IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
TOBY MURPHY (A PSEUDONYM)		

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JUDGE:	HER HONOUR JUDGE CARLIN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	28 September 2021	
DATE OF SENTENCE:	8 October 2021	
CASE MAY BE CITED AS:	DPP v Murphy (A Pseudonym)	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1525

REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: Plea of Guilty; persistent sexual abuse of child under 16 being the offender’s biological daughter; produce child abuse material for use on a carriage service; transmit child abuse material using a carriage service; cause child abuse material to be transmitted to self; sexual assault of a child under the age of 16 being the offender’s biological son; sexual penetration of a child or lineal descendant being the offender’s biological son; possessing child abuse material obtained or accessed using a carriage service; gross breach of trust; sentence above the standard sentence is warranted; sentence for both Commonwealth and State charges.
Legislation Cited: Crimes Act 1958 (Vic); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).   
Cases Cited: DPP v Robards [2020] VCC 1165; DPP v Williams (a pseudonym) [2020] VCC 2065; Clarkson v The Queen (2011) 32 VR 361; Adamson v R [2015] VSCA 194; DPP V Toomey [2006] VSCA 90; Worboyes v The Queen [2021] VSCA 169; Barbaro & Zirilli v The Queen [2012] VSCA 288; Brown v The Queen [2019] VSCA 216; DPP v Bales [2015] VSCA 261; Mush v The Queen [2019] VSCA 307; Director of Public Prosecutions v Toomey [2006] VSCA 90.
Sentence: Convicted and sentenced to 16 years' imprisonment with an effective non-parole period of 12 years.  
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms F. Martin	Office of Public Prosecutions	
			
For the Accused	Mr S. Kenny	Pica Criminal Lawyers	

HER HONOUR:
Introduction
1	Toby Murphy, between 31 January and 18 June 2020 you sexually exploited and abused your three children, Hugo, Matthew and Emily, who were then aged 11, 9 and 5 respectively.  Not only did you repeatedly perform sexual acts against or in the presence of Emily and Hugo you recorded all your abuse on your telephone for later use on the internet.  Similarly, you filmed or photographed all three of your children’s naked bodies or genitalia on other occasions for use on the internet.  
2	It was your transmission of this child abuse material on the internet that was your undoing.  Just after 1am on 18 June 2020, you sent four images via the KIK messenger application using the screen name ‘ranga3063’ to a person who, unbeknownst to you was a covert police operative based in Washington DC in the United States America.  These images were of your 5-year-old daughter Emily who was naked on a bed.  In three of those images parts of your body could be seen, including in one image, your exposed penis as you lay beside her.  You told the undercover operative ‘I have played with her pussy and licked it but no chance of getting my cock in’. 
3	To their credit, the police in America and Australia were quick to act.  At around 8.30pm that night, members of Victoria Police and the Australian Federal Police executed a search warrant at your home where you lived with your three children.
4	During the search they located and seized an Oppo A52 mobile phone and a Samsung mobile phone, as well as a doona cover visible in the images you had sent to the undercover operative.  Review of the Oppo mobile phone confirmed use of the KIK application with the username ‘ranga3063’.  Further, the four images you had sent to the undercover operative earlier in the day were found in the KIK image gallery.   
5	You were then arrested and taken to your local police station where you were interviewed.  You admitted sending those four images but specifically denied sexual activity with your children.  Your children were spoken to by police the next day, but all denied that any ‘bad touching’ had occurred.  You were then charged and released on bail.  
6	The true extent of your crimes was only discovered when later detailed analysis of your two mobile phones revealed many more child abuse images and videos of your three children. You were easily recognisable in many of the images and videos because of your distinctive tattoos and body piercings.  You were then charged with further offences.  
7	At a committal mention on 2 October 2020 you asked for your bail to be revoked and you have been in custody ever since, a total of 373 days up until today.  At a further committal mention on 15 January 2021 you pleaded guilty to all charges and were committed to this court.  
