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

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHAUN GARDNER (A PSEUDONYM)		

---

JUDGE:	HER HONOUR JUDGE DAVIS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 July 2024	
DATE OF SENTENCE:	30 August 2024	
CASE MAY BE CITED AS:	DPP v Gardner (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1304		

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW 
Catchwords: 	Plea of guilty – one rolled up charge of producing child abuse material (charge 1) – one charge of sexual assault of a child under the age of 16 (charge 2) – one charge of sexual activity in the presence of a child under the age of 16 (charge 3)
Legislation Cited:	Crimes Act 1958, Sentencing Act 1991, Criminal Code Act 1995 
Cases Cited:	DPP v Estrada (a pseudonym) [2020] VCC 845; Lugo (a pseudonym) v The Queen [2020] VSCA 75; DPP v McKinley (a pseudonym) [2022] VCC 2066; Clarkson v R (2011) 32 VR 361; Ibbs v The Queen (1987) 163 CLR 447; Mouscas v R [2008] NSWCCA 181; R v Gent (2005) 162 A Crim R 29; Brown v The Queen [2019] VSCA 286
Sentence:	Total effective sentence of four years and six months imprisonment with a non-parole period of two years and six months

---

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mx C Rattray	Office of Public Prosecutions	
			
For the Accused	Mr J McGarvie	Stary Norten Halphen	

HER HONOUR:

1	Shaun Gardner, you have pleaded guilty to one charge of producing child abuse material, contrary to section 51C(1) of the Crimes Act 1958 (rolled-up charge 1), one charge of sexual assault of a child under the age of 16, contrary to section 49D(1) of the Crimes Act 1958 (charge 2), and one charge of sexual activity in the presence of a child under the age of 16 contrary to section 49F(1) of the Crimes Act 1958 (charge 3). Each of the charges carries a maximum penalty of 10 years’ imprisonment. 
2	Charges 2 and 3 are standard sentence offences under sections 5A and 5B of the Sentencing Act 1991 (“the Act”) and the standard sentence for each of these charges is four years’ imprisonment. If the Court were to impose a term of imprisonment on any two of the offences on the indictment, you fall to be sentenced as a serious sex offender on the remaining charge. 
3	In sentencing you, I have taken into account all of the written material tendered as well as the oral submissions of counsel. 
Circumstances of Offending 
4	The circumstances of your offending are set out in the Summary of Prosecution Opening which was accepted by your counsel. I sentence you on the basis of the facts contained in that document.
5	You are 39 years old and were aged between 34 and 37 years at the time of the offending. The victim was your stepdaughter and was aged between 10 and 12 years at the time of the offending. 
6	In January 2019, you met the victim’s mother and commenced an intimate relationship with her. About six months later you moved in with her and her three children. You married her in 2021 and you had a son together in July 2022. 
7	On 1 June 2022, Victoria Police members from Central Victoria Sexual Offence and Child Abuse Investigation Team attended your property and executed a search warrant. During the search, police seized your Samsung mobile phone, but did not have it forensically examined at that time. You were arrested and charged with one charge of using a carriage service to transmit indecent communication to a person under 16 years of age, contrary to section 474.27A of the Criminal Code Act 1995 (Cth), and one charge of knowingly possessing child abuse material contrary to section 51G of the Crimes Act 1958.
8	On 4 July 2023, you pleaded guilty to those offences and were convicted and sentenced to a 24-month Community Corrections Order (“CCO”). You were  placed on a Sex Offender Registration Order for a period of 15 years.  
9	Prior to returning your Samsung phone to you, police conducted a forensic analysis of it. That analysis yielded further material that prompted the current charges. 
10	Between 5 August 2019 and 16 February 2022, you used the Samsung phone to take photos of the victim without her knowledge. The images were saved in folders titled “ass”, “holding my cock” and “pussy”. 
11	The images that form part of rolled up charge 1 include: 
(a)	Two photos (taken on 5 August 2019) of the victim (aged 10) getting out the shower, naked; 
(b)	Photos (taken on 17 August 2019) of the victim’s (aged 10) vagina; 
(c)	One photo (taken 30 September 2019) of the victim (aged 10) lying face down with her buttocks exposed; 
(d)	One photo (taken 26 November 2019) of the victim (aged 10) naked in the bathroom;
(e)	Two photos (taken 31 December 2019) of the victim (aged 10) standing naked next to the bath;
(f)	Two photos (taken on 27 January 2020) of the victim (aged 10) with her pants lowered below her buttocks; one of the photos was a close up of her buttocks;
(g)	Two photos (taken on 7 February 2020) of the victim (aged 10) lying on a bed with pants lowered exposing her buttocks; 
(h)	Three photos (taken on 7 February 2020) of the victim’s (aged 10) vagina;
(i)	Photo (taken on 10 February 2021) of the victim (aged 11) in the bathroom holing her shirt up wearing no pants or underwear; and
(j)	Photos (taken on 6 December 2021) of the victim’s (aged 12) buttocks in blue underwear inscribed with “good times”.
12	In addition, your phone contained photos of your erect penis being masturbated by the hand of the victim while she was asleep in her bed. The taking of the photo forms part of rolled up charge 1. Causing the victim to sexually touch you is the subject of charge 2. 
13	There was also one 18-second video on your phone which depicted you masturbating and ejaculating across the outstretched arm of the victim while she was asleep in her bed. The taking of the video forms part of rolled up charge 1. The act you performed (masturbating and ejaculating on her arm) is the subject of charge 3. 
14	A search warrant was executed at your property on 15 January 2023 and police seized items including clothing; a computer and two hard drives; and two video games. 
Arrest and Record of Interview 
15	On 15 January 2024, you were arrested and taken to Werribee Police Station for interview. In the interview, you admitted to the offending. You indicated that you knew your behaviour was wrong, but could not explain why you had engaged in it. You were charged and bailed. A final Family Violence Intervention Order prohibiting you from having any contact with the victim is in place until the end of 2060.
Pre-sentence detention 
16	You were taken into custody after the plea hearing on 30 July 2024, and you have spent 31 days in pre-sentence detention, not including today. 
Victim Impact Statement
17	The victim’s mother provided a victim impact statement dated 24 July 2024. She stated that she has been angry, upset and disgusted by your conduct. She is angry that you were invited into her home and then betrayed her and her children. She is upset that she was unaware of your conduct. She stated that the victim has struggled in school, where she is receiving counselling, and is sometimes unable to get out of bed. The victim’s mother cannot afford any additional counselling for her own anxiety. She feels unable to entrust her children into the care of others. 
