Offenders Registration, each charge on the indictment is a class 2 offence for the purposes of that legislation and the reporting period is for life.  
43	Pursuant to s6AAA of the Sentencing Act 1991 (Vic), if you had not pleaded guilty to this matter, I would have imposed a term of imprisonment of four years and 
six months, with a non-parole period of two years and six months.
44	Mr Baker, what that means, you can sit down now, what that means is that you will be required to serve a period of nine months of the 36 month sentence that I have imposed.  At the end of that period of nine months you will be required to be of good behaviour.  That means if you committing any kind of offences including of this nature or of  a different kind you will breach this order.  
45	If you breach in the period after you are released you are at risk of having the sentence that I have imposed, that being the 36 months re-imposed and you being required to serve the whole of it.  Do you understand that?
46	OFFENDER:  Yes.
47	HER HONOUR:  Thank you.  I have got the reporting condition for you to sign and also is there a bond being prepared?  Mr Hogan, is there a document being prepared?
48	MR HOGAN:  With respect to an IRO, Your Honour?
49	HER HONOUR:  Yes.
50	MR HOGAN:  I don't have one.  I can prepare a draft and send it through.
51	HER HONOUR:  Yes, please.  What's the PSD as well, please/
52	MS LOW:  Fourteen days, Your Honour.
53	HER HONOUR:  Fourteen days PSD is declared as well.  My associate, I will just confirm with her.  All right.  That recognisance release order, if that can be provided to my associate and then I can check and then we can get Mr Baker to sign that.  I'll just stand down.
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