8	On 28 September 2021 you pleaded guilty before me to: 
Charge 1 – Persistent sexual abuse of a child under the age of 16 contrary to s.49J(1) of the Crimes Act 1958;
Charge 2 – Produce child abuse material for use on a carriage service (rolled-up charge) contrary to s.474.23(1) of the Criminal Code Act (Commonwealth) 1995;
Charge 3 – Transmit child abuse material using a carriage service (rolled-up charge) contrary to s.474.22(1) of the Criminal Code Act (Commonwealth) 1995;
Charge 4 – Cause child abuse material to be transmitted to self, contrary to s.474.22(1) of the Criminal Code Act (Commonwealth) 1995;
Charge 5 – Sexual assault of a child under the age of 16 (rolled-up charge) contrary to s.49D(1) of the Crimes Act 1958;
Charge 6 – Sexual penetration of a child or lineal descendant contrary to s.50C(1) of the Crimes Act 1958; and
Charge 7 – Possessing child abuse material obtained or accessed using a carriage service contrary to s.474.22A(1) of the Criminal Code Act (Commonwealth) 1995.
9	After a short dispute as to whether one of the particulars of charge 1 was made out, which necessitated me viewing the relevant video, a plea on your behalf was conducted and it now falls to me to sentence you for your conduct.  Your counsel, Mr Kenny, rightly conceded that the only appropriate disposition was a lengthy term of imprisonment.  
10	In arriving at an appropriate sentence, which in this case is really the length of your prison sentence, I am required by law to have regard to a variety of sometimes countervailing factors.  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves to arrive at a just sentence. 
11	However, before I discuss those factors, I need to set out the circumstances of your offending in some detail.

Circumstances of the offending
12	The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.  There is no need to repeat those facts in full.  Suffice to say as follows.    
13	Charge 1 – Persistent sexual abuse of a child under the age of 16 comprises 27 occasions on 17 different days of you sexually touching Emily or engaging in sexual activity in her presence between 29 February and 18 June 2020.  You recorded all of this activity.  Some of the occasions comprise multiple or prolonged instances of the same activity.  
14	Most of the sexual touching occurred whilst Emily was laying in a bed that she shared with you.  It occurred at all hours, but mostly at night.  Emily was often naked and often asleep.  The contact includes you masturbating and then putting your penis near her face or on her lips and nose whilst she is sleeping; licking her vagina whilst she appears to be sleeping; masturbating and then ejaculating on her exposed stomach or her buttocks; rubbing her vagina with your finger then placing her hand on your penis and then ejaculating on her buttocks; rubbing your genitals and then inserting your finger into her vagina; rubbing her genitals and then inserting your finger into her vagina; rubbing your penis against her genitals, then masturbating and then placing your face in her genital area; placing your face in her genital and buttock area; rubbing your penis on her anus between her cheeks; rubbing her buttocks and genitals over her underwear, masturbating yourself and then touching her face with your penis; masturbating yourself beside her, rubbing her genital area over her underwear and then moving it to one side to expose her genitals; and rubbing your penis against her buttocks.  
15	Some of the activity I have just described occurred once and some on two separate occasions.  In addition, there were two occasions where you rubbed Emily’s vaginal area whilst she was having a shower.  
16	The sexual activity without touching includes you masturbating next to her whilst she is sleeping (that occurred on 8 occasions, including multiple instances on one day); masturbating in her presence in the bathroom (on one occasion); and putting your penis near her face (on 2 occasions).  
17	Charge 2 – Produce child abuse material for use on a carriage service.  This is a rolled-up charge comprising 71 occasions between 31 January and 18 June 2020 when you filmed or photographed your three children in a sexually abusive manner.  It includes footage and images of all the charged sexual activity involving Emily and Hugo (charges 1, 5 and 6) as well as videos and photographs of all three children’s naked or partially naked bodies or genitalia on other occasions, sometimes with your penis also visible and on at least one occasion with semen on Emily’s body.  Of the 71 occasions, 62 relate to Emily and comprise 64 videos and 14 images, 5 occasions relate to Matthew and comprise five videos and 3 images, and 4 occasions relate to Hugo and comprise 4 videos and one image.  
