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

CR 22-01201

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)		
		
v		
		
TORRES (MALCOLM) WILLET		

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JUDGE:	HIS HONOUR JUDGE JOHNS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 October 2023
28 May 2024	
DATE OF SENTENCE:	6 June 2024	
CASE MAY BE CITED AS:	CDPP v Willet	
MEDIUM NEUTRAL CITATION:	[2024] VCC 831	

REASONS FOR SENTENCE
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Subject:			Criminal Law – SENTENCE 
Catchwords:		Fail to comply with reporting conditions of a Sex Offender Registration Act Order – Possessing or controlling child abuse material – Using a carriage service to procure a person believed to be under 16 years of age – Gender transition in custody – Mandatory minimum terms –  Bugmy –  Verdins
Legislation Cited:	Crimes Act 1914 (Cth)
Cases Cited:		R v Edwards [2019] QCA 15;  McEwan v Simmons (2008) 73 NSWLR 10;  Hurt v The King; Delzotto v The King [2014] HCA 8;  Markarian v The Queen (2005) 228 CLR 357;  R v Verdins (2007) 16 VR 240;  Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.
Sentence: 		Total effective sentence of 4 years and 6 months imprisonment with a non-parole period of 
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APPEARANCES:
	Counsel	Solicitors	
For the Commonwealth	Ms K. Breckweg
Ms E. Addams	Commonwealth Director of Public Prosecutions	
			
For the Accused	Ms J. Kretzenbacher	Greg Thomas Barrister & Solicitor	

HIS HONOUR:
1	Torres Willet, you are a transgender woman in the process of transitioning, who has pleaded guilty before me, as Malcolm Willet, to three charges:
•	Charge 1, failing to comply with reporting conditions of SORA, as we refer to it, and that is a rolled-up charge;
•	Charge 2, using a carriage service to procure a person believed to be under 16 years of age for sexual activity; and
•	Charge 3, possessing or controlling child abuse material.
2	Charge 1 carries a maximum penalty of five years' imprisonment.  You have a prior conviction for this offence whereby you were fined an aggregate of $650 in 2019 for two charges of failing to comply with reporting.
3	Charges 2 and 3 carry a maximum penalty of 15 years' imprisonment.
4	In your case, each offence carries a statutory minimum term of four years' imprisonment.  This is by virtue of you having been convicted of relevant offences in the past.  On 30 May 2017, you were convicted of using online information to transmit child pornography.  On 18 June 2021, you were sentenced to a total of nine months' imprisonment for three charges of sexual assault and one charge of knowingly possessing child abuse material.
5	You have other prior convictions that are of some relevance in the sentencing exercise.
Circumstances of offending
6	The circumstances of your offending are set out in detail in the summary of prosecution opening, which was Exhibit A on the plea.  The circumstances are also summarised in the further amended sentencing submissions of the prosecution, which was Exhibit B.  Both documents form part of these reasons for sentence.  I do not propose to summarise your offending in the same detail.
Charge 1: fail to comply with SORA conditions
7	In relation to Charge 1, you were placed on the Sex Offender Register in 2021 for life.  You had previously been on the Register for a lesser term subsequent to a 2017 conviction.  You were well aware of your reporting obligations.  Your reporting obligations would have been clear to you when you were charged and fined for breaching your obligations in 2019.  They would have been made even clearer to you when you were placed on the Register for life in 2021.
8	You failed to comply with your reporting obligations by:
(a)	failing to report the creation of your Snapchat account with username 'Mal_will2021'; and
(b)	failing to report the creation of your email address 'impedio093@gmail.com'.
Charge 1 embraces both breaches.
9	Non-compliance with reporting obligations undermines the efficacy of the system and the purpose of the legislation.  In particular, in relation to the type of offending the subject of Charges 2 and 3, the surreptitious use of emails and social media accounts poses a means of engaging in like conduct without detection.  In fact, you used your account in the commission of Charge 2.
10	You well understood your reporting obligations and had the means to comply, yet you made a conscious decision not to.  I do not accept on balance the accounts you have provided to police and Dr Darjee as your reasons for
non-compliance.
