IN THE COUNTY COURT OF VICTORIA
AT Shepparton
CRIMINAL DIVISION	 Revised
(Not) Restricted
Suitable for Publication	
Case No. CR-23-01801, CR-24-00077

DIRECTOR OF PUBLIC PROSECUTIONS and 
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)		
		
v		
		
MARK ANDREW VINDEN		

---

JUDGE:	HARPER	
WHERE HELD:	Shepparton	
DATE OF HEARING:	17 September 2004	
DATE OF SENTENCE:	4 October 2024	
CASE MAY BE CITED AS:	DPP v Vinden 	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1539		

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords: 	Sexual assault of a child under 16, use carriage service to access child abuse material, possess or control child abuse material, possess imitation firearm
Legislation Cited:	Criminal Code (Cth), Crimes Act 1914 (Cth); Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:	R v De Leeuw [2015] NSWCCA183; DPP (Cth) v Garside (2016) 50 VR 800, R v Verdins (2007) 16 VR 269, Phibbs v The King [2023] VSCA 123, Cluett v R [2019] WASCA 111, R v Sykes [2009] QCA 267, R v Jones [2022] QCA 147, Young v The Queen [2021] SASCA 51Heels v The King [2024] VSCA 133, CDPP v Smith [2024] VCC 1140
Sentence:	STATE: 2 years NPP 15 months  CTH: 2 years 6 months with  RRO after 15 months  GLOBAL TES: 3 years 9 months to serve 2 years 6 months before release

---

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr D Cordy	Office of Public Prosecutions	
For the DPP (CTH)	Ms C Hill	Commonwealth Director of Public Prosecutions	
For the Accused	Mr P. Skehan	Camerons Lawyers	

HER HONOUR:

1	Mark Vinden, you have pleaded guilty to one State charge of sexual assault of a child under the age of 16 under matter CR-24-00077.  You have also pleaded guilty to two Commonwealth charges, being use a carriage service to access child abuse material contrary to sub section 474.22(1) of the Criminal Code (Cth) and possess or control child abuse material obtained or accessed using a carriage service contrary to sub-section 474.22A(1) of the Criminal Code (Cth) under matter CR-23-01801 .  You have also pleaded guilty to a related summary offence of possess imitation firearm on this indictment.  
2	The maximum penalty for sexual assault of a child under 16 years is 10 years, with a standard sentence of 4 years.  I will return to the meaning of a standard sentence in due course. 
3	The maximum penalty for use carriage service to access child abuse material and for possess or control child abuse material is 15 years in each case.  The maximum penalty for the related summary offence is 2 years or 240 penalty units.
Circumstances of offending
4	The circumstances of the State offending were outlined in the Summary of Prosecution Opening for Plea.  I will summarise those circumstances here. 
5	On 24 March 2022, a 9 year old girl from your neighbourhood, the child of a woman known to you, visited your home alone.
6	Once she was in your home, she sat on a recliner chair in the loungeroom and played a video game.  You lay on the couch watching her play the game.   
7	After a short time, you approached the child, sitting down next to her on the recliner chair.  You put your hand up her school dress and down her shorts and underwear.  You rubbed the outside of her vagina using your finger and moved your finger inside the underwear. 
8	Your victim told you to stop and you did so.  She put her shoes on and left the house immediately, returning home.  Her mother noticed her to look shocked, upset and angry but she would not say what was wrong.  Later that evening she told her mother you had touched her and when asked where, she gestured to her vagina.  
9	The incident was reported to police the following day.  The child provided a VARE statement and was forensically examined, as were her clothes.  
10	You were arrested and interviewed but denied any sexual contact with your victim.  You provided a DNA sample which was compared with DNA located on the clothing.  You could not be excluded as a contributor to DNA located in the underwear.
11	The circumstances of the Commonwealth offending were outlined in the Summary of Prosecution Opening dated 18 December 2023.  I shall now summarise those circumstances.
12	You came to the attention of police through an investigation into the Mega.nz website, an encrypted cloud storage website often used to access child abuse material.  
13	On 10 May 2023 police executed a search warrant at your home address.  Property seized included 2 Samsung mobile phones and an imitation firearm.  
Charge 1 - Access child abuse material through use of a carriage service
14	Police downloaded and analysed the contents of your Telegram Messenger ‘saved messages’ folder on the second of the seized Samsung phones.  
15	I note Telegram Messenger is a cloud based telecommunications application that allows phone calls, video calls and text based messages between users.  It is a secure end-to-end encrypted service and allows users to save messages and files.
16	In the saved messages folder, police found child abuse material which was categorised using the Griffeye system.  In total, 449 child abuse material files were located, being 169 category 1 images and videos and 280 category 2 images and videos. 
17	The nature of the material was thoroughly detailed in the written prosecution opening but will not be repeated here due it its graphic and depraved nature.  Suffice to say, between 24 April and 10 May 2023, you accessed 449 images and videos ranging from 9 seconds to over 41 minutes in length, moving the messages from group chats to the saved messages folder.  
Charge 2 – Possess or control child abuse material obtained or accessed using a carriage service
18	Following your arrest, analysis of the second Samsung mobile phone also showed child abuse material files stored on the phone, in addition to those images relating to charge 1.  
19	Child abuse material was found in both the photo gallery and on a storage application disguised as a calculator.  
20	Two screen shot images were saved into the photo gallery and four separate folders had been created in the calculator application containing numerous images and videos.  Police were unable to digitally extract the files stored in the calculator application as manual extraction alters the metadata of the individual files.  
21	The material was viewed as thumbnails and again was detailed in the opening and will not be repeated here given its graphic and distressing nature. 
Related summary offence 5 – possess imitation firearm
22	The imitation firearm located in your home was a Browning HI-POWER light sports pistol.  It was, I am told, to protect your fruit trees from birds.  
Record of interview
23	On 10 May 2023 you participated in a taped record of interview.  You provided 3 email addresses to police, admitted to having used mega.nz, provided your phone number and service provider but gave no comment in relation to the child abuse material.  Regarding the imitation firearm, you stated “It is a pellet gun, just plastic – plastic pellets.”
Objective gravity of the offending