18	Charge 3 – Transmit child abuse material using a carriage service.  This is a rolled-up charge comprising 57 occasions between 15 April and 18 June 2020 when you transmitted child abuse material depicting Emily, Hugo and Matthew during KIK or WhatsApp conversations on your two mobile phones.  In addition to your conversation on 18 June 2018 with the covert police operative, there were 54 other KIK conversations in which you used the name ‘ranga3063’ and two WhatsApp conversations in which you used the screen name ‘Tobe’ to transmit material you produced in charge 2.   At face value all 57 conversations were with different people.  You freely discussed your children in vulgar and sexualised terms with these people and appeared proud of your abuse.  You sent these people a broad range of sexually abusive videos and images of your children, including the worst of the material you produced in charge 2.   For example, you sent images and videos of you placing your penis near a sleeping Emily’s face, you touching her nose and lips with your penis, you ejaculating on her exposed stomach, you rubbing your penis against her anus between her buttocks, Emily holding your erect penis, you rubbing her genital area with your finger and you rubbing your penis against her genital area.  You also sent videos of you masturbating and performing oral sex on Hugo, conduct which comprises charges 5 and 6 respectively.  One of the last KIK chats before your arrest was with a person ‘JOHN9666’ who asked you to send another picture of your daughter and in return he would send you ‘the other doggo or a pic of me with the big dog’.  You then sent him an image as requested.   
19	Charge 4 – Cause child abuse material to be transmitted to self between 
13 and 16 May 2020.  This charge relates to you receiving from one of the people to whom you had sent a video of you touching Emily’s lips and nose with your penis via KIK, two videos and one image of child abuse material relating to a female child aged 11 or 12.  The images and videos show an adult male exposing and masturbating his penis over the child, grabbing her hand and placing it on his penis and rubbing his hand on her mouth whilst saying ‘c’mon you little slut love that cum’.  
20	Charge 5 – Sexual assault of a child under the age of 16 is a rolled-up charge consisting of you masturbating Hugo’s penis on two occasions 13 minutes apart on 29 May 2020. The occasions were caught on two separate videos taken at 12.59am and 1.12 am. 
21	Charge 6 – Sexual penetration of a child or lineal descendant.  This relates to you sucking Hugo’s penis, at 1.12am on 29 May 2020.  
22	Charge 7 – Possessing child abuse material obtained or accessed using a carriage service.  This relates to your possession of 54 videos constituting child abuse material that did not involve any of your children.  These videos were located on your Samsung mobile phone in files belonging to the KIK and WhatsApp applications as well as being saved in the Android Gallery.  Analysis revealed they were created on your phone between 22 April 2020 and 3 June 2020.  In other words, that is when you received them. 
23	30 of the videos were classified as Category 1 child abuse material and 24 were classified as Category 2 child abuse material according to the Interpol Baseline Classification System.  Category 1 covers material that depicts a ‘real’ prepubescent child, under the age of 13 years, involved in a sexual act; witnessing a sexual act; or where the material focuses on the child’s anal or genital region. Category 2 covers a range of material but includes material that depicts or describes: 
•	‘real’ children from birth to under 18 yo who are, or appear to be, victims of torture, cruelty or physical abuse.
•	‘real’ post-pubescent children aged 13-18 years old involved in or witnessing a sexual act; or where the focus is on the child’s anal or  genital region or breasts.

Your personal circumstances   
24	I now turn to your personal circumstances. These were outlined in defence submissions, a letter written by your mother Ms Terri Gibson, and two psychological reports, one from treating clinical psychologist Mr Peter Hanley and one from forensic psychologist Mr Simon Candlish.  Mr Hanley consulted with you on four occasions via Zoom between 15 July 2020 and your remand on 20 October 2020.  Mr Candlish interviewed you on 16 March 2021 for approximately 2.5 hours and administered various psychometric assessments.  The interview proceeded via videoconferencing software.  
25	You are now 43 years old and have one older sister and several half siblings. Your parents separated when you were an infant and you were raised in Wheelers Hill by your mother and stepfather.  You remained close to your father and resented not living with him. You described your childhood as unstable: you had a strained relationship with your stepfather, were known to police, and had poor behaviour at school. You had a brief period in foster care when you were 15 and moved out of home at 16.
26	You left school part way through Year 11. You report that you did not like school and were often in trouble, receiving regular suspensions in high school. 