Personal Circumstances
18	In oral submissions, your counsel summarised your personal circumstances.  
19	You are one of four siblings and grew up in a loving household. Your parents and siblings continue to support you despite your offending, and your parents provided character references. 
20	You have a minor learning disability and were dependent on an integration aid for support but completed year 11 at school.  Although you had friends at school, you were also bullied there and you lacked confidence as an adolescent. After school you attended TAFE to study Information Technology, but could not manage the maths. You left the course and then worked full time in a number of unskilled positions. Between 2001 and 2019 you worked in a warehouse, where you acquired skills in spray painting, welding and using power tools. 
21	Socially, you avoided women who showed an interest in you and had your first sexual experience when you were 26 or 27 years old. In 2019 you were living at home and had never been in a long term relationship. At that time, you met the victim’s mother. Within six months, you moved into her home with her and her three children. 
22	You were injured at work in 2019. Your employment there was subsequently terminated and you later obtained work as a fork lift driver. 
Defence material 
23	There was no forensic psychiatric report tendered on your behalf. However, your counsel relied on a 3-page report to your solicitor from your current treating psychologist, Peter Hanley, dated 26 July 2024 detailing your treatment history. The letter reveals that he commenced sex offender treatment with you on 28 October 2022 in relation to other matters which were finalised on 4 July 2023, and that you made slow progress until mid-January 2024 when you first disclosed the current offending to him. You were apologetic for failing to disclose the offending to police and to Mr Hanley, but were afraid of being hated and shamed. 
24	You told him that your interest in the victim emerged as she became pubescent, and that you became sexually aroused by her at times when you would typically be having sexual relations with your wife. Your disclosure was accompanied by a desire for help and by feelings of guilt and self-hatred regarding your offending. 
25	Mr Hanley diagnosed you with Paedophilic Disorder, non-exclusive type, sexually attracted to females. He did not undertake a full risk assessment. Rather, he provided a “brief consideration of risk” in which he indicated that because your offending was “chronic, diverse, and escalated in severity over time”, a comprehensive risk assessment would likely put you in more than a “moderate” risk range. Mr Hanley noted that you have become more transparent and open during treatment since disclosing your current offending. 
26	Given that much of your treatment occurred prior to full disclosure, Mr Hanley considered that further treatment is required for your rehabilitative needs to be addressed properly, and that such treatment should address sexual deviance, with the aim of containing the risk of future sexual offending against pubescent and pre-pubescent girls. Such further treatment could occur within a custodial setting or within the community. 
Defence Submissions
27	Your counsel conceded that your offending is objectively serious and your moral culpability is high. It was conceded that the aggravating features of your offending included that over a protracted period you breached the trust of a young, vulnerable victim, while she slept in her own bed, and on occasion, you recorded your activity. It was conceded that your offending will attract a sentence involving an immediate term of imprisonment. It was submitted that a longer than usual period on parole is appropriate in the circumstances of this case. 
28	According to your counsel, you knew what you were doing was wrong, but were unable to control your deviant interest. Your counsel submitted that at the time of  offending, you were suffering from anxiety and stress relating to your workplace injury. 
29	In mitigation, your counsel relied on your prior good character, your early plea of guilty, your expressions of remorse (to police, to Mr Hanley and to your family), the delay in finalisation of this matter and your prospects of rehabilitation, which, with ongoing, offence-specific treatment, are said to be at least fair. 
30	Your counsel relied on the supportive character references from your mother, father and aunt which describe you as a loving, caring family member. They note that you are very remorseful for your offending, that you have lost old friends, and that you now only leave home to go to work.  They note that the family has also been impacted by losing a circle of friends.  
31	Your counsel referred to the delay between the seizure of your phone (in May 2022), the location of the material (in September 2023), and charges being laid (in January 2024). The delay meant that you faced two prosecutions instead of one and also that your rehabilitation in the community will be interrupted by a term of imprisonment. 
32	Your counsel also relied on the hardship associated with the loss of contact with your biological son as a result of the permanent intervention order imposed against you.  