24	The State charge is plainly serious as it involved the sexual assault of a 9 year old girl.  While you stopped when she told you to do so, I consider this offending to be aggravated by the Commonwealth charges on the other indictment.  
25	A victim impact statement from your victim’s mother indicates that her daughter has not been the same since the offending.  The breach of trust involved was significant.  You also engaged in a degree of victim blaming after the fact, alleging to Ms Lechner that your 9 year old victim showed an interest in sexual matters. You also said she asked you if you wanted to touch her and she was showing you sexual material online.  This is no excuse for your conduct.
26	As to the gravity of the Commonwealth offending, there is a well-established list of considerations to be taken into account, as summarised in R v De Leeuw [2015] NSWCCA183 and adopted in DPP (Cth) v Garside (2016) 50 VR 800. 
27	These include: 
i. The nature and content of the material;
ii. The number of items or images possessed; 
iii. Whether the material is for the purpose of sale or further distribution;
iv. Whether an offender will profit from the offence;
v. The number of children depicted and thereby victimised; and 
vi. The length of time for which the pornographic material was possessed. 
28	You accessed the images over a period of just over 2 weeks.  The nature of the material was depraved, which is of greater concern than the number of images, involving pubescent and prepubescent children in various acts of penetration. 
29	The images relating to charge one were moved from group chats to folders and were viewed first over 4 consecutive days then over 11 consecutive days.  The videos were of up to 41 minutes in duration.  
30	The materials in charge 2 were disguised as a calculator application on your phone which shows a level of secrecy, cunning and organisation on your part. 
31	Child abuse material offences are not victimless crimes.  Each and every image involves a child victim.  The number of images represents a large number of such victims who were harmed in the production of these items.  These are crimes which cause real and lasting harm to the children depicted.  They are subjected to horrific abuse for the gratification of those who access and possess the images.  
Plea of guilty
32	You entered pleas of guilty to the Commonwealth charges at committal mention in October 2023.  A plea to the State matter followed in January 2024. These must be considered to be early pleas and you have saved the community the time and expense of running a trial.  As such, you have facilitated the administration of justice and you are entitled to a benefit for that.
33	By your plea of guilty, you have demonstrated some acceptance of responsibility for your offending.  You have the capacity to know right from wrong but have limited insight into the nature and consequences of your offending according to a report from Carla Lechner to which I will return.    
Sentencing principles
34	Charge 1 on the State indictment is a standard sentence offence with a standard sentence of 4 years.  The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.  I must take the standard sentence into account as one of the factors relevant to sentencing.  
35	This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty.  It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing. I consider the offending in charge 1 to fall below the mid-range of seriousness for an offence of this type.
36	I have taken the standard sentence for the offence before me into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case.  
37	Pursuant to s.11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60% of the total effective sentence, unless the court considers that it is in the interests of justice not to do so. 
38	In relation to the State sentences, I have also taken into account the s.5 Sentencing Act 1991 considerations.  
39	In relation to the Commonwealth offending, you are to be sentenced in accordance with the Crimes Act 1914 (Cth). Pursuant to s.16A(1) of that Act, I am required to impose a sentence that is of a severity appropriate to all of the circumstances of the offence.  You must also, pursuant to s.16A(2)(k), be adequately punished for the offending. 
40	S.16A(2) of the Act sets out a list of factors, all which I have taken into account in passing sentence upon you.
Personal circumstances and psychological report
41	I turn now to your personal circumstances.
42	You are 53 years of age, having been born in March 1971.  You were born with tongue and eye problems which necessitated surgery at a young age.  When you were 12 it was discovered that you in fact have only 40% vision in your right eye.
43	You are the younger of 2 children and grew up in Seymour and Broadford where you were often bullied at school.
44	Your parents are both now deceased, but your sister remains supportive of you.  
45	You left school during year 9 and began work at a bakery.  You were involved in the ‘work for the dole’ program at Puckapunyal army base and then found employment at the Nestle factory in Broadford where you worked for some 30 years.  You were ultimately dismissed for bringing a laser to work although I note the laser was to do with your ghost hunting hobby.
46	You then worked several casual jobs, the last being at a winery which ended as a result of these charges.   
47	You have never married but were at one stage engaged, the relationship commencing in 1997 and bearing one daughter before ending in about 2001.  Your daughter initially resided with her mother interstate but lived with you when she was aged 14-17.  You now have limited contact with her as she again lives interstate, now with her own child.  