27	After leaving school, you began working as a mechanic. However, after about 12 months, you left that role and began associating with peers involved in criminal activity and drug use. By the time you were 19, you were using drugs, including cannabis and amphetamine daily. You were unemployed until your mid-twenties when you attended a seven day rehabilitation facility and ceased using amphetamines.
28	Since your mid-twenties, you have worked in a variety of positions, many of which were stable and long-term, including as a retail manager, service technician and cleaner. Your last position was  manager of a transport company which you held for nine months until you became a full-time carer of your three children and began receiving the sole parent pension.
29	You had an 11-year relationship with the mother of your children, Ms Karla Blake. Prior to that you had numerous partners and short-term relationships. You told Mr Candlish that you sought out other sexual partners, males and females, during your relationship with Ms Blake, and this contributed to the end of that relationship.
30	You sought and received sole custody of all three children in March 2019 after a lengthy legal process involving the intervention of child protection.  You claim you made a total of 52 reports to the Department of Health and Human Services about your ex-wife’s parenting.  According to your mother you struggled to care for your children once you had sole custody.  You found managing their behaviour and coping with the daily activities of running your household difficult, but you did not seek or accept support. 
31	You reported to Mr Hanley and Mr Candlish that your sons have significant mental health and behavioural issues, including of post-traumatic stress disorder.  You said, Matthew, the youngest, had been diagnosed with ADHD and oppositional defiant disorder and had threatened self-harm.  You said you were worried your daughter might also develop mental health problems.  
32	After obtaining custody of your children, you learned that your father was very ill.  After he died in early 2020 you relapsed into heavy drug use, mainly methamphetamine, to ‘block things out’. You reported using methamphetamine intravenously on a daily basis at the time of your offending, but said you never used in front of your children. 
33	You told Mr Candlish that you had a history of depression and had been on antidepressants for the last three years, but he considered your symptoms more consistent with stress.  He also did not believe you met the criteria for a major depressive disorder at the time of his assessment although you did display depressive and stress symptoms related to your current predicament.  Similarly, Mr Hanley did not diagnose you with depression, but considered you met the criteria for an adjustment disorder with disturbance of conduct. 
34	Mr Hanley and Mr Candlish both regarded your drug use as having had a significant impact on your psychological and social functioning. 
35	You have been in custody since you elected to have your bail revoked on 
2 October 2020. It is not entirely clear why you did this, but it followed information about your offending circulating publicly in your local community. 
36	Evidence submitted by Mr Kenny indicates that you are making use of your time in custody by engaging in all available courses and treatment opportunities.  Your mother says that you are working in prison and she reflects that custody may be having a positive impact on your physical health.
Objective Gravity of your offending and moral culpability
37	Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  
38	Any offending involving the sexual abuse of children is inherently serious.  If there was any doubt about that the maximum penalties in this case make it perfectly clear.  So too does the fact that a number of your offences are subject to specific sentencing provisions which operate to constrain the sentencing discretion in favour of harsher penalties. 
39	The maximum penalties for your offences are as follows:
40	Charges 1 and 6 - persistent sexual abuse of a child under 16 and sexual penetration of a child or lineal descendant - 25 years' imprisonment.  Since 
1 February 2018, they have also been standard sentence offences under the Sentencing Act 1991 with the standard sentence for offences of mid-range objective seriousness set at 10 years for charge 1 and 8 years for charge 6.  They are also Category 1 offences meaning they must be punished by a custodial order not in combination with a community corrections order. 
41	Charges 2, 3, 4 and 7 – producing, transmitting, causing to be transmitted to yourself and possession of child abuse material - 15 years' imprisonment.
42	Charge 5 - Sexual assault of a child under the age of 16 - 10 years imprisonment. It is also a standard sentence offence with the standard sentence for an offence of mid-range objective seriousness set at 4 years imprisonment.  
43	There is also a presumed minimum non-parole period of at least 60 per cent of the total effective head sentence because of the fact I am sentencing you for standard sentences.  
44	One only has to recite the facts in this case to appreciate the gravity of your particular offending.  Your possession and receipt of child abuse material involving children unknown to you was serious enough, but your exploitation and abuse of your own children raises your offending to a whole new level.  You were prepared to subjugate their welfare, just as you were prepared to subjugate the welfare of all the children you did not know, to your perverted sexual desires.  The depths of your depravity are hard to fathom.  
