IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-20-00962 

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)		
		
v		
		
WAYNE HARPER		

---

JUDGE:	RIDDELL 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27 October 2020	
DATE OF SENTENCE:	13 November 2020	
CASE MAY BE CITED AS:	CDPP V HARPER	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1786		

REASONS FOR SENTENCE
---

Subject:		CRIMINAL LAW -- SENTENCE		
Catchwords: 	Child Pornography -- Possession -- Transmission -- State and Commonwealth Charges -- General Deterrence -- Mid-Range Offending -- High Moral Culpability -- Former Corrections Officer -- No Criminal History -- Good Character -- Early Plea of Guilty – Time in Custody
Legislation Cited:	Crimes Act 1958 (Vic) -- Criminal Code (Cth) -- Crimes Act 1914 (Cth) 
-- Crimes Amendment (Sexual Offences) Act 2016 (Vic) -- Sex Offenders Registration Act 2004 (Vic)
Cases Cited:	DPP v Smith [2010] VSCA 215 -- DPP (Cth) and DPP (State) v Garside (2016) 50 VR 800 -- DPP v Tewksbury [2018] VSCA 38 -- Dennis v The Queen [2017] VSCA 251 -- Maine v The Queen [2018] VSCA 56 -- McNiece v The Queen [2019] VSCA 78
Sentence:	3 years and 5 months imprisonment -- Non parole period 2 years 3 months imprisonment -- Commonwealth offences 2 years imprisonment -- Recognizance Release Order after serving 14 months imprisonment

---

APPEARANCES:
	Counsel	Solicitors	
For the CDPP	Ms N Simpson	Director of Public Prosecutions (Cth)	
			
For the Accused	Ms S Flynn QC	Adrian Paul Criminal Lawyers	

HER HONOUR:

Summary
1	Wayne Allan Harper, you have pleaded guilty to 5 separate offences relating to your possession, creation and transmission of child pornography.  
2	The offending is summarised in the Prosecution Opening.  In short compass the summary is as follows.
Background
3	In August 2019 the purchasers of your house discovered a shoe in the top of a wardrobe.  Inside the shoe were 2 USBs.  When the first USB was inserted into a computer it was observed to contain a number of folders.  The second folder contained pictures and videos of naked children.  The USB also contained a number of files relevant to Karreenga prison.
4	The USBs were immediately provided to police.  Police learnt that you not only worked at Karreenga prison but were the General Manager of Marngoneet and Karreenga Correctional Centres.  That discovery jettisoned a range of enquiries leading to the execution of a warrant at your work place and at your home address.
Search, Seizure and Arrest
5	On 20 September 2019 police contacted the Assistant Commissioner of Custodial Services, Corrections Victoria, Mr Andrew Reaper, your direct supervisor, to advise him of the investigation.  On that date, a search warrant was executed at Ravenhall Prison, Corrections Victoria Intelligence Unit. A Blue Kingston USB containing an extract of your employment hard drive was seized.
6	On 25 September 2019 police executed a search warrant at your residence. During the search warrant, police seized an Apple iPhone from the master bedroom, an Apple MacBook computer, an Apple iPad from the front sitting room and a Western Digital External hard drive in a music room.
7	In the presence of police you had a conversation with you wife, adult son and parents-in-law during which you made admissions to them in relation to possessing child abuse material.
8	After the search was executed, you contacted Mr Reaper and confirmed that there was substance to the allegations and that child abuse material would be located on your work issued mobile phone.
9	You were arrested and interviewed at Bellarine Police Station. During that interview you admitted ownership of the USB found at your former home. You made admissions regarding the transmission and possession of child pornography with what you described as a ‘daddy-daughter incest’ focus. You were subsequently bailed.
10	On the same date, Mr Reaper attended Marngoneet and Karreenga and accessed your offices, where devices were seized and provided to police.
11	Following your arrest and bail you were issued with a letter of suspension and made aware of employee assistance supports available to you. 
Examination of seized devices
12	Forensic examination of the seized devices identified child exploitation material in the form of images, videos and online chats.  
13	Child abuse material is categorised according to the Australian National Victim Image Library, or ANVIL, scale which is attached to these reasons.  In short, that is an escalating scale starting at Category 1 where there is no sexual activity however obvious, sexually suggestive images including for example explicit emphasis on genital areas, progressing to Category 4 which includes penetrative acts of children including by adults.  Category 5 relates to sadism, bestiality or humiliation including torture and abuse.  Category 6 relates to animated images.  Category 7 relates to non-illegal material which is however related to child abuse material, such as images of children in underwear, bathers or a collection of other material suggestive of an inappropriate interest in children.