33	Finally, while not submitting that the principles in Verdins are enlivened, your counsel said that your mental health has declined as a result of the charges brought against you, and submitted that it will likely continue to decline while in prison, particularly in the absence of further treatment from Mr Hanley, who was also treating you for depression and anxiety. 
34	In relation to the three comparable cases cited by the prosecution, it was submitted that only the case of DPP v Estrada (a pseudonym) is relevant.  
Prosecution Submissions
35	In terms of the objective gravity of the offending, the prosecution highlighted a number of relevant  features. Firstly, the photos you took are of a sexually intimate nature, and include the sexual assault of the victim and you also recorded yourself engaging in sexual activity with the victim in her presence. Secondly, there was one victim who was aged between 10 and 12 years. Thirdly, your offending constituted a breach of trust, as you were in a position of care, guardianship or authority over the victim as her step-father. Finally, the offending involved family violence.
36	It was submitted your moral culpability for the offending is high. 
37	In relation to delay, the prosecution indicated that forensic analysis often takes up to a year, and that this explains some of the delay in finalising this matter. 
38	The prosecution accepted that you made your plea at an early opportunity (at the first committal mention on 12 April 2024), and that your plea has utilitarian benefit in avoiding the need for a trial, as well as being indicative of your remorse. The prosecution accepted that further indications of remorse are evidenced by your honesty in your record of interview and your engagement with the CCO imposed in relation to the other offending. 
39	However, the prosecution submitted that your participation in the sex offender treatment program should not be treated as a mitigatory feature because Mr Hanley noted that you only disclosed your current offending to him in January 2024, after over a year of treatment. Further, he concluded that you have only made “mixed progress” with your treatment, that you present as a moderate risk of reoffending and that you require further treatment. 
40	However, the prosecution agreed that your prospects of rehabilitation are fair due to your age, lack of criminal history, limited relevant subsequent matters, general compliance with therapeutic court orders, your continued prosocial lifestyle and your willingness to engage in offence specific rehabilitation.
41	The prosecution conceded that there is considerable overlap between the charges. Nonetheless, it was submitted that charges 2 and 3 can still be considered to be an aggravating feature of rolled-up charge 1.
42	Finally, it was submitted that in all the circumstances the appropriate disposition is one of the imposition of a term of imprisonment and a non-parole period. The prosecution referred the Court to three comparable cases: Lugo (a pseudonym) v The Queen, DPP v Estrada (a pseudonym) and DPP v McKinley (a pseudonym). 
Sentence
43	General deterrence, specific deterrence, denunciation, just punishment and protection of the community are significant factors in sentencing for offending of this type. On the authorities, it is presumed by the law that children who are the victims of sexual offences suffer harm, and that certain kinds of sexual offences are not to be regarded as more or less serious than others. In this case, the victim impact statement from the victim’s mother also conveys the impact of your offending on the victim, as well as referring to the impact on her. Given the seriousness with which the law views sexual offending against children, the law requires that prior good character of an offender be given less weight when imposing a sentence for offending of this kind. Given your diagnosis of paedophilic disorder, and risk profile, I consider that specific deterrence has an important role to play in the sentencing process. 
44	In sentencing you, I have also considered your personal circumstances, the submissions of counsel, and the comparable cases which were referred to by counsel (all of which postdate the introduction of the standard sentencing scheme). 
45	I note that charges 2 and 3 are standard sentence offences. In sentencing you on those charges, the standard sentence, along with the maximum penalty, are legislative guideposts informing the intuitive synthesis. On the authorities, the standard sentence provisions do not affect the conventional process of assessing offence seriousness, that is, of taking into account both objective gravity and moral culpability.
46	If you are sentenced to a term of imprisonment on charges 1 and 2, you will be sentenced as a serious sexual offender on charge 3. If a term of imprisonment is to be imposed on that charge, protection of the community is to be treated as the principal purpose of the sentence, and a disproportionate sentence may be imposed in light of the objective circumstances of the offending. I note that the prosecution did not seek a disproportionate sentence on charge 3. 
47	In addition, under section 6E of the Act, there is a presumption of cumulation between the sentences where you are sentenced as a serious sexual offender. However, this presumption is to be exercised subject to the principle of totality and proportionality. I am obliged to fix appropriate sentences in respect of each charge.  