45	I regard charges 1, 2, 3, 5 and 6 as serious examples of serious crimes.  Whilst charges 4 and 7 are still serious and recognising that quantum is not determinative of seriousness, I regard them as less serious examples of their crimes because the volume of material is less than is often seen. 
46	I regard your moral culpability as very high for all your offences.  
47	You offended against all three of your children, but particularly Emily and Hugo.  Your conduct involved a gross breach of trust, both of your children and of society.   Having, as you say, fought for sole custody of your three children, you then totally abdicated your responsibility as a father to protect and nurture them.  You sexually assaulted two of them in a most egregious manner, including penetrative activity.  You did not wear a condom despite repeatedly touching Emily’s face, genitals and anus with your penis.  You also used all three of your children as commodities to trade on the internet with similarly deviant individuals realising that control of the photographs and videos would be lost for ever. 
48	You did all this knowing that your children were emotionally and psychologically vulnerable, not only because of their age, but also because of their early childhood experiences and the breakdown of your marriage.  Despite claiming to be worried about their mental health, you showed absolutely no concern for the consequences of your actions. The harm you will have caused your children is immeasurable.
49	Your conduct was also persistent and repeated and only came to an end when you were discovered.  
50	You told the police in your interview that you sent the four images to the undercover operative after taking ice and because you were just swept up in the moment and were not thinking straight.  You admitted taking photographs of Emily about 3 months before ‘in her knickers or something and running around the house with the boys or something’ but said you deleted them because you knew it wasn’t ‘acceptable’.  You claimed you did not recall taking any other photographs.  You even claimed you did not recall taking a video found on your phone of you offending against Emily the night before your interview.  I interpose to note that you actually took 3 videos of Emily between 1.23 am and 3.54 am on 18 June, one of them showing you rubbing your penis against her bare buttocks and one of them showing you masturbating next to her.  Returning to your interview, you denied engaging in any sexual activity with your children.  You said you needed help and were very ashamed of what you had done.  
51	Similarly, you told Mr Hanley and Mr Candlish that you knew what you were doing was wrong but could not control yourself.  You again claimed not to remember your offending due to your chronic ice use, but said you were disgusted by it and hated yourself.   You gave a range of possible motivations including loneliness, curiosity and a desire to connect with men after your father died.  You said you only offended late at night after you had used methamphetamine and that you were not entirely in control of your behaviour.  
52	In fact, your offending occurred at all hours of the day and night over four and a half months, not just late at night.  If you really did not remember what you had been doing you only needed look at your two mobile phones to find out.  If you really only offended whilst under the influence of ice, you only needed look at your mobile phones to stop taking it.  If you really were aghast at your behaviour, you only needed stop!  You had ample opportunity over those four and a half months to reflect on what you were doing and desist.  But desist you did not.  
53	Mr Candlish diagnosed you with paedophilic disorder based on your conduct.  He postulated that your lowered mood and poor coping appeared to create a vulnerability to chronic drug use. In turn your drug use increased your sexual arousal and interest and disinhibited your sexually deviant interests.  I do not find your drug use to be a mitigating factor.  You knew your behaviour was not only wrong but morally repugnant.  Indeed, you told Mr Candlish that after your father died you discovered that he had been sexually abused as a child by his uncle and that if you had known this earlier you would have killed the uncle.  
Current Sentencing Practices
54	One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.  Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.  
55	In this case neither counsel were able to provide me with any comparable cases.  This may be partly because of the extent and nature of your crimes and partly because in the case of standard sentence offences I am only permitted to look at other sentences imposed under that regime, that is, sentences imposed for offences committed after 1 February 2018.  I was however referred to a case of Robards, a case of persistent sexual abuse post standard sentencing, and am aware of another such case having imposed the sentence myself.   Those cases both involved a grandfather and are quite dissimilar to the present.  Whilst they provide little assistance in terms of being comparable, they highlight that ultimately my duty is to impose a just and appropriate sentence in the unique circumstances of this case. 

Impact of your offending 
56	Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances. 
57	There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children regardless of consent.  Further, the courts have recognised that rehabilitation of children who have been sexually abused may be more difficult than rehabilitation of the offender.  In that regard, it was said in a case called Toomey:
Frequently the damage will be profound and a long time will pass before it can be addressed at all.  In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.  
