IN THE COUNTY COURT OF VICTORIA
AT SHEPPARTON
CRIMINAL DIVISION	 Revised
Not Restricted
 Suitable for Publication	
Case No. CR-23-01267

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)		
		
v		
		
MICHAEL JOHN TRACEY		

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JUDGE:	HER HONOUR JUDGE HARPER	
WHERE HELD:	Shepparton	
DATE OF HEARING:	18 September 2024	
DATE OF SENTENCE:	3 October 2024	
CASE MAY BE CITED AS:	CDPP v Tracey 	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1600 		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW	
Catchwords: 	Use carriage service to access child abuse material, possess or control child abuse material
Legislation Cited:	Criminal Code (Cth), Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991
Cases Cited:	Worboyes [202] VSCA 169, R v Verdins (2007) 16 VR 269, R v De Leeuw [2015] NSWCCA183; DPP (Cth) v Garside (2016) 50 VR 800, Taylor v The Queen (2015) 26 TasR 132, DPP (Cth) v Volovik [2022] VCC 2184, DPP (Cth) v Carroll [2018] VCC 1374, DPP (Cth) v McCarthy [2022] VCC 1840, DPP (Cth) v Kitaoji [2022] VCC 1689
Sentence:	18 month imprisonment, RRO after serving 10 months.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr M. Challen	Cth DPP	
			
For the Accused	Mr M. Weinman	Slater Law	

HER HONOUR:

1	Michael Tracey, you have pleaded guilty before me to one charge of using a carriage service to access child abuse material contrary to sub-section 474.22(1) of the Criminal Code (Cth) and one charge of possess or control child abuse material obtained or accessed using a carriage service, contrary to sub-section 474.2A(1) of the Criminal Code (Cth).
2	The maximum penalty for each of these offences is 15 years imprisonment.  
Circumstances of offending
3	The circumstances of your offending were comprehensively outlined in the Summary of Prosecution Opening Upon Plea dated 6 October 2023.  I will outline those circumstances here. 
4	On 7 March 2023, investigators from the Join Anti Child Exploitation Team commenced an investigation after receiving a report from the US National Centre for Missing and Exploited Children. 
5	On 10 March 2023, a search warrant was executed at your home and a number of devices were seized including a Samsung Galaxy mobile phone, a blue Leader brand laptop and a Seagate external hard drive.
6	You were arrested and conveyed to the Shepparton police station where you participated in a taped record of interview as detailed below. 
7	The three devices seized were forensically analysed and the materials located therein were categorised according to the Interpol Baseline Categorisation scale. 
Charge 1 – use carriage service to access child abuse material
8	An examination of the Samsung Galaxy mobile phone identified 119 videos downloaded from the ‘RedHot’ site via the membership section of the site, ‘redmem,’ between 22 January 2023 and 9 March 2023.
9	The website allowed you to purchase a membership to gain access to the ‘members only’ section of the site.  This section allowed you to access links and make purchases of child abuse material. 
10	Of the 119 videos located, 91 were Category 1 on the Interpol scale and 28 were Category 2.  
11	While the prosecution opening details the content of the videos, it is particularly graphic and depraved and will not be repeated here.  
12	Examination of the Leader brand laptop identified that the phone and hard drive were last connected to the laptop on 4 February 2023.  Analysis of links you had paid to access revealed 15 websites such as ‘Dark Fantasies’ and ‘PenetrationOnly’ and showed how long you had remaining on your membership to these sites.  
Charge 2 – Possession of child abuse material obtained or accessed using a carriage service
13	In total, 1,542 files depicting child abuse material were located across two of your devices being the Seagate external hard drive and the Samsung Galaxy phone.  This charge is rolled up and comprises the total number of images, 1,512 of which were unique.  
14	Analysis showed that the Seagate external hard drive contained a total of 133 Category 1 images and videos and 42 Category 2 videos, making a total of 175 files.
15	The videos ranged between 11 seconds and two hours 40 minutes with the majority being under 10 minutes in length.  Again, I will not detail the contents of the files here due to their obscene nature. 
16	Analysis of the Samsung Galaxy phone revealed 756 Category 1 images and videos and 611 Category 2 images and videos, making a total of 1,367 files. 
17	The videos ranged from 19 seconds to 25 minutes in length with the majority being under 10 minutes and those contents will not be described here.  
18	When interviewed by police you stated that: 
(a)	You were the only user of the mobile phone;
(b)	The urge to download child abuse material would come and go;
(c)	You paid for a membership to a website called ‘Rehhot’ that would allow you to access further websites that contained child abuse material, which you would also have to pay to access; 
(d)	You would watch the material and relieve yourself;
(e)	You spent between $1000 and $5000 on the sites;
(f)	A few weeks ago, you started transferring child abuse material from your phone to a hard drive with the intention to get rid of the hard drive. 
Offence gravity
19	Access and possess child abuse materials are very serious offences indeed.  There are well established considerations by which to assess the gravity of the offending, as summarised in R v De Leeuw [2015] NSWCCA183 and adopted in DPP (Cth) v Garside (2016) 50 VR 800.  
20	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. 
21	Charge 1 is a ‘between dates’ offence while Charge 2 took place on a single day.  The nature and content of the material was graphic, depraved and involved children aged from as young as three to those aged about 14, in all manners of degrading and demeaning penetrative sexual acts.
22	The nature of the files must be given precedence over the number of files, however, I note you possessed some 1661 files over the two charges, a not insubstantial number.  The number of images represents a vast number of child victims who were harmed in the production of these items.
23	This is not a victimless crime.  Each and every image involves a child victim.  It is a crime which causes real and lasting harm to each of the children who are subjected to abuse for the vile gratification of those who possess and control the images.  The public interest in the protection of children is high.
24	While you paid for memberships which gave you access to the material, I accept that you are not alleged to have sold, distributed or profited from the offending and that overall, your offending must be seen as falling within the mid-range of gravity.