11	A primary purpose of the SORA scheme is to provide for the protection of the community, and the requirements exist to lessen the risk of reoffending by the commission of a further serious offence and thus harming or endangering members of the community.  Compliance with reporting conditions enhances that protective function, and contravention tends to undermine it.
12	Compliance with reporting obligations is crucial to improve the accuracy of police child sex offender intelligence, assist in the investigation and prosecution of child sex offences committed by recidivist offenders, to provide a deterrent to reoffending, to monitor high risk child sex offenders, to assist in the management of child sex offenders in the community and to provide child abuse victims and their families with an increased sense of security.
13	I consider your commission of the offence to be a very serious one due to the above matters.
Charge 2: use carriage service to procure a child believed to be under 16 for sexual activity
14	Charge 2 covers your conduct on 21 October 2021 in procuring a person you believed to be a child aged 14 named 'Charlotte' for sexual activity.  What you did not realise, however, was that 'Charlotte' was an undercover police officer posing as a child.
15	You sent 'Charlotte' messages, including very sexually explicit messages, which were intended to procure her for sexual activity.  I am not going to summarise the exchanges herein.  They form part of Exhibit A.  Through your counsel, you accept Exhibit A as accurate.  I sentence you on the basis that you engaged in this explicit and depraved conversation whilst believing unequivocally that the recipient of your advances was 14 years of age.
16	Your conversation was highly manipulative, and you used sexually explicit language and themes in an effort to corrupt a young person to meet with you and to engage in sexual activity with you.  You suggested the type of sexual activity to be engaged in.  You suggested that she try smoking marijuana with you and discussed how this would enhance libido.
17	You also sent 'Charlotte' two explicit videos.  The first depicted a male who appeared to be masturbating under his shorts, and the second depicted a male who was masturbating his exposed penis.  You sought to make arrangements to meet 'Charlotte' and suggested locations where a meeting could occur.
18	The age disparity between you and 'Charlotte' was 27 years.  Notwithstanding its short duration, it is very serious offending.
Charge 3: possess or control child abuse material
19	You were in possession of 102 child abuse images and videos on your mobile telephone, being 92 images and six videos.  All the images and videos were cartoon or anime in nature.  The material featured highly depraved anime or cartoons featuring pre-pubescent children.  I am not going to summarise the content in these reasons.
20	It is deeply troubling that you had these images in your possession.  It is particularly troubling given your antecedents.  Whilst cartoon or anime child abuse material may not involve real child victims, and fictional or fantasy characters may be involved, the material normalises sexual activity with children and may nevertheless fuel demand for material involving real child victims.
21	As stated in R v Edwards:
Whilst it is true that no real children may have been involved in the production of the ...  material in this case, it is wrong to categorise it as a victimless crime.
22	Appeal Justice Morrison continued:
The capacity of child exploitation material, even that which does not depict real children, to affect the community goes beyond the tendency to normalise exploitative sexual activity involving children or even to stimulate potential participants in it.  In my view, it serves to fuel the demand for such material, whether or not it involves real children.  Further, such material has the capacity to groom not only the recipients of it, but those who may be affected by recipients of it.  That is to say, its impact may well be that reflected in Godfrey, namely, to normalise it with the recipients or to encourage the recipients to take a step further, moving from the cartoon world or anime world to that of the real world in the sense of involving real children.  Something to similar effect was recognised by Adams J in McEwen v Simmons.
23	General and specific deterrence, and denunciation, have important application in respect of Charge 3.  However, the prosecution accepts your possession of this material is toward the lower end of objective seriousness for offending of this nature.
Personal circumstances
24	You were born in Melbourne and were raised in a loving home by both of your parents.  Your parents travelled frequently for work, and this had an impact on your school experience.  Your parents moved to Western Australia a few years ago.  You remain in contact with them.
25	Your relationship with your parents was difficult in your mid to late teen years for reasons summarised below.  On your own admission, you were rebellious as a teenager, but you were grappling with a number of issues not of your making which were difficult to process for a young person at that time.
26	You experienced some trauma in your childhood years, once at the hands of an uncle and on another occasion when you were 10 at the hands of a
13-year-old friend of the family.  You were also sexually assaulted in your teen years by a medical practitioner.  There was another occasion when you were 20 which caused you great distress and ongoing trauma.