58	Although your children all told the police you had done nothing bad to them the presumption of harm is by no means displaced.  If anything, it is illustrated by their denials which are hardly surprising given their ages and the fact you were their father.  Whether they harboured a misguided loyalty to you, or did not understand the wrongfulness of your conduct, or both, it cannot be doubted that you have damaged your children by exposing them to premature sexual activity.  The fact you did so as their father, someone they loved and trusted, can only compound the damage.  Moreover, at a fundamental level, you have deprived your children of a father for the rest of their lives.
59	Two Victim Impact Statements were read to the court demonstrating the enormous impact your offending has had on your children and wider family so far.  
60	The first was from Karla Blake, the children's mother.  Ms Blake described feeling broken. She said ‘I have felt sick in the stomach since I heard what charges were involved’.  She feels responsible for what occurred and ashamed. 
61	The second was from your sister Jennifer Fisher who took in your children after your arrest.   Ms Fisher outlined concerning behaviours of your children, most relevantly sexualised behaviour towards each other and towards and in front of her own children.  She explained how they had to change schools because of the flyer that was circulated about you and how distressing and confusing the whole situation was for them.   
62	Ms Fisher also described the burden of caring for your children within her own family unit because of their behaviour and the shame and trauma that your actions have brought upon your siblings, and your mother.   
63	In short, your actions have had and will continue to have a profound impact on your children and family.
64	Of course, it must not be forgotten that the net of your offending was cast wider than your own children. It included the unknown children represented in all the images and videos covered by charges 4 and 7.  The presumption of harm applies just as much to those children.  Further, all children abused in such a manner, including your children, have to live with the knowledge that their images will remain on the internet forever.  
Plea of guilty, co-operation and remorse
65	You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage.  In so doing you facilitated the course of justice and took legal responsibility for your crimes.  The fact the case against you was overwhelming does not detract from the utilitarian value of your plea of guilty.  Moreover, our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.
66	Mr Kenny submitted that your plea of guilty was also indicative of remorse.  A plea of guilty is not, of itself, proof of remorse.  People can plead guilty for many reasons, including pragmatism and, as I have said, the case against you was overwhelming.  Further, as the courts have made clear, true remorse is not anxiety at the prospect of being punished nor simply regretting one’s conduct. True remorse involves a desire to make amends and a determination to change one’s behaviour.  
67	In that regard Mr Kenny pointed to the fact you voluntarily sought treatment with Mr Hanley and that is to your credit.  Further, Mr Hanley described you as having a positive attitude towards treatment.  It is also true that you expressed remorse to the interviewing police, Mr Hanley and Mr Candlish.  On the other hand, the sustained and repeated nature of your offending militates against a finding of remorse, as does the fact you made false denials during your police interview and tended, during that interview, and to the psychologists, to minimise your responsibility by shifting blame to drugs and claiming no memory of your offending.  There is also no evidence of concern for the impact of your crimes on any of your child victims. 
68	It may be that you are simply too ashamed and embarrassed to admit the whole truth and acknowledge what you have done.  However, on the evidence before me I am not persuaded that you do truly appreciate the harm you have caused, particularly to your own children.   I am prepared to accept that you do have some remorse for your conduct which I take into account in your favour, however I find that it is limited.
Your character and risk of reoffending
69	You only have one prior matter of an unrelated nature.  You cannot be said to be of prior good character because of your history of illicit drug use, however I do take into account your lack of relevant criminal history and the fact that you have been able to maintain employment for significant periods.  I also take into account the fact you still enjoy the support of your mother. 
70	Mr Hanley described you as having an ‘elevated risk of general recidivism’ and ‘an elevated risk of future sexual offending specifically’.  Mr Candlish noted that your simultaneous attraction to adults gave rise to the potential that your attraction to children would significantly decline over time.  He considered your offending in this case to be highly contextual in that you had access to your own children whilst disinhibited from drug use and suffering chronic stress and impaired empathy.  His clinical judgment was that in the absence of intervention you were at moderate to low risk of child abuse material and internet based offending and low risk of offending against children not in your care.  He described you as being motivated for treatment ‘to some extent’ and believed your prospects for rehabilitation were good.  