14	Turning to the specific charges to which you have pleaded guilty.
Charge 1: Knowingly possess child pornography material
15	Charge 1 is an offence of Knowingly Possess Child Pornography material between 9 July 2015 and 26 January 2016, contrary to the Victorian Crimes Act 1958. The maximum penalty for this offence is imprisonment for 5 years.
16	That charge relates to 317 images and 16 videos identified on the White Lexar USB located in the shoe. Specifically the following was identified:
a.	A Screenshot of a webpage, including a profile with your email address, with nickname “Miztatickles” and the role identified as “Daddy”.
b.	Various files relating to Karreenga  Operational Services created by you in  September 2015.
c.	Images classified as child pornography material. The creation date of the files spanned from 9 July 2015 to 29 January 2016.
17	The descriptions of the images and videos are as follows:
Category 1 – Female children in sexually suggestive poses or wearing lingerie;
Category 2 – Female children kissing each other or masturbating;
Category 3 – Adult male with female child approximately 4 years of age kissing. Female child is holding male penis;
Category 4 – Oral and penile/vaginal penetration;
Category 6 – Animated child/adult penile/vaginal penetration and child masturbation; and 
Category 7 – Female children wearing swimwear or little clothes.
Charges 2, 3 and 4 – Online conversations and transmission and receipt of images and videos
18	Charges 2, 3 and 4 relate to your involvement in online ‘chats’ with 4 other offenders.  Those on line conversations involved you describing children depicted in photographs or videos and creating sexually explicit dialogue and stories around those images.  
19	The text based aspect of the conversations is reflected by Charge 2 Produce Child Abuse Material contrary to the Victorian Crimes Act 1958. The maximum penalty for that offence is imprisonment for 10 years.
20	The sending by you of a total of 52 images in categories 1, 3, 6 and 7 and 14 videos during those online conversations is reflected by Charge 3 Use Carriage Service to Transmit Child Pornography contrary to the Commonwealth Criminal Code.  The maximum penalty for that offence is imprisonment for 15 years and/or 900 penalty units.
21	The receipt by you of a total of 92 images in categories 1, 2, 4 and 7, and 23 videos during the online conversations is reflected in Charge 4 Use Carriage Service to Cause Child Pornography to be Transmitted to self, contrary to the Commonwealth Criminal Code. The maximum penalty for that offence is imprisonment for 15 years and/or 900 penalty units.
22	Each of charges 2, 3 and 4 span a period between 28 May 2019 and 20 September 2019 which reflects the dates between which you engaged in the online conversations.  The conversations occur sometimes many times per day, sometimes day after day, and sometimes with short breaks in between.  Those charges reflect multiple, repetitive, regular conversations with those other persons.  
23	The four persons with whom you engaged in these chats, descriptions of the material transmitted and caused to be transmitted, and samples of these chats, are detailed in the prosecution opening.  In summary they are as follows.
“G” or “Gary” (“G”)
24	Between 28 May 2019 and 21 August 2019 you engaged in conversation with a person known as “G” or “gary”.
25	You transmitted five images and two videos to him. The images are classified as category 1 on the ANVIL scale and depict female children aged approximately 8 to 16 years of age in sexually suggestive poses. The videos depict two females between approximately 10 and 16 years of age kissing and touching one another.
26	“G” sent 9 videos to you. They depicted adult/child penetration with female children aged between 4 and 10 years of age. In one of the videos, a little girl aged approximately 6 to 10 years of age is depicted. She appears distressed and has semen in her mouth. 
27	You make comments such as “Who could stop themselves…Those little girls want sex just like we do…. I can’t get enough of these.” 
“E” or “El_diablo013” (“E”)
28	Between 15 July 2019 and 20 September 2019 you engaged in chats with a person known as “E” or “El_diablo013”.
29	You transmitted to “E” 19 category 1 images, two category 3 and category 6 images, and nine images classified as category 7. The category 1 images depict females of approximately 8 to 16 years of age in sexually suggestive poses or wearing lingerie. The category 6 images depict animated images of an adult male and female child kissing and a female child with a penis.
30	You transmitted nine videos to “E” which depict female children aged approximately 10 to 16 years of age kissing and touching each other, and a female aged approximately 10 to 16 years of age using a vibrator.
31	 “E” transmitted four images to you. Of these, two depicted child abuse material categorized as category 1, and two were categorized as category 7. The category 1 images depict female children aged approximately 10 to 16 years of age in sexually suggestive poses. “E” also transmits two images of a male’s erect penis. “E” stated that he needs three babies for sexual activity. You replied “to be immersed in their young bodies”.
“Klausbernd6” (“K”)
32	Between 3 September 2019 and 20 September 2019 you engaged in a conversation with a person known as “klausbernd6”.
33	You transmitted six category 1 images to “K” and 5 category 7 images. The category 1 images depict female children under 16 years of age in sexually suggestive poses. The category 7 images depict a group of girls in swimwear. You transmitted one video to “K” which was classified as child abuse material.