48	In relation to the objective gravity of your offending, I make the following observations. Your offending is objectively serious because it involved a significant breach of trust, as well as family violence, committed against your young step-daughter, over a period of nearly two and a half years, in the family home, and on a number of  occasions, in her own bed.  Photos and video taken when she slept in her own bed were taken at a time when she was most vulnerable. The victim was only 10 years old for most of the offending. The intimate photos, mainly of her buttocks and vagina, were taken on 11 occasions when the victim was naked in the bathroom in your company, or when she was asleep in her bed. These are all the subject of rolled-up charge 1. The worst of the photos are those taken on 17 August 2019 when, apart from photographing the victim’s vagina while she slept in her bed (which is part of rolled-up charge 1), you photographed yourself making  her hand masturbate your penis (which is the subject of charge 2). This offending is the first instance of contact offending. The final instance of offending (which is the subject of charge 3) was the worst, and it reflects an escalation of your contact offending: when the victim was 12 years old and asleep, you masturbated and ejaculated over her arm. You also filmed yourself doing this (which is part of rolled-up charge 1). 
49	As you knew what you were doing was wrong, your moral culpability is very high. You chose to inflict harm on the victim to obtain momentary sexual gratification. The chronology of your offending shows that you became emboldened over time, progressing to contact offending. The aggravating features of your conduct include the breach of trust, the age of the victim, her vulnerability (being partially naked or naked in the bathroom or asleep in bed), your failure to desist from the conduct, and the worsening of the offending over time. The harm done to the victim is significant, and is demonstrably so in the light of the victim impact statement provided by her mother. 
50	Whilst the material was in your possession for an extended period, I accept that the number of images in your possession was relatively small, depicting one child only, and that there was no evidence that you made the material for the purpose of sale or distribution. 
51	I have taken some account of your prior good character. You are entitled to the full benefit of your early plea, which has utilitarian value and is indicative of your taking responsibility for your offending. I accept that you have also expressed your remorse in your record of interview, in your discussions with your family, and to Mr Hanley. 
52	There was no evidence before me that you are being treated by anyone for anxiety and depression. Nor is there any evidence before me that you suffer a mental health condition of this kind which is likely to worsen in prison. In addition, the hardship relied upon in prison in terms of isolation from your biological son is unexceptional in that it is no different to the hardship suffered by any parent who is imprisoned. 
53	I consider that your prospects of rehabilitation are fair for the following reasons. Although you began specific sex offender treatment with Mr Hanley in October 2022 in relation to the further offending which occurred in May 2022 (and which involved, among other things, a charge of using a carriage service to transmit indecent communication to a person under 16), you did not disclose the current offending to him until January 2024. Mr Hanley regarded honesty and transparency as important aspects of the therapeutic process. I accept that you have made progress in treatment since the disclosure of the current offending to Mr Hanley. Mr Hanley concluded, however, that in light of your paedophilic disorder, you are likely, on full assessment, to be assessed as being at moderate risk of sexual reoffending against pubescent girls, and require ongoing “thorough engagement in specialised sex offender treatment to comprehensively address the sexually deviant arousal patterns that appear to have underpinned [your] offending, and to develop relapse prevention plans that properly reflect the nature of [your] sexual problems”. Mr Hanley indicated that this treatment could occur in prison, or in the community. 
54	In all the circumstances, I consider it necessary to sentence you to a term of imprisonment with a non-parole period. 
55	I have taken into account the need to avoid double punishment. I sentence you as follows: 
56	Would you please stand. 
57	On rolled-up charge 1, producing child abuse material, you are sentenced to 12 months’ imprisonment. On charge 2, sexual assault of a child under 16, you are sentenced to two years’ imprisonment. On charge 3, sexual activity in the presence of a child under 16, for which you fall to be sentenced as a serious sexual offender, you are sentenced to three years imprisonment. The sentence on charge 3 is the base sentence. I order that six months of the sentence imposed on charge 1 be served cumulatively on the base sentence. I order that 12 months of the sentence imposed on charge 2 be served cumulatively on the base sentence. The total effective sentence is one of four years and six months’ imprisonment with a non-parole period of two years and six months. 
58	I declare that there are 31 days of pre-sentence detention, not including today, which are to be deducted administratively from this sentence.
59	I note that you are already the subject of an order made on 4 July 2023 under the Sex Offenders Registration Act 2004 (“SORA”). However, as you are now being sentenced on three class 2 offences under SORA, sections 33 and 34 of the SORA  require the court to make a new order with a reporting period for life from the date of sentence. I make that order. 
60	Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of imprisonment of six years with a non-parole period of four years. 
61	Finally, I make the disposal order sought by the prosecution.