71	Your prospects of rehabilitation are tied to your ability to abstain from drug use and successfully engage in offence specific treatment.  Your risk of recidivism is also tied to the protective factors pertaining upon your release, such as you not having ready access to children.  I do not regard you as without hope.  However, given your longstanding problematic drug use and its association with the present offences, as well as the shocking nature of the present offences, I consider your future prospects as guarded at best.   
The burden of imprisonment
72	In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you.  I note that you have been in custody now for some time and no submissions have been made as to any particular difficulties you have encountered.  Indeed, your mother says that you ‘seem very bright and enjoying [your] prison life’ and that you have put on much needed weight.  Mr Candlish also noted that your enforced abstinence from illicit substances would potentially assist you to cope with stress and your depressive symptoms more effectively.  
73	I do take into account however, the fact that imprisonment during the pandemic is generally harder than at other times.  Not only is there the worry of the virus spreading throughout the prison population, but activities and programs and personal visits are reduced or suspended and there are also occasional lockdowns.
Purposes of Sentencing
74	In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed.  These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality.  What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.  
75	In your case, as I have already outlined, those general sentencing principles are qualified by some specific provisions applicable to you.  That is, charges 1, 5 and 6 are standard sentence offences and charges 1 and 6 are category 1 offences.  In addition, after your sentence on charge 1, you will be a serious sexual offender.  Thereafter, I will be required to consider protection of the community as the principal sentencing purpose and will be entitled to impose a disproportionate sentence to achieve that purpose.  Finally, your status as a serious sexual offender gives rise to a statutory presumption of cumulation in respect of the individual sentences.  The more serious the overall offending the more that presumption will operate to moderate the principle of totality. 
76	Even without those provisions your offending clearly warrants a substantial term of imprisonment.  The prosecution have not submitted that a disproportionate sentence is necessary and I am satisfied that I have enough sentencing discretion to achieve the purpose of community protection in your case without doing so. Similarly, although your charges sometimes represent offending against different victims, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of each sentence, particularly taking into account that there is considerable overlap in terms of dates and circumstances.  Indeed, I consider I need to order substantial concurrency of sentences in order to avoid a crushing and wholly disproportionate sentence.  Therefore, pursuant to s6E of the Sentencing Act 1991 (Vic), I ‘otherwise direct’ to give effect to my orders for cumulation and concurrency. 
77	The courts have repeatedly emphasised that in sentencing for contact sexual offences against children general deterrence and denunciation are paramount sentencing considerations.  This applies particularly to offenders like you who are entrusted with the care of their victims, whether as family members or otherwise.  Anyone who is tempted to offend against children in the belief they can do so with impunity needs to know that when their crimes come to light, they will be punished severely. The case of Toomey, to which I have previously referred, emphasised the need for such sentences to vindicate not only the individual victims, but also the values of society, 'fundamental to which is the protection of its children'.
78	The Court in Toomey also made the point that crimes such as yours are extremely serious not only because they impact the individual victims, but because they damage the community as a whole.  To quote again:
'The exposure over recent years of the extent of the incidents of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them'.
79	In the case of sexual abuse by parents the damage to the family unit is of course also immense.
80	Similarly, appellate courts throughout Australia have emphasised the paramount importance of general deterrence in sentencing for offences involving the possession and transmission of child abuse material.  The industry thrives on the voluntary sharing of images and videos as you did.  The offences are internationally prevalent and hard to detect given the anonymity afforded by the internet.
81	Although not as important as general deterrence and denunciation, the principles of specific deterrence and community protection also have a role to play in your case.  That is, as well as deterring others, my sentence needs to deter you from reoffending and to protect the community from you.  
82	Of course, my sentence must also be just.  It must reflect the mitigating factors I have already outlined in detail.  It should also promote your rehabilitation, that being one of the best ways to protect the community.  My sentence will allow for your rehabilitation in the fixing of the non-parole period.  
83	I am obliged to say how my sentences on charges 1, 5 and 6 relate to the standard sentences applicable to those charges.  In instinctively synthesising all relevant matters, in my view a sentence above the standard sentence is warranted in each case.  I also consider it appropriate to exceed the presumed minimum non parole period of 60 per cent of the head sentence.  