34	“K” transmitted 25 category 1 images to you and 42 category 7 images. The category 1 images depict female children aged under 16 years in sexually suggestive poses or naked. The category 7 images depict photos of female children’s underwear. “K” also transmitted eight videos classified as child abuse material to you.
“Vetter Erik” (“EV”)
35	Between 6 September and 13 September 2019 you had a conversation with a person known as “Vetter Erik”.
36	During the conversation, you transmitted two category 1 images to “EV” and two category 7 images. The category 1 images depict children in sexually suggestive poses. You transmitted two videos to “EV”, one of which depicts a female child aged approximately 10 to 16 years of age naked in the shower.
37	“EV” transmitted 15 category 1 images to you, one category 2 and one category 4 image and  four images classified as category 7. The images include child masturbation, child/adult penetration and children in sexually suggestive poses. “EV” also sent  six videos to you, one of which contained child/adult penetration.
38	During a conversation with EV you warn him about asking for images on Instagram, saying “It’s not safe to ask on there.”
Charge Five: Possess child abuse material
39	Charge 5, Possess Child Abuse Material relates to the contents of the 4 devices seized from your premises, namely the Apple iPhone, computer, iPad and Western digital hard drive. The date of that offence is a single date reflecting the date of seizure. That is an offence contrary to the Victorian Crimes Act 1958 and has a  maximum penalty of 10 years imprisonment.
40	There were over 5,800 images and videos located.  The material found is described as follows:
41	Category 1 – Female children naked or wearing lingerie in sexually suggestive poses, female children with their vagina pulled open, female children naked;
42	Category 2 – Children masturbating, using vibrators or in sexual poses with soft toys, female children aged between 10 and 16 years of age masturbating in the shower, female children and female/male children kissing, oral and touching, female children using vibrators;
43	Category 3 – Adult female vagina against the vagina of a female child who is approximately 4 years of age, male adult penis on outside of young child’s vagina, male adult penis against child’s breast area, female child between 4 and 8 years of age pulling down pants of adult male with erect penis, female children holding adult male penis;
44	Category 4 – Penile/vaginal and oral penetration of female children between the age of 4 and 16 years of age, female child performing oral penetration on adult male;
45	Category 6 – Animated images. Children having sex with one another, adult male/female child penile/vaginal penetration, female child/adult male oral penetration, female child with two adult males one penile and the other oral penetration at the same time, male penetrating child from behind whilst holding an approximately 2 year old female child who is sucking the child’s breasts, and many images of a female child being penetrated by two males while she is shown masturbating a third male; and 
46	Category 7 – Female children wearing swimwear or little clothes.
Sentencing Principles
47	This is serious and disturbing offending warranting condign punishment. It is abhorrent to decent minded members of the community. The trade and exchange of child abuse material supports an industry founded on the exploitation of children by a depraved minority of adults.  It exploits the vulnerability and innocence of children.  It exploits the power imbalance which naturally exists between adults and young people.  It does so for the sexual gratification of those adults, with little care or concern for its victims. 
48	Victims of offending such as this are victims in that moment when their images are captured, but are victims long after as their faces and bodies are exchanged across the internet where the images and videos are likely to remain accessible indefinitely.  The developing awareness of those young people as they mature, that degrading sexual images are in circulation must be enormously distressing.  The potential for them to feel shame is real, despite the fact it is not theirs but shame which should belong to any adult involved. There is a presumption of harm to those children, both immediate and long lasting.
49	You are part of that trade.  You were not behind the lens but you have exploited those children by participating in the use and circulation of those materials.  You have done so as part of your own fantasy and desire for sexual gratification.  
50	General deterrence must be the paramount consideration in sentencing you. That is, the sentence I impose must deter others from becoming involved in the possession, viewing and transmission of child abuse material.  It must also denounce your offending on behalf of the community and seek in some way to protect other children from becoming victims.
Objective Gravity
51	In making an assessment of the objective gravity of your offending I take into account the comments made by the Court of Appeal in the matter of DPP v Smith, and DPP (Cth) and DPP (State) v Garside and to the cases which have followed those decisions and have reflected the expanding nature and scourge of child pornography offences.   In particular in your case I take into account the following matters.
52	Your offending spans a period of just over 4 years.  
53	In relation to charge 1 it involved the downloading and saving to a specific file some 330 images of child pornography.  It involved placing that file onto a USB.  Of those images the vast majority were unique images, that is not duplicates, thereby representing a high number of different children.  
54	I take into account however that a significant proportion of those images and videos, namely 243 of them are in the least serious category according to the ANVIL scale.