27	You were treated for attention-deficit/hyperactivity disorder (ADHD) from 11 to 16 years of age.  You were often in conflict with others in the schoolyard.  At the age of 15, you were admitted to a psychiatric ward whilst being weaned off Ritalin.
28	School was difficult for you socially due to a number of factors, which I will expand on below, but which include ADHD, gender dysphoria, bipolar disorder, borderline personality disorder, complex trauma, cognitive functioning, and the frequent relocations, which made it hard for you to settle and make friends.
29	You attended three different primary schools and four different secondary schools due to your father's job changes.  You began primary school at St Mary's in Trafalgar, then Traralgon East Primary School and Grey Street Primary School in Traralgon.  You attended St Paul's College in Traralgon, then St Mary's College and then Everton Park Secondary College.  You completed Year 10 in Brisbane at Padua Secondary College.  There was some trouble at school, including being expelled for misbehaviour.  You were also the victim of bullying, in response to which you became suicidal.
30	You left home at 17 years of age due to problems at home.  You then lived in a youth refuge and were supported with housing until 25 years of age.  You commenced an apprenticeship as a chef but did not complete it.  You were employed in this capacity at the Keysborough Hotel and St Andrews restaurant in Brighton.  You have also been a volunteer member of the CFA.  You have been in receipt of a disability support pension since the age of 18.
Drug and alcohol use
31	You commenced smoking cannabis when you were a teenager.  You started stealing your father's alcohol from the age of 10.  You used cannabis until aged 39.  You drank excessively up until the age of 27 when you went to Alcoholics Anonymous.  A lot of your Centrelink payments were spent on alcohol.  You were a methamphetamine user between 2016 and 2020.
32	You have used amphetamine, heroin and cocaine.  You have injected and inhaled drugs.  You have taken drugs in prison.  Disinhibition due to intoxication and inebriation appears to have been present during the offending the subject of Charge 2.
33	I accept that drug and alcohol use is a disinhibitor and a contributor to your offending profile.  Addressing substance use is an issue in terms of your prospects of rehabilitation.  You told Dr Darjee that you used drugs to suppress trauma.  These traumas are specified as including being sexually abused when you were 10 and again in later years, and due to being sexually abused in prison.  An accident causing the death of your partner in the CFA is also highlighted as contributing toward complex trauma.
34	I find generally that there are a concatenation of circumstances, personal and environmental, which underpin a vulnerability to substance abuse, including the trauma specified above.
Mental health history
35	You were diagnosed with ADHD at the age of 10 and prescribed Ritalin until about 16 or 17.  You were admitted to a psychiatric ward to be weaned off Ritalin at around 15 years of age.  At 17 years of age, you were admitted to Travancore in Banksia.  You have a history of an eating disorder.  I was told this was due to bullying at school.  You also have a history of suicidal ideation and self-harm, the details of which are summarised in the reports and in your counsel's helpful outline at paragraph 21.
36	You have been diagnosed with bipolar disorder in the past.  In Ms Cidoni's opinion, you have clinical diagnoses of borderline personality disorder, persistent depressive disorder, and generalised anxiety disorder.
37	You were assessed by Ms Cidoni as having a full-scale IQ of 69, which is in the borderline range.  Ms Cidoni noted you have problems with executive functionating and impulse control impairment, which are known risk factors for antisocial behaviour.
38	You have experienced gender dysphoria for an indeterminate period of time, and you have been referred to the Monash Gender Clinic on 24 May 2022 by Correct Care.
39	Since that referral, there has been no contact from the Monash Gender Clinic about the status of the referral, which has been distressing for you.  This is a factor which has impacted upon you in custody considerably.  Your experience in custody has been much harder due to this circumstance, along with a number of other circumstances, some personal to you, others general such as the period of time you have spent in custody subject to COVID restrictions.
40	I was provided with a journal article titled 'Criminalising Gender Diversity:  Trans and Gender Diverse People's Experiences with the Victorian Criminal Legal System'.  I have found this article useful in informing me generally, and it has assisted me in assessing the specific matters put by your counsel as to your particular hardships in prison due to gender and transition.  I will add to that that I have also received Exhibit 9, the letter from Flat Out, which has been more targeted and specific in relation to your experiences.