Personal circumstances and psychological assessments
25	I turn now to your personal circumstances.  
26	You are now 24 years of age, having been born in May 1988.  You have a twin brother who suffers from Fragile X syndrome.  
27	You attended Mooroolbark East Primary School and attended Yarra Hills Secondary College where you completed Year 12.  
28	Your parents separated when you were four or five years old.  You maintain the support of both your parents and stepparents.  
29	I received letters from Dr Anthony Chin dated 3 November 2010 and 22 November 2010, confirming your diagnosis of Autism Spectrum Disorder at the age of twelve, although I note your father indicated that this diagnosis was made when you were very young. 
30	You were bullied at school because you had glasses and hearing aids.  
31	You relocated from Melbourne to Shepparton aged about 19 and lived with your aunt for several years.  You then lived with a girlfriend for three months before moving in with your mother, stepfather and brother for the last two years.
32	You worked for two years in an out of school hours care program while you completed a Certificate III in Early Childhood Education.  You then worked in early childhood education for 12 months with Goodstart Early Learning, before moving to Wyndham Early Learning.  Your Working with Children Check was cancelled as a result of these charges.  Your choice of career is troubling in light of the current charges, although there is no suggestion that any of the children in your care were the subject of the online material.  
33	At the time of your remand, you were on a disability support pension because of your autism and working several hours a week as a cleaner.  You also have the support of an NDIS worker who has assisted you for some time. 
34	You are prescribed Sertraline daily for depression following suicidal ideation after the breakdown of your romantic relationship.  
35	You report contact with an online anonymous helpline called 'Stop it now! Australia' to help you address your thoughts and behaviours towards children, however, it is an organisation which does not provide confirmation of counselling, due to confidentiality reasons.  
36	I heard evidence from your father Mr John Tracey.  While he separated from your mother, he has always maintained contact with you save for a short period when you were 12.  He is disgusted and upset by your offending, but remains supportive of you.  He now has step grandchildren whose welfare he is concerned for, given the nature of these charges.  However, he gave evidence that he has spoken to you about your offending and that he will give you somewhere to live and assist you with your employment, transportation and attending appointments upon your release.  
37	I received a psychological report from Mr Jeffrey Cummins dated 1 March 2024.  You told him you planned to remain single and have a child via surrogacy, but were surprised when questioned about the likelihood of this in light of your current circumstances.  
38	You report an addiction to child pornography since the age of about 12, at one stage considering you addiction so bad that you destroyed the iPad on which you viewed it.  However, you returned to viewing such material.  
39	The psychological report indicates that you clearly knew that what you were doing was wrong, but you lack insight into your offending.  You told Mr Cummins that you are no longer addicted to child abuse material, however, you stated that you need treatment because you still experience urges to look at it.  You acknowledge the children depicted were victims of sexual abuse, but you do not seem to appreciate the extent of harm caused by your offending. 
40	You acknowledge sexual arousal when viewing child pornography and 
Mr Cummins diagnoses you with Paedophilic Disorder focused on prepubescent females.  You stated to him that you know you need treatment and you are agreeable to doing so, but you have not undertaken any treatment to date.
41	Mr Cummins found that “In my opinion there was most probably a realistic nexus between [you] suffering from an Autism Spectrum Disorder and [your] addiction to CAM, as a very common symptom of an Autism Spectrum Disorder and a symptom reported by [you] was that of becoming focused and stuck on particular activities.”   
42	I find this troubling.  Autism Spectrum Disorder may explain your fixation on a single topic, being the child pornography, but it in no way explains your initial attraction to it or your ongoing sexual arousal from looking at it.  
Sentencing principles
43	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. 
44	S.16A(2) of the Act sets out a list of factors, all which I have taken into account in passing sentence.
Plea of guilty and remorse
45	You entered a plea of guilty at the earliest opportunity, being the first committal mention in this matter in July 2023.  This was at the tail end of the Covid-19 pandemic and the Worboyes [202] VSCA 169 principles have some limited applicability.  
46	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 the utilitarian value of your plea.
47	By your plea of guilty, you have also demonstrated an acceptance of responsibility for your offending and a level of remorse.  You expressed appropriate shame, guilt, regret and remorse concerning your offending behaviour to Mr Cummins, however, this is tempered by your lack of insight into the offending.