55	In relation to charges 2, 3 and 4, those conversations occurred repeatedly and regularly over a period of approximately 6 months.  They occurred with other persons.  Conversations occur at times over a course of days and for periods spanning several months.  The creation of text dialogue around those pictures and videos of young children was at times particularly degrading, graphic and concerning.  The dialogue around father/daughter or incest themes has the potential to inspire or support such behaviour and as such is inherently dangerous.
56	Those engagements with other persons involved the more serious offences of transmitting, and causing or inviting the transmission of child pornography.  Those are more serious offences as they directly reflect the trade in such materials and the creation of demand for it.  
57	You admitted to police that you downloaded applications where chats were not recorded. Further, that you were mindful not to have online conversations with people in Australia.  
58	In total you transmitted to others 66 images or videos.  You caused the transmission to you of 115 images and videos.  
59	I take into account the significant overlap between those charges, with all 3 offences occurring within single conversations.  
60	I take into account the offence of production of child abuse material relates to the text conversations and not to you in any way being involved in creation of images or videos. 
61	I also take into account that the material transmitted by you tended to be of lesser volume than you received, and was generally of a less serious nature than what was sent to you.
62	In relation to charge 5 the offending reflects possession of material stored on 4 different devices – a Department of Justice issued phone, your computer, iPad and hard drive.  
63	It relates to a high number of images and videos, namely a total of 5,808 images and 168 videos.  A very high proportion, namely a total of 5,490 were unique which means 5,490 individual children were depicted.  
64	I take into account a significant proportion were in the least serious category.  A large proportion of those being images obtained from Instagram accounts of young girls showing themselves in swimwear or underwear.  Sensibly you conceded in your record of interview that although those images may not be illegal, “Once you put them all together they have a more sinister tone.” 
65	I take into account that Charge 5 is a single date offence, though sensibly it was not argued that the offending reflected a solitary day.  You admitted to police having received or obtained those materials via online chat or online applications over a period of time, and to then having saved a collection of them.  You admitted downloading applications and saving images to a hidden folder in the Photos application on your phone. 
66	I take into account that the offending in Charge 5 is essentially the same offending as demonstrated in Charge 1.  It however reflects an entirely separate time frame and is an offence against a different section of the Crimes Act 1958 after a 2016 legislative amendment which increased the penalty for possession of child abuse material.
67	In my view your offending taken as a whole is in the mid-range examples of the possession and transmission of child abuse material. 
68	Your moral culpability for this offending is high, in particular noting that while committing these offences you held a position of General Manager within the Victorian Correctional system. The community expects persons in such roles to be of the highest integrity.  The community is also entitled to expect that a person in a role of Prison Manager would have some understanding and concern for victims of crime.
Personal Background
69	I take into account your background which lies in stark contrast to this offending.  Your wife and other persons who know you well have provided written testimonials. They talk of their profound disbelief that you have offended in this way.  
70	You are a man without any prior criminal record.  You have a solid work history and the testimonials talk of your work ethic and commitment to your employment.  You are a man with strong relationships both with your children and with your wife.
71	You are now 58 years of age.  You grew up in the Newcomb area and have four siblings.  Yours was a positive and healthy family environment.  Both of your parents are now deceased. 
72	You were educated to the end of year 11 saying you were somewhat unsettled in high school.  To your credit you returned to education as an adult, achieving an Advanced Diploma in Business Management.  
73	Your work history has been varied but steady.  You worked as a metal worker for 3 years then with Pacific Dunlop Grosby Footwear rising through the ranks from factory hand to Production Manager, working eventually in various locations both in Australia and overseas.  You then ran your own mixed business for 12 years before changing tack to become a Prison Officer.
74	You joined Marngoneet Correctional Centre as a Prison Officer in March 2006.  You worked across a range of prisons in various roles.  You again proved your work ethic and commitment, rising rapidly through the ranks to Senior Prison Officer, Vocational Services Manager and eventually Prison General Manager at Marngoneet. Karreenga Prison Annex was later added to your responsibilities.
75	You are proud of your career in Corrections.  I have received a testimonial from Pastor Kevin Maddock who has been involved as a volunteer working in prisons since 1979. Between 2001 and 2011 he worked as the Director of Volunteers employed by Prison Fellowship and then pastoring the Ex-Prisoner Fellowship until his retirement. 
76	Pastor Maddock met you in 2006. He met with you every couple of months for a period of time.  He says he has met many prisoners who have been involved in programs written and implemented by you at Marngoneet, many of whom say their life has been turned around by those programs. He says society is a much safer place because of your work.  He says he has enormous admiration for you, not only for maintaining humanity in dealing with prisoners but also for using your intelligence and eloquence in filling that difficult role and in training staff. He says you have been a positive influence within Corrections Victoria.
