IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-20-00273

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MARK ANTHONY THOMAS MOORE		

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JUDGE:	HIS HONOUR JUDGE RYAN 	
WHERE HELD:	Melbourne	
DATE OF HEARING:		
DATE OF SENTENCE:	24 August 2020	
CASE MAY BE CITED AS:	DPP v Moore	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1298		

REASONS FOR SENTENCE
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Subject:		CRIMNAL LAW
Catchwords: 	distribute child abuse material - possess child abuse material – early guilty plea – remorseful – depressive disorder – epilepsy – general deterrence 
Legislation Cited:	Sex Offenders Registration Act - Sentencing Act 1991
Cases Cited:		DPP v Garside [2016] VSCA 74
Sentence:	15 months’ imprisonment with a non-parole period of nine months’ imprisonment - s6AAA: but for your plea of guilty I would have sentenced you to three years’ imprisonment with a 
non-parole period of two years

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms A. Moran	The Office of Public Prosecutions	
			
For the Accused	Ms E. Millar	Victoria Legal Aid 	

HIS HONOUR:

1	Mark Moore, on 13 August 2020, you pleaded guilty to an indictment containing two charges, being distribute child abuse material (Charge 1) and possess child abuse material (Charge 2).  Each offence is pleaded to have occurred on one day, being 4 May 2019 in respect of Charge 1, and 1 October 2019 in respect of Charge 2.  The maximum penalty for each of these offences is 10 years’ imprisonment.
2	You are 37 years of age and without prior conviction.
3	Tendered as Exhibit A and read aloud in court was the Summary of Prosecution Opening Upon Plea.
4	As a result of information being provided to police from the National Centre for missing and exploited children, a warrant was executed at your home in Kerang on 1 October 2019.  A search of your home was conducted, which resulted in a Samsung S10 mobile phone and a Samsung J2 mobile phone being seized.  Upon digital forensic analysis, multiple images and videos within the Samsung J2 and Samsung S10 mobile phones were identified as being child abuse material.  In addition, a Samsung Galaxy S5 mobile phone, a Pendo tablet, a Unisurf tablet, and a PlayStation 4 were removed from your home address for further analysis.
5	All the seized devices were forensically analysed and child abuse material was located within the Samsung S10 mobile phone, the Samsung Galaxy S5 mobile phone, the Samsung J2 mobile phone and the Pendo tablet.
6	Set out within Exhibit A are the categories by which child abuse material is classified.  There are six categories, and your offending is explained in Exhibit A at paragraphs 15-20 (both inclusive) in respect to those categories.
7	In respect to the child abuse material possessed by you, you had 11,675 images, together with 30 video recordings, of category 1 child abuse material that generally depicted young boys aged approximately 3-13 years old exposing their genitals or in their underwear.
8	In respect to category 2 material, you possessed 775 images, together with 130 videos, that contained images of pubescent males performing oral sex on each other, amongst other images.
9	In respect to category 3 material, you possessed 46 images, together with 30 videos and, in particular, one video of a boy aged approximately five years masturbating an adult penis.
10	In respect to category 4 material, there were 463 images and 180 videos containing images and videos of boys as young as seven being anally penetrated by adult males.  Some of the videos depicted the young boys attempting to stop the penetration from occurring and appearing in apparent pain at the time of penetration.
11	In respect to category 5 material, you possessed 18 images and 3 videos that included images and videos of blindfolded young boys being anally penetrated by adult males.  One video filed depicted a young boy of approximately seven years of age being anally penetrated whilst blindfolded and with his hands tied behind his back.
12	In respect to category 6 material, you possessed 34 images, which were animated or virtual images, depicting apparent teenage boys from a Pokémon cartoon performing oral sex on each other.
13	In total, you possessed 13,011 images, together with 373 videos, making a total of 13,384 images or videos of child abuse material.
14	The forensic analysis indicated that the files which were predominately located throughout your “gallery”, showed that they were downloaded from the internet and stored within the download section of “gallery” (Charge 2, possession of child abuse material).
15	A further analysis of your Samsung J2 mobile phone showed that you had accessed the chatroom “Telegram” on 4 May 2019 and engaged in a conversation with another entity about “exchanging kids vids”.  You sent a 3 minute and 10 second video of two prepubescent males engaging in sexual intercourse to the other entity (Charge 1, distributing child abuse material).
16	On the day of the execution of the search warrant, being 1 October 2019, you were arrested and interviewed under caution.  In summary, you told police that you would not know what was on your devices because you had not used them for a while.  Further, that you could not remember why you put images and videos on your devices.  You told investigators that you had accessed images and videos online from a website called “Twinks”, and that your methodology was to download the images by visiting the site and then saving the picture in your “gallery”.