Other sentencing factors
48	Internet crime such as yours, is increasingly prevalent offending and is often difficult to detect.  It creates a market for the exploitation of children for the sexual gratification of adults such as yourself. 
49	Given the serious nature and the type of charges which you face, general deterrence is the most important sentencing consideration.  Other members of the community must be deterred from committing similar offences and it must be understood that stern punishment will follow should they do so.  
50	You have no prior criminal history, however, your moral culpability is high and I consider an element of specific deterrence to be a relevant feature of the sentencing exercise.  You must understand that the courts and the community will not tolerate such offending.  
51	As your offending relates to child sexual exploitation, your prior good character must be given less weight than it otherwise would.  
52	You were 24 years of age at the time of the offending, so while not a young offender, you could still be described as youthful.    
53	Mr Cummins found you to be at least a moderate and possibly a moderate-high risk of further sexual offending.  Should you engage meaningfully with the sex offender treatment programs, I consider your prospects of rehabilitation may improve, but they are presently guarded.
54	You have ongoing family support which I consider to be a protective factor in your case, together with your willingness to engage in treatment.  
55	I note that you provided your mobile phone PIN to investigating officers, allowing them to access the device.  You further made full admissions to your offending when interviewed by police and seemingly gave honest answers when discussing the matters with Mr Cummins.  
56	You counsel sensibly conceded that R v Verdins (2007) 16 VR 269 limbs 1-4 do not apply, despite Mr Cummins finding a nexus between your autism and the offending.  You clearly knew what you were doing and you knew that it was wrong. 
57	Mr Cummins finds that imprisonment would be more onerous in your case than for someone who does not suffer Autism Spectrum Disorder and that your reactive depression and anxiety are likely to worsen in custody.  I therefore give weight to Verdins limbs 5 and 6.  The prosecution conceded that these limbs are enlivened.  
Sentencing submissions
58	Mr Challen for the prosecution and your counsel Mr Weinman, both submitted that a period of imprisonment, followed by release on a Recognisance Release Order is called for in your case.  
59	Both counsel provided comparable cases, although I note that those provided by defence were all decisions of this court. 
60	I was referred to Taylor v The Queen (2015) 26 TasR 132 by the prosecution and DPP (Cth) v Volovik [2022] VCC 2184, DPP (Cth) v Carroll [2018] VCC 1374, DPP (Cth) v McCarthy [2022] VCC 1840 and DPP (Cth) v Kitaoji [2022] VCC 1689 by the defence, all being cases involving a period of imprisonment followed by release on a Recognisance Release Order.  I have taken into account current sentencing practices.  
Principle of parsimony
61	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.
62	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
63	On Charge 1, using a carriage service to access child abuse material, you are sentenced to 12 months imprisonment.  
64	On Charge 2, possess or control child abuse material obtained or accessed using a carriage service, you are sentenced to 12 months imprisonment.  
65	The sentence on Charge 1 is to commence today.
66	The sentence on Charge 2 is to commence six months after the commencement of Charge 1.
67	That makes a total effective sentence of 18 months imprisonment.  
68	Pursuant to s.20(1)(b) of the Crimes Act 1914, I direct that you be released after serving 10 months imprisonment, upon entering into a recognisance release order in the sum of $1000 to be of good behaviour for a period of three years.
69	When you are released, you will be subject to the supervision of a probation officer. 
70	You will be required to obey all reasonable directions of the probation officer.
71	You will not be able to travel interstate or overseas without the written permission of the probation officer.
72	You are to undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
73	You are to report to the Shepparton Community Corrections Office within two days of your release from custody.
74	You are to report to and receive visits from a Community Corrections officer.
75	You are to notify the Community Corrections Centre of any change of address or employment.
76	You are to attend for assessment and if suitable, for treatment for sex offender programs or programs to reduce reoffending as directed.  
77	I am required to explain the consequences of this order to you. 
78	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 18 months imprisonment.  That promise runs for three years. 
79	Pursuant to s.16E(2) of the Crimes Act 1914 (Cth), I declare that you have served 15 days by way of pre-sentence detention, excluding today and I direct that the fact of this declaration and its details be noted in the records of the court.
80	Having pleaded guilty to two Class 2 offences pursuant to the Sex Offenders Registration Act 2004 (Vic), you are required to comply with the Sex Offender reporting obligations for a period of 15 years.
81	Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty, the sentence I would have imposed would have been three years imprisonment with a Recognisance Release Order after two years two months.  
82	Would you please sign the Recognisance Release order and the Sex Offenders Registration acknowledgment?  Mr Weinman you can assist.  
83	MR WEINMAN:  Yes, Your Honour.
84	HER HONOUR:  Before I sign that, is there anything arising from either party?
85	MR WEINMAN:  No.
86	MR CHALLEN:  No, Your Honour, complies with the Act.
87	HER HONOUR:  Thank you .
88	MR WEINMAN:  No issues from this side, Your Honour.
89	HER HONOUR:  Thank you.  Is there anything further from either party?
90	MR WEINMAN:  Your Honour, there's one further custody management issue.
91	HER HONOUR:  Yes.
92	MR WEINMAN:  Mr Tracey at the time was taking Melatonin to assist with sleeping.  It's understood that that medication hasn't also been provided by Corrections.  So perhaps if that could be noted on the - - -
93	HER HONOUR:  We'll note that Mr Tracey was taking Melatonin, yet to be provided by custody.
94	MR WEINMAN:  As Your Honour pleases.
95	HER HONOUR:  Mr Tracey can be taken out, thank you.  Thank you we'll standdown until 11.30.
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