77	Since being charged with these offences you have met with him for two hours each week. You have discussed your offending and he describes you as being very vulnerable in that process, both expressing your regret and deep remorse and speaking of the awful effect on your wife and children.  He says the total loss of everything that you have worked for is sad to see: “his reputation, job, his friends from Corrections and some of his extended family’s withdrawal is a great weight to bear.”  I accept this is a sad way for you to end that career, and to do so at age 58.
78	Emeritus Professor Joe Graffam of Deakin University who met you professionally approximately five years ago, expressed similar sentiments. You have regularly engaged with him through his research into community reintegration of prisoners, including at conferences.  He attests to your commitment to the rehabilitation of prisoners.  You have supported approval of his projects and of research groups being involved with inmates pre and post release.  You have served on project reference groups and supported engagement of former prisoners as peer mentors.  You have delivered presentations, promoting that research and championing positive change in the prison system.  
79	According to Professor Graffam you have been respected within the Criminal Justice system within Victoria and nationally, both within the Department Executive and personnel, as well as inmates.  He says your professional reputation was previously impeccable.
80	He says you have been extremely remorseful. “He has acknowledged his guilt and culpability from the outset. He has expressed deep remorse over his crimes and the impact that the crimes have had on his victims, family, colleagues within the Department of Justice and Community Safety,” as well as on Professor Graffam and members of his research group.
81	Those sentiments are reflected in the letter from Lindsay White who met you frequently over the last five years on-site and off-site to discuss issues pertinent to volunteer work within the prison system. He described you as “an enlightened individual constantly looking for more effective ways to utilise prisoner time while incarcerated.”  He speaks of your remorse, as well as the losses you have suffered and have caused your family. 
Marriage and Children
82	You have twice been married.  Your first marriage ended amicably and you and your ex-wife shared custody of your two children.  You maintain a strong relationship with your now adult children who are supportive of you.  
83	You told Clinical and Forensic Psychologist Ms Colleen Crutchfield that you were living in a flat after your separation and felt like a middle aged failure.  You believe it was in that period that you started ‘having issues’.  A friend suggested you go on line to meet women. 
84	In 2002 you met your second wife on line. You then met in person in Singapore and after a period of 4 years you married.  You report that marriage has been ‘fantastic’.  When this offending was uncovered your wife returned to her family in Singapore for support.  She returned to Australia and your relationship continues. 
85	Together you share a 3 year old son.  Initially after you were charged DHHS restrictions required you to move from the family home and undertake supervised access with your son.  After 5 months or so that requirement was removed and you returned to live with your wife and child.  Supervision of your interactions with your son by a family member was mandated.  That was obviously a very difficult period for all involved.
86	You describe your wife as a remarkable woman and you are determined to see that relationship succeed.
87	Due to her concerns about media coverage and her family’s safety she was unable to attend court for your hearing. She writes an intelligent and compelling reference and has obviously agonised over her future with you and the future of your family.  She states she is appalled at your offending and in no way condones your behaviour, however her decision to continue her relationship with you stems from what she knows of the man she has been with for 17 years.   She describes you as a man of strong values, integrity and decency.  She has never observed any inappropriate behaviour. She says you are extremely respectful and supportive of her and that your married life has been very happy built on a strong foundation of love, friendship, respect and mutual values.  She says you are an excellent father, very involved in the lives of your two adult children and your young son. 
88	Your wife and adult children and your wife’s sister, together with you, have created a family plan directed to returning to stability, wellbeing and personal safety for all family members.  She says you and she hope for the best environment for your son, and her wish is that you be present in his life.
89	The impact on your wife is obvious.  The impact on your family financially is laid out in the materials.
Employment Status
90	Your employment was immediately suspended and you have resigned from your position within the Department of Justice and Community Safety.  
91	You were hopeful of starting your own maintenance business, however there have been issues with insurance and with finance from your bank due to these charges. Your wife eventually started a cleaning business with you doing a bookkeeping role.
92	The loss of your income and those ongoing limitations have created financial hardship for you and your family.  You are concerned that you will lose your family home. 
93	While not meeting the high standard of exceptional hardship, those matters are nonetheless relevant to my considerations.  You are most anxious about your responsibility for the harm and difficulty caused to your family by your offending.  I take those matters into account.  Your absence from the family in those circumstances and generally during your time in custody will be difficult.  I take that into account.
94	I also take into account to the extent I am able the extra curial punishment of publicity and the loss of your employment as well as the involvement of DHHS and restrictions imposed on you.
Plea of Guilty
95	You are entitled to credit for indicating from the outset that you would admit your offending, and you are entitled to a discount in sentencing for your plea of guilty.  