48	I received a report from clinical psychologist Ms Carla Lechner dated April 2024.  You have neither alcohol nor drug dependencies and were found to be of low average intelligence.  
49	You were open with Ms Lechner about your offending and described being aroused by material depicting pre-pubescent girls.  You demonstrated a limited understanding of the issues arising from child abuse material, stating only that “it affects kids long-term…they don’t understand what’s right and wrong.”  You “did not consider issues such as power-imbalance, breach of trust and potential impact of [your] behaviour on the victim.”
50	You were assessed as a moderate/moderate-high risk of reoffending as compared to other male sex offenders, informed in no small part by your paedophilic disorder and your ‘transfer’ from online to real life offending.  While I note the charge dates reflect that the online offending came later in time, you told Ms Lechner your interest in this material started 6 months before you joined any online groups.  
51	Ms Lechner opines that you meet the criterial for sexual deviance, mental health issues (depression) and poor interpersonal competence.
Other sentencing factors
52	Mr Vinden, this was truly abhorrent offending.  You have stated that you are curious about and aroused by pre-pubescent children and you carried this interest, which has caused damage to countless online victims, into the physical abuse of a 9 year old girl.  It is simply appalling conduct.  
53	I accept that you cooperated with police in as far as providing your passwords and PINs for the devices containing child abuse material.  You maintained your right to silence during the record of interview.
54	You have one irrelevant prior conviction which I do not consider impacts on the instant offending. 
55	General deterrence must be the primary sentencing consideration when it comes to sexual offending against children.  Factors personal are of course of less weight where general deterrence is of particular significance.  Other members of the community inclined to look at child abuse material or to offend against young children must be deterred from doing so by the imposition of stern sentences on those such as yourself who are detected.    
56	Specific deterrence is also relevant, particularly in circumstances where you have limited insight into your offending.  You need to understand that the courts and the community will not tolerate this behaviour.  
57	You need to engage in offence-specific treatment which I hope will moderate your current risk of re-offending.  Your prospects of rehabilitation are fair but entirely dependent on your engaging meaningfully in this treatment.  
58	In circumstances where so many children have been impacted by your offending, community protection must loom large.  You have both indirectly, through your online activities, and directly, through your contact offending, irreparably damaged the lives of a large number of children. 
59	I give due weight to both just punishment and denunciation.
60	I accept that R v Verdins (2007) 16 VR 269 limbs 5 and 6 carry some weight in your case, arising from your diagnosis of clinical depression in the extreme range and the fact that your mental health is likely to deteriorate in custody.  
61	I consider the issue of extra curial punishment to be live, given on the day of your arrest the local newspaper published a photo of you being led away by police, together with your street name.   You were then terminated from your employment and targeted by people within the local community, both at home and online.  Your property was damaged and you were forced to sell your home.  I take this into account. 
Sentencing submissions
62	Mr Cordy, the State prosecutor, submitted that a sentence of imprisonment with a non-parole period is called for given the significant age disparity between you and your victim and her young age.  He noted the standard sentence and submitted that general deterrence should receive primacy in your case.  
63	Ms Hill, the Commonwealth prosecutor, submitted that exceptional circumstances are not made out such as to establish that you should be released forthwith.  General deterrence is, she submitted, the primary consideration given the prevalence of child abuse material, the ease of access to it and the difficulty in detecting it.
64	Both prosecutors submitted that given that you are a diagnosed paedophile, community protection is of paramount importance.  You have not yet taken it upon yourself to engage in treatment of any kind. You have had ample opportunity to do so, and reportedly went to the GP to access assistance but left when you believe you were abused in the street.  
65	Mr. Skehan submitted that a Community Corrections Order would be within the sentencing range open on the State sentence.  He further submitted that your immediate release on a Recognisance Release Order should be imposed on the Commonwealth sentence due to your having established exceptional circumstances.  This, Mr Skehan submitted, was because of the nature and circumstances of your offending, the timing of your plea, your cooperation, your prospects of rehabilitation and your capacity and willingness to make reparations.  
66	I note reparations are irrelevant in this case as the named child victim is involved in the State offending only.  In any event, a monetary penalty would not adequately counter the harm you have inflicted on the child or adequately address general and specific deterrence or community protection.  