17	You told police that you would have only sent one video of child pornography via “Telegram” to another user.  You said you sent it to one user only, and that you could not recall what the video depicted, as you had not looked at child pornography for a long time.
18	You entered your pleas of guilty prior to committal mention and, accordingly, your pleas must be regarded as being entered at the earliest opportunity.  You are entitled to the benefits that flow to you from your pleas, being that they are of utilitarian benefit and are some evidence of your remorse.
19	Upon conviction and sentence, you will be subject to the provisions of the Sex Offenders Registration Act 2004 for a period of 15 years.
20	At the time of your plea, you had spent no time in custody.  However, at the end of the plea, you were remanded in custody for sentence.
21	Mr Moore, you were born in Kerang and you have lived there all your life.  You are an only child and you were raised by your mother.  You do not know the identity of your father.  You reported a happy childhood, living with your mother and two maternal uncles, Kelvin and Thomas.  Your mother never 
re-partnered and neither of your uncles married.  Your mother died some three to four years ago aged in her early sixties and, shortly after her death, your Uncle Thomas died.  You presently live with your Uncle Kelvin in a Housing Commission rental property.
22	I was informed that your Uncle Kelvin is illiterate that he is aged 73 years and is retired.  You help your uncle at home by opening his mail and reading it to him.  I was informed that you do most of the cooking and cleaning within the home.
23	You repeated Grade 4 at primary school and, for secondary school attended Kerang Technical School.  You failed Year 11 and, although asked to repeat that year, you declined to do so.  I was informed that since Year 7 at school you struggled.
24	You have a very limited employment history.  While still at school you worked on a part-time basis milking Cows.  Apart from that, I was informed that you worked in 2014 at the Commercial Hotel in Kerang as a kitchen hand.
25	You are in receipt of the Disability Support Pension because you suffer from epilepsy.  You have been in receipt of this pension for some six years.  Since May 2016, you have worked for a non-profit organisation called Vivid.  A report from Vivid is Exhibit 2 on the plea.  The work that you are engaged in included gardening maintenance, car washing and general cleaning and maintenance.
26	At the time that you commenced with Vivid, you were eligible to work for them because you were in receipt of a Disability Support Pension and there was no assessment as to whether you had a disability.  In effect, Vivid provided supported employment for you as a result of your eligibility for a Disability Support Pension.
27	You are registered with the National Disability Insurance Scheme, and any supports that you require are funded through that scheme.
28	In the last 12 months or so, you have not worked consistently with Vivid because of your poor health resulting from your epilepsy, which results in grand mal fits and consequent falls that has led to you being admitted to hospital on a number of occasions.
29	You were described in Exhibit 2 as “a reliable conscientious worker and team member who has benefited from the supported employment environment”.
30	I was informed by Ms Millar, who appeared on your behalf, that you worked two to three days per week whilst working with Vivid and have not been able to work with Vivid since the commencement of the COVID-19 pandemic.
31	I was informed by your counsel that you identify as a homosexual and that you have had what could only be described as a casual relationship with one male on a few occasions.  You do not currently have a partner and express no desire to have one.
32	Tendered as Exhibit 4 was the report of Ms Kerrin Danswan, psychologist, dated 14 May 2020.  Ms Danswan’s report, although it contains her own independent psychometric testing, proceeded on the basis that you had been diagnosed with an intellectual disability.  Such is not the case.  It would appear that you are a poor historian, for you informed Ms Danswan that you were diagnosed with epilepsy approximately four years ago after having a seizure and being hospitalised for a week, that you were prescribed anticonvulsant medication, and had not had any further seizures since that time.  This is plainly contrary to the contents of the report from Vivid.
33	At the age of 18 you were diagnosed with a depressive disorder and you are currently prescribed Cymbalta.  You instructed Ms Danswan that your depression was triggered by coming to terms with your sexual orientation.
34	You instructed Ms Danswan that you knew that your conduct was illegal and that you had to hide the images from others.  Further, you told Ms Danswan that you did not consider that the children in the images were victims of sexual abuse, stating that you found the images and videos sexually arousing.
35	Ms Danswan conducted a sexual violence risk assessment of you and ultimately assessed you as a low to moderate risk of sexual re-offending.  Accordingly, I assess your prospects for rehabilitation in similar terms.
36	The issue of you being a poor historian is raised particularly by Exhibit 6, records of Bendigo Health, that relate to surgery that you had being a partial amputation of the left ring finger.  Under the heading “Comorbidities”, you are recorded as being a daily cannabis user.  Importantly, the results of MRI examination and CT examination of your brain reveal no abnormalities.  After surgery, you spent five weeks in rehabilitation.  The records from Bendigo Health concerning your rehabilitation under the heading “Comorbidities” recorded you as being a smoker, including cannabis, as well as “alcohol abuse”.  It is also noted within the rehabilitation records that you are noted as an unreliable historian.  You informed Ms Danswan that you only drank occasionally and ceased to drink on doctor’s advice when you were diagnosed with epilepsy.  Further you said that you smoked cannabis every 2 months or so.