96	A plea of guilty carries a utilitarian benefit in that it saves the community the cost and time of a jury trial.  In a matter such as this there is an additional benefit in that it saves any jury the task of having to view and assess the child abuse material.  That is significant. 
97	In the context of Covid-19 pandemic and associated delays, your plea carries particular weight.  In particular I take into account that your matter progressed to the indictable stream in a time frame when all jury trials were adjourned.  It was open to you to take a course which would have seen you remain on bail for a considerable period of time.  You are entitled to a discount in sentencing for the prompt resolution of your matter in those circumstances. 
98	I also take into account that initially the matter was proceeding as a plea of guilty in the Magistrates’ Court in February 2020 on the Victorian charges.  On the day of the plea the Police Prosecutor, appropriately, took a view that there were Commonwealth offences committed regarding the transmission of child pornography.  The matter then made its way into the committal stream and shortly to a plea in this court.
99	I accept that you were anticipating a speedy resolution of your charges in the Magistrates’ Court in February, and the possibility of a less severe penalty in that jurisdiction.  The laying of additional charges has delayed that resolution and has seen you dealt with in this Court.  
Delay
100	Delay is relevant to sentencing in two ways.  Firstly, it means an offender is under the stress and anxiety of pending charges for a longer period of time.  Secondly it can be relevant where an offender takes steps towards rehabilitation.  Both are relevant considerations here. 
Time in Custody
101	I accept the submissions of your Counsel that your time in custody will be difficult for a number of reasons particular to you.  First, you are a former General Manager of a Victorian Prison.  That fact is likely to result in you serving your sentence in protective custody.  There is a risk of negative treatment of you by other prisoners, some of whom may have been under your supervision or may know others who have been under your supervision.  Pressure may also be brought to bear on you given your extensive knowledge of the prison system, its security and operations.  I take those matters into account.
102	Secondly, there is a risk of negative treatment from custodial officers who feel you have betrayed your former role and in turn, them.  I accept that upon your arrest an online group emerged which focussed on your offending and on the perceived way in which you have adversely impacted the reputation of correctional staff. I accept there was a distinct level of vitriol in those online exchanges.  
103	I accept that having been colleagues with a range of correctional staff will place you in a difficult position even without any particular or directed negative attention. I take those matters into account. 
104	I also take into account the fact that you have entered custody during the covid-19 pandemic.  That has meant an immediate period of isolation.  It has also meant that the usual support you would have derived from visits, in particular from your wife and adult children, has not been possible.  It is unclear for how long restrictions within the prison system will last, however what is clear is that prisons will likely be some of the last places where restrictions will ease.  Those restrictions generally have meant limitations to programs and to some in person therapeutic services.  I take those matters into account. 
Assessment of Risk, Specific Deterrence and Rehabilitation 
105	Submissions were made by both parties in relation to the need for specific deterrence.  Those submissions go hand in glove with my assessment of your risk of sexual reoffending, and of your prospects for rehabilitation.  In making an assessment of those matters I am mindful of the following.
106	Appropriately, after being bailed you sought treatment with Dr Russell Pratt, Forensic and Counselling Psychologist with an expertise in sex offender treatment.  In the phase immediately after discovery of your offending your life was falling around you.  Understandably at that stage you requested supportive therapy only.  However, and to my mind inexplicably, despite seeing him for over 12 months you have not started sex offender treatment.  That position seems to have been dictated by you.  In my view it represents a lost opportunity.  It does not aggravate sentence, but what it means is you are still at the start of a rehabilitation journey. 
107	Dr Pratt provided a report wherein he made an informal risk assessment.  He assesses you as low risk of reoffending.  I am very cautious in accepting that assessment given you have not engaged with him in discussion around your offending or offence processes.  
Psychological Risk Assessment
108	Further psychological assessment of you was conducted by Ms Crutchfield first in December 2019/January 2020 and then in September 2020. She too assesses you as a low risk of reoffending. I am very cautious in accepting her assessment for the following reasons.
109	Ms Crutchfield apparently had only a summary of your record of interview.  She says she asked you about your offending. You told her a number of things.
110	First you asserted that you have no sexual interest in child pornography.  
111	Second, you claimed your offending behaviour was an intellectual exercise whereby you wished to explore and understand the ‘overwhelming nature of lust that leads otherwise normal people into abnormal interests, attitudes and behaviours.’  Rather than sexual satisfaction you claimed that you enjoyed the challenge of getting this information from other men and that your reward was an intellectual high that you could get someone to reveal their darkest secret.  
112	Those claims are very difficult to reconcile with the contents of the online conversations and with your admissions in your record of interview.  Indeed they are difficult to reconcile with your admissions to Ms Crutchfield that at times you would find the conversations arousing and that you would masturbate. Yet based at least in part on those claims she concludes yours was not a sexual interest in the child pornography but a voyeuristic interest in the motivations of others. 