41	Of the matters personal to you, it is important to consider these in the context of the challenges you experienced in your formative years due to illness, cognitive functioning, personality disorder, gender dysphoria, bullying and complex trauma.
42	In addition to the Cidoni report, I was provided with a comprehensive forensic psychiatric report prepared by Dr Darjee.  Dr Darjee has diagnosed you with the following conditions:
•	personality disorder;
•	neurodevelopmental difficulties;
•	complex trauma;
•	substance misuse disorder;
•	periods of anxiety and depression;
•	gender dysphoria.
43	I proceed on the basis that these features were part of your makeup and experience in your teenage years when life was very difficult for you.  I accept you were subject to specific traumas although it is difficult to assess the impact of these in isolation.
44	On 30 September 2022, whilst on remand for these matters, you were sexually assaulted by another prisoner.  Your assailant was also alleged to have inappropriately touched another prisoner.  I accept that his assault has brought back a lot of trauma for you.  Again, I refer to Exhibit 9.
Psychological/psychiatric: Verdins, hardship, risk
45	I accept that your cognitive functioning leads to reactivity, acting impulsively and lacking consequential thinking.  I accept that your cognitive profile and borderline personality disorder are contributing causal factors to the offending, in that the conditions produce unhelpful behavioural effects relating to erratic, impulsive acts and clouded judgment.
46	Dr Darjee assessed you on 10 and 26 November 2023, 4 February 2024 and 18 February 2024.  These assessments were both via audiovisual link and in person.  I accept Dr Darjee's findings as follows:
(i)	Being a transgender woman and having gender dysphoria is important to understanding your development and experiences of complex trauma.
(ii)	A combination of factors shaped your teenage experience.  Dr Darjee writes:
	Ms Willet experienced factors such as rejection by her family, being homeless and escalating drug use as a young person, and although not having ADHD as an adult, the earlier ADHD was probably related to their borderline intellectual functioning.
(iii)	You have cognitive limitations which make adapting to different situations, stressors and interpersonal issues even more difficult than it would be if you had a personality disorder without cognitive difficulties.
(iv)	You have experienced trauma including sexual abuse, rejection by and separation from family as a teenager, some physical punishment by your father, witnessing the aftermath of accidents and problems related with being transgender, including being sexually assaulted.  These experiences of trauma have contributed to your personality problems, as they undermine a person's ability to deal with difficult situations and emotions, leading to emotional dysregulation, and to form healthy attachments, leading to difficult and dysfunctional relationships.
(v)	Borderline personality disorder and complex trauma are often vulnerability factors for and associated with anxiety and depression.
(vi)	Your childhood ADHD, complex trauma, personality difficulties and anxiety have contributed to your substance misuse problems.
(vii)	You are in the early stages of transitioning.  For people in prison, this can take a long time.  For the vast majority of people who do transition, the outcome is that they are happier, their identity more stable, previous emotional and relationship issues diminish, and being able to transition will likely lead to an improvement in psychological functioning.
(viii)	You have had greater emotional and behavioural stability in custody, but you have continued to have symptoms of anxiety and
post-traumatic symptoms.  You have been negatively impacted by being sexually assaulted and due to other unwanted sexual behaviour towards you by male prisoners.  Being a trans woman in custody is highly stressful and difficult.
(ix)	You require ongoing mental health treatment from a psychiatrist and mental health nurse, including long-term psychological treatment from a psychologist experienced in working with trans women with complex trauma and personality disorder.
(x)	Your psychological factors which predispose you to offending, including sexual offending, are underpinned by your personality disorder, complex trauma, cognitive limitations and gender dysphoria.  The conditions predispose you to committing the offences you have committed, and due to the complex interactions of the conditions, it is not possible to tease out the specific contribution of each one.
(xi)	The various conditions in combination can be considered to have impaired your judgment, impaired your ability to make calm, rational choices and to think clearly.  They have also disinhibited you.
(xii)	On the RSVP-V2, you were assessed as having a moderate likelihood of committing a further sexual offence, and if you did commit a further sexual offence, the likely cause of harm would be low severity, and you pose a low imminent risk of committing a sexual offence either in custody or in the community.