37	Tendered as Exhibit 5 was the report of neuropsychologist, Dr Laura Anderson, dated 11 August 2020.  Dr Anderson’s testing of you was limited by her assessment taking place via a video link.  Ultimately, Dr Anderson assessed your intelligence as falling within the “borderline” to “average” range for your age.  Dr Anderson opined:
“He demonstrated a fairly consistent overall cognitive profile, with a slight relative strength demonstrated in the verbal domain compared to the visual domain.  There was no evidence of significant learning or memory deficits or severe executive dysfunction.”
38	Dr Anderson assessed your function within the upper reaches of the “low average” range and commented that your relatively robust performance on cognitive testing was surprising.
39	Dr Anderson opined, “It is unlikely that Mr Moore’s cognitive profile played a significant contribution to his alleged offending behaviour”.
40	In respect to your response to a sentence of imprisonment, Dr Anderson opined, “Mr Moore’s cognitive profile does not increase his vulnerability within a custodial environment, per se”.  However, she continued in her report to opine that your significant psychological vulnerability raises concerns as to your emotional capacity to manage the complexity of a custodial sentence.
41	Dr Anderson noted her concerns that your mental health may significantly deteriorate in a custodial environment, as you do not strike her as an individual with well-developed emotional coping skills or the capacity to independently seek out positive external support mechanisms.
42	The matters to which I have just referred appear at paragraph 7.4 of Dr Anderson’s report, and I am of a view that she does not express an opinion that your mental health will, or is likely to, significantly deteriorate in a custodial environment.
43	Of note is that you informed Dr Anderson that when you were approximately nine years of age you were sexually abused by an adult family friend.  The offending against you was not penetrative but occurred on multiple occasions.  It is unclear how this abuse impacts on Dr Anderson’s ultimate opinions in respect to you.
44	As part of the picture of your general health, tendered as Exhibit 3 was a medical certificate from the Kerang Medical Clinic dated 22 July 2020.  In that certificate, Dr Ian Murphy records that you have been receiving medical treatment at the clinic since 1983 for epilepsy and anxiety/depression and reflux.  Your conditions are described as stable and you are compliant with your medical appointments and treatment.  Dr Murphy certifies that you are presently taking Lamictal, Nexium and Pristiq medication in respect to your epilepsy, anxiety/depression and reflux.  
45	Ms Millar on your behalf conceded that this kind of offending is very serious, as is reflected in the maximum penalties.  She acknowledged that your conduct, being the demand for child abuse material, is what creates the market and, in turn, the exploitation of children.  She conceded that because of the presence of this kind of offending, general deterrence must be the primary sentencing consideration.
46	Ms Millar noted matters of aggravation that from time-to-time are present in this kind of offending that are absent in your offending.  It was put on your behalf by Ms Millar that your “low emotional intelligence” meant that you genuinely did not understand how serious your offending was.  This submission does not sit well with your understanding that your conduct was wrong, and that you knew that you had to hide the images which you had downloaded from the internet.
47	Ms Millar submitted that you presently have a better understanding of the harm that is caused to children as a result of the making of the images that you downloaded and viewed.  Further, she informed me that you instructed her that you felt bad and sorry and sad about your offending conduct.  In addition, you instructed Ms Millar that you have trouble sleeping because you are worried about your offending.  Based on this material, Ms Millar submitted that you were genuinely remorseful.  I accept that you are remorseful.
48	Further, Ms Millar relied upon the very restrictive regime to which prisoners are presently subjected owing to the COVID-19 pandemic, and that this must be taken into account in arriving at an appropriate sentence in your case.  I accept this submission.
49	Ultimately, Ms Millar submitted that an appropriate sentencing disposition in all the circumstances was a Community Correction Order.  I do not accept that such a disposition would adequately meet the purposes of sentencing in respect of you.
50	Ms Moran, Crown prosecutor, referred me to DPP v Garside [2016] VSCA 74 at [6], where Redlich and Beach JJA set out in detail principles relevant to sentencing persons for child pornography offences.  Further, she noted that the report of Ms Danswan seemed to be affected by the assumption that you suffer from an intellectual disability, which is not the case.  Having read Ms Danswan’s report repeatedly, Ms Moran’s criticism is open.
51	Despite that, you are a man of limited intellect.  You have lived a very isolated, indeed secluded, life in the company of your mother and your uncles.  You reside with your sole living relative, who is illiterate and somewhat dependent upon you.  Having said that, Ms Millar did not submit that there would be hardship suffered by your uncle as a result of you being imprisoned.