113	Third you claimed that even if you were not arrested you would not have continued your behaviour as ‘it had no purpose any more.  It was exciting, yes but no need to.’  And yet the conversations and exchange of images run to and are repetitive until interrupted by your arrest.  Further, Ms Crutchfield seems to have accepted your claim that any interest in this type of material has now gone.
114	These are matters which informed her risk assessment as well as her conclusion that you have not minimised your offending.  I do not agree that you have not minimised your offending. To my mind your claims are more likely part of the ‘positive impression management’ Ms Crutchfield observed ‘due to difficulties in acknowledging negative or unpleasant aspects’ of yourself.
115	In short I do not accept your explanation that this was an intellectual pursuit.  It may be that your work in the prison system initially piqued an interest in such behaviour and may indeed be a viable topic for exploration, however what you admit to police in your record of interview is quite separate to your employment.  
116	You admitted to police that “the thought of it [child pornography] has been a sexual fantasy… when I was viewing images for whatever reason online I found myself interested in this over a period of time.  And then it became discussing this with other people on line… whether I initiated a conversation based on a comment I saw in a photo where someone’s said “She’s pretty’ and I would agree and then a conversation would develop from that.  … And then over a period of time I collected the images… I just started to keep them… to continue the fantasy thought.  It’s a sexual fantasy.”
117	When asked to describe that fantasy you told police it was about having sex which was forbidden.  You admitted talking about incest being daddy-daughter or a father having sex with their daughter.  You stated “It’s the idea of doing something you’re not allowed to do… and clearly this is something that’s taboo, it’s forbidden, and that I found exciting.”
118	You admitted identifying “like-minded persons” and engaging in conversations around sexual fantasy involving a sex act with a child.  
119	You admitted having online chats where you shared that fantasy ‘10 – 15 years ago’, ‘I’m guessing when I was about 40 or so it became something that I was aware of. … I have participated in this fantasy for some time.’  Those frank admissions do not change the fact that you are only to be sentenced in relation to the periods covered by the charges before me.
120	Your claim that this was an intellectual exercise does not explain why you had saved hundreds of images into a folder and placed them on a USB.  It does not explain why you did not explore other motivation with other types of offenders or other types of sexual offending.  
121	You told police this offending was very much a separate part of your life which existed only on line.  No doubt the shock and shame of this secret part of your life being uncovered has led to you attempting to explain it to yourself and to others.  That is no doubt because there is a massive canyon between your public persona – and probably your personal life – and this behaviour.  Professor Graffam comments to the effect that he sees you are still struggling to understand why you have offended in this way given the normalcy of your family relationships and your standing in the professional community. 
122	To that end you may have unwittingly created a narrative which does not confront the true motivations you admitted in your interview with police.  That interview to my mind is an untarnished account of your offending and I give you credit for those frank admissions.
123	Ms Crutchfield does explain that you have rationalised your interest in this material which has led to formation of cognitive constructs and distortions which have allowed you to carry on this secret aspect of your life.  To an extent I accept that description.
124	I accept there is nothing to suggest you have or would progress to contact offending against a child.  However in all the circumstances of a long term fantasy and involvement in child pornography, you appear to me to present a risk of reoffending by way of accessing child pornography material.  
125	I accept the comments made by Dr Pratt that you genuinely wish to understand for yourself why you commenced and continued your offending behaviours and that you find yourself genuinely perplexed as to the basis of those behaviours. Although you offered to him an intellectual, cognitive narrative, he made it clear to you that your somewhat ‘neat explanation’ in no way took into account your role in the offending and more importantly you were avoiding the affective component of your behaviours. In his view that is the more important part of the process to understand. 
126	Dr Pratt has indicated to you that understanding those matters will be the likely challenge of actual treatment and will not be a quick process. You did not disagree with that assessment.  That is a positive. 
127	According to Dr Pratt you would benefit from a mix of individual and group treatment. The individual treatment will benefit you ‘in regards to understanding [your] unique pattern of behaviour as well as providing strategies to continue managing [your] issues in more prosocial ways. Group treatment will assist [you] from a more process orientated way with the power of a group based program holding [you] more publicly accountable and allowing the group to provide real-time, real-world feedback throughout treatment.’ Those recommendations should be considered by those responsible for administering sex offender programs to you.
128	Dr Pratt says you have been a diligent client open to the notion that you have more work to undertake. I accept that assessment.  In that sense I also accept his assessment that you are an excellent candidate for rehabilitation and that you have demonstrated a number of the fundamentals for change which he describes.