(xiii)	Being transgender, your transition must be taken into account when assessing future risk.  You are at an early stage of transitioning, but if you are able to transition the way you want to, then your risk of sexual reoffending could be lower.
(xiv)	If you receive appropriate interventions in the form of treatment, support and monitoring to address your gender dysphoria, complex trauma and anxiety/depression, personality disorder, interpersonal and intimacy issues and substance misuse, then this will address the underlying dynamic factors related to your offending and has the potential of reducing your risk in the long term.
(xv)	Any offence-specific treatment should only be considered after you have transitioned – Dr Darjee writes, 'i.e. being on hormonal/medical treatment, having had breast surgery and being allowed to live as a woman'.
(xvi)	You will have difficulties as a transgender woman in custody, whether in a male or female prison, and you are unlikely to receive the type of psychological treatment you require whilst in custody.
47	Given Dr Darjee's findings regarding appropriate treatment, availability of treatment and the appropriate timing for delivery of treatment, I am of the view that you will only be able to receive very basic rehabilitative therapies in the custodial setting.
48	I note that you have successfully completed programs on remand in relation to cannabis, alcohol and building better relationships.  This is to your credit and shows your willingness to address behaviours.
Mandatory provisions
49	Charges 2 and 3 each carry a mandatory minimum head sentence of four years' imprisonment, subject to s16AAC of the Act, and a maximum penalty of 15 years' imprisonment.
50	In Hurt v The King and Delzotto v The King (Hurt and Delzotto), the High Court determined the proper approach to statutory mandatory minimum sentences provided for in ss16AAA and 16AAB of the Act.
51	The court held that a statutory minimum should be approached in the same way as a statutory maximum penalty, in that they both fix 'ends' of the sentencing yardstick referred to in Markarian.  In that sense, a mandatory minimum sentence prescribed by ss16AAB or 16AAA – like a statutory maximum penalty – serves two purposes.  First, it confines the power of the court to prohibit it from imposing a sentence less than the statutory minimum (subject to s16AAC).  Second, it sets the beginning of the yardstick against which the offending to be sentenced can be assessed and within which a court is to exercise its sentencing discretion to determine the appropriate sentence.
52	As a yardstick, the mandatory minimum imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances and operates to increase the appropriate term of imprisonment generally for that offence.
53	Sections 16AAC(2) and (3) are statutory mechanisms that allow a court to impose a sentence less than the mandatory minimum where it considers that adequate recognition cannot be given to an offender's plea of guilty or cooperation without falling below the mandatory minimum head sentence.
54	In Hurt and Delzotto, the majority held that it is 'legitimate' for a court to first determine a 'prima facie sentence with the use of the prescribed minimum sentence as a yardstick prior to considering the discount'.  In other words, the appropriate process will be that the court should first engage in an instinctive synthesis or intuitive synthesis of all relevant factors except for the plea of guilty and any co-operation; it should then proceed to give separate consideration to ss16A(2)(g) and (h) factors; and only then determine whether the s16AAC mechanism is required so as to move below the prescribed mandatory minimum term.
55	Accordingly, a s16AAC reduction will ordinarily only be appropriate where the prima facie sentence determined falls within, or falls close to, the 'least serious circumstances'.
56	Both parties urged me to take this course, understandably, and I propose to do so.  What I mean by that is I adopt the course set out by Hurt and Delzotto.
Major matters in mitigation
Verdins
57	I have accepted the opinions of Ms Cidoni and Dr Darjee, and accordingly I accept that due to a causal relationship between mental impairments and the offending, your subjective culpability for the offending is reduced.  General deterrence is also moderated accordingly.
58	I do not consider that your mental impairments impact upon the type of sentence I will impose, however, due to other competing sentencing considerations.
Hardship
59	For the reasons set out above, you are entitled to substantial mitigation of sentence due to factors falling under the heading 'hardship in custody'.  The mitigation is multi-factorial in your circumstances.  I have considered separately and in combination the exigencies of your experience due to gender dysphoria, your stage of transitioning, the environmental traumas you are subject to due to that circumstance, your complex trauma background, and the relationship of mental impairments, personality disorder and cognitive functioning with your experience of custody.