52	You possessed a large number of images and/or videos that fell within each of the six categories that rank child abuse material.  However, it must be noted that there were a limited number of items or images in the more serious categories.  You did, on one occasion, distribute a video, but you did not possess the material for the purposes of sale or further distribution.  Neither did you possess this material for profit.  Whilst it is plain that you had possessed this material for some time, the indictment is structured in such a way as to limit the charge to individual days, and I must take this into account when arriving at an appropriate sentence in your case.
53	General deterrence is the primary sentencing consideration for offending involving child pornography, and I am to give less weight than I normally would to your prior good character.  I must note that the offending involving child pornography occurs on an international level and is becoming increasingly prevalent owing to the internet as a means of providing access to people of this abuse material.  Offending of this kind is difficult to detect and, as acknowledged by Ms Millar, the possession of child pornography or child abuse material creates a market for the continued corruption and exploitation of children.  It must always be kept in mind that each of the children depicted in each of the images are victims in their own right.
54	Doing the best I can, taking into account your offending and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
•	on Charge 1, 6 months’ imprisonment;
•	on Charge 2, 12 months’ imprisonment.
55	I order that three months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.  This results in an effective sentence of 15 months’ imprisonment.  I fix a non-parole period of nine months’ imprisonment as the period you must serve before you will become eligible for parole.
56	I declare that you have spent 10 days by way of pre-sentence detention, not including today.
57	Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to three years’ imprisonment with a 
non-parole period of two years.
58	I direct that you be subject to the provisions of the Sex Offenders Registration Act for a period of 15 years.
59	Now, Mr Moore, there should be present with you documentation relating to the Sex Offenders Registration Act.  Is that present with you there where you are?
60	I will start again.  Mr Moore?
61	OFFENDER:  Yes.
62	HIS HONOUR:  Is there a prison officer present in the room with you?
63	OFFENDER:  No.
64	HIS HONOUR:  Would you knock on the door to ensure that one comes into the room please?
65	OFFENDER:  I just need an officer in here.
66	VOICE (from body of the court):  Pardon?
67	OFFENDER:  I need um - the judge said that I need an officer in here.
68	VOICE:  Hey?
69	OFFENDER:  The judge said I need an officer inside in the room here.
70	VOICE:  I can't hear.
71	OFFENDER:  I said the um judge said that um an officer has to be present in the room.
72	VOICE:  Oh okay.  Hang on, I need to check.
73	OFFENDER:  Yep.
74	HIS HONOUR:  Whilst awaiting in respect of that, I have made the disposal order as asked for by the Crown and I will hand that down to have it forwarded to you.
75	MS MORAN:  Thank you, Your Honour.
76	VOICE:  Because of the COVID, we are not - I'm not allowed in.
77	OFFENDER:  Oh.
78	VOICE:  So can you tell him?
79	OFFENDER:  Yep, I will.
80	VOICE:  'Cause of COVID, we are not allowed in.  Is he there or - - -
81	OFFENDER:  No, he's not at the moment.  The screen is blank there.
82	HIS HONOUR:  Mr Moran?  I beg your pardon.  Mr Moore, can you hear me?
83	OFFENDER:  Yeah.
84	HIS HONOUR:  There should - - -
85	OFFENDER:  And ah - - -
86	HIS HONOUR:  Just listen please.  There should have been forwarded to you some documentation that relates to the Sex Offenders Registration Act.  Do you have that with you?
87	OFFENDER:  Yes, I have it.  Yes.
88	HIS HONOUR:  All right.  Have you signed it?
89	OFFENDER:  No, because um I was told that um it should be done in front of you, sir or Judge.
90	HIS HONOUR:  That is all right.  Would you repeat what you just said please?
91	OFFENDER:  It says on the form that I have to sign that um paperwork in front of you, sir.
92	HIS HONOUR:  All right.  Would you be so kind as to sign it for me please?  Thank you very much, Mr Moore.
93	Now, what that documentation is about is to simply inform you of your obligations under the Act.  Now, what will take place is that a copy of that document will be electronically sent to the court by the prison officials and you can retain that document for your own personal records.  It is important that you retain a copy of it.
94	Now, I will just leave you there at the moment.
95	Is there anything arising out of the sentence, Ms Millar?
96	MS MILLAR:  No, Your Honour.
97	HIS HONOUR:  Ms Moran?
98	MS MORAN:  No, Your Honour.  Not at all.
99	HIS HONOUR:  Thank you.  Then, Mr Moore, what is going to happen is that I will stand down for a moment whilst Ms Millar speaks to you.  I will disconnect Ms Moran.  My staff will remain in court to facilitate the conversation and then when that conversation is over, I will return to the Bench to deal with another matter that is waiting in my list.
100	Could you explain, Mr Moore, to the prison officers that a copy of that document that you signed must be forwarded to my associate please?
101	OFFENDER:  Okay.
102	HIS HONOUR:  Thank you.  I will stand down.
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