Remorse
129	I also accept that your expressions of remorse are genuine and are factors which point positively to your potential for rehabilitation. Your remorse has been expressed to your wife and to the authors of the testimonials.  It has been expressed to Dr Pratt, and in your letter to the Court.
130	While I find it very difficult to accept that with your professional work in Corrections, you claim not to have considered that you were causing harm to young and vulnerable people, I do accept the matters reported by you to Ms Crutchfield in September assessment.  Namely that over the past 12 months you reported having read and better understood the ongoing effects of online images on child victims.   I accept you have now expressed your abhorrence and self-loathing at your offending. 
131	Overall I accept that you have positive prospects for rehabilitation.
Current Sentencing Practices
132	I was provided with a number of cases by both your Counsel and the Prosecution.  I have considered those and the cases referred to in written submissions.  Each case of course has its similarities and differences.  I have already indicated my view of the objective gravity of your offending.  I am required to sentence in line with current sentencing practices and to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
Cumulation and Concurrency
133	I accept Counsel’s submission that there ought be substantial concurrency in relation to Charges 3, 4 and 5. 
State and Commonwealth sentences
134	I have been mindful of the interplay between the State and Commonwealth offences in this matter which makes sentencing a complex task.  In short I have no power to fix an overall head sentence with a single non parole period.  Rather, I am required to set a total effective sentence on the State offences and, given the length of that term, a non-parole period.  
135	In relation to the Commonwealth offences of Charges 3 and 4 the total effective sentence on those charges will not exceed 3 years.  I am therefore unable to impose a non-parole period, but must impose a recognizance release order by virtue of s.19AC(1) of the Crimes Act 1914 (Cth).   
136	In my view the volume and nature of material possessed across a range of different devices makes Charge 5 the most serious offence here.  That will therefore be the base sentence. 
137	Although I will order cumulation of the two Commonwealth charges by setting a delayed start date, the overall length of the State sentence and non-parole period which I intend to impose means that those Commonwealth sentences would effectively be subsumed by the State term.  However my view is that there should be some practical cumulation reflecting the on-line conversation offences over and above the two possession charges.  In order to achieve that practical effect I have slightly increased the level of cumulation on Charge 2 as reflective of the on-line conversation and transmission offences. 
138	The sentence I impose is as follows;
Sentence
139	On Charge 1 you are convicted and sentence to 16 months imprisonment.
140	On Charge 2 you are convicted and sentence to 20 months imprisonment.
141	On Charge 3 you are convicted and sentence to 2 years imprisonment.
142	On Charge 4 you are convicted and sentence to 2 years imprisonment.
143	On Charge 5 you are convicted and sentence to 2 years and 3 months imprisonment.
144	I direct that Charge 5 is the base sentence.  I direct that 4 months of the sentence on Charge 1 and 10 months of the sentence on Charge 2 be served cumulatively on the base sentence. 
145	The total effective State sentence is therefore one of 3 years and 5 months imprisonment.
146	In relation to Charge 3 I direct that that sentence is to commence on 13 November 2021.
147	In relation to Charge 4 I direct that that sentence is to commence on 13 November 2021.
148	In relation to the Commonwealth charges I direct that after serving 14 months imprisonment you are to be released on a recognizance under s.20(1)(b) in the amount of $2000 to be of good behaviour for 2 years.
149	The total effective State term is 3 years and 5 month imprisonment.  I direct that you are to serve 2 years and 3 months imprisonment before becoming eligible for parole.
150	In practical terms what this means is that I have ordered 12 months cumulation of the Commonwealth offences on the State offences, however the period to serve before being released on a recognizance will approximate the expiration of your non-parole term.  You will then simultaneously be subject to State parole and Commonwealth recognizance.
151	I direct that your legal representatives explain to you the consequences of a recognizance release order pursuant to s.16F(2) of the Commonwealth Crimes Act 1914 and in particular the consequence of breaching such an order.
152	I declare that you have already served 18 days imprisonment as pre-sentence detention and that that period should be reckoned as having been served under this sentence. 
153	But for your pleas of guilty the sentence I would have imposed on the State offences would have been one of 5 years and 8 months imprisonment with a non-parole period of 4 years 5 months imprisonment.
Sex Offender Registration 
154	Each of the offences before the Court are Class 2 offences pursuant to the Sex Offenders Registration Act 2004 (Vic) (“SORA”) and you are therefore a registrable offender.  The mandatory term for reporting requirements is one of life. You will today be provided with documentation about that registration.  You will be asked to sign that documentation indicating that you have received it.  That will then be provided to the Court.
Forfeiture
155	The Prosecution seek forfeiture of the devices and items used in commission of the offending.  I propose to make that Order however, you or someone representing you is to be provided with music recordings and family photographs which are located on a number of those items.  
156	Thankyou Counsel for your assistance in this matter.