60	You have been sexually assaulted in custody, and your referral to the
Gender Clinic appears to be in limbo, and I make reference again to Exhibit 9.
61	The early part of your remand was affected by COVID restrictions.
62	All of these matters are worthy of separate and substantial mitigation due to hardship.
Delay
63	There has been substantial delay in this matter due principally to awaiting the outcome of the High Court decision in Hurt and Delzotto.  You have served close to three years on remand.  Your gender transition has been on hold, and you have suffered more due to your experience of being a remand prisoner than you would have if you were sentenced.  You have had the stress of having the matter hanging over your head for that lengthy period.
Bugmy
64	I accept the application of Bugmy principles in your case.  There is some overlap between Verdins factors and Bugmy considerations in your case.  I do accept that there were a range of hardships and traumas in your formative years, particularly years age 10-18, that were not of your making and were disparate from the norm.  These forces shaped you; they were formative of you and your responses to some degree.  I apply Bugmy mitigation in a general sense.
65	Your subjective culpability is reduced accordingly.
66	Having regard to the matters I must have regard to, including the objective gravity of your offending and specific matters I must have regard to in relation to assessing objective gravity, the importance of general deterrence in cases such as yours, specific deterrence and denunciation – and synthesising matters personal to you, your prospects of rehabilitation and matters in mitigation – I find I am unable to give appropriate weight to your early pleas of guilty, and what I find to be your moderate to middling cooperation, without imposing less than the four-year minimum head sentence on each of
Charges 2 and 3.
67	The prosecution have accepted that the reductions available under ss16AAC(2) and (3) may be required, as the available sentencing yardstick or range, after all relevant objective and subjective sentencing factors are synthesised or taken into account, may be insufficient to reflect your early plea of guilty and what the prosecution say is a small degree of co-operation without going below the prescribed mandatory minimum head sentence.
68	I find your cooperation to be moderate – and I would adopt that descriptor rather than 'small' – but nonetheless worthy of discount.  I find your plea discount to be significant.
Sentence
69	I sentence you as follows, Ms Willet:
•	On Charge 1, you are sentenced to seven months' imprisonment.  That is a State sentence and must commence today, of course;
•	On Charge 2, you are sentenced to three years and three months' imprisonment commencing three months from today's date;
•	On Charge 3, you are sentenced to three years' imprisonment commencing 18 months from today's date.
70	That makes a total effective sentence of four and a half years' imprisonment.
71	I set a non-parole period, which is a Commonwealth non-parole period, commencing from the commencement of the Commonwealth sentence imposed pursuant to Charge 2, of three years and one month.  So for clarity, that non-parole period commences in three months' time.
72	I declare that pursuant to s18 of the Sentencing Act – in fact, on reflection, I perhaps do not even need to specify that section.  You have served 951 days as pre-sentence detention, not including today's date.
73	If I am required to give a s6AAA indication, I will do so, and that is:  were it not for your pleas of guilty, I would have imposed a total effective sentence, a head sentence, of six years with an effective four-year non-parole period.
74	Now, are there other orders that I need to make, Ms Breckweg?
75	MS BRECKWEG:  No, there is not, Your Honour.
76	HIS HONOUR:  All right.
77	MS BRECKWEG:  Your Honour, just confirming, so the 'convicted and sentenced to seven months', that is a straight sentence on count 1?
78	HIS HONOUR:  Yes.
79	MS BRECKWEG:  Yes, thank you, Your Honour.
80	HIS HONOUR:  Yes, yes, straight sentence, all right.  So look, I think I have expressed that so my intention is clear, the Charge 1, seven months, straight sentence; Charge 2 will commence in three months' time, and it is a sentence of three years and three months; Charge 3 will commence in 18 months from today, and it is a three-year sentence.  So that is how I get to the head sentence of four and a half years.  The non-parole period will be three years and one month, but it does not commence, of course, until the Commonwealth sentence commences, which is in three months' time.
81	MS BRECKWEG:  As Your Honour pleases.
82	HIS HONOUR:  All right.  If there is nothing else, we will now adjourn the court.
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