84	Weighing up the competing considerations as best I can the sentence I impose is as follows – can I say to counsel that because of the complexity in this case given that it involves Commonwealth and State sentences, I will have my associate email to you a document which sets out the sentence that I am about to impose so that you can look at that document and let me know as soon as possible if there are any problems with the arithmetic or the structure of the sentence.
Sentence 
Charge 1 – Persistent sexual abuse of a child under the age of 16 – you are convicted and sentenced to 11 years' imprisonment. 
Charge 2 – Produce child abuse material for use on a carriage service – you are convicted and sentenced to 7 years imprisonment. 
Charge 3 – Transmit child abuse material using a carriage service – you are convicted and sentenced to 7 years' imprisonment.  
Charge 4 – Cause child abuse material to be transmitted to self – you are convicted and sentenced to 2 years' imprisonment. 
Charge 5 – Sexual assault of a child under the age of 16 – you are convicted and sentenced to  4 years and 6 months' imprisonment. 
Charge 6 – Sexual penetration of a child or lineal descendant – you are convicted and sentenced to 9 years' imprisonment. 
Charge 7 – Possessing child abuse material obtained or accessed using a carriage service – you are convicted and sentenced to 3 years' imprisonment.
85	In relation to the State sentences, I order as follows.  Charge 1 is the base sentence.  One year of the sentence on charge 6 and 6 months of the sentence imposed on charge 5 are to be cumulative on charge 1 and on each other producing a total effective sentence for the State offences of 12 years and 6 months or 150 months.  In respect of that sentence, I fix a non-parole period of 8 years.
86	In relation to the Commonwealth offences I order that they each commence as follows.
Charge 2 - one year before the expiration of the non-parole period on the State sentences 
Charge 3 – upon the expiration of the non-parole period on the State sentences
Charge 4 – 5 years 6 months after the expiration of the non-parole period on the State sentences
Charge 7 – 5 years after the expiration of the non-parole period on the State sentences 
87	That makes a total effective sentence in respect of the Commonwealth offences of 9 years which starts one year before the expiration of the 8 year non-parole period in respect of the State offences.  I fix a non-parole period in respect of the Commonwealth offences of 5 years.  Because of the complexity of sentencing on a combination of Commonwealth and State offences I have had to set an artificially low non parole period on the Commonwealth charges to achieve my desired result.  
88	The total effective  overall sentence is 16 years' imprisonment with an effective non-parole period of 12 years.  
Presentence Detention
89	I declare that you have served a total of 373 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively. 
Section 6AAA  
90	If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of 
20 years with a non-parole period of 16 years.  
Serious Offender declaration
91	Pursuant to s 6F of the Sentencing Act I declare that in respect of charge 2 onwards you have been sentenced as a serious sexual offender and direct that fact be entered in the records of the court.  
Sex Offence Registration
92	You have been found guilty of two (2) Class 1 offences and five (5) Class 2 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic).    
93	This means that you will be required to comply with the reporting obligations under that Act for the rest of your life.  
94	The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.   
95	The court will arrange for that notice to be sent to you in prison.  
Ancillary orders
96	The Prosecution have made applications for a disposal order, which was not opposed by the defence.  That was in respect of the doona cover and your Oppo A52 mobile phone and your Samsung mobile phone.  I am satisfied it is appropriate to make the order and will do so.  
97	I appreciate that counsel may need some time to look at the structure of the sentence so I will leave the Bench and if counsel have any issues, they can let my associate know and I will come back on the bench to discuss if necessary.  I will just ask Mr Murphy; do you understand the total effective sentence that I have imposed?  That being 16 years with a non-parole period of 12 years. I just require you to answer yes or no?
98	ACCUSED:  Yes, I do, Your Honour.
99	HER HONOUR:  Can I ask counsel, are there matters that I need to attend to before I leave the Bench?
100	MS MARTIN:  No, Your Honour.
101	MR KENNY:  No, Your Honour.
102	HER HONOUR:  As I say, I will leave the Bench and I think my - well, I am pretty confident the way I have structured the sentence is correct but as I say, if it is not let me know or let my associates know and I will come back on the Bench.
103	COUNSEL:  May it please Your Honour.
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