67	I do not consider that the other factors cited, either in isolation or in combination, warrant your immediate release.  
68	Ms. Hill cited several comparable cases, including Phibbs v The King [2023] VSCA 123, Cluett v R [2019] WASCA 111, R v Sykes [2009] QCA 267, R v Jones [2022] QCA 147 and Young v The Queen [2021] SASCA 51.  Mr Skehan provided 2 relevant cases, namely Heels v The King [2024] VSCA 133 and CDPP v Smith [2024] VCC 1140.  I note current sentencing principles are but one factor in the sentencing synthesis and take them into account.
69	I take into account the principle of totality. I further note the Commonwealth presumption of cumulation for child sexual offences pursuant to s.19(5) of the Crimes Act 1914 (Cth).
Principles of parsimony
70	Pursuant to s.17A(1) of the Crimes Act 1914 (Cth), I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.
71	In your case, I have come to the conclusion that I have no alternative but to impose a term of actual imprisonment and I direct that my reasons for so finding be entered in the records of the court under section 17A(2)(b) of the Crimes Act 1914 (Cth).  
Disposition
72	I will deal with the State matter under CR-24-00077 first. 
73	On charge 1, sexual assault of a child under 16, you are sentenced to 2 years imprisonment. 
74	I direct that you serve a minimum non-parole period of 15 months before being eligible for parole.  
75	That sentence is to commence today. 
76	I will now deal with the Commonwealth matter under CR-23-01801.
77	On charge 1, use carriage service to access child abuse material, you are sentenced to 18 months imprisonment.
78	On charge 2, possess or control child abuse material obtained or accessed using a carriage service, you are sentenced to 12 months imprisonment.  
79	On the related summary offence of possess imitation firearm you are sentenced to pay a fine of $1000 with conviction.
80	It is my intention to achieve a total effective sentence of 2 years 6 months on the Commonwealth charges. 
81	Before I pronounce the commencement dates of the Commonwealth sentences I indicate that it is my intention to cumulate 18 months of the sentence on Commonwealth charge 1 and 12 months of the sentence on Commonwealth charge 2 of CR-23-01801 upon 15 months of the sentence on the State charge, CR-24-00077, making a global total effective sentence of 3 years 9 months. It is my intention that you will serve a minimum of 15 months of the State sentence, followed by 15 months of the Commonwealth sentence.
82	Commonwealth charge one is to commence at the conclusion of the State non-parole period.
83	Commonwealth charge two is to commence 18 months after the commencement of the sentence on Commonwealth charge one.
84	That makes a total Commonwealth sentence of 2 years 6 months imprisonment.  
85	Pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be released after serving 15 months of the Commonwealth sentence of imprisonment, upon entering into a recognisance release order in the sum of $1000 to be of good behaviour for a period of 3 years.  
86	Upon your release you are to comply with the following further conditions, pursuant to s.20(1B) of the Crimes Act 1914 (Cth) for a period of 15 months:
•	You are to be subject to the supervision of a probation officer appointed in accordance with the order; and
•	You are to obey all reasonable directions of the probation officer; and
•	You are not to travel interstate or overseas without the written permission of the probation officer; and 
•	You are to undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
•	You are to report to the Shepparton Community Corrections Office within 2 working days of your release.
•	You are to report to and receive visits from a Community Corrections officer.
•	You are to notify the Corrections Centre of any change of address or employment.
•	You are to attend for assessment and if assessed as suitable, treatment for sex offender programs.
87	I am required to explain the consequences of this order to you. 
88	You do not have to pay the amount of $1000 but if you fail to comply with that order, the consequences are likely to be that you will forfeit $1000 and more significantly, you will be brought back to be dealt with by the court again.  The court will then consider whether you have to serve the remainder of the 2 years 6 months imprisonment.  That promise runs for 3 years. 
89	Pursuant to s.18(4) of the Sentencing Act 1991 (Vic) and s.16E(2) of the Crimes Act 1914 (Cth), I declare that you have served 17 days, excluding today, by way of pre-sentence detention and I direct that the fact of this declaration and its details be noted in the records of the court.
90	The total effective sentence in respect of the State charges is 2 years imprisonment.  The total effective sentence in respect of the Commonwealth offences is 2 years 6 months imprisonment.  Looking at the totality of both State and Commonwealth sentences, you face a global head sentence of 3 years 9 months.  You will be required to serve a minimum 2 years 6 months before being released.  
91	Having sentenced you on the State sentences first, as is customary, the Serious Offender Provisions do not apply.  
92	Having been convicted of 3 class 2 offences, you are to be registered pursuant to the Sex Offenders Registration Act 2004 for the remainder of your life.  
93	Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, the sentence I would have imposed would have been a global total effective sentence of 6 years imprisonment with a minimum non-parole period of 4 years.
94	Would you please sign the Sex Offenders Registration acknowledgement and the Recognisance Release Order?
---